Courts in Evolving Societies Sino-European Dialogue between Judges and Academics 9004438157, 9789004438156

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Courts in Evolving Societies

Chinese and Comparative Law Series Editorial Board C.H. (Remco) van Rhee (Maastricht University) Chen Lei (City University of Hong Kong) Advisory Board Bjorn Ahl (University of Cologne) William P. Alford (Harvard University) Stephanie Balme (Sciences Po Paris) Donald C. Clarke (George Washington University) Michael Faure (Maastricht University) Fu Hualing (University of Hong Kong) Fu Yulin (Peking University) Han Shiyuan (Tsinghua University) He Xin (City University of Hong Kong) Nicholas Howson (University of Michigan) Li Yuwen (Erasmus University Rotterdam) Bing Ling (Sydney Law School) Ken Oliphant (University of Bristol) Shan Wenhua (Xian Jiaotong University) Wang Liming (Renmin University of China) Margret Y.K. Woo (Northeastern University) Yu Xingzhong (Cornell University)

volume 9

The titles published in this series are listed at brill.com/​ccls

Courts in Evolving Societies A Sino-​European Dialogue between Judges and Academics

Edited by

Ragna Aarli and Anne Sanders

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Aarli, Ragna, editor. | Sanders, Anne (Judge), editor. Title: Courts in evolving societies : Sino-European dialogue between judges and academics / edited by Ragna Aarli and Anne Sanders. Description: Leiden, The Netherlands : Koninklijke Brill NV, [2021] | Series: Chinese and comparative law series, 2213-4875 ; volume 9 | Includes index. Identifiers: LCCN 2020032317 (print) | LCCN 2020032318 (ebook) | ISBN 9789004438156 (hardback) | ISBN 9789004438248 (ebook) Subjects: LCSH: Justice, Administration of–China. | Justice, Administration of–Europe. | Courts–China. | Courts–Europe. | Judges–China. | Judges–Europe. | College teachers–China | College teachers–Europe. Classification: LCC K2100 .C675 2021 (print) | LCC K2100 (ebook) | DDC 347.4/01–dc23 LC record available at https://lccn.loc.gov/2020032317 LC ebook record available at https://lccn.loc.gov/2020032318

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 2213-​4 875 isbn 978-​9 0-​0 4-​4 3815-​6 (hardback) isbn 978-​9 0-​0 4-​4 3824-​8 (e-​book) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents Preface vii Bjørnar Borvik List of Illustrations x Contributors xi

part 1 Introduction 1

Courts and Judicial Reforms 3 Ragna Aarli and Anne Sanders

part 2 Views from Within: Country Reports by Judges 2 China 21 Ragna Aarli 3 Germany 33 Reinhard Gaier and Anne Sanders 4 Slovenia 43 Nina Betetto 5

UK –​England and Wales 59 Right Hon Sir Richard Aikens

6 Norway 71 Ragna Aarli and Wenche Elizabeth Arntzen 7

Comparative Reflections  The Role of the Judge in the Melting Pot 85 Ragna Aarli

vi Contents

part 3 Reflections on Courts and Judicial Reforms Research Essays 8

Litigation Explosion and Reactions from Courts in China 103 Weidong Chen

9

A Study of the Tripartite Powers in Reforms to the Judicial Power Operation System in China 122 Lei Du

10

The Law Love triangle? The German Federal Constitutional Court and Its Two European Neighbours 143 Vanessa Hellmann

11

Judicial Case Management and Loyal Cooperation  Towards Harmonized European Rules of Civil Procedure 168 Remco van Rhee

12

Court Management for Sustainable Judiciary: the Case of Switzerland 203 Andreas Lienhard

13

Conclusions and Outlook 215 Ragna Aarli



Annex –​ Questionnaire 229 Index 233

Preface The Faculty of Law at University of Bergen has for a decade or so, with the indispensable advice and support from our strategic partner Renmin University of China Law School in Beijing, developed a strong cooperation with a broad range of Chinese academic and business partners. The main aim of our activities is to establish mutual opportunities for students and scholars to increase the knowledge of each other’s legal system, and to gain better understanding of how different or apparently similar rules work in practice. China’s increased importance on the global stage in recent years has triggered much debate among politicians, academics, ngo representatives, and other participants in public debates in western liberal democracies. Polarisation, scepticism and uncertainty has been, and still is, the gist of many of these debates. On the other hand, western business companies have with great enthusiasm grasped the immense market opportunities in China. And the gradual shift from production to innovation and invention in the Chinese business sector, represents additional opportunities for mutually beneficial cooperation between western and Chinese business entities. In this landscape, the Faculty of Law at University of Bergen strongly believe in more dialogue, more exchange, and more cooperation, not less. And in order to facilitate and further promote this cooperation, the Board of the University of Bergen established in February 2017 the Norwegian China Law Centre at the Faculty of Law. The Centre coordinates the Faculty of Law’s academic activities with Chinese partners, and is also supporting other University of Bergen faculties, entities, and scholars who would like to establish cooperation with Chinese partners. This book is the result of a research project and conference jointly organised by Norwegian China Law Centre at the Faculty of Law, University of Bergen, Renmin University of China Law School and University of Bielefeld in Germany. We are grateful for the generous financial support from all these three academic institutions. The conference was also financially supported by the Norwegian Agency for International Cooperation and Quality Enhancement in Higher Education (Diku). An organising committee was pulled together for the planning of the event: The wise counsel and contribution of Elisabeth Steiner, Judge of European Court of Human Rights in Strasbourg (2001–​2015), Sir Richard Aikens, Lord Justice of Appeal, Court of Appeal in England and Wales (2008–​2015), ZHU Yan, Professor, Renmin Law School, Ragna Aarli, Professor, Faculty of Law at University of Bergen, and Anne Sanders, Professor, Faculty of Law at University of Bielefeld, was instrumental for the success of the conference. Professor Aarli and Professor Sanders have had the endurance

viii Preface to transform some of the conference presentations into a publication, and thus made the insights shared at the conference available to a wider circle of people. For this effort, we are most thankful. And without the strong and long-​lasting support from Professor HAN Dayuan at Renmin Law School, the gathering of academics and professional judges in Beijing would not have been possible. We are truly grateful to all the distinguished participants that accepted our invitation to contribute to the conference: Vice President and Grand Justice of Supreme People’s Court of prc, Madame TAO Kaiyuan, Executive Vice-​ President and Professor at Renmin University WANG Liming, His Excellency Geir O. Pedersen, who was the Norwegian ambassador to China at that time, Dean and Professor WANG Yi from Renmin Law School, and Dean and Professor Karl Harald Søvig from Faculty of Law at University of Bergen for strongly supporting the conference in their opening remarks. A main purpose of the conference was to bring together academics and practitioners from the judiciary. We are particularly grateful to the judges who were willing to share their time and engage in our discussions. Apart from Sir Richard Aikens who also joined our organizing committee, we are truly grateful to ZHAO Daguang, the former Director and Judge of the administrative adjudication tribunal of the Supreme People’s Court of prc, Senior Judge JIAN Huiling from the Supreme People’s Court of prc and Director of the China Institute of Applied Jurisprudence, Director and Judge XUE Feng of the Administrative Adjudication Tribunal of Beijing First Intermediate People’s Court, former President and Judge SU Chi from Beijing Intellectual Property Court, Vice President and Judge CAO Shibing from the National Judges College, Supreme Court Justice Wenche Elizabeth Arntzen and Supreme Court Justice Magnus Matningsdal, both from Norway, Justice Reinhard Gaier, former judge of the Federal Constitutional Court and the Federal Court of Justice of Germany, and Supreme Court Justice Nina Betetto from Slovenia. Of course, Professor CHEN Weidong, Assistant Professor DU Lei (both Renmin Law School), Professor Andreas Lienhard (University of Bern, Switzerland), Assistant Lecturer and Research Fellow Vanessa Hellmann (University of Bielefeld, Germany), and Professor Remco van Rhee (Maastricht University, The Netherlands), who have developed their papers to chapters in this book deserve our special thanks. We would also like to thank Justice Magnus Matningsdal from the Supreme Court of Norway, Professor SUN Xiaoxia from Fudan University Law School, Grand Procurator of prc and professor of Renmin Law School DAI Youzhong, Professor David S. Law from Hong Kong University and Washington University in St. Louis, and Professor ZHU Jingwen from Renmin Law School for their academic presentations that are not included in this book. We would furthermore like to thank Professor WANG Chenguang

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from Tsinghua University School of Law, Professor YAO Hui from Renmin Law School and former Deputy Director of the Civil Adjudication Tribunal of the Supreme People’s Court of PRC, Professor ZHANG Jianwei from Tsinghua University School of Law, Professor HE Jiahong and Professor HAN Dayuan, both from Renmin Law School, for chairing sessions and facilitating fruitful debates during the conference. The participants who contributed to the refinement of the texts in this book by their thought-​provoking comments and questions at the conference are hereby also acknowledged. At last, but not least, we thank student Kristine Skorpen for assistance in finalizing and proof-​reading the texts, assistant Desmond Chu for his translations of ­chapters 8 and 9 from Chinese to English and CHEN Lei, head of international office at Renmin Law School for her faithful follow-​ups of all the practicalities in China. Finally, we would like to express our gratitude to Renmin Law School for graciously hosting the conference. Professor Bjørnar Borvik, Director of Norwegian China Law Centre at Faculty of Law, University of Bergen

Illustrations Figures 12.1 Judicial system of Switzerland 205 12.2 Basic principles of good court management research and project structure 207 12.3 Trust in the justice system 211

Tables 8.1 Number of civil cases in the Federal and Californian courts 105 8.2 Case disposal by judges of the United States Federal Appellate courts (excluding circuit courts) 106 8.3 First instance cases heard in people’s courts 107 8.4 Comparison of average number of cases heard in some prefecture-​level cities of China (2012–​2014) 111

Contributors Editors Aarli, Ragna Professor of Law, University of Bergen, Norway Sanders, Anne Chair for civil law, company law, the law of family businesses and comparative judicial studies, Bielefeld University, Germany Preface Borvik, Bjørnar Professor of Law, University of Bergen, Norway Contributors Aarli, Ragna Professor of Law, University of Bergen, Norway Aikens, Right Hon Sir Richard former Lord Justice, Court of Appeal of England and Wales Arntzen, Wenche Elizabeth Justice, Supreme Court of Norway Betetto, Nina Justice, Supreme Court of the Republic of Slovenia, and President of the Consultative Council of European Judges (ccje) Chen, Weidong Professor of Procedural Law, Renmin Law School, China Gaier, Reinhard Honorary Professor and former Justice, University of Hanover; Federal Constitutional Court of Germany, Federal Court of Justice of Germany

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Notes on Contributors

Hellmann, Vanessa Assistant Lecturer and Research Fellow, University of Bielefeld, Germany Du, Lei Assistant Professor, Renmin Law School, China Lienhard, Andreas Professor of Constitutional and Administrative Law, and Managing Director of the Center for Public Management (kpm), University of Bern, Switzerland Sanders, Anne Chair for civil law, company law, the law of family businesses and comparative judicial studies, Bielefeld University, Germany Van Rhee, C.H. (Remco) Professor of Law, Maastricht University, The Netherlands

pa rt 1 Introduction

∵

­c hapter 1

Courts and Judicial Reforms Ragna Aarli and Anne Sanders 1.1

Introduction

There is no society without conflicts. A common social strategy for handling conflicts in interpersonal relationships is to form courts authorised to impose civil and criminal sanctions on quarrellers and wrongdoers. Hence, courts are unsurprisingly among our oldest social institutions, and as such they have served many different masters.1 Although there are spatio-​temporal variations of court systems, some features seem to prevail and stand the test of time. In a court hierarchy within a nation state, courts at different levels of the hierarchy are usually allocated variable proportions of private and public functions.2 While lower courts often make decisions that are important for the parties alone, higher courts more often clarify, unify and develop the law for public purposes. The constitutional role of courts has developed later, but is also here to stay. State courts guaranteeing constitutionally protetected rights have successively been institutionalised in democracies ruled by law since the eighteenth century. In order to maintain a democratic government of expanding state obligations and to be able to provide just and useful services to litigants and persons accused of crimes, courts arguably still need to be continuously ‘reinvented’ as democratic institutions.3 This is all the more important in a globalised world where more and more courts work in an international environment and there 1 See for instance the account for church courts in western and central Europe between about 1100 and 1500 in Wilfried Hartmann and Kenneth Pennington (eds), The History of courts and procedure in medieval Canon law (The Catholic University of America Press, 2016). See also the account for the court system in the last imperial dynasty in China, the Qing dynasty, in Jianpeng Deng, ‘Classifications of Litigation and Implications for Qing Judicial Practice’ in Li Chen and Madeleine Zelin (eds), Chinese Law: Knowledge, Practice and Transformation, 1530s to 1950s, (Brill 2015) 17–​45. 2 See e.g. John Anthony Jolowicz, ‘The Role of the Supreme Courts at the National and International level –​General Report’, in Pelayia Yessiou-​Faltsi, (ed) The Role of the Supreme Courts at the national and International level –​Reports for the Thessaloniki International Colloquium 21–​25 May 1997 (Sakkoulas Publications, 1998) 37–​63, 39–​42. 3 Cf. Judith Resnik, ‘Reinventing Courts as Democratic Institutions’ (2014) Daedalus 143, 9–​27.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_002

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is an increased interaction between judges from different jurisdictions.4 For member states of the Council of Europe such as Germany, Slovenia, the United Kingdom and Norway, the European Court of Human Rights exerts strong influence on national case law. In countries which are also member states of the European Union such as Slovenia and Germany, the case law of the European Court of Justice plays an increasingly important role. Moreover, digitalisation also demands that courts change fundamentally in order to preserve their important societal functions. In the coming decades, new social, ecological and economic challenges are likely to arise which will require new reforms. Thus, court reforms are inevitable, perpetually ongoing projects anywhere in the world.5 The need for reforms, however, is for many reasons variably pressing at different times and in different societies. China’s forty years of continuous and comprehensive reform of the judiciary is currently of particular interest both from a historical and a comparative point of view. The extraordinary case of the Chinese judicial reform is an especially vivid example of the universal need for ongoing court reform. 1.2

The Aims and Structure of the Dialogue in This Volume

The anthology is our third step in a ‘dialogue’ between judges and academics on court models and reform in contemporary, constantly evolving societies. 4 See e.g. Elaine Mak, Judicial Decision-​Making in a Globalised World. A Comparative Analysis of the Changing Practices of Western Highest Courts (Bloomsbury, 2015) 2. The judicial discourse has also been observed to represent some sort of ‘supranational constitutional diplomacy’, see Laurent Scheeck, ‘Competition, Conflict and Cooperation between European Courts and the Diplomacy of Supranational Judicial Networks’, (garnet Working Paper No 23, 2007)  available at https://​warwick.ac.uk/​fac/​soc/​pais/​research/​researchcentres/​csgr/​ garnet/​workingpapers/​2307.pdf (accessed 1st April 2020). For a comparative examination of the actual influence of foreign legal sources in constitutional reasoning, see Andras Jakab, Arthur Dyevre and Giulio Itzcovich (eds), Comparative Constitutional Reasoning (Cambridge University Press 2017). 5 The importance of international exchange about the evaluation and improvement of court administration is also part of the mission of the International Association for Court Administration. An example of the ubiquity of court reform can be seen in the number of articles published in the International Journal for Court Administration on that topic. See e.g. Frans van Dijk and Horatius Dumbrava, ‘Judiciary in Times of Scarcity: Retrenchment and Reform’ (2013) 5 International Journal for Court Administration 15–​24; Cate Sumner and Tim Lindsey, ‘Courting Reform: Indonesia’s Islamic Courts and Justice for the Poor’ (2011) 4 International Journal for Court Administration 3–​16; Giancarlo Vecchi, ‘Systemic or Incremental Path of Reform? The Modernization of The Judicial System in Italy’ (2013) 5 International Journal for Court Administration 64–​87.

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The term ‘dialogue’ then refers to a resort for questions that cannot simply be solved by legal logic.6 The project started on the basis of two assumptions posited by the editors. Our first assumption was that we need more research on courts as organisations.7 The second assumption was that the challenges courts face today all over the world can be solved only in transnational cooperation between judges and academics.8 On the basis of these assumptions we wanted to bring both judges and academics from different countries together for an academic event and a joint research project. The project brought together participants from institutionalised pending ‘dialogues among judges’ in Europe,9 active participants in pending transnational dialogues among academics on judicial reforms10 and judges and academics fresh to these debates. From the start, we wanted to include both academics and judges from different Europan countries and China in this endeavor, as suggested by Professor Bjørnar Borvik, the driving force behind the whole project. This antho­ logy shows not only the result of our efforts, but also highlights how colla­ boration between legal practitioners and researchers from different countries can contribute jointly to the critical task of building sustainable judiciaries for our societies. As a first step, we started the collaborative process by inviting judges from different countries and from different legal traditions to fill out a questionnaire. The questiones focused on the major challenges to efficient and effective case management in different court systems, but also raised questions about the career of judges and the position of national courts in an increasingly internationalising society. The process prepared the organising committee and the judges themselves for the exchange between the academic researchers and the judges at the conference. 6 7

8 9

10

Cf. Anne Meuwese and Marnix Snel, ‘Constitutional Dialogue:  An Overview’, (2013) 9 Utrecht Law Review 123, 140. We share this notion with a number of other researches involved in the establishment of the Justice Administration Research Association (the jar-​Association) in 2020, The European Group of Public Administration’s (egpa’s) Permanent Study Group on Justice and Court Administration and the International Journal for Court Administration. This notion is also reflected in the draft Statutes of the jar-​Association in the making. One of the main goals of the association is to develop exchanges between judicial professionals, and researchers specialised in the field of the administration of justice. Nina Betetto (Slovenia), Reinhard Gaier (Germany) and Sir Richard Aikens (England and Wales) had all been active in the advisory body of the Council of Europe on issues relating to the independence, impartiality and competence of judges forming the Consultative Council of European Judges (ccje). Such as professor Weidong Chen (China), professor Remco Van Rhee (the Netherlands) and professor Andreas Lienhard (Switzerland).

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As a second step, we co-​arranged a conference at Renmin University of China Law School in Beijing 25–​26 May 2018, bringing together academics and judges who had filled out the questionnaire for a dialogue aimed at exchanging practical experience and theoretical ideas on efficient and effective court management in an increasingly globalised and digitised world. The conference titled ‘The Role of Courts in Evolving Societies’ was jointly organised by the Norwegian China Law Centre at the Faculty of Law, University of Bergen, Renmin University of China Law School and University of Bielefeld in Germany.11 As a third step, we brought together the different perspectives voiced at the conference in this volume, which builds both on the two assumptions highlighted above as well as the work done by judges and academics before, during and after the conference. The structure and content of the book reflect the three-​step approach taken by the editors. Thus, the book is a genuine result of transnational dialogue between judges and academics. Part 2 of this book presents the judges’ contributions followed by a comparative analysis of the role of the judge in court reforms. The country reports starts with Chapter 2 China, is followed by Chapter 3 Germany, Chapter 4 Slovenia, Chapter 5 England and Wales and Chapter 6 Norway. Chapter 7, ‘Comparative Reflections: The Role of the Judge in the Melting Pot’ calls attention to the role and working conditions of the judge when court systems are transformed and bridges part 2 with the research essays in part 3. While part 2 forms a coherent comparative overview of different national approaches to court management and the role of courts and judges in evolving modern societies, each country’s report also provides a valuable source of information for an international audience, especially in the case of countries about which there is not much English literature at present, like China, Slovenia and Norway. In Part 3, different perspectives follow from the academics present at the conference we co-​arranged as the second step in our project. These contributions address different topics that have emerged in the country reports and that were further explored in the conference dialogue. The topics include normative and organisational perspectives on national court systems as well as international perspectives on courts as guarantors of individual rights in an increasingly globalised rule-​of-​law framework. Given the breadth of the topics touched upon in the country reports and in the conference dialogue, not all interesting topics could be addressed and explored further. Part 3 is a collection of essays by different authors given free rein to develop their topics subsequent 11

The outline of the conference is presented at the Norwegian China Law Center’s website, https://​www.uib.no/​en/​chinese-​law-​centre/​106217/​role-​courts-​evolving-​societies (accessed 1st April 2020).

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to the conference. Nevertheless, the essays show how topics identified in the dialogue with judges can be fruitfully developed further by academics. The extraordinary case of comprehensive and continuous reform of the Chinese judiciary is the point of departure in Part 3 where Chinese academics provide an account of the challenges and recent reforms of the Chinese judiciary identified in the country report in Chapter 3 in two succeeding essays presented in Chapters 8 and 9. Both essays provide fascinating insight into current Chinese developments, from practical as well as normative perspectives. However, a note of caution is necessary: Issues of organisational functioning, such as the increasing number of cases brought to the courts as discussed in Chapter 8, are fairly easy to compare with other countries. Issues concerning normative designs raised in Chapter 9, however, make it more difficult to develop a common terminology and to ascertain mutual understandings. Moreover, both papers are translations from Mandarin and include terms and concepts that are difficult to translate. For example, we are not sure if the legal terms ‘trial supervision procedure’ or ‘retrial procedure’ do justice to the original Mandarin concepts of 审判监督程序 and 再审程序. Still, we belive that a dialogue based on the vocabulary we have is the only way to start to gain international insights into the comprehensive contemporary judicial reforms in China. Weidong Chen’s Chapter  8 on ‘Litigation Explosion and Reactions from Courts in China’ demonstrates that when a country’s social and economic developments have reached a certain stage, an explosion of litigation is a phenomenon that should be anticipated. The chapter describes current trends of adjudication in Chinese courts and analyses the background and causes behind a skyrocketing number of cases brought to court. Professor Chen scrutinizes past and current efforts to tackle the problem of the litigation explosion such as measures to strengthen case management powers and measures to improve case management efficiency; he concludes that there are still more cases than there are people to handle them, causing pressure in the long run. In the following Chapter 9, Lei Du provides us with ‘A Study of the Tripartite Powers in Reforms to the Judicial Power Operation System’. The Chinese distinction between ‘judicial powers’, ‘case management powers’ and ‘trial supervision powers’ are explained in this chapter, and it is demonstrated how powers have been both released and restricted during the last decades of reform. The most significant change in the Chinese judicial power operation system is found in the remodelling of the Chinese concept of trial supervision powers. While Lei Du finds that the adjudicative work has been having an increasing influence on society, he leaves open the question of whether the reformed balance of powers and duties within the judiciary can really withstand challenges from the external systemic environment.

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Chapter 10, ‘A Love Triangle? The German Federal Constitutional Court and Its Two European Neighbours’, follows up on the normative questions of court design raised in Chapter 9 but shifts the focus to Europe. The essay explores the difficult relationship between national and international courts highlighted in the European country reports in part 2. Vanessa Hellmann shows how the transnational situation influences courts in European countries and focuses attention on the fact that efficiency cannot be the primary goal of the judicial system. The chapter also illustrates the challenge of transnationalisation in law from the perspective of the sovereign state. The supranational legal order that has been established within the EU and the broad powers of the European Court of Justice (ecj) are unparalleled developments in European legal history. In Chapter 11, ‘Judicial Case Management and Loyal Cooperation: Towards Harmonised European Rules of Civil Procedure’, Remco van Rhee continues exploring issues of internationalisation and harmonisation so important for European legal systems today. The chapter highlights that, as the European country reports also show, case management and the role of judges and parties in civil litigation is currently a central theme in procedural scholarship globally and reveals one of the most ambitious and interesting ongoing harmonisation projects in Europe today. The essay presents a draft of best practice rules for the role of the judge, the parties and their lawyers in civil procedure. The rules reflect a modern approach to civil litigation, which combines efficiency with quality. Chapter 12 ‘Court Management for Sustainable Judiciary. The Case of Switzerland’, broadens the perspective in the dialogue to a country not included in the country reports. Andreas Lienhard reports findings from a research project in Switzerland spurred by an allegation that courts are service providers that could be run like any other business and that court management does not harm judicial independence. Lienhard does not object that there is fertile ground for the development of court management as a professional field, but underscores that what is required is a specific and prudent management model for the judicial system –​one that the judges want because it is beneficial for their judicial activities. By presenting this research project and pointing out several fields of future research, Chapter 12 presents one of the main ideas of this book –​that there is a need for a more professional and scientific approach to court management. The Swiss project therefore serves as a research model that other countries might adopt. Chapter 13, ‘Conclusions and Outlook’ concludes the volume. The chapter summarises the trends in court reforms and challenges to court management from the dialogue between judges and academics in four recurrent topics, linking insights from parts 2 and 3. The first topic is to maintain high quality in the

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judicial decision-​making process; the second topic is how to do so in a justified and efficient manner. The third topic is the need to sustain general confidence in courts as important and relevant social institutions for conflict resolution, and the fourth topic is how to adapt national court systems to a more international legal framework. 1.3

Methodological Considerations

1.3.1 The Three-​Step Approach The three-​step approach including a questionnaire, a conference and this book required mixed-​method reflections during the process.12 The development of a questionnaire (see annex), collection of empirical data, carrying out dialogue, interpreting written and oral arguments in light of legal sources (particularly legislation) and literature are essentially different operations which cannot be solved by a single approach or methodological recipe. The compilation of texts based on the described three-​step approach follows Roger Cotterell’s assumption that the line between description and evaluation, and between participants in practices (our inside agents) and observers (our outsiders), are much less sharp and absolute than often assumed and claimed.13 The mapping of court systems in part 2 contextualises the research essays in Part 3, and Parts 1–​ 3 together constitutes a contribution to a normative debate on the value of courts in our time. The book compiles texts from a number of authors. The research articles in Part 3 stand on their own feet, in terms of methodology. However, the following subsections deal with methodological considerations and limitations of the overall project that should be borne in mind in the assessment of findings and conclusions presented in Chapter 13. 1.3.2 The Selection of Countries and Country-​Representatives The idea of initiating a dialogue between judges and academics originated as a small-​scale project. A limited number of countries and country-​representatives were carefully selected within the feasible scope of action. Some of the countries became candidates by virtue of the financial support received for the 12 J. David Creswell, Research Design  –​Qualitative, Quantitative and Mixed Methods Approaches, (fifth edition, Sage Publication Inc 2018). 13 See Roger Cotterell, ‘How should lawyers use sociological ideas? Juristic practice and social science’, in Sanne Taekema, Bart van Klink and Wouter de Been (eds), Facts and Norms in Law. Interdisciplinary Reflections on legal method (Edward Elgar 2016) 242–​262, 243.

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project. The recently established Norwegian China Law Centre at University in Bergen facilitated the academic co-​operation between Norway, China and Germany and those three countries were bound to be a part of our selection. Based on comparative knowledge of court systems in Europe, we assumed that England and Wales, one of three legal systems within the UK, with its distinct common law system, would make an interesting dialogue partner in the project. We also wanted to include another small country in addition to Norway in the project. For various reasons we chose Slovenia, one of the new democracies in Europe. The transition of the Slovenian society from a communist to a capitalist system made an interesting point of comparison to China, but also with Germany, where communist legal understanding was important in Eastern Germany until the reunification. All European countries are members of the Council of Europe. Both Germany and Slovenia are also members of the EU, which the UK left in early 2020. For these countries, transnational interaction presented (in the case of the UK) and still presents (in the cases of Germany and Slovenia) an important challenge to national legal systems and court reform.14 The deep-​ rooted lack of public trust in the court system, was also an attractive feature of Slovenia in comparison with Norway. For years, Norwegian citizens have ranked their judiciary as the second most trusted in Europe, after Denmark.15 It was not an easy task to find judges able and willing to join our dialogue with academics in Beijing. We needed judges with long and broad experience from case management in court and with visions for the role of the judge in the court system at large. Supreme Court Justice Wenche Elizabeth Arntzen accepted our invitation to represent Norway. Her professional background illustrates the common career path among judges in Norway. Arntzen practiced litigation for many years before she became a judge, first as Advocate for the Attorney General and as a lawyer in a law firm. She was a judge in the District Court of Oslo before she was appointed to the Supreme Court in Norway in 2014. She was also a member of the Norwegian Bar Association’s Disciplinary Board from 2005 to 2007 and has been teaching classes in ethics at the University of Oslo since 2007.

14 15

See for a detailed discussion on Germany, Vanessa Hellmann’s contribution in Chapter 10. See European Social Survey, Trust in Justice: Top Line Results from Round 5, 2011, available at https://​www.europeansocialsurvey.org/​docs/​findings/​ESS5_​toplines_​issue_​1_​ trust_​in_​justice.pdf (accessed 1st April 2020). The results are sustained by the Rule of Law Index annually produced by The World Justice Project (wjp), measuring how justice is perceived worldwide. For the last report, ranking Denmark as number 1 and Norway as number 2, see https://​worldjusticeproject.org/​sites/​default/​files/​documents/​WJP-​ROLI-​ 2020-​Online_​0.pdf (accessed 1st April 2020).

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Honorary professor and former justice of the Federal Constitutional Court of Germany Reinhard Gaier agreed to represent Germany. His life-​long career within the judiciary is typical for the German court system. Gaier was appointed judge at the District Court (Landgericht) of Darmstadt after taking the first and second state examination in Mannheim (1980) and Wiesbaden (1982) and was promoted from the District Court to the Court of Appeal and to the Federal Court of Justice before he was elected as Justice of the Federal Constitutional Court (Bundesverfassungsgericht) where he served for the regular term of twelve years until 2016. Gaier submitted his PhD thesis on a procedural topic in 1998 and became honorary professor at the University of Hanover in 2008. He has been active in the discussion among judges, advocates and academics on how the German judiciary should address today’s challenges, e.g. on digitisation and has also been involved in the legal dialogue between China and Germany for many years. We left the selection of a representative judge from China to Renmin University, and former Dean Han Dayuan managed to gather a large number of judges from various levels of the court system for our conference in Beijing.16 The questionnaire, however, was filled out anonymously. The quality of the information provided in the Chinese questionnaire is assured and supplemented by available literature in English. Anne Sanders, co-​editor of this volume, has worked regularly as an expert for the Council of Europe on projects concerning the quality of judges’ work. Through her network from the Consultative Council of European Judges (ccje) we got access to the representative judges of England and Wales and Slovenia who proved to be both experienced and visionary. Sir Richard Aikens agreed to represent England and Wales. His professional background is typical for an English senior judge. After 15 years of practice as barrister at Brick Court Chambers, Aikens was appointed Judge of the High Court and knighted in 1999. He was appointed presiding judge of the South East Circuit 2001–​2004; judge in charge of the Commercial Court 2004–​5, appointed to the Court of Appeal and sworn a Privy Councillor in 2008. He was Lord Justice of Appeal in charge of extradition from 2013 until his retirement in 2015. He is currently working as an arbitrator in international commercial and investment disputes, based at Brick Court Chambers where he started his legal career. Aikens has served as a UK Representative to the International Association of Judges (2000–​2010) and the Consultative Council of European Judges (2011–​2015). 2014 and 2015, he served as the ccje’s vice president. 16

Including those listed in the Preface in front of this book.

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Supreme Court Justice Nina Betetto, since 2019 the President of the Consultative Council of European Judges (ccje), accepted our invitation to represent Slovenia. She started her career as a judge of the District Court in Ljubljana where she became head of the Civil Department in 1997. She has been a Justice of the Supreme Court of the Republic of Slovenia since 2006 and served as the Vice-​President for the court (2011–​2017). She is highly active in projects improving the quality of judiciaries at home and abroad. With that purpose in mind, she teaches at workshops and seminars for judges and mediators in Slovenia and abroad and serves as a mediator in a court-​based mediation ­program. 1.3.3 Concepts, Terms and Models for Comparison of Court Systems China, Germany, Slovenia, England and Wales and Norway are indeed widely different countries, and the judges invited to report from their court system and participate in the dialogue represent a great variety of legal traditions. At a first glance, the differences between China’s constitutional system with the National People’s Congress as the highest organ of state powers and European constitutional models of checks-​and-​balances between equaly powerful branches of government are eye-​catching.17 England and Wales, Germany, Norway and Slovenia share many similarities, but a variety of dividing lines emerge between them on second glance. None of the systems are alike. However, all of them –​by pairs or larger groups across the Sino-​European divide –​ share similar characteristics. A comparison of court systems developed to serve countries with different forms of government, size, history and legal culture is, of course, like comparing apples and oranges. For many reasons, however, comparison of legal systems from various methodological angles18, is still useful, and comparative law has developed tools to deal with such obstacles. Unlike apples and oranges, court systems are not endemic species, but malleable social constructs. The utility value of comparisons of law across borders has nurtured the field of comparative law. As comparisons with other countries are more and more frequently being used as informative tools in reform projects set out to draft new

17

18

The fact that China’s Constitution has experienced a dramatic and fundamental transition over the past three decades should however not be overlooked, see Yan Lin, ‘Constitutional Evolution through Legislation:  The Quiet Transformation of China’s Constitution’ (2015) 13 Int’l J Const L, 61–​89. Although functionalism probably still is the dominant method, there are many alternatives, see Oliver Brand, ‘Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies’ (2007) 32 Brook J Int’l L 405–​466.

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law or to make new regulatory regimes, the field of comparative law has grown in importance.19 The theoretical framework presented in this chapter will draw on concepts, terms and models already developed in comparative law. The judiciaries explored in the survey belong to four different legal systems often conceptualised as legal ‘families’ in comparative literature, the Germanic, the Anglo-​American, the Nordic legal family and the law in the Far East.20 Some of the general terms developed in macro-​comparisons to classify a legal system, such as ‘civil law’ and ‘common law’, are also used to group court systems in managerial matters and not only to distinguish features of substantive law.21 The term ‘civil law’ refers to Roman Germanic law developed in Continental Europe and fits in particular Germany and Slovenia in our survey. The term ‘common law’ refers, in comparative law, to Anglo-​Saxon or Anglo-​American law, and fits in particular England and Wales. Although Norway is usually classified as a ‘mixed legal system’, meaning a system that contains ‘simultaneously key characteristics of other legal families’,22 common law features dominate in the subject matters scrutinised in our survey. Civil and common law are also useful terms to describe the Chinese judiciary, particularly since the litigation explosion has motivated a shift from civil law to common law practices in procedural law. In addition to these general terms, comparative legal theory also offers ‘models’ to characterise particular functions within a legal family. One of the legal functions that has been an object of comparison, is the judiciary. Guarnieri and Pederzoli’s typology of two types of judiciary, the ‘bureaucratic’ and the ‘professional’,23 will be utilised in this theoretical framework for the country reports. While Guarnieri and Pederzoli operate with five defining elements of each of these judiciaries, three of them are particularly recognisable in the country reports in the following chapters. First, the bureaucratic judiciary selects judges at a young age based on university grades while the professional judiciary appoints judges only according to professional experience. Secondly, 19 20

See e.g. Jaakko Husa, A New Introduction to Comparative Law (Hart Publishing 2015) 6. Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, (Third ed., Oxford 1998)  distinguish between a Germanic legal family (132–​179), an Anglo-​American legal family (180–​275), a Nordic legal family (276–​285) and the Law in the Far East, including China (286–​294). 21 See e.g. Emmanuel Jeuland (ed) Gestion du Tribunal/​Court Management. Pour un principe de coordination en matière de gestion du tribunal/​For a Principle of Coordination in Court Management, (Bibliothèque de l’Institut de Recherche Juridique de la Sorbonne -​André Tunc, irjs Éditions 2020). 22 Husa, A New Introduction to Comparative Law, (n 19) 215. 23 Carlo Guarnieri and Patricia Pederzoli, The Power of Judges. A Comparative Study of Courts and Democracy, (Oxford 2002) 66–​68.

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training in the bureaucratic judiciary takes place within the judiciary while training is not an issue in the professional judiciary. Thirdly, a hierarchy of ranks determines organisational roles and forms a career path in the bureaucratic judiciary, while there are no formal provisions for advancements in the professional judiciary. 1.3.4 The Questionnaire The development of a questionnaire for the judges to fill out was our first step in preparing for the dialogue between judges and academics. The judges participating in the conference, answered a questionnaire of 23 fixed questions (Q1–​23) with an opportunity to provide additional information (Q24), which was mainly used to provide links to relevant websites. The questionnaire was constructed with open-​ended questions in English and German.24 Using open-​ended questions in a small qualitative survey with a single representative from each country is of course not ideal. There is a chance of shortage of information in many of the requested fields because the answer from the respondent will vary in detail, or lack details. With regards to the European countries, however, we knew that supplemental data were available, and we planned to add data from European data collections in the editorial process of the country reports. We were aware of the methodological pitfalls and weaknesses of the European data collections (see subsection 2.1.5 below). In our design of the research project, we nevertheless assumed that the gathering of information by the judges in step two, in the conference in China, and the completion of country reports for this volume in step three, would be sufficient to compensate for potential information deficits in the first step of the project. Moreover, we wanted the participating judges themselves to reflect on important developments in their court system. Such reflections cannot be completely objective. We did not expect, however, that it would be so hard to find a Chinese judge willing to verify and sign the final country report from China in his or her own name. To compensate for this deficit, available English literature served more extensively as an additional source of information in Chapter 3 than in Chapters 4 to 7. In Q1–​23 we asked for descriptions of the court system that the judges represented and for their assessments of features of the system. It is indeed a challenge to formulate questions that appear intelligible and relevant to judges working in very different systems. To prepare for a common understanding of the different court systems, some questions still needed to be asked even 24

Enclosed in Annex 1.

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if we knew that some of the judges would have no applicable answer, e.g. the question of evaluation of judges or the question about ethical guidelines for judges. Both these questions were important to uncover the available systemic mechanisms for fostering a common normative understanding of the role of the judge within the corps of judges. The wording in the questionnaire had to be carefully chosen. A broad wording could ensure applicability but was likely to lead to answers hardly comparable to each other. We experienced the disadvantage of broad wording in the answers to our questions about ‘working methods’/​’Arbeitsmethoden’ that judges use in their legal system. Different perceptions of the question resulted in unequal descriptions of case management that we did not pursue further in the process, and the country reports therefore do not completely mirror each other. Each of the country reports was edited to optimise the comparison with the other court systems. Features of each court system are described in three subsections:  1) the overall features of the court system and motivations of most recent reforms, 2) the role and working conditions of the judge in the national system and 3) the social and international context of the courts, that is to say, the relationship between the national judicial community and wider communities such as the parties, the public and the international judicial ­community.25 An edited version of each country report was submitted to each judge for their approval. We will start by giving an account of the Chinese court system and thereafter continue with our civil law representatives Germany and Slovenia and finally present the UK (England and Wales) and Norway. 1.3.5 Use of Available European Data Collections The empirical data used as additional empirical resources in Part 2 of this volume come from collections of the European Commission for the Efficiency of Justice (cepej), The European Network of Councils for the Judiciaries (encj), the Consultative Council of European Judges (ccje) and the EU Justice Scoreboard (only Germany and Slovenia).26 The most important of these data 25 26

Subsection 1 is based on the answers to Question 1–​5 and 23, Section 2 is based on answers to Question 6–​12, 15 and 17–​19 and Section 3 is based on answers to Question 14, 16 and 20–​22. The last available evaluation from 2018 based on 2016 data (cepej Studies No. 26) is used as an additional source to the answers given by the European judges. The EU Justice Scoreboard 2018 (2017 data) serves as an additional source to cepej’s reports, particularly for Slovenia. The European Network of Councils for the Judiciaries (encj) and the Consultative Council of European Judges (ccje) have also carried out surveys and

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collectors is cepej. Since, 2004 cepej has collected data via a questionnaire containing more than 200 questions and filled in by national correspondents of the member states every two years. The cepej data is also the basis for the EU Justice Scoreboard. These data collections rely on self-​compilations by official representatives of the member states. Although ‘Explanatory notes’ have been drafted to improve the input of data from the member states, several authors have pointed out pitfalls and weaknesses in data gathering by cepej and other European collectors.27 Among them, Marco Fabri has argued that cepej’s data ‘are still not good enough to make “‘safe comparisons” across countries’,28 that ‘there are still some significant problems with the collection of data about the number of judges, court personnel, and caseflow, which jeopardize a reliable comparative analysis across countries’,29 and that ‘[o]‌nly an informed reading of the figures collected can avoid flaws’.30 Although the reported figures from the European data collected and used in the country reports should be handled with skepticism, we regard them as useful to substantiate tendencies already established by other sources. For our pro­ ject, these collections offered the best published resource available to ensure that the information provided in our country reports was reasonably reliable. 1.4

Hopes for the Future

The compilation of texts in this volume is pieced together in respect of all the judges who are working under stressful conditions with increasing workloads gathered information on the status of judicial practices in Europe that have been useful additional background information. 27 See e.g. International Journal of Court Administration Special Issue (2018) 9, in particular, Marco Fabri, ‘Pitfalls in Data Gathering to Assess Judiciaries’ (2018) 9 ijca 67–​78 (On cepej and encj data), Ingo Keilitz, ‘Viewing Judicial Independence and Accountability through the ‘Lens’ of Performance Measurement and Management’ (2018) 9 ijca 23–​36 (on encj data) and David Kosař and Samuel Spáč ‘Conceptualization(s) of Judicial Independence and Judicial Accountability by the European Network of Councils for the Judiciary: Two Steps Forward, One Step Back’, (2018) ijca, 37–​46. See also Adriani Dori, ‘The EU Justice Scoreboard –​Judicial Evaluation as a New Governance Tool’, (MPILux Working Paper 2, 2015), available at: www.mpi.lu and Alan Uzelac, ‘Efficiency of European Justice Systems. The Strength and Weaknesses of the CEPEJ Evaluations’ (2011) 1 International Journal of Procedural Law 106. 28 Fabri, ‘Pitfalls in Data Gathering to Assess Judiciaries’ (n 27), 68. 29 ibid., 71. 30 ibid., 69.

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and who have to face new objectives for a more efficient, better qualified and more relevant judiciary in their everyday life. Our goal has been to bring the discussion one step further by bringing together judges and academics to find answers to the questions of how court systems could and should be modelled as modern organizations capable of providing justice to society, and we hope that the reader will find ideas here worth pursuing and expanding on, be it from the perspective of a practitioner or from an academic perspective. With this book, our three-​step journey comes to a temporary conclusion. However, we feel confident that the topics revealed along the way will be pursued further in new projects by judges and academis in a world of perpetual court reform.

pa rt 2 Views from within: Country Reports by Judges

∵

­c hapter 2

China Ragna Aarli 2.1

The Court System and Most Recent Reform

2.1.1 Introduction The court system of the People’s Republic of China (prc) serves a population of 1.38 billion people and has undergone major changes in recent decades. An important turning point was reached in 2013 when the Communist Party announced comprehensive governance under the Rule of Law in China. Since then, the key issue of judicial reform has been to establish judicial independence. Although the People’s Courts have since 1982 been guaranteed by the Constitution the opportunity to ‘exercise judicial power independently, in accordance with the provisions of law, and not subject to interference by any administrative organ, public organization or individual’, judicial independence has been limited particularly by the People’s Congresses.1 The realization of judicial independence within the Chinese framework, as practitioners have observed, has been followed by increased accountability for individuals and institutions throughout the judicial system.2 A core motivation for the judicial reform in China has been to establish a judicial system that is able to support and strengthen the economic growth the country is experiencing. A  more transparent judicial system able to secure internationally recognized rights is one means by which to achieve this. The general effect of the reform is too early to assess. However, the reform has already enabled the courts to handle cases more effectively within the system. Nevertheless, the main challenge is the exponential growth of caseloads continuously stretching the judicial staff to the breaking point.3 In 2018, the

1 The Constitution of the People’s Republic of China (1982) art 126, see Yan Lin, ‘Constitutional Evolution through Legislation: The Quiet Transformation of China’s Constitution’ (2015) 13 International Journal of Constitutional Law 61, 68–​69. 2 Jacob Blacklock, Christopher Fung, ZHENG Yang, ZHANG Shili, KONG Xingxing, WANG Yu, XU Hui, ‘Practitioners’ Perspective on Advances in China’s Judicial Reform’ (2016) Tsinghua China Law Review 213, 233. 3 For more details, see Weidong Chen’s account for the litigation explosion in China in ­Chapter 8.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_003

22 Aarli Supreme People’s Court concluded 31,883 cases and the local courts concluded 25.17 million cases.4 2.1.2 The Court Structure The judicial system is divided into a four-​level system of general courts. Military courts and special people’s courts supplement the four-​level system. The trial system follows a two-​hearing system and most cases become final at lower levels in the court system. The Supreme People’s Court (spc) is founded on the provisions of the Constitution as the highest judicial organ of the People’s Republic of China.5 The court is made up of a president, vice presidents, presiding judges, vice presiding judges and judges. The spc organisation also encompasses a number of administrative offices, including an information Bureau, a research office, a Bureau of International Cooperation and a Retired Cadre Bureau responsible for the placement, recreation, medical care and other services for retired personnel of the spc. spc is a supervisory as well as a decision-​making organ. The leading body of the spc is the Trial Committee, made up of the justices. The Trial Committee sums up experiences in the work of trials, discusses important or difficult cases and gives opinions in other issues related to trials. spc has the power to take a case decided by a lower court ex officio and change the decision even after the decision has become legally effective.6 The work pressure has for the last decades continued to increase at all levels in the four-​level court system.7 In 2015, two circuit courts of the Supreme People’s Court were set up in Shenzhen and Shenyang,8 as a trial project to hear major administrative and trans-​regional civil and commercial cases,9 and four more circuit courts were added in 2016.10 The circuit courts are vested with the same powers as spc and are meant to ‘reassert central 4 5 6 7 8 9 10

The Supreme People’s Court, ‘Highlights of Supreme People’s Court work report –​Judicial performance in 2018’ http://​english.court.gov.cn/​2019-​04/​09/​content_​37456537.htm. The Constitution of the People’s Republic of China art 127 first section. Yan Lin, ‘Constitutional Evolution Through Legislation: The Quiet Transformation of China’s Constitution’ (n 1) 74. See for an explanation, Weidong Chen, ‘Litigantion Explosions and Reactions from Courts in China’, Chapter 8. Blacklock et. al., ‘Practitioners’ Perspective on Advances in China’s Judicial Reform’ (n 2) 222. Margaret Y.K. Woo, ‘Court Reform with Chinese Characteristics’ (2017) Washington International Law Journal, 266. In Nanjing, Zhenzhou, Chongquing and Xi’an.

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control, provide uniformity, and tangibly represent national authorities in the ­localities’.11 The other three levels of general courts are local courts with limited jurisdiction. The local people’s courts are divided into primary (or basic) people’s courts, intermediate people’s courts (city-​level) and higher people’s courts (provincial level) of which the role and function are specified in more detail in the Organic Law of the People’s Courts of the People’s Republic of China. The map of the Chinese court system has become more complex after the introduction of cross-​administrative regional courts in Shanghai and Beijing set up to handle litigations involving parties from several administrative ­regions.12 On the basic level, China has also introduced specialised Internet-​courts where the plaintiffs can file their cases online, participate in online hearings and receive their judgment electronically. The scope of jurisdiction of the Internet courts is defined by the Supreme People’s Court as disputes ‘arising from infringement on the personal rights, property rights and other civil rights and interests of other persons on the Internet’.13 The first online court was established in Hangzhou in 2017 and has been followed by similar courts in Beijing and Guangzhou.14 In the first year of Hangzhou Internet Court’s practice, the court concluded more than 10,000 cases, with an average trial period of 41 days and average trial process duration of 28 minutes.15 The experience of efficient case management motivated the establishment of similar courts in Beijing and Guangzhou. The primary courts hear both civil and criminal cases. They also settle civil disputes and handle minor criminal cases that do not need to be determined by trials; they also direct the work of people’s mediation committees.16 A basic people’s court has three to five civil divisions.17 In addition, primary courts are

11 12

Woo, ‘Court Reform with Chinese Characteristics’ (n 9) 265. Blacklock et. al., ‘Practitioners’ Perspective on Advances in China’s Judicial Reform’ (n 2) 222. 13 Zhou Yuhang, ‘Judicial Interpretations of Provisions of the Supreme People’s Court on Several Issues Concerning the Hearing of Cases by Internet Courts’ (2018) Tsinghua China Law Review 175, 177. 14 ibid 175–​181. 15 ibid 175. 16 The Organic Law of the People’s Courts of the People’s Republic of China (1979) art 21. 17 Wang Yaxin and Fu Yulin, ‘China: Mainland.  Efficiency at the Expense of Quality?’, in C.H. (Remco) van Rhee and Fu Yulin (eds), Civil Litigation in China and Europe. Essays on the Role of the Judge and the Parties, Ius Gentium: Comparative Perspectives on Law and Justice 31 (Springer 2014) 11–​38, 26.

24 Aarli permitted by law to set up separate divisions for criminal, civil and economic cases, each with chief justices and chief judges.18 The main rule is that the second instance of the four-​level system is the last instance,19 but appeals to higher levels are granted on conditions more precisely specified in law. Higher courts may, as primary and intermediary courts, try and decide both questions of facts and law. The Constitution establishes a particular system of supervision within the court hierarchy unfamiliar in European law and which is explained more thoroughly by Lei Du in Chapter  9 in this volume. The Supreme People’s Court supervises the administration of justice by the local people’s courts at different levels and by the special people’s courts. People’s courts at higher levels supervise the administration of justice by those at lower levels.20 While the Chinese legal system initially borrowed the structure from the German civil law system and based the procedure on inquisitorial principles,21 adversarial traits from the common law system have gained more influence as the judiciary has become more independent from the state. Judges are obliged to ‘guarantee the smooth progress of the socialist construction’ in their practice,22 but the rules of procedure are now basically following an adversarial model. Judges make their decisions based on public hearings with immediate presentation of the evidence by the parties. The adversarial model is presumed to give more autonomy to the parties and to have eased the workload of ­judges.23 On the basis of the Fourth Judicial Reform Plan (2014–​2019), the Supreme People’s Court has identified ‘diversified dispute resolution’ as one of the major aims.24 Courts are now expected to offer four different tracks for civil litigation:25 1) an expedited procedure to settle cases with few or no factual disputes, 2) mediation to settle more substantial factual disputes with prospects for agreement, 3) simplified or ordinary procedure if a trial is deemed unnecessary and 4) trial procedure to settle cases in which the exchange of evidence is necessary to clarify the points of disputes.

18

The Organic Law of the People’s Courts of the People’s Republic of China art 18 second section. 19 The Organic Law of the People’s Courts of the People’s Republic of China art 11. 20 The Constitution of the People’s Republic of China art 127 second section. 21 See Woo, ‘Court Reform with Chinese Characteristics’ (n 9) 244–​45. 22 Civil Procedure Law of the People’s Republic of China 9 April 1991, art 2 and 7. 23 Woo, ‘Court Reform with Chinese Characteristics’ (n 9) 249. 24 ibid. 254. 25 ibid. 255.

25

China

2.1.3 Court Administration The Chinese judiciary is one of five state organs acknowledged in the Constitution and derives its power from the People’s Congress. Presidents and judges of the Chinese courts are appointed or designated to their posts by the people’s congress (the legislative power) at the corresponding administrative level of the state. The power to appoint or designate judges to their post is complemented by power to remove from post by the same organs. The National People’s Congress appoints judges to the Supreme People’s Court; the provincial People’s congress appoints judges to the high people’s court; the municipal people’s congress appoints judges to the intermediate people’s court, and the people’s congress at the county and district levels appoints judges to the primary people’s court. The presidents of the courts have a core role as administrators and are usually not involved in the trial activities. 2.2

The Role and Working Conditions of the Judge

2.2.1 General In 2018, there were 120,000 judges in China, each of them appointed to manage a rapidly growing caseload in a legal system that has been under continuous reform for 40 years. More than 340 judges are appointed to the Supreme People’s Court. The litigation explosion further described later in Chapter 8 in this volume has put the judges under extremely high work pressure. In order to maximise the capacity of each judge, a reform in ‘personnel quota system’ has been carried out.26 On the first level, the required number of judges is roughly estimated to 20% to 30% of the total number of court officers. Only those who have passed through a stringent selection process can be appointed and thus become an ‘assigned judge’. Assigned judges are provided with ancillary staff such as assistants and clerks, such that the best legal talents will stay on the frontline handling cases.27 Although the motivation for, and emphasis on, efficiency as the core goal of individual judicial activity has decreased, and rule of law standards have been strengthened, an ‘efficiency-​oriented culture’ still remains a defining feature of judicial activity in China.28 The social standing of the judge in society is good, but not presumed to be as elevated as in many Western countries.

26 See for more details in Chapter 8, section 8.3.2. 27 See Chapter 9 n 25. 28 Yaxin and Yulin, ‘China: Mainland. Efficiency at the Expense of Quality?’ (n 17) 28.

26 Aarli 2.2.2 The Judicial Career Pursuant to the law, ‘[c]‌itizens who have the right to vote and to stand for election and have reached the age of 23 are eligible to be elected […] judges or assistant judges; but persons who have ever been deprived of political rights are excluded’.29 Since the law only requires that judicial personnel ‘must have an adequate knowledge of law’,30 a law degree is not a strict requirement. The Judges Law of the People’s Republic of China establishes certain combinations of legal academic training and legal work experience as ideal requirements for judges but allows for exceptions based on previous academic training. Moreover, a national judicial examination must be passed to become a judge or a judge assistant.31 Today, most appointed judges have graduated from law schools. A judge will basically work in the same branch of law his or her whole career and a promotion system for judges is regulated by the Judges Law, which distinguishes between 12 grades of judges, and in more detail by the State.32 The President of the Supreme People’s Court is the Chief justice and of first grade. Associate justices, senior judges and judges belong to the second to twelfth grades ‘on the basis of their posts, their actual working ability and political integrity, their professional competence, their achievements in judicial work and their seniority.’33 The retirement age is currently 60 years of age, but this is regulated separately by the State and not by law.34 2.2.3 Case Assignment Cases are randomly assigned to judges in each branch via a computer system of case management. The system prevents corruption. The Chief Justice in the court has no possibility to influence court decisions by hand-​picking a particular judge for the management of a singular case. The responsibility of the judge handling the case has been summed up as ‘all the subsequent substantial and procedural matters that arise in the case during the proceedings, including the establishment of the trial date, pre-​trail preparations, trial, the drafting of the judgment, the service and pronouncement of the judgment, and court mediation when necessary’.35 The rule of law guarantee in the automated process 29 30 31 32 33 34 35

The Organic Law of the People’s Courts of the People’s Republic of China art 33 first paragraph. ibid., art 33 second paragraph. The Judges Law of the People’s Republic of China (1995) art 51. ibid., art 18–​20. ibid., art 19. ibid., art 42. Yaxin and Yulin, ‘China: Mainland. Efficiency at the Expense of Quality?’ (n 17) 27.

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involving selection of the judge handling the case, however, is watered down by the system established to monitor and govern the process of each case within the judiciary. Mandatory supervision by a senior judge in important procedural matters is one of the measures set up to keep control of the result of each case,36 and is a defining feature of the Chinese judicial power system.37 2.2.4 Judicial Performance and Training Judges are selected based on their case handling skills, legal knowledge and professional ethics. Among their obligations, judges must ‘strictly observe the Constitution and law’, ‘handle cases impartially’, ‘be honest and clean’ and ‘accept legal supervision and supervision by the masses’.38 Judges have to apply the law, and there is no doctrine of precedents like in the common law systems.39 Chinese judges have been characterized as ‘cogs in a larger machine, rather than individual judicial decision-​makers’,40 and have been known to complain about working ‘as trial machines’.41 Due to the fact that the Supreme People’s Court has a supervisory function, cases uploaded on the Supreme People’s Court’s website to guide lower courts are found to be ‘de facto, if not de jure, binding on lower courts.’42 During his or her career, a judge will receive annual and other special training. In their practice, judges are assigned to one of three main branches and accordingly serve as a criminal judge, a civil judge (including commercial cases) or an administrative judge (administrative cases). 2.2.5 Codes of Professional Conduct In 2010, the Supreme People’s Court published two revised documents which jointly guide judges in their profession, The Basic Norms of Professional Ethics for Judges and The Code of Conduct for judges.43 The 30 declared Basic Norms include mandates ‘[t]‌o firmly establish the socialist rule of law concept; to be loyal to the Party, loyal to the State, loyal to the people, and loyal to the laws; 36 ibid. 37 See Chapter 9. 38 Judges Law arts 7 no. 1, 2, 5 and 7. 39 Woo, ‘Court Reform with Chinese Characteristics’ (n 9) 260–​61. 40 Hualing Fu, ‘Building Judicial Integrity in China’ (2016) Hastings International & Comparative Law Review 167, 169–​170. 41 Cai Yanmin, ‘Case Management in the China’s Civil Justice System’, in C.H. (Remco) van Rhee and Fu Yulin, Civil Litigation in China and Europe, Springer 2014 p. 54. 42 Woo, ‘Court Reform with Chinese Characteristics’ (n 9) 262. 43 The Supreme People’s Court of the People’s Republic of China, www.court.gov.cn/​xwzx/​ xwfbh/​twzb/​201012/​t20101215_​12188.htm (accessed 1st April 2020).

28 Aarli and to be builders and defenders of socialism with Chinese characteristics’ (Basic Norms, Article 4). The Code of Conduct includes 96 articles and is more detailed. The Code, for example, prohibits judges from answering phone calls during hearings (Article 30) and requires judges to be patient and timely in handling letters and visits (Article 71–​72). 2.2.6 Evaluation of Conduct and Measures against Misconduct Chinese judges are continuously evaluated with regard to quality and efficiency in performance. Timely delivery of court decisions is an important issue that is considered in the evaluation of a judge, and promotion and remuneration may depend on timeliness in this regard.44 Each people’s court in China has a duty to establish a commission for examination and assessment of judges pursuant to the Judges Law Article 48. The role of the commission is ‘to guide the training, examination, appraisal and assessment of judges.’ There is also an established award system for remarkable conduct such as ‘having performed outstanding deeds by bravely fighting against illegal or criminal acts’ or ‘having scored outstanding achievements in protecting State secrets and secrets of judicial work’.45 The awards include designations of respect such as ‘Citation for Meritorious Deeds, Merit Citation Class iii, Merit Citation Class ii, Merit Citation Class i, and a title of honour’.46 It is generally noticed by scholars that the development towards more judicial independence is accompanied by additional judicial accountability.47 An important reform of the judicial system was the Judicial Accountability Opinion from the Supreme People’s Court (2016), holding judges liable for the performance of their judicial duties and lifetime liability for the cases they handle throughout their career.48 Corruption is a recognized problem. Corruption cases are filed to court by the procuracy or handled by the discipline inspection and supervision organ as disciplinary cases. In corruption cases revealed in 2014, three successive presidents of the Fuyang Intermediate People’s Court in Anhui were involved.49 A  number of Supreme People’s Court justices have also been

44 45 46 47 48 49

Yaxin and Yulin, ‘China: Mainland. Efficiency at the Expense of Quality?’ (n 17) 27. The Judges Law of the People’s Republic of China art 30 no. 5 and 7. ibid., art 31. Blacklock et al., ‘Practitioners’ Perspective on Advances in China’s Judicial Reform’ (n 2) 234. ibid 233, with reference to the Opinion art 25. The opinion is not available in English. See He Jiahong, ‘Assessment and Analysis of Corruption in China’ (2015) 3 China Legal Science 3, 19.

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investigated for corruption.50 As explained in section 3.3.2 below, the People’s Courts also play an important role in the national fight against corruption in the Chinese society. 2.2.7 Assistance and Salary At all levels, the people’s courts in China have clerks to keep records of the court proceedings and to help with practical details in the management of cases.51 Each court, however, is also allowed to appoint judge assistants ‘to help the judges in their work’.52 As mentioned in section 2.2.1 a reform in the ‘personnel quota system’ has been carried out.53 The number of clerks and assistants in court has accordingly been substantially increased to ease the judicial work for judges.54 The ‘help’ from assistants is presumed to be of preparatory character, but in busy courts, assistants may also be assigned to draft verdicts for the judges. Assistant judges may also, provisionally, exercise the full function of judges. The conditions for such an independent function are ‘the recommendation of the president of the court’ and ‘the approval of the judicial committee’.55 A judge assistant may apply for a position as a judge after five years of practice. The salary of judges is in general 30% higher than government officials. The salary of a judge who has been confirmed through appraisal as being excellent or competent may be given a higher salary according to regulations formulated separately by the state. 2.3

The Court in a Social Context

2.3.1 The Parties, Lawyers and Public The people’s courts in China do not operate in a transnational context similar to that of the national courts in Europe. The people’s courts are sovereign, and Chinese citizens are unable to appeal any domestic verdicts to an international court. On the other hand, the people’s courts do have relationships with a wide range of different actors within the vastly populous areas of China. The recent

50 51 52 53 54 55

ibid., see fn 32. The Organic Law of the People’s Courts of the People’s Republic of China art 39. ibid., art 36 second paragraph. See also Chapter 8, section 8.3.2. See Blacklock et  al., ‘Practitioners’ Perspective on Advances in China’s Judicial Reform’ (n 2) 232. The Organic Law of the People’s Courts of the People’s Republic of China art 36 second paragraph.

30 Aarli reforms of the Chinese court system include improvement of many of these relationships, such as the relationship to parties, lawyers and the public. To ensure accessibility to justice for the parties, a case filing review system has been replaced with a case filing registration system. The reform was carried out to put an end to undocumented refusals and has improved the relationship between the courts and the citizens.56 Efforts have also been made to enhance the opportunity to be assisted by lawyers and to ensure lawyers’ rights to practise. A provision to protect lawyers’ practising rights was issued in 2015.57 The purpose of the provision was to enable lawyers to fulfil their rights and obligations on behalf of their clients pursuant to the law of the People’s Republic of China on Lawyers. The number of lawyers is small relative to the population and it is at times difficult to find adequate legal assistance in rural areas.58 A paradox of ‘high efficiency’ but ‘low legitimacy’ has characterized the Chinese civil justice system.59 Judges who work under high pressure and express discontent with their working conditions and public esteem are frequently challenged by numerous appeals brought on procedural as well as substantial grounds, alongside heavy criticism in the media.60 The finality of a judgement is commonly challenged.61 The public is continuously complaining about low efficiency in terms of court services and about judicial corruption. The improvements of the judicial system have not immediately payed off in increased public trust, but the courts are systematically working to improve their relationship with the public. Media departments in the courts take care of the communication with the media, and a website for live broadcast of trials  –​ ts.chinacourt.org –​was launched in 2015.62

56

Blacklock et  al., ‘Practitioners’ Perspective on Advances in China’s Judicial Reform’ (n 2) 216–​17. The basis for the reform was originally a policy document from the Central Committee of the Chinese Communist Party from 2014 but got a legal basis when the Supreme People’s Court issued the Opinions on Carrying out Reform concerning the Case Filing Registration System in People’s Court 1 April 2015. 57 The Provision of the Supreme People’s Court, The Supreme People’s Procuratorate, the Ministry of Public Security and Other Departments on Legally Protecting Lawyers practicing Rights (2015), see Blacklock et. al., ‘Practitioners’ Perspective on Advances in China’s Judicial Reform’ (n 2) 230. 58 Woo, ‘Court Reform with Chinese Characteristics’ (n 9) 249. 59 Yaxin and Yulin, ‘China: Mainland. Efficiency at the Expense of Quality?’ (n 17) 34. 60 ibid. 31. 61 ibid. 31, on the Judicial Supervision Procedure and the Petition System by Letters & Visits. 62 Blacklock et al., ‘Practitioners’ Perspective on Advances in China’s Judicial Reform’ (n 2) 220.

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2.3.2 The Fight against Corruption Anti-​corruption efforts remain on the top of public consciousness,63 and the people’s courts play an important role in China’s anti-​corruption enforcement system. As Fu Hualing has noted, prosecution against corruption is a double-​ edged sword because it not only demonstrates the political will to fight corruption, but also render institutional flaws visible.64 This is a common problem in countries struggling to combat corruption. He Jiahong has nevertheless demonstrated that there are particular characteristics to the phenomenon that have to be dealt with in China.65 This final subsection, absent from the following European country reports, draws the attention to some of these characteristics. The purpose of this endeavour is to clarify distinctive marks of the Chinese society that are important to grasp the working conditions of the people’s courts. It is to be hoped that information in this subsection will ease the comparison with the European countries in the following chapters and prepare the reader for the subsequent research essays by Weidong Chen (Chapter 8) and Du Lei (Chapter 9). In the article ‘Assessment and Analysis of Corruption in China’ He Jiahong links corruption to several factors, characteristic and unique to Chinese society. Social customs rooted in the Chinese culture and the current state of social transition in China are two main group of factors used to explain endemic corruption.66 Traditional customs that contribute to explain corruption include according to Jiahong the emphasize on relationships (guanxi) between people, a wide-​spread culture of gift-​giving frequently combined with seeking relationships and ‘back doors’ for opportunities, the collapse of the distinction between private and public ownership in the prc, and a weakness for special privileges among citizens. Transitional factors that support the inherent dispositions for corruption are lack of strongly held public belief systems (Communism, Daoism, Buddism etc), moral decline and private desires on the rise and loss of behavioural norms. More interesting from an organisational and constitutional perspective on the role of courts in evolving societies, is perhaps the fact that Jiahong also links the endemic corruption in China to designs of the social system and to the operation of the system that the recent reforms accounted for in the 63 ibid., 7. 64 Fu Hualing, ‘The Upward and Downward Spirals in China’s Anti-​corruption Enforcement’ in Mike McConville and Eva Pils, Comparative Perspectives on Criminal Justice in China, (Edward Elgar 2015) 390–​410, 409. 65 Jiahong, ‘Assessment and Analysis of Corruption in China’ (n 49). 66 ibid. 23–​28.

32 Aarli previous section 3.1 has not properly dealt with.67 According to Hualing, the feudal traits from previous ruling systems have been continued and become fertile ground for corruption, among them the tradition of concentration of power. When the concentration of power is combined with a system that lacks guarantees for the people to be the master of the system (in line with the contemporary Chinese meaning of the word ‘democracy’),68 and opportunities for popular supervision are lacking, corruption seems hard to prevent. The executive branch (the State Council) and the judiciary (the People’s Courts) are toothless in their control capacity towards the National People’s Congress. In a system without robust control mechanisms in the constitutional design, operational flaws that foster corruption are also hard to correct. Insufficient transparency, insufficient supervision of public officials within the system, general lack of respect for the prescribed law among citizens and inconsistent application of the law, are factors Hualing lists as hindrances in the fight against corruption in China. The analysis of inseparable factors that make it more difficult to combat corruption is an interesting backdrop to the extensive reform projects carried out in recent years. Differences between the many challenges Chinese courts and judges and German courts and judges face today, are as the next chapter will show, unquestionably striking.

Acknowledgments

Answers to the questionnaire from China were communicated from Renmin University and not directly from a judge and we presume the judge prefers to be anonymous. The answers are edited by Ragna Aarli and supplemented with scholarly literature. 67 ibid. 28–​35. 68 ibid. 30.

­c hapter 3

Germany Reinhard Gaier and Anne Sanders 3.1

The Court System and Most Recent Reform

3.1.1 Introduction The German court system serves a population of 82,2 million people,1 and Germany can be proud of having produced law and court models that have set world-​wide standards.2 The most important challenge the German judiciary face at present is allegedly the adjustment of procedural law to modern communication technologies and the efficient use of it. The last fundamental reform of the justice system took place in 2002, when the ‘ZPO-​Reformgesetz’, the Civil Procedure Reform Act, came into force.3 The reform did not only concern the procedure of civil law cases but also the rules of procedure at labour law courts, administrative courts, tax law courts and social law courts. All the five court systems were affected by the reform. Since 2002, only minor reforms have been made. In the beginning of 2018, for example, a reform came into force which aimed at encouraging chambers and senates at the courts to develop a higher degree of specialisation.4

1 cepej Studies No. 26 (2018) 12. 2 See Bundesnotarkammer and others, ‘Law Made in Germany  –​Global, Effective, Cost-​Efficient’ (2014) www.lawmadeingermany.de/​Law-​Made_​in_​Germany_​EN.pdf (accessed 1st April 2020), particularly 19–​30. For a more comprehensive account of the German judiciary in English, see John Bell, ‘The German Judiciary’ in John Bell, Judiciaries within Europe. A  Comparative Review (Chapter  3, Cambridge University Press 2006)  108–​173. See for the administration of the judiciary Fabian Wittreck, ‘German Judicial Self-​Government –​Institutions and Constraints’ (2018) 19, 7 German Law Journal 1931–​1950. See also the study of quality management and institutional interaction processes in court administration of Germany in comparison to the Netherlands, Switzerland and Norway in Philip Langbroek and Mirjam Westenberg, Court Administration and Quality Work in Judiciaries in Four European Countries. Empirical Exploration and Constitutional Implications, Schriftenreihe zur Justizforschung (vol 9, Stämpfli Verlag/​Nomos Verlag/​Verlag Österreich, Bern/​Baden-​Baden/​Wien 2018) 59–​124. 3 The Act reformed the Civil Procedure Law (Zivilprozessordnung) enacted in 1887. 4 See Peter Fölsch, ‘Neuerungen im Zivilprozess Entfristung, Spzeialisierung, Effizienz’, (2020) Neue Juristische Wochenschrift 801, 802.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_004

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The 2002 reform focused on streamlining the appellate system. The aim was to strengthen the first and second instance and to limit the admissibility of cases to the third instance (Revision) to cases of fundamental importance, cases suitable for the development of law and cases that would lead to a decision which seemed necessary for securing a universal application of the law by all courts. However, the positive effects of the reform have been minor. Only courts of third instance have noted a slight decrease in the number of incoming cases. 3.1.2 The Court Structure Five parallel court systems form the specialised German system. Administrative courts, tax courts, labour law courts and social law courts are separate court systems within their branches of law. Ordinary courts handle criminal cases and civil cases that do not belong to a specialised court system. Each court system offers three instances, except the tax courts that only offer two instances. Minor criminal offences and trivial civil law cases will also have to be concluded in two instances. Germany is a federal republic consisting of sixteen states or ‘Länder’ and, except for the second instance tax court, courts of first and second instance fall in the responsibility of the states. There are 1008 courts of first instance (equal to 1,2 courts per 100,000 inhabitants), of which 761 are ordinary courts.5 The federation  –​‘the Bund’  –​only sets up courts of last instance, ‘Oberste Gerichtshöfe des Bundes’. However, the federal legislator has the legislative competence for all procedural law. In addition to the five court systems in Germany, there are the Federal Constitutional Court (Bundesverfassungsgericht, fcc)6 and the constitutional courts of the different states. A framework for the judiciary is given in the Basic Law (Grundgesetz),7 explicitly allowing for the establishment of courts for particular fields of law on the basis of primary law.8 The disposition time of first instance civil and commercial litigious cases in 2016 was slightly above the median (of 192 days) and considerably below the average (of 233 days) in Europe.9 Even if the comparative case-​flow

5 CEPEJ Studies No. 26 (2018) 250–​51. 6 More information about this most influential German court will be provided in Vanessa Hellmann’s essay in Chapter 10.2.1. 7 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) 23 May 1949 Chapter ix, art 92–​104. 8 Basic Law art 101 (2). 9 cepej Studies No. 26 (2018) 250.

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figures from the European Commission for the Efficiency of Justice (cepej) are open to discussion,10 they substantiate the general assumption that the German civil justice system works reasonably well, even though there is room for improvement.11 According to the numbers provided by the German Statistisches Bundesamt, civil cases take an average of 4,9 months until their disposition and 8 months if the case ends with a judgement rather than a settlement.12 49% of all 923 179 cases concluded in 2018, were disposed of within three months, 25% took between three and six months and 17% a year. Only 6,6% take between one and two years and 1,7% take more than two years13 However, the number of pending civil and commercial litigious cases has decreased in the last decade.14 The disposition time of administrative cases has been fairly stable since 2010.15 The average disposition time for criminal cases in first instance was equal to the median and slightly better than the average in Europe.16 According to the data of the Statistisches Bundesamt, the average time a criminal court needs to decide a case is 4,2 months. 55% of the 648 918 cases disposed of by German criminal courts in 2018 were concluded within three months, 26,4% between three and six months, 13,2% between six months and a year. 3,2% take between 12 and 18 months, 1,1% between 18 and 24 months, 0,7% between 24 and 36 months and 0,4% more than 36 months.17 10 11 12 13 14

15 16 17

On methodological pitfalls and weaknesses, see Chapter 1 section 1.3.5. See for recent small reforms with this goal:  Peter Fölsch, ‘Neuerungen im Zivilprozess Entfristung, Spzeialisierung, Effizienz’, (n 4) 801. Statistisches Bundesamt, Zivilgerichte Fachserie 10, Reihe 2.1. 2018, https://​www.destatis.de/​DE/​Themen/​Staat/​Justiz-​Rechtspflege/​_​inhalt.html#sprg235918 (last visited 1st April 2020). Statistisches Bundesamt, Zivilgerichte Fachserie 10, Reihe 2.1. 2018, https://​www.destatis.de/​DE/​Themen/​Staat/​Justiz-​Rechtspflege/​_​inhalt.html#sprg235918 (last visited 1st April 2020). CEPEJ Studies No. 26 (2018) 252. According to judicial statistics of the Statistisches Bundesamt), the number of incoming civil cases decreased by 26 % between 2008 and 2017. The reasons for this decline have been much debated among scholars and practitioners. See Caroline Meller-​ Hannich/​ Monika Nöhre, Aktuelle Herausforderungen an die gerichtliche und außergerichtliche Rechtsdurchsetzung, (2019) Neue Juristische Wochenschrift 2522; Hanns Prütting Rückgang der Klageeingangszahlen bei den staatlichen Gerichten, (2018) Deutsche Richterzeitung 62. ibid. 277. The figure for Germany is here both above the average (357 days) and the median (241 days). ibid. 312. The figures were 117 days (median)/​138 days. (average). Statistisches Bundesamt, Strafgerichte Fachserie (2018) 10, Reihe 2.3. https://​www.destatis.de/​DE/​Themen/​Staat/​Justiz-​Rechtspflege/​_​inhalt.html#sprg235918 (last visited Ist April 2020).

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3.1.3 Court Administration The ministries of justice of the states and the federal ministry of justice respectively are responsible for the budget of the judiciary. A limited amount of money is granted for free administration by the courts’ presidents. The Federal Office of Justice in Bonn is the central service authority of the federal German judiciary established in 2007 among other things to create more transparency in the justice system. Courts are formally administered by the Ministry of Justice of the respective Land or the federation. However, administration within the courts is in the hand of court presidents who are also judges.18 3.2

The Role and Working Conditions of the Judge

3.2.1 General There were approximately 20,000 professional judges in Germany in 2016,19 and they do enjoy high public reputation. In comparison with other professions, judges usually achieve the fifth (best) place. However, the relative status of judges has diminished over the years, as the judiciary has been ousted by other legal professions in the private sector in career development and salary.20 Still, the judicial career, regulated by the federal German Judges’ Act (Deutsches Richtergesetz), has been traditionally hard to achieve. However, in recent years, more and more courts face serious recruitment problems. While women occupy more than 70% of the positions as professional judges in 1st and 2nd instance, they are still in minority (45%) in the German Supreme Courts.21 3.2.2 The Judicial Career The recruitment of judges is based on an initial competitive exam combined with a highly bureaucratic procedure for promotion within the court system. To start with, a person who wants to be appointed as a judge must, as anyone

18 19

20 21

See for the administration of the judiciary, Wittreck, ‘German Judicial Self-​Government –​ Institutions and Constraints’ (n 3). The absolute number reported for 2016 in CEPEJ Studies No. 26 (2018) on page 103 was 19,867. For the same year 91,717 lay judges were registered as operative in the legal system. Lay judges serve different functions in the system as they are appointed as community judge, expert judge or representative judge, see Bell, ‘The German Judiciary’ (n 3) 151–​55. Cf. Bell, ‘The German Judiciary’ (n 3) 125. cepej Studies No. 26 (2018) 114.

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who would like to become an advocate, public prosecutor, higher civil servant or notary, pass the First State Exam (Erste Juristische Staatsprüfung). The study of law takes 4,5  years before passing the First State Exam, organised by the state Justice Exam Offices, (Justizprüfungsämter) at the ministries of justice in the different federal states and the local Justice Exam Offices at the Higher Regional Courts. After the first state exam, two years of Judicial Preparation Service (Referendariat, juristischer Vorbereitungsdienst) must be successfully concluded by passing the Second State Exam (Assessorprüfung, Zweite juristische Staatsprüfung). During the preparation service, candidates spend a certain number of months as an assistant of a judge, public prosecutor, advocate and within an administration. After having passed the Second State Exam, lawyers can apply to become judges. The recruitment, appointment and promotion of judges is made according to the constitutionally guaranteed principles of suitability, competence and performance (Eignung, Befähigung and Leistung).22 Career decisions are subject to tight judicial review.23 In many states, judge selection committees (Richterwahlausschuss) at the state parliaments elect the judges. In other states, the ministry of justice selects and appoints judges. In both cases, the actual selection is made usually after interviews and assessment centres conducted by judges at the Higher Regional Courts. After the appointment by the minister of justice of the state, young judges have to complete a probation period of three to five years successfully. Judges of the five federal courts of third instance are elected by a special judicial selection committee (Richterwahlausschuss). Members of the committee are members of the federal parliament (Bundestag), as well as an equal number of ministers of justice of the states.24 In comparison to other judiciaries, German judges might appear to be rather specialised. The specialisation of judges starts with the application to become a judge in one of the five court systems. Bell argued that German judges ‘are not typically generalists, nor are they very mobile between specialism’,25 and they tend to become experts in niches of law during their career. However, this impression is not entirely accurate. For career decisions, the generalist judge used to be the ideal (so called «Verwendungsbreite», the 22 23 24 25

Basic Law art 33 (2). See Johannes Riedel, ‘Judicial Review of Judicial Appointments in Germany’ (2020) 11(1) International Journal for Court Administration, 2. See Johannes Riedel, ‘Training and Recruitment of Judges in Germany‘ (2013) 5(2) International Journal for Court Administration, 42–​54. Bell ‘The German Judiciary’ (n 3) 110.

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ability of a judge to work in many different areas of law). A reason for this ideal might be that generalist judges make the planning of the distribution of court business much easier, especially in small courts and might be promoted to a larger number of posts. However, with an increasing specialisation of law, specialisation is considered more valuable today. As mentioned above, recent reforms facilitated the specialisation within courts. Such specialisation might now be promoted in the court system by work experiences in specialised chambers and senates and by training programs organised by the state or the federation. More experiences are needed, however, to find out if specialised judges will be rewarded for specialised skills in promotion procedures. Usually, after approximately ten years of service in a court of first instance, judges can apply to be seconded to a higher court for a testing period (Erprobung). Regular evaluations of judges form the basis for the decision when a judge is seconded for testing. After the testing period, another evaluation is prepared, and the judge can apply for a position at the next level. Evaluations can be challenged in court if they are incorrect or violate a judge’s independence. Free positions must be advertised, so that judges with the necessary qualifications can apply. Promotion to the next level is then undertaken on the basis of the regular evaluations by the respective court president and the evaluation prepared after the secondment. The state minister of justice decides about promotions, often assisted by the representatives of judges. Like decisions concerning the initial appointment of judges, the best candidate must be chosen according to the criteria of suitability, competence and performance. If more than one judge apply, the judges who are not chosen can challenge the decision in an administrative court. At the end of the probation time, the judge is either appointed until retirement or dismissed. Dismissal at this stage is only possible if the judge has not shown the necessary abilities. The retirement age of judges varies between 65 and 67 years. After the appointment, a judge can only be dismissed after a court decision because of a severe offence.26 3.2.3 Case Assignment The constitutional rule of the lawful judge27 is interpreted as a demand that the judge or the chamber or senate of judges deciding each case are predetermined

26 27

Basic Law art 97 (2). Basic Law art 101.

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even before the case arrives at the court. Therefore, the assignment of cases within the courts is undertaken according to a ‘case assignment plan’ (Geschäftsverteilungsplan) assigning cases to the different chambers or senates. The Geschäftsverteilungsplan for every year is developed and decided upon by the ‘Präsidium’, a council for the self-​administration of judges whose members are elected by the court’s judges. The administration of cases is done by the judges. Neither court presidents nor the ministries of justice have disciplinary or supervisory competence with respect to the judges and their work. 3.2.4 Judicial Performance German judges play an active role in steering court proceedings. They summon ordinary witnesses as well as expert witnesses and leave few obligations to the counsels of the parties compared to common law systems. As the presiding judge gives the orders to take evidence, lengthy evidentiary hearings are rare. Mediation is an integral part of civil proceedings and many judges are specially trained as qualified mediators. However, since the civil procedure code leaves it to the parties to offer evidence, raise objections and bring motions, civil cases are still very much in the hands of the parties. In family law proceedings and in other court systems, the situation is different. Here, the principle of ex officio examination (Amtsermittlung) makes the judge responsible for the case. Every judge organises his or her work on his or her cases him –​or herself, and only the responsible judge can make decisions regarding the administration of his or her cases. This is important because of the constitutionally guaranteed judicial independence.28 This is also the case, if a judge works in a chamber or senate with other judges. For a decision of the chamber or senate, a judge prepares an opinion and a draft decision as judge rapporteur. The chamber or senate then holds a public hearing, deliberates and then decides the case. Only judges at the Federal Constitutional Court and at some state constitutional courts are free to write dissenting opinions. At other courts, the rule that deliberations are confidential, prohibits dissenting opinions. In the German legal system, case law is a source of knowledge of the law, but not a formal source of law in itself.29 Judges are free to depart from precedents, even though they rarely do so. Judges exchange experiences at training courses. The German Judicial Academy (Die Deutsche Richterakademie) annually trains more than 5000 judges from all branches of jurisdictions, 28 29

Basic Law art 97. Ingvill Helland and Sören Koch, ‘Norwegian and German Legal Methods Compared’ in Ingvill Helland and Sören Koch, Nordic and Germanic Legal Methods (Mohr Siebeck 2014) 267–​322, 302.

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including public prosecutors. Judges are free to choose their type of training according to their needs. Informal exchange among colleagues who work at the same court plays an important role for a judge’s professional development. Because of considerable collegiality among colleagues, this is often perceived to be sufficient. Judges who work in different courts are not regularly in contact.30 3.2.5 Codes of Professional Conduct Professional duties for judges are set out in primary legislation, and there is no ethical code of conduct for judges supplementing legislation. However, in 2017, the justices of the fcc have adopted a code of conduct. The law demands that a judge ‘–​irrespective of whether he or she acts in the performance of his or her duties or when acting in a political context –​must behave in a way that public trust in his or her independence is not threatened’.31 Judges may be members of political parties, but must act with appropriate caution and restraint. Moreover, a judge has to respect the confidentiality of deliberations.32 Furthermore, it is a crime if a judge knowingly makes a wrong decision, accepts benefits or bribes.33 3.2.6 Evaluation of Conduct and Measures against Misconduct Judges are evaluated in regular intervals. During the probation period of three to five years, judges are evaluated every six months, after appointment for life (until retirement), they are evaluated every three to five years. Evaluation reports are written by the court president, who usually asks for the opinion of the presiding judge of the respective chamber or senate of the evaluated judge. If judges violate their duties, special independent courts decide (Dienstgericht). Only professional judges can judge in these courts. Unlike in China, there is no special disciplinary committee for judges in Germany. Such a commission would violate the constitutional principle of judicial independence.34 3.2.7 Assistance and Salary Law clerks or judicial assistants only work at the five Federal Courts of third instance and at the constitutional courts. Usually, these law clerks are actually judges themselves who are seconded to work at higher courts. 30 31 32 33 34

Bell, ‘The German Judiciary’ (n 3) 126. German Judiciary Act (1972) section 39. ibid. section 43. German Criminal Code (Strafgesetzbuch) (1998) section 339, 331, 332. Basic Law art 97.

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The states and the federation have their own statutory regulations for the salary of judges. A judges’ salary rises with seniority and promotion. In general, judges earn a bit more than other civil servants, but far less than what well qualified lawyers can earn as advocates or as council in business enterprises. Salaries start at approximately 4000 eur a month (3200 eur a month after taxes) and can rise up to 14,000 eur a month before taxes for absolute top positions, e.g. the presidents of the highest courts. A judge receives approximately 70% of his or her last salary as a pension. 3.3

The Court in Social and International Context

To ensure access to justice, persons who cannot afford the advice of a lawyer are supported by free legal advice. Moreover, poor litigants are supported by legal aid (Prozesskostenhilfe). After a preliminary assessment of the chances for the poor litigant to exclude an abuse of the system, an advocate of the litigant’s choice and who is paid by the state is assigned to the litigant.35 Germany has not yet implemented regular surveys to measure the trust in justice and the satisfaction with the services delivered by the judicial system although the member states of Council of Europe are encouraged to do so.36 Public criticism of courts occur, but complaints are limited to a few cases. The most common complaint is that proceedings take too much time. Sometimes, criminal procedures or asylum cases are discussed and criticised in the press. Bigger courts have their own press officer who is responsible for communicating with the press, for answering questions and for writing press releases. In Germany, such press officers are judges who have received special training. Moreover, higher courts also have their own websites where information regarding important hearings and fundamental decisions are published. The German court system is interwoven with international courts at the European level: The European Court of Justice (ecj) is the Supreme Court for the 28 European Union member states in matters of European Union law. West-​ Germany was one of the initial founders of the predecessor to EU, the European Economic Community and thus one of the proponents for the supranational organisation. The powerful role of the ecj is generally accepted, especially when it comes to preliminary rulings of the validity and interpretation of EU 35 36

Germany comparatively scores fairly high in grants for legal aid per 100,000 inhabitants (698) for cases brought to court and in number of cases not brought to court, see cepej Studies No. 26 2018 (2016 data) 81, 83. cepej Studies No. 26 2018 (2016 data) 232.

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Law according to Article 267 in the Treaty of the Functioning of the European Union (tfeu). Another important international court is the European Court of Human Rights which decides on applications primarily from individuals from one of the 47 member states of the European Council alleging that there has been a violation of the European Convention of Human Rights. The complicated relationship of these two European courts with the German Federal Constitutional Court (fcc) is explored in detail in Chapter 10 in Part 3.37

Acknowledgments

Prof. Dr. Reinhard Gaier is former Justice of the Federal Constitutional Court of Germany (2004–​2016) and former judge at the Federal Court of Justice of Germany. Anne Sanders has co-authored the chapter. With the consent of Prof. Dr. Gaier, answers to the questionnaire are edited and supplemented with available data from European data surveys (cepej, encj, ccje) and scholarly literature to optimise the comparison with the other court systems in this book. 37

See Vanessa Hellmann’s account of the love triangle between the German Federal Constitutional Court and its Two European Neighbours in Chapter 10.

­c hapter 4

Slovenia Nina Betetto 4.1

The Court System and Last Reform

4.1.1 Introduction The court system of Slovenia serves slightly above two million (2,06) inhabitants unified on 20,000 km2 of land.1 It is one of the new democracies in Europe. Following the results of the referendum on the sovereignty and independence of Slovenia on 23 December 1990, Slovenia gained independence from Yugoslavia in 1991. It adopted its Constitution on December 23, 1991 and joined the EU in 2004. According to the Constitution, Slovenia is a state governed by the rule of law,2 and it is expressly stated that judiciary is an independent branch of government and that all matters pertaining to judges and judicial work are to be prescribed by law. Before 1991, courts in Slovenia were not independent, but part of the one-​branch government. The major challenge the Slovenian court system faces is to break away from public perceptions of the bygone slow-​working corrupt judiciary citizens experienced before 1991, and to build public trust in the present system. In spite of a well-​developed legal framework for maintaining public trust in the court system including the public hearing principle, the court’s duty to state reasons for its decisions, strict tests for self-​disqualification of judges for bias and restrictions on behaviour of judges outside the courtroom, courts and judges in Slovenia still gets among the lowest score of perceived independence in the EU Justice Scoreboard from the general public and from companies.3 The most important reform of the judiciary took place in 1994–​1995. Based on the new Constitution, legislative acts concerning the judiciary were enacted in 1994, namely Judicial Services Act and the Courts Act,

1 cepej Studies No. 26 (2018) 12. 2 See art 2 of the Constitution of the Republic of Slovenia (1991): ‘Slovenia is a state governed by the rule of law and a social state’. 3 Commission, ‘The 2018 EU Justice Scoreboard’ (Communication) com (2018) 364 final https://​ec.europa.eu/​info/​sites/​info/​files/​justice_​scoreboard_​2018_​en.pdf ­figure 55, 41 (general public) and ­figure 57, 42 (companies) (accessed 1st April 2020).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_005

44 Betetto which have been amended many times throughout the years. The reform established the present-​day court structure. Extensive legislative changes of substantive and procedural law were also made in the transition from the communist to a capitalist system for the functioning of the capitalist system, and to remedy the injustices of the communist regime. An important prerequisite of the independent judicial system is a constitutional rule against ad hoc tribunals.4 Legislation have been substantially amended after Slovenia joined the EU. 4.1.2 The Court Structure The present-​day court structure includes a number of 44 local courts (okrajna sodišča) and 11 district courts (okrožna sodišča), with general competence over civil and criminal cases represents first instance. There are four high courts (višja sodišča) of second instance with general competence and a Supreme Court (Vrhovno sodišče) of third instance which decides on extraordinary legal remedies. Next to the general courts, there are five other courts of first instance –​four labour courts (delovna sodišča) and one social court (socialno sodišče)  –​which are competent to deal with individual and collective labour and social cases. Appeals against their decisions are heard by the high labour and social court (višje delovno in socialno sodišče), while the Supreme Court is also the last instance court for these cases. Finally, there is one administrative court in Ljubljana, which has the position of a high court and deals with litigation concerning administrative decisions taken by the executive power. The immediate results of the structural court reform that took place in 1994–​1995 were negative. The implementation of the reform combined with other factors such as lack of experienced judges, the judiciary’s low ability to compete with the growing lucrative private market for lawyers and changes in the society which consequently resulted in more complex cases, disrupted the flow of work and resulted in heavy backlogs. Both the European Court of Human Rights and the Constitutional Court delivered numerous judgements stating that there was a structural defect in the functioning of Slovenian civil and criminal justice system and that the right to trial within reasonable time was too often violated. Despite undeniable improvements of the justice system since 2010, ensuring predictable, timely and enforceable decisions remains a challenge. A  reported disposition time of 280  days of first instance civil 4 See art 126 paragraph 2 of the Constitution: ‘Extraordinary courts may not be established, nor may military courts be established in peacetime’.

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and commercial litigious cases in 2016 is considerably above the average (of 233 days) and far from the median (of 192 days) in Europe.5 However, the number of pending civil and commercial litigious cases has decreased considerably (from 2,8 to 2,0 per 100 inhabitants) since 2010.6 The reported disposition time of first instance administrative cases increased to 282 days in 2016, but is still below the average (of 345 days) in Europe.7 The number of pending criminal cases per 100 inhabitants was 1,33 in 2016, high above the average (1,08) and median (0,40) in Europe.8 The reported average disposition time for criminal cases in first instance was 141 days, slightly above the average (of 138 days) in Europe.9 The local courts have jurisdiction of first instance over civil cases, such as non-​contentious matters, enforcement and insurance claims and various litigation matters, notably disputes over property rights, where the value of the disputed property does not exceed 20,000 eur, as well as disputes relating to trespass, lease and tenancy relations. District courts have first instance jurisdiction over forced settlements, bankruptcy and liquidation, intellectual property rights, family law matters, commercial disputes and over litigation matters such as property rights where the value of the disputed property exceeds 20,000 eur. As regards criminal cases, local courts are competent to hear cases involving offences carrying as principal penalty a fine or a prison term of up to three years. These cases are heard by a judge sitting alone. District courts have jurisdiction over offences which attract penalties higher than three years imprisonment. A Constitutional Court was established with the Constitution in 1991 and is competent to examine the compatibility of legislation with the Constitution and with international law, as well as alleged breaches of fundamental rights and freedoms. It is composed of nine members, elected among legal experts by the Parliament, upon the proposal of the President of the Republic, for a non-​renewable term of office of nine years. Judges of the 5 cepej Studies No. 26 (2018), 250. 6 ibid. 252. The positive development can be explained by the fact that Slovenia qualified for European Structural and Investment Funds (esi-​funds). The enhanced productivity and reduction in pending cases and disposition times qualified Slovenia as finalist of cepej and the European Commission ‘Crystal Scales of Justice Competition’, see Adriani Dori, ‘The EU Justice Scoreboard –​Judicial Evaluation as a New Governance Tool’, (MPILux Working Paper 2, 2015), 20, available at: www.mpi.lu. 7 cepej Studies No. 26 (2018), 277. 8 ibid. 314. 9 ibid. 312.

46 Betetto Constitutional Court elect their president from among them, for a term of three years.10 Some courts sit in panels involving both professional judges and lay judges. This is the case of district courts, for criminal cases carrying a penalty of more than three years imprisonment. Cases of criminal offences punishable by three to 15 years imprisonment, are heard by panels of three judges –​one professional presiding judge, assisted by two lay judges –​and cases of criminal offences carrying more than 15 years imprisonment are heard by panels of five judges, two professional and three lay judges. Lay judges also sit in labour and social courts, where panels consist of one professional and two lay judges. 4.1.3 Court Administration Slovenia may be categorised as a hybrid between a Ministry of justice model and Judicial Council model when it comes to court administration. The administrative powers are vested in three institutions:  the Ministry of Justice, the Judicial Council and the Supreme Court. The Ministry of Justice plays a role in functions such as budgeting, housing, training of judges, and, to a certain extent, monitoring the court administration. The Judicial Council is given powers primarily with respect to the recruitment and promotion of judges and disciplinary proceedings. Powers other than these, such as monitoring the case load, time frames, quality care and use of it, are vested in the Supreme Court. The establishing of the court budget may be shown through an eight steps scheme: 1) The establishment of a macroeconomic framework 2) Specification of the development priorities and tasks of the Government 3) Setting up of a cross section framework of the budget in accordance with the program and the plans 4) Budgetary Manual of the Ministry of Finance 5) Preparation of detailed financial plans of direct budget users 6) Negotiations with the Ministry of Finance 7) Governmental proposal of the state budget 8) Discussion and adoption of the budget and the Law on Execution of the Budget in the Parliament The Supreme Courts as ‘budget user’ and as the entity proposing the financial plans of all the courts, has a specific role in this process. Although the Courts Act provides that ‘the volume of financial resources for the salaries of judges and judicial personnel, and for the operation costs of courts, shall be provided 10

The Constitution arts. 163 and 165.

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within the framework of the state budget of the Republic of Slovenia for all courts on the basis of financial plans of individual courts at the budget user, the Supreme Court of the Republic of Slovenia’,11 the Supreme Court has limited access to the first four phases. Once the priorities have been set, it is impossible to reach important changes in the volume of financial resources during budget negotiations. During the first four phases it is only the Ministry of Justice which can influence the decisions of the Government, but actors within the court system find the Ministry of Justice lack sufficient knowledge of the needs of the courts. However, the Supreme Court has some impact through informal channels. The Supreme Court enters the process between the fourth and fifth phase. It proposes a cross section of the budget quota specified by the Government, regarding the judiciary for the following two years. The budget quotas are determined on the level of individual courts, whereby in addition to the initial rules determined by the budget manual, the following criteria are also taken into consideration: level of the financial plan of the user for the current year and semester realisation of the financial plan of the user in the current year. The Supreme Court also prepares internal manuals for the users as well as internal forms for budgetary items, which may reflect any additional needs for funds along with a short explanation, which is used as a basis for subsequent negotiations with the Ministry of Finance. Then, each court prepares its own financial plan within the framework of the assigned quota in line with the budget items up to the level of a sub-​account and submits it to the Supreme Court. During this process job allocation schedules are also prepared, because they have to be adjusted to the proposed budget. The Supreme Court examines every court’s financial plan proposal and based on the gathered data and internal forms with appropriate explanations which reflect the additional needs of the users, prepares a new assessment of the needed funds to facilitate a smooth operation of the courts within the following two years. In addition, a complex analysis is prepared of the budgetary expenses and a dialogue is established between the users in regard to a concept for future negotiations. The negotiations with the Ministry of Finance may occur in several phases depending on the divergence between the posed requests on one hand and the possibilities or the constraints imposed by Ministry of Finance. If the Ministry of Finance agrees, the additionally provided funds shall be distributed among the courts in line with the proposed priorities. However, if no agreement is 11

The Courts Act art 75 paragraph 2.

48 Betetto reached, the proposed budget of the courts shall be submitted to Parliament, which takes the final decision. The Judicial Council is responsible for the appointment and promotion of judges and disciplinary proceedings and plays an important role in the administration of the Slovenian judiciary. It is composed of 11 members, with a majority of judges. Five members are elected by Parliament on the proposal of the President of the Republic from among university professors of law, attorneys or other lawyers. Judges holding permanent judicial office elect six members from among their ranks. One of the changes brought by the 2010 amendments of the Courts Act was the creation of a position of court director within district and high courts, whose role is to manage courts more efficiently and discharge the presidents of the courts. Court directors are public officials –​not judges –​who are selected by the president of the court and appointed for a renewable term of five years. They are in charge of the material, technical and day-​to-​day financial management of the court, including public procurement procedures and staff matters, under the authority of the president of the court. The latter remains solely competent for all matters relating to the exercise of judicial office. Court administration matters are under the authority of the president and the director of the court. The court president is substituted by the vice-​ president of a court, who may also perform matters within the competence of the president in other cases, under the authority of the president. The administrative work necessary for the application of judicial authorities and execution of court’s administrative affairs is organised within a joint court office, run by the head of the office or smaller organisational unit –​the Office of the ­President. 4.2

The Role and Working Conditions of the Judge

4.2.1 General There were 880 professional judges in Slovenia in 2016.12 While this figure at first glance might appear very high for such a small country, it should be borne in mind that the judiciary in Slovenia is a single corps including judges serving at all instances and includes misdemeanour judges empowered chiefly to administer criminal or civil justice in minor cases. Land register and companies register cases, unlike in most other counties, also fall within the court 12

cepej Studies No. 26 (2018) 103.

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competence. Being a judge is mainly a female occupation (79%), particularly in lower instances where women occupy 82% of 1st instance positions and 75% of 2nd instance positions. However, the majority of judges in the Supreme court are men (58%).13 Judges are independent in the performance of the judicial function and are bound only by the Constitution and the laws14 as well as by the general principles of international law and ratified and published international treaties.15 The Constitution enshrines the standard-​judge principle16 and the principle that judges must not be part of the executive branch of power or bodies of political parties.17 The principle requiring post-​decisional independence of the judgement and its respect by the other branches of power is proclaimed by the Courts Act.18 Characteristics of personal independence include security of office, life tenure and adequate remuneration and pensions. The Constitution provides full time appointment until a legal retirement age and security of office.19 4.2.2 The Judicial Career To become a judge, it is necessary to complete a law degree. The education and appointment procedures of judges follow a bureaucratic model based on competitive exams with resemblance to the German system but has become 13 ibid. 114. 14 See art 125 of the Constitution: ‘Judges shall be independent in the performance of the judicial function. They shall be bound by the Constitution and laws’. 15 See art 8 of the Constitution: ‘Statutes and other regulations must comply with generally accepted principles of international law and with international treaties that are binding on Slovenia. Ratified and published international treaties shall be applied directly’. 16 See art 23 of the Constitution:  ‘Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual’. 17 See art 133 of the Constitution: ‘Judicial office is not compatible with office in other state bodies, in local self-​government bodies and in bodies of political parties, and with other offices and activities as provided by law’. 18 See art 2 of the Courts Act: ‘Any natural or legal person in the Republic of Slovenia shall respect a final decision of judicial authority. The decisions of judicial authority shall be binding on courts and all other state bodies of the Republic of Slovenia. The enforcement of a court decision cannot be hindered by a decision of another state body’. 19 See art 129 of the Constitution: ‘The office of a judge is permanent. The age requirement and other conditions for election are determined by law. The retirement age of judges is determined by law. As to security of office see art 132 of the Constitution: A judge ceases to hold judicial office where circumstances arise as provided by law’.

50 Betetto more flexible during the last years. A two-​year period of initial training as ‘judicial trainee’ according to a programme set up by the Minister of Justice and taken care of by the Judicial Training Centre, was previously compulsory to accede to the lawyer’s state exam. Now, university graduate lawyers or masters of law are permitted to accede to the state lawyer’s exam directly without the traineeship provided they pass some obligatory forms of training organised by Judicial Training Centre and have a certain period of working experience after graduation in the legal field. After the national exam there is a mandatory three years training period required in order to fulfil qualifications for a judge. The general conditions for applying to a position of judge are set out in Article 8 of the Judicial Service Act. A person may apply to the post of judge if he/​she is a Slovenian citizen and has an active command of the Slovenian language, is at least 30 years old, has the professional capacity and is of good general health, has acquired the professional title of lawyer with a university degree in Slovenia or an equivalent foreign degree, has passed the state examination in law and has a suitable disposition for performing a judicial office. The number of years of work experience of candidates determine to what level of court they can apply to. As regards the propriety of candidates, Article 8 specifies that ‘persons for whom it can justifiably be concluded on the basis of their work, action and behaviour to date that they will not perform judicial office with expertise, honesty and conscientiousness or that as judges they will not safeguard the reputation of the judiciary or the impartiality and independence of judging, and persons convicted of a criminal offence providing grounds for the dismissal of a judge shall be deemed personally unsuited to holding judicial office’. In addition to these general conditions, the past work, including the judicial performance, of the candidates is also assessed according to nine criteria set out in Judicial Service Act Article 29, namely the specialist knowledge, working abilities (number and complexity of solved cases), ability to solve legal questions (percentage of appeals dismissed/​granted), work on judicial backlogs, maintenance of the reputation of the judge and of the court, communication skills, additional work (such as tutorship, teaching, publications), relationship with co-​workers and leadership abilities (only for judges who already hold leading positions). For candidates who have not held a judicial position previously, these criteria are applied as regards their past work experience. Vacant positions are advertised in the Official Gazette by the Supreme Court upon receiving a reasoned proposal from the president of the court where a position is vacant. The Supreme Court checks that the applications are complete and fulfil the necessary formal conditions and sends them to the president of the court who assesses the candidates. In the context of initial appointment,

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each of the criteria of Judicial Service Act Article 29 must be assessed, and the president of the court has to issue a reasoned opinion on the adequacy of each candidate. S/​he may also –​and often does –​propose the candidate which s/​he deems most suitable for the position. The Judicial Council is not bound by the opinion of the president of the court and can request additional information, and even proceed to interviews of the candidates. In practice, the opinion of the president of the court is important, though not always decisive. The Judicial Council then selects the candidate to the position and, if this candidate has never been elected to judicial office, it proposes his/​her election to the Parliament. If the Parliament fails to elect a candidate, the Judicial Council may make a repeat selection from among the candidates who have applied and who fulfil the conditions, or rule that the judicial position be re-​advertised. As a rule, participants in competitions for initial appointment are young graduates in law, of good moral standing and with little professional experience, who enter the judiciary rather young (normally between 30 and 35 years of age). Consequently, there is a need to provide an effective educational ‘bridge’ between the theoretical knowledge provided by the law faculties and the ‘applied’ knowledge needed to perform judicial functions. Judges generally remain in service for their entire working life following a career, which in various ways formally combines seniority and evaluations of professional merit. There are different levels within the judicial hierarchy. The Slovenes distinguish between four grades of judge: local, district, higher and supreme judge. With this level of differentiation comes a distinct appointment and promotion process for each type of court (local, district, high and the Supreme Court). Promotion includes promotion in wage classes, promotion to a superior judicial position and promotion to the position of councillor. The president of the court rules on promotion in wage classes and promotion to a position of a councillor. The promotion to a superior judicial position (from a local judge to a district judge, higher judge or supreme judge), a more rapid promotion in wage classes, a more rapid promotion to a position of councillor and an accelerated promotion to a superior judicial position are, however, decided by the Judicial Council upon proposal of a judge or the president of the court. The office as a judge is permanent until retirement, no later than upon reaching 70 years of age. 4.2.3 Case Assignment Almost all cases are registered and allocated using computer algorithms. The annual schedules of all courts are published on the website of the judiciary. This positive feature of the system guarantees that nobody can tamper with the random case assignment to judges.

52 Betetto The court presidents monitor the performance of the court, but they are not allowed to interfere with the independent position of a judge in decision-​ making on cases the judge has been assigned to adjudicate. In order to successfully complete this task, a specialised bi tool (President’s dashboards) is in place, providing a good insight in the court performance. The court presidents set productivity and timeframes targets for their court by presenting a proposal for the annual work programme. The annual work programme must contain an assessment of the anticipated annual caseload of more important and other cases, temporal criteria for typical procedural acts and temporal criteria for solving matters and the operational plan consisting of number of planned and resolved more important and other cases; an efficiency criterion, which is calculated as the number of planned resolved cases per judge and court staff; a performance criterion of operation, which is the planned time of judicial proceedings in more important and other cases, expressed in months from case assignment to resolution of the case; and an economic criterion, which is the amount of budget funds per planned resolved case. The court presidents also decide on legal remedies according to the Protection of Right to Trial without Undue Delay Act. If the president of the court establishes that the undue delay in decision-​making of the case is due to excessive workload or extended absence of the judge, the court president may order that the case be reassigned. 4.2.4 Judicial Performance Slovenia represents, as Germany,20 a continental civil law system without a doctrine of precedents typical for common law systems.21 The Courts Act Article 11 expressly states that ‘in applying the law the judge shall also be independent in relation to the court of higher instance, which has already expressed its legal opinion on the specific case’. The latest trend, however, shows that case law is an important source of law. This trend has started on the basis of a doctrine established by the Slovenian Constitutional Court. Through the constitutional requirement of equality before the law, case law is gaining a similar force as pertains to formal legal sources. Courts are under the obligation to consider the argument of precedent as one of the interpretative arguments, when they interpret laws or decide concrete cases and reason judicial decisions. Through the case law of the Constitutional Court the argument of precedent has won a direct constitutional significance in Slovenia to the extent that an arbitrary 20 See Chapter 3, section 3.2.4. 21 For comparison with a typical representative for common law systems, see Chapter  5, section 5.2.4.

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departure from settled case law can be remedied through a constitutional complaint. Judges are not specialised in one legal field by training but operate according to the internal organisation of the court in which they sit. The Slovenes recognise distinctions of function according to specialism (e.g. criminal and civil judges) but have a single corps of judges who may be more or less permanently assigned to one particular branch of courts (e.g. labour court or court of general jurisdiction). An informal culture of exchange and possible support among colleagues has had a long tradition in Slovenian judiciary. This applies to ‘supervisor-​ subordinate’ relationships (e. g. head of the department –​new judge) as well as to peer co-​worker relationships which range from those which are purely information based to those that are collegial and include many or all of the dimensions of a friendship. On the vertical level semi-​formal or purely informal meetings of judges of lower and higher courts seeking to establish consensus on points of procedural and material law regularly take place. Recently, the Supreme Court launched a mentoring scheme for newly appointed judges or judges who changed their field of judging. The scheme, which is completely voluntary and is not allowed to interfere with the individual independence of a judge, aims at helping judges through the day-​to-​day functioning of their jobs (‘judge craft’) and exchanging of good/​best practices. The project has been met with a highly positive response. 4.2.5 Codes of Professional Conduct A set of aspirational professional and personal rules of conduct for judges is contained in the Code of Judicial Ethics, which was first adopted by the Slovenian Association of Judges on 10 October 1972 and was renewed and amended, with the addition of a commentary, in 2001. In order to cover all judges, the Judicial Council adopted the Code (containing the same rules) in 2015. It enacts nine principles, on independence, impartiality, training, commitment, compatibility, incompatibility, discretion, attitude and reputation. The Code does not include any provisions concerning its monitoring and is not meant to be used directly as a basis for disciplinary action or enforcing a judge’s liability. The Ethics and Integrity Commission was established within the Judicial Council in 2015. It adopts principled opinions on practices constituting an infringement of the Code of Judicial Ethics, issues recommendations for compliance with the rules of judicial ethics and integrity in accordance with the Code of Judicial Ethics, adopts guidelines in the field of judicial ethics and integrity in accordance with the Code of Judicial Ethics, and is, in cooperation with the

54 Betetto Slovenian Judicial Training Centre, responsible for the education and training of judges in the field of judicial ethics and integrity. In its relatively short period of existence, the Commission has already adopted several principled opinions on the actions of judges that are published on its website in an anonymous form. It has also prepared and adopted the Commentary on the Code of Judicial Ethics.22 4.2.6 Evaluation of Conduct and Measures against Misconduct The Judicial Council is the entity responsible for the appointment and promotion of judges and disciplinary proceedings. As a basis for a quality assessment of the individual judicial performance the Judicial Council has adopted the following list of criteria: (1) expertise of the judge (2) working capacities of the judge (3) the judge’s ability to resolve legal issues (4) his work done in eliminating and preventing a backlog (5) protecting the reputation of the judge and the court (6) the judge’s ability in oral and written communication (7) his additional work performed in the exercise of judicial office (8) his attitude to colleagues in the exercise of judicial work (9) his ability to perform managerial tasks. A work performance assessment is regularly carried out by the relevant personnel council23 and forms part of the candidate’s file. The judge to whom the file is related is informed of the details of any entry. Personnel councils carry out an assessment of judicial service for judges every three years or before such period has elapsed at the request of the Judicial Council, the president of the court, the president of a superior court or the judge himself. An assessment of judicial service is carried out every year for judges during their first three years of judicial service. The objectives of the criteria relating to the professional assessment of judges are twofold: first, the assessment of the quality of the judicial system and, second, the professional ability of judges. In general, the last years have seen the criteria for the evaluation of judges in Slovenia become on the one hand more analytical in assessing legal knowledge, judicial skills and diligence, and 22 23

Available also in English, see The Judicial Council of the Republic of Slovenia, www.sodni-​ svet.si/​kodeks/​angleski-​prevod-​komentarja-​kodeksa-​sodniske-​etike/​ (accessed 1st April). Personnel councils are bodies established at high courts and the sc, which are in charge of the evaluation of the work performance of judges of lower courts. Their members are elected by judges from among their peers.

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on the other hand taking into account ‘qualities’ other than those strictly related to jus dicere (e.g. organisational skills, social skills, knowledge of the techniques and technologies that make the work of the judge and of the court as a whole more functional). Analytical evaluation for each judge is summed up in a scale of grades24 and is more selective than it was in the past. It can be reasoned that professional evaluation of judges plays a major role in their career because promotion is largely based on the results of evaluations. According to the Constitution Art. 132, Parliament may dismiss a judge on the proposal of the Judicial Council after a disciplinary procedure when in the performance of judicial office, the judge violates the Constitution or seriously violates the law. Decisions of dismissal is made on the basis of an assessment of the judge’s performance and expertise taking into account all the criteria established in the Judicial Service Act and the more detailed quality criteria developed by the Judicial Council. The law in Slovenia seeks to give effect to the general principle nulla poena sine lege in disciplinary proceedings by specifying 27 categories of disciplinary offences. The competence for the disciplinary proceedings is with the Disciplinary Court of first instance, established within the Judicial Council. Against the decisions of the Disciplinary Court a special lawsuit in an administrative dispute is possible before the Supreme Court. 4.2.7 Assistance and Salary Judicial assistants play a significant role in the Slovenian judicial system. The current judicial assistants per judge ratio is 0,62. The work profile of the law assistants varies as per court and judges who they work under. In higher courts and in the Supreme Court their most important task is to assist judges in drafting of the judgments by supplementing it with research and case analysis. The issue of judges’ salaries has given rise to controversy in Slovenia over the past few years. Judges’ salaries are set out by the Judicial Service Act, in accordance with the Public Sector Salary System Act. Changes to the legislation were proposed, which were challenged by judges before the Constitutional Court, mainly for reasons of judges’ salaries lagging behind the salaries of officials in other branches of power. The Constitutional Court ruled in favour of the judges, stating that the government had not given convincing reasons for this disproportionality, which therefore breached the principle of separation 24

According to Judicial Service Act Art 32 the assessment provides for the following grades: 1) the judge is unsuitable for judicial service; 2) the judge fails to fulfil the conditions for promotion; 3) the judge fulfils the conditions for promotion; 4) the judge fulfils the conditions for accelerated promotion; 5) the judge fulfils the conditions for extraordinary promotion to a superior judicial position.

56 Betetto of powers.25 The government then introduced some changes, which were again challenged, this time by the Administrative Court, before the Constitutional Court. The Constitutional Court declared them unconstitutional, repeating that judges should be treated in a manner comparable to officials of the two other branches of power.26 As a result, judges’ salaries were aligned with those of comparable officials in the legislative and executive powers, according to a new version of the Public Sector Salary System Act. The gross monthly salary of judges (December 2017) ranges from 2.719,39 eur for a local court judge at the beginning of his/​ her career to 5.305,30 eur for a judge of the Supreme Court. As to judges’ pensions, general rules apply. Judges do not enjoy any additional benefits. 4.3

The Court in Social and International Context

Judiciaries are not independent from social and cultural influences within the society in which they operate. The interaction between Slovenian judiciary and other national and international institutions is complex; some aspects thereof are shown in this chapter. The Constitutional Court of Slovenia by stating that the financial burden of litigants must not form an insurmountable obstacle for the access to court for a poor party established a clear link between the right to access to court and the right to legal aid. The right to free legal aid is comprehensively regulated by the Free Legal Aid Act adopted in 2001. A person is entitled to free legal aid if the applicant would not be able to cover the costs of legal proceedings without jeopardizing the financial position of himself or his family. Legal aid includes legal advice, representation in court proceedings through an attorney at law and partial or full exemption from payment of the costs of proceedings, e. g. court fees, costs of experts, witnesses, interpretation etc. Residents of other EU Member States are guaranteed the same level of access to free legal aid as Slovenian residents. The same goes for stateless persons and for foreigners domiciled in Slovenia. Nationals of non-​EU states can obtain free legal aid under the condition of reciprocity or under the conditions and in cases laid down in international treaties binding Slovenia. The application for free legal aid is decided upon by presidents of district courts assisted by the court’s Legal Aid Department. The rules of the

25 26

Decisions U-​I-​60/​06, U-​I-​214/​06 and U-​I-​228/​06. Decision U-​I-​159/​08.

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Administrative Procedure Act apply. Besides the financial criteria the Legal Aid Department checks whether the case is not manifestly ill-​founded. If granted, free legal aid may be conditioned with the request that the party first tries to settle the case through a certain adr mechanism before pursuing the case in court. Legal aid is provided by attorneys at law and (except representation in court) by private bodies licensed by the state, and by ngo s which obtained permission for such activity. Data from the EU Justice Scoreboard indicate that the state of Slovenia’s justice system has improved to such an extent that it can no longer be assessed as in crisis, but rather as reasonably successful and in certain areas even above-​ average relative to other EU countries, especially in terms of time and the concentration of proceedings.27 Sadly, though, Slovenia remains among those countries where in the public the level of trust in judiciary and of independence of judiciary is still perceived to be very poor. Strategic objectives of Slovenian judiciary include a greater transparency of the judicial process in order to foster public confidence in the system of justice. It has become apparent that the courts have a proactive role to play in explaining to the public their part in the administration of justice. Arrangements for online publication of judgements have been made in all instances.28 Forms for the public and companies, education on legal rights, targeted information for children and for visually or hearing impaired are available online resources for the general public.29 On the national level, the president of the Supreme Court and the Supreme Court justices assisted by the Supreme Court’s Public Relations Department speak for or on behalf of the judiciary. On the regional and local level, judges or non-​judges represent district and local court judges. In performing their task, they may require the assistance and expertise of the Supreme Court’s Public Relations Department (‘communication advisors’). On the other hand, it should be noted that Slovenian judges live in a society where criticism of public institutions is the norm. Excessive popular pressure and irresponsible journalists, hungry for sensational pieces, have too often put judges in an unbearable position which threatened their independence. Slovenia is an EU Member State and a Council of Europe Member State, so the Court of Justice of the European Union and the European Court of Human Rights are the courts of most importance in Slovenia. Both, the judgements of 27 28 29

See Commission, ‘The 2017 EU Justice Scoreboard’ (Communication) com (2017) 167 https://​ec.europa.eu/​info/​sites/​info/​files/​justice_​scoreboard_​2017_​en.pdf (accessed 1st April 2020). See Commission, ‘The 2018 EU Justice Scoreboard 2018’ (n 3) ­figure 34, 28. ibid. ­figure 25, 23.

58 Betetto the Court of Justice of the European Union and the European Court of Human Rights have precedent character and have a great impact on the national case-​ law.30

Acknowledgments

Nina Betetto is Supreme Court Justice of the Republic of Slovenia. Answers to the questionnaire are with her consent edited and supplemented with available data from European datasurveys (cepej, encj, ccje) to optimise the comparison with the other court systems in this book. The author is aware, however, that there are methodological problems with the use of such data for comparative analyses (see Chapter 1 section 1.3.5). 30

See for the difficult relationship between national and international courts within the European Union and Council of Europe Vanessa Hellmann’s contribution in Chapter 10.

­c hapter 5

UK –​England and Wales Right Hon Sir Richard Aikens 5.1

The Court System and Most Recent Reform

5.1.1 Introduction The court system of England and Wales serves a population of 58,4  million people,1 and is uniquely embedded in English history and culture. The main structure of the system has remained much the same since 1873, save for three very important constitutional changes instigated by the Constitutional Reform Act in 2005. Then, a new Supreme Court replaced the Judicial Committee of the House of Lords as the final court of appeal, the Lord Chancellor ceased to be head of the judiciary and a new statutory and independent body responsible for the selection of candidates for appointment as judges, the Judicial Appointments Commission (jac), was created. The motivation for the reform was the separation of the judiciary from the other powers, modernisation of the judiciary and attempting to ensure more diversity among judges. There is a continuing reform which aims to apply new technology to court administration by 2023.2 The biggest challenge the court system faces is the increasing number of cases in many areas of dispute, particularly between the citizen and the state in relation to services that the state provides. Lack of money within the justice system affects private parties seeking justice but it is also a serious

1 For more detailed, but not fully updated overview, see John Bell, ‘The English judiciary in comparative perspective’, in John Bell, Judiciaries within Europe. A  Comparative Overview (Cambridge University Press 2006) 298–​349. Bell examines the English judiciary as a social organisation within a context of expectations set by legal norms and by other institutions. For a challenging technological perspective and future possibilities, see Richard Süsskind, Online Courts and the Future of Justice (Oxford University Press 2019).cepej Studies No. 26 (2018) 12. The court systems of Scotland and Northern Ireland are entirely separate. They only ‘join’ with those of England and Wales in the Supreme Court of the UK, which hears appeals from all parts of the UK, although it has no jurisdiction in Scottish criminal cases unless they raise human rights issues. 2 The Reform is launched by Her Majesty’s Courts and Tribunals Service, www.gov.uk/​government/​organisations/​hm-​courts-​and-​tribunals-​service (accessed 1st April 2020).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_006

60 Richard Aikens issue affecting criminal cases and the judges as well. There is a declining number of well qualified applicants for senior judicial positions because the salary of judges is so much lower than what successful lawyers can earn in practice. As legal aid has been reduced, more litigants are expected to appear in courts without lawyers thus making the judges’ job more difficult. The 2005 reform was unexpected and came without any warning or prior consultation with the judges, the lawyers, the legislature or the public. The replacement of a committee of judicial members of the House of Lords (the upper chamber of the legislature) by a Supreme Court, which is independent from the other branches of state power, has been widely accepted as a beneficial reform. The removal of the Lord Chancellor as head of the judiciary has been more controversial. The government minister for justice is now regarded as more of a political figure, and opponents of the reform argue that the politicising of the function has been detrimental to the judicial system. The creation of the jac, was thought necessary to make the system of appointment to the judiciary more open, but it is not clear that the reform has been a success on this point. Some argue that its very long and complicated processes have discouraged able candidates from applying for the more senior judicial posts. 5.1.2 The Court Structure The non-​specialised, but still divided English court system has developed over 1000 years and is not the easiest to explain. The court system comprises a number of different branches of law separated from each other partly for historical reasons, and it includes several distinct corps of judges. There are different levels of courts depending on the size and complexity of the case. There is furthermore a distinction between ‘courts’ and ‘tribunals’. Tribunals are designated to handle civil cases between citizens and government departments on issues such as tax, employment, discrimination, immigration, education, mental health and social security payments and, as such, resemble administrative courts. However, the term ‘The Administrative Court’ is, in England and Wales reserved for a specialised court within the Queens’s Bench Division (qbd) of the High Court. It is a court of first instance, designated to carry out judicial review of decisions made by tribunals, courts, ministers, officials or other public bodies and to hear cases of a similar nature.3 Criminal cases and civil disputes that are not under the jurisdiction of a tribunal, are handled by courts.

3 See Administrative Court, ‘What we do’ www.gov.uk/​courts-​tribunals/​administrative-​court (accessed 1st April 2020).

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There are three main levels of courts for larger cases. At the first instance level (the High Court) the courts are divided into three Divisions, the already mentioned Queen’s Bench Division, (qbd) the Chancery Division (Ch D) and the Family Division. The first hears civil cases on contract, tort and, as mentioned, administrative law claims. The second hears claims concerning property, patents and other intellectual property and tax. The third hears cases concerning family and succession. There are specialist courts within the qbd and the ChD, under the ‘umbrella’ of what is now called The Business and Property Courts of England and Wales. There are, for example, specialist courts for commercial cases, Intellectual Property cases and company law cases. Appeals are heard by the single Court of Appeal of England and Wales, which has two divisions, Civil and Criminal. Appeals can only be made with the permission of either the first instance court or the Court of Appeal. The Supreme Court only hears cases of the greatest public or constitutional interests affecting the whole ­population.4 Smaller civil cases are heard in local County Courts by one District Judges. Larger cases in the County Courts are heard by one Circuit Judge. The more important civil cases that are heard in the three divisions of the High Court are also heard by a single judge. That is usually a High Court Judge; but a senior Circuit Judge may sit as a Deputy High Court Judge. On the criminal side, lesser crimes are dealt with in the Magistrates’ Courts, where the judges might be either three non-​professional judges (Lay Magistrates) or one professional judge (District Judge, crime). More serious crimes are dealt with in the Crown Court before one judge (either a Circuit Judge or, for very serious cases, a High Court Judge) and a jury of 12 people. The jury decides on guilt or innocence. The judge presides over the trial, instructes the jury on the law and sets the sentence. There can be appeals (with permission) to the Court of Appeal (Criminal Division) on both conviction or sentence. The prosecution cannot appeal an acquittal and only in very rare cases can the prosecution appeal a sentence on the ground that it is ‘manifestly too lenient’. Three judges will hear a criminal appeal. The panel will usually consist of one Appeal Court Judge, one High Court Judge and one Senior Circuit judge. The Tribunal system is separate in the sense that judges who sit in the various tribunals do not sit in one of the Courts mentioned above. There are usually two levels of tribunals: a first level and an appeal level. Appeals from the second level may go to the Court of Appeal (Civil Division). Appeals are by permission only of a judge. 4 See The Supreme Court, www.supremecourt.uk (accessed 1st April 2020).

62 Richard Aikens After cepej’s 2016-​data collection finding of 393 first instance courts in England and Wales,5 the UK government continued its court closure programme and sold court premises, ostensibly to finance the modernisation of the courts. Data for the disposition time of civil cases are not provided in the cepej Report from 2018. However there are some other useful figures. The disposition time of first instance administrative cases has fluctuated between 169 and 446 days in the past ten years, but seems generally to be above the average (of 345 days) in Europe.6 The number of pending criminal cases per 100 inhabitants (0,57),7 was considerably below the average (1,08) but not as low as the median (0,40) in Europe in 2016. The average disposition time for criminal cases at first instance (72 days), was also considerable below the average (of 138 days) in Europe.8 5.1.3 Court Administration The Courts are under the control of the Ministry of Justice. The responsible minister is the Lord Chancellor and Secretary of State for Justice (one person). This minister is responsible to Parliament for the department, which also has responsibility for prisons and other aspects of the punishment of criminals. The Ministry of Justice controls the budget overall. Her Majesty’s Courts and Tribunals Service (hmcts) is the executive organ responsible for actually running the court and tribunal administration. The twelve men board of the Courts and Tribunals Service is responsible for the detailed allocation of the budget for buildings, equipment (including it equipment) and administrative staff. The board has an independent Chairman and three positions reserved for judicial representatives. The Court and Tribunals Service has no control over the judges themselves or their work. The budget of the Courts and Tribunals Service is about £1.6 billion a year. 5.2

The Role and Working Conditions of the Judge

5.2.1 General Being a professional judge is a rather exceptional position in England and Wales. In 2016, the total number of full-​time judges was 1760 and represented

5 cepej Studies No. 26 (2018) 197. The annual report and accounts of Her Majesty’s Courts and Tribunals Service for 2018–​9 states that there are 338 courts and tribunal hearing centres. The figure depends of course on the national definition of a ‘court’ and ‘tribunal’, see the ongoing discussion on reliability of data collectors as cepej in Chapter 1, section 1.3.5 in this volume. 6 ibid. 277. 7 ibid. 314. 8 ibid. 312.

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the lowest density of judges in Europe at the time (3 per 100,000 inhabitants).9 However, the number of part-​time judges appointed for a fixed term of five year, with the prospects of fairly automatic renewal, is more than three times as high, amounting to 6,479 in 2016.10 The division between full-​time and part-​ time judges leads to a distinction between ‘salary-​paid’ and ‘fee-​paid’ judges. The standing of judges is high, particularly for the most senior judges, e.g. those in the Supreme Court and Court of Appeal. High Court judges receive a knighthood. The social standing of judges has, however, declined over a long period of time since the mid 20th century, largely because of the comparative reduction in the value of their salary. Men are in the majority (66%) in judicial positions at all judicial levels in England and Wales.11 In 2019, only three of twelve (25%) Supreme Court judges were female. 5.2.2 The Judicial Career Unlike in Germany or Slovenia,12 there is no system of training judges after university or an Academy for continuing legal education in order to become a judge. All judges are selected from legal practitioners who have at least 10 years of experience and are generally13 recruited from senior lawyers, i.e. barristers and solicitors. By the time a person is appointed as a judge he or she will consequently have (a) been qualified as a lawyer (he may have read law at university or read some other subject before turning to law); (b) been a legal practitioner (as a barrister or solicitor) for at least 10 years; and (c) have considerable experience of cases in courts/​tribunals. The judiciary of England and Wales represents the ‘professional model’ of judiciaries as opposed to the ‘bureaucratic model’ in Germany and Slovenia.14 Since ‘professional’ in the ‘professional model’ refers to the fact that professional legal experience is necessary to be appointed as a judge, the judicial corps in countries representing the professional model is closer connected to the legal community at large. A particular feature of the legal system in England and Wales is that private lawyers are divided into two professions, barristers and solicitors. Barristers specialise in court advocacy while solicitors more generally advise clients. There 9 cepej Studies No. 26 (2018) 103. 10 ibid. 11 ibid., 114. 12 See Chapter 3 section 3.2.2 (Germany) and Chapter 4 section 4.2.2 (Slovenia). 13 Occasionally distinguished academic lawyers are appointed to senior judicial positions, but they too must have had at least 10 years of experience as a barrister or solicitor. 14 See Carlo Guarnieri and Patricia Pederzoli, The Power of Judges. A Comparative Study of Courts and Democracy (Oxford University Press 2002) 66–​68.

64 Richard Aikens are about 16,000 barristers and 60,000 solicitors in England and Wales. Each profession has its own independent professional body which is responsible for overseeing professional standards, discipline and training of its members. All judges at all levels, whether court judges or tribunal judges are selected through the Judicial Appointments Commission (jac). So also are part time judges, known as ‘Recorders’ (for criminal cases usually) or ‘deputy judges’. The jac is an independent body which was created under the constitutional reforms of 2005. It has a Chairman, who is neither a judge nor lawyer and another fifteen Commissioners, eight of whom are judges and two are representatives of the legal professions. All Commissioners serve a fixed term and are part time. The selection of judges is done on the basis of an application form, references from senior lawyers or judges and an interview. There are many different panels that select the judges. When e.g. High Court Judges are needed, a panel will be constituted. It will consist of members of the Judicial Appointments Commission, who are independently appointed but there will always be two judges on the panel of four. The Judicial Appointments Commission recommends candidates to the Lord Chancellor and they are formally appointed by the Queen. High Court Judges will be assigned to one of the three Divisions of the High Court. Frequently judges will have been practitioners who will have specialised in some area of the law in practice. But, with the exception of judges appointed to the Family Division and to certain specialist ‘Lists’, they are generally not expected to be specialist in all the branch of the law which they will encounter after appointment. Training of judges is done after appointment, whether as part time or full time judges. Courses are run by the Judicial College, which consists of judges themselves, led by a judge Director of Studies. The Judicial College President is always a member of the Court of Appeal. Courses are intense and short, usually less than a week. The most training is done when a judge is first appointed as a part time judge e.g. Recorder or Deputy Judge. Upon full time appointment there is very little additional training and there is no training upon promotion to the Court of Appeal or Supreme Court. Judges in the Family Division will spend much of their time dealing with Family cases but not exclusively so. They may also conduct criminal trials or deal with Administrative law cases. Judges of the Chancery Division will deal with property cases and some commercial cases. Judges who had specialist practices in Intellectual Property will sit in the Patents Court and judges who had specialist practices as company lawyers will sit in the Companies Court. In the Queen’s Bench Division judges are expected to deal with all types of civil case and to conduct criminal trials and to deal with Administrative law cases too. In October 2017 the ‘Business and Property Courts of England and Wales’ became operational. These Courts consist of specialist jurisdictions which deal

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with particular types of large business case. Judges who sit in these specialist jurisdictions (which include the Commercial and Admiralty Court, the Patents Court, the Technology and Construction Court and various other specialist ‘Lists’ for various types of case e.g. insolvency or non-patent intellectual property) will be expected to have had specialist experience in order to become a judge in those courts. An appointment as tribunal judge also requires specialist competence in the particular field of the tribunal concerned (eg tax or employment law). In the Court of Appeal all judges have to deal with all sorts of civil appeals (including administrative law appeals) and many judges have to do criminal appeals as well. However, in the Court of Appeal (Civil Division) there is usually a constitution of three judges hearing a case together; the judge who writes the first draft judgment (with which the others may or may not agree) will usually be a judge with special expertise in the matter at hand. A small number of Appeal Court judges deal with specialist appeals e.g. on extradition. In the Supreme Court all twelve judges deal with all types of cases. Part time judges are appointed for a fixed term of 5 years. Full time judges are appointed until they reach the statutory retirement age, which is 70 in all cases from the most junior District Judge to members of the Supreme Court. Judges of the High Court, Court of Appeal or Supreme Court can only be removed upon the passing of a positive resolution by both Houses of Parliament. That has been the law since 1705. Only one judge has been removed in this way, in Ireland in 1834, for corruption. More junior judges can be removed for misconduct or ill-​health but only after an inquiry led by a judge and then with the agreement of the Lord Chancellor and Lord Chief Justice. As John Bell points out, ‘[i]‌t has not been the English tradition to consider that there is a ‘judicial career’.15 The conferment of a Knighthood for becoming a High Court judge is ‘an achievement in its own right’ and the division of the judiciary into different corps has given little room for the development of a formal promotion system.16 Still, a career system has gradually emerged over the past fifty years.17 The wide spread use of part-​time judges as Recorders and deputy judges has contributed to form pathways to advancements within the judicial system. All promotions up to and including the Supreme Court are dealt with by the Judicial Appointments Commission. Any judge seeking promotion must apply, complete a long application form, obtain references and be subjected to an interview. The views of the judges in the Court to which promotion is sought are obtained (e.g. when a High Court Judge seeks promotion 15 Bell, ‘The English judiciary in comparative perspective’, (n 1) 298. 16 ibid. 298–​99. 17 ibid.

66 Richard Aikens to the Court of Appeal). The Heads of the Court to which promotion is sought, are also consulted. Appointments are made by the Queen, but on the basis of the recommendation of the Judicial Appointment Commission, which is passed on to the Lord Chancellor and, in the case of promotions to the Court of Appeal and Supreme Court, to the Prime Minister. Technically, the Lord Chancellor can ask the jac to reconsider a recommendation, but that is very rare indeed and in practice the recommendation has never been altered. 5.2.3 Case Assignment Technically the court president or his deputy is responsible for the assignment of cases to individual judges. Thus, in the Court of Appeal (Civil Division) where cases are heard by a panel of three (or occasionally two) judges, the Court president (Master of the Rolls) and the vice president of the court will designate the constitutions of judges each for roughly three weeks and assign cases to constitutions with the necessary expertise (specialised judges within the civil division, e.g. for family law or planning law). 5.2.4 Judicial Performance First instance judges work alone, save in the case of a criminal trial where the case is heard with a jury. In the latter case the jury will decide the issue of innocence or guilt, without the judge taking part in the deliberations, but the judge will give the jury directions on the law to apply before they deliberate. If an accused is found guilty, the judge will determine sentence without any participation by the jury. In civil cases the judge hears the evidence and submissions then decides the case. Frequently the judge will give an oral judgment after the conclusion of argument, but sometimes in complex cases, judgments are reserved and given in writing at a later date. On appeal the judges sit as a panel of three or two judges. One judge will usually be asked (by the presiding judge of the panel) to write the first draft judgment. Oral judgments on appeal are rare (about 15% of cases only). Other judges can dissent, in which case they must prepare their own reasons for doing so. In the Supreme Court the judges regularly sit in panels of five although panels of up to 11 are possible. In the Supreme Court there can be one judgment or as many as there are judges on the panel. Dissenting judgments are more common in the Supreme Court than in the Court of Appeal. The doctrine of ‘binding precedents’18 has played an important role in the development of the methodology of judicial reasoning in England and Wales. 18

The topic is complicated. Essentially a principle of law established in a decision of a superior court must be followed by a court of co-​ordinate jurisdiction and all inferior courts.

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Statutory law has, however, grown in volume and importance as a primary legal basis for legal claims, and the doctrine of precedent has been loosened during the past decades. The traditionally passive judge has gradually been replaced by a multi-​functional service provider. In civil cases this service ranges from small claims track where arbitration is an option, to fast track to multi-​tracks designed for more complex cases, cases involving significant values or cases that need to be managed with certain flexibility.19 As more and more evidence now consists of written material, the character of case management has changed. The preparatory stage has become more important, and the judge’s role in ‘case management’ is now very active. Although all civil hearings are ‘adversarial’ between the two parties, in cases where one or both parties are not legally represented, the judge tends to work more actively as an interrogator during the oral hearings.20 Judges go on training courses when in post from time to time particularly if there has been an important new piece of legislation e.g. reforming the sentencing law. There is no formal system of support between colleagues, but it is expected that if one colleague has a problem that requires discussion then he may consult a colleague on an informal basis and there is a high degree of collegiality within each judicial corps. 5.2.5 Codes of Professional Conduct Since 2003 judges in England and Wales have had a professional Code of Conduct set out in the Guide to Judicial Conduct, revised in March 2019.21 The guide is not a binding code. According to the foreword, the ambition is ‘not to prescribe a detailed code but to offer assistance to judges on the types of issues they might encounter and to set out principles from which they could make their own decisions and so maintain their judicial independence’. The three fundamental principles set out in the guide for judicial conduct are those of judicial independence, impartiality and integrity. The guide also provides guidance to permissible activities outside the courts, such as involvement in commercial enterprises or community organisations and the acceptance of gifts or hospitality. Extrajudicial activities might be more widespread and Thus Supreme Court decisions bind the Court of Appeal and below. Technically the Supreme Court is not bound by its own decisions but usually follows them. The Court of Appeal is bound by its own decisions and all inferior courts must follow Court of Appeal decisions. 19 Bell, ‘The English judiciary in comparative perspective’, (n 1) 306. 20 ibid. 307. 21 See Courts and Tribunals Judiciary, ‘Guide to Judicial Conduct’ (2019) https://​www. judiciary.uk/​wp-​content/​uploads/​2018/​03/​Guide-​to-​Judicial-​Conduct-​March-​2019.pdf (accessed 1st April 2020).

68 Richard Aikens necessary to give guidance to in a professional model where all judges have long experience from and connections to other legal practices. Salaried judges are however, prohibited by law from undertaking any kind of political activity or having ties with a political party.22 5.2.6 Evaluation of Conduct and Measures against Misconduct There is no formal system of evaluation of judges in England and Wales and there are no regular (or irregular) reports on judges’ work. Evaluation of a judge occurs when promotion is sought because, inevitably, the qualities of the judge then have to be evaluated carefully. However, there is a system for investigating any alleged personal misconduct of a judge. The Lord Chief Justice and the Lord Chancellor are jointly responsible for considering and determining complaints about the personal conduct of all judges in England and Wales.23 They are assisted in this task by the Judicial Complaints Investigations Office (jcio), which is an independent statutory body.24 In order to emphasise that judicial independence is not at stake, the Judicial Complaints Investigation Office states in bold types on its website that it does not accept complaints about a judge’s decision or the way a judge has managed a case. The jcio deals with complaints of personal misconduct, e.g. racist remarks, inappropriate use of social media or an allegation that a judge has fallen asleep during proceedings. Statements and decisions concerning identified judges are openly published on the jcio website. 5.2.7 Assistance and Salary Traditionally, the use of judicial assistants for judges has been reserved to the highest levels of courts, that is the Court of Appeal and the Supreme Court.25 However, new judicial assistant schemes are just being introduced to the High Court. Judicial assistants may do legal research and organise the papers for the judge, but duties differ from judge to judge. The judicial assistant will play no part in either arriving at the decision or in preparing the judgment. In the Court of Appeal and the Supreme Court, judicial assistants will help with applications for permission to appeal, especially in cases where one or both parties is not legally represented or the case is particularly heavy. 22 Constitutional Reform Act (2005) section 137. 23 See Constitutional Reform Act (2005) part 4. 24 See Judicial Conduct Investigations Office, https://​judicialconduct.judiciary.gov.uk (accessed 1st April 2020). 25 In 2018 there were 25 judicial assistants in the Court of Appeal and 8 judicial assistants in the Supreme Court.

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Judicial salaries are set by the government of the day, on the basis of recommendations made by the Senior Salaries Review Board, (ssrb) an independent body. The funds for judicial salaries come from the Treasury. Over the last decade successive governments have not adopted the recommendations of the ssrb because of the need for financial stringency. Increases in judicial salary have therefore been restrained and less than the rate of inflation in most years. Judicial pensions are determined by Act of Parliament and subordinate legislation pursuant to the relevant Act. There have been successive changes to the judicial pension schemes over the last 13 years and the present system has been challenged in the courts by a group of judges who allege that it is contrary to Article 1 of the First Protocol of the echr. Conditions of employment are laid down in the individual contracts concluded between the judge and the Ministry of Justice (on behalf of the Crown) upon appointment. However, many terms are standard, such as holidays, sick leave and retirement age. 5.3

The Court in Social and International Context

As mentioned in section 5.1.1, the decrease in legal aid over the past years is one of the major challenges to the court system in England and Wales. Within the criminal sector of justice, the arrangement for legal aid still works fairly well. All defendants who cannot afford to pay for representation are granted legal aid, but there have been significant cuts to the sums paid to lawyers who represent clients in criminal trials. In civil cases there is now very little legal aid provided by the government, save in relation to issues such as immigration, extradition and some administrative law cases (social security payments for example). In family cases there is still a system of legal aid but there have been major cuts to that as well. Despite this, there are few complaints about the system as a whole. Complaints are mostly about inefficiency in case management: The court system is considered too slow and generally overburdened with work. Recently there have been criticisms by politicians and others in the media about ‘unelected judges’ who are alleged to interfere with the work of elected politicians. A particularly notorious instance was the headline ‘Enemies of the people’ in a daily newspaper after a decision concerning the question whether a notice under Article 50 teu (decision of member state to leave the EU) could be made by the executive alone or had to be sanctioned by an Act of Parliament. There is a Judicial Press Office which deals with enquiries from the media and assists judges who wish to communicate matters to the media e.g. the dissemination of a speech or an article. Senior judges such as the Lord Chief

70 Richard Aikens Justice or President of the Supreme Court have occasional press conferences with the media. England and Wales (and other parts of the UK) are bound to accept decision from the European Court of Human Rights (ECtHR), and were until 2020 bound to accept decisions from the Court of Justice of the European Union (ecj). Amongst the population the attitude towards international courts is ambivalent. While Great Britain left the EU in 2020, and consequently will no longer be bound by decisions from the ecj, the decisions of the ECtHR are and will remain very important on all human rights issues within the UK.

Acknowledgments

Richard Aikens is Former Lord Justice, Court of Appeal of England and Wales. Answers to the questionnaire are with his consent edited and supplemented with available data from European data surveys (cepej, encj, ccje) and scholarly literature to optimise the comparison with the other court systems in this volume.

­c hapter 6

Norway Ragna Aarli and Wenche Elizabeth Arntzen 6.1

The Court System and Most Recent Reform

6.1.1 Introduction The court system in Norway serves the second smallest population in our survey, managing cases in a nation having only 5.3 million people.1 The legal system is usually perceived as a mixed system, blending features of civil and common law. The Norwegian judiciary is rooted in the world’s second oldest current written constitution, the Constitution of the Kingdom of Norway dated 17 May 1814, giving the Supreme Court the status as a third branch of state powers.2 However, judicial independence was not explicitly constitutionally ensured until 2014 when a human rights catalogue, including the right to a fair trial and a requirement that the authorities of the state must ensure the independence and impartiality of the courts and the members of the judiciary in Article 95 were incorporated in the Constitution. Courts other than the Supreme Court and the Court of Impeachment are still not mentioned in the Constitution.

1 cepej Studies No. 26 (2018) 12. Available sources of the Norwegian court system in English are relatively scarce but see the account for administration and quality work in the courts of Norway in comparison to Germany, the Netherlands and Switzerland in Philip Langbroek and Mirjam Westenberg, Court Administration and Quality Work in Judiciaries in Four European Countries. Empirical Exploration and Constitutional Implications, Schriftenreihe zur Justizforschung (vol 9, Stämpfli Verlag/​Nomos Verlag/​Verlag Österreich, Bern/​Baden-​Baden/​ Wien 2018)  193–​233. For more literature on developments in the Norwegian court system and the role of the judge in general, see inter alia Gunnar Grendstad, William R. Shaffer, Jørn Øyrehagen Sunde and Eric N. Waltenburg, Proactive and Powerful. Law Clerks and the Institutionalization of the Norwegian Supreme Court (Eleven International Publishing 2020), Anine Kierulf, Judicial Review in Norway -​A Bicentennial Debate (Cambridge University Press 2018), Gunnar Grendstad, William R. Shaffer and Eric N. Waltenburg, Policy Making in an Independent Judiciary: The Norwegian Supreme Court (ecpr Press 2015) and Nils Asbjørn Engstad, Astrid Lærdal Frøseth and Bård Tønder (eds), The Independence of Judges (Eleven International Publishing 2014). 2 See chapter D in the official English version available at Ministry of Justice and Public Security, ‘The Constitution of the Kingdom of Norway’ (2018) https://​lovdata.no/​dokument/​NLE/​ lov/​1814-​05-​17 (last visited 30 March 2020).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_007 .

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The court system in Norway is under reform. A Court Commission was appointed in 2017 to propose a reform of the lower courts in Norway, and suggestions to improve the Constitution so as to better guarantee judicial independence are included in the mandate.3 The reform agenda resembles certain issues from the last court reform, implemented in 2002, establishing the Norwegian Courts Administration (nca) and decreasing the number of first instance courts.4 The use of new technology to make case management more efficient is also on the reform agenda. An important challenge to the Norwegian court system currently is prolonged time spent on processing cases in some courts. Before 2002, the Department of Court Administration (Domstolsavdelingen) within the Ministry of Justice (Justisdepartementet, jd) was in charge of the central administration of the ordinary courts in Norway. The establishment of an independent agency, the Norwegian Courts Administration (nca) in Trondheim, designed to ensure greater independence from the executive and legislative powers, was the most important result of the 2002 reform. However, a number of other important changes to the court system were introduced with the 2002 reform:  A new procedure of appointing judges (independent, separate body), a new complaint and disciplinary procedure for judges, a reduction in the use of temporary judges and legislative regulation of the judges’ extra-​judicial activities. The official registration of extra-​judicial activities among judges was also moved from the courts. In addition to the aforementioned amendments, the reform included changes to both the functional responsibilities of the courts and the division of the judicial districts; inter alia, the number of first instance courts was reduced significantly (from 99 to 66). The main arguments for the major organisational changes implemented in 2002 have been highlighted by a representative for the nca in the following way: –​ ‘Its correlation to the organisation of other parts of the administration of justice. The Ministry of Justice had been undergoing considerable changes during the 90’s in the form of a delegation of major administrative tasks and work related to individual cases. Since the new Police 3 The mandate is only available in Norwegian, see Domstolkommisjonen, www.domstolkommisjonen.no/​mandat/​. 4 Essentially as proposed in two national reports, nou 1999:  19 Domstolene i samfunnet (Courts in society) and nou 1999: 22 Domstolene i første instans –​Førsteinstansdomstolenes oppgaver og struktur (Courts in first instance –​Tasks and structure of 1st instance courts).

Norway

–​

–​ –​

–​

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Directorate was established and the Administration of the Care and Confinement of Prisoners was regionalised, the courts until 2002 remained one of the last major, nation-​wide public services still under direct ministerial administration. The objectives of the reorganisation of the Ministry of Justice, general views on administration policy and the role of the ministries made it unlikely that the National Courts Administration, responsible of a series of specialised tasks, would continue to be a part of the Ministry of Justice. The need for a clear division between the courts and the ministries. One objection put forward against the prior regime of court administration was that the State, represented by the Government administration, was party to a large number of court cases, while at the same time being administratively superior to the courts. The views of institutions and organisations consulted. A majority of the institutions that received the matter for general review and consultation supported the proposal of the Courts Commission. Greater legitimacy in relation to the courts. It had been argued that a new and independent National Courts Administration would have greater legitimacy and weight than the Ministry of Justice should it be necessary to intervene against ill-​judged administrative practices at a specific court. In particular, the Ministry of Justice had shown reservation in handling complaints against judges, having taken into consideration the independent position of the courts. The organisation of National Courts Administrations in Denmark, Iceland and Sweden. In Denmark and Iceland, reforms had been implemented in the work of the court administration, resulting in a greater degree of independence. Sweden has had for many years its own court administration (Domstolsverket) with considerable freedom of action in relation to the Swedish Ministry of Justice.’5

The reform is generally considered to be successful; inter alia, the courts’ independence has become more visible. The mandate of the Norwegian Commission of the Courts reflects a desire to continue and further develop the 2002 reform, not to reverse it. Strengthening the constitutional protection of courts is included in the order for reform considerations. 5 See senior adviser National Courts Administration Arvid Rosseland (ed), ‘Presentation of the National Courts Administration and the Norwegian Courts Reforms of 2002’ (2007) 51 609–​628. The full text is accessible at www.scandinavianlaw.se/​pdf/​51-​30.pdf (accessed 1st April 2020).

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6.1.2 The Court Structure The Courts of Justice Act sets out the framework for the Norwegian judiciary.6 The ordinary courts consist of three instances listed from the top to the bottom in Section 1 of the Courts of Justice Act: ‘1. The Supreme Court, 2. The Courts of Appeal, 3. The District Courts.’ There are 60 district courts (tingretter), 6 courts of appeal (lagmannsretter) and 1 Supreme Court (Høyesterett) in 2020. A considerable decrease has been proposed in the number of court organisations on the district level, but the number of court locations will most likely continue to be high.7 Courts on all levels are general courts with competence to hear both civil and criminal cases, and all three levels can rule on the constitutionality of legislation and regulation. The procedural framework for civil cases is set out in the Dispute Act (Act relating to mediation and procedure in civil disputes) of 17 June 2005 no. 908 and the procedural framework for criminal cases is given in the Criminal Procedure Act of 22 May 1981 no. 25.9 Many civil disputes are considered initially by the Conciliation Boards (forliksråd), which are found in every municipality and consist of laypeople. The ordinary courts are supplemented by special courts, including the single Labour Court (Arbeidsretten) dealing with collective agreements and 34 local land consolidation courts (jordskiftedomstolene). However, Norway has fewer special courts than most other comparable countries, and judges in the general courts rule on almost all types of cases. The disposition time of civil and litigation cases, including administrative cases, was 161 days in 2016, considerably below the European average (of 233)  and the median (of 192)  and has been relatively stable during the past decade.10 The number of pending criminal cases per 100 inhabitants was 0.10 and close to the minimum (0.3) in Europe.11 The average disposition time for

6 7

Act Relating to the Courts of Justice of 13 August 1915 no. 5 (domstolloven). In their first official report, nou 2019: 19 Domstolstruktur [Court Structure] the majority of the Court Commission recommended to reduce the number of District Court organisations to 22 and the number of permanently staffed locations to 30. The recommendation to reduce the number of court locations has not been well received among politicians. 8 Official English version available at Ministry of Justice and Public Security, ‘Act relating to mediation and procedure in civil disputes’ (The Dispute Act) (2019) https://​lovdata.no/​ dokument/​NLE/​lov/​2005-​06-​17-​90 (accessed 1st April 2020). 9 The latest official version available at Ministry of Justice and Public Security, ‘The Criminal Procedure Act’ https://​app.uio.no/​ub/​ujur/​oversatte-​lover/​data/​lov-​19810522-​025-​ eng.pdf (accessed 1st April 2020) has not been updated since 2006. 10 cepej Studies No. 26 (2018) 250. For reflections of the methodological difficulties with the use of cepej data in comparative analysis, see Chapter 1, section 1.3.5. 11 ibid. 314.

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criminal cases in first instance was 73 days, which is on a par with England and considerably below the average (of 138 days) in Europe.12 6.1.3 Court Administration The Norwegian Courts Administration (nca), established in 2002, administers the ordinary courts and the land consolidation courts. It has a steering role as well as an administrative role, including a superior employer function, and actively works to enhance confidence in the courts.13 On its website, the nca lists its purpose as ‘to enable the courts to deal with challenges presented before them’ and illustrates their service goals as ‘providing the support necessary for judges and staff to carry out their roles and to deliver justice efficiently and effectively.’14 It is within the mandate of the current Court Commission to consider whether the relationship between three states of power should be reformed and how the relationship between the nca and the body of courts should be regulated in the future. At present, the Parliament (Stortinget) sets aims and objectives and draws up the annual budget for the courts and the nca. The nca and the Ministry of Justice hold regular meetings on matters related to allocation of resources and amendments of rules governing the courts, and the nca acts as a supplier of terms in relation to the government’s annual budgetary process. Although neither the Parliament nor the Ministry of Justice is in a position to instruct the nca with respect to administrative matters, constantly low budgets allocated to the courts have limited the scope of action for nca and the courts. Inter alia, investments in technology for court rooms, e.g. for video-​protocol court cases, has been slow due to lack of resources. Following the Parliament’s budget bill, the nca allocates the annual budget to the courts. As most of the budget covers salaries for permanent staff, including irremovable judges, most of the budget  allocation is fixed. The nca is responsible for the courts’ finances, finance strategies, allocation of resources and cost-​effective measures. The nca also acts as the courts’ central accounting unit and manages the estate. Many of the present 60 district courts are located in buildings considered inadequate for court service in the 21st century with court rooms poorly equipped for digital services. 12 13 14

cepej Studies No. 26 (2018) 312. These are the four tasks highlighted on the website presentation, see Norwegian Courts Administration, www.domstol.no/​en/​Norwegian-​Courts-​Administration/​ (accessed 1st April 2020). Norwegian Courts Administration, www.domstol.no/​en/​Norwegian-​Courts-​Administration/​ (last accessed 1st April 2020).

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The main responsibilities for legal consultation papers and legislation related to the courts are vested in the Ministry of Justice. However, the nca can suggest amendments to laws and responds to consultation papers in the public hearings of proposed new legislation. Furthermore, the nca is responsible for organisational and leadership training, and for staff policy initiatives such as recruitment, wage negotiations, working environment, safety and readiness. The tasks include strategic development and administration, with emphasis on counselling and supervision. 6.2

The Role and Working Conditions of the Judge

6.2.1 General The number of full-​time professional judges in Norway was 560 in 2019, which amounts to a rather low density of 11 judges per 100,000 inhabitants in comparison with Europe in general.15 In addition, there are approximately 175 deputy judges. Deputy judges are legally qualified persons who are temporarily appointed to a court for a period of 2–​3 years.16 The arrangement is used only in the courts of first instance and was introduced in order to give law graduates practical experience in the courts. The deputy judges preside over proceedings in court and decide cases just like other judges, but there are certain restrictions on what kind of cases they can consider, e.g. they are not allowed to preside over criminal proceedings concerning an offence carrying a penalty of six years’ imprisonment or more as the minimum statutory sentence. Deputy judges constitute one third of the judicial staff in the district courts. Recommendations to gradually reduce the number of deputy judges were not followed up after the 2002 reform. The issue to limit the use of temporary judicial positions therefore continues to be on the agenda for the current court reform. Judges are generally highly respected in Norwegian society. The female proportion of 41% in the total population of judges, and of 44 % in first instance is low compared to bureaucratic judiciaries,17 but rather high when compared 15 Cf. NCA Annual Report 2019 and cepej Studies No. 26 (2018) 103. The low number should however be understood in the context of an increasing amount of public boards and committee that deal with administrative cases. For more details, see Anna Nylund, ‘Comparing the Efficiency and Quality of Civil Justice in Scandinavia: The Role of Structural Differences and Definitions of Quality’ (2019) Civil Justice Quarterly (38) 427–​439. 16 The fixed period of two years with a possibility for one-​year prolongation is regulated in the Courts of Justice Act § 55g first and second paragraph. 17 cepej Studies No. 26 (2018) 114.

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to other systems which appoint judges based on their professional merits, such as England and Wales. A female representation of 33% in the Supreme Court is at the median in Europe.18 6.2.2 The Judicial Career To become a judge, a master’s degree in law is required.19 Master’s study programmes in law are currently offered at only three universities in Norway (in Oslo, Bergen and Tromsø). The degree normally requires five years to complete. There is no separate or additional legal education for judges. Judges working at land consolidation courts are not lawyers but have a master’s degree (five years) in land consolidation. According to Section 53 of the Courts of Justice Act, ‘[j]‌udges must be Norwegian citizens, men or women, who are trustworthy and who have not been deprived of their right to vote in respect of public affairs.’ The right to vote in general elections is based on citizenship is a strongly protected human right in Norway. The Norwegian Election Law Committee has in NOU 2020: 6 proposed to abolish Art. 53 in the Constitution which provides a lawful basis for deprivation of the right to vote today. The professional model of judiciaries typical for common law systems, described in the previous chapter,20 are expressed in Section 55 second paragraph of the Courts of Justice Act: Judges should be appointed from among persons who satisfy exacting requirements concerning professional qualifications and personal characteristics. Judges sitting in the Supreme Court, the courts of appeal and the district courts should be recruited from among lawyers with varied professional backgrounds. The background of judges is therefore rather diverse; the appointees are inter alia advocates, scholars and civil servants. Section 54 of the Courts of Justice Act sets various minimum age thresholds for different judicial positions that are far from what occurs in real life. According to the law, deputy judges must be at least 21 years old; district and appellate judges must be at least 25 years old, and Supreme Court judges must be at least 30 years. In real life, few deputy judges are younger than 30 years old, and few lawyers younger than 40 are appointed to district courts, appellate courts or the Supreme Court. Newly appointed judges are on the average 40–​45 years of age. 18 ibid. 19 See Courts of Justice Act § 53. 20 Se Chapter 5, section 5.2.2 for the judicial career of judges in England and Wales.

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Since 2002, all permanent vacancies have been publicly announced and applications submitted for the positions have been assessed by the Judicial Appointments Board (Innstillingsrådet for dommere). The board has seven members and consists of three judges, one advocate, one jurist employed by the public sector and two members who are not jurists.21 If the appointment concerns the land consolidation courts, one of the judges is replaced with a land consolidation judge and the jurist from public sector is replaced with a candidate with education in land consolidation. The board submits a recommendation to the Ministry of Justice, which normally concurs with the recommendation. The Minister of Justice submits the nomination to the King in Council, which is the formal authority for the appointment. The King in Council, i.e. the government, is expected to endorse the nomination. The nca operates as the board’s secretariat. Like in England and Wales, it is not a tradition to consider a ‘judicial career’ within the court system,22 but at present this attitude seems more appropriate in the Norwegian than the English judiciary. When a judge has been finally appointed, the Norwegian judiciary offers little variety in positions and tasks. Appointment to the position of deputy judge can be considered an ‘admission ticket’ to the Norwegian judiciary, but being a deputy judge for two to three years is neither sufficient nor necessary to be appointed judge at a later stage in the career as a lawyer. There are some career movements of personnel between District Courts and Appeal Courts (both ways) and from the Appeal Courts to the Supreme Courts (one way), but neither of these career movements are to be considered as ‘promotions’ within the system. A judge’s tenure lasts at the outset until retirement at the age of 70. Appointment can otherwise be terminated only on the basis of a formal judgment from the courts, after due process and on grounds of gross misconduct in service. 6.2.3 Case Assignment Pursuant to Section 19 of the Courts of Justice Act, all District Courts must have a Chief justice, and the Chief Justice shall distribute the cases between the judges in the court. Except for in the Supreme Court, case assignment is not necessarily randomly decided but also based on criteria such as experience and qualification. A need for regulated case assignment is justified based on the fact that judges are not specialised but have varied professional backgrounds and experience. Less objective and transparent criteria such as suitability and

21 The Courts of Justice Act § 55a first paragraph, second sentence. 22 See Chapter 5, section 5.2.2.

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capacity are also frequently used in case assignment in district courts and has been approved by the Chief Justice of the Supreme Court.23 The acceptance of the non-​transparent system of case assignment in lower courts in Norway, not only by the judges but also by the parties, reflects the high trust in the Norwegian court system in general. When a judge is assigned to a case, he or she is the responsible judge and is thereby responsible for the management of the case. The Chief Justice cannot interfere with the management or decision of a specific case. 6.2.4 Judicial Performance and Training The working methods of judges vary a lot depending on the type of case, the instance the judge sits in, and whether the judge rules alone, with other judges or with lay judges. As a general rule, one professional judge manages cases of civil and criminal matters in the district courts and three professional judges manage cases of civil and lesser criminal matters in the courts of appeal. The professional judges, however, do not preside over contested criminal cases alone. Unless the defendant has pleaded guilty, lay judges are always in the majority. Contested criminal offences are heard before a panel of one professional judge and two lay judges in the district courts. In the courts of appeal, a mixed panel of two professional judges and five lay judges decides on both the question of guilt and the sentencing. A similar mixed panel will also hear sentencing appeals concerning offences carrying a minimum penalty of six years of more. Appeals limited to points of law or forms of procedure are decided by professional judges alone. The Supreme Court usually sits in panels of five judges unless the case involves Constitutional matters, conflicts with international law or conflicts with the Supreme Court’s previous practice. Precedents are not considered formally binding but departures from precedents require strong justification. In the previously mentioned alternatives, the Supreme Court will sit in a Grand Chamber (storkammer) of 11 judges or in a Plenary (plenum) of all 20 judges. Consequently, Supreme Court is not bound by its precedents.24 Case law is nevertheless regarded as an important source of law, capable of serving as legal basis for a claim. The system allows judges at all levels (including the lay judges) to 23

24

In a consultative statement to a reform of the Courts of Justice Act in 2016, see Ministry of Justice and Public Security, ‘Høring –​Forslag om ny domstollov og endringer i forskrift om offentlighet i rettspleien’ (2016) www.regjeringen.no/​contentassets/​8028a6d434ef4075aead304c2aa653be/​norgeshoyesterett.pdf?uid=Norges_​Høyesterett 4–​ 5 (accessed 1st April 2020, not available in English). In contrast to the traditional common law doctrine, se Chapter 5, section 5.2.4.

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dissent. Professional judges will have to write separate opinions if they dissent and will also write the explanation given by a lay judge for dissenting. The principle of orality and immediacy, as in England and Wales, are strongly rooted in Norwegian legal culture. Cases are normally pleaded orally before the courts of all instances both in criminal and civil cases, although leave to appeal is normally required for such hearing in the Supreme Court. On full appeal, there is a retrial in the courts of appeal and evidence is regularly presented anew. The question of how the appeal procedure can be more efficiently managed is one of the important issues in the mandate of the Court Commission set up to suggest reforms of the lower courts in Norway. The Supreme Court will regularly try matters of law, procedural errors and sentencing. The culture of exchange between judges depends on what instance in the court system the judge sits. In the appellate courts and the Supreme Court, the judges are never alone in deciding the case on its merits, and a culture of exchange and support follows naturally from this working method. A culture of exchange of views is strong in all instances, including the district courts where judges sit with lay judges in many cases. Judges are generally perceived to be open to discussing matters with colleagues. A newly appointed judge is now offered an initial training period of one year after commencement of service, and this includes a structured local introduction to the relevant court, a national introductory programme in five modules and other local or regional training sessions. An annual conference is held for all judges, in addition to different national, regional and local initiatives. A judge is offered further training after appointment, but is not obliged to attend. 6.2.5 Codes of Professional Conduct In addition to the statutory regulations of judicial conduct, ethical principles for Norwegian judges were adopted jointly by the Norwegian Association of Judges, Tekna’s Sector Union for the Land Consolidation courts and the National Courts Administration in 2010.25 The principles apply accordingly to the professional judges in the ordinary courts and to judges in the land consolidation courts and are applicable both within and outside the adjudicatory role. The aim of the principles is to provide the judges with guidelines by which they are able to act in a manner that strengthens the public’s trust in the courts and their decisions and to indicate what is good professional practice. 25

See Norwegian Association of Judges, ‘Ethical Principles for Norwegian judges’ (2010) www.domstol.no/​globalassets/​upload/​da/​internett/​domstol.no/​domstoladministrasjonen/​internasjonalt/​ethical-​principles-​for-​the-​proper-​conduct-​of-​norwegian-​judges. pdf (accessed 1st April 2020).

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The ethical principles are the result of an initiative in 2006 when the Ministry of Justice set up a working group with a mandate to draft a code of ethics for judges. In the subsequent consultation round, there were objections to the form, extent and parts of the proposal. Based on the feedback in the consultation statements, the Ministry of Justice appointed a committee to continue the work on drafting an ethical framework. The committee agreed upon the following scopes and limitations for the ethical principles for judicial conduct based on the following criteria: 1) The principles are key principles for judicial behaviour, 2) The principles do not aim to form the basis for the Supervisory Committee’s disciplinary treatment, 3) The principles do not regulate matters that are regulated in the procedural law and 4) The principles do not regulate internal labour matters. Fifteen key principles are listed, among them general expectations of ‘independence’ (principle 2), ‘impartiality’ (principle 3), ‘integrity’ (principle 4) and ‘equality’ (principle 5). Other principles are more specific, e.g. principle 9 on ‘competence’:  ‘Judges should maintain and enhance their professional competence and skills’, principle 12 on ‘Judges’ relation with the media’: Judges should respect the media’s role in the courts, and should provide the public with information concerning the cases that are dealt with by the courts and principle 15 on ‘Collegial intervention’: ‘Judges that become aware of violations of these ethical principles committed by colleagues, should address this in a suitable way, and intervene when substantial violations occur.’ There is no statutory prohibition against membership in political parties for Norwegian judges and the ethical guidelines do not directly address the issue. 6.2.6 Evaluation of Conduct and Measures against Misconduct There is no formalized evaluation system for Norwegian judges. The public’s general trust in the courts is annually surveyed, and more than 80% answer that they trust the court system highly or fairly high. Section 55 of the Courts of Justice Act requires that judges perform their service in an impartial manner and in a manner that implies general trust and respect. A  judge may be reported to the Supervisory Committee for Judges (Tilsynsutvalget for dommere),26 an independent body that can impose disciplinary action if a judge intentionally or negligently violates the duties that

26

See Supervisory Committee for Judges, www.domstol.no/​en/​Supervisory-​Committee-​for-​ Judges/​(accessed 1st April 2020).

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the position entails or otherwise acts contrary to good professional conduct, cf. Section 236 first paragraph of the Courts of Justice Act. 6.2.7 Assistance and Salary Law clerks have been introduced during recent decades to support judges in higher courts in the court system. The Supreme Court has a Legal Secretariat with 23 clerks.27 The clerks primarily assist the Supreme Court’s Appeals Selection Committee (consisting of Supreme Court justices, on a rotation basis), inter alia with the assessment of whether leave to appeal should be granted (a requirement for the Supreme Court to assess appeals against judgments on the merits). The clerks may also assist the justices before, during and after the subsequent oral proceedings before one of the two divisions of the court, but the extent of such assistance varies. The clerks never draft judgments for the justices. Appeals against preliminary and procedural rulings and other decisions are normally resolved by the Appeals Selection Committee after written proceedings, and in these cases the clerks assist to a greater extent, providing the sources of law needed in the decision on the merits. Two of the appellate courts also have law clerks to support the judges’ daily work. Their assistance varies greatly. Their function is currently under assessment, and it is being debated whether or not the appellate courts should have law clerks on the model of the Supreme Court. For judges in the district courts and the appellate courts, the Ministry of Local Government and Modernisation regulates the salary for all types of positions (e.g. for judges with personnel responsibilities), and salaries are standard and not open for individual assessment. The judges’ salary is more than the double rate of the median income of a whole household in Norway,28 but the salary is far from the salaries a lawyer will have in the most successful law firms. Salary for the Supreme Court justices and the Chief Justice of the Supreme Court is regulated by Parliament and is substantially higher than the salary of a regular judge. The salary of the Supreme Court judges is based on a recommendation from the Parliament’s Presidium. Moreover, pensions and terms of employment are regulated centrally and without individual assessment. The system of regulation of salary and the like is to be assessed by the current Commission of the Courts. 27 28

For an in-​depth analysis of the role of law clerks and the institutionalization of the Norwegian Supreme Court, see Grendstad et al., Proactive and Powerful (n 1). The median income of a household in Norway was in 2018 nok 510,000 or 52,730 eur, see the national statistics on Statistics Norway, ‘Income and wealth statistics for households’ (2018) www.ssb.no/​en/​inntekt-​og-​forbruk/​statistikker/​ifhus (accessed 1st April 2020).

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The Court in Social and International Context

Since 1980, the Legal Aid Act has guaranteed necessary legal assistance for individuals who do not have the financial resources to be able to ask for the help of the courts in cases of major personal or welfare-​related significance.29 The act includes a right to free legal advice as well as a right to free legal representation in civil cases in court. Free legal aid is in most cases based on means testing of income level for the applicant’s household and the set rate for granting legal aid has arguably been too low for many years to ensure access to court for low income households in the Norwegian society. Application for free legal aid without means testing is limited to specific cases, e.g. foreigners who are parties in a case against the immigration authorities or persons who are parties in a case against the child welfare authorities.30 In specific cases, the courts may also provide certain guidance connected to the merits of the case, but such guidance is to be provided under the judge’s discretion, and it is normally quite limited. The Norwegian judiciary is highly trusted and public criticism of courts, court decisions and judges is infrequent. Despite the fact that the Norwegian court system is fairly effective by comparison with the disposition times of other European court systems, processing time is frequently criticised and discussed among both legal professionals and the public at large. The nca has an Information and Public Relations department and has established a Judges’ Media group to support journalists in search of information about court cases in general.31 The Media group is presented on the information website as volunteers expressing their own opinions. This group consists of judges who have specially undertaken to make themselves available to journalists. They can help the media when statements or explanations are needed from a judge. The objective is a desire to contribute to openness and greater awareness of the courts amongst the general public. The members of the group do not represent

29 30 31

Cf. Act relating to free legal aid 13 June 1980 no. 35 § 1. An official, but not updated English translation of the act is available at https://​app.uio.no/​ub/​ujur/​oversatte-​lover/​data/​lov-​ 19800613-​035-​eng.pdf (accessed 1 April 2020). The exceptions for means testing for free legal advice are listed in § 11 first paragraph no. 1–​8 and the exceptions for means testing for free legal representations are listed in § 11 first paragraph no. 4, 5 and 7 and § 16 no. 1–​6. See the Courts of Norway, ‘Media Judges’ www.domstol.no/​en/​Press-​services1/​media-​ judges/​ (accessed 1 April 2020), see also Ragna Aarli, ‘Independent Judges and Their Relationship with the Media’ in Nils A. Engstad et. al (eds), The Independence of Judges (n 1) 327–​344.

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the opinions of the Norwegian courts, individual courts or other judges, but explain the legal system and decisions on their own behalf. In addition, courts of a certain size have their own personnel designated as media contacts. The Supreme Court has its own Information Officer.32 In recent years, the judiciary has generally become more aware of the importance of communication with the media and the public. Inter alia, several courts have Facebook and Twitter accounts to communicate more efficiently with the journalists and the general public. Norway is part of the European Council and is bound to accept the decisions from the European Court of Human Rights. Although Norway is not a member of EU, decisions from the European Court of Justice (ecj) interpreting EU law implemented in Norway through the European Economic Area (eea) agreement are relevant sources of interpretation in Norway. Outside the EU and inside the eea agreement, Norway is bound to the second pillar of supervision and judicial control, i.e. the European Surveillance Authorities and the efta Court operating in parallel with the European Commission and ecj. Irrespective of any personal political views the judges may have, they remain loyal to the role and influence of the international courts.

Acknowledgments

Ragna Aarli is member of the Court Commission (2017–2020) and Wenche Elizabeth Arntzen is Supreme Court Justice in Norway. Arntzen’s answers to the questionnaire are edited and supplemented with available data from European data surveys (cepej, encj, ccje), scholarly literature and data collected by the court commission. 32

See Supreme Court of Norway, ‘Press contact’ www.domstol.no/​en/​Enkelt-​domstol/​-​ norges-​hoyesterett/​Press/​Contact-​us/​ (accessed 1st April 2020).

­c hapter 7

Comparative Reflections

The Role of the Judge in the Melting Pot Ragna Aarli 7.1

Introduction

An overall hypothesis explored in this volume is that organisational structure and normative design of court systems are closely interconnected. No reform is value-​neutral, and on-​going reforms of court systems will inevitably and gradually affect the normative role of courts in the society being reformed. Court reforms also have an impact on the role of the judge. The implications of reforms on role functions of the ‘dramatis personae’ operating the system –​the judges –​can be hard to grasp from the insider’s perspective. As insiders, judges do, however, possess knowledge of practical consequences of reforms that are hard to grasp from the outsider’s perspective. Our first explorative step in the preparation of the dialogue between judges and academics was to ask judges to explain and describe the court systems of which they were part. The results have been presented in the preceding chapters. Knowledge of the actual status of each court system is necessary to enable a fruitful dialogue on how the courts in which judges have their workplace should operate and serve citizens in the future. Knowledge of the actual status is also necessary to have meaningful discussions about the boundaries of independent adjudication versus administrative court management, and about the adequate role of the judge in increasingly complex court organisations. This chapter takes the perspective of an outsider and bridges the country reports with the judges to the academic discussions in Part 3 of this book. It connects court reforms to organisational perspectives often referred to scientifically as theories of ‘court management’1 or ‘quality management of 1 See e.g. Emmanuel Jeuland (ed) Gestion du Tribunal/​Court Management. Pour un principe de coordination en matière de gestion du tribunal/​For a Principle of Coordination in Court Management, (Bibliothèque de l’Institut de Recherche Juridique de la Sorbonne –​André Tunc, irjs Éditions 2020), Andreas Lienhard and Daniel Kettinger, The Judiciary between Management and the Rule of Law. Results of the Research Project Basic Research into Court Management in Switzerland, Schriftenreihe zur Justizforschung (vol 6, Stämpfli Verlag/​Nomos Verlag/​

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_008

86 Aarli courts’.2 Court management theory places judges amid a growing number of different actors in court organisations. 7.2

Organisational Perspectives on Courts

The Swiss project ‘Basic Research into Court Management in Switzerland’ presented by Andreas Lienhard later in this volume,3 defines ‘court management’ as ‘the administrative work that creates and maintains the material and human resources that are required to carry out the work of judging’.4 In a more recent and larger study of court management on a global scale, Emmanuel Jeuland noticed that it is hard to find a generally accepted and precise definition of court management.5 Dividing the lines between general administration of the judiciary on the national level, administrative management inside a court organisation and case management within the court is not easy, but court management primarily tends to encompass the administrative means in the middle of these three managerial phases of the justice system. Jeuland’s suggestion is to define court management as ‘the administration inside the court and outside the case’.6 Leaving out the discretionary necessity test ‘required to carry out the work of judging’ makes the definition more inclusive than the Swiss definition. It also includes administrative work that is not ‘required’, but which might nevertheless improve the environment for efficient delivery of high quality judgments. Administrative work directed towards the parties and the public, improvements of the facilities of the court locations and offices for the judges and questions of specialisation are also included in the latter definition. Jeuland’s concept seems to provide a good basis for discussion in a global context. However, the examples provided of tasks belonging to court

Verlag Österreich, Bern/​Baden-​Baden/​Wien 2016). See also the early work of Patrick Maier, New Public Managment in der Justiz (Haupt Verlag 1999). 2 See e.g. Philip Langbroek and Mirjam Westenberg, Court Administration and Quality Work in Judiciaries in Four European Countries. Empirical Exploration and Constitutional Implications, Schriftenreihe zur Justizforschung (vol 9, Stämpfli Verlag/​Nomos Verlag/​Verlag Österreich, Bern/​Baden-​Baden/​Wien 2018), P.  Albers, ‘Quality Assessment of Courts and the Judiciary: From Judicial Quality to Court Excellence’ in A. Uzelac and C.H. van Rhee (eds), Access to Justice and the Judiciary. Towards New European Standards of Affordability, Quality and Efficiency of Civil Adjudication, (Intersentia 2009) 57–​74. 3 See Chapter 12. 4 With reference to Regina Kiener, Richterliche Unabhängigkeit (Stämpfli Verlag 2001) 292. 5 Emmanuel Jeuland, Gestion du Tribunal/​Court Management (n 1) Introduction, 14. 6 ibid. 11.

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management illustrate that the burden of court management in this sense –​ the administrative needs ‘inside’ a court –​depends heavily on the organisational size of the court: […] court management deals with leadership inside a court, the relationship between the judges and court staff, the allocation of cases, the evaluation of judges and court staff, the court budget, the real estate, the maintenance and security of the building, the new technology, human resources and judicial communication.7 In court systems with small organisations, such as the systems in Norway, many of these issues are not dealt with ‘inside the court’ alone but are initiated from a national level as an issue of administration of the judiciary. In China, as Lei Du will explain later in this volume, leadership inside a court is not clearly distinct from case management.8 Because this chapter primarily aims to discuss how the application of organisational measures inside courts influences the role and working conditions of the judge based on very different court systems as a framework for the country reports, there is no need to draw sharp lines between the three managerial phases of the judiciary. The core of the concept is still the administrative work carried out inside court organisations to facilitate efficient and high-​quality judicial decision-​making. Neither of the definitions of court management discussed above demarcates the threshold onto case management, that is, neither definition clarifies what ‘outside’ the case and ‘the work of judging’ actually mean. This is indeed a delicate issue. Most research on court management cautiously circumvents the organisational perspective on courts with respect to the independent role of courts and judges in constitutional democracies.9 Contrary to the Chinese model, judicial independence in Europe means not only that the judiciary has to be safeguarded from undue influence from the executive and legislative powers as well as from the general public, but also that the individual judge is internally independent. The European Court of Human Rights has expressed that internal judicial independence requires that every judge be ‘free from directives or pressures from the fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president 7 ibid. 8 See Chapter 9. 9 See e.g. Langbroek and Westenberg, Court Administration and Quality Work in Judiciaries in Four European Countries (n 2) 7 and Lienhard and Kettinger, The Judiciary between Management and the Rule of Law. (n 2) 7.

88 Aarli of a division in the court […]’.10 It is anticipated that the absence of safeguards securing the individual judge ‘within the judiciary and, in particular, vis-​à-​vis their judicial superiors’,11 may lead to doubts as to the independence and impartiality of the court. The growing concern about internal judicial independence from ECtHR12 has been referred to as a barely noticed ‘judicial design agenda’,13 which means that the international court now makes demands on the domestic design of court structure and organisation that it has abstained from making previously. Although the European Court of Justice is generally accepted as a supranational court among the EU member states, similar concerns for internal judicial independence from ecj are also relevant. It is not an easy task to draw the line between the administrative acts that interfere with internal independence of the single judge in the decision-​ making process and those which clearly do not. Allocation systems for cases, evaluation and award systems for judges are examples illustrating that managerial concerns about optimal utilisation of human resources may impinge on safeguards for internal judicial independence. Court managers may often find themselves incapable of acting like managers of other organisations. As the next section shows, objectives and indicators for measuring high quality management in public administration are nevertheless increasingly adopted and applied to courts. 7.3

Targets and Performance Indicators for Court Management14

International organisations such as the oecd and the World Bank monitor certain quality indicators of justice systems on a worldwide basis. In Europe, efforts to improve mechanisms to measure the court service offered in each state have recently become more targeted and far more detailed.15 The Council 10

11 12 13 14 15

See ECtHR 22 December 2009, Case No. 24810/​06 Parlov-​Tkalcic v. Croatia, para 86. For a more detailed analysis of the concept of internal judicial independence, see Joost Sillen, ‘The Concept of ‘Internal Judicial Independence’ in the Case Law of the European Court of Human Rights’ (2019)15 European Constitutional Law Review 104–​133. ECtHR 22 December 2009, Case No. 24810/​06 Parlov-​Tkalcic v. Croatia, para 86. The issue was, however also taken up by the Council of Europe Council of Ministers: See Recommendation (2010)12: Judges: independence, efficiency and responsibilities, para 22. David Kosař and Lucas Lixinski, ‘Domestic Judicial Design by International Human Rights Courts’ (2015) 109 The American Journal of International Law 714. Some passages in section 7.3–7.6 are also published in my conclusionary contribution to Emmanuel Jeuland (ed) Gestion du Tribunal/​Court Management (n 1) 277–​286. For a more worldwide account of the development, see P. Albers, ‘Quality Assessment of Courts and the Judiciary’ (n 2).

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of Europe, for instance, established the European Commission for the Efficiency of Justice (cepej) in 2002 to improve the efficiency and functioning of justice in the member states. The organisation has produced checklists, guidelines, good practice guides and policy documents for court management that address the quality of justice at the national level, the court level and the level of the individual judge.16 As mentioned in Chapter 1, section 1.3.5, there are weaknesses in the methodology of collecting data, and pitfalls in the interpretation of the benchmarking results provided. However, the data collection still provides highly valuable information that can be used to identify tendencies, developments and ‘best practice models’ within the justice management sector. Truly, cepej stresses that it is ‘impossible to give an aprioristic view of what a good system should look like’ because the ‘different aspects of a justice system which functions well are strongly connected with the characteristics of each national judicial system’.17 Within the EU, the European Network of Councils for the Judiciary (encj) was established in 2007 with the objective of, inter alia, exchanging information between member states on ‘how the judiciary is organised and functions’.18 Membership in the encj is open only to ‘national institutions of Member states of the European Union which are independent of the executive and legislature, or which are autonomous, and which ensure the final responsibility for the support of the judiciary in the independent delivery of justice’.19 Neither Germany nor Norway has institutions that comply with these criteria, and the Federal Ministry of Justice in Germany and the national Courts Administration in Norway are only observers in the organisation. In recent years, the encj has developed a set of indicators to assess the state of independence and accountability of judicial systems within the EU that recently has been extended to include indicators of the quality of justice.20 Quality indicators include not only objective characteristics on the timely and effective manner of adjudication and delivery of thoroughly justified judicial decisions, but also aspects pertaining to subjective assessment of adjudicative performance.21 Since 2013, the European Union has also published comparable data on the 16

See e.g. Checklist for promoting the quality of justice and the courts adopted by the cepej at its 11th plenary meeting (Strasbourg, 2–​3 July 2008) 3. 17 cepej 2016 (12) Measuring the quality of justice. As adopted on 7 December 2016, at the 28th plenary meeting of the cepej Section 14. 18 See encj Statute 2014 Article 4. 19 See https://​www.encj.eu/​members (accessed 1st April). 20 See encj Report 2017–​2018 Independence, Accountability and Quality of the Judiciary. Validation of methodology, exploring quality of justice and promoting judicial change. 21 ibid. 54.

90 Aarli independence, quality and efficiency of national justice system in the EU Justice Scoreboard as an information tool to achieve more efficient justice systems within the European Union. Identification of ‘best practice’ on the basis of performance indicators is likely to converge national understandings of how court systems should operate. It has already been noted that the EU Justice Scoreboard actually works as ‘a governance mechanism’ and that the benchmarking among EU member states ‘pushes for specific reforms’.22 Distinctive marks of a judicial system, which can be explained by deeply rooted ideas in the national political and legal culture, might be more difficult to defend if those marks are reasonable explanations of low scores on performance indicators that are mutually accepted as relevant. The concern in this context is the prospects of the role of the judge. From the Chinese perspective, where the judicial system has been in the melting pot for several decades and there is a strong will to carry out reforms, Jeuland’s observations from his recent study on court management from fifteen national reports should be of interest: Common law judiciaries seem to be able to sustain judges’ independence from the executive authority by implementing the new management model, whereas increased executive and centralized power within the same model appear to threaten and disturb civil law judiciaries.23 To clarify and highlight these tendencies, European court systems will be simplified into the two archetypes of judiciaries that Jeuland here refers to. 7.4

Two European Versions of Judicial Powers

Broadly speaking, the power of the judiciary has been perceived in a fundamentally different way in civil law than in common law systems in Europe.24 In the system based in common law, the judiciary has been accepted generally to have constitutional powers that influence the legislation and control other powers of the state. Truly, law-​developing capacity has normally been reserved to the higher courts that are designated to develop the law for public purposes,25 but case law has been accepted as a legitimate

22 23 24 25

Adriani Dori, ‘The EU Justice Scoreboard –​Judicial Evaluation as a New Governance Tool’, (2015), MPILux Working Paper 2, 35, available at: www.mpi.lu (accessed 1st April 2020). Emmanuel Jeuland, Gestion du Tribunal/​Court Management (n 1) Summary, 156. For a comparative study, see Carlo Guarnieri and Patrizia Pederzoli, The Power of Judges. A Comparative Study of Courts and Democracy (Oxford University Press 2002). See e.g. J.A. Jolowicz, ‘The Role of the Supreme Courts at the National and International level –​General Report’, in Pelayia Yessiou-​Faltsi, (eds) The Role of the Supreme Courts at

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source of law. Consequently, ordinary judges may find themselves bound to operate on a constitutional level where they have to balance the legitimate interests of the legislative or executive branch and the legitimate interests of the judicial branch in their interpretation of the law. In the civil law system, judges generally have not enjoyed the same powerful status and capacity to directly respond to social changes. For example, while German judges have developed the law fundamentally, especially in the areas of civil and labour law in order to adapt the law to new developments,26 case law has still not been accepted technically as a source of law in the German legal system.27 Many court systems tend to be in flux between traditional patterns of civil and common law. While Slovenia represents a civil law system, the Constitutional Court has arranged to impose a duty on Slovenian courts to consider the argument of precedent as one of the interpretative arguments when they interpret laws or decide concrete cases and reason judicial decisions.28 To the extent that Germany represents an ideal civil law system, ordinary judges in civil law judiciaries are spared from the process of striking an equilibrium between the legislative and the judicial branch.

the National and International level –​Reports for the Thessaloniki International Colloquium 21–​25. May 1997 (Sakkoulas Publications 1998) 37–​63, 39–​42. 26 See Hans Stoll, Richterliche Rechtsfortbildung und gesetzliche Überarbeitung des Deliktsrechts (Müller 1984); Rolf Wank, Auslegung und Rechtsfortbildung im Arbeitsrecht (Nomos 2013); Dirk Looschelders and Wolfgang Roth, Juristische Methodik im Prozess der Rechtsanwendung (Duncker & Humblot 1996); Hochschullehrer der Juristischen Fakultät Heidelberg (eds), Richterliche Rechtsfortbildung Festschrift der Juristischen Fakultät zur 600 Jahrfeier der Ruprecht Karls Universität Heidelberg (Müller 1986); Anke Schmidt, Richterliche Rechtsfortbildung in Deutschland und der Schweiz (Duncker & Humblot 2017); Daniel Effer-​Uhe et. al. (eds) Richterliche Rechtsfortbildung und Kodifiziertes Richterrecht, Kölner Tagung vom 10.-​13. September 2014 der Tagung der Gesellschaft Junger Zivilrechtswissenschaftler (Borberg 2016) The fundamental reform of the German law of obligations in 2001 included the codification of many legal principles developed by the courts, see e.g. CW Canaris and Egon Lorenz, Karlsruher Forum 2002: Schuldrechtsmodernisierung (Verlag Versicherungswirtschaft 2003); Barbara Dauner-​ Lieb, Schuldrecht:  Erläuterungen der Neuregelungen, (Dt. Anwaltverlag 2002); Markus Artz (ed) Zehn Jahre Schuldrechtsmodernisierung, (Mohr Siebeck 2014); see for a comparison of case law in the law of cohabitants:  Anne Sanders, ‘Cohabitants in Private Law: Trust, Frustration and Unjust Enrichment in England, Germany and Canada’ (2013) 62 International and Comparative Law Quaterly 629–​655. 27 Ingvill Helland and Sören Koch, ‘Norwegian and German Legal Methods Compared’ in Ingvill Helland and Sören Koch, Nordic and Germanic Legal Methods, (Mohr Siebeck 2014) 267–​322, 302. 28 See Chapter 4 Section 4.2.4.

92 Aarli In comparative legal theory, Mirjan Damaska has successfully nuanced the traditional dichotomy between civil law and common law, inter alia by distinguishing between two different archetypes of states affected with contrasting dispositions of government.29 While the ‘activist’ state archetype pursues state policy through the legal process, the ‘reactive’ state archetype merely offers a framework for conflict resolution. In an activist state, where the administration of justice is devoted to fulfilling state policy, the role of the judge becomes that of a civil servant who actively manages the case and must accept having her conduct scrutinised and regularly evaluated. In the reactive state, the role of the judge, on the other hand, is that of a passive ­facilitator bound by few obligations and restraints on the institutional level. In modern states ruled by law, the judiciary to some extent will have to be a policy-​implementing organ so as to ensure that citizens are subject to rule by law. Current common law systems, or mixed legal systems with common​ law like judiciaries such as that of Norway nevertheless illustrate that modern states also may manage well without strong managerial control of the judiciary by the state. The role of the judge in these common law or common law like judiciaries has traditionally been passive, as opposed to the more active civil law judge. The desired role of the judge in each of the systems is served by completely different recruitment systems. While the common law model prefers experienced lawyers with a professional –​and ideally also a remarkable –​career background, the civil law model prefers young, malleable lawyers directly out of law school. The differences in recruitment and institutional control between common law and civil law judiciaries have given rise to a distinction between a ‘professional’ and a ‘bureaucratic’ model,30 that are useful constructs by which to assess the effects of new court management in different jurisdictions. The difference between common law judiciaries and civil law judiciaries is also reflected on the personal level by an opposite gavel gap between men and women in professional and bureaucratic judiciaries. While the majority of judges in professional judiciaries are men, also in the relatively egalitarian Norwegian labour market, the majority of judges in civil law countries tend

29 30

Mirjan R. Damaska, The Faces of Justice and State Authority. A Comparative Approach to the Legal Process, (Yale University Press 1986) 71–​96. Guarnieri and Pederzoli, (n 24)  66–​68. See also John Bell, Judiciaries within Europe. A Comparative Review, (Cambridge 2006) 15.

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to be women.31 Professional judges are also remunerated substantially better than civil servants.32 The simplified comparison of the two versions of judicial powers sketched above illustrates that common law judges have more independent powers in constitutional, institutional and personal relations with other actors in society than do civil law judges. Court management ‒ the administration inside the court but outside the case ‒ initially concerns the power of judges on the institutional level. Possible positive or negative effects of such measures should nevertheless be evaluated on the background of the multi-​levelled power relations that the judge engages in, and in particular on the background of the different roles the judges are supposed to play on the constitutional level. It can be argued that a shift to a managerial model at the institutional level in common law judiciaries will not necessarily lead to more independent power in the long run or overall, because it gradually transforms the judiciary into a more active state policy-​implementing organ. The argument will be pursued in the two following sections. 7.5

Professional Judiciaries’ Receptiveness towards Court Management

The professional judge has traditionally been supposed to work independently, by virtue of his already fully qualified professionalism. Experience and authority acquired as a trained lawyer have so far been successful prerequisites justifying the powerful and independent position that the common law system attributes to the judge. The authority and legitimacy of professionalism have furthermore seemed to make common law judges more resistant to potentially negative effects from court management. It has been noted, for example, that the common law judge, as opposed to the civil law judge, is not threatened by competition between court leadership and court management.33 Negative effects of new court management are 31 32

33

While 79% of all judges in the bureaucratic civil law judiciary of Slovenia were female, only 34 % of the professional judicial positions in England and Wales and 41 % in Norway were occupied by female judges, see cepej Studies No. 26 (2016 data) p. 114. The average gross salary at the beginning of the career for a German judge was 0.94 comparted to the average national gross salary in 2016. In Slovenia, where judges are expected have some experience and usually are not employed until they are in their thirties, the average quotient was 1.72 while a Norwegian judge in the beginning of his career earns 2.10 and the judge in England & Wales earns 3.75 times the average annual gross salary, see cepej Studies No. 26 (2016 data) p. 123. Emmanuel Jeuland, Gestion du Tribunal/​Court Management (n 1) Introduction, 18.

94 Aarli reasonably feared because, as mentioned above, they may threaten internal judicial independence. The managerial model is an administrative tool primarily developed to optimise the services of courts, i.e. produce high-​ quality decisions at the lowest possible cost. Demands for more efficient and effective services are hard to meet in organisations where labour costs constitute the bulk of the expenses. One argument supporting the assumption that professional judiciaries are more susceptible to smooth adaptation of court management is that the trust in prior professionalism and lack of institutional obligations and restraints make the organisation more susceptible to changes in general. I will look more closely into this argument in the following. When lawyers take office as judges in the midst of their career, often assuming the position they will keep up until retirement, it has not traditionally been deemed necessary to establish a training scheme, discuss one’s career path and continuously focus on the improvement potential of the judge as an employee. Active use of training and evaluation to ensure the quality of adjudication has been reserved for bureaucratic judiciaries where judgeship normally starts at an early age. The size and generality of a court’s function also affects the need for court management. Most of the district courts in Norway, for example, are relatively small organisations, and they are all generalist courts with no specialist chambers. An organisation consisting of two to three generalist judges and a handful of administrative staff to support the judicial function is still quite common.34 The organisational chart is easy to draw up for a court of this kind and leaves little room for internal managerial conflicts. There are indeed relatively few separate issues of court management in these small organisations. On a day-​ to-​day basis, court management is a matter of managing the cases brought to the court in a timely manner. Confidence in prior professionalism and reliance on small court units with competence in all fields of law have so far relieved the Norwegian judiciary of many of the administrative concerns that bureaucratic and more specialized judiciaries have had to deal with. The superiority of the individual judge has not been challenged by hierarchies or ranks. An organisation with few institutional constraints placed on its core staff is arguably more flexible and susceptible to change than an already institutionally constrained, complex and hierarchical organisation. In fact, the fundamental basis for court management might also be more compatible with the professional model of the judiciary than the bureaucratic model. The use

34

In 2020, one third of 60 Norwegian district courts had no more than three judicial positions, and many of these small units had only one permanent position.

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of performance indicators in court management seems to increase the importance of extra-​judicial skills. The theoretical basis for court management is found in the economic, organisational and administrative sciences. Legal training does not promote or include a conceptual basis for these disciplines. Judges in professional judiciaries will have gained their qualifications to become judges from various appointments in non-​judicial organisations and are more accustomed to co-​operating with other professions and adapting to organisational needs. Non-​restrained members of a staff, on the other hand, are likely to object to organisational changes that restrict their scope of action in the organisation, particularly if they hold a high level of authority in the organisation. However, the timing for the implementation of new court management could not have been better as a response to such objections. The increased complexity of national and international legal sources and rapid development of law leaves less room for legal philosopher Ronald Dworkin’s traditional, idealised notion of the professional judge, appropriately called ‘Hercules’,35 the judge who masters all kinds of legal questions in depth. Modern professional judges can no longer perceive themselves as fully trained to solve all kinds of cases entirely on their own. They need law clerks to help to sort out the relevant legal sources, an it-​staff to set up live-​link examinations and input from specialists to make better informed decisions in complex and technical legal fields such as patent or competition law. Professional judges have been ready for a change. At least in Norway, many judges embrace the introduction of training programmes, an increased focus on career development such as specialisation and ambitions to develop larger court units with stronger leadership to sort out executive demands.36 Even though judges may not object, or may even be positive to the implementation of single measures of court management, they do not necessarily accept court management as a comprehensive solution. When the Norwegian Appointment Committee for judges recently seemed to adjust to new career paths within the judiciary, promoting experienced in-​ house lawyers from the judiciary to judges instead of appointing far more experienced lawyers outside the judiciary, a number of judges sent formal letters to the Ministry of Justice and Public Security complaining that experienced lawyers had clearly been passed over.

35 36

First introduced in Ronald Dworkin, ‘Hard Cases’, (1975) 88 Harvard Law Review 1057–​1109, 1083. The statement is based on experience from open hearings with judges in all court regions arranged by the Norwegian Court Commission in 2019.

96 Aarli 7.6

Court Management and the Bureaucratisation of the Judiciary

The implementation of the new court management model in professional judiciaries has perhaps been more problem-​free than the introduction of the same model in bureaucratic judiciaries because there were no prior structures with which to compete. However, changes are likely to come at a cost in both systems, as experiences from the UK and Norway tend to illustrate. The judicial system of England and Wales became more comparable to other court systems when the Constitutional Reform Act in 2005 transformed the court system and finally established separation of powers.37 Then, a new Supreme Court replaced the Judicial Committee of the House of Lords as the final court of appeal and the Lord Chancellor ceased to be head of the judiciary. The most interesting innovation, from a management perspective, was the new appointment system for judges. A  statutory and independent body called the Judicial Appointments Commission (jac) is now responsible for selecting candidates for appointment as judges and recommends candidates who are formally appointed by the Queen. The Lord Woolf reform of the civil justice system enforced in 1999, giving the judges more powers with a view to speeding up the trials,38 contributed as well to change the role of the judge in the judiciary. Eventually, the role of the English judge was defined based on an active state policy-​implementing perspective. Being a professional ‘salary-​paid’ judge is a rather exceptional position in England and Wales. In fact, no country in Europe has such a relatively low stable of full-​time judges.39 However, the number of part-​time ‘fee-​paid’ judges appointed for a fixed term of five years, with prospects of fairly automatic renewal, is more than three times as high as the proportion of full-​time judges.40 The widespread use of part-​time judges as recorders and deputy judges has contributed towards creating pathways to advancements within the judicial system, and a career system has gradually emerged over the past fifty years.41 A new judicial assistant scheme has just being introduced to the High Court, and the scheme contributes to a more elaborated hierarchy of judicial positions within the judiciary.

37 See Chapter 5 for the country report by Sir Richard Aikens. 38 Mathias Siems, Comparative Law, Second Edition, (Cambridge 2018) 62. 39 The reported number in 2016 was 1760 (3 per 100,000 inhabitants), see cepej Studies No. 26 (2018) 103. 40 The reported number of part-​time judges was 6,479 in 2016, see cepej Studies No. 26 (2018) 103. 41 Bell, Judiciaries within Europe (n 30) 298–​99.

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Reforms of the judiciary in England and Wales have more recently been concentrated particularly on two separate issues of court management: closing down and selling out courthouses and enabling swift case management through technology. Since 2010, two major court and tribunal closure programmes have been launched.42 In 2016, a major reform programme was launched, costing 1 billion pounds, to provide swift and fair justice by using digital tools. New systems for case management, with online services and specialist tribunals, are meant to empower the role of courts in society. The changes take place at a time when the body of legislation has grown, and international obligations leave less room for the judge to develop the law. Whether it is possible to uphold the powerful role of the traditional common law judiciary in the remodelled future system remains to be seen. In Norway, a new model of legislation was introduced with the enforcement of the Dispute Act in 2008.43 The act was adopted by the Norwegian Parliament together with an evaluation scheme identifying seven goals for society and four target figures for case management. The goals and targets were to be evaluated within a set timeframe. The targets set included a provision, for instance, that the expenses of the parties would be reduced by 30%; time spent on main hearings in the first and second instance would be reduced by 30%, and judges would be able to adjudicate 15% more cases annually. Inspired by the Lord Woolf reform in England, statutory law imposed on the judges a duty to ‘actively and systematically manage the preparation of the case to ensure that it is heard in a swift, cost effective and sound manner’.44 The duty to more actively manage the case was intended to transform the role of the judge in the Norwegian system, and it might be interpreted as a move towards a role model promoted by an activist policy-​implementing state, more typical of a bureaucratic judiciary than a professional judiciary.45 The Norwegian Court Commission (2017‒2020) has recently proposed a structural reform of the lower courts in Norway, suggesting in the first report (2019) a decrease in the number of courts and a consolidation into larger organisations that will enable judges to engage in moderate specialisation.46 If the proposal is realized, leadership in Norwegian courts will become more

42 43 44 45 46

See House of Commons Library, Briefing Paper Number 7346, 21 March 2016 Court and Tribunal Closures. Act relating to mediation and procedure in civil disputes (The Dispute Act) 17 June 2005 no. 90. Dispute Act § 9–​4 no. 1. The country report in Chapter 6 illustrates that role perception has yet not really changed. Norwegian Official Report [nou] 2019: 17 Domstolstruktur [Court Structure] 80.

98 Aarli important. The second and final report from the Court Commission (2020) will discuss means to strengthen judicial independence and how to improve the internal framework in the judiciary for the delivery of high-​quality justice, inter alia by using new technology. To achieve the goals of new court management, it is inevitable that professional judiciaries will have to become more bureaucratic (and civil law like) organisations with more focus on career paths for judges and on stronger leadership. The urgent need for judicial reforms in England, Wales and Norway has encouraged change and has overshadowed the fact that reforms will lead to a much more policy-​implementing judiciary than that to which professional judges traditionally have been appointed. Court management implies a more structured approach to the administration of human, tangible and financial resources and comes as a package deal. The extensive exchange of measures concerning e.g. the rationalisation of working methods by resorting to law clerks and new professional categories47 is likely to bring about more similarities between bureaucratic and professional judiciaries than previously recognized in Europe. The development of joint objectives and indicators for measurement of the quality of justice in Europe consequently seems to be driving judiciaries with disparate ambitions on behalf of the state into similar organisational structures. For these reasons, the current observation that common law judiciaries are more at ease with new court management might be a fleeting ­notion. 7.7

Summing Up and the Way Forward

This chapter has attempted to summarise the country reports by the judges from the perspective of the core agents in the melting pot of court reforms themselves. In an additional attempt to bridge Part 2 and Part 3, the chapter has applied theories on court management and from comparative law. An analysis of the country report in the light of current theory in fact opens the door to many more questions than answers. A key question is how the role of the judge should be understood in increasingly more complex organisations. For example, who should draw the line between legitimate administrative governance and illegitimate interference with adjudication, and where should the 47 See cepej 2016 (14) Structural measures adopted by some Council of Europe member states to improve the functioning of civil and administrative justice. In addition to the effective domestic remedies required by Article 13 of the echr. Good practice guide. As adopted at the 28th plenary meeting of the cepej on 7 December 2016 Section 3.2.

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line be drawn? To what extent can court presidents make demands on judges within the court organisation to understand and comply with administratively defined targets and goals in case management? Can judges leave their tasks to judicial assistants or to robots? More dialogue and research are needed to answer these questions. The dialogue between judges and academics in our project has nevertheless led to the realisation that prevalent and evolving role perceptions among judges also need to be taken into consideration in deliberations of appropriate answers to these questions. A few examples from the discussions at the conference in Beijing may illustrate the point. With regard to questions of demarcation between administrative and judicial tasks, Justice Gaier highlighted the importance of teamwork between judges and their helping hands such as the administrative service. He suggested that such a relationship should not be marked by subordination, but rather by cooperation, and he assumed that particularly younger generations of judges would seem to be more open to such teamwork in order to improve the efficiency of judicial work. The future judge will be a different judge than today. An explicit awareness of the fact that a judge carries out duties of great social significance is still most likely transmitted to future judges. Nina Betetto quoted the former Austrian Supreme Court President Irmgard Griess, now retired, when she expressed that it as ‘a matter of character’ to be a good judge. Betetto added that while a good judge is necessarily competent, a competent judge is not necessarily a good judge. Court management to maintain the material and human resources that are required to carry out the work of judging is not likely to be successful if the transfer value of role perceptions of the good judge is overlooked. The role of the judge, however, is only one of many topics that emerged in the country reports and in the conference dialogue between judges and academics. In the following Part  3, researchers have developed some of these topics further.

pa rt 3 Reflections on Courts and Judicial Reforms Research Essays

∵

­c hapter 8

Litigation Explosion and Reactions from Courts in China Weidong Chen 8.1

The Issue

As its name suggests, ‘litigation explosion’ refers to a phenomenon where the number of cases brought to court in a certain country increases dramatically within a given period of time. The causes behind litigation explosion are complex and diverse, encompassing legal and social factors such as the awakening towards civil rights concepts, socioeconomic developments in the country, and democratic reforms in the judicial system, all of which may, to some extent, lead to rapid growth in cases.1 Such growth has directly and considerably compounded levels of stress for judicial authorities, especially courts. Since the capacities of the judicial system and courts in handling cases are relatively constant within a given period, it would be difficult for courts to process and resolve all cases properly and effectively within the confines of litigation with their existing resources for handling cases. Then, if the judiciary fails to meet social demand for litigation as a kind of ‘public good’, governance of society will become disorderly, derailed and even chaotic. To establish a judicial system that is able to support and strengthen the economic growth the country is experiencing, continuous judicial reforms have already been implemented.2 And more reform measures are needed. Today, presidents of the courts, especially in developed areas, have their hands full with the day to day management of the explosive growth in the number of cases. If, however, reform measures and coping mechanisms can be implemented to resolve the issue of litigation explosion properly and steadily, development of social culture in the rule of law, as well as its construction in China, will be advanced crucially.

1 蒋银华：《司法改革的人权之维 –​以’诉讼爆炸’为视角的分析》，《法学评论》2015 年第6期。(Yinhua Jiang, ‘Human Rights Dimension of Judicial Reform: Analysis from the Perspective of ‘Litigation Explosion’’ (2015) 6 Law Review). 2 See the country report from China in Chapter 2 in this volume.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_009

104 Chen Litigation explosion has occurred many times throughout the history of social development. In early modern England, the number of cases brought to court multiplied in a matter of a few years. For instance, from 1560 to 1580, the number of cases heard at the Queen’s Bench, one of the principal common law courts, rose nearly five times, and in the Court of Common Pleas it increased almost threefold.3 At the county level, in the early 16th century the Great Yarmouth County Court heard more than 300 cases annually, but by the mid-​to late 16th century this became more than 900 cases per year.4 From these results, it can be observed that, firstly, appropriate coping measures were adopted in England, allowing a series of dispute resolution mechanisms to be formulated relatively early during England’s civil and criminal litigation explosions and hence fostering a holistic legal system in the country. Secondly, caseload explosions in the court system led to a significant addition to the ranks of legal practitioners, especially lawyers. This safeguarded the smooth operation of the country’s judicial system and nurtured developments in the rule of law. Thirdly, litigation reinforced the permeation of the country’s central powers to the local level, expanding the channels for social governance and catalyzed the formation of the modern state.5 Another classical example of litigation explosion could be found in post-​ war America. With economic recovery, social development and the rise of the civil rights movement, came an array of economic disputes, clashes of rights, and crimes. These were not reflected in large-​scale social conflicts, but were instead subsumed under the legal framework through litigation.6 From Table 8.1 it can be observed that the rise in civil litigation in the United States differs from that in England several centuries ago, in that the former better represents ‘modernity’ of a certain type. An overall observation regardless of case nature (see Table 8.2) reveals that the rise in the number of cases grew hand in hand with the stress faced by courts in handling cases. To solve this problem and relieve such stress, a series of reforms have been introduced to the American litigation system in civil and criminal law, including joinders of claims in civil

3 See Steve Hindle, The State and Social Change in Early Modern England, c. 1550–​1640 (Palgrave, 2000) 69. 4 See Craig Muldrew, The Economy of Obligation: The Culture of Credit and Social Relations in Early Modern England (Macmillan 1998) 217. 5 参见初庆东：《近代早期英国’诉讼爆炸’现象探析》，《史林》2014年第5期。 (See Qingdong Chu, ‘Analysis of ‘Lawsuit Explosion’ of Great Britain in Early Periods of Modern Times’ (2014) 5 Historical Review). 6 顾培东：《诉讼经济简论》，《现代法学》1983年第3期。(Peidong Gu, ‘A Brief Analysis of the Economics of Litigations’ (1983) 3 Modern Law Science).

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Table 8.1 Number of civil cases in the Federal and Californian courtsa

Year

Federal courts

Superior courts of California

1940 1950 1960 1970 1980 1990 1995

34,734 54,622 59,284 87,321 168,789 217,879 239,013

32,337 46,935 96,154 150,638 532,550 669,722 852,772

a  [英]阿德里安A•S•朱克曼主编：《危机中的民事司法 –​民事诉讼的比较视角》，傅郁 林等译，中国政法大学出版社2005年版，第74-​75页。(Adrian A.  S. Zuckerman (ed), Civil Justice in Crisis: Comparative Perspectives of Civil Procedure, translated by Yulin Fu et al., (2005) China University of Political Science and Law Press 74–​5).

litigation,7 and plea bargaining in criminal proceedings.8 While these reforms did improve efficiency in case disposal and reduce legal costs, new problems arose, such as unjust decisions and false charges.9 As in the United States, for 40  years since the open-​door reforms in China, along with its rapid economic developments, the number of court cases in the country has also skyrocketed. In the face of such explosive growth, courts and their officials are encountering unprecedented levels of stress. The working conditions for Chinese judges are indeed different from the working

7 参见陈桂明、吴如巧：《美国民事诉讼中的诉讼合并制度评介及对我国的启 示》，《政治与法律》2010年第5期。(See Guiming Chen and Ruqiao Wu, ‘Evaluation of Joinders of Claims in United States Civil Litigation and Insights for China’ (2010) 5 Political Science and Law). 8 参见陈卫东、刘计划：《从建立被告人有罪答辩制度到引入辩诉交易 –​ 论美国辩 诉交易制度的借鉴意义》，《政治与法律》2002年第6期。(See Weidong Chen and Jihua Liu, ‘From the Conception of the Alford Plea for Defendants to Introducing Plea Bargaining: Referential Value of the Plea Bargaining System of the United States’ (2002) 6 Political Science and Law). 9 For instance, the implementation of plea bargaining may be subject to a series of problems such as infringing citizens’ constitutional rights, acting against social justice values and causing abuse of governmental power. 参见张智辉主编：《辨诉交易制度比较研究》，中国 方正出版社2009年版，第8-​14页。(See Zhihui Zhang (ed), A Comparative Study of the Plea Bargaining System (China Fangzheng Press 2009) 8–​14).

106 Chen Table 8.2​ Case disposal by judges of the United States Federal Appellate courtsa (excluding circuit courts)

Year

Judges

Cases heard

Cases heard per judge

1955 1965 1975 1985 1995 2005 2014

68 78 97 156 167 167 167

3,695 6,766 16,658 33,360 50,072 68,473 55,623

54 87 172 214 300 410 333

a   陈杭平：《统一的正义：美国联邦上诉审及其启示》，中国法制出版社2015年版，第 138页。(Hangping Chen, Uniform Justice: Federal Appellate Trials in the United States and Their Revelations (China Legal Publishing House, 2015) 138).

conditions for judges in Germany, Slovenia, England and Wales and Norway accounted for earlier in this volume. As is now commonly said in judicial management and operations, ‘there are more cases than there are people to handle them’.10 A crucial issue for courts in China is how to cope with and relieve case management stress and alleviate the shock brought to the current judicial system by litigation explosion. At the same time, the explosion in the number of court cases is not only a challenge but also an opportunity to refine China’s court system, reform the judicial framework, and introduce innovations to adjudicative mechanisms. This chapter will briefly describe current trends of adjudication in Chinese courts, and analyse the background and causes behind the civil and criminal litigation explosion. Then it will introduce the past and current efforts and reforms by Chinese courts in coping with litigation

10

Certainly, some scholars believe that litigation explosion in China is nothing but a necessary outcome from the development of market economy, and does not constitute ‘litigation explosion’ per se. 参见彭兴庭：《中国’诉讼爆炸’是个伪问题》，《中国 青年报》，2005年4月26日。(See Xingting Peng, ‘‘Litigation Explosion’ in China is a Pseudo-​Problem’ (26 April 2005) China Youth Daily.) The author believes that the original meaning of ‘litigation explosion’ refers only to the objective phenomenon where the number of a certain type of litigation cases rises dramatically, without any specific conceptual content with value judgments. The expression ‘litigation explosion’ is used with the same meaning throughout this essay.

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explosion, with a concise evaluation of these measures and their effects, followed by conclusive remarks. 8.2

The Phenomenon of Litigation Explosion and Its Causes

8.2.1 The Phenomenon of Litigation Explosion in China Since the open-​up reforms and the country’s judicial system resumed its operations, the number of cases handled by the People’s Courts has been climbing continuously and rapidly (see Table 8.3). Aside from this numerical drive, one special feature of China’s civil and criminal litigation explosion lies in the increasing diversity and complexity of cases, gradual refinement of substantive and procedural legal frameworks, and inequality in the geographical distribution of cases. From the above table, it is apparent that the rise in China’s court cases has shown an ‘explosive’ trend. In 1978, around 447,000 first instance cases were heard throughout the courts of China. In 1982, this number surpassed 1 million, at around 1,024,000. By 1996, it exceeded 5 million, reaching 5,312,000. Ten years later, in 2006, the number of cases rose further and faster, at a growth rate of 300,000 to 400,000 annually. In recent years, cases have been overflowing Table 8.3​ First instance cases heard in people’s courtsa

Year

Cases heard

Year

Cases heard

1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998

447,755 763,535 1,024,160 1,355,460 1,611,282 2,290,624 2,916,774 3,051,157 3,955,475 5,312,580 5,410,798

2000 2002 2004 2006 2008 2010 2012 2014 2015 2016 2017

5,356,294 5,132,199 5,072,881 5,183,794 6,288,831 6,999,350 8,222,657 9,489,787 11,444,950 12,088,800 22,601,567

a  数据来源：《中国统计年鉴》1979–​2017年。(Source of data: China Statistical Yearbook, 1979–​2018).

108 Chen again. At last, in 2015, the first instance cases heard in the country passed the 10  million mark, at more than 11,440,000. In 2017, the figure abruptly broke through 22 million. It is important to note that these statistics represent first instance cases only. On top of this, courts have to hear second instance and trial monitoring cases, as well as carry out enforcement. Overall, the number of first instance cases heard in the courts of China has grown almost 50 times in 40 years, in an explosive growth trend rarely witnessed elsewhere in the world. At the same time, litigation cases have become more complex and diverse. After the Cultural Revolution, the judicial system was gradually restored, and social order approached stability. Against this background, the types of cases underwent a series of profound transformations. On the one hand, ‘changes in the political context are reflected in the criminal cases heard in the People’s Courts; the number of antirevolutionary cases fell dramatically, and in 1982 they constituted only 0.5% of the total number of criminal cases … internal crimes have become the main problem threatening law and order’. On the other hand, ‘the number of civil cases heard in the People’s Courts has surged significantly … not only have disputes proliferated in marriage and family, inheritance, property, housing sites and damages, but conflicts in land, forestry, hydraulic infrastructure, agricultural machinery, farm animals and fertilizers have also entered the picture, together with foreign-​related civil cases, which have all been on the rise’.11 The types of litigation cases in China have become even more complex to date. In terms of crimes, offences related to pollution and telecommunications, as well as a series of new offences on public security, have started to appear. Traditional ways of crime, areas of influence and extents of harm have also taken on new forms. As for civil cases, civil legal relationships in terms of labour disputes, marriage and family, and property rights protection, have become more convoluted. In addition, administrative cases have appeared for some time, and such proceedings have been gradually refined. The number of intellectual property cases has risen: from 2013 to 2017, a total of 683,000 first instance intellectual property cases were heard and concluded in courts of various levels. Commercial cases, such as insolvency and shareholder disputes, are also not rare under current modes of living.12 Among the cases presently heard in courts are cases of fraudulent financing involving 11 12

江华：《最高人民法院工作报告  –​ 1983年6月7日在第六届全国人民代表大会第 一次会议上》。(Hua Jiang, Supreme People’s Court Working Report: At the 1st Session of the 6th National People’s Congress on 7 June 1983). 参 见 周 强 ： 《 最 高 人 民 法 院 工 作 报 告 —​—​2018年 3月 9日 在 第 十三届全国人民代表大会第一次会议上》。(See Qiang Zhou, Supreme People’s Court Working Report:  At the 1st Session of the 13th National People’s Congress on 9 March 2018).

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tens of billions of Renminbi, complex shareholder disputes between multinational corporations, and intellectual property disputes between large technological enterprises. The complexity of these cases would have been hardly imaginable several decades ago. Society’s demand for court services is reflected not only in the current figures (efficiency of judicial decisions), but also in new requirements on the quality of case hearings, especially in the procedural aspect. A core value of the judiciary is justice, which comprises both substantive and procedural limbs, and are in the relationship of a universal dialectic. In other words, without procedural justice, the requirements of substantive justice will not be realized. Rigorous judicial procedures are a reliable safeguard of justice, and at the same time a realistic need.13 With a view to implementing procedural justice, China has enacted and amended a series of procedural laws, such as by legislating on criminal, civil and administrative procedures, and introducing several amendments to procedural laws according to changes in implementation. China’s highest judicial authority and related bodies have also produced a considerable number of judicial interpretations and other regulatory documents on the requirements of litigation laws. The continuous refinement of procedural laws has practically raised the standards required of courts and adjudicators, such as by demanding that judges enforce more rigorous provisions on rights protection and hear cases more prudently in order to prevent wrong decisions. It can be observed that, since the procedural set-​up has constrained judges’ discretion and clarified adjudication procedures, judges can no longer try cases ‘freely’ in the unrestricted ways seen before. A range of regulations on case management have also introduced a huge amount of documentary work to courts. These factors have all contributed to the rise in judges’ stress in handling cases. An overall observation from the three aspects covered above is that courts are facing increasing stress in adjudication, and such stress is the most direct and apparent for individual judges hearing cases. Of course, if appropriate measures are adopted, for instance through recruiting more judges, the overall rise in the number of cases does not mean that stress will necessarily intensify for each and every judge. The body of judges in China, however, has not grown at the same rate as the number of cases. In 1982, there were 77,000 judges and 67,000 other judicial officers throughout the courts of China. In 1997, the figures became around 170,000 and 110,000. By 2005, they approached 190,000

13

陈卫东：《严格司法程序维护公平正义》，《求是》2007年第4期。(Weidong Chen, ‘Stringent Judicial Procedures Safeguarding Fairness and Justice’ (2007) 4 Qiushi).

110 Chen and reached 100,000 respectively. In 2014, the number of judges was 196,000 and that of other officers was almost 144,000.14 A rough calculation shows that in 1982 each judge had to deal with 13.3 first instance cases annually. In 1997, this became 31.1, and in 2014, 48.4. On a macro level, for the past 40 years, despite the fifty-​fold rise in the number of cases, the number of court officers has only increased from around 90,000 to more than 300,000. This is an obvious indicator that the stress from hearing cases has been skyrocketing for individual judges. Notably, given the extreme imbalance in China’s economic development, the number of litigation cases along the eastern coast is far higher than in the less developed regions in the west (see Table 8.4). This imbalance is also a characteristic of China’s case explosion, and a problem which reforms should address. 8.2.2 Causes of Litigation Explosion In overseas experience, causes of litigation explosion include major disputes in society, changes in economic relations, litigation-​related costs, civic attitudes, legal support and composition of the legal profession.15 The situation in China is generally identical. Following the open-​door policy, there have been rapid economic development, continuous improvements in the construction of the legal system, a gradual rise in citizens’ education levels, and confirmation of the policy of governing the country by law, all of which are factors behind civil and criminal litigation explosion. To begin with, the economy forms the foundation for litigation, and rapid economic progress has been a fundamental cause of caseload explosion in courts on all levels in China. The ‘explosion’ in China’s litigation cases directly correlates to the country’s soaring economic development, and this relationship is quite apparent. Firstly, a significant rise in the amount of civil and commercial activities backs China’s economic development. Such activities are home to disputes and conflicts, many of which flow towards courts eventually and are resolved by adjudicative authorities. For instance, economic development has driven national consumption, and hidden behind the rise in consumption rates are an array of sale and service contracts. If these contracts are 14

15

南 门 徙 木 ： 《 中 国 法 院 人 数 考 》 ， 载 h t t p : / / ​ n a n m e n x i m u . f y f z . c n / ​ b /​ 886072，最后访问时间2018年7月2日。(Nanmenximu, ‘An Investigation into the Number of Court Personnel in China’ at http://​nanmenximu.fyfz.cn/​b/​886072, last accessed on 2 July 2018). C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth: The ‘Lower Branch’ of the Legal Profession in Early Modern England (Cambridge University Press, 1986) 79.

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Table 8.4 Comparison of average number of cases heard in some prefecture-​level cities of China (2012–​2014)a

Intermediate people’s courts of Number of prefecture-​level cities cases heard annually Inner Mongolia Autonomous Region Alxa Intermediate People’s Court Yunnan Lijiang Intermediate People’s Court Gansu Tianshui Intermediate People’s Court Guangdong Foshan Intermediate People’s Court

Number of judges

Cases heard per judge

549

37

14.8

2,874

31

92.7

1,713

52

32.9

18,529

195

95

a  陈陟云、孙文波：《法官员额问题研究》，中国民主法制出版社2016年版，第93 页。(Zhiyun Chen and Wenbo Sun, A Study of Problems in Court Personnel Count (China Democracy Legislative Publishing House, 2016) 93).

breached, or rights are infringed, the aggrieved party may resort to the judiciary. Secondly, economic growth has also modified social structures, causing considerable social conflict, some of which is reflected through crimes, and the number of crimes has increased as a result. At the same time, the country has injected more capital into criminal investigations and social control, raising the success rate in cracking criminal cases and enabling plenty of previously undetectable cases to be solved and to be processed by the judiciary, further increasing the number of cases the courts have to deal with. In addition, the simultaneous relaunch of China’s legal and economic constructions has allowed lots of legislations and regulations to be supplemented and refined, and the legal system to be more robust, providing channels and bases of resolution for disputes which would otherwise have been difficult for courts to handle. In a state with codified laws such as China, courts must normally base their decisions on laws or related regulatory documents, otherwise legal basis would be lacking, and further problems may arise from dispute resolution. During the ten-​year unrest, China’s legal system was razed to the ground: the only laws which remained effective were the Constitution, Agrarian Reform Law and Marriage Law, but the legal relationships within

112 Chen social life requiring mediation by law far exceeded the ambit of the above legislations. For social order to stabilize, the legal system needed to be revived. It was precisely against this background that the 11th National Conference of the Chinese Communist Party confirmed the fundamental policy of a ‘robust socialist legal system’ and commenced constructing a legal system with a focus on legislation.16 For example, in the civil sphere, which was home to the highest number of disputes, important legislations were enacted, including the General Principles of the Civil Law (in force since 1987), Civil Procedure Law (in force since 1991), Contract Law (in force since 1999), Property Law (in force since 2007), and Tort Law (in force since 2010). These legislations have clarified relevant legal relationships and litigation procedures, ensuring effective and appropriate resolution through the judiciary.17 In summary, legal support has extended the scope of cases handled by courts and incorporated a significant amount of cases into the channel of litigation. Also, as citizens’ education levels are climbing, their legal awareness has also been strengthened. After the onset of a dispute, people have also become more inclined towards resolving the dispute through courts. In the lack of legal awareness, citizens often resort to private means in the face of rights conflicts. If every conflict is resolved as such, society will immediately descend into anarchic chaos, which in turn discounts the effectiveness of the intended resolution. Through a common education on the legal system and long-​term implementation of the rule of law, citizens have gradually realized the importance of the judiciary in dispute resolution. Public relief, provided through judicial decisions and enforcement, is both authoritative and generally more just than private resolution, thus resolving certain difficult conflicts more properly. Accordingly, as citizens’ legal and rights protection awareness is steadily maturing, they have gradually become more active in judicial participation. This has directed disputes, previously resolved through private means, towards litigation, further inflating the number of litigation cases. Lastly, China has started to gradually strengthen the effect of courts in social governance by new policies which consciously encourage citizens to resolve disputes through the judiciary. The construction of rule of law in China requires citizens’ participation, as a reflection of the judiciary’s spirit of working 16 17

参见刘瀚、李林：《我国法制建设20年成就与展望》，《求是》1998年第2 3期。(See Han Liu and Lin Li, ‘20 Years of Success and Outlook on the Construction of China’s Legal System’ (1998) 23 Qiushi). 参见张新宝、张红：《中国民法百年变迁》，《中国社会科学》2011年第 6期。(See Xinbao Zhang and Hong Zhang, ‘The Last Hundred Years of China’s Civil Law’ (2011) 6 Social Sciences in China).

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for the people, and as an effective measure reinforcing social governance. Recently the most important reform in China was the ‘case filing registration system’ introduced in 2015, which set up a two-​step procedure in case filing, namely case filing registration and formality examination, implementing the requirement to have ‘every case filed and every claim considered’.18 The case filing registration system has lowered the threshold at which courts accept cases, opened the doors of the judiciary more widely, and further caused a significant increase in the number of cases, which in turn directly led to the rise in the number of first instance cases in China to above 10 million in 2015. 8.3

Courts’ Reactions to Litigation Explosion

8.3.1 Two Channels of Towering Case Pressure In the face of towering case pressure, the judicial and litigation frameworks of China must undergo proper reforms to ensure smooth running of the existing court system. Coping is generally performed in two channels. Firstly, case management powers are strengthened, such as increasing the number of judge positions, putting effective ancillary judicial mechanisms in place, and empowering frontline operations departments. Secondly, case management efficiency is improved, such as reforming hearing procedures, creating a case triage mechanism where cases are given different treatments according to their complexity, and applying technology to assist case handling. Along this route, the court system has implemented a series of reforms, with the aim of relieving current case management stress to a certain extent. These reforms may be carried out on the general institutional level, on the level of the legal system in particular, as well as on technical application and refinement. More specifically, these coping measures can be divided into four aspects: reforms in judges’ personnel quota system, reforms in judicial accountability, case triage according to complexity, and the application of judicial technology and big data. The details are as follows. 8.3.2 Reforms in Personnel Quota System Reforms in personnel quota system are part of the reform to the judicial system and fundamental to the overall framework of the system. The implementation 18

最高人民法院立案登记制改革课题组：《立案登记制改革问题研究》，《人民 司法》2015年第9期。(Supreme People’s Court Case Filing Registration System Reform Topical Group, ‘A Study of Case Filing Registration Reform Issues’ (2015) 9 People’s Judicature).

114 Chen of reforms in personnel quota system can be divided among several levels. On the first level, a quota on the number of judges is imposed, where the required number of judges is roughly 20% to 30% of the total number of court officers (39% of the Personnel Quota of Central Political and Legal Specialisations (中央政法专项编)). The second level comprises a re-​appointment of judges at a fixed number, taking place through stages like assessments, examinations and appointments. On the third level, classifications of court officer personnel are to be reformed in the proportion of 1:1:1 (this can vary among different places); assistants and clerks are to be assigned to each judge specifically to handle cases.19 Reforms in personnel quota system aim at nurturing elites and developing professionalism in teams of judges and strengthening powers of case management.20 In the past, some judges in China did not hear cases directly, but instead handled administrative and managerial work. After the reforms, however, almost all judges have to actually handle cases; this has increased the amount of personnel taking part in case management.21 At the same time, reforms in personnel quota system have improved the quality of judges. After the reforms, certain judges who are maladapted to hearing cases have been repositioned, while outstanding assistants and clerks have been appointed as judges. As such, the overall professional level and quality of the teams of judges have been brushed up; this would be extremely beneficial towards the quality of case management and would guarantee efficiency. Also, the formation of teams of judges is geared towards professionalization. For instance, judges familiar with marriage cases can specialise in hearing such cases, and those versed in disputes over debts can preside over these disputes specifically. This flexible arrangement would also improve efficiency in handling cases.22 Although after the reform in personnel quota system the number of judges throughout China has decreased from around 210,000 to around 120,000, 19 20 21

22

陈卫东：《当前司法改革的特点与难点》，《湖南社会科学》2016年第 2期。(Weidong Chen, ‘Characteristics and Difficulties of the Current Judicial Reforms’ (2016) 2 Social Sciences in Hunan). 章武生：《我国法官的重组与分流研究》，《法律科学》2004年第3期。(Wus heng Zhang, ‘A Study of the Reorganisation and Triage of China’s Judges’ (2004) 3 Science of Law). 参见叶三方、叶圣彬：《如何面对法官员额’自觉退出’机制》，《人民法院 报》，2017年7月15日。(See Sanfang Ye and Shengbin Ye, ‘How to Cope with the ‘Self-​ Resignation’ Mechanism in Judges’ Personnel Quota Reform’ (15 July 2017) People’s Court Daily). 林振通：《员额制背景下审判团队配置模式与职责定位》，《人民法院报》 ，2016年9月29日。(Zhentong Lin, ‘Arrangement and Duty Allocation of Adjudicative Teams under the Background of Personnel Quota Reform’ (29 September 2016) People’s Court Daily).

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overall case management powers have been strengthened. For example, the Shanghai No. 2 Intermediate People’s Court has assigned all 173 of the first batch of qualifying judges, judges’ assistants and clerks to the frontline, thus putting in over 85% of the entire hearing power to case management. The court has been organised into 82 collegiate panels (合议庭). For the 69 judges who are not chief judges (院长) or court presidents (庭长), their qualifications and tenure as presiding judges (审判长) have been reconfirmed in accordance with the reforms. The chief judges and court presidents have all been legally appointed as presiding judges within the collegiate panels.23 Commissioned by relevant authorities, the author carried out a survey within Beijing’s court system in May this year. The results show that while the quality of case management has remained constant, efficiency has climbed gradually. For example, the average number of days required to dispose of a case shortened steadily from 2015 to 2017. The figures from the Beijing No. 3 Intermediate People’s Court are 32.72, 32.58 and 27.24 days respectively, showing a dramatic decrease. Those from the Yanqing People’s Court from the same period are 52.03 days for 2015, 56.94 days for 2016, and 44.15 days for 2017. 8.3.3 Reforms in Judicial Accountability Reforms in judicial accountability require that judges be responsible for the quality of their own cases: judges are legally liable for grave wrongful decisions made willfully or resulting from significant fault. The background of this reform is that in the past, each judgment had to be approved by the relevant chief judge and court president.24 For instance, where a judge decided on a verdict for a certain criminal case and ruled the defendant guilty, this decision had to be signed off by the chief judge or court president, and for important, complex or difficult cases, discussions by the adjudication committee might also be required. Judicial accountability has abolished these practices, which are in effect similar to administrative approvals. Judges hearing cases are themselves responsible for the decisions made, and no longer have to report to chief judges or court presidents. Apparently, therefore, efficiency in case management can be improved significantly. 23

24

陈卫东、程雷：《司法革命是如何展开的  –​ 党的十八大以来四项基础性司法 体制改革成效评估》，《法制日报》，2017年7月10日。(Weidong Chen and Lei Cheng, ‘How the Judicial Revolution Started: An Assessment of the Effectiveness of Four Fundamental Reforms to the Judicial System since the 18th National Congress of the Communist Party’ (10 July 2017) Legal Daily). 参见张文显：《论司法责任制》，《中州学刊》2017年第1期。(See Wenxian Zhang, ‘Research on System of Judicial Responsibility’ (2017) 1 Academic Journal of Zhongzhou).

116 Chen In the past, approvals of decisions required a considerable amount of time and effort. In the name of preventing wrongful decisions, while approving a decision, a court president had to review case materials again for ‘gatekeeping’. Reforms in judicial accountability have put a stop to this practice. In this way, huge powers in case management have been released, allowing judges and their assistants to handle cases with better concentration.25 At the same time, the implementation of judicial accountability has brought another advantage. As the judge is in charge of the quality of cases which he/​she handled, he/​she will certainly be more meticulous and prudent when hearing cases. This will also result in a certain degree of improvement to the quality of hearings.26 8.3.4 Case Triage According to Complexity It is well-​known that case triage according to complexity is one possible way of improving judicial efficiency. The circumstances of civil and criminal litigation cases are always case-​specific, with both extremely simple cases involving small monetary amounts under dispute, and extremely complex cases with sizeable subject matters. Litigation systems all over the world have invariably chosen to set up litigation procedures with varying levels of complexity for these different situations.27 With the example of criminal litigation, proceedings in Germany are divided into several kinds such as ordinary procedure, the Accelerated Procedure and the Penal Order Procedure.28 On the other hand, China’s criminal proceedings system has shown to be quite inadequate in the precision of procedural arrangement over the long term. In the Criminal Procedure Law of 1979, there was only one type of ordinary procedure for hearings. In 1996, although a summary procedure was added in the Criminal Procedure Law, the scope of application and level of simplicity were still limited. This situation was relieved somehow after the amendment to the Criminal Procedure Law in 2012, 25 26 27 28

参见陈卫东：《司法责任制改革研究》，《法学杂志》2017年第8期。(See Weidong Chen, ‘A Study on Reforms to Judicial Accountability’ (2017) 8 Law Science Magazine). 参见张智辉：《论司法责任制综合配套改革》，《中国法学》2018年第 2期。(See Zhihui Zhang, ‘On the Comprehensive Supporting Reform of Judicial Liability System’ (2018) 2 China Legal Science). 傅郁林：《繁简分流与程序保障》，《法学研究》2003年第1期。(Yulin Fu, ‘Separation of Complicated and Simple Civil Cases and Procedural Guarantees in Civil Proceedings’ (2003) 1 Chinese Journal of Law). 参见李本森：《刑事速裁程序的司法再造》，《中国刑事法杂志》2016年第 5期。(See Bensen Li, ‘Judicial Reconstruction of Criminal Fast-​Track Sentencing’ (2016) 5 Criminal Science).

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but problems have remained significant. Such significance has been caused in two ways. Firstly, as mentioned above, due to a surge in crime rates, the number of cases rose rapidly, crippling criminal hearings. Secondly, in substantive criminal law there has been a proliferation of light offences. As the ‘reeducation through labour’ system was abolished, a huge amount of cases which used to be handled through administrative penalties have now been subsumed under the sanctions of criminal law. For instance, theft in public places, pickpocketing and multiple thefts have been added to the offence of theft, and criminal law provisions have been supplemented with drunk driving. This trend has directly led to a rise in the number of criminal cases. For the latter, these newly added offences are often light, such as drunk driving cases. In this kind of cases, the facts are usually clear and the evidence unequivocal. If ordinary hearing procedures are adopted, the process will involve several stages such as examination, court investigation and debates, which will undoubtedly lower efficiency. In order to solve the problem with efficiency in hearings for light offences, it is necessary to introduce even simpler litigation procedures. Still taking the example of criminal hearings, in 2016 China set up pilot projects for fast-​track sentencing, a further simplification in the summary procedure. Such simplification takes place in respect of procedures, such as through ‘abolishing the requirements for court investigation and court debates where the defendant pleads guilty in court, agrees with sentencing advice and consents to using fast-​track sentencing’. It also includes a simplification of formalities, such as in the indictments issued by public prosecution authorities. Since the cases heard in fast-​track sentencing are extremely simple cases where the defendants plead guilty, the time required for prosecuting and hearing these cases has been further compressed, with a requirement that courts should normally dispose of the case within 7 working days.29 From the pilot projects of fast-​ track sentencing, it can be observed that better results have been achieved in terms of efficiency, and the time required for hearing applicable cases has been significantly reduced.30 Amendments to the Criminal Procedure Law this year 29

30

李本森：《刑事速裁程序试点实效检验  –​ 基于12666份速裁案件裁判文书的 实证分析》，《法学研究》2017年第5期。(Bensen Li, ‘Practical Effect of the Pilot Project on Fast-​Track Sentencing in Criminal Procedure: Based on Evidential Analysis of Adjudicative Documents of 12,666 Fast-​Track Sentencing Cases’ (2017) 5 Chinese Journal of Law). 陈卫东、聂友伦：《侦查视角下的刑事速裁程序效率研究  –​ 现状、问题与展 望》，《中国刑事法杂志》2016年第6期。(Weidong Chen and Youlun Nie, ‘A Study of the Efficiency of the Criminal Fast-​Track Sentencing Procedure from an Investigative Perspective’ (2016) 6 Criminal Science).

118 Chen will officially incorporate this system under the ambit of the law, resulting in a trinity of procedures in criminal litigation, namely, the ordinary procedure, summary procedure and fast-​track sentencing. Such refining reforms will allow a better classification of different cases and thus improve efficiency in criminal hearings. In addition, there is another important reform in criminal litigation, which is leniency in cases of guilty pleas and acceptance of penalties. This reform uses light sentencing as an incentive for guilty pleas from criminal suspects and defendants, so as to lower difficulty and complexity in hearing cases, for hearings to focus on dealing with issues outside conviction, further improving judicial efficiency.31 8.3.5 Use of Technologies Such as Big Data in the Judiciary In recent years, there has been another crucial change in China’s court system, namely the application of current technologies, especially information technology, in the judiciary. It is apparent that technology, as a primary productive force, will greatly enhance efficiency in adjudication when its application is fused with the judiciary.32 To take one simple example, in many courts throughout China, word processing technologies have been installed with intelligent speech recognition functions. Court hearings have to be transcribed by clerks, who need to handle lots of administrative tasks. These clerks are not professional stenographers and the speed of transcription varies for different clerks. In certain circumstances, the speed of transcription may be slow. There may even be mistakes and omissions. On the other hand, with intelligent systems, speech is directly converted to writing, and clerks only have to correct mistaken transcriptions, in a smoothened adjudication process.33 Existing speech recognition system can even distinguish among various dialects, with a conversion accuracy exceeding 95%. The application of technology in courts is, of course, not restricted to the above, and speech recognition is part of a bigger picture. Courts’ application of

31 32 33

参见陈卫东：《十八大以来司法体制改革的回顾与展望》，《法学》2017年第 10期。(See Weidong Chen, ‘Hindsight and Foresight on Reforms to the Judicial System since the 18th National Congress of the Communist Party’ (2017) 10 Law Science). This viewpoint was already raised by some scholars in the 1980s. 参见徐盼秋：《要 用现代科学技术手段武装司法工作》，《法学》1984年第11期。(See Panqiu Xu, ‘The Necessity to Arm Judicial Work with Modern Technology’ (1984) 11 Law Science). 参见何帆：《我们离’阿尔法法官’还有多远》，《方圆》2017年第2期。(See Fan He, ‘How Far We Are from the ‘Alpha Judge’’ (2017) 2 Fangyuan Magazine).

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technology is also known as ‘intelligent administration of justice’ (智慧司法),34 which is applied in three main channels. The first channel is judicial assistance. China has built an intelligent judicial assistance system which houses many application tools assisting with adjudication work. Technologies such as intelligent search engines of judicial resources and intelligent sharing of adjudication experience can enable judges to search for reference materials more quickly and conveniently, including relevant legislations, similar decisions and legal documents. Using intelligent speech recognition technologies in court hearings can greatly reduce or even replace the transcription work of clerks. Technologies which assist in creating and intelligently analysing judgments can reduce the error rate of judgments and improve their quality.35 The application of these judicial assistance tools has strengthened the practical results of adjudication. As judicial assistance is becoming more intelligent and gradually more scientific, judges can concentrate on matters involving the exercise of judicial power, such as conviction and sentencing, and be relieved from burnout as a result of administrative work. The second way is through judicial management. Reforms seeking to remove elements of administration in judicial management represent neither a complete denial of judicial management powers, nor the administrative nature of such powers, but rather ensure that courts hear cases in a judicial manner.36 For a long time, China’s judicial management system has faced a series of ‘laissez-​faire’ problems in terms of adjudication efficiency, such as isolation among communication channels of various departments affecting judges’ ability to make correct decisions, and lack of a monitoring mechanism causing judges to be idle in discharging their duties. The application of big data and information technology in judicial management can significantly resolve the above difficulties. One element in the judiciary’s communication system

34

35 36

It should be noted that due to the special nature of judicial power functions and qualities, the application of technologies, such as big data, cloud computing, information technology and artificial intelligence, can only be ancillary means towards legal justice, and the cart must not be put before the horse. This is a fundamental principle to the judicial application of technology. 参见季卫东：《人工智能时代的司法权之变》，《 东方法学》2018年第1期。(See Weidong Ji, ‘Changes to Judicial Powers in the Age of Artificial Intelligence’ (2018) 1 Oriental Law). 程雷：《在改革发展中推进智慧法院建设》，《人民法院报》，2017年7 月10日。(Lei Cheng, ‘Pushing for the Construction of Intelligent Courts in Reform Developments’ (10 July 2017) People’s Court Daily). 崔永东：《司法改革与司法管理机制的’去行政化’》，《政法论丛》2014年第6 期。(Yongdong Cui, ‘Judicial Reform and Judicial Management Mechanism ‘to Deny the Administrative’’ (2014) 6 Journal of Political Science and Law).

120 Chen is that adjudication management data are publicized, with the adjudication process being open and any progress of a given case being immediately available online, thus allowing judges to handle cases diligently and efficiently to the largest extent. Another element is that the barriers between adjudication information on the one hand, and the systems of enforcement information, judicial personnel management and administration, on the other hand. Thus the ‘information silo’ phenomenon has been averted, allowing judges to get hold of the status and related activities of the cases which they adjudicate, and considerably increasing efficiency of adjudication.37 The third direction is through decision-​making and evaluation of reform proposals. As the foundation for improving adjudication quality and efficiency, reform measures should be treated with utmost attention in respect of their scientific nature and practicality. The scientific nature of the scheme design of judicial reforms is based on objective data assessment. In this regard, modern statistical methods and big data analysis are extremely beneficial for judicial assessment in ‘discovering shortcomings in the judiciary, and fostering judicial development’.38 A good judicial reform scheme must put efficiency as one of its designed goals, using effective assessment and decision-​making as measures to push for and refine reforms, and in the process, indirectly encouraging a rise in judicial efficiency. 8.4

Conclusion

Litigation explosion is a product generated when a country’s social and economic developments have reached a certain stage. It is directly reflected as a dramatic increase in litigation cases, causing a surge in case management stress and overloading in the court system. As the most important public good in dispute resolution and social governance, the judiciary must, in an effective manner, satisfy the public’s rising demands for litigation, otherwise disputes and hardships will remain unresolved and in the long term, severe social conflicts will necessarily result. From another perspective, in order for litigation

37

38

参见胡昌明：《中国智慧法院建设的成就与展望 –​以审判管理的信息化建设为 视角》，《中国应用法学》2018年第2期。(See Changming Hu, ‘Success and Future of the Construction of Intelligent Courts in China: Perspective from Informatisation of Adjudicative Management’ (2018) 2 China Review of Administration of Justice). 参见郑飞：《中国司法评估实践的理论反思》，《证据科学》2018年第1期。(See Fei Zheng, ‘Theoretical Review of the Practice of Judicial Assessment in China’ (2018) 1 Evidence Science).

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explosion to be resolved, scientific institutional settings and systemic arrangements are required, which at the same time further deepen and foster the construction of the rule of law on the sides. Ever since the open-​door policy, China’s annual litigation cases have shown an explosive upward trend. It can be said that China’s ‘litigation explosion’ phenomenon has basically taken shape. In practice, litigation explosion is represented through not only a significant rise in the number of civil and criminal cases, but also various aspects such as increasing complexity in the contents of cases, and more stringent requirements for procedural justice. In terms of cause, all the following play a role in the appearance of litigation explosion: an increase in social activities resulting from economic development, heightened crime rates and ability to solve cases, gradual refinement in the legal system, and strengthening of civic awareness of the rule of law. The most pressing issue for courts now is how to alleviate the case management pressure brought on by litigation explosion, against the background of China’s rule of law. Resolutions generally follow two lines of thought. First, case management powers can be strengthened, such as by increasing positions for judges, adjusting judges’ powers, providing support staff and reducing administrative work. Second, case management efficiency can be improved, for example through setting up case triage according to complexity and applying technologies. The abovementioned coping measures taken by courts against litigation explosion in practice have not challenged these lines of thought, and theoretically, the two limbs are subject to certain bottlenecks or limitations. Regarding case management powers, as the number of posts for judges is more or less fixed and difficult to increase, the only ways around this are internal recruitment and promotion, which have a limited potential and cannot be achieved simply by increasing the working hours of court personnel. As for case management efficiency, on the one hand, the nature of complexity-​based triage of cases and related reforms is to exchange ‘procedural justice’ for ‘litigation efficiency’, which may be justified but its overemphasis on efficiency will definitely lead to concerns of justice and fairness. On the other hand, the application of technology will only serve as assistance to the judiciary, instead of outright replacement, and will therefore have a limited effect on the improvement of judicial efficiency. To conclude, although the decision-​making bodies have introduced a series of measures to tackle the problem of litigation explosion, there are still more cases than there are people to handle them, causing pressure in the long run. It remains to be seen to what extent the adoption of these reforms can relieve stress.

­c hapter 9

A Study of the Tripartite Powers in Reforms to the Judicial Power Operation System Lei Du 9.1

The New Wave of Reforms to the Chinese Judicial System

Since 2013, a new wave of reforms to the judicial system have been introduced, which were marked by the decisions in the 3rd and 4th Plenary Sessions of the 18th Central Committee of the Communist Party of China.1 The wave of reforms reflects China’s attempt to develop concepts of ‘judicial independence’ and ‘judicial accountability’ that are possible to harmonize with the national constitutional power structure. The reforms also reflect China’s struggle to remodel the power balance within the judiciary in the current extraordinary situation of litigation explosion, accounted for in the previous chapter. In reforms to the judicial power operation system, China has chosen not to take the path of nurturing completely independent judges. China has had to find its own way to guarantee citizens correct judicial decisions in accordance with current law. A path known as the ‘micro-​level’ school of reform has been chosen. Simply explained, the micro-​level school of reform advocates adjustment and redistribution of powers within the judiciary to keep control with judicial powers. This chapter analyses the logic and different school of thought behind the reforms to the Chinese Judicial Power Operation system and explains the motivation and content of the newly established balance between powers and duties of Court Presidents, Chief justices, individual judges and collegiate ­panels. The Supreme People’s Court has, in accordance with plans for reforms and upon related studies, compiled the ‘Opinions on Comprehensive Deepening of Reform of People’s Courts’, as part of the ‘4th Five-​Year Outline of the Program for Reform of People’s Courts (2014 –​2018)’.2 For the first time, this document raised the formulation of ‘a judicial power operation system with judicial powers as the core, and case management and trial supervision powers 1 See the country report from China in Chapter 2 in this volume. 2 No. 3 [2015] Issued by the Supreme People’s Court) (《人民法院第四个五年 改革纲要（2014—​—​2018）》(法发〔2015〕3号)) (the ‘4th Five-​Year Reform Outline’.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_010

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as safeguards’. While ‘case management powers’ focus on procedural matters, ‘trial supervision powers’ focus on the substantive matters in a specific case. The terms will be further explained below. The Supreme People’s Court has also put forth concrete reform requirements for robust case management and trial supervision mechanisms by chief judges and court presidents, and a sound court management system. This is also the first time that the expression of ‘trial supervision powers’ appeared in official documents. Afterwards, the ‘Several Opinions of the Supreme People’s Court on Improving the Judicial Accountability System of People’s Courts’3 and the ‘Opinions of the Supreme People’s Court on Implementing the Judicial Accountability System and Improving the Trial Supervision and Case Management Mechanism (for Trial Implementation)’4 have both laid down concrete requirements on how to render case management and trial supervision mechanisms within the court system more robust and comprehensive. According to the reform documents, three related powers can be distilled from reforms to China’s judicial power operation system, namely judicial powers, case management powers and trial supervision powers. It is crucial to understand these reforms both in theory and practice. 9.2

Demarcations among Judicial Powers, Case Management Powers and Trial Supervision Powers

9.2.1 Judicial Powers Judicial powers are the powers to hear and adjudicate cases. In China, judicial bodies are commonly considered as being composed of the collegiate panel, the individual judge and the adjudicative committee.5 In other words, judicial powers are exercised by the above parties.

3 No. 13 [2015] Issued by the Supreme People’s Court( (《最高人民法院关于完善人民法院 司法责任制的若干意见》(法发〔2015〕13号)) the ‘Opinions on Judicial Accountability Reforms’. 4 No. 11 [2017] Issued by the Supreme People’s Court) (《最高人民法院关于落实司法责任 制完善审判监督管理机制的意见（试行）》(法发〔2017〕11号)) (the ‘Opinions on Improving the Trial Supervision and Case Management Mechanism’. 5 The adjudicative committee is a form of organisation adopted by people’s courts internally for the purpose of exercising collective leadership over adjudicative work. It is constituted by members such as the chief judge, deputy chief judge, court president and judges. Its role consists mainly of concluding adjudicative experience, discussing significant or difficult cases, and dealing with other matters related to adjudicative work.

124 Du From past practice, however, there are diverse bodies exercising these powers. After an individual judge or a collegiate panel has heard a case and made a preliminary judgment, the judgment has to be approved by the court president6 or his/​her deputy. The latter officers can amend the opinions or request the relevant judge to do so, if they not agree with the opinions of the individual judge or collegiate panel. Judgments approved by the court president or his/​ her deputy then have to be handed over to the chief judge, or usually his/​her deputy, for signature and issuance. The latter officer can amend the opinions or submit them to the adjudicative committee for discussion, if he/​she does not agree with such opinions. After discussion in the adjudicative committee, the opinions will become a decision which binds the individual judge or collegiate panel, who must then enforce the decision. In addition to this issuance process, after the hearing is complete, the individual judge or collegiate panel will sometimes produce a case report for the court president, his/​her deputy, the chief judge, his/​her deputy or the adjudicative committee, and then give out a judgment. This mode of judicial power operation is known in China as ‘administrative approval-​based judicial power operation system’. Under this mode of operation, the chief judge or his/​her deputy in charge (collectively, the ‘Chief Judge’), and the court president or his/​her deputy (collectively, the ‘Court President’), have in fact shared the judicial powers in the case, and exert an influence, or even decision-​making powers, over the outcome of the case. Currently, under the plans and requirements for judicial system reforms since the 18th Central Committee of the Communist Party, the documents issued by the Supreme People’s Court have explicitly demanded an elimination of administrative approval over judgments, such that judgments by individual judges or collegiate panels no longer require approval by the Court President or Chief Judge before issuance. Now individual judges will directly sign off cases which they handle. Judgments for cases heard by collegiate panels will be signed off by the judges in charge,7 other members of the collegiate panels and the presiding judges,8 in this order. Where the presiding judge acts 6 The court president is a kind of duty. Within courts in China, internal courts have been established, such as civil courts and criminal courts. Each court consists of a court president and a deputy court president. 7 The judge in charge is the main judge responsible for adjudication. Under individual adjudication, the individual judge is the judge in charge. Under collegiate panel adjudication, one of the judges of the panel will be appointed as the judge responsible for adjudication, i.e. the judge in charge. He/​she is the main person responsible for tasks such as reading case documents, bringing parties before the court, and drafting judgments. 8 The presiding judge is the judge who is responsible for organising adjudicative activities in the collegiate panel. He/​she is in charge of tasks such as oral hearings and deliberations

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as the judge in charge, he/​she will be the last to sign off the judgment. Except for cases decided through discussions in the adjudicative committee, there is to be no approval or issuance of judgments by the Court President or Chief Judge where they have not directly participated in the hearings, nor can they effectively adjudicate through oral instructions, sitting in collegiate panels, or circulation of papers. Also, by the reformed arrangements, even if the Court President or Chief Judge may in specific cases exercise the supervision powers outlined below, he/​she has no power to amend the opinions of the individual judge or college panel directly. In accordance with the above reform arrangements, in most cases judicial powers currently belong to the individual judge or collegiate panel handling the case. Even in certain significant and difficult cases, the Court President or Chief Judge has no power to directly change the outcome of the case; instead he/​she can only submit the case to the adjudicative committee for discussion and decision. The collegiate panel must carry out the decision of the adjudicative committee, which thus shares the judicial powers over the case. As official statistics show, now in practice the judgments of most cases are signed off by the collegiate panel or the individual judge, constituting over 98% of the total number of cases.9 9.2.2 Case Management Powers Case management powers are a concept raised explicitly in this round of reforms to the judicial system. In previous theories and practices, there was already a concept of court management, and court management offices were set up in view of strengthening such management. As for what constitutes court management, the ‘Several Opinions on Strengthening the Administration of Trials by the People’s Courts’ issued by the Supreme People’s Court defines it as the use of channels like organisation, leadership, instruction, evaluation, supervision and constraint, to make reasonable arrangements for trial work, stringently regulate trial processes, scientifically assess the quality and effectiveness of trials, and effectively consolidate judicial resources, so as to ensure of the collegiate panel. According to the requirements of the Organic Law of the People’s Courts, the chief judge or courts president appoints one of the judges of the collegiate panel as the presiding judge. When the chief judge or court president participates in adjudication, he/​she acts as the presiding judge himself/​herself. 9 参见周强：《最高人民法院关于人民法院全面深化司法改革情况的报告》（2 017年11月1日在第十二届全国人民代表大会常务委员会第三十次会议上）。(See Qiang Zhou, ‘Report of the Supreme People’s Court on the Situation of Comprehensive Deepening of Judicial Reforms in the People’s Courts’ (at the 30th Meeting of the 12th National People’s Congress Standing Committee on 1 November 2017).).

126 Du the fairness, incorruptibility and efficacy of the judiciary. Case management powers, on the other hand, are the powers to carry out the above activities and comprise seven basic powers, namely case information management, case quality evaluation, case quality assessment, trial procedure management, trial operation trend analysis, case outcome examination and adjudicative committee affairs management. The subjects exercising case management powers include the adjudicative committee, Chief Judge, Court President, presiding judge, adjudication officers and specialised case management authorities.10 The Chief Judge and Court President are important parties among the above in discharging case management duties. In the reform documents from the new round of reforms to the judicial system, the case management duties of the Chief Judge and Court President are especially highlighted. The 4th Five-​Year Reform Outline has clearly indicated that the judicial power operation system has to be refined, with judicial powers as the core, and case management and supervision powers as safeguards. It has also set out specific requirements for a robust case management mechanism by the Chief Judge and Court President. The same goes for the Opinions on Judicial Accountability Reforms. On the other hand, the Opinions on Improving the Trial Supervision and Case Management Mechanism have mainly introduced requirements on a comprehensive case management and supervision mechanism by the Chief Judge and Court President. Hence, the case management powers discussed here refer to those of the Chief Judge and Court President, and are relative to judicial and trial supervision powers. As for what exactly are the case management powers of the Chief Judge and Court President, the 4th Five-​Year Reform Outline points out that they are ‘robust case management and supervision mechanisms’ by the Chief Judge and Court President, ‘a clarification of the case management responsibilities of the Chief Judge and Court President which are commensurate with their job duties, regulations on changes to trial procedures and on the review and reporting system of changes to limitation periods, as well as a robust internal supervisory system on the classification and archival of litigation papers, online case management, regulation of trial procedures, and uploading of judgments onto the Internet’. According to these requirements, the case management duties of the Chief Judge and Court President include changes to trial procedures, the review and reporting of changes to limitation periods, as well as internal 10

参见《最高人民法院关于新时期进一步加强人民法院审判管理工作的若干意 见》（法发【2014】8号）。(See ‘Several Opinions of the Supreme People’s Court on Further Strengthening the Case Management Work of the People’s Courts in the New Age’ (2014) 8 issued by the Supreme People’s Court).

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supervisory duties such as the classification and archival of litigation papers, online case management, regulation of trial procedures, and uploading of judgments onto the Internet. In conclusion, it may be seen that the Chief Judge and Court President are subject to numerous case management duties, but overall they can be divided into two types, one being a simple management of administrative affairs, and the other being adjudication of procedural problems, which consists of decisions on procedural problems in hearings according to powers and procedures prescribed by law, such as avoidance, public hearings, mandatory measures, limitation periods, uploading of documents, and legal aid. As the current discussion studies the judicial power operation system on the micro level, i.e. the influence exerted on the substance and procedures of cases by the Chief Judge, Court President, individual judge or collegiate panel, the author will deploy the concept of ‘case management powers’ in a narrow sense, pinpointing the latter limb, which is the power to decide on various procedural problems in trials within the ambit of powers and procedures prescribed by law. 9.2.3 Trial Supervision Powers Traditionally, the concept of ‘trial supervision powers’ did not exist in China. In litigation law and practice, what involves ‘trial supervision’ is the legal term ‘trial supervision procedure’ (审判监督程序). Trial supervision procedure, also known as retrial procedure (再审程序), is a procedure through which proceedings for relief are commenced anew vis-​à-​vis an effective judgment. In this procedure, the powers enjoyed by the prosecutor’s office are usually referred to as ‘demurrer’s powers’ (抗诉权), while the powers of the accused are ‘claimant’s powers’ (申诉权). What has to be explained is that in Chinese law, courts themselves can commence the retrial procedure, with the Supreme People’s Court having the power to review or order a retrial on effective decisions by local people’s courts at various levels, and people’s courts at higher levels may do the same to those at lower levels. Effective decisions on a court by another on the same level must be submitted to an adjudicative committee for decision before a retrial can be commenced. Theoretically, however, the power of a court to initiate the retrial procedure on its own decisions is not defined as ‘trial supervision powers’. In the current reforms to the judicial system, the concept of ‘trial supervision powers’ was first raised in the 4th Five-​Year Reform Outline. The 4th Five-​ Year Reform Outline demands ‘robust case management and trial supervision mechanisms’ by the Chief Judge and Court President, ‘a clarification of the case management responsibilities of the Chief Judge and Court President which are commensurate with their job duties, a robust internal system of restraints and

128 Du supervision, a refined mechanism of conferences for the presiding judge and professional judges, regulations on the supervisory mechanism’ on the Chief Judge and Court President in ‘significant, difficult and complex cases, and the installation of an archival system for all documents resulting from supervisory activities of the Chief Judge and Court President …’. From these requirements it can be discerned that the trial supervision powers per se of the Chief Judge and Court President are in fact their powers to supervise significant, difficult and complex cases. According to the requirements in the Opinions on Judicial Accountability Reforms and the Opinions on Improving the Trial Supervision and Case Management Mechanism, the system of trial supervision powers in operation consists of powers of the Chief Judge and Court President in the ‘Four Types’ of cases (‘四类’ 案件)11 to request individual judges or collegiate panels to report the progress of cases and comment on case outcomes before a decision is made. Where, in hearing a case, the individual judge or collegiate panel discovers circumstances qualifying for trial supervision, they should proactively report to the Chief Judge and Court President in accordance with procedure. Where the Chief Judge or Court President disputes the hearing procedure or comments on the case outcome, he/​she cannot directly vary the opinions of the collegiate panel but can decide to submit the case to the professional judges’ conference12 and adjudicative committee for discussion. The opinions from discussions in the professional judges’ conference are advisory and for reference only; the collegiate panel can decide whether to adopt such opinions. The opinions from discussions in the adjudicative committee must, however, be implemented. 11

12

According to the ‘Opinions on Judicial Accountability Reforms’, the ‘Four Types’ of cases refer to: (1) those involving collective disputes and being capable of upsetting social stability; (2) those which are difficult, complex and significant in society; (3) those capable of causing conflicts with similar decisions of the relevant court or more senior courts; (4)  those where relevant units or individuals have complained that the judges have engaged in illegal adjudicative behaviour. The professional judges’ conference is also an important reform task in this round of reforms to the judicial system. The ‘4th Five-​Year Reform Outline’ has suggested ‘a refined mechanism of conferences for the presiding judge and professional judges’. The professional judges’ conference in this suggestion is formed internally in people’s courts by judges with specialisations such as in civil, criminal or administrative law. Its function is to offer advisory opinions for the collegiate panel on correct understandings and applicable laws. When the collegiate panel believes that the case under trial is significant, difficult and complex, and the applicable legal standards are not uniform, it can refer the issue of applicability to the professional judges’ conference for studies and discussions. Opinions resulting from such discussions are for reference only; it is up to the collegiate panel whether to adopt the opinions.

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The above explained trial supervision powers of the Chief Judge and Court President are intrinsically different from trial review procedures initiated to reverse decisions that have been made. Trial supervision by the Chief Judge and Court President focus on a decision in its making, while that in review procedures concentrates on a decision which has already taken effect. Also, trial supervision by the Chief Judge and Court President entail their intervention before any decision is formulated, in a way preventing unjust, fake and false rulings through organisations such as the professional judges’ conference and the adjudicative committee, whereas review procedures result in the commencement of retrial proceedings. The trial supervision powers of the Chief Judge and Court President are also distinct from their case management powers. Trial supervision powers focus on the substantive matters in a case, while for case management powers the focus would be procedural matters. The effects of trial supervision powers will be to supervise and to be supervised, without direct influence on the actual outcome of the case, but those of case management powers are command and obedience, which can directly determine the procedure to be adopted for a case. As Xiaorong He, Specialist Member of the Adjudicative Committee of the Supreme People’s Court, said, ‘if judicial and case management powers form a vertical relationship between decision and obedience, put in place internally for resolving procedural matters in people’s courts, then judicial and trial supervision powers form a horizontal relationship of mutual checks and independence for resolving procedural and substantive matters’.13 9.2.4 Conclusion On the macro level, three dimensions of regulation have resulted in terms of the practical operation of judicial powers in China, namely the ‘point’, the ‘line’ and the ‘plane’. Point-​wise, substantive supervision powers have been exercised on significant, difficult and complex cases. Line-​wise, procedural matters have been approved and the smooth running of the trial process has been enhanced. Plane-​wise, problems arising from case management have been studied, trial experience has been continuously evaluated, and adjudicative standards have been unified, in order to exercise duties of integrated instruction and supervision on cases.14 13 14

贺小荣：《如何牵住司法责任制这个牛鼻子》，载《人民法院报》2015年9月2 3日第05版。(Xiaorong He, ‘How to Lead the Judicial Accountability System by Its Nose’ (23 September 2015) 5 People’s Court Daily). 参见《最高人民法院关于全面深化人民法院改革的意见（读本）》，人民 法院出版社2015年版，第162页。(See ‘Report of the Supreme People’s Court on

130 Du On the micro level, in terms of case handling, the modus operandi is that of micro-​level judicial powers, with the individual judge or collegiate panel exercising judicial powers; and the Chief Judge and Court President exercising case management powers in procedural matters, and trial supervision powers in substantive matters. In other words, in reforms to China’s judicial power operation system, while judges or adjudicative bodies are authorised to handle cases, a double management-​cum-​supervision framework has also been established with case management and supervision powers as the fulcrum. Such a framework is not only effective on the macro level, but also capable of allowing the Chief Judge and Court President to participate in case handling in procedural and substantive matters, with the only difference lying in the extent and effectiveness of intervention. It can be said that management and supervision of court procedings are characteristics of this judicial power operation system. More deeply, case management and trial supervision of this kind are carried out by courts’ internal personnel who have attained certain administrative and professional levels, and thus constitute an internal management and supervision mechanism. 9.3

Distinctions between Tripartite and Traditional Administrative Approval-​Based Judicial Power Operation Systems

As mentioned above, under the traditional administrative approval-​based judicial power operation system, the handling of a case has to be approved, level by level, by the Court President, Chief Judge and even the adjudicative committee, which are hierarchically above the individual judge or collegiate panel. The outcome of a case does not depend solely on the individual judge or collegiate panel. Under the tripartite framework, the case management powers of the Chief Judge and Court President have not changed substantively. The most significant change is instead found in trial supervision powers, i.e the power to supervise on decisions in its making. In the operation of judicial powers, those which are of an administrative nature and are decisive towards the adjudication outcome have been separated out as the trial supervision powers of the Chief Judge and Court President. These powers, previously based on administrative approval in the form of ‘command and compliance’, have been repositioned as

the Situation of Comprehensive Deepening of Judicial Reforms in the People’s Courts (Reader)’ (2015) People’s Court Press 162).

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‘supervision powers’, with the Chief Judge and Court President no longer having any direct decisions over adjudication outcomes. Instead, the Chief Judge and Court President exert influence only through calling a professional judges’ conference or the adjudicative committee. This new system keep a check on the personal power of the Chief Judge and Court President. Furthermore, the approval powers of the Chief Judge and Court President are now supervisory powers to initiate certain procedures, and not actual disciplinary powers.15 This is the biggest difference between the present tripartite and the former administrative approval-​based judicial power operation systems. It can be said that separating trial supervision powers for a repositioning of powers is a crucial change in this round of reforms to the judicial system, and is considered a transformation and revolution in the internal supervisory constraints of judicial powers. It has to be clarified that, compared with the administrative approval-​based system, trial supervision powers are not exercised for all cases. Under the former system, every case had to be approved by the Chief Judge and Court President, while trial supervision powers are engaged only in the Four Types of cases as prescribed by law.16 This means that the exercise of trial supervision powers is conditional and limited in scope. As against the administrative approval-​based system, the influence by the Chief Judge and Court President on adjudication outcomes has also transformed significantly under the tripartite framework. In the former system, the Chief Judge and Court President could both have a decisive influence on adjudication outcomes through the adjudicative committee, and exercise personal powers to change such outcomes. Under the tripartite framework, however, neither the Chief Judge nor the Court President could directly sway the outcome in one way or another in their personal capacities, and can only exert

15

16

参见田成有：《审判权、审判管理权及审判监督权的分立与制衡》，载《 法制日报》2016年12月28日第010版。(See Chengyou Tian, ‘The Separation and Mutual Checks among Judicial Powers, Case Management Powers and Trial Supervision Powers’ (28 December 2016)  10 Legal Daily.) There are of course different kinds of understanding of the nature of trial supervision powers. Some believe that such powers should still be classified as a power of command as the Chief Judge and Court President have the power to veto the collegiate panel’s opinion and transfer the case to the adjudicative committee, which in practice deprives the individual judge and collegiate panel of their adjudicative powers. 参见万毅：《‘审判监督’之惑—​—​ 解读院庭长审判监督权》，载《人民法治》2016年第6期。(See Yi Wan, ‘The Confusion over ‘Trial Supervision’: Interpreting the Trial Supervision Powers of the Chief Judge and Court President’ (2016) 6 People Rule of Law). The ‘Four Types’ of cases are explained above (in n 11).

132 Du influence in the collective capacities of the professional judges’ conference or adjudicative committee. This marks a shift from individual to collective exercise of power. Such a shift can not only concentrate the collective wisdom of judges within courts, but also prevent a direct intervention in adjudication outcomes by the Chief Judge and Court President. After reforms, there have been changes to the roles of the Chief Judge and Court President in judicial power operation, from decision-​makers under the traditional administrative approval model to substantive supervisors and procedural case managers in the tripartite system. 9.4

Major Disputes in Reforms to the Judicial Power Operation Mechanism

9.4.1 Sorting out the Disputes There have been many disputes in the reformation process of China’s judicial power operation system. These disputes reflect, firstly, the complexity and difficulty in various objective problems encountered during social transformations in China. Matters which do not pose problems in other countries or regions may be hugely problematic in China, which is to say that while the situations in China and other countries or regions may be identical or similar, there are also circumstances which are specific to China. Secondly, underlying these disputes are clashes between different ideologies. The logic behind reforms to China’s judicial power operation system can be better demonstrated by sorting out the disputes in these reforms. Two Lines of Thought in Reforms: Complete Independence of Judges vs. Micro-​Level Judicial Power Operation Mechanism There have been two opposing schools of thought in reforms to the judicial power operation mechanism. One school advocates that these reforms should help nurture completely individual judges, i.e. the ‘complete independence’ school of thought; the other school, however, considers problems arising from China’s judicial power operation process not as one of independence of judges, but rather a lack of clear division in the powers and duties in the system at large. In the latter school of thought, the problem is therefore one of ambiguity in the powers and duties of the Chief Judge, Court President, as well as the individual judge and collegiate panel handling the case. Reforms need to clarify the duties of the individual judge or collegiate panel, and also those of the Chief Judge and Court President, instead of allowing complete independence for judges. This is the ‘micro-​level’ school of thought. 9.4.2

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From the perspective of complete independence, China’s traditional mode of administrative approval-​based judicial power operation is subject to various drawbacks and thus completely independent judges need to be trained. Some of the reasons include,17 firstly, that independent decisions by judges are a necessary requirement arising from the neutrality and personal nature of the judiciary. Secondly, they are also a necessary requirement out of judicial efficiency; if the judge cannot decide on relevant matters independently, the efficiency of judicial activities will certainly be lowered. Thirdly, if the judge cannot make independent decisions but are instead subject to various kinds of interference from the outside, unfair decisions may result, people’s confidence in judges may be compromised, and dispute resolution will be more difficult. Fourthly, a lack of independence on the part of judges will allow more room for improper intervention in judicial affairs. Fifthly, this will also cause an unscientific arrangement in the responsibilities of case handling; if the case handler bears this responsibility, there will be mismatch in powers and duties, but if courts bear collective responsibility, then everyone will be responsible, which practically means no one will share responsibility. From the viewpoint of the micro-​level school of thought, the above reasoning is flawed and incorrect. The reasons include,18 firstly, that administrative 17

For some of the representative works, see 贺卫方： 《中国司法管理制度的两 个问 题》， 载《中国社会科学》 1997 年第6期 (Weifang He, ‘Two Problems in China’s Judicial Management System’ (1997) 6 Social Sciences in China)； 陈卫东， 韩红兴： 《以法官独立为核心 推动我国法官制度的现代化》， 载《人民司法》 2002 年第2期 (Weidong Chen and Hongxing Han, ‘Pressing for Modernisation in China’s System of Judges with Independence of Judges as the Focus’ (2002) 2 People’s Judicature)；陈卫东： 《司法机关依法独立行使职权研究》， 载《中国法学》 2014年第2期 (Weidong Chen, ‘On the Judicial Independence According to the Law’ (2014) 2 China Legal Science)；龙宗智， 袁坚：《深化改革背景下 对司法行政化 的遏制》， 载《法学研究》2014年第1期 (Zongzhi Long and Jian Yuan, ‘Curbing the Trend towards the ‘Administrativization’ of Courts against the Background of Deepening the Reform’ (2014) 1 Chinese Journal of Law). 18 For some of the representative works, see 顾培东： 《人民法院内部 审判权运行机制构建》， 载《法学研究》2011年第4期 (Peidong Gu, ‘The Internal Construction of the Judicial power operation Mechanism in People’s Courts’ (2011) 4 Chinese Journal of Law)；顾培东： 《再论人民法院审判 权运行机制的构建》， 载《法学研究》2014年第5期 (Peidong Gu, ‘On Establishing Operation Mechanism of Judicial Authority of People’ s Court’ (2014) 5 China Legal Science)；顾培东： 《中国特色司法制度微观基础塑造的重要探索》， 载《法制资讯》2010年第12期 (Peidong Gu, ‘An Important Investigation Constructed on a Micro-​Level Basis of a Judicial System with Chinese Characteristics’ (2010) 12 Legal Information)；蒋安杰： 《‘两权改革’： 中国审判运行机制的微观样本》， 载《法制资讯》2010年第12期 (Anjie Jiang, ‘‘Reform of the Two Powers’: A Micro-​Level Sample of China’s Judicial Operation Mechanism’ (2010) 12 Legal Information).

134 Du approvals are not the main problem facing judicial power operations; to argue otherwise would be a sweeping generalisation. The higher the level of the court, and the larger the number of cases handled, the lower the extent to which operations become administrative. Even if there is gatekeeping at each level, the role of the Chief Judge and Court President will not be one of ‘vetting’, but rather predominantly ‘review’, meaning that the collegiate panel or individual judge is not obliged to follow orders from above, thus rendering administrative approval obsolete in practice despite its nomenclature. Secondly, the administrative approval-​based mode of operation has its advantages; gatekeeping and supervision by the Chief Judge, Court President and adjudicative committee have enabled significant safeguarding of the adjudication quality in various levels of courts. Thirdly, the personal nature of the judiciary does not equal ‘face-​to-​face communication’ or ‘observation from a close distance’. All activities geared towards understanding case details, such as reading case documents, listening to presentations by the judge handling the case, and taking part in discussions about the case, are conducive towards greater understanding of the case, and should be considered part of the ‘adjudication’ process and a mode of ‘adjudication’. Fourthly, independence of judges does not go hand in hand with the current circumstances in China. The sheer size of the team of judges in China means that they cannot be turned into small selected groups or elites. It is an undisputed fact that the work quality of China’s judges is still not high. The failure of judges to comply with laws and disciplinary regulations is still severe. Judges do not hold position for life and can be suspended or removed at will, which does not support their independence. The cultural concepts in China are not conducive towards special social privileges of particular elite groups, and from the experience of certain countries. Once judges gain independence, both the judiciary and judges themselves may spin out of control. Fifthly, China’s judicial system has designated the institution of the court as the subject of adjudication, so judicial powers cannot simply belong to the collegiate panel or individual judge, nor can they completely rely on the Chief Judge or Court President, but must instead be exercised as an overall function of the court. Sixthly, the collegiate panel or individual judge may not be less susceptible to external influence than the Chief Judge or Court President, who may be better positioned in integrating positive influences from society and rejecting negative influences. For those in support of the micro-​level school of thought, the main problem of China’s judicial power operation processes lies in a lack of internal discipline in such operations. This refers to the absence of clarity and uniformity in the scope of duties, delineations of powers and mutual relationships of the individual judge, collegiate panel, deputy chief judge, chief judge, deputy

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court president, court president and the adjudicative committee, both in the system and in practice. Specifically, it is uncertain whether the Chief Judge and Court President should intervene in a given case, who exactly has the final say in the outcome of the case, and what procedures or stages the case should go through. This has led to some problems when the new judicial power operation mechanism is put to practice: none of the subjects in courts are responsible for the adjudication process and outcome, or, in other words, it is not clear who should bear responsibility; when there are more cases than there are people to handle them, the use of adjudicative resources does not match the actual demand for solving cases; this has provided opportunities and conditions for internal court personnel to use their positions for personal gain, and engage in fraud.19 In terms of practice, some judicial authorities have long been implementing the micro-​level school of thought. For instance, the ‘dual-​power’ reforms (‘两权’改革) taking effect in the Chengdu Intermediate People’s Court are essentially reforms in judicial powers and case management powers.20 In fact, in this round of reforms to the judicial system, reference was made to the line of thought in the ‘dual-​power’ reforms above, while adopting the micro-​level school of thought, further introducing scientific reforms to the ‘dual powers’ separating and remodelling trial supervision powers from case management powers and, at the same time as completely abolishing the administrative approval-​based mode of judicial power operation, supervising the individual judge or collegiate panel with the help of trial supervision powers. Completely Abolishing the Administrative Approval System vs. Establishing a Judgment Review System The second dispute concerns the choice between completely abolishing the administrative approval system and establishing a judgment review system. During the reform process, it has been suggested that, after the abolition of the administrative approval system, reference could be made to the past practice of 9.4.3

19 See 顾培东：《再论人民法院审判权运行机制的构建》， 载《法学研究》 2014年第5期 (Peidong Gu, ‘On Establishing Operation Mechanism of Judicial Authority of People’ s Court’ (2014) 5 China Legal Science)；顾培 东 ： 《 中 国 特 色 司 法 制 度 微 观 基 础 塑 造 的 重 要 探 索 》 ， 载《法制资讯》2010年第12期 (Peidong Gu, ‘An Important Investigation Constructed on a Micro-​Level Basis of a Judicial System with Chinese Characteristics’ (2010) 12 Legal Information). 20 参见蒋安杰： 《‘两权改革’：中国审判运行机制的微观样本》， 载《法制 资讯》2010年第12期。 (See Anjie Jiang, ‘‘Reform of the Two Powers’:  A Micro-​Level Sample of China’s Judicial Operation Mechanism’ (2010) 12 Legal Information).

136 Du establishing a judgment review system in Taiwan, China. Certain courts at testing locations have in practice explored such an establishment, providing that a small number of difficult and complex cases in which the court president is not confident can be handed in to the deputy chief judge for review (or the deputy court president to the court president, or other judges to the court president or deputy court president) before judgments are submitted for printing, while any review comments are only for reference for the judge signing off the judgment. Such suggestions were also raised when the ‘Opinions on Judicial Accountability Reforms’ were being formulated, but the final opinions did not adopt these ideas. One of the objectives of judicial accountability reforms is the removal of administrative elements which obliterate judges from personal liability for the outcome of a court case. But currently administrative elements persist in the judiciary; in particular, many Chief Judges and Court Presidents turn reviews into approvals, in an environment where traditional ‘nanny-​style’ gatekeeping ideas are deeply rooted. This can easily become a change in form but not in substance. As Chief Judges’ and Court Presidents’ functions turn from case approval on the micro-​level to macro-​level management and directly handling cases, it will in fact be difficult to adapt to the rise in cases and dispersion in decision-​making subjects, even if the review system is implemented. It will also be less advantageous for Chief Judges and Court Presidents to devote their limited energy to case handling and macro-​level management when they no longer have the opportunity to influence the outcome directly. At last, in the reforms, the administrative approval system has been completely abandoned, but at the same time, professional judges’ conferences and the case management and trial supervision system have been taken on to address judges’ lack of judicial power.21 Not Establishing Chief Judges’ and Court Presidents’ Case Management and Trial Supervision Powers vs. Establishing Chief Judges’ and Court Presidents’ Case Management and Trial Supervision Powers In reforms to the judicial power operation mechanism, it is disputed whether Chief Judges’ and Court Presidents’ case management and trial supervision powers should be retained. This could be deemed a continuation of the conflict between the complete independence and micro-​level schools of thought. 9.4.4

21

参见马渊杰： 《坚持司法责任制下放权与控权的统一》， 载《人民法院报》 2016年12月7日第08版。(See Yuanjie Ma, ‘Persevering on the Uniformity between the Release and Control of Powers under the Judicial Accountability System’ (7 December 2016) 8 People’s Court Daily).

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Those against retention argue that, as the principle of ‘let the trier adjudicate, and the adjudicator take responsibility’ needs to be clarified. Chief Judges and Court Presidents who are not the presiding judges of a case cannot in any way influence its adjudication, nor can they exercise case management and trial supervision powers. On the other hand, those in support of retention believe that, according to China’s constitution and Organic Law, it is the people’s courts which exercise their duties and powers in accordance with law, and not individual judges. Chief Judges and Court Presidents, as officers elected and appointed at various levels of the National People’s Congress, and bearing supervisory and management duties, should enjoy case management and trial supervision powers over adjudicative activities as prescribed by law.22 In addition, the people’s courts have for a long time been facing an overload of cases, so there is an actual demand for case management which helps with coordinating adjudicative resources, streamlining the adjudicative process and improving adjudicative efficiency. Also, in practice, improper external intervention and a lack of internal incentives have made it necessary to place constraints on judges’ adjudicative actions, and hence there is a need to enact case management and trial supervision in order to strengthen constraints over adjudicative actions.23 As a result, supporters consider that the crux of the issue is how to correctly demarcate the Chief Judges’ and Court Presidents’ case management and trial supervision powers, including the boundaries of these powers and how they are exercised. Apparently, the final choice in this round of judicial system reforms is to retain the Chief Judges’ and Court Presidents’ case management and trial supervision powers, because there is still a legitimate need for these measures, and to only demarcate the scope and manner of exercise of these powers. 9.5

Towards a Balance in Powers and Duties? An Analysis of the Reforms to China’s Tripartite Judicial Power Operation System

In reforms to the judicial power operation system, China has adopted the ­micro-​level school of thought, instead of taking the path of nurturing 22 23

参见贺小荣：《如何牵住司法责任制这个牛鼻子》，载《人民法院报》2015年 9月23日第05版。(See Xiaorong He, ‘How to Lead the Judicial Accountability System by Its Nose’ (23 September 2015) 5 People’s Court Daily). 参见顾培东：《中国特色司法制度微观基础塑造的重要探索》，载《法制 资讯》2010年第12期。(See Peidong Gu, ‘An Important Investigation Constructed on a Micro-​Level Basis of a Judicial System with Chinese Characteristics’ (2010) 12 Legal Information).

138 Du completely independent judges. This school of thought has determined right from the start the impossibility of eradicating the control or influence by Chief Judges and Court Presidents over judges and collegiate panels. Case management and trial supervision powers by Chief Judges and Court Presidents were thus instituted upon this basis. Although the reforms still emphasise ‘control of powers’, in the reform process we have also seen certain reform measures based on ‘release of powers’. On the one hand, we have seen that the reforms have completely abolished the administrative approval mechanism, which means that judgments no longer need to be signed off by the Chief Judge or Court President. This has systemically eliminated the practice of Chief Judges and Court Presidents in directly meddling with or intervening in adjudication outcomes. It has also made the presiding individual judge and collegiate panels more accountable. On the other hand, although in this round of reforms the ‘control of powers’ over the individual judge and collegiate panel is also emphasized, and trial supervision powers have been set up, this kind of ‘control of powers’ is different from the administrative approval of the past, as currently no direct order can be made upon the individual judge or collegiate panel to change the outcome of adjudication. On the whole, this kind of reforms has departed from the previous understanding and practice where courts acted as the institutional subject of judicial powers, with common participation and exercise of judicial powers by the Chief Judge, Court President, adjudicative committee, individual judge or collegiate panel. Instead, judicial powers have now been handed to the individual judge and collegiate panel, while the Chief Judge and Court President exercise case management and trial supervision powers outside judicial powers. In other words, whereas judicial, case management and trial supervision powers were previously concentrated under the judicial powers of the courts acting as institutional subjects, now there is a horizontal structure of judicial, case management and trial supervision powers. For the individual judge or collegiate panel, this is actually an improvement. It may be said that, amidst reforms to China’s micro-​level judicial power operation mechanism, there has been a tug of war between the control and release of powers. Realistically, this tug of war results in a maximal expansion of individual judges’ and collegiate panels’ independence and autonomy, which in effect represents an acknowledgement that these parties alone enjoy judicial powers. The consequences from this shift in powers has largely been a product of responsibilities behind case management. Hidden beneath this kind of arrangement of powers is an allocation of responsibilities. In previous judicial practice, one significant problem in the operation of judicial powers was that after

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difficulties emerged in a case, it was uncertain who would bear the responsibilities of handling the case, as any of the following could have participated in the formation of the adjudication outcome:  the adjudicative committee, Chief Judge, Court President, collegiate panel or individual judge. Accordingly, in this round of judicial system reforms, ‘judicial accountability reforms’ have been suggested, with the aim of delineating the scope of responsibilities of the Chief Judge, Court President, collegiate panel or individual judge. This can be known as reforms to the accountability undertaking system in the judicial realms. According to the arrangement suggested by the ‘Opinions on Judicial Accountability Reforms’, the responsibilities of adjudication are now mainly borne by the individual judge or collegiate panel. Where the case is discussed and decided by the adjudicative committee, the collegiate panel has to be responsible for the facts which it reports, while members of the adjudicative committee are responsible for their respective opinions and final decisions. This means that, in effect, the Chief Judge and Court President no longer take any adjudication responsibility for the case. The Opinions on Judicial Accountability Reforms require the Chief Judge and Court President to bear case management and trial supervision responsibilities. This is in line with the separate institutions of case management and trial supervision powers, i.e. powers and duties are aligned with each other. This seems to have achieved a balance between the two. What should be noted, however, is that the judicial accountability reforms are different from the ‘land undertaking’ accountability reforms implemented in the agrarian sector of the Chinese society. The latter was also termed with reference to increased responsibilities of individuals. In practice the land undertaking accountability reforms brought more powers and benefits, which were powers to use land, while any accompanying responsibilities or risks were almost non-​existent. This has therefore stimulated activity in the Chinese agricultural economy. As for the judicial accountability reforms, although the individual judge and collegiate have gained powers of independence and autonomy in decision-​making, the accompanying responsibilities or risks are rather obvious. In case of wrong decisions, appeals or petitions (上訪), a negative evaluation would be cast upon the individual or collegiate panel. In particular, in certain difficult or complex cases, such negative influence would exceed the tolerance level of the individual judge or collegiate panel. The judicial accountability reforms is therefore not necessarily wholehearted embraced by the individual judge or collegiate panels. It can be seen that corresponding measures have been adopted in the reforms, as in the trial supervision powers of the Chief Judge and Court President;

140 Du or intelligence sharing through judges’ conferences, which might avoid improper handling of the case; or transferal of the case to the adjudicative committee for discussion and decision, thus realizing a shift in case management responsibilities. This is a power-​duty shifting mechanism. In this way, a form of judicial accountability has appeared in China where judges’ responsibility forms the core, and collective responsibility acts as a supplement. Even though case management responsibilities may be dissipated or shifted with the help of certain mechanisms, it is overall questionable whether the individual judge or collegiate panel is really willing to enjoy independence and autonomy in decision-​making, which is followed by bearing case management responsibilities. Such a power-​duty shifting mechanism may be frequently used to replace the independent and autonomous decision-​making powers of judges, as in previous reforms.24 One special feature is that it is also uncertain whether the current incentive mechanism is sufficient to encourage the individual judge or collegiate panel to take on case management responsibilities. In addition to the judicial accountability reforms, this round of reforms in the judicial system has also introduced reforms in personnel quota system.25 Statistics show that 120,138 judges have been appointed to positions as ‘assigned judges’ among the original staff of 211,990 previously carrying out judicial tasks.26 The reforms in personnel quota system are closely related to the position of judges in courts, their level of remuneration and benefits received. This could possibly be an incentive mechanism, but the effects of the current reforms also remain to be assessed. From these reforms comes a need to provide assigned judges with a 24

25

26

For instance, during the ‘1st Five Year’ and ‘2nd Five Year’ reforms, China’s courts emphasized returning power to the collegiate panel and downplaying administrative elements in judges’ case management. Due to various problems in practice, however, the administrative element in case management, which was supposed to be downplayed in the reforms, is widely applied in reality, so the goal of the reforms has not been reached. See also Chapter  8. Reforms in personnel quota system are a designation of the number of judge positions within a court based on factors such as the number of cases to be handled, population under the jurisdiction of the relevant court and level of economic development. Only those who have passed through the stringent selection process can be appointed and thus become an ‘assigned judge’. Assigned judges are provided with ancillary staff such as assistants and clerks, such that the best legal talents will stay on the frontline handling cases. 参见周强：《最高人民法院关于人民法院全面深化司法改革情况的报告》 （2017年11月1日在第十二届全国人民代表大会常务委员会第三十次会议上）。(See Qiang Zhou, ‘Report of the Supreme People’s Court on the Situation of Comprehensive Deepening of Judicial Reforms in the People’s Courts’ (at the 30th Meeting of the 12th National People’s Congress Standing Committee on 1 November 2017).).

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large number of assistants and clerks, which poses difficulties in implementation. Also, certain leadership cadres are still handling simple or dummy cases, which together with a large number of newly initiated cases, have compounded the case management burdens of frontline judges.27 It can be observed that it still awaits assessment whether this kind of reforms is sufficient to encourage individual judges or collegiate panels to handle cases independently and autonomously and take on responsibilities themselves. In addition, further observation is required to determine if this internal balance of powers and duties on the surface can really withstand challenges from the external systemic environment. In China, the adjudicative work of courts has been having an increasing influence on society, and has been receiving significant attention from the ruling party as well as government authorities. Consequent upon such attention, the adjudication of cases, whether overall or individually, may impact the political performance of leaders such as Chief Judges, and in turn their prospects of promotion. These parties will not tolerate the situation of ‘powers with judges, pressure on courts, responsibilities in Chief Judges’. From this viewpoint, leaders such as Chief Judges will invariably have a demand for intervention or interference, whether on the whole or for certain individual cases. As much as this issue needs to be resolved in this round of judicial system reforms, with internal system designs and reforms, there has been no fundamental change in perspective in the shaping of the external systemic environment. Instead, this may have an impact on the effect of internal systemic design operations. As a result, it is worrying whether the abolished administrative approval system might be ‘revived’ in other forms, and whether trial supervision powers might be applied with an expanded scope. Perhaps, as certain scholars in China have indicated, the reforms in the tripartite set-​up of judicial, case management and trial supervision powers are in effect transitional measures reflecting reformers’ helplessness:  whereas they want to release powers and enable judges to handle cases and bear responsibility independently, they are also worried about unlawful adjudication or unjust, fake and false rulings. Therefore, they cannot help but retain control on certain cases, and attempt to attain some balance between the independence

27

参见周强：《最高人民法院关于人民法院全面深化司法改革情况的报告》 （2017年11月1日在第十二届全国人民代表大会常务委员会第三十次会议上）。(See Qiang Zhou, ‘Report of the Supreme People’s Court on the Situation of Comprehensive Deepening of Judicial Reforms in the People’s Courts’ (at the 30th Meeting of the 12th National People’s Congress Standing Committee on 1 November 2017).).

142 Du and quality of adjudication through simultaneous ‘release’ and ‘control’. This is a helpless situation for both reformers and the subjects of reforms.28 28

参见万毅，杨春林：《论院庭长的审判监督权》，载《思想战线》2016年 第4期。(See Yi Wan and Chunlin Yang, ‘The Trial Supervision Authority of the Court President’ (2016) 4 Thinking).

­c hapter 10

A Law Love Triangle? The German Federal Constitutional Court and Its Two European Neighbours Vanessa Hellmann 10.1

Introduction

Germany1 and Slovenia2 are only two examples for countries in Europe which have transferred judicial power to international and supranational bodies. In fact all 47 member states of the Council of Europe, including not only Germany and Slovenia but also Norway,3 the United Kingdom4 and Switzerland,5 transferred judicial power to an international body, and all 28 (27)6 member states of the European Union, including Germany and Slovenia, transferred judicial power to a supranational body. As all member states of the European Union are also member states of the Council of Europe they all transferred judicial power to an international and a supranational body, Germany7 and Slovenia8 among them. All these countries find themselves not only operating within their own national court systems but in a complicated international framework where the judicial power transferred to the Council of Europe is exercised by the European Court of Human Rights and the judicial power transferred to the European Union is exercised by the European Court of Justice. The decisions of both courts are binding for the Member States, and the decisions of both courts have a deep impact on their national law and their national court systems. This chapter focuses on Germany and the German Federal Constitutional Court to explore this impact. 1 See the country report above Chapter 3 Germany, section 3.3. 2 See the country report above Chapter 4 Slovenia, section 4.3. 3 Indeed, Norway is a founding member of the Council of Europe. For the Council of Europe and its members see further below. For Norway also see the country report above Chapter 7 Norway. 4 For courts and judges from an English perspective see the country report above Chapter 6 England. 5 For the Court Management in Switzerland see below Chapter 12. 6 In the meantime, the United Kingdom unfortunately withdrew from the European Union. 7 See the country report above Chapter 3 Germany, section 3.3. 8 See the country report above Chapter 4 Slovenia, section 4.3.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_011

144 Hellmann The German Federal Constitutional Court (fcc)9 has two European Neighbours: the beforementioned European Court of Justice (ecj) and the beforementioned European Court of Human Rights (ECtHR). Surprisingly, those three courts are not stand alone courts. They are not only forming a geographical triangle (Karlsruhe, Luxembourg, Strasbourg) but they are also deeply involved in a relationship of law (or love, see below). This relationship of law (or love) has now for decades been a more than complicated one, at least from the view of German constitutional law. From its outset this special kind of complicated relationship might be alien to scholars from countries which haven’t transferred judicial power to international and supranational bodies the way Germany and other countries have, being party to both the European Union (EU) with its primary and secondary law and the Council of Europe with its European Convention on Human Rights (echr).10 The descriptions, metaphors and pictures used to describe the relationship between those three courts have been manifold:  It has been described as a ‘pyramid’ or a ‘mobile’11, a ‘network’12, a ‘jurisdiction’13 or ‘relationship 9

For more information about the court see Chapter  3 Germany, section 3.1.2 and section 3.2.4. 10 For the member states of the European Union and the Council of Europe see already above and further below. Among the countries which transferred judicial power to an international and a supranational body are Germany (see above Chapter  3 Germany, 3.3.), Slovenia (see above Chapter  4 Slovenia, 4.3.). Among the countries which transferred judicial power to an international body are not only Germany and Slovenia but also Norway (see above Chapter 6 Norway), the United Kingdom (for courts and judges from an English perspective see above Chapter 5 England) and Switzerland (for the Court Management in Switzerland see below Chapter  12). China has not transferred judicial power to an international nor a supranational body (see above Capter 2 China, as well as above Chapter 8 and Chapter 9). 11 For the use of ‘mobile’ see the interview with Renate Jaeger in The Economist (26 March 2009) 34. For the use of ‘pyramid’ and ‘mobile’ see Andreas Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts:  Der Europäische Verfassungsgerichtsverbund’ (2010) 6 European Constitutional Law Review 175 ff. (in German: (2010) NVwZ 1 ff.); Andreas Voßkuhle, ‘Pyramide oder Mobile?  –​Menschenrechtsschutz durch die europäischen Verfassungsgerichte’ (2014) EuGRZ 165 ff.; Andreas Voßkuhle, ‘Pyramid or Mobile?  –​ Human Rights Protection by the European Constitutional Courts’ in Dialogue between judges (2014) 36 ff.; Jörg Polakiewicz, ‘Mobile, Counterpoint or Pyramid, The Interaction Between National and European Courts in Human Rights Protection’ in Christian Calliess, Herausforderungen an Staat und Verfassung (2015) 1050 ff. 12 See Ingolf Pernice, ‘La Rete Europea di Costituzionalità  –​Der Europäische Verfassungsverbund und die Netzwerktheorie’ (2010) ZaöRV 52 (59 ff.). 13 See Hans-​Jürgen Papier, Das Rechtsprechungsdreieck Karlsruhe-​Luxemburg-​Straßburg, (Speyerer Vorträge 2006) 89; Oliver Klein, ‘Straßburger Wolken am Karlsruher Himmel –​ Zum geänderten Verhältnis zwischen Bundesverfassungsgericht und Europäischem

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triangle’14, even a ‘Bermuda Triangle’15, a ‘layer cake of public authority’16, a ‘cooperative constitutional pluralism’17, a ‘dialogue of courts’18, an ‘association of mutual consideration and respect’19, a ‘complementary relationship’20, a ‘responsibility division’21 and (that’s my favourite): a ‘European High Court learning association’.22

14 15 16 17 18

19 20

21 22

Gerichtshof für Menschenrechte seit 1998’ (2010) NVwZ 221; Markus Ludwigs, ‘Kooperativer Grundrechtsschutz zwischen EuGH, BVerfG und EGMR’ (2014) EuGRZ 273 ff. See for example Hans-​ Georg Dederer, ‘Die Architektonik des europäischen Grundrechtsraums’ (2006) ZaöRV 576. See Christofer Lenz, ‘EGMR: Wahlen zum Europäischen Parlament (Matthews/​Vereinigtes Königreich)’ (1999) EuZW 308 (312). See also  Heiko Sauer, ‘Die neue Schlagkraft der gemeineuropäischen Grundrechtsjudikatur’ (2005) ZaöRV 36 (63 ff.). See Stefan Oeter, ‘Rechtsprechungskonkurrenz zwischen nationalen Verfassungs­ gerichten, Europäischem Gerichtshof und Europäischem Gerichtshof für Menschen­ rechte’ (2007) 66 VVDStRL 362. See Sven Simon, ‘Konturen des kooperativen Verfassungspluralismus in Europa’ (2016) 14 ZSE 378 ff. See BVerfG, 4 May 2011, 2 BvR 2333/​08 i.a., BVerfGE (Collection of the Decisions of the Federal Constitutional Court) 128, 326 (369) –​Preventive Detention II (in English: http://​ www.bverfg.de/​e/​rs20110504_​2bvr236509en.html, accessed 1st April 2020). See also  Ferdinand Kirchhof, ‘Grundrechtsschutz durch europäische und nationale Gerichte’ (2011) NJW 3681 ff.; Ferdinand Kirchhof, ‘Kooperation zwischen nationalen und europäischen Gerichten’ (2014) EuR 267, 272 f.; Rike Krämer and Judith Janna Märten, ‘Der Dialog der Gerichte –​die Fortentwicklung des Persönlichkeitsschutzes im europäischen Mehrebenenrechtsverbund’ (2015) EuR 169 ff. A ‘law dialogue’: e.g. Paul Kirchhof, ‘Der Weg Europas ist der Dialog’ (1999) EuZW 353. A ‘judicial dialogue’: e.g. Thomas von Danwitz, ‘Kooperation der Gerichtsbarkeiten in Europa‘ (2010) ZRP 143, 145; Andreas Voßkuhle, ‘Menschenrechtsschutz durch die Europäischen Verfassungsgerichte’ (2015) RdA 343. See Andreas Voßkuhle, ‘Der Rechtsanwalt und das Bundesverfassungsgericht:  Aktuelle Herausforderungen der Verfassungsrechtsprechung’ (2013) NJW 1329 (1330). Used by Siegfried Broß, ‘Bundesverfassungsgericht  –​Europäischer Gerichtshof  –​ Europäischer Gerichtshof für Kompetenzkonflikte’ (2001) 92 VerwArch 425 (426). A ‘cooperation relationship’: BVerfG, 12 October 1993, 2 BvR 2134/​92 i.a., BVerfGE 89, 155 (175) –​ Maastricht. A ‘cooperation culture’: Andreas Voßkuhle, ‘Der Rechtsanwalt und das Bundesverfassungsgericht’ (n 19) 1335. A ‘coordination relationship’: BVerfG, 6 July 2010, 2 BvR 2661/​06, BVerfGE 126, 286 (302) –​Honeywell (in English: http://​www.bverfg.de/​e/​ rs20100706_​2bvr266106en.html, accessed 1st April 2020). See Koen Lenaerts, ‘Kooperation und Spannung im Verhältnis von EuGH und nationalen Verfassungsgerichten’ (2015) EuR 3 (25). Andreas Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts:  Der Europäische Verfassungsgerichtsverbund’ (n 11)  198 (in German:  (2010) NVwZ 8); ‚a multilevel instance for learning (Lernverbund)‘, with reference to Franz Merli, ‘Rechtsprechungskonkurrenz zwischen nationalen Verfassungsgerichten, Europäischem Gerichtshof und Europäischem Gerichtshof für Menschenrechte‘

146 Hellmann Due to some recent developments the complicated relationship between those three courts got new impetus: In 2011, the fcc overturned its own ruling of 2004 in which it had found a law on preventive detention to be constitutional.23 By taking into account a later decision of the ECtHR in this case24 it found the law not to be constitutional after all.25 In 2017, the fcc decided to not ban a national party (the National Democratic Party of Germany, npd), although it found it to be in violation of the democratic principles of the Basic Law.26 Again it reached its decision by taking into account the case law of the ECtHR, which differed from the until then existing case law of the fcc.27 Furthermore, the fcc in 2014 referred a case to the ecj for the first time28 and finally (and most reassuring regarding the process of EU integration) largely implemented the ecj’s argumentation29 in the according decision in 201630. In the summer of 2017, the fcc again referred a case to the ecj31, and while the wording of the first referral was not taken that well by every party involved, the wording of the second referral has (so far) been nicely received.32 (2007) 66 VVDStRL 418 f.  and others. See also:  Ingolf Pernice, ‘La Rete Europea di Costituzionalità  –​Der Europäische Verfassungsverbund und die Netzwerktheorie’ (n 12) 70. For a collection of terms and references see Tristan Barczak in Tristan Barczak (ed), BVerfGG: Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz (Walter de Gruyter 2017) 29 f. 23 See BVerfG, 5 February 2004, 2 BvR 2029/​01, BVerfGE 109, 133 ff. –​Preventive Detention. 24 See M. v. Germany App no 19359/​04 (echr, 17 December 2009). 25 See BVerfG, 4 May 2011, 2 BvR 2333/​08 i.a., BVerfGE 128, 326 ff. –​Preventive Detention ii. See also BVerfG, 20 June 2012, 2 BvR 1048/​11, BVerfGE 131, 268 –​Preventive Detention iii. 26 See BVerfG, 17 January 2017, 2 BvB 1/​13, BVerfGE 144, 20 ff. –​NPD (in English: http://​www. bverfg.de/​e/​ bs20170117_​2bvb000113en.html, accessed 1st April 2020). 27 For a comprehensive account of the ECtHR judgments in this field see BVerfG, 17 January 2017, 2 BvB 1/​13, BVerfGE 144, 20 ff. (margin number 607 ff.) –​ npd. 28 See BVerfG, 14 January 2014, 2 BvR 2728/​13 i.a., BVerfGE 134, 392 ff (margin number 36 ff.)  –​ omt (in English:  http://​www.bverfg.de/​e/​rs20140114_​2bvr272813en.html, accessed 1st April 2020). 29 See Case C-​62/​14 Gauweiler and Others v Deutscher Bundestag [2015] EU:C:2015:400. The decisions of the ecj may be found here (in several languages): The Court of Justice of the European Union://​curia.europa.eu/​juris/​recherche.jsf?cid=1214464, accessed 1st April 2020. 30 See BVerfG, 21 June 2016, 2 BvR 2728/​13 i.a., BVerfGE 142, 123 ff. –​OMT (in Englisch: http://​ www. bverfg.de/​e/​rs20160621_​2bvr272813en.html, accessed 1st April 2020). 31 BVerfG, 18 July 2017, 2 BvR 859/​15 i.a., BVerfGE 146, 216 ff. –​ECB (in English: http://​www. bverfg.de/​ e/​rs20170718_​ 2bvr085915en.html, accessed 1st April 2020). 32 See Matthias Goldmann, ‘Summer of Love: Karlsruhe Refers the QE Case to Luxembourg’ VerfBlog 16 August 2017 (in English: https://​verfassungsblog.de/​summer-​of-​love-​karlsruhe-​ refers-​the-​qe-​case-​to-​luxembourg, accessed 1st April 2020). For the according decision of

147

A Law Love triangle?

Due to that new impetus, some constitutional law scholars in Europe started to talk about a new era defining the relationship between the three courts, an era which –​in relation to the second referral of the fcc –​has been called the ‘summer of love’.33 Ultimately, this brings me to the title of my presentation: Among the many metaphors which have been used to describe the relationship between those three courts, I have chosen the ‘triangle’. In order to pay due attention to the ‘summer of love’ I find myself adjusting the image (and the title accordingly), from an ordinary ‘triangle of law’ or a ‘law triangle’, to a ‘triangle of love’ or a ‘love triangle’. Unfortunately, this ‘image of love’ comes with a question mark.

Moreover, we will have to determine whether this triangle is looked upon from the side, so it looks like a pyramid with its implication of hierarchy, or whether it is looked upon from above, so the triangle looks like a triangular football field where the three corner players interact and play (with) each other, in order to be at their best game. FCC

ECJ

FCC

ECtHR As seen from the side.

ECJ

ECtHR As seen from above.

At this point please be assured: The author will refrain from any further football (soccer) metaphors. Almost.34

33 34

the ecj see (meanwhile): Case C-​493/​17 Weiss and Others [2018] EU:C:2018:1000, where the ecj found no violation of EU law. See Goldmann, ‘Summer of Love: Karlsruhe Refers the QE Case to Luxembourg’ (n 32). When the conference in Beijing took place the 2018 fifa World Cup in Russia was about to start. Neither Norway nor China had qualified for the Tournament. After Germany as the defending world champion was already (and most sadly) eliminated in the group stage the author will refrain from any football metaphors indeed.

148 Hellmann 10.2

Introducing the Three Corner Players

Before looking closely at the relationship between the three courts let me first introduce the three corner players. I will start with the German Federal Constitutional Court, followed by the European Court of Justice and third, the European Court of Human Rights. This not being a hierarchical statement but following the order of appearance.35 10.2.1 The German Federal Constitutional Court (fcc) The fcc in Karlsruhe36 started its work in 1951. The fcc’s duty is to ensure that the German Constitution (the so called Basic Law)37 which came into force in 1949 is complied with.38 After World War ii German constitutional jurisdiction was born out of the democratic idea that the Basic Law enjoys absolute primacy and the fundamental rights stated in it bind all public authorities as directly applicable and enforceable law.39 Thus, the fcc has now for decades helped to secure respect for and effectiveness of Germany’s free and democratic basic order, especially by enforcing the fundamental rights as stated in the Basic Law.40 The decisions of the fcc are final, and only the fcc can declare a federal law to be unconstitutional.41 Its sole standard of review is the Basic Law, and

35 36 37 38

39

40 41

The German Federal Constitutional Court started its work in 1951, the European Court of Justice in 1952 and the European Court of Human Rights in 1959. See below. See the court’s website (also in English): The Federal Constitutional Court, https://​www. bundesverfassungsgericht.de/​EN, (accessed 1st April 2020). The full text of the German Basic Law may be found here (in English):  Christian Tomuschat und David P. Currie, ‘Basic Law for the Federal Republic of Germany’, https://​ www.gesetze-​im-​internet.de/​ englisch_​gg/​, (accessed 1st April 2020). For ‘the Court’s Duties’ see (in English):  https://​www.bundesverfassungsgericht.de/​EN/​ Das-​Gericht/​Aufgaben/​aufgaben_​node.html (accessed 1st April 2020). For the jurisdiction of the Constitutional Court see Art. 93 Basic Law (in English: https://​www. gesetze-​ im-​internet.de/​englisch_​gg/​, accessed 1st April 2020). See Article 1(3) Basic Law: ‘The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.’ See also Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts:  Der Europäische Verfassungsgerichtsverbund’ (n 11) 178 f. For ‘the Court’s Duties’ see (in English):  https://​www.bundesverfassungsgericht.de/​EN/​ DasGericht/​%20Aufgaben/​aufgaben_​node.html (accessed 1st April 2020). Regarding the Basic Law (and not regarding the constitutions of the ‘Bundesländer’). See e.g. Art. 100(1) Basic Law: ‘If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes where the constitution of a Land is held to be violated, or from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic

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all acts of German public authority can be reviewed against this standard. The essential reason for the popularity of the fcc among the German public is the possibility of the constitutional complaint.42 The fcc finally and bindingly examines constitutional complaints lodged by individuals against acts of German public authority against the standard of the Basic Law, and the so called ‘walk to (or road to) Karlsruhe’ has become a metaphor for lodging a constitutional complaint as the last resort for the protection of the fundamental rights of the people.43 10.2.2 The European Court of Justice (ecj) The ecj in Luxembourg44 started its work in 1952 when it was established by the Treaty of Paris (1951).45 Although the ecj is not a ‘specialised’ fundamental rights court it has regarded the protection of fundamental rights as agreed upon in the European legal context of the EU Member States (deriving as general principles from the common constitutional traditions of the Member States and the echr) almost from the beginning as one of its main tasks of jurisdiction46. As it has over the past decades increasingly ruled on cases of

42

43 44 45

46

Law is held to be violated by Land law and where a Land law is held to be incompatible with a federal law.’ See Art.  93(1) No. 4a Basic Law (and with the same wording § 90 of the Act on the Federal Constitutional Court, Bundesverfassungsgerichtsgesetz, BVerfGG): ‘The Federal Constitutional Court shall rule on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103 or 104 has been infringed by public authority.’ The common metaphor was eventually used as a title for a book on the history of the Constitutional Court: Uwe Wesel, Der Gang nach Karlsruhe. Das Bundesverfassungsgericht in der Geschichte der Bundesrepublik (Karl Blessing Verlag 2004). See the court’s website: The Court of Justice of the European Union,://​curia.europa.eu/​ juris/​recherche.jsf?cid=1214464 (accessed 1st April 2020). The full text of the Treaty of Paris may be found here:  https://​eur-​lex.europa.eu/​legal-​ content/​EN/​TXT/​?uri=CELEX:11951K/​TXT (in German, French, Italian and Dutch). For a summary in English see here:  ‘Treaty establishing the European Coal and Steel Community, ecsc Treaty’ https://​eur-​lex.europa.eu/​legal-​content/​EN/​LSU/​?uri=CELEX:11951K/​TXT (accessed 1st April 2020). Case C-​29/​69 Erich Stauder v City of Ulm  –​Sozialamt [1969] EU:C:1969:57; Case C-​11/​70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] EU:C:1970:114; Case C-​4/​73; J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] EU:C:1974:51; Case C-​36/​75 Roland Rutili v Ministre de l’intérieur [1975] ECLI:EU:C:1975:137. Different at first (and changing in parallel to the fcc’s ‘Solange’-​Jurisdiction, see below):  Case C-​1/​58 Friedrich Stork & Cie v High Authority of the European Coal and Steel Community [1959] EU:C:1959:4; Case C-​36/​ 59 Präsident Ruhrkolen-​Verkaufsgesellschaft mbH, Geitling Ruhrkohlen-​Verkaufsgesellschaft mbH, Mausegatt Ruhrkohlen-​Verkaufsgesellschaft mbH and I. Nold KG v High Authority of the

150 Hellmann fundamental rights protection47, often starting from an economical perspective, it can be rightfully viewed as a Constitutional Court.48 A Constitutional Court but not only a Constitutional Court. According to the assignment of competences in Art. 19(1) of the Treaty on European Union (teu), the ecj ensures that in the interpretation and application of the Treaties the law is observed.49 Therefore, the ecj is the highest court of the EU in matters of EU law, and EU law is much more than the fundamental

47

48

49

European Coal and Steel Community [1960] EU:C:1960:36. For the Charter of Fundamental Rights (cfr), which was already proclaimed in Nice in 2000 and came into direct effect with the adoption of the Treaty of Lisbon in 2009 (Article 6(1) teu) see below. See for recent examples:  Case C-​ 617/​ 10 Åklagaren v Hans Åkerberg Fransson [2013] EU:C:2013:105; Case C-​399/​11 Stefano Melloni v Ministerio Fiscal [2013] EU:C:2013:107; Case C-​293/​12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others [2014] EU:C:2014:238; Case C-​131/​12 Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (aepd) and Mario Costeja González [2014] EU:C:2014:317; Case C-​362/​14 Maximillian Schrems v Data Protection Commissioner [2015] EU:C:2015:650; Case C-​404/​15 Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen [2016] EU:C:2016:198; Opinion 1/​15 Passenger Name Record [2016] EU:C:2016:656; Case C-​203/​15 Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others [2016] EU:C:2016:970. For those and further references see Barczak, in BVerfGG:  Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz (n 22) 42, as well as the collections provided by: Epiney, ‘Die Rechtsprechung des EuGH im Jahr 2013’ (2014) NVwZ 1059; im Jahr 2014 (2015) NVwZ 704; im Jahr 2015 (2016) NVwZ 655; im Jahr 2016 (2017) NVwZ 76. Franz C.  Mayer, ‘Verfassungsgerichtsbarkeit’ in Armin von Bogdandy and Jürgen Bast (eds), Europäisches Verfassungsrecht: Theoretische und dogmatische Grundzüge (Springer 2009) 559 ff.; Peter Häberle, Europäische Verfassungslehre (Dike Verlag 2009) 478 ff.; Oeter, ‘Rechtsprechungskonkurrenz zwischen nationalen Verfassungsgerichten, Europäischem Gerichtshof und Europäischem Gerichtshof für Menschenrechte’ (n 16) 363 f.; Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts:  Der Europäische Verfassungsgerichtsverbund’ (n 11) 175 f. and 183 f. (in German: (2010) NVwZ 1 ff.); Andreas Voßkuhle, ‘Die Landesverfassungsgerichtsbarkeit im föderalen und europäischen Verfassungsgerichtsverbund’ (2011) 59 JöR 215 (217); Voßkuhle, ‘Menschenrechtsschutz durch die Europäischen Verfassungsgerichte’ (n 11) 337 with those and further references. See also Felix Ekardt and Verena Lessmann, ‘EuGH, EGMR und BVerfG: Die dritte Gewalt im transnationalen Mehrebenensystem’ (2006) 39 KJ 381 (382); Philip Austermann, ‘Die Abgrenzung der Kompetenzbereiche des BVerfG zu den Befugnissen der europäischen Gerichtsbarkeit’ (2011) VR 265 and Barczak, in BVerfGG:  Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz (n 22) 42 with further references. Art. 19(1) teu: ‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’ The full text of the teu may be found here (in several languages): http://​data.europa.eu/​eli/​ treaty/​teu_​2012/​oj (accessed 1st April 2020).

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rights stated in it. It consists of the so called primary EU law (the treaties of the EU50) and the so called secondary EU law, which is EU law based on primary EU law51. The ECJ performs its review solely against the standard of EU law and not against the standard of national law. Following the entering into force of the Treaty of Lisbon in 200952, the standard of review for fundamental rights violations is the Charter of Fundamental Rights of the EU (cfr).53 Within the supranational legal order the ecj has broad powers to review acts of the EU institutions as well as national acts of the Member States related to EU law. However, it is not possible to appeal the decisions of national courts to the ecj. Rather national courts refer questions of EU law to the ecj when they are uncertain as to the interpretation of primary and secondary EU law or the validity of secondary EU law (as of Art. 267 of the Treaty on the 50

51

52 53

In particular the Treaty on European Union (teu, see above) and the Treaty on the Functioning of the European Union (tfeu). The full text of the tfeu may be found here (in several languages):  http://​data.europa.eu/​eli/​treaty/​tfeu_​2012/​oj (accessed 1st April 2020). See Art. 288 tfeu:  ‘To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A  regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force.’ The full text of the Treaty of Lisbon may be found here (in several languages): http://​data. europa.eu/​ eli/​ treaty/​lis/​sign (accessed 1st April 2020). See Art. 6(1) teu and Art. 51 cfr. Art. 6(1) teu: ‘The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title vii of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.’ Art.  51 cfr:  ‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’ The full text of the Charter of Fundamental Rights of the European Union in its latest consolidated version may be found here: http://​data.europa.eu/​eli/​treaty/​ char_​2012/​oj (accessed 1st April 2020).

152 Hellmann Functioning of the European Union, tfeu54). In the ecj’s 2017 report it was noted that German judges made the most referrals for an interpretation of EU law to the ecj.55 However, as I already mentioned the fcc has until now only referred two cases to the ecj.56 You remember the ‘summer of love’?57 The ecj has given impulses to European integration in important areas not limited to fundamental rights protection and has decisively contributed to the EU establishing itself as a legal order.58 Therefore, the ecj has with good reason often been labelled as ‘the engine of integration’.59 10.2.3 The European Court of Human Rights (ECtHR) The ECtHR in Strasbourg is an international court which started its work in 195960. It rules on individual or State applications alleging violations of the civil and political rights set out in the echr.61 The echr is an international treaty

54

55 56 57 58 59

60 61

Art. 267 tfeu: ‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.’ For the jurisdiction of the ecj see Art. 256 ff. tfeu. See Court of Justice of the European Union, ‘2017 Annual Report:  The Year in Review’ (2018) 36. The full report may be found here (in English): https://​curia.europa.eu/​jcms/​ upload/​docs/​application/​pdf/​2018-​04/​ra_​pan_​2018.0421_​en.pdf (accessed 1st April 2020). See BVerfG, 14 January 2014, 2 BvR 2728/​13 i.a., BVerfGE 134, 392 ff –​OMT and BVerfG, 18 July 2017, 2 BvR 859/​15 i.a., BVerfGE 146 ff. –​ECB. See already above. Goldmann, ‘Summer of Love: Karlsruhe Refers the QE Case to Luxembourg’ (n 32). See already above. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 181. ‘Engine’ or ‘motor of integration’: See Isabel Schübel-​Pfister, Sprache und Gemeinscha­fts­ recht: Die Auslegung der mehrsprachig verbindlichen Rechtstexte durch den Europäischen Gerichtshof (Duncker & Humblot 2004)  and Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 182 with further references. See the court’s website:  European Court of Human Rights, https://​www.echr.coe.int/​ Pages/​home.aspx?p=home (accessed 1st April 2020). The full text of the European Convention on Human Rights may be found here: European Court of Human Rights and Council of Europe, ‘European Convention of Human Rights’ https://​www.echr.coe. int/​Documents/​Convention_​ENG.pdf (accessed 1st April 2020).

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under which the Member States of the Council of Europe62 are obliged to secure fundamental civil and political rights. The echr was signed in 1950 in Rome and entered into force in 1953. Member States of the Council of Europe and accordingly parties to the echr are all countries in (geographical) Europe apart from Belarus.63 The Council of Europe was already created in 1949 (and among its first members was Norway64, Western Germany followed in 195065). The judgements of the ECtHR are binding in the countries concerned and have led them to alter their legislation and administrative practice in a wide range of areas.66 Since 1998, the ECtHR sits as a full-​time court and individuals can apply to it directly within the very successful procedure of an individual application.67 Shaping its case law in this respect, the ECtHR has to an increasing extent taken on the functions of a Constitutional Court68, which

62 63 64 65 66 67

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See the council’s website:  Council of Europe, https://​www.coe.int/​en/​web/​portal. ‘The Council of Europe’ is not to be confused with ‘The Council of the European Union’: https://​ www.consilium.europa.eu/​en/​european council/​ (accessed 1st April 2020). For a map indicating the Member States (and another map indicating the Observer States) see: Council of Europe, ’47 Member States’, https://​www.coe.int/​en/​web/​portal/​ 47-​members-​states (accessed 1st April 2020). Norway is a founding member of the Council of Europe and as such became member of the Council of Europe on 5 May 1949. For actions of the Council of Europe in Norway see: https://​www.coe.int/​en/​web/​portal/​norway (accessed 1st April 2020). Germany became the 14th Member State of the Council of Europe on 13 July 1950. For actions of the Council of Europe in Germany see:  https://​www.coe.int/​en/​web/​portal/​ germany (accessed 1st April 2020). See Council of Europe, ‘The Court in brief’, https://​www.echr.coe.int/​Documents/​Court_​ in_​brief_​ENG.pdf (accessed 1st April 2020). The Convention’s system of legal protection underwent a fundamental reform by implementing the Convention’s Protocol No. 11 in 1998. The full text of Protocol No. 11 may be found here: https://​www. echr.coe.int/​ Documents/​Library_​Collection_​P11_​ETS155E_​ ENG.pdf (accessed 1st April 2020). For ‘individual applications’ see Art. 34 echr: ‘The Court may receive applications from any person, non-​ governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’ See Häberle, Europäische Verfassungslehre (n 48) 478 ff.; Mayer, ‘Verfassungsgerichtsbar­ keit’ (n 48) 559 ff.; Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 175 and 181 f. with those and further references. See also Christian Walter, ‘Der Internationale Menschenrechtsschutz zwischen Konstitutionalisierung und Fragmentierung’ (2015) 75 ZaöRV 753 (764); Helen Keller, ‘Zur Verfassungsgerichtsbarkeit des Europäischen Gerichtshofs für Menschenrechte’ (2016) ZaöRV 245 ff.; Barczak, in BVerfGG:  Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz (n 22)  42 with further references.

154 Hellmann is confronted with special challenges, regarding its caseload and in bringing together heterogeneous legal systems.69 10.3

The Relationships between the Three Courts

Let us now have a look at the relationships between the three courts. What is the position of the three courts towards one another? Where do they intersect? As the fcc finally and bindingly examines constitutional complaints lodged against acts of German public authority against the standard of the Basic Law, the ECtHR establishes the existence or non-​existence of an infringement of the echr solely against the standard of the echr and the standard of review for the ecj is EU law, including the cfr, it seems that they do not intersect at all. The answer –​or better the source of their more than complicated relationship –​is not to be found in the standard of review but in the subject to their review: The constitutional complaint before the fcc is possible against all acts of German public authority, the individual application before the ECtHR is possible against all acts of public authority of the Member States, including German acts of course, and the subject to review by the ecj is among others the law of the Member States when it is based on EU law or related to it. Thus, the fcc has not –​or appears to have not –​the exclusive right to the review of German national law.70 I already mentioned the different terms which are used to describe this complex relationship.71 The term probably most recognized among German scholars is the one put forward by the president of the fcc72, who talks about a ‘European multilevel cooperation’ (‘Europäischer Verfassungsgerichtsverbund’).73 69 70 71 72

73

See Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 181. See Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 197; Voßkuhle, ‘Der Rechtsanwalt und das Bundesverfassungsgericht: Aktuelle Herausforderun­ gen der Verfassungsrechtsprechung’ (n 19) 1329. See above. For a collection of terms and references see again Barczak, in BVerfGG: Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz (n 22) 29 f. For further information on the President of the fcc, Prof. Dr. Dr. h.c. Andreas Voßkuhle (since 2011), see the court’s website (in German):  Bundesverfassungsgericht, ‘Prof. Dr. Dres. h.c. Andreas Voßkuhle’ (https://​www.bundesverfassungsgericht.de/​DE/​Richter/​ Zweiter Senat/​Praesident-​Prof-​Dr-​Vosskuhle/​praesident-​prof-​dr-​dr-​hc-​vosskuhle_​node. html, accessed 1st April 2020). See Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 175 ff. (in German:  (2010) NVwZ 1 ff.); Voßkuhle, ‘Pyramid or Mobile?  –​Human Rights Protection by the European Constitutional Courts’ (n 11)  36  ff. See also Ingolf Pernice, ‘Die Dritte Gewalt im Europäischen Verfassungsverbund’ (1996) EuR 27 (29); Oeter,

155

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The term was introduced to describe the operation of a complex multilevel system without determining the exact techniques of the interplay, not using over simplistic spatial and hierarchic concepts such as ‘superiority’ and ‘subordination’.74 Although the intertwining of the European Constitutional Courts has reached a level where it might indeed not be possible do so in the end75, let us at least try to determine the (exact) techniques of the interplay. And as you will see there is no clear hierarchical structure but the legal relationships are characterized by different perspectives on the interfaces of the respective legal systems76. In other words (regarding hierarchy): it depends on whom you ask. ECJ

FCC

ECJ

ECtHR

ECtHR

FCC

ECJ

Thus, let me examine the relationships between our three corner players by taking the perspective of each one of them (for each relationship), showing that the relationship between the courts consists of three relationships building the sides of the triangle. And as you will see, the different perspectives will make the triangle turn. And every court will be up on top for some time, but not all the time. 10.3.1 The Federal Constitutional Court and the European Court of Human Rights From the perspective of the ECtHR its relationship to the fcc is not a complicated one. One of the admissibility requirements for all applications under the echr is the exhaustion of all domestic remedies, including the constitutional

74

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‘Rechtsprechungskonkurrenz zwischen nationalen Verfassungsgerichten, Europäischem Gerichtshof und Europäischem Gerichtshof für Menschenrechte’ (n 16) 386 ff.; Lenaerts, ‘Kooperation und Spannung im Verhältnis von EuGH und nationalen Verfassungsgerichten’ (n 21) 3 ff. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 183 with further explanation and references (esp. to Di Fabio, who referred to the ‘Kooperation der Verfassungsgerichte im überstaatlichen Verbund’, see Udo di Fabio, Der Verfassungsstaat in der Weltgesellschaft (Mohr Siebeck 2001) 78. See Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 183. Theodor Maunz and Günter Dürig, ‘Grundgesetz-​Kommentar’ (June 2017) Art. 93, margin number 179.

156 Hellmann complaint lodged before the fcc.77 Therefore, decisions rendered by the fcc can be subject to review by the ECtHR.78 From a formal point of view that leaves the ECtHR to decide last, which in relation to the FCC leads to a somehow ‘elaborate position’ of the international court. However, the ECtHR’s case-​ law is inspired not least by the case-​law of the national constitutional courts (which levels the fcc already, and the triangle on behalf of the fcc), and the ECtHR leaves the States Parties the necessary margin of appreciation by leaving it to the national courts to fit its decisions into their national legal system and casuistry79 (which from the view of the fcc might put it on top of the triangle). In Germany conflicts between the fcc and the ECtHR are settled either by amending the law or by the fcc’s concurring with the case-​law of the ECtHR.80 From the perspective of the fcc this takes place under the openness of the German legal system towards international law as has been postulated by the fcc in its landmark decision in the Görgülü custody case.81 In this decision, the fcc factually raised the echr to the status of a constitutional standard of review despite its formal rank in Germany as ordinary federal law.82 As such, not only Germany as a subject of international law is committed to the echr but

77 78 79

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See Art. 35(1) echr: ‘The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.’ Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 180 f. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11)  187 with references to the case law of the Court. See also Protocol No. 15 of the echr (not entered into force yet): Council of Europe, ‘Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms’, https://​www.echr.coe.int/​ Documents/​Protocol_​15_​ENG.pdf (accessed 1st April 2020). Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 186 with further references. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 187 f. For the decision of the court see BVerfG, 14 October 2004, 2 BvR 1481/​04, BVerfGE 111, 307 ff. –​ Görgülü (in English: http://​www.bverfg .de/​e/​rs20041014_​2bvr148104en.html, accessed 1st April 2020). Following Görgülü: BVerfG, 4 May 2011, 2 BvR 2333/​08 i.a., BVerfGE 128, 326 –​ Preventive Detention ii; BVerfG, 20 June 2012, 2 BvR 1048/​11, BVerfGE 131, 268 ff. –​Preventive Detention iii. See already above. In Germany the echr is formally ranked as ordinary federal law by virtue of the German Act approving it:  Act on the Convention for the Protection of Human Rights and Fundamental Freedoms of 7 August 1952, Federal Law Gazette (Bundesgesetzblatt, BGBl) 1952 ii, p.  685. For examples of the echr’s rank in other national legal systems see Barczak, in BVerfGG:  Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz (n 22) 38 f. as well as for examples of the judgments of the fcc regarding the rank of the echr (footnote 242).

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all German public authorities including the courts.83 Thus, all German public authorities have the constitutional obligation to take into account the effect of the echr towards third parties when interpreting the fundamental rights of the Basic Law.84 If they do not comply with this obligation, their acts can be challenged via a constitutional complaint, invoking the relevant fundamental right in conjunction with the rule-​of-​law principle (Art. 20(3) Basic Law).85 Furthermore, the fcc consults the text of the echr and the case-​law of the ECtHR as an aide for the interpretation and determination of the content and scope of the fundamental rights and rule-​of-​law guarantees of the Basic Law.86 As such, the decisions of the ECtHR have the effect of legal precedents and work as normative guidance and orientation.87 (Seems like the triangle is moving again.) However, the fcc in its Görgülü decision also postulated (in an often criticised manner) the limitations to this openness88 making clear that acceptance of the echr should not be mistaken for strict obedience89. As such, the Basic Law has certain limits when it comes to its interpretation in the light of international law90. The interpretation has to be justifiable in terms of

83

See BVerfG, 14 October 2004, 2 BvR 1481/​04, BVerfGE 111, 307 (325 ff.)  –​Görgülü. See Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 188. 84 See BVerfG, 14 October 2004, 2 BvR 1481/​04, BVerfGE 111, 307 (325 ff.)  –​Görgülü. See Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 188 (in German: (2010) NVwZ 1 ff.). 85 Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11)  188 (in German:  (2010) NVwZ 1 ff.). Also Barczak, in BVerfGG:  Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz (n 22) 41. Art. 20(3) Basic Law: ‘The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.’ See BVerfG, 14 October 2004, 2 BvR 1481/​04, BVerfGE 111, 307 (324) –​Görgülü; BVerfG, 1 March 2004, 2 BvR 1570/​03, BVerfGK 3, 4 (8 ff.); BVerfG, 4 May 2011, 2 BvR 2333/​08 i.a., BVerfGE 128, 326 (371 f.) –​Preventive Detention ii. 86 Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11)  187 with reference to BVerfGE 35, 311 (320), BVerfGE 74, 359 (370) and BVerfGE 82, 106 (120). Voßkuhle, ‘Pyramid or Mobile?  –​Human Rights Protection by the European Constitutional Courts’ (n 11) 37. Also BVerfG, 4 May 2011, 2 BvR 2333/​08 i.a., BVerfGE 128, 326 (366 ff.) –​Preventive Detention ii. 87 Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11)  187 with reference to Hans-​Jürgen Papier, ‘Umsetzung und Wirkung der Entscheidungen des Europäischen Gerichtshofes für Menschenrechte aus der Perspektive der nationalen deutschen Gerichte’ (2006) EuGRZ 1. See BVerfG, 17 January 2017, 2 BvB 1/​13, BVerfGE 144, 20 ff. (margin number 607 ff.) –​ npd. 88 See BVerfG, 14 October 2004, 2 BvR 1481/​04, BVerfGE 111, 307 (315 ff.) –​Görgülü. 89 Voßkuhle, ‘Pyramid or Mobile? –​Human Rights Protection by the European Constitutional Courts’ (n 11) 37. 90 ibid.

158 Hellmann methods,91 and it has to be compatible with the Basic Law’s core values (Art. 79(3) Basic Law).92 In addition, the interpretation must not (in accordance with Art. 53 echr) compromise the standard of protection of fundamental rights provided by the Basic Law, which occasionally guarantees a higher level of protection.93 10.3.2 The Federal Constitutional Court and the European Court of Justice With a view to the different competences and standards of review of the two courts, the basic assumptions of the fcc and the ecj regarding their relationship couldn’t be more different. 10.3.2.1 The European Court of Justice and the Primacy of EU Law From the perspective of the ecj the relationship between the two courts is determined by an absolute primacy of EU law, where EU law takes precedence over any national law, including national constitutional law.94 The grounds for this assumption were already laid in 1964, when the ecj in its landmark decision in the Costa v. E.N.E.L case established the primacy of (now) EU law by virtue of its autonomy.95 That the primacy of EU law also applies to national constitutional law, the ecj clarified in its decision from 1970 in the International Trade Association case (Internationale Handelsgesellschaft)96 and ever since (e.g. Winner Wetten in 201097 and Melloni in 201398). Meanwhile, the primacy 91 92 93

94

95 96 97 98

BVerfG, 14 October 2004, 2 BvR 1481/​04, BVerfGE 111, 307 (315 ff.) –​Görgülü; BVerfG, 4 May 2011, 2 BvR 2333/​08 i.a., BVerfGE 128, 326 (366 ff.) –​Preventive Detention ii; BVerfG, 20 June 2012, 2 BvR 1048/​11, BVerfGE 131, 268 (295) –​Preventive Detention iii. BVerfG, 4 May 2011, 2 BvR 2333/​08 ua, BVerfGE 128, 326 (371) –​Preventive Detention ii. Voßkuhle, ‘Pyramid or Mobile? –​Human Rights Protection by the European Constitutional Courts’ (n 11) 37. See BVerfG, 4 May 2011, 2 BvR 2333/​08 i.a., BVerfGE 128, 326 (371) –​Preventive Detention ii; BVerfG, 14 October 2004, 2 BvR 1481/​04, BVerfGE 111, 307 (327) –​Görgülü. Voßkuhle, ‘Pyramid or Mobile? –​Human Rights Protection by the European Constitutional Courts’ (n 11) 37. See Case C-​6/​64 Flaminio Costa v E.N.E.L. [1964] EU:C:1964:66; Case C-​11/​70 Internationale Handelsgesellschaft mbH v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel [1970] EU:C:1970:114; Case C-​106/​77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] EU:C:1978:49. See Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 190. See Case C-​6/​64 Flaminio Costa v E.N.E.L. [1964] EU:C:1964:66. See Case C-​11/​70 Internationale Handelsgesellschaft mbH v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel [1970] EU:C:1970:114. See Case C-​409/​06 Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim [2010] EU:C:2010:503. See Case C-​399/​11 Stefano Melloni v Ministerio Fiscal [2013] EU:C:2013:107107 as well as Case C-​617/​10 Åklagaren v Hans Åkerberg Fransson [2013] EU:C:2013:105.

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of EU law over national law has been confirmed in Declaration No. 17 annexed to the Treaty of Lisbon.99 There are two arguments advanced in favour of an absolute primacy of EU law: The autonomous character of the legal system of the EU (or earlier Community) and secondly the necessity of a uniform application of EU law in the Member States to ensure the functioning of the legal system of the EU (which is ensured by the ecj and especially by the referral procedure according to Art. 267 tfeu).100 A review of EU law by a national constitutional court based on national constitutional law is accordingly ‘ultimately ruled out’.101 10.3.2.2

The Federal Constitutional Court and the Limitations to the Primacy of EU Law From the perspective of the fcc, the legal situation is fundamentally different, and as it happens a little more complex. ‘A little more complex’ actually is an understatement, but I’ll do my very best to illustrate the main points of the jurisdiction of the fcc. From the viewpoint of the fcc, the concept guiding the relationship between the fcc and the ecj is the Basic Law’s openness towards European law.102 As is shown in its Preamble and in its Art. 23, the Basic Law is a constitution which is not only open towards European law but which even requires participation in European integration and in the international peaceful order.103

99

100 1 01 102

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Declaration No. 17 annexed to the Treaty of Lisbon:  ‘The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law. (…)’. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 190 with reference to Wassilios Skouris, ‘Stellung und Bedeutung des Vorabentscheidungsverfahrens im europäischen Rechtsschutzsystem’ (2008) EuGRZ 343 ff. See Maunz and Dürig, Grundgesetz-​Kommentar (fn 76) margin number 161. See Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 179 p. See BVerfG, 30 June 2009, 2 BvE 2/​08 i.a., BVerfGE 123, 267 (399), margin number 332 ff. –​ Lisbon (in English: http://​www.bverfg.de/​e/​es20090630_​2bve000208en.html, accessed 1st April 2020). Preamble of the German Basic Law: ‘Conscious of their responsibility before God and man, inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law. (…)’. Art. 23(1) Basic Law: ‘With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the

160 Hellmann All constitutional bodies, including the fcc, are in the service of this ­participation.104 Although there is still an ongoing discussion about the different dogmatic approaches, the fcc agrees in general that EU law has primacy over national law105, as has been confirmed in Declaration No. 17 annexed to the Treaty of Lisbon (see above). However, it sees the origin of legitimacy of EU law not in the autonomy of the law itself, but in the transfer of sovereignty by the EU Member States.106 Therefore, it views EU law as anchored in national constitutional law and therefore also limited by it. Accordingly, the fcc reserves its right to review the scope of this constitutional ­authorization.107 In doing so, the fcc concentrates on three forms of constitutional review, where the Basic Law demands the jurisdiction of the fcc although questions of the interpretation of EU law are raised.108 First, the so called ‘Solange’ jurisdiction (which can be translated as the ‘as long as’ jurisdiction), where the fcc refrains from exercising its review against the standard of the Basic Law ‘as long as’ the standard of protection on the level of the EU is not falling in general under the standard of protection provided by the Basic Law. Since, the fcc generally assumes equal protection of fundamental rights on both levels (Solange ii from 1986109 as opposed to

104 105 106 1 07 108

109

rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject to paragraphs (2)  and (3)  of Article 79.’ See BVerfG, 30 June 2009, 2 BvE 2/​08 i.a., BVerfGE 123, 267 (399), margin number 225 –​ Lisbon. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11)  190 with reference to Rudolf Streinz, Bundesverfassungsgerichtlicher Grundrechtsschutz und Europäisches Gemeinschaftsrecht (Nomos 1989). See for example BVerfG, 22 October 1986, 2 BvR 197/​83, BVerfGE 73, 339 (374 f.) –​Solange ii; BVerfG, 30 June 2009, 2 BvE 2/​08 i.a., BVerfGE 123, 267 (399), margin number 332 ff. –​ Lisbon. Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 191. For the different forms of review within the procedure of the constitutional complaint see Vanessa Hellmann, ‘§ 90 BVerfGG (Erhebung der Verfassungsbeschwerde)’ in Tristan Barczak (ed), BVerfGG: Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz (n 22) 1136 ff. BVerfG, 22 October 1986, 2 BvR 197/​83, BVerfGE 73, 339 (387) –​Solange ii.

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Solange I from 1974110, see also Maastricht from 1992111, Banana Market from 2000112, Lisbon Treaty from 2010113 and Art. 23(1) Basic Law114). Secondly, the so called ‘ultra vires’ review, where the fcc asks whether the limitations of competences conferred by the EU Member States have been respected (Maastricht), and which was in the beginning not based on possible violations of fundamental rights115. However, since the Lisbon decision116 one may trigger this form of review also by claiming a violation of Art. 38(1) Basic Law, which is surprisingly related to German electoral principles.117 And third, the ‘identity review’, where the fcc determines whether the EU has made use of a competence in an area not conferrable to the EU, as part of the core of the Basic Law, where the fcc reviews a violation of Art. 23(1) 3118 and Art. 79(3) Basic Law119. Since its Lisbon decision the fcc has made clear

1 10 BVerfG, 29 May 1974, 2 BvL 52/​71, BVerfGE 37, 271 (281) –​Solange i. 111 BVerfG, 12 October 1993, 2 BvR 2134/​92 i.a., BVerfGE 89, 155 (174 f.) –​Maastricht. 112 BVerfG, 7 June 2000, 2 BvL 1/​97, BVerfGE 102, 147 (164 ff.) –​Banana market. Hereto: Heiko Sauer, ‘„Solange“ geht in Altersteilzeit –​Der unbedingte Vorrang der Menschenwürde vor dem Unionsrecht’ (2016) NJW 1134 (1136). 113 BVerfG, 30 June 2009, 2 BvE 2/​08 i.a., BVerfGE 123, 267 (399)  –​Lisbon. For a documentary on the Lisbon decision see Karen Kaiser, Der Vertrag von Lissabon vor dem Bundesverfassungsgericht (Springer Verlag 2013). 114 For Art. 23(1) Basic Law see above. 115 BVerfG, 12 October 1993, 2 BvR 2134/​92 i.a., BVerfGE 89, 155 (188, 209 f.) –​Maastricht (this form of review was not performed but mentioned there). 116 BVerfG, 30 June 2009, 2 BvE 2/​08 i.a., BVerfGE 123, 267 (353 f.) –​Lisbon (not performed but mentioned there). Following Lisbon (performed in):  BVerfG, 6 July 2010, 2 BvR 2661/​06, BVerfGE 126, 286 (302 ff.) –​Honeywell; BVerfG, 14 January 2014, 2 BvE 13/​13 i.a., BVerfGE 134, 366 –​OMT; BVerfG, 21 June 2016, 2 BvE 13/​13 i.a., BVerfGE 142, 123 (198 ff. margin number 143 ff) –​ OMT. 117 See BVerfG, 14 January 2014, 2 BvE 13/​13, BVerfGE 134, 366 (396 f.) –​OMT. Dissenting opinions: Michael Gerhardt, BVerfG, 14 January 2014, 2 BvE 13/​13 i.a., BVerfGE 134, 366 (431 ff.) and Gertrude Lübbe-​Wolff, BVerfG, 14 January 2014, 2 BvE 13/​13 i.a., BVerfGE 134, 366 (424 ff.). See also BVerfG, 18 March 2014, 2 BvE 6/​12, BVerfGE 135, 317 (386) –​ESM. Art. 38(1) Basic Law: ‘Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience.’ For triggering this form of review by claiming a violation of one’s rights as stated in Art. 12 Basic Law (profession) see below. 118 For Art. 23(1) Basic Law see already above. 119 BVerfG, 30 June 2009, 2 BvE 2/​08 i.a., BVerfGE 123, 267 (329)  –​Lisbon. Art. 79(3) Basic Law: ‘Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.’

162 Hellmann that this review may also be triggered by claiming a violation of Art. 38(1) 1 Basic Law120 within the constitutional complaint.121 Primary EU law

Secondary EU law

National law approving the ratification of primary EU law,

Implementation Implementation of of binding non-binding secondary EU law: secondary EU law:

Art. 23 (1) 2 BL = Identity review, Art. 23 (1) 3, 79 (3) BL

(‒)

(‒)

Art. 38 (1) BL National acts on the grounds of Union law

1:1 (‒) = Solange (II) = ‘As long as’

Other acts of EU institutions Directly (‒) But: Responsibility of a German constitutional organ = Ultra-vires review, Art. 20 (I) and (II) and Art. 79 (III) BL = Identity review, Art. 23 (1) 3, 79 (3) BL Art. 38 (1) BL

≠ 1:1 (+)

Review: - Standard falls (+) All constitutional rights - Ultra-vires review (+) All constitutional rights - Identity review, Art. 1 (1) and Art. 23 (1) 3 and Art. 79 (3) BL (core of the constitution) (+) Art. 1 (1) BL

Which type of review the fcc exercises depends on the subject to the review in question: It’s complicated.122 10.3.2.2.1 National Law Approving the Ratification of Primary EU Law For national law approving the ratification of primary EU law the standard of review is limited to the identity review.123 1 20 For the wording of Art 38(1) 1 Basic Law see above (n 117). 121 BVerfG, 12 October 1993, 2 BvR 2134/​92, BVerfGE 89, 155 (171 f) –​Maastricht; BVerfG, 30 June 2009, 2 BvE 2/​08, BVerfGE 123, 267 (330) –​Lisbon; BVerfG, 12 September 2012, 2 BvE 6/​12, BVerfGE 132, 195 (234 ff.) –​ESM; BVerfG, 14 January 2014, 2 BvE 13/​13 i.a., BVerfGE 134, 366 (380 ff.) –​ OMT; BVerfG, 17 April 2013, 2 BvQ 17/​13, BVerfGK 20, 293 (299) as well as BVerfG, 7 September 2011, 2 BvR 987/​10 i.a., BVerfGE 129, 124 (170) –​EFS. For the relationship between those two forms of review see BVerfG, 21 June 2016, 2 BvE 13/​13 i.a., BVerfGE 142, 123 (186 ff.) –​ OMT. For triggering this review by claiming a violation of Art. 1(1) Basic Law see below. 122 The following paragraphs were not (in detail) included in the presentation, but were added for the purpose of the footnoted version. 123 See BVerfG, 30 June 2009, 2 BvE 2/​08, BVerfGE 123, 267 (329) –​Lisbon.

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10.3.2.2.2 Acts of German Public Authority on the Grounds of Secondary EU law For acts of German public authority on the grounds of secondary EU law the fcc first tends to the ‘Solange’ jurisdiction, asking whether the fundamental rights standard on the level of the EU has generally fallen below the standard of the Basic Law.124 Since its Honeywell decision the fcc also performs the ultra vires review (only mentioned in Maastricht and Lisbon before).125 If the national act was performed while obviously overstepping the boundaries of EU law the standard of review opens up to the possibility of a full review of the fundamental rights of the basic law. Thus, the fcc in its Honeywell decision examined a violation of Art. 12(1) Basic Law (freedom to choose and practice a profession).126 The use of this form of review has met strong criticism among legal scholars, because it contains an interpretation of primary EU law, which is undoubtedly transferred to the ecj under Art. 19 tfeu.127 However, the significance of the problem has ceased since the fcc in its Honeywell decision also found it to be mandatory to refer a question to the ecj before deciding on the case.128 On the other hand, the fcc has limited the standard of review to ‘obvious violations’.129 The question remains, what an ‘obvious violation’ is. Among legal scholars it is now widely assumed that for ultra-​ vires violations, an according decision of the fcc is of a rather theoretical nature.130 In its decision on the European Arrest Warrant from 2015 (also called ‘Solange iii’)131 the fcc for the first time reviewed an act of German public authority based on secondary EU law using the identity review and determining whether the EU had made use of a competence in an area not conferrable to 124 See BVerfG, 22 October 1986, 2 BvR 197/​83, BVerfGE 73, 339 (387) –​Solange ii. Before: BVerfG, 29 May 1974, 2 BvL 52/​71, BVerfGE 37, 271 (285)  –​Solange i. Hereto:  Hellmann, ‘§ 90 BVerfGG (Erhebung der Verfassungsbeschwerde)’ (n 108) 1134 f. 125 See BVerfG, 6 July 2010, 2 BvR 2661/​ 06, BVerfGE 126, 286 (302)  –​Honeywell. Hereto: Hellmann, ‘§ 90 BVerfGG (Erhebung der Verfassungsbeschwerde)’ (n 108) 1135 f. 126 See BVerfG, 6 July 2010, 2 BvR 2661/​06, BVerfGE 126, 286 (299) –​Honeywell. 127 Maunz and Dürig, ‘Grundgesetz-​Kommentar’ (n 102) margin number 168. 128 See BVerfG, 6 July 2010, 2 BvR 2661/​06, BVerfGE 126, 286 (299 ff.) –​Honeywell. 129 ibid., (303 f.)  –​Honeywell. Maunz and Dürig, Grundgesetz-​Kommentar (n 76)  margin number 168. 130 Maunz and Dürig, Grundgesetz-​Kommentar (n 76) margin number 168. 131 BVerfG, 15 December 2015, 2 BvR 2735/​14, BVerfGE 140, 317 ff –​European Arrest Warrant ii (also called Solange iii; in English:  http://​www.bverfg.de/​e/​rs20151215_​2bvr273514en. html, accessed 1st April 2020). Hereto:  Hellmann, ‘§ 90 BVerfGG (Erhebung der Verfassungsbeschwerde)’ (n 108) 1136. Also see Heiko Sauer, ‘Der novellierte Kontrollzugriff des Bundesverfassungsgerichts auf das Unionsrecht’ (2017) EuR 186 (203).

164 Hellmann the EU as part of the core of the Basic Law.132 The identity review was already mentioned in the fcc’s Lisbon decision, but only related to a national act approving the primary law of the EU as mentioned before. Now the identity review is also performed when inviolable principles of the constitution have been touched by acts based on EU law. The constitutional identity of Art. 79(3) Basic Law also contains the principles as laid down in Art. 1(1) Basic Law (Human Dignity). Against this background, the fcc reviewed the European Arrest Warrant against Art. 23(1) 3, Art. 79(3) and Art.1(1) Basic Law.133 10.3.2.2.3​ The Implementation of EU Law into German Law Which form of review is performed regarding the implementation of EU law into German law depends on whether the implemented EU law is binding/​ mandatory or non-​binding.134 Is the national law not only implementing mandatory EU law, because the secondary EU law leaves room for manoeuver (national law not determined by EU law), the review of the fcc is not limited and open to a full review of a violation of fundamental rights.135 Whether the EU law is mandatory/​binding or non-​binding has to be determined from case to case for each law in question.136 Is the national law only implementing mandatory EU law (national law entirely determined by EU law), the fcc performs all three forms of review: The Solange jurisdiction, the ultra vires review and the identity review. The ultra vires review opening the standard of review to all fundamental rights, the latter (as for now) only to a review of Art. 1(1) of the Basic Law (Human Dignity) and Art. 23(1) 3 and Art. 79(3) Basic Law.137 10.3.2.2.4​ Acts of the EU The fcc has in both of its omt-​decisions reasoned138 (and I would say contrary to a common misperception)139, that neither the law of the EU nor acts 132 BVerfG, 15 December 2015, 2 BvR 2735/​14, BVerfGE 140, 317 (341 ff.)  –​European Arrest Warrant ii. 133 See BVerfG, 15 December 2015, 2 BvR 2735/​14, BVerfGE 140, 317 (341 ff.) –​European Arrest Warrant ii. 134 For this see Hellmann, ‘§ 90 BVerfGG (Erhebung der Verfassungsbeschwerde)’ (n 108) 1137 f. 135 See BVerfG, 24 January 2012, 1 BvR 1299/​05, BVerfGE 130, 151 (177); BVerfG, 24 April 2013, 1 BvR 1215/​07, BVerfGE 133, 277 (313 f.). 136 BVerfG, 14 May 2007, 1 BvR 2036/​05, BVerfGK 11, 189 (191 f.). 137 See Hellmann, ‘§ 90 BVerfGG (Erhebung der Verfassungsbeschwerde)’ (n 108) 1138. 138 See BVerfG, 14 January 2014, 2 BvE 13/​13 i.a., BVerfGE 134, 366 ff. –​OMT; BVerfG, 21 June 2016, 2 BvE 13/​13 i.a., BVerfGE 142, 123 (180) –​ OMT. 139 A common misperception of the Maastricht decision: BVerfG, 12 October 1993, 2 BvR 2134/​ 92, BVerfGE 89, 155 (174 f.) –​Maastricht. Hereto: Hellmann, ‘§ 90 BVerfGG (Erhebung der Verfassungsbeschwerde)’ (n 108) 1130 ff.

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of its institutions may be subject to a direct review by the fcc.140 However, they may be indirectly reviewed, when they either build the grounds for acts of German public authority141 or they create obligations for German constitutional organs to react following their responsibility for the integration.142 The standard of review for the German acts mentioned above is both: the ‘identity review’ and the ‘ultra vires’ review, the latter performed against the standard of Art. 20 and Art. 79(3) Basic Law.143 10.3.3 The European Court of Human Rights and the European Court of Justice The perspective of the ecj on this relationship is a sceptical one. The ecj reviews the law of the Member States against the standard of EU law, the ECtHR reviews the same laws against the rights of the echr. Furthermore, since the coming into force of the Lisbon Treaty, the EU itself (as an exception for a non-​ state) can become a member of the echr.144 However, due to an opinion voiced by the ecj, where the ecj objected to the draft of an according treaty,145 the EU didn’t become a party to the echr (yet). Among European law scholars it is suspected that the ecj feared both: a loss of autonomy of the EU law and a loss of power for itself.146 However, the echr is already of special importance for the interpretation of the cfr: In the Preamble of the cfr the echr and the jurisdiction of the 140 BVerfG, 21 June 2016, 2 BvE 13/​13 i.a., BVerfGE 142, 123 –​OMT. See also Sauer, ‘Der novellierte Kontrollzugriff des Bundesverfassungsgerichts auf das Unionsrecht’ (n 131) 186 ff. 141 See BVerfG, 21 June 2016, 2 BvE 13/​13 i.a., BVerfGE 142, 123 (180) –​OMT with reference to BVerfG, 14 January 2014, 2 BvE 13/​13 i.a., BVerfGE 134, 366 (382) –​ OMT. 142 BVerfG, 21 June 2016, 2 BvE 13/​13 i.a., BVerfGE 142, 123 (180)  –​OMT with reference to BVerfG, 14 January 2014, 2 BvE 13/​13 i.a., BVerfGE 134, 366 (394 ff.) –​OMT; BVerfG, 18 March 2014, 2 BvE 6/​12, BVerfGE 135, 317 (393 f.) –​ ESM. 143 For the relationship between those two forms of review see BVerfG, 21 June 2016, 2 BvE 13/​ 13 i.a., BVerfGE 142, 123 (186 ff.) –​ OMT. 144 See Art. 6(2) teu as well as Protocol No. 14 of the echr and Art. 59(2) echr. See Karpenstein and Mayer, emrk, Introduction, margin number 154 ff. Art. 6(2) teu: ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.’ Protocol No. 14: ‘Article 59 of the Convention shall be amended as follows: (…) The European Union may accede to this Convention. (…)’. Art. 59(2) echr: ‘The European Union may accede to this Convention.’ 145 ecj, Opinion of 18 December 2014, Opinion 2/​13, EU:C:2014:2454. See Mattias Wendel, ‘Der EMRK-​Beitritt als Unionsrechtsverstoß –​Zur völkerrechtlichen Öffnung der EU und ihren Grenzen’ (2015) NJW 921 ff. 146 Satzger, in:  Satzger/​Schluckbier/​Widmaier:  StPO, 3.  Auflage 2018, Art. 1 emrk, margin number 21.

166 Hellmann ECtHR are mentioned147 and Art. 52(3) cfr contains a clause of coherence, stating that the rights of the cfr should have the same meaning and significance as the corresponding guarantees in the echr.148 From the perspective of the ECtHR the Member States of the EU are also bound by the rights of the echr when they are party to an international organisation and act on the grounds of that organisation’s law (s. Bosphorus).149 However, and this reminds us of the jurisdiction of the fcc towards the ecj, ‘as long as’ the organisation protects the fundamental rights under its jurisdiction as well and this protection is equivalent (not identical) to the standard of protection under the echr the ECtHR refrains from its jurisdiction. However, the ECtHR doesn’t refrain from its jurisdiction, when in a certain case the standard is obviously not met (s. Bosphorus).150 10.4

Conclusion

Let me (finally) come to a conclusion. As you have seen, it is (almost) not possible to answer the question which court nowadays finally and bindingly decides on matters of constitutional law in Europe,151 for the triangle turns and turns and keeps turning. At least, when you look upon the triangle from the side, searching for the court on top. Thus, I would argue, looking at the triangle from the side so it appears like a pyramid is indeed not the right way of reflecting the interplay between the

147 Preamble:  ‘This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-​law of the Court of Justice of the European Communities and of the European Court of Human Rights.’ 148 Art. 52(3) echr:  ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’ 149 See Bosphorus v. Irland App no. 45036/​98 (echr, 30 June 2005) para 136. 150 See Bosphorus v. Irland App no.  45036/​98 (echr, 30 June 2005)  para 156. For an overall description of this relationship see Satzger, IntEuStrR, § 11, margin number 17 ff.; I.d. in: Satzger/​Schluckbier/​Widmaier: StPO, 3. Auflage 2018, Art. 1 emrk, margin number 21 ff. 151 Maunz and Dürig, ‘Grundgesetz-​Kommentar’ (n 101) margin number 180.

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three courts.152 Instead, one should look upon the triangle from above, where it also turns, and let us not say like a triangular football field, but it turns to be part of another geometric figure: It serves as the triangular base for a pyramid (which is then called a triangular pyramid or a tetrahedron)153 where on the grounds of a comprehensive, dynamic relationship between our three corner players the protection of the rights of the people is (the apex) on top (and let me mention, that a regular tetrahedron by chance is one of the five regular Platonic solids, which have been known since antiquity, and where all faces are the same size and shape and all edges connecting the four corners are the same length).154 The protection of the fundamental rights of the people in Europe is neither easy, nor convenient and more often rather not efficient. However, the system is worthwhile when it’s not about the courts, circling around and reflecting upon themselves (being on top or bottom),155 but about securing the utmost possible standard of protection for the fundamental rights of the people (­being the apex on top).

152 See Voßkuhle, ‘Pyramid or Mobile?  –​Human Rights Protection by the European Constitutional Courts’ (n 11) 36 and 40. 153 For a tetrahedron as a mathematical figure see: Wikipedia, ‘Tetrahedron’, https://​en.wikipedia.org/​wiki/​ Tetrahedron. 154 See Wikipedia, https://​en.wikipedia.org/​wiki/​Tetrahedron (Regular Tetrahedron) and https://​en.wikipedia.org/​ wiki/​Platonic_​solid for the five ‘Platonic solids’. 155 Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts’ (n 11) 196: ‘It is difficult to take stock of the Verbund of the three European constitutional courts, if only because the image that the institutions have of themselves sometimes seems to leave a more important mark than their relationship in the Verbund.’

­c hapter 11

Judicial Case Management and Loyal Cooperation Towards Harmonized European Rules of Civil Procedure C.H. (Remco) van Rhee 11.1 Introduction* In all European jurisdictions explored in part 2 of this book –​Germany, Slovenia, England & Wales and Norway –​judges work in an environment where international courts have become more and more prominent in the national legal order. In these jurisdictions, the European Court of Justice (ecj) and the European Court of Human Rights (ECtHR) are very influential, as is shown in the previous chapter on Germany. Top down initiatives to foster cooperation between national court systems in Europe and to harmonize standards of fundamental rights across national borders, are well established and very successful. However, as Vanessa Hellmann explains in her chapter, the relationship with international courts is not easy and does not in itself promote efficient judicial case management. Nevertheless, in at least one respect, top down initiatives have proved to be efficient: A mutual understanding of legal concepts and minimum standards of equal protection for European citizens have emerged. There are in Europe also other initiatives aiming at loyal cooperation and harmonization. This chapter tells the story of a unique project aimed at developing model rules which, if it succeeds, may direct the multitude of national civil procedural laws in Europe towards further alignment. If the model rules give rise to national law reform projects, European judges may not only be bound by substantive European law, but also manage cases according to European procedural standards incorporated in their national legal systems. This will facilitate the birth of a truly European legal profession. Case management and the role of judges and parties in civil litigation are central themes in procedural scholarship globally. In Western jurisdictions, * The author serves as chair of the working group on the obligations of the judge and the parties and their lawyers established by the European Law Institute and unidroit. Professor Alan Uzelac serves as co-​chair. Members of the working group are professors Emmanuel Jeuland, Bartosz Karolczyk, Walter Rechberger, Elisabetta Silvestri, John Sorabji and Magne Strandberg. The draft rules and commentary below are their joint work.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_012

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these matters are very relevant since litigation is often too slow and inefficient. In these jurisdictions, the question arises to what extent judges may interfere in the civil process without losing their neutrality and without executing tasks that should belong to the parties. After all, civil litigation is about the private rights and interests of the parties and interference by state authorities in these matters should be justified. In China, central legal concepts may be different,1 but as Weidong Cheng clearly points out in Chapter  8, judicial case management is also a central issue there. In China, case management may not be related to inefficiency, since the Chinese court system is very efficient: judgments are often issued within a short time frame using electronic tools, as further explained in Chapter 2. However, according to some observers, this efficiency comes at a price in the sense that the quality of adjudication in China may be compromised by speediness. Whether this is true or not can only be determined by Chinese scholars, but if changes are needed it may be of interest to these scholars to take into consideration the draft rules and commentary on judicial case management and related issues presented below. The draft rules aim at the harmonization of civil procedural law in Europe and are framed as soft law. The draft rules have been developed by some leading experts in civil litigation from a selection of European member states, reflecting best European practice in civil procedure. 11.2

Modern Attempts to Harmonize Rules of Civil Procedure in Europe

The first modern attempts to harmonize rules of civil procedure in Europe date back to the 1980s. At that time, the author served as a young assistant in a project initiated by the late Professor Marcel Storme from Ghent, where representatives of the then 12 member states of the European Community (now the European Union) made attempts to develop rules of civil procedure that would be acceptable in all member states.2 Such rules are necessary given the fact that Europe does not have a system of federal courts like the United States of America. It is consequently dependent on the national courts of the member states for the correct implementation of harmonized European law whenever legal disputes arises. 1 See e.g. the tripartite powers of the Judicial Power Operation System, explained in Chapter 9 of this volume. 2 Marcel L.  Storme (ed.), Approximation of Judiciary Law in the European Union (Dordrecht, 1994).

170 van Rhee Unfortunately, the Storme project was flawed, amongst other things because rules that are acceptable to all member states are hard to formulate (especially where the civil law tradition of the European continent is confronted with the common law tradition of the British Isles). If such rules can be formulated at all, they will not be very revolutionary. This is proven by the Storme Rules, for example in the very important area of evidence where the Storme Group produced few rules, one of them stating the obvious that those who are duly summoned to court to give evidence in civil proceedings are under a duty to give evidence.3 For the Swedish law professor P.H. Lindblom, this rule and related rules were proof of the fact that the Storme Project was unsatisfactory.4 Indeed, very little has come from the rules that the Storme Group published in 1994.5 Even though the Storme Group did not produce a set of rules that would change the civil procedural landscape in Europe, the project was important since it served to put the topic of procedural harmonization on the European legislative agenda from the 1990s. As such, the Group inspired later attempts at harmonization, one of them being the 2006 Principles of Transnational Civil Procedure of the American Law Institute (ali) and unidroit6 which aimed at providing model rules (soft law) for the world at large (the jurisdictions discussed in part 2 of this volume are all unidroit-​member states). The project of the European Law Institute (eli) and unidroit focusing on the development of model rules for the member states of the European Union is another example. Except for China, the countries accounted for in part 2 are all included in this project. The results of the latter project, which started in 2013, will hopefully be published in 2020. At the time of writing, this had not yet happened. The eli/​u nidroit project does not primarily aim at developing procedural rules that will be acceptable in all European member states. On the contrary, it takes best European practices as its guiding star. This means that those involved in drafting the Rules concentrate on those rules that can be qualified as ‘best’ from the perspective of predefined goals such as fairness, efficiency, speediness and proportionality. The project takes the relatively sophisticated 2006 Principles of Transnational Civil Procedure mentioned above as its 3 ibid. Art. 5. 4 P.H. Lindblom, ‘Harmony of Legal Spheres. A Swedish View on the Construction of a Unified European Procedural Law’ (1997) European Review of Private Law, 5, 11–​46. 5 Supra (n. 2). 6 ali/​u nidroit, Principles of Transnational Civil Procedure (Cambridge, 2006)  (ali/​u nidroit hereafter).

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starting point. It is felt that these Principles can serve as a source of inspiration for European rules. European rules can, however, be more elaborate and detailed than the Principles given the fact that unlike the Principles they are not aimed at international commercial litigation globally, but at civil litigation in the relatively restricted area of the member states of the European Union. At the time the project was initiated, it could not be expected that the United Kingdom would decide to leave the European Union and therefore the Rules also contain elements of the procedural heritage from especially England & Wales.7 Currently, this would not have been necessary anymore from a political perspective but taking into consideration English civil procedure has in the opinion of the author improved the quality of the new rules. Taking into consideration the common law heritage may also be beneficial for the acceptance of the Rules in the Republic of Ireland. Although common law influence is noticeable, many of the proposed rules find their origin in civil law jurisdictions. This means that the history of various rules can be traced back to the Romano-​canonical procedure of the medieval period, i.e. the ancestor of most modern systems of civil procedure on the European Continent.8 The Romano-​canonical procedure was a scholarly type of procedure, something that can for example be noted when taking into consideration its sophisticated rules on evidence. One of the aims of the Romano-​ canonical procedure was to avoid arbitrary judgments and for that reason rules of procedure were developed which enhanced the chances that the final judgment would be just and based on the true facts and the correct legal basis. Consequently, the distribution of tasks amongst the various participants in the legal process (judges, parties and lawyers) was a central issue. Traditionally, the role of the judge in the Romano-​canonical procedure was more prominent than his role in the common law. On the Continent, the judge not only made sure that the procedural rules were observed. He was also in charge of establishing the correct legal basis of the case (iura novit curia) and he would develop various activities in establishing the relevant facts, for example when hearing witnesses (a task that is left to the parties and their lawyers in the common law systems). Obviously, the parties and their lawyers also had far-​reaching responsibilities in this respect. In the national procedures that developed since medieval times on the foundations of the Romano-​canonical procedure, the division of tasks between judge and parties is still an important matter. It is therefore not a surprise that judicial activity and the division of 7 See the discussion of the court system in England & Wales in Chapter 5 of this volume. 8 See e.g. K.W. Nörr, Romanisch-​Kanonisches Prozessrecht. Erkenntnisverfahren Erster Instanz in Civilibus (Heidelberg/​New York, 2012).

172 van Rhee tasks between judge and parties are also central topics where it concerns the European Rules of Civil Procedure developed within the context of the European Law Institute and unidroit. In the present contribution I will only concentrate on the role of the judge, the parties and their lawyers in the ELI/​UNIDROIT Rules. Unfortunately, the final text of the Rules cannot be taken into consideration since this text is still under preparation and has not yet been published. I will therefore focus on a text prepared by a working group established within the context of the eli/​ unidroit project tasked with drafting rules on the obligations of the judge, the parties and their lawyers in civil litigation. This working group is chaired by the author of the present contribution and Professor Alan Uzelac from Zagreb in Croatia. Members of the working group are Emmanuel Jeuland (France), Bartosz Karolczyk (Poland), Walter Rechberger (Austria), Elisabetta Silvestri (Italy), John Sorabji (United Kingdom) and Magne Strandberg (Norway). The text below contains the rules and parts of the explanatory notes produced by the working group.9 It is unclear to what extent the ideas of the working group will be incorporated in the final, consolidated draft of the Rules, in which all rules produced by the various working groups10 will be integrated, but it is hoped that many of our ideas will survive. The rules developed by our working group are based on a variety of sources. The starting point are the ali/​u nidroit Principles of Transnational Civil Procedure, especially (but not only) Principles 11 (Obligations of the Parties and Lawyers) and 14 (Court Responsibility for Direction of the Proceeding). Furthermore, Council of Europe Recommendations (especially Recommendation No. R (84) 5 on civil procedure), case law of the Court of Justice of the European Union and the European Court of Human Rights, the Storme Project on the Approximation of Judiciary Law in the European Union, model codes

9

10

Here it should be underlined that this text has been drafted by the members of the working group jointly. The selection of the relevant parts of this text reproduced in the present contribution and the way texts have been grouped together is the responsibility of the author. Some minor textual changes in the commentary have been introduced. The text of the Rules themselves is identical to the ones submitted to the European Law Institute and unidroit. Permission to make the work of the working group public was obtained at the annual conference of the European Law Institute in Vienna in September 2019. It should be noted that our draft rules are subject to modification by the working group responsible for the consolidated draft containing the rules of all working groups. There are 9 working groups dealing with different procedural topics, and one structure working group. See (accessed 1st April 2020).

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such as the Codigo modelo Iberico-​americano, the national laws of the Member States of the European Union and other European countries and various professional codes of conduct have been taken into consideration. Our rules deal, as stated, with the obligations of the judge, the parties and their lawyers in civil litigation. The proposed rules use the word ‘obligations’ in a broad sense. This expression encompasses both duties in the strict sense of the term (in German: Pflichten) and duties which are only indirectly sanctioned (mere obligations, in German: Lasten).11 The focus of our rules is, however, on effectiveness: there should be both adequate means and motivations to ensure that all obligations in the proceedings are respected effectively. Obligations may be either positive or negative. Positive obligations require actions to be undertaken in order to contribute to fair, efficient, speedy and proportionate resolution of the dispute. Negative obligations are those which require parties to ensure that they treat other participants in proceedings fairly i.e., obligations to refrain from acting in bad faith, in particular by not undertaking steps that unduly delay the proceedings or otherwise qualify as procedural abuse. Our rules provide a modern approach to civil litigation in that they put the emphasis on loyal cooperation between the judge, the parties and their lawyers. The rules are written from the perspective that judges, parties and their lawyers have a shared responsibility in putting an end to disputes in a fair, efficient, speedy and proportionate manner, either by way of settlement or by way of a court decision based on the true facts and right law. This means that the adversarial-​inquisitorial divide is intentionally avoided. The underlying idea of the proposed rules is that there is no mutually exclusive division of labour between the various participants in a civil lawsuit; there are only shared obligations. This means that apart from the parties, the court also has certain obligations regarding facts and evidence, whereas parties share the responsibility for the assessment of the pertinent legal issues with the judge. It is the duty of the lawyers to support the parties in the execution of their obligations. Lawyers’ duties, however, go further as they also have to observe professional duties normally found in codes of conduct, to which our rules refer where necessary. It should be noted that rules referring to the court (as opposed to judges) include the powers and responsibilities of all existing court structures that ensure the good administration of justice in particular cases. Furthermore, the

11

C.H.  van Rhee, ‘Obligations of the Parties and their Lawyers in Civil Litigation’, in:  J. Adolphsen et al. (eds.), Festschrift für Peter Gottwald zum 70. Geburtstag (Munich, 2014), 669–​679.

174 van Rhee judges’ obligations are shared by those who perform activities related to those of the court such as, for example, an amicus curiae. The rules proposed by our working group are grouped under five headings. Part 1 is the general part and deals with the duty of loyal cooperation. All rules have to be interpreted within the context of this general duty and therefore this duty serves as a kind of overriding objective. Part 1 is followed by four specific parts, each part having a similar structure: every part contains separate rules on the obligations of the parties, their lawyers and judges, as well as a section on sanctions for the breach of procedural obligations. As a result, sanctions are mentioned in all parts of our rules. This is due to the fact that no single and uniform rules on sanctions are appropriate, as various actors and elements of the procedural obligations require various types and forms of sanctions. Sanctions can either be negative consequences as regards the manner in which the case is litigated, or positive consequences such as fines. 11.3

Draft Rules on Obligations

11.3.1 General Part: Overriding Objective Part 1 of our draft contains 4 rules:12



Rule 1. Obligations of the Parties13 (1) Parties have a duty to promote the fair, efficient, speedy and proportionate resolution of their dispute. This duty includes their conduct before starting court proceedings, during all stages of litigation and, if necessary, stages after the proceedings. In particular, the parties are obliged to: (i) contribute to proper management of the proceedings; (ii) present facts and evidence and assist in the proper determination of the facts; (iii) assist in determination of the applicable law; (iv) undertake all reasonable efforts to settle disputes amicably. (2) When dealing with the court and other parties, parties must cooperate in good faith. They must avoid any delaying tactics and refrain from procedural abuse.

12 This part of the rules was originally drafted by Walter Rechberger and Remco van Rhee. 13 Cf. ali/​u nidroit, Principles 7.2, 11.1 and 11.2; Council of Europe Recommendation (84)5 on Principles of civil procedure designed to improve the functioning of justice, Principles 2.1 and 2.2 (Council of Europe Recommendation (84)5 hereafter).

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(3) These obligations apply to other interested persons who participate in proceedings as they apply to parties. Rule 2. Obligations of the Lawyers14 (1) When representing parties, lawyers must act in accordance with the duty of loyal cooperation, and assist the parties to observe their procedural obligations. (2) These obligations apply accordingly to other persons who assist parties. Rule 3. Obligations of the Court15 (1) The court shall promote the fair, efficient, speedy and proportionate resolution of disputes. It is responsible for active and effective case management. Throughout proceedings it shall monitor whether parties, lawyers and other participants referred to in these Rules observe their obligations. (2) The court shall undertake such steps as are necessary to establish and maintain procedural cooperation, prevent procedural abuse and/​or avoid the negative consequences of violations of procedural obligations. Wherever appropriate, it shall promote the consensual settlement of disputes. (3) Judges shall implement the court’s obligations in individual proceedings. These obligations apply accordingly to other professionals that assist the court. Rule 4. Sanctions16 (1) Breach of the obligations referred to in these Rules is subject to sanctions. (2) Sanctions have to be effective and proportionate. They may include: (i) the proceedings continuing without the defaulting party’s participation; (ii) negative inferences as to facts;

14 Cf. ali/​u nidroit, Principles 11.1 and 11.5; Council of Europe Recommendation (84)5, Principle 2.3. See also Council of Europe Recommendation (2000)21 on the freedom of exercise of the profession of lawyer, and Code of Conduct for European Lawyers of the Council of Bars and Law Societies of Europe. 15 Cf. ali/​u nidroit, Principle 11. 16 Cf. ali/​u nidroit, Principles 7.2, 15.6, 17, 18.2, 18.3, 21.3 and 24.3; Council of Europe Recommendation (84)5, Principles 1.2 and 2.

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(iii) the right to dismiss or reject incomplete or unsubstantiated statements of case or other procedural acts of the parties; (iv) cost sanctions; (v) fines; (vi) disciplinary and other professional sanctions. (3) Unless an order or direction specifies the contrary, sanctions imposed take effect automatically. Orders imposing sanctions may only be subject to appeal in exceptional circumstances. (4) Sanctions may be imposed either by the court or by the relevant professional organisation.

Rule 1 uses the terms ‘fair’, ‘efficient’, ‘speedy’ and ‘proportionate’. A  precise definition of this terminology is hard to provide and may even be dangerous. The terminology is flexible and should be interpreted in light of modern procedural standards. It should be read in the light of the procedural model that is envisaged by these rules. (1) ‘Fair’ includes the observance of modern procedural principles such as the duty of the parties to cooperate with each other and the court and the avoidance of manifestly ill-​founded proceedings or the abuse of procedural rules for illegitimate purposes, (2) ‘efficient’ refers, amongst other things, to the use of resources in the least wasteful manner, (3) ‘speedy’ includes a time-​frame which is reasonable given the nature, value and complexity of the case, whereas (4) ‘proportionate’ to a certain extent covers similar grounds as the terminology ‘efficient’ and ‘speedy’ taken together. ‘Proportionate’ is added in order to emphasise that different types of cases may require different use of resources and time. The obligations mentioned under (a)-​(d) are four important obligations which result from the duty of the parties mentioned in this rule. Where the rules do not address the particular obligations of the parties, the requested procedural behaviour should be such that the fair, efficient, speedy and proportionate resolution of the dispute is promoted. Parties should observe their obligations not only during litigation but even before the case is brought to court (the pre-​action stage) and also after litigation e.g., in the enforcement stage or when exercising the right to use special remedies such as a request to reopen the proceedings. In the pre-​action stage, the parties should cooperate in such a manner that the facts and the law underpinning their dispute are sufficiently stated, available evidence exchanged and sufficient settlement attempts undertaken before court action is initiated. Obviously, sanctions for non-​observance of these obligations are not available in the pre-​action stage, but they may be imposed when the case actually

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reaches the court (cf. the English pre-​action protocols). In the enforcement stage, the judgment debtor should cooperate loyally in the identification of relevant assets and also provide further assistance in order to allow enforcement to be executed in the required manner. Rule 2 deals with the obligations of lawyers. Lawyers are the most important individuals who assist the parties and undertake actions in the proceedings on their behalf. The notion of ‘lawyer’ is not defined, but is meant in the sense of the definition provided in Council of Europe Recommendation Rec(2000)21 on the freedom of exercise of the profession of lawyer, where the term ‘lawyer’ is defined as a person qualified and authorised according to national law: to plead and act on behalf of his or her clients; to engage in the practice of law; and, to appear before the courts or advise and represent his or her clients in legal matters. Assisting parties in the observance of their procedural obligations means, amongst other things, that lawyers should inform the parties of these procedural obligations as expressed in our rules and of the consequences of non-​ compliance. Lawyers should not knowingly cooperate in any non-​compliance with these obligations. If necessary, they should actively promote compliance by the parties. If a party persists in being non-​compliant, this may ultimately mean that a lawyer has to terminate its relationship with that party. In addition to their obligation to assist the parties to comply with their procedural obligations, lawyers have common professional obligations that arise from various national and international codes and rules of professional ethics. These obligations may be considered to be incorporated in our rules. Obviously, where one is dealing with national codes and rules of professional ethics, differences may arise depending on the jurisdiction where the lawyer practises. The obligation of lawyers to assist the parties to carry out their duty to contribute to the fair, efficient, speedy and proportionate resolution of disputes apply analogously as legal and professional obligations to experts appointed by the parties (‘expert witnesses’, where they exist), to their advisers (other than lawyers, if they exist in a particular jurisdiction) and other professionals assisting the parties even if no rules of codes of professional ethics apply to them or if such rules or codes of conduct differ in certain respects. Court-​appointed experts are addressed in Rule 3 (see below) since their obligations are analogous with the obligations of judges. While Rule 2 principally deals with professionals who assist the parties, it should be noted that under various national jurisdictions, parties may be represented by other persons, such as close relatives or other persons whom they trust, or by consumer protection organisations or labour unions etc. To the

178 van Rhee extent that such persons do not act in a professional capacity i.e., in the course of business, they are not bound by professional rules, but they are subject to the common procedural obligation to contribute to good administration of justice. Rule 3 deals with the obligations of the court. The court (here understood as an administrative entity), just like the parties, has a duty to promote the fair, efficient, speedy and proportionate resolution of disputes. The comments made above regarding the definition of fair, efficient, speedy and proportionate apply, mutatis mutandis, to the present rule. The court can implement this obligation by organising work processes in such a way that sufficient time and resources are available to decide individual cases. It should also ensure that no more time and resources than are necessary or proportionate are expended on any case so that enough time and resources are available for other cases i.e., the court should ensure that there is effective resource allocation across all cases before it. Moreover, the court must monitor whether other participants in the lawsuit observe their obligations. Monitoring is a continual duty in so far as the court ought to ensure that procedural obligations are observed and that voluntary compliance with the professional obligations is secured throughout the entire course of the proceedings. Of course, continual monitoring does not imply that the court needs to check the progress of the case on a daily basis. It only means that throughout the proceedings the court should establish whether procedural timetables and procedural steps and actions, which were agreed or determined by the court, are being complied with, taking appropriate enforcement action if necessary. In individual cases the court’s duties have to be implemented by individual judges or panels of judges. This is an aspect of their judicial case management function. It is suggested that, in implementing this function, judges are monitored by the court:  monitoring of adequate performance of this function does not touch upon the independence and impartiality of judges in decision-​making. The courts themselves could be monitored by a Council for the Judiciary or a similar body that is independent of the Ministry of Justice. Those other professionals who assist the court, mentioned at the end of Rule 3, may, for example, be court appointed experts, assessors, jurors etc. (to the extent that they exist and assist the court in any particular jurisdiction). Rule 4 deals with sanctions. Sanctions are indispensable for promoting the observance of the obligations by those involved in litigation. In the text, the word ‘sanction’ is used in a broad sense, which includes not only fines or preclusions, but also any means that result in negative consequences for a

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participant in the proceedings if their obligations are not being fulfilled. Normally, such sanctions are not subject to appeal. Appeals shall be allowed, however, if the sanction is especially severe or if the sanction is of special significance to the case in general. In this sense, Rule 4 mentions a series of pecuniary and non-​pecuniary sanctions that may be imposed by the court or a professional organisation on parties, their lawyers and other participants to whom the duties provided in these rules apply. Sanctions for judges who do not observe their judicial case management tasks are more difficult to envisage, not least because providing for a means of recourse against such judges may result in additional delay. If such sanctions are available in a legal system, they should either be proposed or imposed by a competent court body (e.g., the president of the court) or by a body such as a Council for the Judiciary. Professional or disciplinary sanctions that can only be imposed by the respective professional organisation (bar association, body for judicial discipline) may result from the initiative of other participants in the proceeding (e.g., the court, parties or third interested parties reporting relevant conduct to a relevant organisation). They may also be taken by the respective organisation or body on its own initiative. Such sanctions, if imposed on judges, do not affect their independence, since independence should be understood as independence in deciding the substance of the dispute between the parties and not as independence in managing the case procedurally. As far as the individual sanctions mentioned in Rule 4 are concerned, they are indicated there in a generic way and as a catalogue of possible responses to violations of procedural obligations. For instance, the right to continue and issue decisions without a non-​participating party (option under (i)) includes various reactions to passive behaviour of a party (holding hearings in the absence of a duly summoned party; deciding individual issues or the whole case on the merits in spite of the fact that a party, duly informed and invited to supply its arguments, failed to do so). Negative inferences (option under (ii)) can lead to an unfavourable decision on the merits, while summary dismissal of submissions (option under (iii)) that are unsubstantiated or incomplete (e.g., dismissal of the statement of claim or appeal which does not contain essential elements) can save resources and speed up processing cases in which parties do not adhere to minimal procedural requirements. Cost sanctions (option under (iv)), fines (option under (v)) and disciplinary sanctions (option under (vi)) all serve to enforce procedural obligations and protect the integrity of the proceedings. Cost sanctions can take different forms. Their precise shape depends on features of specific national justice systems and their approach to costs. They may include fines, cost shifting and augmented court fees.

180 van Rhee 11.3.2 Management of the Procedure Part 2 of our Rules contains 7 individual rules:17













Rule 5. Obligation to Actively Manage Court Proceedings18 (1) The court must actively manage proceedings in order to promote their fair, efficient, speedy and proportionate resolution, whether by consensual settlement or by judgment. In doing so, the court must take account of the nature, value and complexity of the particular proceeding before it and of the need to give effect to its general management duty in all proceedings. (2) The general management duty is a continuing duty, which must be carried out by the court at all stages of the proceedings. Individual case management decisions must be taken at the earliest ­opportunity. (3) Parties must co-​operate with each other and with the court in order to facilitate proper case management. Rule 6. Case Management Conference19 (1) In order to manage cases properly, the court may hold a case management conference at which the court may make any order necessary to manage the case properly. If requirements are met, the court must determine the claim on the merits at a case management conference or immediately thereafter. (2) Such a hearing may be held in person, or by the use of electronic means of communication. The first case management conference shall be held as soon as possible. Rule 7. Power to Issue Case Management Orders20 (1) The court may make any case management order on its own initiative or on application of any party. Orders may be made without a hearing or on an ex parte basis. Where orders are made by the court on its own initiative, any party may apply to the court to have the order reconsidered at a hearing. (2) Where orders are made on an ex parte basis, the party to whom notice was not given may apply to have the order reconsidered.

17 This part of the rules was originally drafted by John Sorabji and Magne Strandberg. 18 Cf. ali/​u nidroit, Principle 14. 19 Cf. various national rules and best practices (e.g. the English cpr). 20 Cf. ali/​u nidroit, Principle 5.8.

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Rule 8. Means of Case Management21 (1) In order to further its general case management duty, the court may take any necessary step: (i) schedule case management conferences; (ii) set a timetable or procedural calendar; (iii) set deadlines for the parties to take procedural steps; (iv) determine the type and form of procedure; (v) limit the number and length of submissions; (vi) encourage the parties to take active steps to settle all or parts of their dispute including encouraging, and where appropriate taking part in, the use of alternative dispute resolution (adr) processes or practices (Rules 24 and 25); (vii) determine the order in which issues should be tried, whether certain procedural or substantive issues should be decided jointly or separately, and whether the proceedings should be consolidated or split; (viii) determine changes related to the parties to the proceedings and on participation of other interested persons in the proceedings; (ix) consider whether a party is properly represented; (x) require party’s appearance in person or require a party’s representative to be present at a court hearing or meeting; (xi) ensure appropriate use of modern technology; or (xii) take any other necessary step. (2) While exercising its general management duty, the court shall manage the proceedings so that that all relevant issues in the case are identified and may be decided in a complete and appropriate manner. The court may encourage the parties to identify the real issues in dispute, and discuss with them appropriate methods and steps for dealing with these issues. (3) The court may vary any case management order, including abridging or extending the time to comply with them. Such orders are ordinarily not subject to appeal. Rule 9. Sanctions for Lack of Cooperation Regarding Case Management22 Unless a specific rule applies, in any case management order the court shall specify the sanction for non-​compliance with that order or direction (Rule 4).

21 Cf. ali/​u nidroit, Principle 14.3. 22 Cf. ali/​u nidroit, Principles 7.2, 15.6, 17 and 18.2-​3.

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Rule 10. Cooperation in Issuing and Amending Case Management Orders23 (1) The parties should, ordinarily, be consulted by the court prior to issuing case management orders. The court shall encourage the parties to agree on the content of such directions. (2) The parties shall attempt to agree proposed case management directions. Where the parties agree directions, they shall inform the court at the earliest opportunity in advance of any scheduled case management conference. (3) Ordinarily, the court will decide according to the agreement reached by the parties. In case agreement cannot be reached within any relevant time limit, the court will issue case management directions on its own initiative. Such case management directions are not subject to appeal. Rule 11. Monitoring and Compliance24 (1) The court must monitor compliance with case management directions. In order to do so, the court and the parties will use the fastest and most practicable means of communication, and appropriate means of modern technology. (2) Parties and their legal representatives must inform the court promptly about the steps undertaken and respond promptly to any request from the court to provide information concerning ­compliance. (3) A party may request that a competent authority transfer their proceedings to another judge where there is a failure on the part of a judge to carry out the general case management duty. (4) The parties may complain to relevant bodies for judicial conduct and discipline for investigation of alleged judicial failure to manage the case in an appropriate manner.

The above rules deal with obligations in regard to management and planning of the proceedings. They specify that the court is responsible for active and effective case management, but this is always in cooperation with the parties. The obligation is discharged by various case management orders and activities, and by continual monitoring by the court to ascertain whether parties, the lawyers and other participants in the proceedings are carrying out their obligations. Active management of proceedings under the

23 Cf. ali/​u nidroit, Principle 14.2. 24 Cf. ali/​u nidroit, Principles 7.2 and 14.

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court’s direction also includes the duty to consult the parties and, wherever possible, secure their agreement on the form, content and timing of particular steps in the proceedings. The court’s duty of active case management authorises judges to encourage the parties to identify the real issues in dispute, and to openly discuss with them the appropriate steps and methods for dealing with these issues. A case management conference is meant for consultations with the parties and their lawyers on such matters. In its case management decisions, the court should according to the proposed rules always take account of the nature, value and complexity of the particular proceedings, ensuring that procedures are proportionate to the value and importance of the case. The court’s duty of active case management is an important means to achieve the overall goal of a fair and speedy proceeding. Finding a suitable form, length and organisational structure of proceedings increases the prospect of a correct and fair result, either by judgment or settlement, being achieved and it saves time and money. Arguably, such a duty is in contrast with the traditional concept of the passive judge found in some European jurisdictions. Recently, this traditional concept has been replaced by procedural changes that have given judges an active role in managing proceedings. Such a development was one of the core features of the Woolf Reforms in England and Wales. Active case management duties, under the concept of materielle Prozessleitung, has long formed part of German and Austrian law. A trend towards the incorporation of active case management duties is also found in international procedural frameworks. While the Storme Report did not contain specific rules on active case management, such rules are explicitly dealt with in ALI-​UNIDROIT ­Principle 14. Case management duties may be carried out by a single judge, a number of judges jointly, or, in some jurisdictions, by the President of the Court. The duty of active case management is a continuing duty, and as such it applies from the start of proceedings until their conclusion. A case management conference is the arena where the parties may exercise their right to be heard, in particular regarding matters relevant for the organisation of the proceedings. It is also a means to facilitate party cooperation and cooperation between the parties and the judge. A case management conference can be a meeting with all parties present or a distance meeting where the parties participate via any sort of tele- or video technology, or through any other appropriate means of instant communication permitted under the applicable court rules. In order to maintain the court’s neutrality and to deal with the parties on equal footing, the court shall not allow one party to be present if the opposite party communicates over, for instance, telephone or video.

184 van Rhee A court may choose not to hold a case management conference if it is not considered necessary. For instance, to hold a case management conference may be deemed superfluous in the light of the uncomplicated nature of the case, if the case is of low value, if the parties have already agreed on core case management issues, or if such a meeting lacks a clear objective. The first case management conference should be held as soon as practically possible. The court may at any case management conference direct orders necessary to manage the case; a court may also be obliged to do so. If the case is sufficiently clear, the judge may determine the case on its merits at the case management conference. The power to actively manage cases is one that must necessarily be exercised by the court either on its own initiative or on application of the parties; the former if the court is to properly exercise its general case management duty on a continuing basis, the latter if the parties are to properly exercise their duty to cooperate with the court in furthering the general duty. There are instances where the case management hearing will not be possible or desirable. Exceptionally, case management decisions may need to be made in the absence of, and without notice to, one of the parties i.e., where the provision of notice would tend to frustrate the order sought or where it is not possible to give notice on grounds of urgency. When the court issues a case management order without a hearing or on ex parte basis, in order to protect the parties’ or the absent party’s right to receive due notice the court shall schedule a hearing on notice to both parties at the first available date. In order to ensure, however, that court and party resources are not expended contrary to the general case management duty, the parties may inform the court if such a hearing is not considered necessary. Decisions on case management are not binding on the court: any such decision may be modified or revoked. The parties may have a right to be heard before the court modifies any prior order to a significant extent. Different national systems have different rules on forms and names of case management decisions. Less important case management decisions are not subject to appeal. For more important case management decisions, it is preferable that no separate (interlocutory) appeals are admissible, and that objections to such decisions can be made only within the appeal against the final decision. However, some national jurisdictions allow interlocutory appeals from the most important case management decisions (e.g., if the court has excluded a party representative having held that the party was not properly represented by the putative representative). The parties will ordinarily comply with orders and directions voluntarily. Awareness of possible sanctions may however increase party compliance, or at

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the least reduce the prospect of non-​compliance. In order to increase the effect of orders or directions, court orders should specify the consequences of non-​ compliance. The court has to specify the kind of sanction, for instance a fine, but is not obliged to specify the exact amount of such a sanction. Ideally, case management decisions, even if they only deal with technical matters such as the scheduling and ordering of procedural actions, are taken in a cooperative fashion. The court must consult the parties before an order or direction is made. Consultations outside case management conferences shall normally be written but should use the most efficient technology. The court shall encourage the parties to agree case management decisions, which means that the court has to take steps to prompt the parties to do so. The parties should make a serious effort to reach agreement. In order to save time and money, the parties must inform the court as soon as possible if they agree on specific issues of case management. Where parties do not agree case management decisions they should, acting on their own initiative, inform the court of that fact. As a general rule, the court should issue case management decisions in accordance with any agreement reached by the parties. However, such an agreement is not formally binding upon the court. The court may decide contrary to the parties’ agreement if that is necessary to secure a fair, efficient, speedy and proportionate proceeding. In particular, the court may decide contrary to the parties’ agreement if it would tend to result in disproportionate use of the court’s time and money. The court has a duty to decide on its own motion if the parties cannot agree on case management issues, and such a decision shall be taken in a fast and efficient manner. Pure case management decisions (directions), in particular if they are made on the basis of the parties’ agreement, should not be subject to appeal. The court must monitor party compliance with its orders or directions. For communications related to case management, the court and the parties should avoid time consuming methods of communication like registered post, and use faster means, such as central electronic filing systems which can partly automate monitoring and review. If such systems are not available, the court and the parties may communicate by informal means, such as by telephone, e-​mail, etc. A court may fail to carry out its case management duty effectively. This may occur, for instance, where the court has failed to issue any necessary case management order or if, due to its mismanagement of the case, the matter which is put before the court is not resolved within a reasonable time. Indeed, in line with the principle of loyal cooperation, the party or the parties should openly discuss the management issues with the court and stimulate it to take action. Transfer of a case to another judge and, especially, complaints to competent disciplinary bodies, are appropriate only if a court’s failure to adequately

186 van Rhee manage the proceedings is of a more serious nature. It should be noted that in some countries transferring cases may be difficult due to concepts of ‘natural jurisdiction’ and lack of competence by the court management to transfer cases (which, still, may be inevitable if the judge is unable to continue its work e.g., due to sickness or other grounds). 11.3.3 Determination of Facts Part 3 of the rules is devoted to the determination of facts.25 Five individual rules are proposed:









Rule 12. Obligation to Present Facts and Evidence26 (1) Parties are under a duty to identify the matter in dispute as early as possible, taking into consideration the views of the other party if these have become known to them. (2) Parties are under the duty to present relevant facts and identify evidence in a diligent and complete way, ordinarily in their earliest statements of case. Later presentation of facts and evidence has to be justified. (3) Lawyers must advise their clients about these duties upon their appointment and assist them in identifying the matter in dispute as early as possible. Rule 13. Role of the Court27 (1) The court shall ordinarily consider only facts and evidence introduced by the parties. However, it may consider facts that appear from the case file or take evidence on its own motion if it deems that, under the circumstances, it is necessary to the proper adjudication of the case. (2) The court may amend or alter its orders regarding the taking of evidence. Rule 14. Right to Disregard Belated Facts and Evidence28 (1) The court may at its discretion disregard facts and evidence that are introduced later than the earliest possible opportunity for their introduction.

25 This part of the rules was originally drafted by Bartosz Karolczyk. 26 Cf. ali/​u nidroit, Principles 11.3 and 21. 27 Cf. ali/​u nidroit, Principle 22. 28 Cf. ali/​u nidroit, Principles 7.2, 11.3, 14.3, 15.6 and 17.

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(2) Where a party presents belated facts and evidence they must bear their opponent’s costs incurred as a result thereof regardless of the outcome of the case. (3) New facts and evidence submitted without undue delay in response to matters raised by the other party shall not be considered belated. Rule 15. Consequences of a Failure to Introduce Facts and Evidence29 (1) If a party fails to substantiate its claim in time, the court may, in accordance with the applicable procedural rules, consider the claim as withdrawn or dismiss the case on procedural grounds. (2) If a party fails to respond to the opposing party’s factual allegations or evidence in time, the court may, in accordance with applicable procedural rules: (i) issue a default judgment; (ii) consider that the facts have been admitted wholly or partially; or (iii) continue the proceedings and decide on the merits based on the available facts and evidence. Rule 16. Closing the Proceedings30 (1) As soon as the court is satisfied that both parties have had a reasonable opportunity to present their case, it will close the proceedings after which no further submissions, arguments or evidence are allowed, unless, in exceptional circumstances such is requested and authorised by the court. (2) The date of closing shall be fixed as early as possible, subject to later necessary amendments.

The presentation of facts and evidence is primarily a duty of the parties and should be effected as early as possible, and preferably before the action is commenced during the pre-​action phase. Facts and evidence presented after the early stages of proceedings is only allowed if justified. Apart from the parties, the court has certain responsibilities regarding facts and evidence: the proposed rules provide that the court may consider facts that appear in the case file even though they have not been used by the parties to build their argument, or may take evidence on its own motion

29 Cf. ali/​u nidroit, Principles 11.4 and 15. 30 Cf. various national rules and best practices (e.g. the French Code de procédure civile).

188 van Rhee if this is necessary for the proper adjudication of the case. This position follows the tradition, common to many European jurisdictions, of allowing the court discretion to actively intervene in factual and evidentiary issues in order to eliminate injustice or an abuse of judicial proceedings. In the understanding of the drafters, these powers will be used only exceptionally. Thereafter, the court can only exceptionally request or permit additional facts and evidence necessary to clarify the respective positions of the ­parties. The obligation to identify the matter in dispute as early as possible is an important part of the parties’ obligation to contribute to proper case management. What is considered to be a part of that obligation varies in different legal traditions. For some traditions, it may imply the need to specify legal arguments. However, this part of the Rules deals mainly with the need to specify the facts of the dispute and evidence, which supports relevant factual statements made by the parties. In civil litigation, the court does not search for facts. Instead, facts are submitted by the parties. However, their freedom in that regard cannot be unlimited because the incentives to obstruct the proceedings are too strong. In addition, while accurate fact-​finding is an ideal we should strive to achieve, it is not itself the goal of procedure. Indeed, procedure must also realise other values, in particular speed. Thus, parties are expected to present facts and identify evidence in a timely, diligent and complete fashion, so that the factual and evidentiary matters can be crystallised quickly and at an early stage in the proceedings. To summarise, as fact-​finding and evidence evaluation are within the exclusive domain of the court, it is only fitting that the parties must meet a certain standard of care in the presentation of procedural material to the court. In addition, assertions of fact should take into consideration the opposing views, if they were made known to the pleader. The assumption is that this should further the speedy and accurate determination of the dispute. Lawyers are expected to advise their clients about these duties, not least because failing to comply with them (either by the lawyer or the client) may give rise to negative consequences for the client. The participation of lawyers in preparing statements of claim is therefore vital. Facts or evidence may be presented at a late stage, but the burden is on the pleader to justify the late presentation. The ultimate decision whether to admit belated facts or evidence is vested with the court. As mentioned above, in civil litigation, the court generally does not search for facts on its own initiative, as that constitutes the exclusive domain of the parties pursuant to classic principles of procedure. Therefore, the court will in

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principle consider only facts and evidence introduced by the parties. Within these boundaries, however, the court can consider and rely on a material fact, if such fact appears from the material the parties have already submitted, but which is not asserted by either party. This is self-​explanatory: within the material provided by the parties the court must be allowed to take note of facts it considers material to decide the case. Still, the court should draw the parties’ attention to such facts (cf. Rule 18). In addition, the court may take evidence on its own motion if it deems that, under the circumstances, it is necessary to the proper adjudication of the case. This rule, based on judicial discretion, is common to many European countries and thus a part of the European legal tradition. It operates as a reasonable check in order to eliminate, in proper cases, judicial injustice or abuse of process by conducting fabricated proceedings. This option is not meant to be used on a broader scale. The court may need to take evidence on its own motion in matters that are important from a broader perspective e.g., where the public interest is at stake. For instance, it would typically occur if the case is about the loss of employment, loss of housing, or if it raises important non-​ economic interests like environmental issues. Another example could be if the party lacks competence or resources to propose or present the evidence. In cases where only the parties’ interests are at stake, the right to take evidence ex officio should only be used exceptionally. As this right is optional on the part of the court, parties and their lawyers may not rely upon its existence to justify or excuse a failure on their part to secure relevant evidence. Finally, and also in line with many European legal systems, until the judgment has been rendered, the court can amend or alter its orders regarding taking of evidence. Several types of sanctions are possible when the suggested rules are not observed. A powerful sanction is the court being allowed to disregard belated facts or evidence (preclusion). Thus, falling below a defined standard of care in conducting litigation creates the risk of losing the case. While this is a strong sanction, it is also relatively straightforward and creates a powerful incentive for the parties (provided they know about it) and lawyers to comply with Rule 12. The rule is based on judicial discretion and is indeed very broad. It does not say when the court must disregard belated facts or evidence, neither does it say when the court must admit them due to exceptional or exculpatory circumstances. Obviously, the court’s decision should be made known to the parties prior to issuing the judgment and should be justified. Consequently, this will require the court to resort to some sort of balancing test. This approach is also in line with the concept of the judge being the manager of the proceedings.

190 van Rhee The court may at its discretion disregard facts and evidence that are introduced later than the earliest possible opportunity for their introduction. The earliest possible opportunity should be determined by two quintessential elements i.e., knowledge of evidence and of the disputed nature of a material fact. If a material fact is, thus, disputed and the party has knowledge of relevant evidence, it should identify that evidence to the court and the other party in order to support its position towards a disputed material fact. This is a reflection of the ‘cards on the table’ approach introduced in Rule 12. New facts and evidence submitted without undue delay in response to the other party’s statements and submissions are not to be considered belated. This provision reflects the inherent dynamic that exists within civil litigation. The final section of Rule 14 assumes that belated material has been admitted or considered by the court, despite the lack of exculpatory or exceptional circumstances. Therefore, costs incurred by the other party as a consequence of such belated submission, should be paid by the party introducing the belated material, regardless of the outcome of the case. Rule 15 authorises the court to sanction a party that has shown a considerable disregard of its procedural duties. The first section allows the court to dismiss, on procedural grounds, claims which are not sufficiently substantiated. This sanction is not automatic, and depends on judicial discretion and on any applicable provisions that define time periods. It is also up to the court to decide, if no special rules are provided, whether it will advise the claimant about its intention to consider the claim as withdrawn and allow to cure the deficiencies within a specific time. If the claim is considered to have been withdrawn, it may be resubmitted later. The second section of Rule 15 is a summary expression of rules traditionally found in many European countries. As in many other rules, the course of action is left to the applicable procedural rules or, lacking further regulation, to the court’s judgment. Thus, for instance, any lack of response to the statement of claim may result in a default judgment (i.e., the presumption that the defendant does not contest the claim arises). Secondly, any lack of response to specific facts may result in the conclusion being drawn that they have been admitted (of which the party will presumably learn from the judgment). Thirdly, the court may decide to continue with the process. In all such cases, the court will issue a decision on the merits which will finally dispose of the case. Rule 16 regulates closing the proceedings and, as such, it requires the court to close the proceeding after having heard the parties on the merits. This rule incorporates a classic European rule that is currently considered to be a universal element of procedure i.e., that the court should conclude the proceedings once the parties have had a reasonable opportunity to make their respective cases (by

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alleging facts and presenting evidence). As the Rules implement the idea of judicial case management, the date on which the proceedings will be closed i.e., the trial or trial phase of the proceedings will have finished, will have been identified early in the case management process. Thus, any possible element of surprise in this respect will be eliminated. 11.3.4 Findings of Law Part 4 of our Rules contains 4 rules:31







Rule 17. Obligation to Submit Relevant Legal Arguments32 (1) Parties must present their legal arguments in reasonable detail. Where a party is not represented by a lawyer, the court shall assist the party to identify and clarify its legal arguments. (2) Legal arguments should ordinarily be presented in the initial phase of the proceedings. Rule 18. Rights and Duties of the Court Regarding Legal Arguments33 (1) The court is responsible for determining the correct legal basis for its decision. It must evaluate parties’ legal contentions appropriately. It may consider points of law on its own initiative if this is necessary for correct decision making. (2) The court shall give each party a reasonable opportunity to submit relevant legal arguments, and to respond to legal arguments presented by the opposing party. (3) Generally, no legal rule or principle may be invoked in the judgment on the merits unless all parties have had a reasonable opportunity to be heard thereon. Rule 19. Right to Change or Amend Legal Arguments34 (1) Parties may change or amend their legal arguments during the proceedings. (2) After the proceedings are closed, legal arguments may be changed or amended only when authorised by the court, and only if such change or amendment does not raise the need to introduce new facts or evidence.

31 This part of the rules was originally drafted by Emmanuel Jeuland. 32 Cf. ali/​u nidroit, Principles 11.3 and 19.1. 33 Cf. ali/​u nidroit, Principles 5.5, 22.1 and 22.2.3. 34 Cf. ali/​u nidroit, Principle 22.2.1.

192 van Rhee Rule 20. Consequences of a Failure to Provide Legal Arguments35 If a party is represented by a lawyer, the court may impose sanctions for failure to plead law or respond to legal allegations of the other party. These sanctions may include the dismissal of a statement of case that does not contain sufficiently detailed legal arguments. The subject of Part 4 is findings of law. The rules provide that both the court and the parties should contribute to the determination of the correct legal basis for decision-​making. Parties have an obligation to present contentions of law, something which must be done in reasonable detail. The court may consider points of law on its own initiative if this is necessary for correct decision-​ making. In most European systems of civil procedure, the parties have both the right and obligation to present their legal arguments. The level to which this is necessary is different in different jurisdictions and may also be different in different types of case (e.g., it may be stronger in commercial than family cases). Our approach is consistent with the trends which in principle require the parties to present their contentions of law (and not to treat that as an optional element of the parties’ statements and submissions). However, this does not exclude differentiated approaches for substantially different civil proceedings. What is ‘reasonable detail’ may depend on various circumstances e.g., whether the parties are represented by lawyers, or whether in particular cases the court has increased inquisitorial or investigative powers. In any case, our rules do not dispense with the court’s duty to know the law, nor is it inconsistent with the right and obligation of the judge to evaluate the correctness of the legal basis of the claim as that is presented by the parties and to consider points of law on its own motion. However, it is generally not sufficient to limit the parties’ submissions merely to the bare presentation of facts on the expectation that the court will simply and passively identify the right legal provisions and apply them to the present case. Consequently, the old approach still influential in some jurisdictions, known under Latin saying ‘da mihi factum, dabo tibi ius’, is not supported in our rules, at least when parties are represented by qualified lawyers. However, where parties are not represented by lawyers, the court is obliged to act in a more active manner and to assist the parties in identifying and clarifying their legal arguments. It seems to be universally accepted that the ultimate responsibility for the correct application of law is that of the court. Views differ regarding the court’s 35 Cf. ali/​u nidroit, Principle 17.3.

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right and duty to apply the law on its own motion or to apply different law than the one pleaded by the parties. In Rule 18, the approach present in many European countries, known as ‘iura novit curia’ (the court needs to know the law and apply it to the case) is generally recognised. Namely, although (in contrast with the extreme versions of ‘iura novit curia’) the parties share with the court the responsibility for establishing the correct legal basis of the dispute, it is ultimately for the court to evaluate their legal contentions. In principle, the court must evaluate all of the parties’ legal arguments that go to the issues in dispute i.e., those legal arguments that may have an impact on the court’s decision. European legal systems differ in the form and scope of evaluation, but most systems require evaluation of legal arguments in the grounds of the judgment. What is ‘appropriate’ evaluation must be understood according to the standards and requirements of the individual legal system. In any case, the court’s obligation to evaluate legal arguments raised by the parties must not be used as a basis for groundless appeals the aim of which is to protract the proceedings. If law is not pleaded sufficiently, or if an incorrect law is pleaded, the court has the right and duty to consider some legal arguments on its own initiative and apply them to the facts of the case, if this is necessary to arrive at a correct decision. The judicial obligation to ascertain adequate legal arguments and apply them ex officio is not absolute. If parties are passive and have failed to plead the law in sufficient detail, they have failed to comply with their procedural obligations, and as such may be subject to sanctions if they were represented by lawyers. Appropriate sanctions would be the summary rejection of parties’ claims and submissions. Irrespective of the source of legal arguments (whether they were presented by the parties or introduced by the court), parties should be afforded an adequate opportunity to respond to them. The right to be heard should also be preserved in respect to legal arguments. No ‘surprise judgments’ (Überraschungsurteile  –​judgments on the merits that rest on an entirely new legal basis than the one reasonably expected and pleaded by the parties) may be issued. As legal arguments presented by the parties generally do not bind the judge, there is more flexibility regarding any amendment of legal arguments in comparison with changes in factual pleading or presentation of new facts and evidence. Parties may freely change or amend their contentions of law throughout the proceedings, provided that such changes do not require the need to introduce new facts or evidence at a stage in which this is no more permitted. However, after the proceedings have closed, the parties’ right to introduce new legal arguments is limited, as new contentions of law may delay the proceedings and cause

194 van Rhee additional costs. Therefore, after the proceedings have closed, the parties may change or amend their contentions of law only in so far as they are authorised to do so by the court, and only if that does not raise the need to introduce new facts or evidence. It is to be expected that parties represented by lawyers present their legal arguments more extensively and accurately. It is the lawyers’ role to assist the parties to become aware of their legal rights, and to present their views about those rights to the court. Therefore, the consequences (sanctions) for the lack of legal arguments may, particularly, be imposed on parties represented by lawyers. This rule mentions only one of the express sanctions: the power of the court to reject a statement of claim or other submission (e. g., an appeal) in case of a failure to plead law. If the law permits parties to appear unrepresented (which mostly happens in socially sensitive cases and cases of low value), summary dismissal for failure to plead the law is generally inappropriate. This rule does not contain the obligation of the court to reject claims and submissions automatically if represented parties fail to plead the law adequately (see the wording ‘may impose’, ‘may include’). It is within judicial discretion to undertake other steps prior to this ultimate sanction. For instance, the court may fix a time limit to supplement submissions, specifying when it does so that if sufficient legal arguments are not submitted in time they will be dismissed. 11.3.5 Obligations of the Parties to Promote Consensual Dispute Resolution The final part of our rules i.e., Part 5, contains 6 rules:36

Rule 21. Obligation to Cooperate in Dispute Settlement Attempts37 (1) Parties must co-​operate in actively seeking to resolve their dispute consensually, both before and after proceedings are initiated. (2) Parties must take all reasonable opportunities to settle their dispute and, where that is not possible, to reduce the number of contested issues prior to adjudication.

36 This part of the rules was originally drafted by Alan Uzelac and Elisabetta Silvestri. 37 Cf. ali/​u nidroit, Principles 7.2 and 24.3; Directive 2008/​52/​EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (Mediation Directive hereafter); Directive 2013/​11/​EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (ec) No 2006/​2004 and Directive 2009/​ 22/​EC.

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Rule 22. Specific Obligations of the Parties in the Pre-​Action Phase38 (1) In the pre-​action phase, the parties shall: (i) exchange sufficient and concise details of their potential claim and defence; (ii) clarify and, wherever possible, narrow the legal and factual issues in dispute; (iii) sufficiently identify relevant evidence. (2) The parties should also consider: (i) exchanging settlement proposals or proposals for the use of appropriate dispute resolution methods; and (ii) taking any other reasonable and proportionate steps to ­further the general duty of promoting consensual dispute resolution. Rule 23. Obligations of the Lawyers Regarding the Use of adr39 (1) Lawyers must inform the parties about the availability of alternative dispute resolution methods, ensure that they use any mandatory method and encourage the use of other appropriate methods, and assist the parties in selecting the most suitable method. (2) To the extent that lawyers participate in any alternative dispute resolution proceedings, they must act in good faith and not seek to abuse or obstruct those proceedings. Rule 24. Duty to Facilitate Settlement Attempts and Promote Effective Use of adr40 (1) The court must facilitate settlement at any stage of the proceedings. If necessary for effective dispute resolution, it may order the parties to appear in person. (2) Consensual dispute resolution must be specifically considered in the preparatory stage of proceedings and at case management ­conferences. (3) Judges must inform the parties about the availability of court-​ annexed and out-​of-​court alternative dispute resolution methods whenever these are available. They may suggest or recommend the use of specific adr methods.

38 Cf. EU Mediation Directive at (14). 39 Cf. Council of Europe Recommendation (84)5, Principle 2(2–​3). 40 Cf. ali/​u nidroit Principle 24.2; EU Mediation Directive, Arts 5, 6 and 9; Council of Europe Recommendation (84)5, Principle 3.

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(4) A judge may participate in settlement attempts, assist the parties in reaching a consensual solution and contribute to the proper drafting and transformation of a settlement agreement into a court-​ approved form such that it is enforceable. Rule 25. Order to Attempt Settlement and Referral to adr proceedings41 (1) Subject to rules provided by special legislation, the court may in particular cases order the parties to: (i) undertake one or more steps provided in Rule 22; (ii) attend one or more information sessions about the use of alternative dispute resolution; (iii) participate in one or more alternative dispute resolution schemes, either alone or assisted by lawyers. (2) The court may stay proceedings or reject parties’ submissions until there has been compliance with any such order. (3) If the law provides for a set of mandatory steps aimed at consensual dispute resolution that have to be exhausted prior to court proceedings, the court shall refer the parties to undertake such steps and stay or discontinue the proceedings. Proceedings may be resumed or reinitiated after the parties have undertaken sufficient and appropriate steps prescribed by mandatory legislation. Rule 26. Sanctions for Breach of Obligation to Negotiate and Make Use of adr42 If one or more parties or their lawyers fail to cooperate in consensual dispute resolution, or do not discharge these obligations in good faith, the court may impose, on the parties and/​or their lawyers: (i) cost sanctions; (ii) damages caused by delay and procedural abuse; (iii) increased court fees; (iv) fines; (v) report the conduct to a professional organisation.

Part 5 deals with the duty to promote consensual dispute resolution. The main rule is that parties must cooperate actively with each other in seeking to resolve their dispute consensually, both before and after proceedings have begun. The

41 42

Cf. EU Mediation Directive, Art. 5. Cf. Council of Europe Recommendation (84)5, Principles 2.2 and 2.3.

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rules do not discuss specific types of consensual dispute resolution, since this was outside the mandate of the working group. Rule 21 expresses the general approach of encouraging consensual dispute resolution. This obligation is applicable at all stages of proceedings. Emphasis is, however, put on early resolution which could make litigation unnecessary. It is expected that parties will not bring their claims before courts until they have exhausted other available dispute resolution options from direct negotiations to mediation and various other forms of adr. The underlying assumption is that solutions which are consensual, voluntary and autonomous offer a simpler, faster and less expensive alternative to solutions imposed in a mandatory court procedure. Autonomous methods of dispute resolution, in particular those that result in consensually accepted outcomes, enhance access to justice, offering another fair, efficient, speedy and proportionate way to resolve disputes. Even if the parties do not settle their case in its entirety, they may narrow the open issues and focus their efforts in subsequent litigation. The fulfilment of this obligation also contributes to the more economical, proportionate, use of state judiciary and its better functioning. The obligation to exhaust all available means alternative to civil court litigation is not absolute. Only those means that are reasonable, and that offer a fair chance of success have to be considered. Rule 21 sets the statement of principle, providing the obligation at a general level. The scope of this general obligation is further specified and explained in the rules that follow, starting with the period before proceedings are initiated and continuing with obligations in all stages after action is brought. As the early resolution of disputes is to be preferred to litigation, it is essential that parties take active steps to explore such a possibility before commencing any litigation. The common purpose of these steps is to facilitate consensual settlement of claims, either directly, or by agreement on the use of some form of adr. Where a settlement is not achieved, these steps may help in better management of the subsequent litigation proceedings. Rule 22 lists two groups of steps that parties should in principle take or, at the least seriously consider, in the earliest stages of their dispute and before resorting to any formal dispute resolution process. Therefore, the notion of ‘pre-​action phase’ refers to the period after the dispute has arisen, but before the formal initiation of civil proceedings. The three steps that have to be made are connected with the identification of the potential claims and defences, and with the clarification of legal and factual grounds upon which such claims are founded, as well as with the sufficient identification of the relevant evidence. Only a reasonably detailed presentation

198 van Rhee of the parties’ eventual claims, and the identification of arguments and facts and evidence supporting them, can enable both parties to evaluate the situation, clarify all options and engage in settlement discussions. This pre-​action obligation is also carried on, in a more stringent form, after proceedings are issued. The court may order parties who failed to do so before proceedings were issued to undertake one or more of the steps specified in Rule 22. While the obligation to identify the claims and the main legal and factual arguments and evidence upon which the claims are based applies to all cases, optional steps include exchange of relevant evidence (based on agreement between the parties or applicable rules on disclosure) and exchange of proposals for settlement and/​or proposals to use a particular form of dispute resolution. Any other reasonable or proportionate steps can also be considered with a view to reaching a settlement regarding outstanding claims and disputes. The consequences of a failure to discharge specific obligations arising under our rules are subject to regulation by national legislation. In particular, a plaintiff who initiates civil proceedings without exchanging sufficient information on a prospective claim, and its basis, with the defendant may be subject to cost sanctions. The court may stay such proceedings or dismiss a parties’ submissions (statement of claim or defence) until certain mandatory steps are complied with. The fulfilment of such an obligation may in certain cases also be a legal requirement for the admissibility of the subsequent civil action. As a part of their general obligation to assist the parties in observing their procedural obligations, lawyers need to inform the parties about available adr options (including mediation), encourage them to use them where appropriate and help them in the choice of the most appropriate method. The use of adr as a cost-​effective and quick method of dispute resolution that enhances parties’ access to justice is possible only if parties understand the respective adr procedure and know how to participate in it. Generally, adr methods do not require mandatory legal representation, and some of them are sufficiently simple so that parties can use them without lawyers. However, more complex matters may make the active participation of lawyers in one or more stages of the adr proceedings indispensable. Lawyers should not, however, take exclusive control of the adr proceedings. For the purpose of reaching settlements, it may be necessary that parties appear in person in settlement proceedings. In any case, effective adr process requires that lawyers act in good faith. They should help parties explore and use all the potential of adr, avoiding abuse and obstruction of these proceedings. If the latter occurs, lawyers may be subject to sanctions (either by fines, direct cost sanctions, or disciplinary liability).

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Rule 24 makes a distinction between the court as an institution and the court as a tribunal i.e., as the judge(s) who deal with the case at hand. The facilitation of settlements, both in judicial and in extrajudicial proceedings (and in any combination of the two) may be a matter of broader projects that include institutional support (e.g., the organisation of settlement weeks and promotional campaigns for the use of particular adr methods). On the other hand, the tribunal (sole judge or a panel of judges) seized with the case has a specific obligation to promote and stimulate settlement in the case at hand. In our rules concerning the consensual resolution of disputes, the word ‘settlement’ is used in its general meaning, in the light of the fact that in a few legal systems a variety of terms are used to designate different forms of agreement by which a dispute can be resolved amicably, in court or out of court. As settlement is particularly beneficial in the early stages of a dispute, this obligation particularly targets the preparatory stage of the proceedings and the case management conferences. In order to enhance the likelihood of settlement and broaden its scope, the parties may be ordered to appear in person, so that all vital issues can be discussed and agreed during settlement negotiations, without the need to postpone the process in order to obtain authorisation. The obligation, in respect of pending litigation, includes providing information about available in-​and out-​of-​court adr options. However, the tribunal seized with the case can go a step further –​it may, assess all the circumstances, suggest or recommend the use of specific method. This can either be a court-​annexed dispute resolution scheme, or some extrajudicial adr method. However, any suggestion or recommendation is not binding on the parties. Settlement attempts may be undertaken with the participation and facilitation of judges, either those that conduct the litigation or other judges that participate in court-​annexed adr schemes. The exact scope of judicial participation and the active role of judges in settlement attempts can vary under national rules. But, no matter whether settlement is the product of the process in which the judge participated or not, judges have a right to contribute to the proper drafting of the reached settlement agreement. The main purpose of the judicial involvement is to ensure that the settlement reached be enforceable. In many European countries, the involvement of judges in formulation of settlements is the requirement for recognition of settlement agreements as enforceable instruments that may be subject to direct enforcement just as final and enforceable judicial decisions, without the need to resort to litigation in case of refusal to observe the terms of such ‘judicial’ settlement (Prozessvergleich). The specific process in which relevant requirements are controlled (typically, compatibility with public policy and the rules on capacity to conclude a

200 van Rhee settlement), and the certification of the settlement agreement as an immediately enforceable instrument, is known as ‘homologation’ of settlement ­agreements. While participating in settlement attempts, judges must always pay attention to the need to ensure that they are and remain independent and impartial. If, at any point, a judge’s independence or impartiality is jeopardized, a replacement judge must be appointed. In general, if a settlement cannot be reached, the judges who have participated in specific adr schemes as mediators (e.g., in court-​annexed mediation schemes) cannot be appointed to hear the same dispute in litigation. Rule 25 goes one step further than Rule 24 and authorises the court to issue mandatory orders instructing the parties to undertake certain defined steps, attend one or more adr information sessions, or participate in one or more adr schemes. Under paragraph 2 of this Rule, if the court order is not complied with, the sanction is either a stay of the proceedings, or rejection of a relevant submission (e.g., plaintiff’s statement of claim). Other sanctions (e.g., cost sanctions) are not excluded. However, the court shall never compel or coerce settlement among the parties. The mandatory use of adr shall not be a definite obstacle to access to court. Court-​ordered or mandatory referral to adr proceedings can prevent the parties from initiating or continuing litigation only for a defined and appropriate period of time (e.g., the case may be stayed for three months pending mandatory settlement negotiations). An exception to this is the situation in which the fulfilment of legal requirements –​ undertaking of procedural steps, etc. –​is exclusively within the control of a party, in which case a party can be prevented from commencing or continuing litigation until it discharges its obligation. While deciding on compulsory steps, one should pay attention to the need to ensure that one or both parties do not lose their substantive rights due to rules on prescription (statute of limitations) or p ­ reclusion. Rule 25 is drafted in a narrower way than Rule 24. While Rule 24, on the facilitation of settlement attempts, applies directly and to virtually all types of cases, Rule 25, on orders and mandatory referrals to adr, only applies ‘subject to rules provided by special legislation’ and ‘in particular cases’. Therefore, mandatory settlement attempts and referrals to adr are appropriate only in special situations, and subject to judicial discretion. The right of the member states to make the use of mediation compulsory or subject to incentives or sanctions is asserted in the EU Mediation Directive, provided that obligations and limitations of such mandatory process do not prevent parties from exercising their right of access to the judicial system. The provisions of this Rule are consistent with this requirement, and in fact they

Judicial Case Management and Loyal Cooperation

201

go below the potential maximum: no blanket and automatic use of mandatory mediation or other adr proceedings is provided herein. Once the parties undertake the steps required by mandatory rules of law, they are in principle free to resume or reinitiate the proceedings. However, attention has to be paid to prescription periods and statute of limitations. As in the case of other procedural obligations, a separate rule is devoted to sanctions. The rules emphasise that cooperation in attempts to settle cases voluntarily, just as cooperation in the use of adr methods, is a procedural obligation and not just an option or an unenforceable right. Breach of this obligation is subject to sanctions. While some specific consequences of breach of preceding rules on the use of adr have already been defined, Rule 26 contains a catalogue of sanctions that may be imposed at the court’s discretion. These sanctions may be imposed either on the parties, or on their lawyers, or on both parties and their lawyers, depending on the reasons and responsibility for the breach. An exception to this are those sanctions which the court is not authorised to issue on its own, such as disciplinary sanctions that can only be imposed by respective professional organisations. For such sanctions to be imposed, the court has the right and obligation to inform the bar association or a similar organisation. The same sanctions apply if cooperation in consensual dispute resolution and adr procedures is discharged in bad faith. 11.4

Conclusion

As I have indicated in the introduction, the draft rules on the obligations of the judge and the parties and their lawyers in civil litigation, discussed in the present contribution, were developed within the context of a project initiated by the European Law Institute and unidroit. It should, however, be remembered that these draft rules have not been sanctioned by either of the two institutions yet. The draft rules will, however, be used in drafting a complete set of Rules of European Civil Procedure which will cover many additional aspects of civil litigation and which hopefully will be published in 2020. In the process of drafting these consolidated rules, the draft rules on obligations may be amended where needed. Nevertheless, since the draft rules on obligations are the result of a joint project of a group of leading experts in civil procedure from several member states of the European Union and Norway, and also reflect best European practices in civil procedure, they may be worth the attention of an international audience, obviously also a Chinese audience. The working group feels that the rules presented here reflect a modern approach to civil litigation, which combines efficiency with quality, and which, if adopted in

202 van Rhee practice, would have the potential of greatly improving existing practices in a great many member states of the European Union and beyond. It should be noted that I have stressed the word potential in the previous sentence since it should always be remembered that rules alone, even rules of the highest quality, cannot change practice if unaccompanied by motivated judges and legal practitioners who will apply the rules according to the overriding objective stated in the first part of our rules. Without committed judges and legal practitioners who make sure that the parties cooperate in the manner as indicated in our rules, the best rules will be a failure. Obviously, committed judges and practitioners do not exist in abundant numbers in court systems that are overburdened and lacking resources, and the commitment of all can only be expected if sufficient training and time for reflection are offered while the new rules are being implemented. The country reports in part 2 of this volume reveal that conditions in different jurisdictions vary widely. Unfortunately, in some jurisdictions problems exist where it concerns, for example, caseload and the financing of the court system. Obviously, these problems need to be addressed first when introducing reforms aimed at best practices in civil litigation. It is the conviction of the author of the present contribution that when indeed these problems are addressed, the suggested rules can serve as a major improvement of existing civil procedural practices in Europe and beyond.

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Court Management for Sustainable Judiciary –​ The Case of Switzerland Andreas Lienhard 12.1

Introduction

In part 3 of this book, academic perspectives on the topics emerging in the country reports of part 2 are discussed. Switzerland is not among the countries which were introduced in some detail in part 2. However, the topics of efficiency, modernisation, the cooperation among judges and court staff, and the importance of courts in society discussed there are also important to the Swiss judiciary. Overall the judicial system of Switzerland works well, yet even a well-​ working system must modernise its methods of organisation and management. But how should courts organise themselves even better, so that they can sustainably fulfil their task of reaching court decisions? Is it really possible to compare a court with a commercial company? Is the management of a court compatible with its independence? And how does anyone define efficient court management? The following contribution presents current findings to those questions based on a research project ‘Basic Research into Court Management in Switzerland’1. The need for judges and academics to join forces for research on a modernisation of courts, which is at the heart of this book, was also at the heart of the project presented here. Therefore, the results presented here provide not only information about the Swiss judiciary but may also serve as model and inspiration for other research projects in other countries. First this contribution will give a brief overview of the judicial system of Switzerland. Afterwards it will illustrate the research project in the context of which the above questions were answered. Further this article outlines general findings of the research project as well as main consequences for court management. The contribution concludes with an outlook on further research needs. 1 This contribution is mainly based on Andreas Lienhard and Daniel Kettiger (eds), The Judiciary between Management and the Rule of Law, Results of the Research Project ‘Basic Research into Court Management in Switzerland’, Schriftenreihe zur Justizforschung (vol 6, Stämpfli Verlag/​Nomos Verlag/​Verlag Österreich, Bern/​Baden-​Baden/​Wien 2016), with further references. A list of publications of the research project can be found on the website: www.justizforschung.ch/​index.php/​homepage/​publikationen (accessed 1st April 2020).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_013

204 Lienhard This contribution is based on a presentation during the International Conference on the Role of Courts in Evolving Societies, which was held by Renmin Law School and University of Bergen in Beijing, China, 25–​26 May 2018. The style of presentation has been retained. 12.2

The Judicial System of Switzerland

Switzerland is a small country in Europe with around 8.4 million inhabitants. Switzerland was established in 1848 as a democratic federal state and today is divided into 26 cantons. You can also find federalist diversity in its four different national languages: German, French, Italian and Romansh. Although Switzerland lies in the heart of Western Europe, it is not a member of the European Union. Nevertheless, Switzerland has close ties with the European Union through bilateral agreements. Switzerland is a member of the Council of Europe and is therefore a signatory to the European Convention on Human Rights. Switzerland regards itself as a ‘state governed by the rule of law’, and therefore sees the ‘rule of law’ in a broader sense (‘Rechtsstaat’). The Swiss legal system is a civil law system (continental European law), in contrast to common law. Important elements of the Swiss constitutional state, in addition to the principle of legality, include the separation of powers, the independence of the judiciary, fundamental rights and access to the judicial system.2 The court system is structured with cantonal courts and local courts within the cantons. The cantons are responsible for organising these courts –​so the court system differs from canton to canton. However, there are also federal courts:  decisions from the highest cantonal authorities  –​normally cantonal supreme courts –​can be appealed to the Federal Supreme Court. Decisions by federal authorities on administrative matters can first be appealed to the Federal Administrative Court. In relation to certain offences, such as white-​collar crime or organised crime, the Federal Criminal Court has jurisdiction; its decisions can also be appealed to the Federal Supreme Court.3 2 Walter Haller, The Swiss Constitution in a Comparative Context (2nd edn, Dike Verlag, Zürich/​ St. Gallen 2016); Patricia Egli, Introduction to Swiss Constitutional Law (Dike Verlag, Zürich/​St. Gallen 2016); The Federal Constitution of the Swiss Confederation, 18 April 1999 is available at www.admin.ch/​opc/​en/​classified-​compilation/​19995395/​index.html. 3 Andreas Lienhard, Daniel Kettiger, Jacques Bühler, Loranne Mérillat and Daniela Winkler, ‘The Federal Supreme Court of Switzerland: Judicial balancing of federalism without judicial review’ in Nicholas Aroney and John Kincaid (eds), Courts in Federal Countries: Federalists or Unitarists? (University of Toronto Press, Toronto 2017), 404–​430; Swiss Federal Supreme

205

Court Management for Sustainable Judiciary Federal Supreme Court Federal Criminal Court

Appeal procedures

Cantonal supreme courts

Highest cantonal instances (normally) supreme courts)

Federal Administrative Court

Lower appeal courts

Lower cantonal courts

Civil/Criminal procedure

Decisions of the cantonal administration

Decisions of the federal administration

Administrative procedure

­f igure 12.1 Judicial system of Switzerland

For patent disputes, there is a Federal Patent Court as first instance. For offences by members of the Armed Forces while on military service, there are also military courts. [These two courts are not included in the figure above] Civil and criminal procedural law has been harmonised nationally since 2011. Administrative procedural law in the cantons is still regulated at cantonal level. In all but one canton (Canton of Fribourg), judges are elected for a specific term of office (4–​6 years) and must stand for re-​election –​by the parliament or by the electorate –​when this term ends. The supervision of the judiciary is mainly carried out by the highest courts and by parliament. In five cantons there are judicial councils with powers of supervision. 12.3

The Research Project

Generally, the Swiss court system works well. However, a former president of one of the largest courts in Switzerland dared to suggest that the courts are

Court, ‘The Paths to the Swiss Federal Supreme Court –​An Outline of Switzerland’s Judiciary Structure’ (Lausanne 2013), www.bger.ch/​files/​live/​sites/​bger/​files/​pdf/​de/​wege_​zum_​ bundesgericht_​e.pdf.

206 Lienhard actually service providers that should be run like any other business. This, he said, is entirely compatible with the independence of the judiciary –​indeed necessary, so that judges can get on with judging, which is their main task: A court […] as a large service provider and important oversight body, must be administered professionally and efficiently. This requires management and that does no harm to judicial independence at all. On the contrary, it means that the judges are in a better position to carry out their main task –​judging.4 I hardly need to say that this statement caused some consternation not only in the courts and among the judges –​but also in academia. Is it really possible to compare a court with a commercial company? Is the management of a court compatible with its independence? –​And how does anyone define efficient court management? Generally, this results in the research question: how should courts organise themselves even better, so that they can sustainably fulfil their task of reaching court decisions? But first of all, the fundamental question is: what do we actually mean by court management? ‘It is the administrative work that creates and maintains the material and human resources that are required to carry out the work of judging.’5 Judging is the core activity of courts. Court management therefore means the organisational work and the procedures that surround the activity of judging. The objective of court management is thus to guarantee that courts are able to judge cases at all times. Now –​what were the essential features for the research project ‘Basic Research into Court Management in Switzerland’? We were able to find some help in international literature and experiences, but our preliminary studies did not reveal any theoretical or empirical principles on court management in Switzerland. With support of the Swiss National Science Foundation in funding the research, six universities spent around four years investigating the principles of court management in Switzerland. In the course of this project, twelve dissertations (PhD studies) were written and numerous further studies were produced. We deliberately took an interdisciplinary approach and considered in particular legal, management, political and historical aspects of judicial work. 4 Rainer Klopfer, Interview ‘Vom Richter zum Justizmanager’ in Neue Zürcher Zeitung (nzz) 20 June 2005, 35. 5 Regina Kiener, Richterliche Unabhängigkeit (Stämpfli Verlag, Bern 2001), 292.

207

Court Management for Sustainable Judiciary Academic Advisory Board → External academic support → Reviews of selected works Overall Project Management → Project coordination (content, networking, cross-sectional projects) → Overall report QP1: Cross-sectional project on basic constitutional and political questions K2: Coordination group for international networking and connections K3: Coordination group for knowledge transfer (conferences, publications, courses, etc.) External view TP1: Environment - Function - History - Acceptance - Justice geography

Internal view ‒ Court management in the narrow sense TP2: Resources - Workload - Management systems

TP3: Processes - Definition of quality - QM systems - Process optimisation

TP4: Organisation - Organisational structure - Internal controls - Management

TP5: Culture - „Image of judges‟ - Training - Culture/Climate - Incentives

© 2009‒2010 A. Lienhard/D. Kettiger

­f igure 12.2 Basic principles of good court management research and project structure

How was the project organised? The core of the project comprised 5 sub-​ projects, which considered the influence of conventional management m ­ odels. We therefore examined: − society’s expectations of the justice system and regional differences related to (language) culture (sub-​project TP1) − the methodology of caseload management systems (sub-​project TP2) − what defines quality in the justice system (sub-​project TP3) − the special aspects of management in the justice system (sub-​project TP4) − and the image of judges (sub-​project TP5) In a cross-​sectional project (cross sectional project QP1) constitutional issues such as judicial independence, protection of data and privacy and supervision were investigated in more detail. Because the questions raised are not only relevant to Switzerland, international networking, for example with the European Commission for the Efficiency of Justice of the Council of Europe cepej6 or the International Association for Court Administration (iaca)7 was very important (coordination group K2). 6 Council of Europe European Commission for the efficiency of justice (cepej), https://​www. coe.int/​en/​web/​cepej (accessed 1st April 2020). 7 International Association For Court Administration, www.iaca.ws/​(accessed 1st April 2020).

208 Lienhard And of course, we wanted the knowledge generated to be transferred into the justice system –​in the form of publications, conferences and in the courses offered by the Swiss Judicial Academy8 (coordination group K3). 12.4

General Findings of the Research Project

12.4.1 Current Challenges Facing the Judiciary What are the general findings of the research project –​from an overall perspective? One of the first findings relates to the challenges currently facing the courts. The judiciary nowadays is facing quite a range of challenges: The first thing to mention is the rising complexity of the law and thus of court cases –​as well as the associated growing workload. But the demands made of the courts have also grown in other areas. Although the judicial system enjoys a relatively high level of trust, the work of the judiciary is subject to increasing scrutiny: − Nowadays litigants make higher demands of the courts, above all in relation to quality of service and of communication by the courts, including the possibility of e-​Justice. − Parliaments in their role as the supervisory and electoral authority want detailed case statistics. − Judicial work is compared with certain benchmarks with regard to efficiency, quality and independence (e.g. EU Justice Scoreboard9; Evaluation of European Judicial Systems by the European Commission for the Efficiency of Justice [cepej]10).11 − The media and the public also monitor the activities of the courts and the way they are organised with a critical eye. And there is yet another dimension: the courts find themselves increasingly in competition with Alternative Dispute Resolution (adr) mechanisms, such as conciliation procedures or mediation. In addition, there are other non-​court procedures, most particularly arbitration. Although these mechanisms may 8 9 10 11

Swiss Judicial Academy –​cas «Judiciary», www.unilu.ch/​en/​further-​education/​faculty-​ of-​law/​swiss-​judicial-​academy-​cas-​judiciary/​ (accessed 1st April 2020). EU Justice Scoreboard, https://​ec.europa.eu/​info/​policies/​justice-​and-​fundamental-​ rights/​upholding-​rule-​law/​eu-​justice-​scoreboard_​en (accessed 1st April 2020). Council of Europe European Commission for the efficiency of justice (cepej), https://​ www.coe.int/​en/​web/​cepej (accessed 1st April 2020). See methodological considerations in Chapter 1, section 1.3.5 and on benchmarking as governance tool in Chapter 7, section 7.3.

Court Management for Sustainable Judiciary

209

relieve the burden on the judicial system, they are also a form of competition that the courts must come to deal with. For various reasons, therefore, judicial activity has become more demanding. At the same time, the budgetary resources that are available to respond to this development are becoming even scarcer. One way of dealing with this dilemma is to optimise efficiency through good court management. 12.4.2 Court Management in a Constitutional Context But what is (good) court management’s place within the constitutional framework in Switzerland? Various constitutional law provisions lay down requirements for the management of the judicial system: The right of access to justice requires a functioning court system that can issue high quality judgments within a reasonable time. Efficiency is therefore a constitutional principle. Courts enjoy a high degree of institutional independence. The right to self-​administration derived from this however also brings an obligation to organise the management of the judicial system effectively. Court management is therefore an inherent part of the regulatory structure of the judicial system. On the other hand, court management is also subject to certain constitutional limits. Amongst these is the principle of judicial independence, according to which courts and judges are bound only by the law and in particular may not be instructed on how to decide cases. Court management is further restricted by the right of judges to the protection of their privacy as individuals (e.g. concerning individual performance indicators, if this compromises personal privacy).12 Individual performance indicators may also be regarded as problematic in relation to judicial independence. Therefore, such indicators are an excellent example for the tension between constitutionally required efficiency of courts and the accountability of judges on the one hand, and the need to preserve judicial independence on the other hand.13 12 See Andreas Lienhard, ‘Performance Assessment in Courts  –​The Swiss Case, Constitutional appraisal and thoughts as to its organisation’, International Journal for Court Administration (ijca), Vol. 6, No. 2 (2014), 31 et seq. The protection of privacy may have compensatory significance for judges, because they cannot themselves call on judicial independence in its form as a fundamental right: See Regina Kiener, Richterliche Unabhängigkeit (Stämpfli Verlag, Bern 2001), 381. 13 See for that tension: ccje Opinion No. 17 (2014) on the evaluation of judges’ work, the quality of justice and respect for judicial independence, https://​rm.coe.int/​16807481ea (accessed 1st April 2020).

210 Lienhard In this constitutional conflict, the key is to always find a balance between accountability to society –​and its representatives, such as parliament or other supervisory authorities or authorities responsible for appointing judges –​on the one hand, and independence from the influence of politicians and government officials on the other. The aim is therefore to achieve the highest level of an overall compliance with the constitutional requirements that is possible, a form of practical consensus. Based on the observations we have made of other countries, we assume that this conflict is not peculiar to Switzerland but a challenge for court management all over the world. 12.4.3 Specific Research Results Now I would like you to show you some research results from the sub-​projects as examples. In sub-​project 1, a study was made of trust in the justice system in Switzerland. To do this, a survey was conducted involving 3,400 people. Trust in the justice system was examined by using a direct question –​e.g. on trust as such –​as well as two indirect questions to assess the independence of the courts from political influence and to assess on equal treatment before the courts. What were the results?14 − Trust in the cantonal courts is higher than trust in the cantonal governments and parliaments. − Trust in the federal courts is a little higher than trust in the cantonal courts. − The following factors have a significantly positive effect on trust in the courts: ◯ few reports in the media about irregularities in the justice system ◯ positive personal experiences with the courts − The considerable institutional variance among the cantonal justice systems on the other hand has little effect on public trust in the judiciary. − In general, it can be said that although with a mark of 7 out of 10 there is a relatively high level of trust in the courts –​but there is still room for improvement. Further research work focused on knowledge management in the courts (sub-​project 3):15 Knowledge exchange among judges is an essential organisational requirement for a high quality and uniform jurisdiction and is therefore of significant relevance. Knowledge management is thus an essential element 14 15

For this study see Christof Schwenkel, Der Einfluss kantonaler Justizsysteme auf das Vertrauen der Bevölkerung in die Gerichte, Schriftenreihe zur Justizforschung (vol 11, Stämpfli Verlag/​Nomos Verlag/​Verlag Österreich, Bern/​Baden-​Baden/​Wien 2016). For this study see Sandra Taal, Working separately together, A quantitative study into the knowledge sharing behaviour of judges, Schriftenreihe zur Justizforschung (vol 10, Stämpfli Verlag/​Nomos Verlag/​Verlag Österreich, Bern/​Baden-​Baden/​Wien 2016).

211

Court Management for Sustainable Judiciary Institution

Average (Scale 1‒10)

Federal Supreme Court

7.28

Federal Adminstrative Court

7.14

Federal Criminal Court

7.14

Cantonal courts

7.04

Cantonal government

6.34

Cantonal parliament

6.16

Schwenkel Christof/Rieder Stefan, Die Wahrnehmung der Justiz durch die Bevölkerung, in Schweizerische Richterzeitung « Justice - Justiz - Giustizia» 2014/1.

­f igure 12.3 Trust in the justice system

of quality management. As part of the comparative study of different countries, empirical analyses were carried out and 1,300 judges working in the field of administrative law (courts of first instance or appeal) were questioned. The web-​ based survey had a response rate of around 35 %. What were the main results? − Knowledge exchange takes place in the courts in a variety of ways. In addition to formal arrangements (such as section meetings, case discussions, quality circles, feedback from colleagues), there are also numerous informal exchange mechanisms (such as conversations over coffee or lunch, social events). − Possible factors encouraging knowledge exchange include the following: technology, management, social factors and motivation factors. Not all factors have proved to be of equal importance in relation to the courts. − However, the surveys show that of the various factors, social trust and social networking are the most important. Management on the other hand –​at any rate in the form of a top-​down approach –​can only offer limited support for knowledge exchange. − The evaluation also showed that female judges tend to be more prepared to share their expertise than male judges. In addition, it is interesting to note that although Information and Communication Technology (ict) can facilitate knowledge exchange, it is not a crucial factor. − The study concludes that it is important to make implicit knowledge in the courts explicit. A climate of trust within the court can encourage this.

212 Lienhard A further study concentrated on the methods and limits for assessing the performance of judges.16 In relation to this, Switzerland –​in contrast for example to the usa –​has hardly any established principles or experience. So the questions were: Are performance assessments like this (e.g. of management skills, clearance rate and average length of procedure) permitted at all, and if so, subject to what requirements? The assessment of the performance of judges –​subject to certain limits –​ seems not only to be permissible constitutionally but is also something that basically seems necessary. It is an essential element for assuring and improving quality in a court, although respect must also be given to judicial ­independence. What is very important concerning the procedure is that judges have the opportunity to have their say and –​if necessary –​rights of recourse when undergoing a performance assessment. In employee appraisal interviews, this can initially entail a meeting with the supervisory authority, and in the second phase an appeal to an impartial authority. In dismissal or disciplinary procedures or in the case of non-​re-​election (where appropriate), existing or yet to be established appeal mechanisms must be used. Here, models involving judicial councils are an obvious option. And there are some no-​goes: a content-​based (qualitative) analysis of individual judgements (material quality) or the procedural process (formal quality) is not compatible with judicial independence. It seems also to be clear that the pecuniary aspect (pay) is an unsound basis for legitimising the performance assessment of judges –​judges should be able to motivate themselves. And what is not permitted is the reinterpretation of performance assessments as specific, binding performance requirements. However, it is vital that the courts and judges do not obstruct the ongoing discussion on performance assessments, but rather indicate methods themselves and express their views on the assessment process before others decide on it for them (e.g. the media). 12.5

Main Consequences for Court Management

I would now like to sum up:  what are the main conclusions that can be drawn on the subject of court management in Switzerland at a higher level of ­abstraction? 16

For this study see Andreas Lienhard, ‘Performance Assessment in Courts  –​The Swiss Case, Constitutional appraisal and thoughts as to its organisation’, International Journal for Court Administration (ijca), Vol. 6, No. 2 (2014).

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213

The first conclusion is that within courts there is a variety of rationalities. If the world of management is to converge with the world of the constitutional state and if these worlds are willing to learn from each other, this may create fertile ground for the development of court management. A second conclusion:  optimising court management involves professionalisation. Larger courts are especially reliant on professional court management –​to relieve the burden on judges who are not specifically entrusted with management duties. These judges then have more time available for their core task –​the judging. However, this means that judges must be prepared to delegate management powers to court administrators. A third conclusion:  the research confirms that communication by the courts is vitally important to increase transparency and to reinforce trust in the ­judiciary. A fourth conclusion: management models devised for use in public administration (like the Common Assessment Framework [caf]17) cannot be introduced as such into the judicial system –​while models used in the private sector (like Total Quality Management [tqm]18) are not suitable at all. Instead, what is required is a specific and prudent management model for the judicial system –​one that the judges want because it is beneficial for their judicial activities and they can appreciate its value. 12.6

Need for Further Research

In relation to developing a management model, we can identify three future research fields in particular. These research fields are not only relevant for the Swiss judiciary but could form a model for research agendas in other countries as well, including the participants in the Sino-​European dialogue of this ­volume. Firstly, the research project was focused on structural aspects relevant to court organisation. Accordingly, there is need for further research with regard to management processes –​especially the caseflow management. What could be of interest is research into justice chains (e.g. police investigation > prosecutor > courts of first and second instance).19 17 18 19

https://​www.eupan.eu/​caf/​ (accessed 1st April 2020). See for example the efqm model, which is the widespread model for implementing tqm in Europe: https://​www.efqm.org/​ (accessed 1st April 2020). Andreas Lienhard and Daniel Kettiger (eds), The Judiciary between Management and the Rule of Law, Results of the Research Project ‘Basic Research into Court Management in

214 Lienhard A second field of research relates to the quality of the judiciary itself.20 There are various quantitative indicators –​such as the duration of proceedings, the number of judgments issued or the percentage of decisions that are appealed. But what is the position with regard to the quality of the judgments? What are the relevant criteria and what role does procedural quality play in the quality of judgments? The third field of research involves the interdependencies between the judicial system and other sub-​systems.21 It is generally assumed that a properly functioning judicial system is a significant success factor for economic and social development. However, there seems to be no scientific proof of this –​perhaps due to the associated methodological challenges. A special focus could be held on whether and how the equal access to justice is influencing inclusive growth.

Acknowledgements

Many thanks to Fabiane Thomann, Research Assistent and PhD Student, Center for Public Management, University of Bern, Switzerland, for finalizing this contribution. Switzerland’, Schriftenreihe zur Justizforschung (vol 6, Stämpfli Verlag/​Nomos Verlag/​ Verlag Österreich, Bern/​Baden-​Baden/​Wien 2016), 155. 20 ibid., 156 et seq. 21 ibid., 157.

­c hapter 13

Conclusions and Outlook Ragna Aarli 13.1

Introduction

This volume explores organisational structures and normative designs of different court systems during their most recent reforms. It has been demonstrated that modern court management includes regular evaluations and benchmarking initiated by regional and global organisations to improve the efficiency and functioning of the judicial system.1 From a national point of view, international benchmarking can be used as governance tools to identify and allocate resources to areas of court management that call for (urgent) reforms. On supranational levels, a governance tool such as the EU Justice Scoreboard cannot be used without due respect for the uniqueness of the court systems in each member state.2 The ambition of the Sino-​European dialogue conducted in this volume has not been to identify ‘best practice’ in court management nor to suggest future reform agendas that are likely to lead to ‘better practice’ in the countries studied. The dialogue between judges and academics has been carried out in pursuit of more empirical knowledge and valid arguments to answer the question of how sustainable judiciaries for our future societies can be built. This final chapter attempts to draw some connections between Parts 2 and 3 and sum up our three-​step project presented in Part 1. I will start with a summary of the many different aspects of organisational reforms of court systems that have unfolded and the trends these reforms represent (13.2). Subsequently, various challenges to national court systems and the means by which to deal with them have emerged throughout the book and 1 See Chapter 7 section 7.2.4. For a reminder of the methodological weaknesses connected to the self-​reporting system the data collectors rely on, see Chapter 1, section 1.3.5. 2 See e.g. Vivian Reding who introduced the EU Justice Scoreboard when she was a Vice-​ President of the European Commission in the speech ‘Weathering the storm together: Justice for growth, justice for citizens, Institute for International and European Affairs (iiea) /​Dublin 25 September 2012 available at http://​www.iiea.com/​event/​25-​09-​2012-​Viviane%20 Reding-​Transcript-​IIEAaf52.pdf (accessed 1st April 2020). The fact that comparative evaluations actually serve as governance tools on a supranational level has not gone under the radar of academic debate, see Adriani Dori, ‘The EU Justice Scoreboard –​Judicial Evaluation as a New Governance Tool’, (2015), MPILux Working Paper 2, 35, available at: www.mpi.lu.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_014

216 Aarli are analysed (13.3). Each topic should be subject to continued transnational dialogue between judges and academics. The participants in our dialogue all agree that overemphasising efficiency raises concerns for justice and fairness, and the importance of subordinating the role of efficiency in national court reforms is discussed in the following subsection (13.4). Theories of court management tend to leave no prominent place for the judge. Court management theory focuses on courts as organisations, while the role of the judge tends to recede into the background. To develop a counterweight to this trend, judges have played a prominent role in this project. Our Sino-​European dialogue, as demonstrated in Chapter 7 and in the following subsection (13.5), emphasises that the role of the judge is a topic that should be explored further in the future. The final subsection concerns the future (13.6). Will trends of international convergence on the organisational level of court systems continue, or is a future reversal likely to occur? Our Sino-​European dialogue cannot provide the answer. However, some of the research articles may be interpreted as support for an ongoing trend of convergence, at least as the most desirable alternative. 13.2

Reform Trends in the Organisation of Court Systems

No other court system explored in Part 2 of this volume has recently undergone more comprehensive reforms than the judicial system of the People’s Republic of China. In Chapter 8, Weidong Chen summarised the measures used to strengthen court management power and to improve case management efficiency in China in four aspects: Reforms in the personnel quota system within the judiciary, reforms in judicial accountability, case triage according to complexity, and the application of judicial technology and big data.3 The topics of the reforms are highly recurrent in our European sample of countries. In Slovenia, where the judiciary has been reconstructed since the country gained independence from Yugoslavia in 1991, the 2010 amendments of the Courts Act included, for instance, the creation of a position of court director within district and high courts, whose role is to manage courts more efficiently and discharge the presidents of the courts.4 Employment policy and distribution of personnel within the judiciary has also been on the reform agenda in the UK, where the 2005 reform established, inter alia, a new statutory and independent body responsible for the selection of candidates for appointment as 3 See Chapter 8 Section 8.3 Court’s Reaction to Litigation Explosion. 4 See Chapter 4 Section 4.1.3.

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judges.5 An acknowledgement of the need to balance judicial independence with judicial accountability6 has also initiated numerous court reforms in Europe. The list of criteria adopted by the Judicial Council in Slovenia to hold the judges accountable is one illustration from our sample.7 Moreover, case triage according to complexity has been embraced as a tool to improve efficiency in many European countries. A  simplified small claim procedure was introduced in Norway in 2005, for example.8 However, there is yet no European role model for the application of judicial technology and big data to improve case management efficiency. As will be discussed in more detail below, England and Wales are indeed ambitious with regard to the implementation of new technology in their judiciary, but China is in the forefront and many other European countries are on the verge of digital reforms. More organisational reforms of courts along the lines mentioned above are planned, for various reasons, in the majority of the European countries to improve case management efficiency.9 In contrast to China, the excessive overload of cases in every field of law is generally not sparking any urgent need for reform, but the need for better service for less money has motivated reforms of the efficiency and effectiveness of the judiciary and other publicly financed activities. The overall picture in Europe is in fact that the number of pending and resolved civil and criminal cases is decreasing.10 The exception is the administrative justice sector. In the administrative field of law, the number of pending cases tends to increase, and the average disposition time is significantly longer than that of civil and criminal cases.11 The problem in many European court systems is, generally speaking, not an insuperable volume of cases in total, but a shift in the distribution of cases towards more cases between the citizen and the state in relation to services that the state provides. Another trend, at least one that is observed in Norway, is that the usual civil and criminal cases are 5 6 7 8 9 10 11

Chapter 5 Section 5.1.1. For a discussion of various models of judicial responsibility, see Mauro Cappelletti, ‘Who Watches the Watchmen? A  Comparative Study on Judicial Responsibility’ (1983) The American Journal of Comparative Law, 1–​62. Chapter 4 Section 4.2.6. In Act Relating to mediation and procedure in civil disputes (The Dispute Act) 17 June 2005 No. 90 Chapter 10 Small Claims Procedure [‘Småkravsprosess’]. Reported in 32 of 46 countries, see European Commission for the Efficiency of Justice (cepej) Studies No. 26 (2018) 210. ibid. 336–​337. The average disposition time was 235 days for civil cases, 138 days for criminal cases and 357 days for administrative cases, see cepej Studies No. 26 2018 (2016 data) 336. The figures are not reliable in terms of accuracy, but the tendency of an increasing number of time-​consuming administrative cases is clear across national borders.

218 Aarli growing in number and complexity.12 Increased complexity of the law is offered as an explanation for a growing ‘obesity’ problem in court cases. More active case management by the judge is suggested as one of the means by which the problem can be overcome.13 European trends of court reform also include aspects other than those mentioned in the reform programme in China. The European Commission for the Efficiency of Justice (cepej), for instance, has identified a general trend towards clustering more judges in larger court units, combined with increased specialisation: The trend goes towards a decrease in the number of courts and a consequent increase in the size of the courts, clustering more judges and civil servants, as well as stronger specialisation of the jurisdictions. These reforms, all aimed at reducing the cost of functioning, particularly in terms of buildings, by pooling and rationalising expenditure, oblige court users, court staff and all legal professionals to try to adapt to this new structure of judicial organisation.14 In larger court units, judges and administrative staff need to be managed professionally. This explains, for instance, the introduction of court directorship positions as mentioned in regard to Slovenia. The trend to increase the size of the court has fuelled a growing practical and academic concern for the management of courts from a public administration perspective.15 Practical concerns in Europe about the development of the courts as organisations dates back to around the 1990s.16 The academic interest in the suitability of the application of new public management elements on court organisations occurred a decade later, around the 2000s.17 Since then, the academic literature in the field has grown considerably.18 12

E.g. illustrated in Norwegian Official Report [nou] 2019:  17 Domstolstruktur [Court Structure] 38–​40. 13 ibid. 39. 14 cepej Studies No. 26 (2018) 211. 15 E.g. for the case of Switzerland, se Chapter 12. 16 Philip Langbroek and Mirjam Westenberg, Court Administration and Quality Work in Judiciaries in Four European Countries. Empirical Exploration and Constitutional Implications, Schriftenreihe zur Justizforschung (vol 9, Stämpfli Verlag/​Nomos Verlag/​ Verlag Österreich, Bern/​Baden-​Baden/​Wien 2018) 13. 17 ibid. See e.g. Patrick Maier, New Public Management in der Justiz, (Paul Haupt Verlag 1999) and Marco Fabri and Philip M.  Langbroek (eds.), The Challenge of Change for Judicial Systems, developing a Public Administration Perspective (ios Press 2000). 18 For an overview of various initiatives until 2018, see Langbroek and Westenberg, Court Administration and Quality Work in Judiciaries in Four European Countries. (n 16) 6–​7. For

Conclusions and Outlook

13.3

219

Themes of Challenges and Means to Deal with Them

The recurring topic of challenges to national court management can be summarized as having four aspects: to maintain high quality in the judicial decision-​ making process, to do so in a justifiably efficient manner, to sustain the general confidence in courts as important and relevant social institutions for conflict resolution in the future and ‘judicial internationalisation’. The term judicial internationalisation here refers to increased judicial interaction between judges from courts belonging to different jurisdictions on the basis of more extensive institutional cooperation across national borders and on the basis of an increasing volume of international substantive law.19 Judicial internationalisation is sometimes also referred to as ‘transnationalisation’.20 Hopefully, the breadth of contributors and their contributions to this book have succeeded in conveying the notion that there are many different approaches to the question concerning how each of these challenges could or should be dealt with. Let me recall some of them. The quality of the judicial decision-​making process and the judgments resulting from the process is, of course, one of the most crucial challenges any court system faces. There are (at least) two different approaches by which to deal with the problem of too many or too complex cases for the available corps of judges: a procedural approach and an agent-​oriented approach. The procedural approach is to establish structures that can ensure the quality of the decisions made. The extraordinary internal advisory system within the Chinese court system explained by Lei Du in Chapter 9 can be regarded as a procedural approach to ensure quality in judgments in the Chinese system. A more widespread approach, also seen in China and in most of the other court systems explored in Part 2, is to establish special courts or chambers to deal with particular fields of law. Germany, for instance, as Reinhard Gaier and Anne Sanders have explained in Chapter  3, has five parallel court systems. Across the systems we have looked into, judges seem to be more and more often assigned to particular branches of law even though, as Nina Betetto mentions in terms of Slovenia in Chapter  4, they are still regarded as a single corps of generalist judges.

19 20

a more recent study, see Emmanuel Jeuland (ed) Gestion du Tribunal/​Court Management. Pour un principe de coordination en matière de gestion du tribunal/​For a Principle of Coordination in Court Management, (irjs Èditions Sorbonne 2020). See e.g. Elaine Mak, Judicial Decision-​Making in a Globalized World. A  Comparative Analysis of the Changing Practices of Western Highest Courts, (Bloomsbury, 2015), 2. Or ‘transnational litigation’, see Anne-​Marie Slaughter, ‘A Global Community of Courts’ (2003) 44 Harv Int’l LJ 191–​220.

220 Aarli The acknowledgement of a specialist function often serves two different purposes. Since the capability of the generalist judge today is more often considered to be delusive in some complex and technical fields of law, specialisation is partly a tool to ensure that the judge will possess the necessary legal skills to handle a particular kind of case. Specialisation may, however, also be a tool to speed up the process in areas of law where the number of cases is high. A specialist judge is likely to manage a case more swiftly than a generalist judge who is likely to need time to brush up his/​her knowledge of the law. The agent-​oriented approach focuses on the judges as individuals and tries to ensure an awareness of quality through guidelines for good practice. The development of a set of aspirational professional and personal rules of conduct for judges is one example. Except for Germany, all the court systems discussed in Part 2 have rather recently developed codes of professional conduct supplementing legislation for judicial conduct. In 2017, a code of conduct was also adopted for the justices of the Federal Constitutional Court in Germany.21 Another agent-​oriented means to ensure the quality of the judicial decision-​making process is a regular formal evaluation procedure common in countries with career judiciaries. The second topic entailing challenges to the court systems that we have explored is how to reach justifiable efficiency in case management. Adopting best practice rules such as those presented for civil litigation in Chapter 11, can never be more than a start. Judges and legal practitioners have to be trained to become committed to new rules, and procedural cultures are hard to change in any case. Unquestionably, the most proactive and pervasive approach at present to dealing with the challenges to reach justifiable efficiency is to use new technology. For good reasons, China has become a world leader in the development of a smart technology judiciary,22 and several online courts have already been established.23 A high volume of cases is a prerequisite for a cost-​ effective development of technical solutions, including the use of artificial intelligence for digital case management. One of the major challenges to the court system in England and Wales that has been mentioned is the decrease in legal aid.24 The fact that access to justice has become unaffordable for ordinary citizens is likely to be part of the explanation for the leading role of England and Wales in the European process of digitisation of court systems to improve efficiency. To use digitisation as a tool 21 Se Chapter 3 section 3.2.5. 22 smart is a commonly used acronym for ‘Self-​Monitoring Analysis and Reporting Technology’. 23 See for more details, Chapter 2 and 8. 24 See Chapter 5.

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to improve access to justice in England and Wales is strongly recommended by Richard Süsskind in his recent book ‘Online Courts and the Future of Justice’.25 While an online start of all cases has already been introduced in Norway, and in many kinds of courts in Germany, it remains to be seen whether the UK will succeed in becoming the first European judiciary to process cases entirely online. Except for England and Wales, most of the countries in our study have a more reserved attitude towards replacing physical courtrooms with virtual ones. This reservation might be explained by more affordable access to justice in the other countries in our survey. The need to transform physical courtrooms into virtual ones thereby becomes less urgent. Technology is more frequently embraced as a tool to speed up communication processes between the parties and the courts in the preparatory proceedings and to ensure judicial independence in the administration of case assignment. In Slovenia, the smallest country in our study, cases are registered and allocated electronically, and electronic case filing and purely electronic files in all courts is Germany’s goal in 2022, at the latest by 2026. Adjustment of procedural law to modern communication technologies and the efficient use of IT has explicitly been mentioned in our study as the most important challenge facing the German judiciary.26 A second approach to reach justifiable efficiency in case management is to enlarge the judicial districts and create bigger court units. This approach is not only common in smaller countries such as Switzerland27 and Norway,28 but is also used in England and Wales, where the launch of the digital reform of the court system has been combined with the discontinuation of a number of courthouses.29 To manage larger court units, professionalisation 25

26 27

28 29

Richard Süsskind, Online Courts and the Future of Justice (Oxford 2019) The transformation of the administration of justice has appeared to have become more complicated than expected in England and Wales and the time-​frame for the reform has recently been prolonged from 2022 to 2023, see press release from the British government 5 March 2019, https://​www.gov.uk/​government/​news/​additional-​year-​to-​deliver-​ambitious-​court-​ reforms (accessed 1st April 2020). Chapter 3 Section 3.1. See Andreas Lienhard and Daniel Kettinger, The Judiciary between Management and the Rule of Law. Results of the Research Project ‘Basic Research into Court Management in Switzerland’, Schriftenreihe zur Justizforschung (vol 6, Stämpfli Verlag/​Nomos Verlag/​ Verlag Österreich, Bern/​Baden-​Baden/​Wien 2016) 6. A new court structure has recently been proposed in the Norwegian Official Report [nou] 2019: 17 Domstolstruktur [Court Structure]. See the joint statement from The Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals, ‘Transforming our justice system’, September 2016 pp. 6–​7, available at https://​ www.gov.uk/​government/​publications/​transforming-​our-​justice-​system-​joint-​statement.

222 Aarli of court management is essential, and this implies that judges have to somehow accept being ‘managed’ by court administrators. From this perspective, Andreas Lienhard has clarified the need for a specific and prudent management model for court systems that enables the judges to decide cases independently in a judicial framework that ensures accountability to society.30 In a larger and parallel study to ours, Emmanuel Jeuland has also pointed out that court management has to be specific to the peculiarities of the organisational structure of courts.31 Nonetheless, the organisational structure of three distinct but loosely coupled groups of agents –​citizens, judges and staff –​is not unique for courts. As Jeuland has pointed out, universities and hospitals also have to manage agents having high intellectual level and independence side by side with administrative staff under public scrutiny and in an unpredictable political landscape.32 A defence for special treatment of court organisations budgetwise can only succeed if citizens in general accept and recognize the constitutional position of courts in modern democracies as unique and valuable. The third set of challenges is chosen to highlight the vulnerability of courts precisely in this regard. The third topic of challenges to current court systems is about relevance to the society that depends on the service the courts provide to the citizens. Paradoxically, there seem to be too many, and at the same time too few cases in many countries. This means that large areas of conflicts are allocated for resolution to other forums than the courts. One of Andreas Lienhard’s findings from basic research of court management in the fairly well-​working court system in Switzerland was, for instance, that courts find themselves increasingly in competition with Alternative Dispute Resolution (adr)-​mechanisms and other non-​court procedures such as arbitration. Most countries in our study recognize this competition. Although courts benefit from being relieved of the burden of demanding civil disputes, there is a tinge of sadness in the fact that the national court system is unable to attract cases that render public the enforcement of central areas of civil law.33 The fourth topic entailing challenges to current court systems is judicial internationalisation. National courts are situated in an increasingly globalised world. Hence judges work in a landscape where they have to apply national law 30 See Chapter 12 section 12.5 and 12.4.2. 31 Emmanuel Jeuland, Gestion du Tribunal/​Court Management (n 18) 14. 32 ibid. 33 In Germany, the Federal Ministry of Justice therefore published a tender of a public research project in September 2019 which shall investigate if ‘unmet legal needs’ are at the source of the decreasing demand of justice.

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and international law helter-​skelter, and have to strike a balance between national sovereignty and international loyalty. The supranational collaboration between the court systems within the European Union, both institutionally and in substantive law, offers challenges and opprtunities to both the judicial professionals as well as to citizens seeking justice. The acceptance of supra-​or transnational courts indeed represents constitutional challenges to any national court system.34 Vanessa Hellmann’s analysis of the relationship between the German Federal Constitutional Court (fcc) and its two European neighbours, the supranational European Court of Justice (ecj) and the transnational European Court of Human Rights (ECtHR), illustrates that convergence is complicated for judges to carry out at the constitutional level. The reason Hellmann provides for considering the demanding and complicated international adjustment worthwhile is of some interest: The value is to include human rights, in the rather recently added scope of substantial EU law. According to the author, the triangular relationship between the fcc and the two international courts is necessary to overcome because it is about securing the utmost possible standard of protection for the fundamental rights of the people. The cooperation allowing for this can of course be justified as beneficial to society as a whole, but in particular because it secures important and accepted values. The justification is defended despite the fact that it does not promote a more efficient court system to the parties who seek a final decision in their case. 13.4

The Subordinate Role of Efficiency

In this volume, various types of court management in modern and complex societies have repeatedly been scrutinized through the lens of efficiency and effectiveness. Slow justice often means no justice, and court management is about securing efficient and cost-​effective court service. The experience of loss of rights due to an inefficient court system has been more eloquently phrased in the legal maxim ‘justice delayed is justice denied’.35 The focus of our lens was a natural choice when we were to organize a conference on the role of 34 35

‘Supranational court’ here refers to a court belonging to a supranational organisation like the European Union while ‘transnational court’ refers to a court belonging to a intergovernmental organisation like the European Council. The origin of the legal maxim is not clear, but there are a number of expressions of the maxim in international human rights instruments, e.g. the European Convention of Human Rights Article 5 (4) on the right to have the lawfulness of deprivation of liberty by arrest or detention ‘decided speedily by a court’ or Article 6 (1) ensuring the right to a fair and public hearing ‘within reasonable time’ applicable both to civil and criminal cases.

224 Aarli courts in evolving societies with huge cultural differences. The immense pressure on the Chinese judicial system does not find a parallel in Europe. For other reasons, all the European court systems discussed in this book also struggle to provide their citizens sufficiently efficient service. One of the reasons, particularly manifest in court systems which accept an interplay between national and international courts, is the fact that judges have to handle increasing complex legal sources that are relevant in ascertaining the law currently in force. Another reason is that courts, as well as other publicly financed organisations, seem to be faced with a demand for more value for public money. Courts are not only held publicly accountable for their budgets, but also for the quality of the services delivered within the limits of the budget.36 The variety of measures introduced to manage the increased pressure on courts and judges caused by a booming caseload in China and by the growing complexity of cases in all the countries in our survey has been rendered visible throughout this book. We have looked more closely into various designs of court systems in China and four selected countries in Europe. As Weidong Chen pointed out in his conclusion in Chapter 8, overemphasis on efficiency leads to concerns of justice and fairness. It is perhaps appropriate to conclude the book with a reminder of the subordinate role of the lens we have used in this book on the role of courts in evolving societies. Efficiency and effectiveness in case management are essential to the specific parties and requisites for public trust and legitimacy, although they are not primary goals for a court system. Flipping a coin to make decisions and imposing punishment without trials, as Supreme Court Justice Wenche Arntzen mentioned in the conference in Bejing, is an efficient way to solve legal problems, but not at all just and has nothing to do with practice in court. The assurance of justice and peace are the primary goals that define the social function of the system. To provide this fairly, the courts have to apply the law in an independent, impartial, accountable, transparent, just and, simultaneously, efficient way. Best practice regulation, such as the draft rules of civil litigation presented in Chapter 11 should be worthwhile to consider and discuss, also outside Europe. But there is currently no identified best practice model available for a detailed design of a court system able to safeguard all the qualities in demand. Different organisational designs of court systems may each have its strengths and weaknesses but be equally suited to ensure justice and peace in the society in which they are embedded.

36

Cf. Langbroek and Westenberg, Court Administration and Quality Work in Judiciaries in Four European Countries. (n 16) 1.

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The history of quality management in courts is brief and dates back to the 1990s in Western Europe.37 The history is even briefer in the People’s Republic of China, where the country’s judicial system only recently resumed operation. A court is not just another public organisation but belongs to a separate branch of government and court administration has appropriately been described as a ‘delicate balancing act’.38 In Chapter 12, Andreas Lienhard formulates an ambition based on practical consensus for court administration: ‘to achieve the highest level of an overall compliance with the constitutional requirements that is possible’.39 Court management is a means to an end and since the end is an ideal, it is hard to gain public satisfaction for the overall achievements of the system. In this book, the application of an efficiency lens on various court systems has nevertheless been useful to illustrate the need to continuously revise the court system, to keep pace with changes in society and to serve their primary functions in society as well as to explain that there are various ways to accomplish this. 13.5

The Future Role of the Judge

The comparative study of court systems in Part 2 of this volume is primarily based on information from inside agents, namely the judges who engaged in panel discussions in Beijing, and some of them rigorously answered our questionnaire. A striking impression from our meeting with the inside agents was that Chinese judges seem to find less reward and satisfaction in their work than their European counterparts.40 Judges’ perception of their role and working conditions is nevertheless unstable in Europe as well. A position as a judge is not as attractive as it used to be in Germany, where more and more courts face serious recruitment problems. Despite impressive improvements in case management efficiency and a successful campaign to have salaries aligned with those of comparable officials in the legislative and executive branches, Slovenian judges still experience a low degree of public trust. The previous sections have also shown that judges in England and Wales and Norway are met 37

Langbroek and Westenberg, Court Administration and Quality Work in Judiciaries in Four European Countries. (n 16) 13. 38 ibid. 1. 39 See Chapter 4. 40 This fact is also observed by Cai Yanmin, ‘Case Management in China’s Civil Justice System’, in C.H. (Remco) van Rhee and Fu Yulin (eds), Civil Litigation in China and Europe. Essays on the Role of the Judge and the Parties, (Ius Gentium: Comparative Perspectives on Law and Justice (31), Springer 2014) 39–​58, 53.

226 Aarli with general requirements and expectations of active case management that eventually change their work description. Studies of job satisfaction or dissatisfaction tend to distinguish between external factors (job context) and internal factors (job content) as key components to explain someone’s attitudes towards their job.41 Professionals such as lawyers tend to regard job content as more important than job context in general assessments of their job satisfaction.42 Furthermore, professional dedication or ‘commitment’ is often used as a key variable in the literature on job satisfaction.43 In a study among Chinese defence lawyers, the researcher found that, contrary to findings from Western research on job satisfaction among (legal) professionals, Chinese defence lawyers gained satisfaction primarily from their job context, and not from their job content.44 A ‘mismatch of job demands, and decision-​making latitude and role conflict and ambiguity’45 among defence lawyers who struggle to define their role is perhaps a situation judges will experience in court systems continuously in transition. From this perspective, the necessity to balance court management initiatives against strong protection of internal judicial independence is perhaps also easier to understand and to support. After all, it is the professionalism as an impartial lawyer with competence and responsibility to make decisions for which the judge is individually accountable that is at stake. The heavy workload is naturally an external factor that may represent grounds for discontent among Chinese judges. We have seen that a number of mitigating measures are carried out to ease the burden of explosively increasing litigation for the judges in China. Just like in Europe, Chinese judges are now being supported by more assistants.46 Another measure taken to improve case management efficiency is a shift in procedural responsibilities from the 41

E.g. Clifford J.  Mottaz, ‘The Relative Importance of Intrinsic and Extrinsic Rewards as Determinants of Job Satisfaction’ (1985) Sociological Quarterly 365–​385. 42 ibid. 43 Hong Lu, Bin Liang, Yodu Li, and Ni (Phil) He, ‘Professional Commitment and Job Satisfaction:  An Analysis of the Chinese Judicial Reforms from the Perspective of the Criminal Defense’ (2014) The China Law Review 159, 162. With further references to e.g. Kuei-​Yun Lu, Pi-​Li Lin, Chiung-​Man Wu, Ya Lung Hsieh, and Yong-​Yuan Chang, ‘The Relationships among Turnover Intentions:  Professional Commitment, and Job Satisfaction of Hospital Nurses’ (2002) Journal of Professional Nursing 214–​219. 44 Hong Lu et.al, ‘Professional Commitment and Job Satisfaction’ (n 43), 174. The study is based on a sample of 346 defense lawyers in the J province who answered a questionnaire. 45 ibid. 176. 46 Jacob Blacklock, Christopher Fung, ZHENG Yang, ZHANG Shili, KONG Xingxing, WANG Yu, XU Hui, ‘Practitioners’ perspective on advances in China’s judicial reform’ (2016) Tsinghua China Law Review 213, 232.

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judge to the parties,47 i.e. towards an adversarial procedure. This development is opposite to the trend in European countries having an adversarial procedure, such as the UK and Norway, where more active case management has been deemed necessary to reduce the volume of questions and case material that the parties find relevant to substantiate the conflict. Extraordinary situations like the litigation explosion currently experienced in China tend to foster extraordinary measures. More fresh efforts to use technology to improve case management efficiency make robot judging more likely as an alternative to manage simple cases in some fields of law, although robot judging will undoubtedly emerge earlier in China than in Europe. The prevalent opinion in discussions of the potential for use of artificial intelligence in judicial decision-​making, however, is that ‘co-​bots’ supporting human judges in their work are scenarios that are more likely than robots.48 The need for human judgement to exercise discretion and maintain rule of law might be somewhat marginalized by technological supplements, but it is not likely to fade away. Researchers expect that Chinese criminal defence lawyers’ job satisfaction will gradually shift from being context-​driven to content-​driven.49 Such an expectation can be criticised for not being culturally neutral but instead based on experience of how professional commitment and job satisfaction, in combination, most efficiently promote high quality output from an organisation in the Western world. The recipe is perhaps not ideal for China. The key to maintaining job satisfaction among European judges is probably none the less to continue to defend the right to internal independence for the judge and to fight against political initiatives designed to introduce broader interpretations of what management outside the case, that can be left to other agents than the judges themselves, actually means. 13.6

Continued International Convergence or Future Reverse

Our study of court systems in Part 2 leads inter alia to the conclusion that traditional lines of demarcation between court systems relying on career patterns

47

48 49

Also noticed in C.H. (Remco) van Rhee and Fu Yulin, ‘The Role of the Judge and the Parties in Civil Litigation in China and Europe’ in C.H. (Remco) van Rhee and Fu Yulin (eds), Civil Litigation in China and Europe. Essays on the Role of the Judge and the Parties, (Ius Gentium: Comparative Perspectives on Law and Justice (31), Springer 2014) 2. Tania Sourdin, ‘Judge v.  Robot? Artificial Intelligence and Judicial Decision-​Making’ (2018) 41 unswlj 1114, 1130. Hong Lu et. al., ‘Professional Commitment and Job Satisfaction’ (n 43) 177.

228 Aarli within the court system itself or outside the court system as qualification for recruitment and promotion are worn down. The observation of convergence across court systems is not exceptional, neither when it comes to the institutional framework nor to judicial practice. On the basis of interviews with judges from various jurisdictions, a previous study has anticipated that a general convergence in the judicial decision-​making process and approaches to legal interpretation in the highest courts, including the highest courts outside the Western World, might occur.50 Our study suggests that such convergence also might take place on the organisational level and lead to similar design of court systems where quality assurance systems for the judges and judgment are built into the system according to more universal criteria. The bottom-​up initiative to transform the multitude of national civil procedural law into a truly European civil procedural law which Remco van Rhee discusses in Chapter 11 will apparently also enhance the chances of systemic convergence. If harmonized rules of civil procedure are implemented, judges all over Europe will have to manage cases according to European procedural standards. Truly, Emmanuel Jeuland still finds two different models of court management in Europe, a civil law and a common law management model, but he also acknowledges that the line between singular court systems from each of the models has become more difficult to draw.51 Despite the fact that management in the two different models have been quite appropriately recognized as driven by completely opposite forces, ‘a centrifugal force in civil law countries and a centripetal force in common law countries’,52 the management model may arguably be astoundingly similar in the end. All conjectures about the future are vulnerable to the potentiality that trends may be reversed rather than continued. In this case, we must admit that we hope that the trend of convergence, or at least fruitful exchange, will continue and that this book will serve as an inspiration in that direction. The role of national courts and independent judges in modern societies is far too important to be left to narrow-​minded, nationally-​oriented politicians alone or to be replaced by private actors in the global arena. 50 See Mak, Judicial Decision-​Making in a Globalised World (n 19) 238. 51 Emmanuel Jeuland, Gestion du Tribunal/​Court Management. (n 18) 156–​157. 52 ibid., 16.

Annex –​ Questionnaire

For the Conference on the Role of Courts in Evolving Societies Renmin University of China Law School, Beijing 25–​26 May 2018 Information provided in the questionnaire will be summarised into a comparative table of facts available to the respondents at least 14 days before the panel discussion 25th May. The table will also be made available to other participants during the conference. Please answer the questions concisely as far as they are relevant to your system. Feel free to add links to webpages with additional information on your system. 1.

Please describe in brief the legal structure in your country before and after a certain date, (within the last 20  years) preferably when an important reform of the judiciary took place. (For the UK, this should be 2005, for example. The Constitutional Reform, which came into power in 2005, profoundly altered the judicial system of the UK. In Norway, the establishment of the Norwegian Courts Administration in 2002 will be the natural turning point. Bitte beschreiben Sie die Struktur der Justiz in Ihrem Land vorzugsweise vor und nach der letzten bedeutenden Justizreform in den letzten 20 Jahren. (Im Vereinigten Königreich wäre das die Constitutional Reform von 2005, die die Struktur der Justiz stark verändert hat. Zu diesem Zeitpunkt wurde z.B. der Supreme Court an Stelle des House of Lords eingeführt. In China ist es die aktuelle Justizreform).

2.

If there has been a major reform of the judicial system within the last 20 years, please explain the reasons for reforms at the time -​why were reforms made? Wenn es eine größere Justizreform in den letzten 20 Jahren gegeben hat, bitte beschreiben Sie die Gründe für diese Reform.

3.

Please explain the effect of the reforms so far -​if any. Bitte beschreiben Sie die Auswirkungen der Reform (sofern sie welche hatte).

4.

Please describe the present court structure and judicial structure in your legal system. Bitte beschreiben Sie das Gerichtssystem und den Aufbau der Justiz Ihres ­Rechtssystem.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438248_015

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Annex – Questionnaire

5.

Please describe the court administration and financial structure (including administrative structure and assistance, control of budget, e.g. control of budget by a court president, the ministry of justice, a judicial council). Bitte beschreiben Sie die Gerichtsverwaltung einschließlich der Budgetverwaltung (z.B. Verwaltung durch Gerichtspräsident, Justizministerium oder Justizrat).

6.

Please describe the number of judges in your legal system. Bitte nennen Sie die Zahl der Richter in Ihrem Rechtssystem.

7.

Please describe the legal education, selection (including background of judges) initial training and continuous training of judges, the rules of tenure, and specialisation of judges (are there specialised branches within the judiciary e.g. labour law courts and/​or specialised chambers, for example for construction law or commercial law). Bitte beschreiben Sie die Ausbildung, Auswahl (einschließlich des Hintergrunds der Richter) die weitere Ausbildung der Richter kurz nach der Ernennung und während ihrer Tätigkeit, die Regeln zur Dauer der Ernennung (bzw. zur Ernennung auf Probe), zur Spezialisierung der Richter (gibt es spezialisierte Gerichtszweige und spezialisierte Spruchkörper?).

8.

If applicable, please explain the systems of promotion within your legal system. Bitte erläutern Sie das Beförderungssystem für Richter in Ihrem Rechtssystem.

9.

Please explain the system of pay, pensions and conditions used in your country. Bitte beschreiben Sie das System der Bezahlung sowie der Pensionsleistungen für Richter in Ihrem Rechtssystem.

10.

Please describe the working methods judges use in your legal system. Does the system allow dissents? Bitte beschreiben Sie die Arbeitsmethoden der Richter. Sind Sondervoten zulässig?

11.

What role does court presidents play in case management? Welche Rolle spielen Gerichtspräsidenten in der Zuweisung von Fällen und in der Organisation der Bearbeitung der eingehenden Verfahren?

12.

To what extent do your judicial system use clerks to prepare for judicial d­ ecisions? Gibt es Hilfsrichter oder Wissenschaftliche Mitarbeiter, die Richter bei der Vorbereitung von Entscheidungen behilflich sind?

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13.

Please, describe the culture of exchange and any possible support among colleagues. Bitte beschreiben Sie die Kultur des Austauschs und eventuell Stütze unter Richter-​ Kollegen.

14.

Please, describe the legal assistance for litigants and lawyers offered by the judicial system in your country. Bitte beschreiben Sie die rechtliche Unterstützung die Parteien und Anwälte in Ihrem Justizsystem erfahren.

15.

Please, describe (or provide the link for) the ethical standards or rules of professional conduct which judges are expected to follow in your legal system. Bitte beschreiben Sie die ethischen Standards/​Standards professionelles Verhaltens, die in Ihrem Rechtssystem von Richtern erwartet werden.

16.

Are there any complaints from the public about the judicial system in your legal system? If so, which public concerns are expressed? Gibt es Beschwerden der Öffentlichkeit gegen die Justiz in ihrem Rechtssystem? Wenn ja, welche Belange werden vorgebracht?

17. If applicable, please describe the evaluation of judges, what is used in your ­system? Bitte beschreiben Sie das System der richterlichen Beurteilung in Ihrem, wenn es in Ihrem Rechtssystem ein solches gibt. 18.

Is there a special disciplinary commission (in China CPC)? Gibt es eine spezielle Disziplinarkommission (in China die Partei)?

19.

Please, describe the social standing of judges within your legal system. Bitte beschreiben Sie das soziale Ansehen von Richtern in Ihrem Rechtssystem.

20. How and to what extent do courts in your system communicate with the media? Wie und inwieweit kommunizieren Gerichte mit den Medien? 21.

Please explain which international courts (if any) that are of most importance in your national judicial system. Bitte beschreiben Sie welche internationalen Gerichtshöfe (wenn überhaupt) von größter Bedeutung für ihr nationales Rechtssystem sind.

232  22.

Annex – Questionnaire What is the general attitude among judges in your country on the role and influence of international courts? Bitte beschreiben Sie die allgemeine Haltung von Richtern in Bezug auf die Rolle und den Einfluss internationaler Gerichte.

23. What are, in your opinion, the most important challenges the court system in your country faces? (for example social developments) Was sind Ihrer Meinung nach die wichtigsten aktuellen Herausforderungen für Gerichte und Justizsystem in ihrem Land? 24. Is there any additional information of particularities in your court system that will be useful in a comparative context? Gibt es weitere Informationen über Ihr Gerichtssystem, die Sie in einem rechtsvergleichenden Kontext berücksichtigt wissen möchten?

Index activist 92 adjudicative committee 123 adjudicative committee affairs management 126 administrative court 34 administrative law 217 adr 198, 208 American Law Institute (ali) 170 Amtsermittlung 39 anti-​corruption 31 appeal  Europe 184 China 24 Germany 34 Slovenia 44 UK 61 Norway 80 approval-​based judicial power 130 Arbeidsretten 74 assigned judge 140 award system 28 Banana Market (fcc) 161 barrister 63 Basic Law (German Constitution) 34, 148 Beijing No. 3 Intermediate People’s Court 115 benchmarking 215 best practice 214 best practice model 89 big data 119–​120 bi tool 52 Bosphorus (ECtHR) 166 Bureau of International Cooperation 22 Business and Property Courts of England and Wales 61, 64 cadres 141 cantonal court 204 case assignment  China 26 Germany 38–​39 Slovenia 51 UK 66 Norway 78–​79

case assignment plan 39 case filing registration system 30, 113 case filing review system 30 case information management 126 case management  China 109, 113, 123, 125–​127 conference 183 decision 183, 185 Europe 168–​202 order 183, 184 case report 124 case quality evaluation 126 case triage 116 case outcome examination 126 ccje 15 cepej 15–​16, 89, 207, 218 Chancery Division 61 Charter of Fundamental Rights of the EU (cfr) 151 Ch D (Chancery Division) 61 checklists 89 Chengdu Intermediate People’s Court 135 Chief Judge  China 124, 126, 136–​141 Chinese Communist Party 21, 112, 124 Chinese legal system 24 Circuit Judge 61 civil cases  China 24 Germany 34–​35, 39 Slovenia 45 UK 60–​61 Norway 74 civil law 13, 90–​93 claimant’s powers 127 co-​bot 227 Code of professional conduct  China 27 Germany 40 Slovenia 53 UK 67 Norway 80–​81 collective responsibility 140 collegial intervention 81 collegiate panel 123

234 Index command and compliance 130 commercial cases 108 common law 13, 90–​93 communication advisor 57 comparative law 13 complete independence school of thought 132 Conciliation Board 74 constitutional court  Germany 34 Slovenia 45, 52 constitutional review 160 control of powers 138 convergence 228 corruption 28, 31–​32, 65 Costa v. e.n.e.l case 158 Cotterell, Roger 9 Council of Europe 144 County Court 61 court administration  China 25 Germany 36 Slovenia 46–​48 UK 62 Norway 75 court director (Slovenia) 48 court management 85–​86 professionalisation 213 Court of Common Pleas 104 Court of Impeachment 72 court president  China 115–​116, 124–​126, 136–​141 Germany 36 Norway (chief Justice) 78 Slovenia 48, 52 UK 66 Courts Act (Slovenia) 46 court management 206 Courts of Justice Act (Norway) 77, 81–​82 court organisations 87 court structure  China 22–​24 Germany 34–​36 Norway 74–​75 Slovenia 44–​46 UK 60–​62 Norway 74 court systems 12 criminal cases 

China 23, 117 Germany 34–​35 Slovenia 45 UK 61 Norway 74 Crown Court 61 Cultural Revolution 108 Damaska, Mirjan 92 Declaration No. 17 (Treaty of Lisbon) 159, 160 demurrer’s power 127 deputy judges 64, 76 delovna sodišča 44 deputy court president 124 deputy judge  Norway 76 UK 64 Deutsches Richtergesetz 36 Disciplinary Court 55 disposition time  China 23, 115 Germany 34 Slovenia 44 UK 62 Norway 74 dispute resolution 196–​201 dissenting opinion  Germany 39 UK 66 Norway 80 doctrine of precedent 67 dual-​power reforms 135 Dworkin, Ronald 95 ecj (European Court of Justice) 41, 144, 149–​152, 165 economic criterion 52 effectiveness 173 efficient 176 efficiency  Constitutional principle 209 criterion 52 reform scheme 120 subordinate role 223–​225 efta Court 84 elected judges 205 electronic filing systems 185 encj 15, 89

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Index Ethics and Integrity Commission 53 Ethical Principles for Norwegian Judges 80 EU Justice Scoreboard 15, 90, 208, 215 EU-​law 150–​151 binding 164 mandatory 164 non-​binding 164 primary 151, 162 secondary 151, 163 European Arrest Warrant 163 European Court of Human Rights (ECtHR) 144, 152–​154, 165 European Court of Justice (ecj) 41, 144, 149–​152, 165 European Economic Area (eea) agreement 84 European Law Institute (eli) 170, 172 European multilevel cooperation 154–​155 European Union (EU) 144 evidence 187 evaluation 188 introduction 189 presentation 188 expedited procedure 24 extra-​judicial activity 72 extra-​judicial skills 95 fact-​finding 188 facts 186–​191 fair 176 Family Division 61 fast-​track sentencing 117 fee-​paid judges 63, 93 Federal Constitutional Court (fcc) 143–​167 Federal Office of Justice 36 Federal Supreme Court (Switzerland) 204 financial plan 47 First State Exam 37 ‘Four Types’ of cases 128, 131 gatekeeping 116, 134 gavel gap 92–​93 German Constitution (Basic Law) 34, 148 German Federal Constitutional Court (fcc) 143–​167 German Judicial Academy 39 Görgülü-​case 156–​158 good practice guide 89 governance mechanism 90

Great Yarmout County Court 104 Griess, Irmgard 99 guanxi 31 guidelines 89 harmonization 168 He, Xiaorong 129 Her Majesty’s Court and Tribunal Service 62 higher people’s court 23 Honeywell (fcc) 163 House of Lords 96 identity review (fcc) 161, 163 Information Officer 84 information silo 120 intermediate people’s court 23 International Association for Court Administration (iaca) 207 International Trade Association case 158 internal judicial independence 87–​88, 94, 226 Internet-​courts 23 Jeuland, Emmanuel 86, 172 job satisfaction 226 joinders of claims 104 jordskifteretter 74 iura novit curia 171, 193 judges  China 25, 109 Germany 36 Slovenia 48–​49, 51 UK 62–​63 Norway 76 Judges’ Media group 83 Judges Law (China) 26 Judgment Review System 135–​136 judicial accountability 115, 122 Judicial Accountability Opinion (spc) 28 Judicial Appointments Board (Innstillingsrådet) 78 Judicial Appointments Commission (jac) 96 Judicial assistant  China 29, 114, 119 Germany 40 Slovenia 55 UK 68 Norway 82

236 Index judicial career  China 26 Germany 36–​38 Slovenia 49–​51 UK 63 Norway 77 Judicial College 64 Judicial Complaints Investigations Office (jcio) 68 Judicial Council (Slovenia) 46, 48, 54 Judicial Council model 46 judicial design agenda 88 judicial independence 209 China 21, 122, 132–​134 Germany 36, 40 Norway 71–​73 Slovenia 44, 49 UK 60 judicial internationalisation 219 Judicial Power Operation system (China) 122 Judicial Powers 123 Judicial Preparation Service 37 Judicial Press Office 69 Judicial Service Act (Slovenia) 50 judicial trainee 50 judicial training  China 27 Germany 40 Slovenia 50 UK 64, 67 Norway 80 judiciary  bureaucratic 13, 92 professional 13, 92, 93–​95 jury 61, 79 jus dicere 55 Karolczyk, Bartosz 172 King in Council 78 knowledge exchange 211 labour law court  Germany 34 Slovenia 44 Norway (collective) 74 lagmannsrett 74 Länder 34 land consolidation court 74

lawyer 177 lawyers’ practising rights 30 lay judge 79 Lay Magistrate 60 legal aid  Germany 41 Slovenia 56 UK 69, 220 Norway 83 legal basis 192 Lindblom, P. H 170 Lisbon Treaty (EU) 151, 165 Lisbon Treaty-​decision (fcc) 161 litigation explosion 103–​107 Lord Chancellor 96 Lord Woolf reform 96, 97, 183 loyal cooperation 173 Maastricht (fcc) 161 management-​cum-​supervision framework 130 Master of the Rolls 66 materielle Prozessleitung 183 measures against misconduct  China 28 Germany 40 Slovenia 54–​55 UK 68 Norway 81–​82 media 30, 69, 83 mediation 24, 39, 200 Melloni (ecj) 158 mentoring 53 micro-​level school of reform 122, 137–​138 military courts 22 Ministry of justice model 46 mixed legal system 13, 92 model rules 170 monitoring 178 National Democratic Party of Germany (npd) 146 Norwegian Association of Judges 80 Norwegian Courts Administration (nca) 72 Oberste Gerichtshöfe des bundes 34F obligations  positive  negative 

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Index oecd 88 Official Gazette 50 okrajna sodišča 44 okrožna sodišča 44 Organic Law of the People’s Courts 23, 137 omt-​decision (fcc) 164–​165 open-​door policy 110, 121 open-​door reform 105 Patents Court 64 People’s courts 21 People’s Republic of China (prc) 21 performance criterion 52 performance indicators 95 personnel quota system 25, 113–​115 petition 139 plea bargaining 105 policy documents 89 policy-​ implementing 92, 98 post-​decisional independence 49 pre-​action phase 197 pre-​action protocols 177 precedents 79 preclusion 189 President’s dashboard 52 press officer 41 primacy 159 primary people’s court 23 procedural justice 109 professionalization 114 promotion  China 26 Germany 37 Slovenia 51 Norway 78 UK 64 proportionate 176 Prozesskostenhilfe 41 quality management 85–​86 Queens’s Bench Division (qbd) 60 questionnaire 14, 229 reactive 92 Rechberger, Walter 172 Recorder 64, 65 reeducation through labour system 117 Referendariat 37 reform 

China 21 Germany 33 Slovenia 43–​44 UK 59–​60 Norway  release of powers 138 Retired Cadre Bureau 22 retirement age  China 26 Germany 38 Slovenia 51 UK 65 UK 78 retrial procedure 127 review 134 revision 34 robot judging 227 role perception 99 Romano-​canonical procedure 171 rule of Law 21, 204 salary  China 29 Germany 41 Slovenia 55–​56 UK 69 Norway 82 salary-​paid judge 63, 96 sanctions 178–​179 disciplinary 179 non-​pecuniary 179 pecuniary 179 Second State Exam 37 separating powers 131, 204 settlement 199 Shanghai No. 2 Intermediate People’s Court 115 Silvestri, Elisabetta 172 Slovenian Judicial Training Centre 54 social law courts  Germany 34 Slovenia 44 soft law 169, 170 Solange i (fcc) 161 Solange ii (fcc) 160 Solange jurisdiction 160 solicitor 63 Sorabji, John 172 smart technology judiciary 220

238 Index specialisation 218, 220 China 114 Germany 37–​38 Slovenia 53 UK 64 special people’s court 22 speech recognition system 118 speedy 176 standard-​judge principle 49 Storme Group 170 Storme, Marcel 169 Storme Project 170 Storme Rules 170 Strandberg, Magne 172 supervision 24 supervision powers 131 Supervisory Committee for Judges 81 Supreme People’s Court (spc) 22, 124 surprise judgment (‘Überraschungsurteil’) 193 Swiss court system 204–​205 Taiwan 136 target figure 97 tax courts 34 teams of judges 114 Tilsynsutvalget for dommere 81 tingretter 74 training scheme 94 transnationalisation 219 Treaty on the Functioning of the European Union (tfeu) 151–​152

Trial Committee 22 trial operation trend analysis 126 trial procedure management 126 trial supervision powers 122–​123, 127–​129 trial supervision procedure 127 tribunals 60, 199 tripartite framework 130 trust 210 ts.chinacourt.org 30 two-​hearing system 22 Überraschungsurteil 193 ultra-​vires 163 ultra vires review (fcc) 161 Unidroit 170, 172 Uzelac, Alan 172 Verfassungsgeruchtsverbund 154–​155 vetting 134 video-​protocol 75 višja sodišča 44 višje delovno insocialno sodišče 44 Vrhovno sodišče 44 Winner Wetten (ecj) 158 World Bank 88 Yanqing People’s Court 115 zpo-​Reformgesetz 33