Soutiens Des parents .S.E.F.C.A. Europe: EUROMED JUSTICE II: "quality of justice"

EUROMED JUSTICE II: "quality of justice"

Luxembourg, 15-17 June 2010

Assess the quality of justice:

(the work of the European Commission for the efficiency of justice CEPEJ) Council of Europe

The Council of Europe is the European common home founded on human rights, the rule of law and pluralist democracy since 1949. These founding values of whole European living are now extended to forty seven States, almost all of the countries of the European continent.

It is therefore of course the duty of the institution in Strasbourg to mount in the front line when it comes to defend and to promote the development of independent and impartial justice. Could nevertheless be tempted to ask if this function of "custodian of the temple" of the independence of the judiciary is compatible with the requirements of quality and quality measurement which are attached, and which involve the development of principles and methods of evaluation systems of justice and administration. Can we speak of justice as a public service without weakening the independence and authority of the judiciary? Should we introduce in the judicial systems of the concepts of management and methods of organization and of imported control other areas that may seem a priori remote of the specificities of justice?

If one is afraid of independence not as a privilege of the judge but a right of citizens, it opens a very current reflection field in Europe. The independence and impartiality of the judge are indeed meaningful if they are designed as an element of public policy: justice at the service of the community. Administer and evaluate the quality of the public service of justice becomes a requirement for European States.

By creating the European Commission for the efficiency of Justice (CEPEJ), the Council of Europe has firmly entered this logic: promote the effectiveness and quality of judicial systems, in the service of the citizens, without never the slightest concession to the full respect of the fundamental principles enshrined in the European Convention of human rights.

The fundamental principle of the independence of the judges to the necessary development of the public policies of justice in Europe

Articles 5 and 6 of the European Convention on human rights are the normative base on which Europe has built and consolidated the fundamental principle of the independence of the judiciary, the rule of law pillar. This principle is placed under the uncompromising control of the European Court of the rights of the man who, over several decades, developed a clear and constant jurisprudence in this area. Furthermore, the Committee of Ministers, the Parliamentary Assembly and the Council of Europe human rights Commissioner are the independence of the judges one of the keystones of their policies to develop the European normative corpus, supporting the reforms, institutional and legislative in Member States and monitor compliance with the commitments made by these States in their entry into the family of democracies European. In addition, several programs targeted cooperation of the Council of Europe have for objectives, since 15 years, anchoring the independence of the judicial system, including in the new democracies of Central and Eastern Europe. Moreover, the Consultative Council of European judges (CCJE 1) ensures compliance with the principles of independence and impartiality of the judges, which he detailed the modalities of implementation in several opinion2.

Being posed and protected, must these fundamental principles confront the realities of the functioning of the judicial system. Thus the CCJE says in his opinion N ° 1 (2001) 3: "independence [of judges] is not a prerogative or a privilege vested in their own interest, but it is guaranteed in the interest of the rule of law and of those who seek and demand justice". The question of the quality of justice therefore leads to wonder about the link between justice and society.

Justice is a public service. Certainly quite apart utility, which can be shared between different actors belonging to the three Executive, legislative and judicial powers, but whose production - judgments - cannot be the sole judge. This specificity do however not lessen it some requirements of the relationship with the policy and with the citizens. By posing the question of the effectiveness of justice, it is part of an approach to public policy, involving policy-makers (ministries of justice, parliaments), the judicial institutions (councils of justice, courts) and litigants-taxpayers, and means (budgets, staff, equipment), are concerned processes and relations between the actors. It must therefore be the interaction between judges, law practitioners and litigants, organized by systems, rules, procedures, and funded by public money.

The European justice standards developed within the Council of Europe lead to same evidence: it is not enough to have tried independently to have tried many. Thus the European Convention of human rights is not limited in its Article 6, to require of the Contracting States that they guarantee the independence and impartiality of the tribunal. He also asked that they organize the system so that everyone can see his cause heard "within a reasonable time". This device is clarified by the case law of the Strasbourg Court and completed by several recommendations of the Committee of Ministers to Member States concerning procedures4, the access to the juge5, the operation of the tribunaux6 and the role of the actors in the judiciaire7 system. For its part, the Consultative Council of European judges (CCJE) defined principles for financing of the courts, responsibility of judges, expeditious procedures and relations between justice and the society.8.

The exponential growth in the number of cases brought before the European Court of human rights, primarily motivated by malfunctions of justice, shows the need to continue reform of national judicial systems. The Council of Europe and resolutely joined this logic to promote the quality of judicial systems, in the service of European citizens.

There is thus an important evolution in the way that it is afraid of the justice issues: what could appear to be taboo for some is changing, sometimes under the pressure of the magistrates themselves: the judge is called upon to descend from its pedestal to go to the meeting of the citizen and to recognize that he has obligations to the community. But it is above all the responsibility of Parliament and Government, invited to more ambitious public policies, both in terms of means at the service of innovation judicial systems in the modalities and procedures governing the administration of the courts.

The European Commission for the efficiency of justice

It is aware of the duty of the Council of Europe to support its Member States in the development of public policies of justice, at the service of European citizens, that the Committee of Ministers created the European Commission for the efficiency of justice (CEPEJ) 9. Three goals led to the creation of commission: i) propose to the Member States of the Council of Europe of the pragmatic solutions in judicial organization, taking full account of the users of the justice; ((ii) facilitate the effective implementation of the instruments of the Council of Europe relating to the functioning of justice - the CEPEJ can be seen as an "after-sales service" to European standards of justice iii) contribute to decongest the European Court of the human rights by applying the principle that it is better to prevent than cure and offering makers of effective solutions to improve the functioning of national judicial systems upstreamlimit violations of the right to a fair trial within a time reasonable and, therefore, appeals to the Court of Strasbourg.

Innovative instance composed of experts (judges, officials of the Ministry of justice or academics) representatives 47 Member States of the Council of the Europe10, the CEPEJ is now turned to practical concerns of the daily operation of the public service of justice.

Evaluate the functioning of the European judicial systems to improve the quality

If the ambition to improve the quality of justice, should, in advance, to know in depth the functioning of the system, to then be able to conduct analysis and finally to propose solutions to the legal, administrative and organizational plans. This is precisely the route of the CEPEJ in its evaluation process of the judicial systems of the Member States of the Council of Europe.

If the slowness of justice issues, difficulties in access to justice or, more generally, the "crisis of the judicial system" are regularly discussed in multiple European fora, it should be noted that, until then, analyses were rarely supported by concrete numerical elements, lack of sufficiently precise and comparable from one country to the other statistics.

The CEPEJ has been betting to a grid of reading of a judicial system applicable to all the European States. This questionnaire today has more than 130 issues in the financial means and personnel of the justice, the Organization of the courts, judicial procedures, the Organization of justice professions and relations with the users. The CEPEJ has today managed to stabilize this repository, which allows both comparisons between countries and the measures of changes over time, in the same country or group of countries. Any initiative of this type and of this magnitude had ever carried out in the field of justice. It is a single process in Europe, both by the methodology implementation - today widely recognised by the community legal and scientific - the field of the information collected and analyzed.

The third evaluation round, which should lead to the publication of the 2010 edition of the "European judicial systems" 11 report gives a clear photograph of the functioning of the judicial systems of 45 European States and, for the first time, an analysis on first statistical series to move gradually "of photography in film", for the dear expression to the Chairman of the Working Group of the CEPEJ on assessment of justiceJean-Paul JEAN. There are comparative tables and relevant comments in critical areas to understand the functioning of justice. The report highlights the common evaluation indicators of the ability of the courts to handle the flow of business, such as the rate of change of the stock of cases pending (clearance rate) and the estimated duration of the inventory of pending cases (available time) flow. Highlighting the process and the means put at the disposal of the various actors, it allows to capture trends, identify problems and guide the public policies of justice to more quality, equity and efficiency for the benefit of citizens. The CEPEJ has thus a real key to reading of the functioning of justice in Europe, in a dynamic perspective.

Promote and measure the quality of justice: how far can we go?

In evaluating the functioning of judicial systems and developing measures and tools to improve the efficiency of the justice, the CEPEJ has no claim to fully grasp the complex issue of the quality of justice. However, if justice is a public service, parties (who are not only holders of sovereignty but also of taxpayers) can legitimately be in expectation of quality. The quality of justice is guarantee of legitimacy of Justice and citizen's confidence in its justice system.

It is true that introduce the concept of quality as a requirement of the public policies of justice can lead, as was souligne12, an approach "which evokes immediately to mind the world of business, production and management (...)" and brings to wonder if "obsession with quality, after be passed of the company to public administrations", through new public management [would not] winning the (quality) circle of justice? "." The concept of quality of justice is increasingly discussed in the different fora European. We saw see the "sign of change, a change in the way we approach the justice and the judicial institution which makes it to the daily" 13. Are given willingly, and reason, the need to call the authorities to focus their policies on the quality of the services offered to the citizens. Issues that could appear displaced there is less than a decade are today worn in public. Thus, for example, the European Union of clerks of justice and Rechtspfleger (EBU) invited the CEPEJ to reflect on the relevance of introducing standards of ISO for the courts.

Yet, as has been pointed out, the discussions not ventured only rarely on the ground of the definition of the quality of justice: "It is easy enough to talk about the qualities and defects of justice." Citizens and professionals have on the subject of ideas from their personal experiences or based on the reactions that give rise to legal problems. Delay, cost, distance, complexity are the defects of justice always recalled. Independence and jurisdiction are sometimes recognized him. But a definition of the concept of quality of justice is much more difficult "14."

This is no doubt to the fact that the notion of "quality of justice" is the complex synthesis of many factors under different plans and cannot all be seized by the same tools. Act on application quality thus apprehend a global concept and define indicators, without encroaching on the fundamental principle of the independence of the judge. It is for example that underlines the CCJE in its opinion No. 615 indicating that "the assessment of the"quality"of justice (i.e., the work provided by the judicial system as a whole or each local courts or tribunal) should not be confused with the appreciation of the professional capabilities of such or such judge".

Can be, for example, measure the quality of a system without measuring the quality of what he produced, i.e. of judgments made by an independent judge? The CCJE brings a nuanced in its opinion No. 11 (2008) answer on the quality of the decisions of justice (question on which Alain Lacabarats, Member of the CCJE, will return next Thursday).

It is not the mission of the CEPEJ to develop a theory of the quality of justice or the set. On the other hand, it aims to promote quality in judicial systems and provide policy-makers and practitioners of justice in concrete tools to improve the quality of their own system, taking into account their specificities. The CEPEJ has therefore chosen to highlight the diversity of the constituents which are the quality of justice, so practice, considering different audiences of justice - parties, witnesses, victims, citizens or professionals in the justice does not necessarily with the same expectations in terms of quality. This approach allows to search for (or develop) and use assessment tools adapted to each of these quality homes.

Studies and practical tools in the service of Government decision makers and professionals to promote the quality of justice justice

The Working Group of the CEPEJ on the quality of justice (CEPEJ-GT-QUAL), chaired by François Paychère (Swiss magistrate) has developed several tools in the quality of justice:

§ A Checklist for the promotion of the quality of judicial systems and the courts, adopted by the CEPEJ in 2008: this grid is designed as a "tool of introspection" to public decision-makers, the presidents and managers of the courts, judges and other practitioners of justice to face their responsibilities at their own level, to improve the quality of the services offered by the justice system. The main objective of this tool is to help the judicial systems to gather appropriate information and analyze relevant aspects of quality. This document is distinguished from other general models of quality (such as the "European Foundation on Quality Management model") or other models developed at the national level (such as the "model Quality" of the Court of appeal of Rovaniemi in Finland or the "model RechtspraaQ" to the Netherlands) because he is considering the quality of the judicial organization at three levels: the national level, the level of jurisdiction and the level of the individual judge. For each of these three levels, a list of questions can be formulated. These questions are not exhaustive and could be supplemented in the future.

§ A study on systems in Europe, conducted Philip Langbroek (Netherlands): it presents a comparative analysis of mode of quality management in the courts in the following countries: England and Wales, Finland, France, Lower Saxony (Germany), Netherlands, Slovenia, Sweden and Ukraine.

§ A study on the contractualisation of the judicial process, prepared by Julien Lhuiller (France): this study starts with a simple observation: until recently, judicial activity was traditionally an activity of authority. Today, the vertical model, based on the imposition of rules, added little by little new. A horizontal model, based on the agreement of wills, invaded little by little compartments of judicial activity. In many European States, the procedure and practice demonstrate the existence of procedural elements now based on a principle of interactions, exchanges between different actors. The "Contracting" refers to the emergence of new reports of judicial activity, based on the search for a balance. The study (outstanding) seeks to analyze:

-If the effectiveness of Justice is forecast = if its management actors develop dialogue to find equilibrium, consensus in the interests of a proper administration of Justice;

-If the quality of Justice is is it forecast = if the role of the judge (say the right) today enjoys procedural instruments to also hear, and to take into account the word of the user, to inform its own decision and make better accepted in rendering Justice.

§ A manual on surveys of satisfaction, prepared by JP Jean and h. Jorry (France): a methodological guide for the central judicial authorities and the individual courts to develop surveys of user satisfaction, this tool based on the experiences of some Member States and good practices that can be drawn. Satisfaction surveys are a fundamental element of the policy to introduce a culture of quality. From the expression expectations, taking account of the satisfaction of citizens reflects a vision of justice centred more on the user of a service, rather than on the internal performance of the judicial institution. In this work, the CEPEJ is interested first in regular barometers, from reliable indicators, that can effectively measure the level of confidence of the citizens in their justice, to explain the variations and understand the priorities given by the citizens on reforms to improve the effectiveness and quality of judicial responses. To do this, is based not on surveys of surveys of representative samples of citizens (whose results are only representations of justice), but, more difficult to implement, to drive people who had actually matter to justice, and whose results reflect the assessment of a return of concrete experiences.

Different categories of users can be distinguished:

-citizens who have to deal justice, in various capacities. In criminal matters, as author or victim, witness, juror. In civil matters, as plaintiff or defendant. The perception of the performance of justice in terms of home, time or cost still is important, as well as that of the intervention of each of the players in the first rank of which judges, lawyers and the courts staff. All bias must be examined, so the fact that people have won or lost their trial in civil matters. Specific categories of users can be studied in the first rank of which crime victims.

-justice, distinguishing between professionals: those who belong to the public service of justice, like judges, prosecutors, lay and non-procureurs of the courts and prosecution services personnel, and those who are partners critical of the Court to the first rank of which counsel.

With this manual, the la CEPEJ CEPEJ wants propose here a "product database", labelled, low cost, easy to implement, focused on the issues and questions of the functioning of courts. The purpose of a such tool is intended to be widely disseminated to the courts of the Member States and used at low cost by them. The proposed choice is therefore a model type of inquiry from the users actual of the courts, several entries, with a methodological guide taking the best of experiences already engaged in several Member States and substantive issues in the work of CEPEJ. These proposals aim to build an operational tool in a comprehensive approach to improving the quality of justice. The tool presents itself as a modular kit with a customizable standard by users according to their needs, their means and their priorities.

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Soutiens Des parents .S.E.F.C.A. Europe

mercredi 25 juillet 2012

EUROMED JUSTICE II: "quality of justice"

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