By A. Uzelec
I. Public and Private Justice: Working together for Common Goals
PUBLIC AND PRIVATE JUSTICE: THE CHALLENGES OF RATIONAL ASSESSMENT OF PERFORMANCE IN THE CONTEMPORARY JUSTICE SYSTEMS
1. Challenges of Assessment: How to make Hard Statements on a Soft Ground? On November 8, 2006, the Commission of the European Communities issued the Croatia 2006 Progress Report. The purpose of the report was to review Croatia’s capacity to assume the obligations connected to future EU membership. Among the areas which deserve more attention in the process of accession to the EU, a prominent place was given to the reform of the judicial system. The Report noted that the judicial reform strategy ‘has begun’, with ‘some progress’ in reducing the case backlog, but that ‘reform is at an early stage and the judicial system continues to suffer from severe shortcomings’.
The report indicated some areas for improvement. The actions that need to be taken were summarized as follows: – to reduce significant case backlog; – to reduce the length of court proceedings; – to improve case management; – to rationalize the court network; – to ensure proper enforcement of judgements; – to reform legal aid; – to ensure impartiality in the procedures for the appointment, training and disciplining of judicial officials. In conclusion, the Report stated that ‘Croatia is still some way from enjoying an independent, impartial, transparent and efficient judicial system’. This statement was a serious warning, all too clear for the otherwise very diplomatic language of 1 COM(2006) 649 final. 2 Commission 2006, p. 8. Public and Private Justice 8 this document. The Report further warned that the establishment of such a judicial system ‘will be an important indicator of Croatia’s readiness for eventual [EU] membership …’.
In this paper, we will neither deal with the rather interesting findings of the Croatia 2006 Progress Report, nor with the particular Croatian problems with the administration of justice. Instead, the intention is to use the EU Commission statements on Croatia to raise some general methodological issues connected with every public debate devoted to the functioning of a concrete justice system.
These general methodological issues are best comprised by the following questions: – To what extent can an assessment of a national justice system be legitimized as objective, well-founded and rational? – What are the criteria for the rational assessment of a particular justice system? – Are contemporary European justice systems comparable, and, if so, what should be the basis for comparison? We would submit that the answers to these questions are neither trivial nor self-evident. While in so many other areas convergence has led to standardization and harmonization, contemporary justice systems in Europe and elsewhere may still be viewed as fortresses of parochialism. Every outside observer who ventures to undertake comparative research of judicial systems and their functioning may become perplexed by immense differences and colourful variations in institutional settings, approaches and terminology. Indeed, in such a situation it is easy to disregard unpleasant assessments as biased and unfounded. In fact, the assessments from the cited 2006 Progress Report were mostly described by Croatian opinion-makers as political statements, and it appears that the reactions to them were largely political. While the political factor is not to be underestimated, the question remains whether political actions taken to produce the impression of reform are sufficient to cause any real change, and, indeed, whether – without objective means of evaluation and assessment – one can even be sure whether any change has in fact taken place. To clarify, let us use the following hypothetical example. We start with the initial political assessment that the court network should be rationalized. On our agenda we have a proposal that two or more specialized courts should merge with other courts. Without clear criteria of assessment, any action taken to meet this objective may be presented either as an important improvement (i.e. as a positive Commission 2006, p. 8. 4 More on these issues can be found in the paper by Enderlin et al. in this volume. Although hypothetical, this example bears some similarities with the findings of the EU CARDS 2002 Twinning programme for Croatia. See ‘Support to a more efficient, effective and modern operation and functioning of the Croatian court system’, Activity B 1.1., Distribution and size of the courts, and (last consulted 20 March 2007). See also Enderlin et al. in this volume. A. Uzelac 9 change), as no improvement at all (i.e. as a neutral action or the maintenance of status quo) or even as a negative change. So, for instance, a change in territorial jurisdiction that reduces the number of courts may be presented as the effective use of resources that enhances access to justice, or as reshuffling that effectively changes nothing, or even as a waste of effort, time and money that impairs access to justice for the citizens. As all of these arguments might be encountered in the public debate, the neutral/objective/rational assessment of the justice systems inevitably raises the question of which criteria we might use to achieve a well-informed consensus for our choice. Of course, the result of the discussion on criteria might ultimately lead to relativism – to the conclusion that all of the possible methods of assessment are, in fact, subjective, and that no firm, universal criteria can exist in this area. Lawyers always have been prone to relativism, so this result would be no surprise.
Statements like ‘delays have always existed, and will exist in courts’, ‘two lawyers, three opinions’ demonstrate this affection for ‘soft’ grounds – an affection that may be deeply rooted in the very nature of the legal profession. Therefore, especially if one encourages the debate among legal professionals, there is a high likelihood the debate will end in an agreement to disagree. The attraction of relativism does not end here. This polite consensus of relativists is not only a kind of professional deformation of a legal Fachidiot who likes to be in the position to advocate, with equal conviction and vigor, two diametrically opposite theses. There may be another, deeper existential reason – the one rooted in self-interest. As many jokes about lawyers demonstrate, the interests of justice cannot unequivocally be equalized with the interests of justice professionals. Thus, while legal certainty might be among the ideals of justice, legal uncertainty produces more work and therefore more profit to attorneys around the globe. It may explain why there are, on average, among legal professionals so few sincere proponents of more comprehensive reforms. On the other hand, legal professionals are among the most influential opinion-makers and, ultimately, they are invited to be the driving force and implement the very reforms that they meet with scepticism. Their position, regularly, is that they are the only real experts who are acquainted with the functioning of the justice system, while everyone else is, at best, benevolent but uninformed, i.e. an amateur. The issue of territorial jurisdiction was found to be important for access to justice in the report produced for CEPEJ by B. Hess, D. Chemla and A. Lindgren. Some criteria for the allocation of courts and cases were noted, but the conclusion was ‘that in most countries issues relating to territorial jurisdiction followed traditions, cultures and historical reasons and that, as a consequence, in most countries, both the number of courts and their location remained the same throughout several decades’. Hess, Chemla & Lindgren 2003, p. 36, at 17. The commitment to reforms also depends on the methods of selection and recruitment of judges and other judicial professionals. Paradoxically, this commitment may be higher in places where the justice system functions better. If the selection and the role of legal professionals suffers from far-reaching flaws, the likelihood that those who have profited from it will be against the change is higher. For an evaluation of this statement in respect to Croatia, see Uzelac 2000, p. 23-66; Uzelac 2003, p. 303-329. Public and Private Justice. The purpose of this text is to come to a rather different conclusion. First, we hope to demonstrate that objective criteria of evaluation and assessment in the justice area are, in fact, imaginable and – in spite of the fact that current methodologies and approaches are far from perfect – have good chances to evolve in the next few years. Second, we contend that, for establishing, monitoring and adjusting these criteria, a special task force is needed, which should come from the outside, and not from inside the closed circles of judicial institutions. Justice is too precious to be left to justice professionals only. As the saying nemo iudex in causa sua indicates, an outside view of the dispute is the only guarantee for a proper assessment. In the same sense, an outside view of the functioning of justice is the only guarantee for its proper evaluation. Which outside view? This text will be devoted in part to the issue of ‘insiders’ and ‘outsiders’ in the justice system, and there we will suggest the need for establishing a new discipline of justice system administration as a special professional, scientific and academic field of research (the science of justice system assessment) which is clearly distinguishable, both in personal and systemic respect, from the day-to-day administration of justice. 2. Assessment and Reform The notion of ‘judicial reform’ mentioned in the Croatia 2006 Progress Report, is now familiar to a number of jurisdictions across Europe and the globe.
Most countries, in fact, undertake some reforms of their national justice systems, for diverse reasons, either internal or external. Internal, national reasons include some generally accepted observations, statements and goals within a particular system, such as the need to accelerate proceedings and/or improve their quality; the wish to cut the costs of the system for the state or for the citizens; or the desire to enhance communication among the actors of the justice system; or to adjust to on-going social changes. Among the external factors, there are those resulting from the process of international integration (such as the EU), involving the need to adjust to a new layer of normative acts (e.g., EU directives) and/or to the intervention of the supra-national courts (such as the European Court of Human Rights in Strasbourg, Court of Justice in Luxembourg or international tribunals in the Hague or Rome).
Finally, as the process of globalization advances, some of the reasons are mixed, as cross-border relations and transactions with an international element become increasingly apparent in every jurisdiction, and all national jurisdictions face the same global threats of pollution, war and terrorism. The ever-increasing need for reforms in justice brings along the need for a universally acceptable methodology and makes greater the need to establish universal assessment criteria. Without objective and rational criteria of assessment, it is hard to imagine rational reform plans for the justice system. 8 For a comprehensive bibliography on the topics of legal and judicial reform see Decker & Messick 2005.
There are several elements that, taken together, make the assessment rational. Here is a brief summary of some key features for evaluating whether the assessment is objective: – transparent starting points; – defined goals; – clear criteria and performance indicators; – impartiality and integrity of assessors; – continuing analysis, dialogue and discussion; – institutional structures for assessment; – long-term planning and monitoring; – commitment to the goals of the process. Each of these elements would deserve a more elaborate presentation. However, this is not something that we attempt in this paper. For the time being it suffices to say that not all of these elements of rational justice reform are present in the justice systems that undergo the most intensive changes. We may comfortably make such a statement at least in respect to the more limited geographic area of Central and South-Eastern Europe – the area that is sometimes connected to the notion of ‘countries in transition’. Croatia may be a representative example, especially in the light of the fact that, irrespective of the statements in the Progress Report, it is still among the more advanced and more active countries in the region (and the only one with the EU Candidate status). The Progress Report may have been too kind when speaking of the beginning of the ‘judicial reform strategy’, as the existing strategy, belated for at least a decade, was announced and accepted by the government only at the end of 20059 and approved by the parliament in February 2006.10 Although this document attempts to declare goals and define an action plan for its implementation, it is still very far from the idea of transparent starting points; defined methodology; broad discussion and dialogue of all stakeholders; and reliable ways of steering the process and monitoring its achievements.11 3. Dual Approaches: ‘Insiders’ and ‘Outsiders’ The elements of a rational approach are not the only relevant aspects that influence the process of assessment. All key features enumerated supra are decisively determined by unspoken starting premises – by the perspective of those who shape and undertake the evaluation process. In a slightly simplified, model-type manner, 9 The government submitted the text of the Strategy to the Sabor (parliament) on 6 October 2005. This was not the first text of this kind – already during the late 1990s the then Minister of Justice issued a similar document, without much impact. Proceedings of the session of February 3, 2006 (Croatian Sabor). For the text of the strategy and the discussion about it, see Barbić 2006, p. 73-162. On several problematic aspects of justice reform in Croatia cf. Uzelac 2004, p. 105-130; Uzelac 2004a, p. 283-313; Uzelac 2002, p. 37-80. We would like to distinguish two main types of approaches to the evaluation of justice systems. One approach is to focus on the judicial institutions and their personnel. This approach predominantly takes into account the interests of judicial bodies that conduct legal proceedings – the courts, other tribunals, and their collateral parts and services – as well as the interests of those who are in charge of these bodies and work in them – the judges, the administrative staff of the courts and, to a certain extent, others who visit courts on a more or less regular basis (e.g. lawyers or experts). Therefore, we will call this approach the ‘insiders’’ approach, or a traditional, institution-oriented approach. As indicated in the name, this is the approach that prevailed in the past, and for most countries still is the dominant (if not only) approach to the evaluation of justice systems. The other approach is to concentrate on the social role and function of judicial institutions. If we regard the purpose of the justice system as the resolution of legal disputes (at least limited to the more numerous, although publicly less visible civil cases), then the methods of evaluation should investigate the extent to which the courts have managed to fulfil the needs of those for which they ultimately work: the parties. The reference to ‘parties’ here should not be, as often in the institutionoriented approach, identified with the party representatives (professional lawyers), but with the citizens and legal persons who ultimately are (or should be) the domini litis, the masters (or owners) of the litigation. Therefore, this approach – the ‘outsiders’’ approach, or the user-oriented approach, evaluates the interests of the public as a whole, and assesses the performance of the justice system as a public service shaped to fulfil an important need of the citizens: the need for justice. Although in matters of justice one may easily gain the impression that nothing has changed much over the centuries, this approach is, in fact, relatively novel, and has its roots only in the second half of the 20th century.12 In most European countries, this approach is still unknown or suppressed, but it is slowly evolving, often mixed with the other, institution-oriented approach. Let us discern several typical differences between the two approaches. The institution-oriented approach mainly monitors the difficulties that are burdening the institutional players and the institution as such. So, e.g., the principal way of monitoring court performance is to monitor its caseload (and, more generally, workload), with a view to ensure the smooth case flow and avoid backlogs of cases.The performance indicator stemming from this way of monitoring is the ability to assimilate the incoming cases, measured by the ability to have the output rate of 12 See Uzelac forthcoming. 13 On European national systems of administration of justice as systems that ‘should operate, and should be seen to operate, as a public service to all EU citizens’, see Zuckerman 2006, p. 61. 14 For definitions of the terms caseload and workload see Compendium of ‘best practices’ on time management of judicial proceedings, CEPEJ document CEPEJ(2006)13 of 8 December 2006, p. 23. The term backlog, defined in the same document as ‘quite ambiguous’, is used here in a more narrow sense – as the difference between the number of cases received and the cases disposed of in a certain period of time, closed cases as close as possible to the input rate of new cases. A very similar methodology may be applied for the evaluation of the work of particular units within the court, or the performance of individual judges. The success of the process is evaluated by the product, and, ultimately, the product delivered is the decision by which the case is closed for the particular court. Of course, just as in any factory, there may be instances of ‘failed products’. In the courts, this corresponds to the decisions that are struck down or changed on appeal. In order to avoid such failures, special attention is paid to the uniform application of law and the consistency of judicial decisions, which has precedence over the substantive result of the adjudication and its impact on the parties. Also, in general, the way the case is disposed of is not decisive in this method of evaluation – a decision declining jurisdiction on technical grounds is regarded as equally effective (if not more!) as a complex judgement on the merits after thorough examination of all legal and factual issues. As cases are monitored only from the perspective of an individual institution, there is no need to have an insight into those parts of the proceedings that have preceded, or that will follow. Both for the first-instance court and for the appellate court, what matters is their part of the proceedings, and thus, e.g. a case that is followed by an appeal is in principle viewed as two cases (one case of the first-instance court, and the other of the appellate court). In short, the logic of this approach is to evaluate and measure the resolved cases, and not the resolved disputes. On the other side, the user-oriented approach would assume the perspective of those who are under the jurisdiction of the judicial institutions – of those whose disputes these institutions are supposed to resolve. The concerns of this approach are time, costs and final result and effect of the judicial proceedings. The performance indicators that would correspond to this approach should, therefore, take into account what is at stake for the parties in the proceedings; what are the costs of dispute resolution for the parties; the length of the process of dispute resolution; and, finally, the effectiveness of the whole process and the time needed to finally implement the judicial decision. This approach thus attempts to evaluate and measure the efficiency of dispute resolution and its ability to realize the purpose of the process in the eyes of its principal stakeholders – the users of the justice system.
To be continued.