63725 Recent experiences from selected OECD countries relevant for Latin America Klaus Decker, Christian Möhlen, David F. Varela Poverty Reduction and Economic Management Unit Latin America and the Caribbean Document of The World Bank IMPROVING THE PERFORMANCE OF JUSTICE INSTITUTIONS Copyright © 2011 by The International Bank for Reconstruction and Development / The World Bank. 1818 H Street, N.W. Washington, D.C. 20433, USA. Internet: www.worldbank.org E-mail: feedback@ worldbank.org All Rights Reserved Printing and Manufactured in Colombia / 2011 The �ndings, interpretations, and conclusions expressed in this book are en- tirely those of the authors and should not be attributed in any manner to the World Bank, to its affiliated organizations, or to members of its Board of Executive Directors or the countries they represent. The World Bank does not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of their use. 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Abbreviations and Acronyms 9 Acknowledgements 11 Executive Summary 13 Introduction 19 Latin American Justice Reforms: Recent Achievements And Pending 23 Challenges OVERVIEW OF THE LEGAL SYSTEM AND THE JUSTICE SECTORS 23 JUSTICE REFORM OBJECTIVES AND INSTRUMENTS 25 JUSTICE REFORM ACHIEVEMENTS 27 JUSTICE REFORM SHORTCOMINGS 32 JUSTICE SECTOR CONTRIBUTION TO STATE LEGITIMACY: CITIZENS’ 36 TRUST/CONFIDENCE Justice Institutions In OECD Countries: Performance Issues And Tradi- 41 tional Approaches To Reform DESPITE COMMON TRENDS, MANY DIFFERENCES REMAIN AMONG 41 JUSTICE SECTORS IN OECD COUNTRIES THE BROADER CONTEXT: GENERAL PUBLIC SECTOR MANAGEMENT 54 TRENDS IN OECD COUNTRIES TRADITIONAL RESPONSES TO THE CHALLENGES OF RAPID EXTERNAL 56 CHANGE IN OECD JUSTICE INSTITUTIONS The Transition From Traditional Approaches To Performance-Based 63 Justice Reforms In Selected OECD Countries INITIAL OBSTACLES: INSTITUTIONAL INDEPENDENCE AND CONSER- 63 VATIVE ORGANIZATIONAL CULTURES TRANSITION FROM TRADITIONAL JUSTICE REFORMS TO PERFOR- 64 MANCE-BASED REFORMS: NEW WINE IN OLD SKINS PERFORMANCE-BASED REFORMS IN JUSTICE INSTITUTIONS: WHAT 65 GETS MEASURED GETS DONE BETTER EUROPEAN INTEGRATION AND QUALITY OF JUSTICE SERVICES 68 Case Studies Of Performance-Based Reforms In OECD Justice Institu- 83 tions CONTROL OF MONEY: REFORMING PUBLIC EXPENDITURE IN THE JUS- 83 TICE SECTOR France: Moving from supply-side responses to performance-based bud- 88 geting OVERSIGHT OF PEOPLE: REFORMING HUMAN RESOURCES MANAGE- 94 MENT IN THE JUSTICE SECTOR CONTROL OF ORGANIZATIONS: RESTRUCTURING THE JUSTICE SEC- 98 TOR FOR BETTER SERVICE DELIVERY The United States: Court performance standards models 104 SHARING APPROACHES WITH THE PRIVATE SECTOR: MEASURING 109 AND MANAGING QUALITY OF JUSTICE SERVICES QUALITY MANAGEMENT MODELS BASED ON THE EXPERIENCE OF THE 109 PRIVATE SECTOR QUALITY OF JUSTICE STANDARDS DESIGNED SPECIFICALLY FOR THE 111 JUSTICE SECTOR France: Measuring the quality of judicial decisions 112 Germany: Benchmarking circles generate a sustained change manage- 113 ment process Sweden: Internal and external dialogue processes sustains the reforms 117 The Netherlands and Finland: Similar participatory process lead to tailor- 118 made quality control systems The United Kingdom: A Balanced Scorecard approach 119 THE INTERNATIONAL FRAMEWORK FOR COURT EXCELLENCE 120 CONCLUSION 127 INITIAL LESSONS LEARNED FROM OECD JUSTICE INSTITUTIONS PER- 127 FORMANCE-BASED REFORM EXPERIENCES REVISING THE FRAMEWORK FOR LATIN AMERICAN JUSTICE SECTOR 129 REFORMS AROUND CONCEPTS OF PERFORMANCE TOWARDS PERFORMANCE-BASED JUSTICE REFORM PROGRAMS: NEW 132 FOCI, NEW EMPHASIS, NEW MIXES POTENTIAL CONTRIBUTION OF OECD EXPERIENCE TO PERFORMANCE- 133 BASED JUSTICE REFORMS IN LATIN AMERICA BIBLIOGRAPHY 137 Figures Figure 1. Judiciary budget as percentage of GDP 28 Figure 2. Total judicial budgets (current USD 1,000) 28 Figure 3. Number of judges per 100,000 population 29 Figure 4. Global access to justice sector information through the internet 30 (2008) Figure 5. Global access to justice sector information through the internet 31 (2004-2008 Changes) Figure 6. Litigiousness rate (Number of incoming cases per 100,000 inhabit- 32 ants) Figure 7. Doing Business 2009– Contract enforcement (World rankings of 33 Latin American and Caribbean countries) Figure 8. Clearance rate 2004-2006 (Selected countries) 34 Figure 9. Total number of outgoing cases 34 Figure 10. End-of-year backlog 35 Figure 11. States’ ability to enforce laws, 2008: Question: “the State assures 37 the compliance with every law,� ranked 1 (no ability) to 10 (high ability). Figure 12. Con�dence in the Judiciary by Congresses (2006) 38 Figure 13. Rule of law in Latin America from 1996 -2008 (percentile rank) 39 Figure 14. Evolution of the Con�dence in the Judiciary in Latin American 39 countries, 1996 -2009 Figure 15. Con�dence in the Judiciary in Latin American countries compared 39 to other institutions (1996-2009) Figure 16. Ease of Enforcing Contracts (Doing Business in 2010) 44 Figure 17. Use of courts per population 45 Figure 18. Number of judges per population 46 Figure 19. Number of lay judges per professional judge 47 Figure 20. Number of administrative staff per judge 48 Figure 21. Annual public budget (courts, prosecution, legal aid) as a percent- 49 age of GDP per capita Figure 22. Expenditure for courts, prosecution, legal aid 51 Figure 23. Gross annual salary of a judge at different career stages compared 53 to average gross annual salary Figure 24. Number of lawyers per 100,000 inhabitants 53 Figure 25. Justice sector budget as percentage of GDP 77 Figure 26. Justice sector budgets (Main expenditure items) 78 Figure 27. Litigation reduction in England and Wales 86 Figure 28. Delay reduction in England and Wales 87 Figure 29. Writs issued in Queen ’s Bench division 87 Figure 30. County Court Trials 88 Figure 31. Evolution of expenditures related to justice services provided by 92 third parties Figure 32. Delays in the French administrative jurisdiction (months) 93 Figure 33. Productivity of Dutch courts -Production per year of work of the 102 Judiciary Figure 34. Sample overview for performance in staff satisfaction survey 116 Tables Table 1 - Government spending on courts and legal aid in the United Kingdom 58 (in million £) Table 2 - Median court costs by category of case and value (recoverable costs 59 as % of claim) Table 3 - Judges per 100,000 inhabitants 66 Table 4 - Number of cases �led for civil procedure per 100,000 inhabitants. 66 Table 5 - Number of administrative cases �led per 100,000 inhabitants 66 Table 6: Number of incoming appeal cases by 100,000 inhabitants 66 Table 7 – Workload module for �rst instance civil courts 97 Table 8 – CourTools 106 Table 9. CEPEJ evaluation criteria of quality models 115 Table 10. Staff satisfaction survey areas 115 Table 11. Lawyers’ satisfaction survey areas (Appeals Courts) 115 Table 12. Lawyers’ satisfaction survey areas (Lower Courts) 115 Table 13. Alternative approaches to justice sector reform objectives 130 Charts Chart 1. Performance information in the budget cycle 55 Chart 2. EU pre-accession evaluation criteria 70 Chart 3. Quality Checklist’s Areas of Measurement 80 Chart 4. TCPS Performance Areas and Standards 108 Chart 5. Sweden: Circle of internal and external dialogue 118 Chart 6. HMCS’s balanced scorecard 121 Chart 7. User satisfaction surveys in public service agreements 122 Chart 8. Areas for Court Excellence (drivers, systems and enablers, and re- 125 sults) Chart 9. Values underlying the International Framework for Court Excellence 125 Chart 10. Balanced Scorecard 126 ADR Alternative Dispute Resolution BJA Bureau of Justice Assistance CCJE Consultative Council of European Judges Centro de Estudios de la Justicia de las Américas/ Justice Studies CEJA/JSCA Center for the Americas CEPEJ European Commission for the Efficiency of Justice CGPJ Consejo General del Poder Judicial DPLF Due Process of Law Foundation ECtHR European Court of Human Rights EFQM European Foundation for Quality Management ENM Ecole Nationale de la Magistrature EU European Union GTZ German Agency for Technical Cooperation HMCS Her Majesty’s Courts Services ICT Information and Communications Technology Inter-American Development Bank IDB Instituto Nacional de Defensa de la Competencia y de la Protec- INDECOPI ción de la Propiedad Intelectual INK Instituut Nederlandse Kwaliteit (Netherlands Quality Institute) ISO International Organization for Standarization LAC Latin America & Caribbean LOLF Loi Organique relative aux Lois de Finances M&E Monitoring & Evaluation MCV Mechanism for Cooperation and Veri�cation MDBs Multilateral Development Banks MICs Middle Income Countries NGO Nongovernmental Organization NCSC National Center for State Courts NCVS National Crime Victimization Survey NPM New Public Management OAS Organization of American States OECD Organisation for Economic Co-operation and Development SAR Services d’administration régionaux SATURN Study and Analysis of Judicial Time Use Research Network TCPS Trial Court Performance Standards TQM Total Quality Management UCR Uniform Crime Reporting UK United Kingdom UN United Nations U.S. United States USAID United State Agency for International Development WBG World Bank Group This paper was prepared on the basis of various background material collected and ana- lyzed by Christian Möhlen (Consultant). Klaus Decker (Public Sector Management Spe- cialist) and David F. Varela (Senior Public Sector Management Specialist) reviewed and edited this material, contributed additional material and wrote the �nal version. They worked under the supervision of Nick Manning (Sector Manager). Richard Messick (Se- nior Public Sector Specialist) and Pim Albers (Senior Policy Advisor, Netherlands Minis- try of Justice) were peer reviewers. Valuable comments and inputs were received from Karyn Kenny (Consultant) and Milena Sanchez de Boado (Consultant). Patricia Méndez and Francisco Lazzaro edited the �nal version. Justice sector institutions across the world face the challenge of delivering better ser- vices to those seeking justice. The courts in a number of member countries of the Or- ganization for Economic Cooperation and Development (OECD) have undergone large scale reform programs incorporating both performance-based approaches of New Pub- lic Management (NPM), as well as private sector practices. Terms such as client satisfaction, cost-bene�t analysis, total quality management and performance evaluation, which originated in the private sector, are now increasingly applied to justice institutions in more advanced OECD countries-- and other countries beginning to follow suit. For almost two decades, justice authorities in OECD countries have been trying to improve the performance of their courts. Some have had more suc- cess than others. The wealth of experience that has been generated about how (and how not) to approach court performance can be shared with others for cross-country learning. In recent years, the focus of reforms has increasingly shifted from approaches focusing on narrow quantitative efficiency to those focusing on managing quality. Radi- cal changes have also taken place in the organizational cultures of justice institutions in order to steer them towards providing better services for the citizens and society as a whole. Justice reformers in Latin America should not be surprised to �nd that some OECD countries are still struggling to respond to the same issues they face. Justice institutions generally have a complex setup in which the dysfunctions of a single agency can gener- ate externalities that quickly impact the performance of other agencies, with the latter having little or no ability to correct those externalities. However, in designing their own solutions, Latin American reformers may �nd the experience of OECD countries which are facing similar challenges to be a useful reference. In the same way that legal reforms cannot simply be transplanted from one country into another, any lessons learned from OECD countries should be carefully adapted to the particularities of Latin American jus- tice institutions which have a different history and reflect different social and economic contexts. Perhaps the most important lessons to be learned from OECD countries are those that may help avoid generating unmanageable expectations or raising the bar too high. This paper presents a selection of experiences from OECD countries in managing justice institutions which are the most relevant for performance improvement of their coun- terparts in Latin America. The scope of the paper is mostly limited to the courts, but comprises all types of courts: specialized courts as well as courts of general jurisdiction, civil as well as criminal and administrative courts, �rst instance as well as appellate and supreme courts. Issues of legal reform, judicial training, alternative dispute resolution or access for the poor are not considered in this paper. The �rst chapter provides an overview of the justice sector reform experience in Latin America over the last two decades, and how these reforms coincide with or follow OECD country trends. Latin America’s legal systems are based on the legal systems of their former colonial powers but, naturally, have developed their own distinct features. The transition to democracy in the 1980s generated citizen demand for justice reforms, with most reform efforts focusing on modernizing institutions and expanding access to jus- tice. The reforms required substantial investment programs with signi�cant �nancial and technical support of OECD donors and multi-lateral development banks. These le- gal and institutional reforms have changed the structure and operations of the justice sector in Latin America, and have improved the quantity and quality of the available resources. Managerial and administrative reforms have also had some impact. However, the broad scope of reform programs made them difficult to evaluate and vul- nerable to criticism. Also, conflicting interpretations about the new institutional frame- work have led to frequent conflicts within the justice sector and with other branches of government. Despite some progress in functional performance, public trust has not improved as much as expected. The second chapter outlines the context of the debates regarding the performance and quality of justice services in OECD countries prior to the 1990s. Vastly different histories and legal traditions have shaped the justice systems in OECD countries. More recently, increased globalization has led to some common trends and cross-fertilization, but the structure and performance of these systems continue to vary signi�cantly. Interestingly, the available data regarding aspects such as costs and delay point to differences across OECD countries, even among those of the same legal tradition. The extent to which people use the courts for settling their disputes varies signi�cantly as does the size and structure of the court systems, budget allocations, and number of practicing lawyers. In the early 1980s, a new wave of reforms in the broader public sector began in many OECD countries under the broad label of New Public Management. A key feature of the new approach was the integration of performance information and targets into all stages of the budget cycle. Due to a strong institutional culture, concerns about judi- cial independence, and under-developed managerial capacity and vision in many places, courts initially resisted being included in this broader reform process. Instead of devel- oping their own managerial capacity and approach, in many OECD countries those in charge of the courts preferred changes in substantive and procedural laws and increas- ing human and �nancial resources to address issues of raising caseload and growing delay. Calls for increased accountability in performance were often discarded based on an understanding of judicial independence that was largely perceived as an entitlement of judges rather than the right of citizens to have access to an independent judge who would still be accountable to the public for her or his performance. Modern information and communication technology, however, made performance data more readily avail- able and the press became a voice for citizens’ dissatisfaction with the justice system. Societal change required more radical responses and kept pushing for greater service orientation and performance accountability. Within this context, public budgets were also coming under close scrutiny. Many OECD justice systems entered the 1990s with an increasing sense of crisis. As the civil justice system in many common law countries was perceived to have become too labor intensive, too costly, and too slow, reforms initiated in the United Kingdom under Lord Woolf successfully addressed cost issues. These ideas then spread to other jurisdic- tions, while other reform goals, such as delay reduction and procedural simpli�cation, also showed some results. Some civil law countries developed their own approaches and were able to address challenges successfully. In some other countries, the same period seems to have been characterized by increases in human and �nancial resources in the courts with little impact on challenges posed by caseload, delay, or lack of ac- cess. The more successful OECD judiciaries retained leadership of the reform process and were able to proactively shape and drive the reform process themselves. The more traditionally-minded systems, however, suffered from strong external pressures, which sometimes led to struggles with the executive. At best these struggles concluded with a stalemate, but with little or no improvement in the delivery of justice. The third chapter discusses the transition from traditional justice reform approaches in OECD countries to the NPM approaches that began in the 1990s. Initially, justice sec- tor institutions in many countries were reluctant to engage in NPM reforms out of a concern for institutional independence. Some of the resistance was also rooted in the conservative, legalistic, and non-managerial attitude of the legal profession. This re- sistance delayed, but could not prevent, the transition to performance-based reforms. Growing demands from the executive, legislative and external stakeholders made more fundamental reforms inevitable. In other cases, the reforms were driven from within the Judiciary itself. Funding mechanisms provided the critical nexus between judicial independence and accountability. On the one hand, there was a risk that funding mecha- nisms would become a tool in the hands of the executive to make the judiciary more sympathetic to the government’s agenda, particularly in highly polarized and politicized environments. On the other hand, excessive �nancial independence could be used by some judiciaries to shield themselves against legitimate reform efforts and reasonable expectations regarding performance. As explored in more detail below, different coun- tries took different paths to resolve this tension. The growing degree of European integration had also begun contributing to judicial re- form efforts, and the decisive role of regional organizations such as the European Union and the Council of Europe is by far more influential than that of their Latin American counterparts. It is also true, however, that because (among other things) of the limited number of official languages spoken in Latin America, the continent has a longer tradi- tion of cross-fertilization and sharing of experiences, while Europe had to create speci�c formal mechanisms and fora to encourage similar cross-country dialogues. For the European Union, the quality of justice and rule of law became a crucial element in the functioning of the common market. Moreover, the legal harmonization process within the E.U. also contributed to increasing awareness of, and cooperation in, this area. The rule of law also acquired a very prominent role in E.U. accession negotiations. A Mechanism for Cooperation and Veri�cation was put in place for some new member states where the situation with respect to justice and rule of law was still considered to be problematic post-accession. More recent developments point to a slow shift from normative reforms aimed at ensuring compliance with the acquis communautaire to a more empirically based approach looking at the actual implementation of these norms on the ground. The Council of Europe has been actively engaged in the justice �eld by setting standards, gathering cross-country data, undertaking research and developing tools to improve the functioning of the justice sector. The core standard, namely the right to a fair trial within reasonable time, is set out in article 6 of the European Convention on Human Rights. The European Court of Human Rights in Strasbourg receives and adjudicates complaints about violations of the Convention and has established detailed case-law related to it. Ever since the 1990s, the Court has been facing an exponentially increasing case-load, thus threatening its ability to function. In 2002, the Council of Europe’s European Com- mission for the Efficiency of Justice (CEPEJ) was created in an attempt to prevent this workload from increasing further. Today, CEPEJ is largely operating as a think tank by: generating cross-country comparative data about the functioning of the justice system in its 47 member states, undertaking in-depth research and analysis, and developing practical tools to address dysfunctions in the courts. By making cross-country data avail- able about justice sector issues, CEPEJ has signi�cantly contributed to generating much needed momentum for reform. The initial focus on quantitative data and the supply side of justice has more recently been complemented by initiatives to tackle the demand side of justice as well as the quality of judicial services. The fourth chapter presents �ve major cases of reforms in public expenditure, human resources, and organizational restructuring in the justice sectors of �ve different coun- tries. In the United Kingdom, judicial reform efforts targeted resource allocation mech- anisms. The judiciary is involved in resource planning, but the executive has the last word with respect to priorities. A government decision to make the civil justice system self-�nancing by establishing the principle of full cost-recovery has been implemented. In addition, the court fee system acted as a powerful disincentive to the growth in litiga- tion, one of the achievements of the reforms initiated under Lord Woolf. France introduced program budgeting throughout its public sector, including the jus- tice system. The de�nition of performance indicators was one of the most challenging aspects of the new systems and the one that justice sector practitioners opposed most strongly. While measuring court productivity was relatively straight-forward, quality as- sessments proved substantially more complex. Cost control was a clear initial bene�t of the new budgetary approach, whereas performance contracts have had some impact on delay and backlogs. In Spain, an incentive-based salary system for judges was short-lived due the Constitu- tional Court’s concerns for judicial independence. Under the leadership of the Judiciary, the Netherlands embraced NPM approaches by linking court budgets with performance. The creation of a new Judicial Council in charge of the courts’ management strengthened judicial independence but also increased management responsibility. A comprehensive court evaluation system started to operate in 2002 based on quality control standards. The reforms have resulted in improvements in productivity and cost effectiveness, but the courts remain concerned about their ability to continually improve the quality of their work. In the U.S., the Trial Court Performance Standards developed in 1990 repre- sented the �rst comprehensive framework to introduce performance measurement in the court system, but was too complex for day-to-day use. The challenges surrounding implementation led to the development of a simpli�ed tool. The �fth chapter describes recent trends in OECD countries regarding quality controls in court service delivery which share approaches with the private sector. Various models were developed focusing on setting standards for quality, quality control and quality as- surance, quality improvement, and client feedback. These models are comprehensive in that they do not simply focus on the �nal product or service, but are designed to take the overall “production� process into account in order to facilitate continuous improvement. Courts in various OECD countries have focused on improving the quality of their servic- es through quality assessments, court performance measurement frameworks, bench- marking circles, court user surveys, and mechanisms of internal and external dialogue. The International Framework for Court Excellence inspired by approaches developed in Australia, Europe, North America and Singapore was launched in 2008. It allows for the assessment of court performance against seven detailed areas of court excellence. These measureable areas are based on commonly accepted court values such as equal- ity, fairness, impartiality, independence, competence, integrity, transparency, accessi- bility, timeliness and certainty. The Framework uses a balanced scorecard to facilitate self-assessments. It acknowledges that the effective implementation of improvement initiatives is a gradual process which requires the collection of data measuring both quantity and quality of justice services provided. The paper concludes with some suggestions about areas where Latin American judicia- ries may bene�t from experiences of OECD countries. The success of justice sector re- forms depends on cooperation of a range of institutional actors that only strong reform leaders can build. Ownership of, and support for, the reform process by the judiciary is essential to avoid deadlock and to sustain the reforms in the long-term. Feedback and performance data are key features of successful reform efforts, but they entail a risk of politicization. A sound and balanced set of indicators is crucial when linking budgetary and performance information. At the same time, basic efficiency and integrity standards must be reached before moving into complex quality enhancement programs. After decades of mixed reviews, justice sector institutions in Latin America face the challenge of delivering on the promises made to improve performance1 to ever more demanding populations. The main questions posed by sector leadership and external stakeholders are: how to improve the quality of service delivery? How can the bar be raised for the courts to reach or surpass the standards of other public sector agencies? To answer these questions, Latin American justice institutions have always looked at the experience of other developing and developed countries.2 The courts in a number of member countries of the Organization for Economic Coopera- tion and Development (OECD) have also undergone large scale reform programs, not only reflecting the performance-based approaches of New Public Management (NPM)3 but also sharing private sector practices. Terms such as client satisfaction, cost-bene�t- analysis, total quality management and performance evaluation that originated in the private sector are now commonly applied to justice institutions in many OECD coun- tries. For almost two decades justice authorities in these countries have been trying to increase the performance of their own courts. Some were more successful than others. Either way, a wealth of experience about how, (and how not) to approach court perfor- mance has been generated and can be utilized for cross-country learning.4 In recent years, the focus of reforms has shifted increasingly from quantitative ap- proaches to quality management. Radical changes have also taken place in the organiza- tional culture of judicial institutions as they steer towards providing better services for citizens and society as a whole. Justice reformers in Latin America should not be surprised to �nd that some OECD countries are still struggling to face the same issues as them. Justice institutions gener- ally have a complex setup in which the dysfunctions of a single agency (for instance, the prosecutors) can generate externalities which quickly and negatively impact the perfor- mance of other agencies (for instance, the courts) that have little power to correct such 1 The terms “performance� and “responsiveness� are used in this paper with the meaning proposed in Manning 2009: 21, 22. 2 Lora 2007: 50-51. 3 As de�ned in Manning 2009: viii “a management culture that emphasizes the centrality of the citizen or customer, as well as the accountability for results.� 4 “There are clouds on the OECD public management horizon. In sharing experiences from the OECD it is important to note that not everything in the public management agenda is rosy or easily predictable.� Manning 2009:117. dysfunctions.5 However, in designing their own solutions, Latin American reformers may �nd a useful reference in the experience of some OECD countries vis-à-vis similar chal- lenges. In the same way, however, that legal reforms cannot simply be transplanted from one country to another, any lesson learned from OECD countries should be carefully adapted to the realities of Latin American justice institutions, which have a different his- tory and reflect different social and economic realities. In particular, lessons from OECD countries may be useful to avoid generating unmanageable expectations or raising the bar too high, as some of the cases discussed in this report will show.6 This paper presents a selection of experiences from OECD countries in managing jus- tice sector institutions, (mainly the courts). Experiences were selected because they were considered to be the most germane to Latin American reformers when reforming their own, corresponding, institutions. These considerations, along with time and space limitations meant that other signi�cant aspects of the reform experience such as law reforms, judicial training, or access for the poor were not addressed. The fascinating dis- cussion about potentially conflicting concepts of “rule of law� in certain Latin American countries also had to remain unaddressed in order to keep the focus on the more tech- nical aspects of measuring or improving performance. This paper is, thus, not intended as a comprehensive review, but rather as a collection and analysis of short case studies that reformers in Latin America may �nd of interest in the design of their own reform proposals. The authors’ applied selection criteria based on their direct contacts with the OECD and Latin American countries’ experiences. The scope of the paper is primarily limited to the courts, yet addresses all types of courts: specialized courts as well as courts of general jurisdiction, civil as well as criminal and administrative courts, �rst instance as well as appellate and supreme courts. Of course a variety of other institutions are involved in the governance of the justice sector and, ultimately, the service delivery chain is only as good as its weakest link. Each part of the chain has different incentives and governance structures; however, looking at all of them in depth would be beyond the scope of this paper. Given that the courts are at the core of the justice sector, a special focus on them seems justi�ed and is, thus, the primary subject of this paper, with only cursory references made to Ministries of Justice, Public Prosecutors or Public Defenders. 5 In general, most justice sector institutions qualify as “high threshold for structural change/complex po- litical control� agencies (like Supreme Audit Institutions and Central Banks) with the consequent “high institutional continuity� and “low responsiveness� results. See Manning 2009: 40. 6 The OECD countries are not a homogeneous group. Their public sector traditions, histories, and levels of institutional capacity are not the same. From a number of experiences, this report has selected the aspects that the authors believe are most easily applicable to Latin America, in particular from Western European countries which share a civil law tradition with Latin American countries. As a consequence, some countries or experiences have only cursory treatment and others could not even be considered. Conversely, an in-depth review of non-Western European countries belonging to the common law tradi- tion would be required to ascertain the most relevant experiences for the English-speaking Caribbean countries, a sub-region that certainly deserves a separate treatment. The �rst chapter provides an overview of the justice reform experience in Latin America during the last two decades, and the latest trends in establishing reforms which are parallel to those of the OECD countries; it also identi�es common features of and sig- ni�cant departures between OECD and Latin American reform trends in the justice sec- tor. The second chapter outlines the context of the debates on justice reform in OECD countries, speci�cally regarding the performance and quality of justice services before the 1990s. The third chapter discusses the transition from traditional justice reform ap- proaches in OECD countries to NPM approaches that began in the 1990s and the fourth chapter presents �ve major cases of reforms directed at public expenditure, human re- sources, and organizational restructuring. The �fth chapter describes recent trends in OECD countries to incorporate approaches from the private sector regarding quality controls to court service delivery. It will also summarize the main features of the most recent tool for quality management in the courts, namely the International Framework for Court Excellence. The paper concludes with some suggestions about areas where Latin American judiciaries may bene�t from experiences in OECD countries. 1. Latin America’s legal systems are based on the traditions of their former co- lonial powers but have developed their own distinct features. Latin American legal systems are based on the civil law tradition inherited from Spain, Portugal, France or the Netherlands during colonial times.8 The Spanish-speaking nations and Brazil have also been influenced by the U.S. legal system especially in regards to commercial law and judicial review powers. Latin American courts are used to exercising powers of judicial review, overturning laws or administrative decisions and responding to individual complaints via amparos or tutelas, designed to chal- lenge violations of fundamental rights through fast track procedures. 2. Recent legal reforms have been largely influenced by developments in cer- tain OECD countries. The earlier independence of the Spanish and Portuguese colonies partially isolated them from Western European trends, giving rise to a distinctly Latin American model that retained some colonial practices. Yet the effective implementation of these legal reforms was limited by the political insta- bility and social inequality which resulted, among other things, in high levels of in- formality --even affecting dispute resolution systems. More recently, the revisions of substantive and procedural codes have generally followed Western European models (in particular French, Italian Spanish and German precedents) and the in- troduction of judicial councils and constitutional courts after World War II was rapidly replicated in Latin America. The U.S. criminal procedures have influenced recent reforms in countries such as Bolivia, Chile, Colombia, Mexico and Panama. The elites of the legal profession in Latin America are often educated in the U.S. or Western Europe at the graduate level and develop close contacts with law �rms 7 Some of the information contained in this chapter was based on Hammergren (2007) and Hammergren (2008). 8 English-speaking Caribbean countries have common law systems, and follow British, U.S., Canadian, Australian and New Zealander developments closely. Caribbean Group for Cooperation in Economic Development (CFCED) (2000). and legal scholars in OECD countries. However, the conservative perspective of the legal profession has also been a major source of resistance to change in the Latin American justice sectors. 3. Institutional isolation was a key characteristic of the region’s justice sectors. No signi�cant reforms or major investments were made in the sector until the early 1960s, and then only fledgling changes were made. Justice was seen by so- ciety at large as a monopoly of the legal profession. The courts and other agen- cies remained state providers of justice services for citizens (especially in criminal justice), and provided work for the large number of the attorneys produced by local universities. Demand remained restricted, with services largely outside the reach of the majority of the population who could not afford to hire a lawyer to represent them and who, in any case, found it difficult to understand the workings of a system largely designed to service the preferences of the legal community. In countries with large indigenous populations, conflict resolution occurred through their own communal mechanisms. Alternative means, such as arbitration and me- diation slowly started to flourish, particularly among the business community. 4. The justice sectors in Latin America are comprised of a number of public/ non-public organizations involved in dispute resolution. Nowadays, the justice sector in Latin America is a complex set of public and non-public organizations that includes institutions involved in the law-based resolution of disputes. The court system retains a central role, but a number of public sector agencies are also major sector players: prosecutors and public defenders, the police, property and commercial registries, and administrative agencies with court-like functions, in particular for bankruptcy or insolvency cases (for instance, Supersociedades in Colombia or INDECOPI in Peru). Non-public organizations are also very active members the sector: the bar associations, law schools, chambers of commerce, and community justice operators provide key justice services such as legal aid and alternative dispute resolution (ADR) services. 5. The justice sector may have signi�cant economic and social impacts but its complex structure results in protracted decision-making processes. Courts in Latin America have broad constitutional mandates that sometimes extend to de- termining major economic or �nancial issues for the State (for instance, in Costa Rica) or determining how public funds should be allocated in the health and edu- cation sectors (for instance, in Colombia). Yet lengthy decision making processes are not unusual, with delays exceeding as much as 10 years in some cases, and posing serious structural challenges for some countries. Indeed, delays are the most common source of dissatisfaction with justice sector performance. 6. The Inter-American Legal System has developed key legal instruments to fa- cilitate international judicial cooperation and high-level consultations mech- anisms are producing interesting results. Several international conventions sponsored by the Organization of American States (OAS) govern the recognition and enforcement of judicial decisions among countries in the hemisphere. The Inter-American Human Rights Commission and Court have built up a solid body of jurisprudence that includes standards of fairness and access to justice. Moreover, the Center for Justice Studies of the Americas (CEJA) has conducted research and training programs for judicial officers and other justice sector operators in OAS member countries. Headquartered in Santiago, Chile, CEJA has continued evolv- ing towards a role analogous to that of CEPEJ in Europe, with the support of other donors active in the region serving as a “clearing house� of best practices and analytical tools. It has also proposed quality and performance standards, though they have yet to be approved by the countries. Periodic consultation mechanisms like the Justice Summit of the Americas or the Conference of Justice Ministers of Ibero-America have issued statements and declarations on particular aspects of the court systems’ operations as well as that of other sector agencies. 7. The 1980s transition to democracy generated citizen demand for justice re- forms. The latest wave of justice reforms that has passed through most countries in Latin America was originally one of the by-products of the Region’s democratic transition of the early 1980s. During this period, issues such as limited indepen- dence, perceptions of corruption, poor quality, and limited access were open to public debate after decades of military dictatorships. The performance and access issues were speci�cally linked to rules and practices, poorly prepared and under- paid staff, low budgets, and inadequate infrastructure and equipment.9 8. Justice reforms were also expected to deliver higher level political and eco- nomic bene�ts. Although most of the reform programs aimed at improving the performance of the court system and other dispute resolution institutions, they were also expected to enhance sector contributions to higher level objectives such as improved governance (including greater political stability, and reduction of crime and violence) and enhanced economic performance (higher growth, re- duced poverty, and equitable access by all citizens). The transition to democracy was a period of high expectations and reformers felt obliged to address the broad- est possible range of concerns in ambitious reform packages. 10 9. Reform programs most typically included organizational mechanisms and tools to modernize institutions and expand access. In pursuing sector reforms and their higher-level objectives, Latin American reformers focused on standard 9 This low starting point of most justice reforms in Latin America has to be taken into account while as- sessing the progress made in recent years. By the beginning of the 1980s most judiciaries in the Region were still at the level of “centralized power/patronage� and had not even reached the “due process� pu- blic service stage. Manning 2009: 9 and 20. Contrary to general public sector reform trends, the justice reforms carried under authoritarian rule have mostly failed, although the ones pursued during periods of democratic government have not always been successful. Spink 1999. 10 Rico 1997 organizational modernization tools including capacity building (professional de- velopment of sector staff, improved administrative systems), and mechanisms to expand access to all citizens (legal assistance, ADR, citizen information and edu- cation programs). The procedural reform experiences from Western Europe and the U.S. were considered a useful precedent, while performance-based reforms were mostly ignored. 10. The reforms required substantial investment programs with considerable �- nancial support of OECD donors and multilateral development banks (MDBs). Latin American countries invested signi�cant amounts in these reform programs, sometimes mandated by constitutional or legal reforms that allocated speci�c minimal percentages of the national budget to the operation of the judiciary and other sector agencies. In some cases this was well above the OECD average of 0.40% of GDP (See Figure 1). The United States Agency for International Develop- ment (USAID), the Inter-American Development Bank (IDB) and the World Bank were the principal external actors, joined at a later stage by the United Nations (UN) and the European Union (EU). Other bilateral donors (Britain, France, Ger- many, Spain) and foundations (Ford, DPLF) also made substantial contributions. 11 11. OECD bilateral donors have been active in the Latin American justice sectors pursuing their own assistance priorities. OECD bilateral donors have been sup- porting justice reforms in Latin America since the 1960s, initially within the frame- work of the Law and Development Movement that emphasized the reform of laws as part of the development process. In the early 1980s the main rationale for re- form was the connection between the justice sector and democratic governance: the courts were considered the weak pillar of democracy and, thus, the key to establishing politically stable regimes in the region. In the 1990s, the rationale for donor support changed: the justice sector provided a basic public service for citi- zens and enterprises that needed modernization. Some donors (the United States, Germany) preferred to focus on the criminal justice out of concerns for grow- ing trans-national crime and citizen insecurity. Other donors (European Union, France, Spain, United Kingdom) have kept a broader focus that allows them to work not only with sector institutions but also with the social dimension of justice (for instance, dispute resolution services for vulnerable groups such as indigenous peoples). 12. The MDBs arrived late to justice sector reform in Latin America but with larg- er programs. Until the early 1990s, the World Bank and the IDB did not pursue any direct work with branches of Governments other than the Executive. The neo- institutional economic theories on the connection between rule of law and mar- ket development provided a rationale for MDBs support in the broader context of the Washington consensus reforms. Subsequent studies by the MDBs12 attempted to establish statistical correlations between justice sectors and economic growth, 11 Inter-American Development Bank 2004; Biebesheimer and Payne 2001. 12 Kaufman et al. 2007 and earlier; World Bank 2004. and found relationships between rule of law and indicators of social welfare. More recently, the UN Legal Empowerment report13 has also emphasized a connection between justice institutions and poverty reduction. 13. Legal and institutional reforms have changed the structure and operations of the justice sector in Latin America. Reforms brought radical changes in the structure and operations of the justice sector in Latin America. The most drastic were legal and institutional, and included: (a) modernizing judicial councils, public defender and prosecution agencies (Attorney General’s Office or Public Ministry), ombudsperson offices, and anti-corruption offices; and (c) increasing the involve- ment of courts in protecting procedural and substantive laws particularly related to criminal justice;14 (b) creating new organizations such as constitutional courts or chambers, responsible for protecting constitutional rights and deciding on the constitutionality or legality of executive policies.15 14. Justice reforms have improved the quantity and quality of the resources avail- able to sector institutions. The justice sector’s �nancial and human resources augmented over the last years (See Figures 1 and 2). The judiciary, prosecution and public defenders, and the police have all bene�ted from increased budget alloca- tions. Staffing levels were brought in line with increased demand but an average of 8 judges per 100,000 inhabitants remains substantially lower than the aver- age for Western European countries (See Figure 3). Higher salaries have attracted more quali�ed professional staff. 16 13 United Nations 2008. 14 CEJA website at http://www.cejamericas.org. 15 DeShazo, Peter and Juan Enrique Vargas 2006. 16 World Bank 2009. Figure 1. Judiciary budget as percentage of GDP 1.40% 1.20% 1.00% 0.80% 0.60% 0.40% 0.20% 0.00% El Salvador Honduras Costa Rica Chile Panamá Source: CEJA, 2008 Figure 2. Total judicial budgets (current USD 1,000) 700,000 600,000 500,000 2006 400,000 2005 300,000 2004 200,000 100,000 0 ne y ia a in u Co ile ca s na H ala a Pa ua a Sa or Pa ma ay Ve ua at r Ec a Ni ura in m er Co mbi el liv Gu do ic Ch d ica g gu nt em ug Do P zu aR na ua Bo ra lva d ge lo ra on Ur st Ar El ica bl pu Re Source: CEJA, 200817 17 In this and subsequent tables, data from large federal countries (Argentina, Brazil and Mexico) has not been included when the available data does not aggregate state and federal courts in a way that allows comparisons with centralized countries. Figure 3. Number of judges per 100,000 population 20 18 16 14 12 10 8 6 4 2 0 or ca ua hile á na as la in a o d aR i ag am nica ur ema nt xic lva t r C n d e é Sa s ica Pa omi Hon uat Arg M El Co N D G li ca p úb Re Source: CEJA, 2008 15. Managerial and administrative reforms were less radical but still signi�cant. Although less ambitious, reforms at the managerial/administrative level also had a signi�cant impact in: (a) strengthening of internal administrative systems, through case tracking systems; (b) expanding the information made available to the public on caseload management and court administration, through ICT (See Figures 4 and 5); and (c) improving selection, promotion and disciplinary systems for sector professionals, in an effort to enhance staff pro�les and decrease politi- cal interference. 18 18 Due Process of Law Foundation 2007. 0% 10% 50% 30% 70% 20% 60% 80% 90% 40% 100% Costa Rica República Dominicana Chile Argentina Estados Unidos Source: CEJA, 2008 Perú Brasil Canadá Colombia México Panamá Ecuador Venezuela El Salvador Puerto Rico Paraguay Guatemala Honduras Antigua y Barbudas St, Kitts y Nevis St. Lucía St. Vicente y Grenadines Dominica Bolivia Granada Bahamas Uruguay Jamaica Nicaragua Trinidad y Tobago Belize Barbados Guyana Haití Suriname Figure 4. Global access to justice sector information through the internet (2008) Figure 5. Global access to justice sector information through the internet (2004- 2008 Changes) Variación 2004-2006 Variación 2006-2007 Variación 2007-2008 50% 40% 30% 20% 10% 0% -10% Brasil Perú Guatemala St. Lucía Dominica Granada Panamá Nicaragua Bolivia Colombia Canadá Jamaica Argentina Guyana Costa Rica Venezuela República Dominicana St. Vicente y Grenadines Belize Suriname Antigua y Barbudas St, Kitts y Nevis Bahamas Chile Honduras Estados Unidos Barbados Trinidad y Tobago México Uruguay Ecuador Puerto Rico El Salvador Haití Paraguay -20% -30% Source: CEJA, 2008 16. Justice reforms bene�ted external users and set the ground for further re- forms. The reforms generated tangible bene�ts for users. In general, improve- ments in sector inputs/outputs led to substantial progress in terms of: (a) address- ing human rights abuses; (b) controlling external influences; (c) reducing delays in handling cases and the associated transaction/opportunity costs for users; and (d) facilitating access for vulnerable citizens and private sector actors. The progress made has also set the basis for planning/implementing more ambitious changes, while generating demand for deeper reforms from external users. Additional de- mand, as evidenced by litigiousness rates, was substantially higher than those of top performing European OECD countries (See Figure No. 6). This suggests that higher public trust may lead to more intensive use of justice institutions at the risk of eroding the efficiency gains of some reforms.19 19 Manning 2009. In that paper, public trust is considered a proxy for administrative legitimacy. Figure 6. Litigiousness rate (Number of incoming cases per 100,000 inhabitants) Honduras Paraguay Ecuador El Salvador Argentina Guatemala Colombia Republica Dominicana Brazil Panama Bolivia Peru Uruguay Costa Rica Chile 0 5,000 10,000 15,000 Source: CEJA, 2008 17. The broad scope of reform programs made them both difficult to evaluate and vulnerable to criticism. The activities included in Latin American justice reforms covered a broad range and a variety of purposes. This wide scope may have worked against the programs’ ability to make or track speci�c improvements. It has also made some programs more vulnerable to criticism, either of the reform leader- ship (when political conflicts arise about the potential social and economic effects of the reform) or of the supporting donor (when programs are seen as advanc- ing the interests of investors over those of the country). The high level impacts anticipated from the reforms (e.g. on political stability or economic and social development) were not easy to measure. Over-selling the reforms with objectives that were difficult or impossible to measure may have also generated skepticism about real impacts or tangible results. The fact, for example, that Latin American countries still rank very low in the worldwide Doing Business indicator of contract enforcement suggests that private sector stakeholders remain dissatis�ed with the services received from the court system (see Figure 7). Figure 7. Doing Business 2009– Contract enforcement (World rankings of Latin American and Caribbean countries) Argentina 45 El Salvador 53 Chile 65 Nicaragua 66 Venezuela 71 México 79 República Dominicana 83 Uruguay 99 Brasil 100 Ecuador 101 Paraguay 103 Guatemala 106 Panamá 116 Perú 119 Jamaica 127 Costa Rica 132 Bolivia 133 Colombia 149 Honduras 176 0 50 100 150 200 Source: Doing Business, 2009 It is estimated that, on average, it takes 707 days to enforce a standard commercial con- tract through the courts in Latin America and the Caribbean, as opposed to 462 days in OECD countries. Not only is this slower, but also more expensive than OECD countries. The overall costs equal about 19% of the value of the claim in OECD countries, as com- pared to more than 31% in Latin American and the Caribbean. 18. Unanticipated contradictions between objectives and instruments may be the main reason for limited results in some areas. Output/outcome shortfalls have also been attributed to reform design issues related to unanticipated con- flicts between objectives and instruments: efforts to increase budgetary au- tonomy through cost-recovery fees may limit access, increases in access may ag- gravate delays and congestion, and greater independence may counter efforts to combat corruption. The uneven performance of various countries as measured by the clearance rate indicator suggests that the same type of reforms may yield very different results in different countries and that some improvements are not sustainable over time (See Figures 8 and 9). Figure 8. Clearance rate 2004-2006 (Selected countries) 3 2.5 2 2006 1.5 2005 1 2004 0.5 0 Argentina Bolivia Brazil Chile Colombia Costa Rica Ecuador El Salvador Guatemala Honduras Mexico Panama Paraguay Peru Republica Dominican 2006 104% 56% 99% 77% 135% 2005 101% 247% 112% 107% 102% 128% 81% 65% 58% 98% 89% 86% 84% 97% 2004 87% 190% 124% 124% 103% 100% 111% 91% 31% 65% 97% 104% 100% Source: CEJA, 2008 Figure 9. Total number of outgoing cases Republica Dominicana Peru Paraguay Panama Mexico Honduras 2004 Guatemala 2005 El Salvador 2006 Ecuador Costa Rica Colombia Chile Bolivia Argentina 0 500000 1000000 1500000 2000000 Source: CEJA, 2008 19. The disconnect between higher costs and unmet demand in service provision remains unaddressed. The main dissatisfaction with recent reforms is the intrac- table disconnect between the costs of sector operations and the gap in services supply-demand revealed by higher backlogs in a number of countries in the Re- gion (see Figure 10). While most of the sector budget is spent on salaries, which have increased substantially, the supply for justice services has not matched the demand, suggesting that further reforms are needed on the side of expenditure efficiency. Figure 10. End-of-year backlog 2000000 1800000 1600000 1400000 1200000 2006 1000000 2005 800000 2004 600000 400000 200000 0 Costa Bolivia Ecuador Panama Peru Rica Source: CEJA, 2008 20.A new balance between institutional independence and accountability has to be found. Other branches of government as well as citizens are demanding greater accountability for sector resources and actions. As agencies are bestowed with higher budgets and more independence, they should make responsible and transparent use of these resources, and account for their use. Progress in this area has been limited and requires the commitment of the highest levels of the sector governance bodies. 21. The reform process has been influenced by powerful vested interests within the justice sector. Judges, prosecutors, public defenders, and bar associations have been especially active in shaping reforms, particularly through procedural codes that frequently reflect their views and interests. Self-interested rulings and lobbying have also been common tools in reform processes. Lawyers in particular have remained a major reform constituency, and in some cases have successfully blocked changes affecting their economic interests including broader pro se rep- resentation, higher court fees or limited appeals. 22. Conflicting interpretations about the new institutional framework have led to frequent conflicts within the justice sector and/or with other branches. The reforms have changed the sector’s checks and balances. Disputes between sec- tor organizations and other branches of government around modi�ed legal and constitutional frameworks have become frequent in such countries as Bolivia, Ec- uador, Colombia, Costa Rica and the Dominican Republic. While many of these are only the short-term consequences of organizational adjustments to new roles and responsibilities, others arise from fundamental disagreements about how the new distribution of functions and balance of power are exercised. 20 23. Justice sector agencies have a strong impact on societal perceptions and be- haviors in Latin America. Seeking to provide a broader justi�cation for justice sector reform, numerous public opinion studies done in the region over the past few years have attempted to trace the relationships between the justice sector and citizens’ perceptions about governance and the rule of law. It has proven difficult to directly attribute changes in these areas to the justice sector alone because there are many other contributing factors. However, one area has been found where the linkages are clear: the perceptions about the state’s ability to enforce laws (Figure 11). According to the Latinobarómetro, since 2004 there has been only a modest increase in the perception that laws are enforced in the region (from 4.5 to 5.2 on average). 20 Pásara, Luis 2004 in Hammergren 2007. Figure 11. States’ ability to enforce laws, 2008: Question: “the State assures the compliance with every law,� ranked 1 (no ability) to 10 (high ability). Latin America 5.2 Uruguay 6.4 Ecuador 5.8 Colombia 5.7 Chile 5.6 Venezuela 5.5 El Salvador 5.5 Costa Rica 5.3 Mexico 5.2 Bolivia 5.2 Dominican Republic 5.2 Nicaragua 5.1 Argentina 4.9 Brazil 4.8 Guatemala 4.7 Panama 4.7 Honduras 4.6 Peru 4.4 Paraguay 0 1 2 3 4 5 6 7 Source: Latinobarómetro 2008-2009 24.The con�dence of legislators in the judiciary is another indicator of levels of societal pressure to undertake reforms. In Figure 12, the highest-scoring countries (Chile, Costa Rica and Uruguay) appear at the upper end, and the gaps between them and the lowest-scoring countries are greater than in citizen per- ceptions. Some high scores (Mexico, Honduras, the Dominican Republic) may co- incide with recent justice sector reforms, in which the Congress or the ruling party were involved, suggesting that members of the political branch of government are sensitive to the electorate’s demand for justice reform. 25. Perceptions of citizens as to the quality of rule of law show consistently good performers, but also some downward trends. According to perception data, there is less public trust in the rule of law in most countries, an indicator in which the performance of the courts and other sector institutions factors signi�cantly. Because no data is available from earlier periods, it is not possible to determine whether, in the long-term, Latin American justice reforms have produced some improvements to this critical perception. Countries such as Costa Rica, Chile, and Uruguay receive consistently high ratings (Figure 13) while others record serious deterioration in citizen perceptions about the justice institutions. Overall the con�dence in the judiciary has remained stable during the past 13 years though with some clear downward trends (Figure 14). In the same period judiciaries have ranked among the lowest in public con�dence (only above political parties) when compared with other institutions. The Catholic Church continues to be the most trusted institution and the most notable improvements in trust have been achieved by the Governments (Figure 15). Figure 12. Con�dence in the Judiciary by Congresses (2006) Percentage of Congress members that trust the Judiciary 100 90 80 80 80 67 68 60 46 37 39 40 24 25 26 27 18 22 22 20 11 12 5 0 Argentina Costa Rica Nicaragua Colombia Perú Guatemala Honduras Bolivia México Chile Uruguay Venezuela Panamá Paraguay El Salvador Dominican R. Average L.A Ecuador Source: Instituto Interuniversitario de Iberoamérica de la Universidad de Salamanca, Observatory of Parliamentary Elites in Latin America, Parliamentary Elites Boletin No. 9, Evaluation of Public Institutions: The Judiciary, Spain, 2006 26. In spite of some progress in functional performance, public trust has not im- proved as expected. The reforms may have overcome some operational weak- nesses of the justice sector, but justice issues continue to be high on the agenda. Despite the emphasis on criminal justice, crime rates keep growing while impu- nity of organized crime and corrupt politicians are unabated. Not surprisingly, public trust has not increased and in most countries perceptions about the sector have worsened. Only in a few countries (Chile, Costa Rica and Uruguay) with a strong tradition of legitimacy and credibility, does citizen trust in justice institu- tions remains relatively high. Citizens’ skepticism may be related to the fact that corruption continues to be an issue or that political interference has not disap- peared altogether.21 21 Due Process of Law Foundation 2007a; Grafe 2009. Figure 13. Rule of law in Latin America from 1996 -2008 (percentile rank)22 2008 1996 100 80 60 40 20 0 Source: World Bank Governance Indicators, 2008 Figure 14. Evolution of the Con�dence in the Judiciary in Latin American countries, 1996 -2009 40 30 20 33 36 32 34 32 32 30 32 10 27 25 0 20 Source: Latinobarómetro, 2009 Figure 15. Con�dence in the Judiciary in Latin American countries compared to oth- er institutions (1996-2009) 1996 2009 76 68 80 56 60 45 41 45 49 50 54 40 20 24 33 32 27 34 30 34 27 34 28 20 0 Source: Latinobarometro, 2009 22 Figure 13 ranks countries from 0-100 by indicating the percentage of countries worldwide that rate below the selected country. Scores reflect the statistical compilation of responses on rule-of-law quality conducted by various survey institutes, think tanks, non-governmental organizations, and international organizations. Countries’ relative positions are subject to margins of error as discussed in Kaufman et al (2004). 27. Vastly differing histories and legal traditions have shaped the justice systems in OECD countries.23 Although they are all high income or upper middle-income countries, they are far from homogenous.24 Their legal systems belong to differ- ent branches of the civil and law families, including the continental European civil law tradition (Austria, Belgium, Finland, France, Germany, Greece, Iceland, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and Tur- key), non-European civil law countries whose systems are inspired by the con- tinental European ones (Japan, Korea, Mexico), European countries with a civil law origin combined with a more recent influence of post-communist transition (Czech Republic, Hungary, Poland, Slovak Republic), and the common law family (Australia, Canada, Ireland, New Zealand, United Kingdom, and United States).25 28. Increased globalization has led to some common trends and cross-fertiliza- tion, but the structure and performance of these systems continues to vary. The comparability of quantitative cross-country data about the structure of the justice system is limited because of a lack of common de�nitions and statistical 23 For ease of comparison most data in this document refers to European members of the OECD. Data from other countries like the U.S., Canada, Australia or New Zealand is presented only as a general refe- rence and is not fully comparable. 24 Current members are Australia, Austria, Belgium, Canada, Czech Republic, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Slovak Republic, Spain, Sweden, Switzerland, Turkey, United Kingdom, and United States. Current accession candidate countries are Chile, Estonia, Israel, Russia, and Slovenia. 25 This grouping into “legal families� is not as clear cut as it may seem. Many of these systems have expe- rienced cross-fertilization in some areas, but not in others. Also, the distinction is largely based on an analysis of countries’ civil (as opposed to criminal or administrative) law system. Please note that the name for the “continental European civil law countries� is a well established convention and generally used to distinguish them from “common law� countries, but sometimes misleading, because “civil law� is the term otherwise used to distinguish this area of law from criminal or administrative law – in conti- nental European civil law countries as well as common law countries. systems.26 Comparable cross-country data about judicial performance are excep- tionally rare. At times, trust in the justice system is used by some as a proxy for performance because it seems reasonable to assume that trust in poorly perform- ing systems is lower than trust in well performing systems. However, trust is also affected by many other factors such as scandals, press coverage, variations in trust of government in general etc. For example, the Fall 2009 Eurobarometer shows, as many would expect, that eight out of ten respondents in Denmark are satis�ed with the courts, which is similar to Finland (74%) and Austria (67%). The scores for (former) transition countries are intuitively lower: Bulgaria (17%), Croatia (15%), Latvia (26%), Lithuania (15%), Macedonia (20%), Romania (28%), and Slovenia (19 %), even for those now members of the OECD, such as the Czech Republic (29%), Poland (31%), and Slovakia (29%). In Turkey, 65% of respondents have trust in the justice system.27 These ratings roughly coincide with the country ratings in Trans- parency International’s Corruption Perception Index28 and the scorecards estab- lished by Global Integrity.29 However, Eurobarometer also shows that upward or downward ratings can fluctuate signi�cantly and are subject to factors other than performance. Compared to six months earlier, trust in the courts had decreased by 13 points in the Netherlands and Sweden, by 11 points in France, Slovenia, and the Czech Republic, by 9 points in Lithuania, and by 8 points in Malta, whereas trust in the Greek courts went up by 8 points.30 It is unlikely that court perfor- mance has changed as dramatically over this period of time. 29. Available data about aspects such as costs and delay point to differences in the performance of courts across OECD countries, even among those with the same legal tradition. The cross-country data of the World Bank’s Doing Business series indicate that when it comes to enforcing a commercial case through the court system, there are signi�cant differences across OECD countries. Luxem- bourg and Italy are two extremes with respect to the ease of enforcing contracts, although they are both members of the EU and, more speci�cally, the civil law tradition. Out of 181 economies, Luxembourg ranks 2nd and Italy 156th. Enforcing contracts is cheaper in Luxembourg than anywhere else among the OECD coun- tries. It is most expensive to enforce a contract in Italy. Despite different legal tra- ditions, Denmark and the United Kingdom have very similar scores with respect to all three variables (number of procedures, time, and cost).31 26 In Europe, the comparability has improved since the CEPEJ has started their cross-country comparative statistics based on common de�nitions in 2004, but even when similar data, for example about case- load, is available for non-European OECD countries, extreme caution has to be used when interpreting it, because underlying de�nitions may be different. 27 Eurobaromètre 2009: 122. 28 See Transparency International’s website at http://www.transparency.org. 29 See Global Integrity’s website at http://www.globalintegrity.org. 30 Eurobaromètre 2009: 122. 31 The entire Doing Business dataset is available online at http://www.doingbusiness.org. 30. The extent to which people use the courts varies signi�cantly across OECD countries. The number of incoming �rst instance cases per 100,000 inhabitants in European OECD countries clearly shows a wide range of court use per popu- lation.32 A regional preference for out-of-court settlements may explain the loca- tion of Scandinavian countries at the lowest level of the litigiousness rate. Apart from that, the available data below is inconclusive and does not suggest a cor- relation with income per capita or recent regime changes (long time EU member states versus transition countries). There is no clear divide in this respect between Northern and Southern Europe either.33 31. There are also differences in the size and structure of the court systems. The number of court locations per number of inhabitants varies across European OECD countries. These differences do not seem to be correlated with the density of population, the size of the country, or the number of cases per inhabitant. Ad- ditional information on historical traditions and sub-national pressures for wider coverage may be required to interpret this institutional landscape:34 Map 1. Court locations per 100,000 inhabitants (2006) Source: CEPEJ 2008 32 Only additional empirical research could explain these variances. It would have to cover the entire spec- trum of judiciable disputes and the way they do or do not get resolved, including through ADR mecha- nisms, similar to the empirical research undertaken by Genn 1999 for England and Wales. 33 CEPEJ 2008: 132. 34 CEPEJ 2008: 80. Figure 16. Ease of Enforcing Contracts (Doing Business in 2010) Enforcing Contracts Economy Cost (% of Rank Procedures (number) Time (days) claim) Luxembourg 2 26 321 8.8 Iceland 3 26 393 6.2 Finland 5 32 235 10.4 United States 6 32 300 9.4 Norway 7 33 310 9.9 Korea 8 35 230 10.3 Germany 9 30 394 14.4 France 10 30 331 17.4 New Zealand 11 30 216 22 Hungary 12 33 335 13 Austria 13 25 505 16.6 Australia 21 28 395 20.7 Japan 21 30 316 22.7 Belgium 22 25 505 16.6 United Kingdom 24 30 404 23.4 Denmark 29 34 380 23.3 Switzerland 32 32 417 24 Netherlands 34 25 514 24.4 Portugal 34 34 577 14.2 Ireland 39 20 515 26.9 Slovakia 47 30 565 25.7 Spain 54 39 515 17.2 Sweden 55 30 508 31.3 Canada 58 36 570 22.3 e Greec 85 39 819 14.4 Czech Republic 95 27 820 33 Italy 156 41 1,210 29.9 Source: Doing Business in 2010. Figure 17. Use of courts per population Number of litigious inc oming first instance c ases Italy Czech Republic UK Scotland Spain Slovakia Hungary Germany Sweden Finland 0 2000 4000 6000 8000 Source: CEPEJ 2008 32. The number of judges also varies signi�cantly from country to country. The following table shows the number of professional full-time judges (as opposed to lay judges) per 100,000 inhabitants across the European countries of the OECD. Again, this data may reflect different societal preferences, historical develop- ments, and political decisions, but not necessarily cost-bene�t analyses. Interest- ingly, no clear correlation between the number of judges and the number of liti- gious cases35 as shown above (Figure 17) can be established:36 35 This category comprises all cases other than the cases in matters of non-contentious jurisdiction. The latter include matters relating to probate, guardianship, and various public registers. 36 CEPEJ 2008: 110. Figure 18. Number of judges per population FTE number o f pr ofessional judg es per 100,000 inhabitants UK-Scotland UK-England & Wales Spain Italy Netherlands Belgium Switzerland Portugal Austria Germany Poland Greece Luxembourg 0 10 20 30 40 Source: CEPEJ 2008 33. Some countries make more use of lay judges than others. This also highlights structural differences in the supply side of the justice sector. An overview of the number of lay judges (as part of the formal justice sector) per professional judge in selected countries suggests a stronger presence of societal representation in the settlement of disputes in the United Kingdom and Northern European countries as opposed to a preference for adjudication by specialized experts, i.e. profes- sional judges, in Southern European countries:37 37 CEPEJ 2008: 113. Figure 19. Number of lay judges per professional judge Number of lay judges per professional judge Portugal France Luxembourg Italy Hungary Belgium Spain UK-Northern Ireland Czech Republic UK-Scotland Finland Poland Germany Sweden UK-England & Wales 0 10 Source: CEPEJ 2008 34. The number of support (non-judge) staff, essential for the day-to-day func- tioning of the courts, also shows signi�cant variation. There are signi�cant dif- ferences among OECD countries in the number of support staff and their ratio per judge. This may reflect differences in division of labor, administrative traditions, societal standing of judges or other aspects enabling the judiciary in some coun- tries to make the case for higher ratios of support staff not necessarily connected with efficiency or quality considerations. The role of unions or professional asso- ciations would also have to be explored:38 38 CEPEJ 2008: 122. Figure 20. Number of administrative staff per judge Number of non - judge staff per professional judge Iceland Luxembourg Norway France Netherlands Sweden Hungary Austria Finland Germany Czech Republic Slovakia Poland Switzerland Turkey Belgium Portugal Denmark Italy UK-Scotland UK-England and Wales Ireland Spain - 2.00 4.00 6.00 8.00 10.00 Source: CEPEJ 2008 Figure 21. Annual public budget (courts, prosecution, legal aid) as a percentage of GDP per capita Source: CEPEJ 2008 35. The amount of the judicial budget also varies across OECD countries. The amount of the annual public budget for the courts, prosecution services and legal aid as a percentage of GDP per capita varies substantially, as indicated by data for 2008 from the Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ). Not surprisingly, some countries that have recently experienced violent conflicts still record a very high percentage, which may reflect donor sup- port for institution-building efforts in the justice sector:39 36. The amounts allocated to different institutions within the justice sector also vary. The European data available on expenditures for the courts, prosecution and legal aid show structural differences and divergent spending priorities. The United Kingdom, for example, has a policy of full cost recovery for the civil courts and has high spending for legal aid services40 which may explain why the composition of its budget looks signi�cantly different from most continental European systems:41 37. Salaries of judges across various OECD countries also highlight structural dif- ferences. It is useful in this context to look at the salary at the start of a judge’s career and the salary for the highest judicial position in the country and then to compare that to the average gross annual salary. This comparison enables the identi�cation of wage compression issues. Again, the case of the United Kingdom stands out vis-à-vis continental Europe in terms of higher salaries and substan- tially less compression. The reason is that a judge in the United Kingdom enters the profession after an extensive career as a lawyer. There are fewer of them as compared to other countries, and the system makes wider use of lay judges. In civil law countries, the salaries are lower on average, because law school gradu- ates enter the profession at a much younger age, after some form of traineeship. The situation of some Eastern European countries may reflect budget constraints and different labor market structures:42 39 CEPEJ 2008: 45. As explained in Manning 2009: 26 most OECD countries require the consideration of performance targets and past performance information during budget preparation but this is not the sole or predominant factor in formulating budgets. 40 With further insights: Genn 2010. 41 CEPEJ 2008: 46. 42 CEPEJ 2008: 187. Figure 22. Expenditure for courts, prosecution, legal aid Source: CEPEJ 2008 38. The number of lawyers also varies from country to country even among coun- tries of the same legal tradition. Although this number may be public budget neutral, the differences among countries are nonetheless signi�cant, in particu- lar because of its potential connection with litigiousness rates and price levels for attorney services. The on average higher number of lawyers per inhabitant roughly indicates a North-South divide in European OECD countries, which some attribute to a culture favoring litigation in Southern Europe. However, the data in �gure 17 does not support this argument. Even if there were a correlation, it would not be clear how the correlation runs, or if it rises to the level of causality. Other factors may also blur the picture.43 39. Court systems in OECD countries are not homogeneous and feature substan- tial differences, but certain common trends in improving justice sector per- formance have emerged over the last decades. Despite sometimes signi�cant differences in structure and legal tradition, a series of common developments and cross-fertilization across different court systems have been observed in the EU, especially in recent years as a result of the accession process and adoption of common standards and benchmarks. Nevertheless, some caution has to be ex- ercised when making cross country analysis because: (a) solutions suitable for one country may not be transferred to another country without adjusting the ap- proach to the very speci�c context of the other country—i.e. cross-fertilization is possible, but requires context speci�c adaptation in order to be successful; (b) cross-country comparisons of justice systems are challenging because of the structural differences and the still limited availability of meaningful cross-country data about the performance of justice systems. If cross-country data is available at all, it tends to focus on the supply side of justice, but does not deal with the demand side of justice, namely, the types of issues citizens would need the justice sector to resolve, and the extent to which the sectors of different countries are able to meet this demand. 43 CEPEJ 2008: 214. Figure 23. Gross annual salary of a judge at different career stages compared to av- erage gross annual salary Source: CEPEJ 2008 Figure 24. Number of lawyers per 100,000 inhabitants Number of lawyers per 100,000 inhabitants UK-Scotland UK-England and Wales UK-Northern Ireland Finland Ireland Sweden Poland France Turkey Slovakia Czech Republic Monaco Austria Denmark Netherlands Hungary Switzerland Norway Belgium Iceland Germany Portugal Spain Luxembourg Italy Greece 0 50 100 150 200 250 300 350 400 Source: CEPEJ 2008 40. New Public Management (NPM) proposed a radical new focus on service delivery and cost-effectiveness in order to change public sector organization and culture. In the early 1980s a new wave of reforms in the broader public sec- tor started across most OECD countries. Under the broad label of NPM, new ap- proaches started to be developed and implemented. The overall theme of these reforms was an increase the efficiency in the use of public resources, through: (a) service delivery promises to clients in the form of measurable outputs; and (b) delivery of these outputs in a cost-effective manner. To be effective, this output- focused approach required the measurement of results and the use of such mea- surements for management purposes. The increasing use of the potential of mod- ern information and communication technology (ICT) facilitated and reinforced this reform approach. A new management culture for the public sector emerged emphasizing the centrality of the citizen or customer, as well as accountability for results of public sector operators. Structural or organizational choices were tested to promote decentralized control through a wide variety of alternative ser- vice delivery mechanisms, including quasi-markets with public and private service providers competing for resources from policymakers and donors. The intended result was a more efficient use of scarce public resources.44 41. A cornerstone of NPM was a comprehensive approach that converted bud- geting into a powerful monitoring and evaluation tool. NPM also changed the budget management approach by integrating the functions of planning, program- ming, and evaluation with budgeting. The intention was to enable politicians and policy-makers to refocus resources on priority areas, introducing new budget rules that organized the budget by results (outputs, programs etc.) rather than by input (line-items), thus enhancing transparency in resource usage and account- ability of senior officials for deliverables. 42. Performance-based budgeting makes use of performance information at all stages of the budget cycle. The main features of the new approach were: (a) the explicit focus on the achievement of public program objectives and their alignment with government policies, as evidenced by: (i) a greater use of perfor- mance targets; and (ii) the generation of a wide array of performance information throughout the budget system; (b) new institutional arrangements that create a network of structured performance agreements, which provide incentives for the public sector to move beyond a compliance focus toward a performance culture; and (c) an emphasis on holding senior officials accountable for deliverables, often with an accompanying change in the nature of expenditure controls, away from detailed line item input controls to one where managers are held accountable for 44 Manning 2009: v. both the results and the use of inputs. The potential uses of performance informa- tion in the budget cycle can be demonstrated as follows:45 Chart 1. Performance information in the budget cycle During Budget At budget preparation approval To Help set the To review and macro-�scal amend framework and appropriations at inform budget the time of budget negotiations approval Audit and During budget evaluation execution To ensure To help managers accountability improve efficiency through and to monitor and performance adults report in budget and evaluations execution reports Source: Arizti et al 2009: 6 43. The variety of experiences among OECD countries increased exchanges among reformers and promoted cross-fertilization. Some OECD countries, for instance the United Kingdom, started these reforms earlier and pushed the reforms inspired by the principles of NPM. Other countries, such as France, fo- cused on particular aspects of NPM such as performance contracts. The variety of initiatives and approaches fostered signi�cant cross-fertilization; latecomers learned from the experiences of early reformers. Moreover, all reformers bene�t- ted from improved ICTs that allowed a high degree of interconnectedness and the existence of “clearing house� organizations that facilitated the exchanges, such as the OECD secretariat. Thus, globalization facilitated the establishment of a com- munity of practice among public sector reformers that was previously unknown. 45 Arizti et al 2009: 6. 44. Starting in the early 1990s Western European courts experienced a wave of rapid organizational and technological changes. OECD courts and justice sec- tors took some time to initiate NPM-based reforms.46 Still bound by the conserva- tive culture of the sector, members of the judiciaries and external stakeholders of the justice sectors of European countries entered the 1990s wondering if and how the changes the world was witnessing would affect the structure and operation of justice institutions. These institutions were characterized by an organizational culture deeply rooted in stability and tradition, taking pride in a strong sense of independence. The situation changed rapidly in continental Europe where the end of the cold war had just revealed that even situations that had been taken for granted could change almost overnight. Moreover, a wave of ICT seemed to sweep away work processes and habits that had evolved over centuries. Not only had the world started to become a global village but change was no longer a mat- ter of amending legal rules after years of discussion in the legislatures. Court staff and users suddenly started to experience multi-dimensional changes (managerial, attitudinal) at an ever accelerating pace. 45. Globalization and societal change resulted in shifts in the type of services requested from the courts and in the demands of court users for better ser- vices. The impact of changing economies and societies on the role of courts was signi�cant and rapidly translated into the need for change in the justice sector. In European and other OECD countries the immediate changes were the direct result of deep social changes, in the aftermath of a major geo-political and tech- nological change. In their day-to-day operations, the justice sector institutions were increasingly confronted with the many changes affecting in their societies (global brands, global trade, global immigration). New types of problems and liti- gation appeared. The courts’ workload increased due to these factors but also because of the higher levels of judicialization of economic and social disputes that before had been handled outside the court system through other dispute resolution mechanisms (for instance, labor disputes): an increasingly consumerist culture also started affecting the relationship between the courts and their users, the latter developing higher expectations with respect to service delivery. It was not clear, then, whether the courts would embrace the changes and how they would adjust to the changing demands for their services. Many justice sectors in OECD countries entered the 1990s with an increasing sense that the external crises would soon generate major internal changes. The concrete symptoms and 46 In terms of “sources of legitimacy� most OECD countries’ judiciaries were still at the stage of the “due process� public service and have not even reached the “equitable� stage of other government agencies. The 1990s represented a major leap ahead through the “responsive-performing� public service concepts. Manning 2009: 6. the level of intensity of the “crisis� differed across OECD countries. According to Zuckerman,47 the most common dysfunctions, though, were delay and cost. In spite of some structural differences, this was true for common law as well as civil law jurisdictions.48 46. In some common law jurisdictions, the civil justice system had become too labor intensive, too costly, and too slow. In the U.S., the federal criminal case- load grew dramatically between the 1980s and the mid 1990s. Although criminal cases accounted for only one-�fth of the federal caseload, they required a dispro- portionate share of resources.49 This growth also influenced the passing of the Judicial Improvement Act of 1990 that intended to tackle less than optimal capac- ity issues in the sector through the creation of more judgeships. In England and Wales the cost and delay involved in civil litigation had been a source of concern for some time already.50 Similarly, in Australia the system was no longer able to cope with the huge increase in the volume and complexity of litigation. It had be- come too labor intensive and, therefore, too costly and slow.51 In both countries, the strain of the legal aid budget had proved unsustainable. The growing cost (see Table 1) and lack of productivity of the courts in England and Wales were at- tributed to factors such as the parties’ control over the pace of litigation, the fact that the loser had to pay the winner’s costs, and the way legal aid services were paid for by the State.52 Other civil justice reviews also used crisis rhetoric and were more explicit about the pressure on resources than the Lord Woolf report. In Canada, the Canadian Bar Association Task Force on Civil Justice saw their sys- tem functioning under ever-increasing pressures including “reduced funding and dwindling resources […] and increased demands on the system.� The 1996 Civil Justice review of Ontario tried to �nd ways “to provide a speedier, more stream- lined and more efficient structure which will maximize the utilization of public resources allocated to civil justice.�53 47. The Lord Woolf Report identi�ed a number of dysfunctions in the court sys- tem and proposed reforms. The empirical research undertaken for the 1996 Woolf Report clearly identi�ed the disconnect between the value of the disputed claims and the adjudication cost. Table 2 shows that aggregate costs for the small- est claims exceeded the value of the disputed claim; in other words, in claims up to £12,500, the court costs that can be recovered by one party from the other (i.e. about two-thirds of the cost incurred by the winning side) exceeded the amounts in question.54 47 Zuckerman 1999: 12. 48 This would be epitomized by the title of Adrian Zuckerman’s landmark publication on comparative pers- pectives of civil procedure in 1999. 49 Beale 1996. 50 Zuckerman 1999: 12. 51 Davies 1999: 167. 52 Zuckerman 1999: 13. 53 Genn 2010: 58, 59. 54 Michalik 1999: 146. 48. The Lord Woolf Report inspired justice reforms throughout the common law world. The Lord Woolf Report recommended what it saw as practical ways to achieve proportionality (i.e. connection between the size and complexity of a giv- en case and the applicable procedure) and predictability in judicial adjudication, while reducing cost and delay associated with complexity such as: (a) to grant the courts control over litigation through effective judicial case management includ- ing pre-trial protocols and the establishment of three standardized tracks (small claims, fast track, multi-track); (b) to restrict recoverable costs; and (c) to unify and simplify court rules.55 As many common law jurisdictions faced challenges similar to those of the United Kingdom, the Lord Woolf’s approaches started to be widely discussed. For example in Australia the concept of “just dispute resolution� was developed, comprising elements such as more proactive judges, proportion- ality, and early settlement through alternative dispute resolution (ADR) mecha- nisms.56 Also, in Australia, the most sophisticated and comprehensive civil justice review was undertaken by the Victorian Law Reform Commission and published in 2008. It was aimed at streamlining litigation processes, reducing costs and court delays and achieving greater uniformity between different courts. In Hong Kong, a working group was established in 2000 to conduct a civil justice review much influenced by the Lord Woolf report. The subsequent reforms had the bene�t of being informed by evaluations of the British experience and therefore remained more balanced. In Canada, British Columbia published a Civil Justice review in 2006 promoting a strong emphasis on access to justice and proportionality.57 Table 1 - Government spending on courts and legal aid in the United Kingdom (in million £) Lord Chancellor’s Department 1992-93 1993-94 1994-95 1995-96 1996-97 Total legal aid 1,090 1,212 1,301 1,389 1,478 Civil legal aid 463 544 602 643 671 Court service 816 813 862 842 762 Total 1,905 2,025 2,163 2,231 2,240 Northern Ireland Court Service 43 37 50 55 53 Source: Michalik, 1999. 55 Michalik 1999: 153. 56 Davies 1999: 167. 57 Genn 2010: 60, 61. Table 2 - Median court costs by category of case and value (recoverable costs as % of claim) Up to £12,000- £25,001- £50,001- £100,001- Over O ve r a l l Overall £12,500 £25,000 £50,000 £100,000 £250,000 £250,000 median mean % % % % % % Medical negli- gence 137 57 46 33 21 12 15,531 29,380 Personal injury 135 41 28 22 13 13 12,134 19,382 Professional negligence 135 54 43 41 27 15 14,834 32,866 Official referees 158 96 48 53 31 19 19,320 35,844 Breach of contract 138 46 32 21 12 5 N.A. N.A. Chancery 119 62 40 17 8 2 N.A. N.A. Queen’s Bench 154 44 33 14 5 3 N.A. N.A. Commercial 174 54 27 38 16 2 N.A. N.A. Bankruptcy/ Companies Court 115 39 18 15 10 1 N.A. N.A. Source: Michalik, 1999. 49.Many of these reviews of civil justice systems were based on perceptions rath- er than empirical evidence. Although more recent reviews acknowledge that “adequate empirical data and appropriate measures of performance and feedback from key participants in the process, including regular users of the court system, are necessary if reform is to be effective,�58 and express surprise at the lack of available evidence,59 it is noteworthy how the perception of crisis and the belief in the suggested solutions were able to drive civil justice reviews without any serious effort at generating empirical data to substantiate them and to measure impact. It seems that reformers in government and law commissions thought they already knew what the problems were and how they may be resolved.60 However, in the absence of empirical data, perception may misguide reformers in identifying chal- lenges and adequate solutions. Even if the issues are identi�ed and addressed suc- cessfully, discussions about success or failures of the reforms tend to remain and may be misguided by perceptions and interests of various stakeholders, precisely because there is no empirical evidence available to substantiate either position.61 Although no large-scale research had been undertaken to support the Lord Woolf report, a subsequent study was commissioned by the Lord Chancellor’s Depart- ment to provide baseline information about litigation prior to the implementation of the reforms. It identi�ed the difficulty of generalizing about civil litigation as 58 Victorian Law Reform Commission Report, as quoted by Genn 2010: 63. 59 British Columbia Civil Justice review, as quoted by Genn 2010: 62. 60 Genn 2010:52. 61 Hammergren 2002a: 1. a whole. Interestingly, the data of this baseline study are inconsistent with some of the more far-reaching claims and predictions characterizing the Lord Woolf de- bate.62 50. More than a decade after the Lord Woolf Report, the empirical evidence sug- gests that certain types of delays have been reduced and that ‘proportional- ity’ has improved the operation of civil justice. However, the rules of civil pro- cedure have become more elaborate since they were introduced, countering the Lord Woolf reform’s efforts for simpli�cation. Also, empirical data indicates that the achievement of reducing delay in the settlement of litigated claims may have been bought at the expense of an increase in the delay in settling claims pre-trial, which constitutes the majority of cases. Moreover, the empirical data suggests that overall case costs have increased substantially over pre-2000 costs for cases of comparable value.63 51. Across Southern Europe the delay issue was unsuccessfully addressed through increases in the number of judges. Many countries in Southern Europe saw a steep increase in the volume of litigation and a substantial increase in delays. In Italy, delay appeared to be out of control, as ordinary litigants had to wait as much as ten years to obtain a �nal resolution of their disputes.64 In Portugal, the civil justice system had become unable to respond the demands by those seeking justice in reasonable time. The number of pending civil cases per 100,000 inhab- itants, for example, increased from 2,563 in 1992 to 4,863 in 1996.65 Despite the simultaneous increase in the number of judges (1,032 to 1,231), prosecutors (817 to 939) and court clerks (6,161 to 7,185), and an increase in the number of disposed cases per 100,000 inhabitants from 2,410 to 3,188, the system was not able to deal with a steep increase of incoming civil cases from 2,699 to 4,148 per 100,000 inhabitants.66 This poor performance began undermining the credibility of the ju- dicial system as a dispute resolution mechanism. In Spain, the system seemed to be “so beset by anachronistic complexity that it has become a veritable jungle of localized rules and special proceedings, all of which put pressure on resources and contribute to delays.�67 The number of incoming civil cases increased by 10% every year between 1981 and 1996. The Judiciary tried to deal with this issue through an increase in the of number of judges from approximately 1,500 in 1985 to around 3,500 in the late 1990s but still was not able to reduce delays and abide by the legal deadlines. In the late 1990s, a small claims procedure took an average of 436 days (instead of 100), a juicio de cognición 320 days (instead of 65), a juicio verbal 207 days (instead of 36), and a debt enforcement proceeding, which should last no 62 Genn 2010: 67. 63 Fenn et al. 2009: 33, Lord Justice Jackson 2009. 64 Zuckerman 1999: 13. 65 Leitão et al. 1999: 439. 66 Leitão et al. 1999: 439. 67 Zuckerman 1999: 13. longer than 20 days where the debtor is not involved, took about 250 days on av- erage.68 France had seen an explosion in the volume of litigation and a substantial increase in delays. Increasing costs were also a source of concern, although some were offset by efficiency gains.69 Nonetheless, the situation deteriorated signi�- cantly towards the end of the decade.70 52. Northern Europe and Japan were more successful in dealing with increased workload. Compared to the Southern European justice systems, Germany, the Netherlands, Switzerland, and the Scandinavian countries were faring better in terms of addressing increased workload, but were not without challenges of their own.71 In Sweden and Japan, the judicial statistics reveal a counter-cyclical link between economic growth and litigation rates. A signi�cant increase in caseload between 1991 and 1997 coincided with the end of the economic boom. With the same number of judges, the system was nonetheless able to produce efficiency gains and keep the number of pending civil cases constant by disposing of more cases. It seems that this was largely possible through the increased use of pre-trial conferences.72 53. The most innovative OECD Judiciaries retained leadership of the reform pro- cess while the most traditionally-minded fell prey to strong external pres- sures. The initial reaction of most judiciaries, governments and legislatures was to stick to traditional approaches focusing on increasing resources. However this was also occurring during a time when public budgets were increasingly strained and judiciaries were risking ultimately losing the support of the other branches of government if they were unable to show results. These judiciaries were subse- quently forced into more far-reaching reforms by the pressure of public opinion and under the leadership of the other branches of government. By contrast, the more innovative judiciaries started embracing new approaches to justice reform that fundamentally questioned the way of doing business in the courts. Not sur- prisingly, these judiciaries were able to proactively shape and drive the reform process themselves, with less external pressures. 68 Díes-Picazo Giménez 1999: 392, 396, 395. 69 Zuckerman 1999: 13; Cadiet 1999: 291. 70 Jean 2008: 9. 71 For many: Zuckerman 1999. 72 Hasebe 1999: 259. 54. In many countries, justice sector agencies were initially reluctant to engage in NPM reforms out of concerns for institutional independence. The most common initial reaction of the OECD justice sectors to NPM was skeptical. Even admitting the potential positive impact of the new approaches, NPM was not con- sidered applicable to the justice sector because of the high risks entailed for judi- cial independence. More speci�cally the fear was that the proposed management tools might simply disguise an attempt by the executive to control the judiciary. In some countries was this reaction wholly unjusti�ed-- in a few highly politicized contexts (particularly in some Southern European countries) serious conflicts ex- isted between the executive and the judiciary. In most cases, however, reformers found that this risk could be managed and it was possible to develop mitigating strategies.73 55. Resistance to the application of NPM in justice institutions was also due to the conservative nature of the legal profession. In most countries, NPM ap- proaches were resented by justice sector practitioners as a challenge to the exist- ing organizational culture. Judges, for instance, felt strongly that their �rst duty was to apply the law and only indirectly to provide services to citizens. The most entrenched groups were attached to the emblematic mission of justice sector in- stitutions and felt their job was not to deliver services but to exercise the State authority to administer justice. Reformers were accused of trying to convert the courts into “judgment factories� governed by reformers disguised as “factory di- rectors.� Ingrained in the professional and cultural background of the legal profes- sion, judges and other se ctor operators could not understand or accept a mana- gerial perspective for the justice sector and approached judicial reform either as changes in substantive and procedural laws or as a simple increase of resources. In some cases, those resisting change struck nationalistic tones denouncing NPM 73 This “institutional independence� concern is similar to the stress on the management of the political- administrative boundaries discussed in Manning 2009: 7. or other managerial approaches as a negative foreign influence (for instance, talk- ing about the “Americanization of justice� in some Western European countries).74 56. Insufficient consensus-building efforts delayed the transition from tradition- al justice reforms to NPM. Reformers may have contributed to the polarization of the debate by failing to engage in an inclusive dialogue so as to make a convinc- ing case rather than overpowering the groups to be affected by the reforms. In- sufficient consensus-building efforts would later undermine the implementation of the reforms. Although the various developments in different OECD countries cannot be reduced to a single, straight forward story line, many countries seem to have experienced two subsequent phases of judicial reforms. The �rst phase was characterized by an increased number of judicial reform initiatives that remained within the traditional parameters. The second phase witnessed the introduction of NPM approaches in the justice sector involving signi�cant changes in the way courts do their work. 57. Supply-driven justice reforms in Western European countries did not look into the fundamental issues of work processes or organizational structures. For some time, the judiciaries in many Western European countries continued re- sisting reforms based on approaches which were similar to NPM. While acknowl- edging the need for reforms to address geopolitical and technological challenges, reformers preferred traditional �xes largely based on requests for more funding, more judges, more support staff, and more courts. Modernization attempts were limited to the introduction of ICT. The fundamental questions remained unan- swered: would the well-established work practices or the traditional organiza- tional structure of justice institutions be able to cope with completely new chal- lenges? Not surprisingly, the main outcome of these traditional reforms was the increase in the number of judges per capita (see Table 3). 58. The disconnect between the problems and their solutions became more ap- parent after infrastructure refurbishment failed to reduce caseload or delays, or to increase quality. Systemic dysfunctions such as delays or lack of access con- tinued to be attributed primarily to external factors, such as lack of �nancial and human resources, legislative inflation (especially in the area of criminal law), and excessive and unjusti�ed use of the courts in a context of increased judicialization and litigiousness. In Belgium, Italy and France, for example, most efforts were 74 The U.S. legal system has become increasingly influential in the world, and some of its features can now be found in other systems. For instance, the American-style plea bargaining is becoming more prevalent across the world, see Langer 2004. concentrated on building more courts or improving/renovating existing courts.75 Yet, the caseload kept growing in civil courts (see Table 4) and in even further in administrative courts (see Table 5). Delays continued to grow in many countries,76 and the appeal rates as well as well as the rates of cassation or revision went up, suggesting a decline of quality of judicial decisions (see Table 6). 59. Growing demands from the executive, legislative and external stakeholders created an enabling environment for NPM reforms. At best, the results gen- erated by traditional reforms were mixed and their impact was insufficient. A “business-as-usual� approach to reform failed to address the challenges posed by the new economic and social realities. The executive and legislative branches as well as external stakeholders grew more disillusioned and in some countries they joined forces to hold the justice sector more accountable for performance and push for far-reaching changes. The executive’s emphasis on increased efficiency and potential savings in public spending in the justice sector was probably the most signi�cant driver of NPM reforms in many countries. For the broader public and potential court users, the main driver was dissatisfaction with services re- ceived and outrage caused by increased media attention on the dysfunctions in the justice sector, highlighted not only by periodic scandals, but also by structural problems such as the lack of a service culture in the courts and the self-interest of the justice apparatus. 60. Prior to the NPM wave, justice statistics were scarce and had not been used to measure institutional performance. Justice institutions had always produced statistics of some sort. In some countries, such as in France, crime statistics had been the starting point for the development of official justice statistics. However, this statistical data was used more to examine the social issues facing the country rather than to evaluate the performance of the justice sector. Most of the quanti- tative data generated by other sources, for example cost of malpractice insurance provided to the legal profession, was considered to be a by-product of the profes- sional practice and remained inaccessible to the general public. A fundamental change occurred in the 1990s when the stakeholders in the justice sector were suddenly seized by with what one author calls a “frénésie quanti�catrice� or “quan- tifying furor�. 75 Vigour 2008: 24. Growth in litigation in the U.S. has also been consistent, with nearly 17 million civil law suits yearly. For a discussion of how the U.S. has reacted, controlled, or ignored this growth see Olson 2004. 76 For many: Blankenburg 2003. 77 Manning 2009: vii. “NPM … places more emphasis on managerialism than formal rules or procedural standards.� Table 3 - Judges per 100,000 inhabitants England & Germany(*) France Italy Spain Netherlands Portugal Austria Wales 1990 10.4 8.0 5.5 10.3 20.1 4.0 1995 27.7 10 10.9 8.5 9.8 11.7 22 4.5 (*)East (1985): 9; West: 28 Source: European Data Base on Judicial Systems, Bologna 2000 Table 4 - Number of cases �led for civil procedure per 100,000 inhabitants. Germany(*) France Italy Spain Netherlands Portugal Austria 1990 2,464 2,032 1,227 1,344 1,393 2,061 1,733 1995 2,656 1,299 1,897 1,626 3,762 1,662 (*) 1990: West, 1995: United Table 5 - Number of administrative cases �led per 100,000 inhabitants Germany(*) France Italy Spain Netherlands Portugal 1990 200 120 115 158 130 18 1995 275 160 170 317 260 38 (*) 1990: West, 1995: United Table 6: Number of incoming appeal cases by 100,000 inhabitants Germany(*) France Italy Spain Netherlands Portugal Austria 1990 240 287 67 134 91 505 Appeals in civil courts 1995 198 373 70 255 38 127 550 Cassation/ 1990 7.2 33.4 13.1 8.9 16.1 38.4 revision 1995 6.0 33.6 17.0 9.5 2.2 16.5 48.2 78 (*) 1990: West, 1995 United Source: European Data Base on Judicial Systems, Bologna 2000 61. The public’s interest in more reliable data of court performance was a pow- erful force behind the transition to NPM. The increased availability and use of quantitative data about court performance may have been the single most signi�cant factor contributing to more fundamental reforms inspired by NPM approaches, which rely heavily on quantitative data. The output-focused ap- proach requires the measurement of results and the continuous use of such measurements for management purposes. The increasing use of modern ICT technology made this change possible. The justice sector’s strong resistance to non-legal approaches to reforms or to measuring its own performance was un- able to counter the overwhelming power of simple (albeit sometimes overly 78 As Blankenburg 2003 explains, the numbers for Germany were still relatively low in 1995, as many cases from Eastern Germany did not yet reach the appellate courts. simplistic) numbers made available by new information systems that easily quanti�ed courtroom activities. The increasing reporting of these quantitative data in national public debates, for example in France, 79allowed the media to start taking a more active role in these debates and feeding the public opinion with opinion polls and rankings. Starting in 2003, the World Bank would launch its Doing Business series that includes a contract enforcement indicator.80 In the U.S., a number of quantitative data methods, catering to specialized top- ics, was established. For example, both the National Crime Victimization Survey (NCVS) and the Uniform Crime Reporting (UCR) offer important information on criminal victimization. However, the two programs were created to serve different purposes. The primary objective of the UCR was to provide a reliable set of crimi- nal justice statistics for law enforcement administration, operation, and manage- ment. The NCVS was established to provide previously unavailable information about crime (including crime not reported to police), victims, and offenders. These data developed by the NCVS and UCR could then be used to inform and influence projection for future resources allocated to state and federal U.S. courts. 62. Reformers took advantage of the interaction of many internal and external variables to make NPM justice reforms happen. The availability of objective data joined the real or perceived crisis of justice sectors, the reduced credibility of the vested interests against the reform, and the converging interests of exter- nal stakeholders opened a window of opportunity for more fundamental reforms that the executive was not willing to miss. Over time, experience would reveal that those reforms undertaken in cooperation with the judiciary had signi�cantly better chances of success, while reforms imposed on judges were more prone to failure. 63. Funding mechanisms provided the critical nexus between judicial indepen- dence and accountability. Reformers followed different paths in each country but the most critical element of the reform was the backbone of judicial opera- tions, namely the funding mechanism. Reformers had to strike a delicate balance between the constitutional principle of judicial independence that allows judges to do their job without undue interference, and an appropriate level of account- ability for the use of public funds that holds judges to a reasonable standard of performance. The question of justice sector governance, in connection with fund- ing mechanisms, became paramount in the transition to NPM. The risk of funding issues becoming a tool in the hands of the executive used to make the judiciary more docile to the government’s agenda was quickly raised, particularly in the highly polarized and politicized countries in Southern Europe. On the opposite side of the spectrum, excessive �nancial independence could be used by some ju- diciaries to shield themselves against legitimate reform efforts and reasonable ex- pectations of performance. This tension between these equally perilous extremes suggested that reformers needed to look for a nexus between the way the funding 79 Vauchez 2008: 113, 114. 80 See the Doing Business website at http://www.doingbusiness.org. of the courts was determined and the manner justice service delivery was evalu- ated. This nexus was needed to maintain a delicate balance between indepen- dence and accountability. In absence of an “ideal� approach, ultimately the reform depended on the political economy and stakeholder dynamics of each country. To illustrate the difficult issues and options faced by the reformers this report will present �ve country scenarios in Western Europe and the United States in chapter 4. 64. Experience with NPM-based reforms con�rmed the need to focus on both quantitative and qualitative aspects of justice service delivery. One of the key lessons from NPM-inspired reforms is that the quality of the services provided has to be captured by evaluation tools in order to avoid perverse incentives arising from a limited focus on cost-effectiveness. Typically OECD countries responded to this challenge by developing quality management approaches to improve the countries’ ability to address this issue. For the justice sector, obligations under the European Convention for Human Rights, such as the right to a fair trial within a reasonable time, require member States to act to ensure both efficiency and qual- ity of justice. The Council of Europe became actively involved in developing tools for European countries to comply with quality objectives. 65. For the European Union, the quality of justice is a crucial element in the functioning of the common market. In the context of European integration it became clear that although cost effectiveness and efficiency of justice systems are key goals, membership in the European Union (EU), which is a communauté de droit, requires that the quality of services is also guaranteed to consistently implement the EU rules and procedures (acquis communautaire). EU’s activi- ties in this �eld have to be seen against the background of the overall process of harmonization within Europe. The EU considers quality of legal systems as a precondition of mutual con�dence and mutual recognition of court decisions.81 The 1999 European Council proclaimed the principle of mutual recognition of ju- dicial decisions to be the “cornerstone of the area of freedom, security and peace� (or “the third pillar�). 66. Over time, the legal harmonization process has advanced not only in civil and commercial matters but also in criminal matters, and requires common stan- dards of quality. Two milestones that directly affected EU citizens across national jurisdictions were: (i) Regulation (EC) No. 44/2001 of 22 December 2002 on ju- risdiction and recognition and enforcement of judgments in civil and commer- 81 Com (2005) 195 of 19.05.2005. cial matters from other member states;82 and (ii) the European Arrest Warrant.83 After these decisions, strengthening mutual trust became more crucial within the European judicial arena. For instance, the Hague Program (3.2) also indicates that the quality of justice is considered an essential aspect for strengthening mutual trust.84 High judicial standards are an integral part of ‘Guaranteeing an effective European area of justice for all’; thus making it one of the ten priorities for the �ve year action plan.85 The increasing interlocking of judicial actions across borders (i.e. enforcement of judicial decisions in civil matters from other member states – see Box 1) in Europe can only work if there is a safeguard for an adequate level of judicial quality. 82 Official Journal L 12, 16.1.2001, p. 1–23 , http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R0044:EN:NOT Three other closely related Regulations in the �eld of civil matters are Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European enforcement order for uncontested claims (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0805:EN:NOT), (ii) Regula- tion (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 crea- ting a European order for payment procedure (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=CELEX:32006R1896:EN:NOT) and (iii) Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007R0861:EN:NOT). 83 Official Journal L 190 , 18.07.2002 P. 1, 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002F0584:EN:HTML 84 The Hague Programme, Annex 1 to the Presidency Conclusions of the Brussels European Council, No- vember 2004, http://ec.europa.eu/justice_home/news/information_dossiers/the_hague_priorities/doc/ hague_programme_en.pdf 85 http://ec.europa.eu/justice_home/news/information_dossiers/the_hague_priorities/doc/09_area_of_ justice_en.pdf p. 1. Box 1. Facilitating Enforcement of Judgments across Europe – Uni�ed Procedural Laws in the E.U. The E.U. has adopted three regulations over the past years to simplify and harmonize the enforcement of judgments across member states 1. Since 2004, the European enforcement for uncontested claims (Regulation (EC) No 805/2004 of April 21, 2004) eliminates certain time-consuming and costly formalities for cross-border enforcement in cases of uncontested claim against citizens of other EU states. 2. The European order for payment procedure (Regulation [EC] No. 1896/2006) provides a uniform procedure across the E.U. judiciaries for creditors to recover uncontested civil and commercial claims before the courts of the Member States. It is based on standardi- zed forms and can be carried out electronically. The decisions are automatically enforceable throughout the E.U. 3. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure introduces an E.U.-wide mechanism that enables an easy and cheap procedure to enforce cross-border claims up to € 2,000. The procedure allows enforcement in the usual adversarial civil proceedings and harmonizes the procedural steps for civil and commercial matters (from the initiation of the procedure to the enforcement of the court decision). The Small Claims Regulation introduces standard forms for a written procedure and provides that no unnecessary costs can be imposed on the unsuccessful party. It abolishes any inter- mediary mechanisms for recognition of judgments by Courts from other member states and ensures automatic enforceability. Chart 2. EU pre-accession evaluation criteria Efficienc y of Justice Independence of (organization of the Recruitment and the Judiciary courts, case-flow and training case-processing time) Combating Access to the Courts Ethical Safeguards Corruption 67. The EU has also developed a number of special systems to implement common quality standards, evaluation systems and mechanisms. Operational systems have been set up for implementing European conventions (i.e. Schengen Agree- ment86) or evaluating the application of international treaties on a national level 86 Joint Action of 5 December 1997, OJ L 344, 15.12.1997, p. 7. (�ght against terrorism87 or organized crime88) or the evaluation of EU policies on Freedom, Security and Justice. 89The performance analysis in these cases is a com- bination of practical, legislative and institutional approaches90 and deals only with speci�c issues, not the quality of national judiciaries as a whole. 68. The quality of justice has also been a critical element in EU acces- sion negotiations. According to the accession criteria set out by the Eu- ropean Council in Copenhagen, candidate countries must have “stable in- stitutions that guarantee democracy, the rule of law, human rights.�91 In 1995, the Madrid European Council further clari�ed that a candidate country must also be able to put the ‘acquis communautaire’ into effect. Accession also requires the candidate country to create the conditions for integration by adapt- ing its administrative structures.92 As a consequence, the EU evaluates the judicial systems of the candidate. 69. The application of the accession criteria has technical dimensions focusing on quality of justice. The Council of the European Union’s Joint Action, adopted on June 29, 199893 established a mechanism for evaluating compliance with the ‘acquis communautaire’ in the �eld of Justice and Home Affairs by candidate countries. It only made reference to an evaluation method (group of experts) but not to evalu- ation indicators. Measurable indicators did not exist since the overall accession process was a political process, and the justice sector was only one aspect of the “readiness� of a candidate country to join the E.U. 70. More recently, the European Union has established a cooperation and veri�ca- tion mechanism (MCV) for new member states. As the judicial systems of some of the new E.U. member states did not meet the efficiency standards required of a member state, a European Commission Decision established the MCV for them.94 Similar to the accession process, the progress of the judicial system against spe- ci�c benchmarks is measured on a regular basis. 87 Decision of 28 November 2002, OJ L 349, 24.12.2002, p. 1. 88 Council Decision of 28 November 2002 establishing a mechanism for evaluating the legal systems and their implementation at national level in the �ght against terrorism, Official Journal L 349/1, 24.12.2002. http://eurlex.europa.eu/Notice.do?mode=dbl&lng1=es,en&lang=&lng2=bg,cs,da,de,el,en,es,et,�,fr,hu,it,l t,lv,mt,nl,pl,pt,ro,sk,sl,sv,&val=276105:cs&page=&hwords=null 89 COM(2006) 332 �nal of 28.6.2006 http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=COM:2006:0332:FIN:EN:PDF 90 Jean et al. 2006: 50 91 http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/93/3&format=HTML&aged=1&languag e=EN&guiLanguage=en 92 http://ec.europa.eu/enlargement/the-policy/conditions-for-enlargement/index_en.htm 93 OJ L 191, 7.7.1998, p. 8, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:191:0008:0009:EN:PDF 94 Decision 2006/928/CE of the Commission of 13 December 2006 establishing a mechanism for coope- ration and veri�cation of progress in Romania to address speci�c benchmarks in the areas of judicial reform and the �ght against corruption, JO L 354 14.12.2006, p. 56-57. 71. The EU has launched initiatives towards the establishment of a common ref- erence framework and comprehensive approach to quality of justice. In 2004 the Committee on Civil Liberties, Justice and Home Affairs of the European Par- liament published a working document on the quality of criminal justice and the harmonization of criminal legislation in the Member States (“Costa Report�)95. The report is a short and general policy document that proposes a qual- ity charter for criminal justice. The charter should facilitate the consolidation of a - yet to be speci�ed - set of criteria for comparing the quality of crimi- nal justice. The report proposes also an evaluation mechanism that should include various components: (i) comparative statistical basis; (ii) ‘benchmark- ing’ exercises; (iii) dissemination of best practices; and (iv) an annual evalu- ation report on compliance with the quality charter. Based on the Costa Re- port the European Parliament adopted a recommendation to the Council but the Council96 has not taken further actions in that regard. 72. Other initiatives include the Justice Forum of 2008 and Crystal Scales of Jus- tice Prize. Although a quality charter has not been adopted, most EU justice eval- uation efforts relate to single topics and a comprehensive quality approach was only articulated in broader policy documents, the Commission undertook a new initiative in 2008 towards improving quality of justice for civil and criminal mat- ters. 95 http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dt/549/549073/549073en.pdf 96 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P6-TA-2005- 0030+0+DOC+PDF+V0//EN Box 2. Putting the word out there – Best Practices and Quality Awards Best practice is a method that is repeatedly proved useful in connection with quality of the justice sector. Quality standards and quality management approaches have a long-standing connection to best practices. Quality management was invented by and initially applied to the private sector which has successfully used Quality Awards to make best practices known. For the past 20 years the “Malcolm Baldrige National Quality Award� that is based in the idea of Total Quality Management (TQM) is given by the United States Institute for Standards and Technology for quality service in the business, health care, education, and nonpro�t sectors (http://www.quality.nist.gov/). Since 1992 the “EFQM Excellence Award� is awarded by the European Foundation for Quality Management for organizational excellence and has been awarded to Europe’s best performing companies and not-for-pro�t organiza- tions. (http://www.efqm.org/Default.aspx?tabid=154)   Along the lines of this tradition the European Award «Crystal Scales of Justice» is awarded since 2005 by the Council of Europe and the European Commission as part of the celebra- tion of the European Day of Civil Justice (http://www.coe.int/t/dg1/legalcooperation/cepej/ events/edcj/cristal/default_EN.asp). The prize rewards innovative and efficient practices contributing to the quality of civil justice for European courts organization or for the con- duct of civil proceedings in order to improve the services received by the users. Quality awards like this can have a positive impact on quality of justice services: • to promote general awareness • to spread successful best practices • to acknowledge efforts undertaken • to facilitate exchange of information • to draw attention of policy-makers With Communication (2008)38 on 4.2.2008 the Comision announced the estab- lishment of a Justice Forum97 that will have two main objectives: (a) to provide the Commission with expert views on E.U. justice policy and legislation; and (b) to promote mutual trust between E.U. justice systems. While the �rst objective focuses on reviewing and evaluating the application of European legal instru- ments on the national level, the second is intended to be a dialogue on qual- ity of justice of the different systems in the EU. The communication mentions different working methods for exchanging and evaluating information: (i) best practices; (ii) statistical issues; and (iii) cost-bene�t-analysis. The Forum will also be involved in selecting the winner for the biannual “Crystal Scales of Jus- tice� Prize by the Commission and the Council of Europe (see Box 2). The Prize is awarded for innovative practices in civil justice organization and procedures in the courts of Europe, so as to improve operational performance. The Commis- sion plans to institute a prize for a transnational project designed to improve mu- tual knowledge and exchange of best practices in the area of criminal justice.98 97 COM (2008) 38 �nal of 4.2.2008, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008DC0038:EN:NOT. For more infor- mation on the Justice Forum see http://ec.europa.eu/justice_home/news/information_dossiers/justi- ce_forum/index_en.htm 98 No. 41 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008DC0038:EN:NOT The Forum may develop into a body that contributes effectively and sustainably-- from an EU perspective --to the discussion of quality of justice services in Euro- pean countries. 73. The recently launched Stockholm Program is likely to lead to more justice sector performance measurement instruments. The Lisbon Treaty provides for objective and impartial evaluations to be undertaken in order to determine any obstacles to the proper functioning of the European judicial arena. The European Union’s Stockholm Program focuses on judicial cooperation in criminal matters as a �rst area for evaluation, but an expansion towards civil justice is envisioned.99 It provides a framework for E.U. action from 2009 to 2014 in the area of justice. 74. The Council of Europe is speci�cally responsible for the promotion of the quality of justice. Apart from the EU, the Council of Europe has been actively engaged in the justice �eld by setting standards, gathering cross-country data, undertaking research and developing tools to improve the functioning of the jus- tice sector. This cross-country role is unique among OECD countries. The Council of Europe has a broad mandate of promotion of democracy and human rights in Europe. Its focus on improving the functioning of the justice sector across its 47 member states is largely due to the fact that the European Court of Human Rights (ECtHR) has received a huge number of cases on violations of the right to a fair trial within reasonable time based on article 6 of the European Convention on Human Rights. Over time, the ECtHR has established detailed case-law with respect to article 6 and found a number of countries in violation of this right. 100 The number of cases exploded in the 1990s and has been increasing ever since. This massive workload is threatening the operations of the ECtHR, and the Coun- cil is very actively involved in reducing the number of incoming cases by funda- mentally improving the performance of the justice sectors in member states. 75. The Council of Europe has adopted a number of measures to address qual- ity issues in justice institutions. The Council’s recommendations aim at pro- viding technical and policy tools enabling member states to frame useful com- mon guidelines towards these goals.101 It is also entrusted with facilitating enforcement of judgments of the ECtHR by ensuring payments awarded by the Court are made and that individual compensation measures are imple- mented. The Committee of Ministers also monitors the implementation of gen- eral measures by member states to avoid new violations of the Convention.102 These measures may comprise constitutional, legislative or regulatory amend- ments, a change in administrative practice or in cas law, publication and dis- 99 http://ec.europa.eu/justice_home/fsj/intro/fsj_intro_en.htm. 100 Calvez 2007. 101 Jean 2006: 51; Civinini 2008: 16. Helpful listing for recommendations until 2002 at the end of Resolution Res (2002)12 https://wcd.coe.int/ViewDoc.jsp?Ref=Res(2002)12&Sector=secCM&Language=lanEnglish &Ver=original&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogged=FFAC75 102 For more detailed information see Lambert-Abdelgawad 2002. semination of the Court’s judgment, etc.103 After the transmission of the Court’s �nal judgment to the Committee of Ministers, the latter invites the respon- dent state to report about the steps taken to ensure compliance. After estab- lishing that the state concerned has taken all the necessary measures, the Committee adopts a resolution concluding that its supervisory functions have been exercised. If this is not the case, the Committee can adopt interim reso- lutions setting a calendar for reforms to be undertaken. The Council’s su- pervision of these resolutions is a delicate and politically challenging task.104 Nonetheless, this mechanism goes to the core of the quality of judicial services delivered to those seeking justice in Europe. 76. The Consultative Council of European Judges (CCJE) is an advisory body which addresses issues related to the independence, impartiality and competence of judges.105 Technical assistance is provided by other bodies created within the Council of Europe, such as the CCJE which was set up in 2000 and is com- posed only of judges. Among other tasks, CCJE provides practical assistance to help states comply with standards relating to judges and issue innovative pro- posals for improving the status of judges and the services provided to users.106 The CCJE has issued a number of opinions relevant for the efficiency and quality of the judiciary. The most recent one focuses particularly on the quality of judicial decisions.107 77. The European Commission for the Efficiency of Justice (CEPEJ) is a key player in promoting performance improvement. In 2002, the Euro- pean Commission for the Efficiency of Justice (CEPEJ) was established108 to: (i) improve the efficiency and the functioning of the justice system of mem- ber states, with a view to ensuring that citizens can enforce their legal rights effectively, thereby generating increased con�dence in the justice system; and (ii) to enable better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice. CEPEJ pre- pares benchmarks, collects and analyzes data, constructs evaluation instru- ments, produces best practice guides, prepares reports, advice, guidelines, action plans, etc. and creates networks of professionals involved in the justice arena.109 103 A detailed list of these general measures reported to the Committee of Ministers in its control of execu- tion of the judgments and decisions under the Convention is H/Conf (2000)7 from 3-4 November 2004 available at http://www.coe.int/T/E/Human_Rights/Execution/02_Documents/H_Conf7.pdf 104 For more detail see Decker et al. 2006. 105 http://www.coe.int/t/dg1/legalcooperation/judicialprofessions/ccje/default_en.asp 106 More about the CCJE at http://www.coe.int/t/dg1/legalcooperation/judicialprofessions/ccje/presenta- tion/ccje_en.asp 107 Available at https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2008)OP11&Language=lanEnglish&Ver=original &Site=COE&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3 108 Resolution Res(2002)12 of 18.09.2002 https://wcd.coe.int/ViewDoc.jsp?Ref=Res(2002)12&Sector=secC M&Language=lanEnglish&Ver=original&BackColorInternet=9999CC&BackColorIntranet=FFBB55&Back ColorLogged=FFAC75 109 For more detailed information see the CEPEJ website at http://www.coe.int/cepej CEPEJ has developed three main types of activities focusing on efficiency, but also increasingly on the quality of justice in the 47 member states of the Council of Europe: (a) generating cross-country comparative data; (b) undertaking in-depth research and analysis; and (c) developing practical tools. 78. CEPEJ has created momentum for reforms by generating cross-country com- parative data. When CEPEJ started its work in 2002, there was no comprehensive statistical tool available to generate reliable and comparative data on the func- tioning of the justice sectors in the Council of Europe’s member states.110 National statistics about the justice sectors existed, but oftentimes covered similar, yet not necessarily comparable, data using different de�nitions and categories as well as different approaches to data generation. CEPEJ’s �rst initiative was therefore to create a single tool. A working group on evaluation of justice sectors developed a comprehensive questionnaire and piloted it. An improved questionnaire was then used to collect data from the Council of Europe member states. Based on 2002 data, and a follow-up report was published in 2006. 111A third report was published in 2008. 112It is noteworthy that each edition signi�cantly increased the quality as well as the quantity of the data provided. These cross-country data allowed coun- tries to position themselves vis-à-vis other countries and therefore raised ques- tions in some countries about the functioning of the justice sector and, at times, created impetus for reform. 79. Cross-country data has proven essential to facilitate comparisons and bench- marking. As the cross-country data generated by CEPEJ is fully comparable, this exercise provides interesting benchmarks and facilitates comparisons among countries, for instance on the annual budget allocated to the justice sector as a percentage of GDP (see Figure 21). Similarly, CEPEJ disaggregates the components of the budget by expenditure items (see Figure 25).113 80. The focus of CEPEJ data has been on quantitative aspects of justice insti- tutions performance. Because justice sector-generated data tends to focus on the supply side of justice, and especially on expenditure and productivity aspects, CEPEJ has complemented this data with other sources. This research has led to the publication of a series of reports on Access to Justice in Europe,114Monitoring and Evaluation of Court Systems,115 Use of Information Technologies in European Court Systems,116 and Enforcement of Court Decisions in European States.117 110 EUROSTAT the EU agency for statistics as well OECD collect data on social and economic �gures and the functioning of the public sector, but no speci�c information on judicial systems, see Albers 2003: 6. 111 CEPEJ 2006. 112 CEPEJ 2008. 113 CEPEJ 2008: 38, 28. 114 Lhuiller et al. 2008. 115 Ng et al. 2008a. 116 Velicogna 2008. 117 Lhuiller et al. 2008a. Figure 25. Justice sector budget as percentage of GDP Source: CEPEJ, 2008 Figure 26. Justice sector budgets (Main expenditure items) Source: CEPEJ, 2008 81. CEPEJ data on court delays led to the establishment of SATURN. The bulk of cases in which the ECtHR �nds a violation are those related to the right to a fair trial within reasonable time, which are related to member countries’ court delays. As a result of prior undertakings, studies and work carried out by special work ing groups and a task force, the Center for Judicial Time Management (SATURN)118 was created to focus on procedural timeframes. SATURN gathers and analyzes in- formation from member states linked to judicial timeframes (timeframes per type of cases, waiting times in the proceedings, etc.) and provides the member states with information, analytical tools and guidelines to inform possible reforms. Stud- ies published have dealt with the measures undertaken by Northern European countries to reduce the length of the proceedings 119and abide by time standards set by the ECtHR.120 82. SATURN has developed practical tools to address delay issues. In 2005 a Time Management Checklist was published to help collect appropriate informa- tion and analyze relevant aspects of the duration of judicial proceedings aimed at reducing undue delays so as to ensure effectiveness of the proceedings and provide necessary transparency and predictability to the users of the justice sectors. 121 Furthermore a compendium of best practices on time management of judicial proceedings was adopted in 2006.122 It is based on information from a network of 46 pilot-courts. 123The compendium addresses �ve topics: (a) set- ting realistic and measurable timeframes; (b) enforcing the timeframe; (c) moni- toring and dissemination of data; (d) procedural and case management policies and practices; and (e) caseload and workload policies. Based on its experience generating comparative data on delays, SATURN developed a detailed ques- tionnaire on common case categories, judicial timeframes and delays in 2007.124 This questionnaire collects quantitative and qualitative data on length of pro- ceedings in court and identi�es relevant factors and reasons for delays as well as how they are tackled. 83. CEPEJ created a special working group to address quality of justice is- sues. The mandate of this working group is to develop tools to analyze and evaluate the work done in the courts to improve the quality of the public ser- vice delivered by the justice system, with a particular emphasis on justice 118 http://www.coe.int/t/dg1/legalcooperation/cepej/Delais/default_en.asp 119 Smolej et al. 2007. 120 Calvez 2007. 121 CEPEJ 2005a. 122 CEPEJ 2006: 13, https://wcd.coe.int/ViewDoc.jsp?Ref=CEPEJ(2006)13&Sector=secDGHL&Language=lan English&Ver=original&BackColorInternet=eff2fa&BackColorIntranet=eff2fa&BackColorLogged=c1cbe6 123 For more information on the network of Pilot-courts of the CEPEJ, see http://www.coe.int/t/dg1/legal- cooperation/cepej/ReseauTrib/default_en.asp 124 CEPEJ-SATURN(2007)3E of 22.112007, https://wcd.coe.int/ViewDoc.jsp?Ref=CEPEJ-SATURN(2007)3&La nguage=lanEnglish&Ver=original&Site=DGHL-CEPEJ&BackColorInternet=eff2fa&BackColorIntranet=eff 2fa&BackColorLogged=c1cbe6 practitioners and users. In 2008, the working group published its �rst prac- tical tool, a “Checklist for promoting the quality of justice and the courts�125 designed to help policy makers and practitioners in member countries collect information and analyze relevant topics related to quality. The checklist is struc- tured around �ve interrelated measurement areas of justice (See Chart 3). 84. CEPEJ quality data is expected to cover the supply of as well as the demand for justice services. On the supply side, it measures the resources provided by the ministry of justice or judicial council, and on the demand side, it evaluates views of court users. The proposed quality model differs from other quality models in that it addresses all three levels of the judiciary: national level courts, specialized courts and individual judges. The document provides a list of questions for each area of measurement and for each of the three levels, for a total of 265 questions. 85. In a nutshell, the court systems of Europe have developed comprehensive and detailed evaluation measures and methods. Tools have been developed for all three levels of the justice sector while quality management covers the whole judi- cial process from the �ling a case to the execution of the sentence. Programs now focus on users and foster a change in organizational culture and self-perception of the justice operators towards client orientation. A central aspect of the initia- tives is improved data collection systems and performance indicators that can be implemented for practical use and provide information for comparison across courts. While limitations remain, the Council of Europe’s evaluation approach contributes to fact-based comparisons across European judiciaries and has made signi�cant progress in balancing efficiency and quality. Chart 3. Quality Checklist’s Areas of Measurement II. "Job" and Operations What are the “job� processes and Processes operations which allow judicial procedures to go ahead in the true What measures need to be respect of the law? implemented (�nancial, logistical, computerized systems) to ensure that staff and judges have the right conditions in order to accomplish their work) I. III. V. Strategy Access to Justice, and Communication to Means of Justice policies Court Users and to the Public How can citizens have What should our human resources IV. access to justice (access to policy be (in recruitment, training, information, legal aid...)? career development...)in order to Human Resources have quali�ed and motivated staff and Status of the and judges who will serve in the Judiciary citizen’s best Interest? Source: CEPEJ 2008 a Checklist for promoting the quality of justice and thecourts. 125 CEPEJ 2008a 86. Funding arrangements became the basis of nascent monitoring and evalu- ation systems that can measure court performance. In sum, it can generally be said that while the changes to the funding arrangements for judiciaries were modest, they were accompanied by more explicit assumptions about the need for performance targets for the justice sector institutions (see Chapter 4 for more de- tail). This marked an important shift in citizen’s and government’s relations to the judiciary, as well as the judiciary’s recognition of its own accountability regarding performance and use of public funds. 87. The role and position of the judiciary in the broader political economy of each country also changed. As detailed throughout the paper, judicial independence plays a critical role in the discussion of performance measurement of the judiciary some cases resulted in performance targets being non-binding at best, or declared unconstitutional at worst (e.g. in Spain as explained in the next chapter). Never- theless performance targets and the discussions leading up to their design and implementation, had an important reputational effect on the justice sector and represent an important shift in the judiciary’s mentality from being a wholly iso- lated branch to one which was increasingly called upon to account for its resource use and performance. Thus the introduction of stronger internal performance incentives - initially quantitatively and later qualitatively - to achieve improved performance was in and of itself a major achievement in the understanding and implementation of justice sector reforms. England and Wales: The use of court fees within hard budget constraints 88. Constitutional conventions governed the relationship between the Govern- ment and the Judiciary until the 2004-2005 reforms established a new system. The close link between the English Judiciary and the Executive was traditionally embodied by the person of the Lord Chancellor. He headed the Judiciary and at the same time was in charge of the Lord Chancellor’s Department, which was the Government’s department responsible for, among other things, running the court system.126 The Concordat of 2004 and the Constitutional Reform Act 2005 changed this situation by formally imposing on the Lord Chancellor and the other ministers the safeguarding of judicial independence and by simultaneously trans- ferring the judiciary-related functions to the Lord Chief Justice as a new head of the Courts. The Supreme Court of the UK was also established by Constitutional Reform Act 2005 and began functioning in 2009. The Lord Chancellor still plays a key role with respect to the provision of justice services; he or she is obligated to “ensure that there is an efficient and effective system to support the carrying on of the business of the Courts of England and Wales and that appropriate services are provided for those courts� (section 1 of the Act). According to the Concordat, he/she is responsible for the provision and allocation of resources the administra- tion of justice. He/she is also accountable to Parliament for decisions related to the allocation of resources, and the effectiveness and efficiency of the system. 126 This section on England and Wales is largely based on Dyson 2007 and information provided by the United Kingdom’s Ministry of Justice. For more information on the funding of the judiciary within the broader public sector management context, see Webber 2005. 89. A joint Executive-Judiciary mechanism of resource allocation decisions gen- erated some conflicts. As the allocation of resources is key for the Judiciary, the Concordat requires putting in place arrangements to ensure that the Judiciary can be effectively involved in resource planning by the Executive. As a consequence, the judges are involved in decisions about what funding the Treasury should be asked for and how the available funds should be prioritized. The Lord Chancellor, however, has the �nal word. As not all judges agree with the priorities determined by the Lord Chancellor, this can generate some frustration in parts of the Judiciary, for example with the Government’s decision to make the civil justice system self- �nancing. 90. Safeguards for judicial independence were built into the �nancial arrange- ments. Although judicial salaries and accommodation costs are included in the costs to be recovered by the court fees established in 1992, the stability of judicial salaries is assured against interference by the executive, as judicial salaries may be increased but not reduced.127 With respect to other performance targets, the judges are also consulted, but the ultimate decision is made by the Executive. It is not unusual for the judges to take issue with these targets. A general complaint is that at the same time the executive is de�ning efficiency targets (for example, the time from start of proceedings to the end of trial) it may be making budget cuts that imply reduction of court staff and even closing of court offices making the reaching the targets more difficult. 91. Nevertheless, parts of the Judiciary felt that the Executive was interfering with Judiciary independence. As the government, including the Lord Chancellor, is responsible to Parliament, sets the policy objectives and controls the funding, some judges remain particularly sensitive to the fact that the court performance targets are set by the Executive, which are mainly driven by cost-efficiency con- siderations. 92. The court fee system may have generated a barrier to access but was an es- sential element of the cost recovery policy. According to the Lord Woolf Report, the reformed system would avoid litigation wherever possible, have a shorter and more certain timescale, the cost of litigation would be more affordable, more pre- dictable, and more proportionate to the value and complexity of individual cases, while parties of limited �nancial means would be able to conduct litigation on a more equal footing.128 The general Government policy of total cost recovery now applies to civil court fees, except in cases where fee remission is justi�ed.129 This 127 This concept mirrors U.S. constitutional provisions for federal judges, see Article III of the U.S. Consti- tution. 128 Lord Woolf 1996. 129 In England and Wales all public services charging statutory fees must comply with various general po- licy and accounting principles, in particular each service must have �nancial objectives agreed by HM Treasury. The target set is generally to achieve full cost recovery, although ministers may determine lower, but not higher, targets with the Treasury where there is a policy justi�cation for doing so. The intended bene�t is to help allocate resources in a rational way and provide greater visibility to the costs and bene�ts of services. policy, known as “full-cost pricing,� assumes that civil court services should be largely funded through court fees paid by the litigants. As a consequence, court fees have to be set at a level that will allow the services of a particular court to be self-funded. In 2007/2008, for example, the cost of running the civil and family courts in England and Wales was estimated at £607 million of which almost 78% was to be funded by court fees (£472 million). Some judges have protested that the court fee system poses a serious impediment to access to justice. The Govern- ment has argued that since most civil justice is about private rights, and people should only use court services as a last resort, only litigants who can afford to pay the fees should use civil courts. This restriction to access is supposed to ensure that citizens take realistic decisions and initiate only reasonable cases. A fee re- mission system ensures that people with limited means are not denied access to the courts just because they cannot afford to pay court fees. 93. The court fees system acted as a powerful counterbalance to the growth in litigation. In addition to the Lord Woolf reforms, cost reduction in England and Wales has been a major driver for change. The Government has set cost reduction targets, some without previously consulting the Judiciary, which have been ac- companied by parallel reductions in the number of civil cases initiated. This sug- gests that the court fees system may be a major deterrent for frivolous litigation and other forms of misuse of the court system frequent in other jurisdictions at the risk of also discouraging valid claims and impairing the overall fairness of the system in terms of equal access. Nevertheless, in terms of the balance between �nancial independence and performance accountability the reforms have led to a situation where the Judiciary feels isolated from effective decision-making. As Lord Justice Dyson puts it, “the Executive that is responsible to Parliament, sets the policy objectives and is the paymaster.�130 94. Early evaluations suggested that the reform goals were being achieved. An evaluation undertaken in 2001 found that litigation was indeed being increasingly avoided. A large drop in claims occurred immediately after the introduction of the revised Civil Procedure Rules. Although numbers of claims rose subsequently, the overall trend remained at a lower level than before (see Figure 27). In terms of trial timeframes, the 1997 reforms also had a positive impact (see Figure 28).131 In the meantime, a new management culture has developed in the courts of England and Wales. Not only has proportionality become a key guiding principle since Lord Woolf submitted his report in 1996 but the civil justice system has even become self-funding.132 95. Subsequent research has provided a more nuanced picture of cost reduction, delay and caseload as a result of the Lord Woolf reforms. Empirical data indi- cates that the achievement of reducing delay in the settlement of litigated claims 130 Dyson 2007. 131 Department of Constitutional Affairs 2001. 132 If the cost of providing fee concessions is not factored in. may have been bought at the expense of an increase in the delay in settling claims pre-issue, which constitutes the majority of cases. Also, the empirical data sug- gests that overall case costs have increased substantially over pre-2000 costs for cases of comparable value.133 The data con�rms the achievement of a goal of the Lord Woolf reforms, which was to reduce litigation in the civil courts by channel- ing cases through ADR mechanisms. Although there has always been a high rate of out-of-court settlement in the shadow of the law, this trend has accelerated over the last decade as a result of a deliberate policy. The impact was such that it has generated a debate about the phenomenon of the “vanishing trial.� The move towards full price costing was based on the assumption that civil dispute resolution is in the private interest and should therefore be paid for by court fees. Critics state that this may not have sufficiently taken into consideration the public interest in having a minimum of regular trials to sustain the civil justice system through the creation of new precedents and citizens experiencing the justice sys- tem, which may justify the use of public resources. Figure 27. Litigation reduction in England and Wales Source: Department of Constitutional Affairs 2001. 133 Fenn et al. 2009: 33, Lord Justice Jackson 2009. Figure 28. Delay reduction in England and Wales Source: Department of Constitutional Affairs 2001. Figure 29. Writs issued in Queen ’s Bench division 400,000 350,000 300,00 250,000 200,000 150,000 100,000 50,000 0 1938 1958 1968 1978 1988 1990 2000 2001 2002 2003 2004 2005 2006 Source: Genn 2010: 34. Figure 30. County Court Trials 60,000 120,000 50,000 100,000 40,000 80,000 30,000 60,000 20,000 40,000 10,000 20,000 0 0 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000 2005 Trials Small Claims ‘Arbitrations’ Source: Genn 2010: 36. 96. Prior to NPM-based reforms French justice institutions had begun some changes focusing on management and leadership roles. The delicate balance between �nancial judicial independence and performance accountability had to be modi�ed in order for France to be able to pursue NPM reforms.134 The French justice sector pursued a shift towards a more managerial culture, and part of that cultural change was initiated from within. The French National Judicial Academy (Ecole Nationale de la Magistrature, or ENM), for example, introduced training of judicial decision-makers in partnership with the French National Court Clerk Academy (Ecole Nationale des Greffes) with a focus on management and the imple- mentation of public policies as early as the �rst half of the 1990s.135 97. Uncontrolled growth in litigation was the main trigger for reform initiatives centered on a supply side response. A sense of crisis had taken hold of the French justice sector since the 1990s, due mostly to a rapidly increasing caseload. Between 1982 and 1991, for example, the civil caseload alone increased by 50%. 134 Ng et al. 2008: 62. 135 Jean et al. 2008: 6. The number of incoming cases continued increasing by more than 30% between 1990 and 1995. Despite improvements in productivity of staff and the increased use of ICT, backlog and delay continued to deteriorate. After some relief between 1995 and 2000, due to efforts at the appellate court level (target agreements), and increased recruitment, the number of incoming civil cases went up again between 2000 and 2004– this time by 17%. 98. However, substantial growth in budget and staff was not accompanied by re- ductions in backlog or delays. In view of the worrying dysfunctions of the court system, pressure mounted for a review of the French justice sector’s budget. The executive and the legislative branches �nally agreed to begin increasing the bud- get in 1995; between 2002 and 2007 total sector budget went up by 28%. The share of the justice budget in the overall state budget increased from 1.51% in 1997 to 1.74% in 2002 and then to 2.4% in 2008. Although most of this increase went into penitentiary systems, the number of judges and prosecutors also went up by 33.8% and the number of administrative staff by 18.8% between 1993 and 2007. Construction and renovation of court buildings and offices as well as the introduction of ICT contributed to improving the working environment, but in- creased funding and recruitment of more judges did not have the impact expected in terms of reduction in backlog and delay.136 99. A re-centralization process of judicial administration required a new organi- zational setup. Organizational changes, including the transfer of responsibility over the budget to the appellate courts, paved the way for more in-depth struc- tural reforms. Until the 1980s, the court budgets had been managed in a decen- tralized fashion; the transfer of this responsibility to the central offices of the Judi- ciary became effective in 1987 but did not have a judicial administration apparatus to rely on other than the administrative staff of the courts. This administrative staff operated under the dual authority of the co-chairs of the appellate courts (First President and Prosecutor General) and the co-chairs in the lower courts (court president and prosecutor). In 1992, the appellate court level was selected as the cornerstone for the deconcentration of judicial services at the expense of the lower courts. In 1996, in each appellate court, regional management services (services d’administration régionaux, or SAR) were established. They were put in charge of human, �nancial, budgetary, ICT and training management. Out of 35 SAR directors in 2008 only two were judges. The others had pursued a court staff career.137 100. A dual administrative system proved problematic from the point of view of judicial independence. Organizational complexity and unclear distribution of responsibilities have affected the implementation of the reforms. While the First President is appointed by the Judicial Council, the Prosecutor General is ap- pointed by the Cabinet and not surprisingly they have different priorities. Also, 136 Jean 2008: 9, 10, 11, 12. 137 Jean 2008: 11, 12. the First Presidents have tended to consider the dual management arrangement as an encroachment on judicial independence. Some also wonder why the Court of Accounts and the administrative jurisdictions are placed under the budget pro- gram “State Council and Control�, which is under the egis of the Prime Minister whereas the budget of the ordinary courts is under the Minister of Justice, jointly with that of the prosecutors, who are not independent.138 101. Performance-based budgeting was introduced in 2006 in spite of the resis- tance of some justice sector staff. Program budgeting was introduced in 2006 and may fundamentally change the way the French justice sector approaches the delivery of judicial services. When the Organic Law on Financial Laws (Loi Orga- nique relative aux Lois de Finances, or LOLF) introducing a new budget architec- ture was passed in 2001, few experts in the justice sector showed any interest in questions of public �nance. This changed as the implications for the justice sec- tor became increasingly apparent. Many judges were suspicious of the law which took full effect in January 2006 because it imposed a remuneration system based on efficiency in a context where workload had reached unprecedented levels. Ad- ministrative staff in the courts also suspected that the new law would cut down the number of their positions. Many in the justice sector considered the LOLF to be a technocratic model of the justice sector developed by outsiders whose only goal was to reduce judicial budgets. In this challenging context, the justice budget programs were put together by the Government and performance indicators de- bated and de�ned by Parliament. 102. The de�nition of performance indicators was the most challenging aspect of the new system and the one that justice operators most opposed. The LOLF was a shift from traditional input-based to output-oriented budgeting. This change towards a focus on deliverables is epitomized by the fact that the budget is organized in missions and programs. The “Justice Mission� is subdivided in �ve programs: ordinary justice, prison administration, judicial protection of minors, access to justice, and the conduct and piloting of justice policies. The perfor- mance of each program is measured by indicators developed by the Ministry of Justice. The performance logic underlying the new budgetary approach was re- ceived by justice sector actors with a mix of helplessness and hostility. Measuring performance required indicators, and their de�nition turned out to be challenging because the only measures available were statistics generated as by-products of case-management software measuring incoming cases and cases disposed of. 103. While measuring court productivity was relatively straight-forward, quality assessments proved substantially more complex. As the mission of the courts is to deliver quality judicial services within a reasonable time, the question was soon posed as to how to measure differing aspects of the same product (i.e. case dispo- sition). In the beginning, measuring the quality of justice was found to be difficult and indicators focusing on productivity were preferred. Because other countries’ experiences had shown that the development and testing of quality indicators 138 Jean 2008: 12. was a mid and long-term undertaking (for example, the Netherlands), the Minis- try of Justice settled for indicators that focused on easily quanti�able aspects of productivity. It was acknowledged that developing quality indicators would take more time. Quality was more than timeliness and the proxy of the ratio of �rst instance decisions overturned on appeal turned out to be of limited value. 104. Some French courts started to test the quality of decisions with the assis- tance of a roster of external experts but user feedback was not sought. Some courts started independent initiatives to �nd out how best to measure the quality of their work. For instance, the appellate court in Paris undertook a pilot evalu- ation of the quality of its decisions. This initiative, launched in 2003, appointed an external roster of experts to analyze the quality of decisions based on: (a) the process of writing the decision; (b) the dates of the major milestones in the pro- cess; and (c) the content of the decision itself. This roster of experts conducted a case-�le analysis of 1,500 judgments in 2006 that focused primarily on the supply side of justice and did not use court user satisfaction surveys to gather the views of court users, lawyers, or administrative staff.139 105. The application of performance-based budgeting to services provided by third parties to the Judiciary had an immediate positive impact in terms of cost-control. One of the explicit goals of the LOLF had been to reduce the cost of services provided by third parties for the functioning of the court. Typically, the bulk of these expenditures include towing services, phone bills, and medical exams provided by external companies or public utilities. Keeping these expen- ditures under control had been one of the goals of the LOLF and it was indeed achieved. The LOLF had an almost immediate impact of keeping certain judicial expenditures under control.140 106. The strong centralization required at the inception of the process was cru- cial to achieve some initial results but not to pursue deeper reforms. During the �rst two years of implementation, the LOLF generated a highly centralized management system, which did not leave room for initiatives by individual courts and kept tremendous pressure on the regional management services. It was un- derstandable that at the initial stage the central administration of the Ministry of Justice kept a tight rein on the process, as the reform was difficult and faced strong internal opposition from the Judiciary. The fact that judges, prosecutors and court staff were able to keep expenditures under control indicates that they were able to adapt their behaviors. However, the spirit of the LOLF goes further and some promises of the new system such as autonomy in management and the allocation of resources based on projects and performance have not yet been implemented.141 139 Marshall 2008: 124, 125. 140 Marshall 2008: 127. 141 Marshall 2008: 130. 107. The balance seems mixed and further reforms will be needed to achieve the ambitious objectives set by French reformers. Although the initial experience with the LOLF has generated more positive impacts than many in the court sys- tem had expected, it has not reached its full potential. The work on qualitative in- dicators continues with an aim of building meaningful tools to evaluate the work of judges, prosecutors, and other staff. The allocation of human resources remains a pending issue, as well as loosening the overly centralized control mechanism by entrusting individual courts with more autonomy that may yield even higher returns in terms of service delivery.142 108. Cost control is a clear initial bene�t of the performance-based budgeting in- stituted in French justice institutions. The implementation of program budget- ing in the French justice sector is still recent yet a new management culture is tak- ing hold. Cost control of the external expenditures (frais de justice) for the services required for the functioning of the court system has been very effective. Between 2003 and 2005, these had increased by 42.7%; by 2006 these costs decreased by 22.3% and then remained stable in 2007 and 2008 (see Figure 31).143 Figure 31. Evolution of expenditures related to justice services provided by third parties 600 000 000 500 000 000 400 000 000 Autres frais de justice Frais de justice commerciale 300 000 000 Frais de justice en matière civile et prude’ homale Frais de justice pènale 200 000 000 100 000 000 2003 2004 2005 2006 2007 2008 (prévision) Source: Sénat 2008: 21 109. The French administrative courts have pioneered performance contracts resulting in substantial delay reductions. The Council of State (Conseil d’Etat, the Supreme Administrative Court in France) and other administrative jurisdic- tions developed NPM-based approaches earlier than other courts and had been implementing performance-based logic since 2002, which the LOLF subsequently 142 Marshall 2008: 131. 143 Sénat 2008: 21. endorsed. One of the tools used was contract management between the admin- istrative appellate courts and the Council, i.e. agreements on performance and resource targets (contrats d’objectifs et de moyens). The overall work program of this jurisdiction was broken down at the Appellate Court level and the speci�c objectives were agreed between these courts and the Council of State.144 With minimal increases in the number of judges and staff, the objectives of reducing delay and controlling the caseload have been largely achieved; together with clear efficiency gains (see Figure 32). After 2000 the French administrative jurisdiction has reduced the average delay; down to more than thirteen months in 2007 in the case of the Appellate Courts and slightly more for First Instance Courts. Figure 32. Delays in the French administrative jurisdiction (months) Source: Sénat 2008: 81 110. Performance contracts in the French administrative courts have also re- duced backlogs. The agreed backlog targets were reached in 2007, while the structure of the backlog also improved. Indeed, the number of cases pending for two or more years decreased from 44% in 2002 to 10% at the end of 2007. Also, the productivity per judge has increased. The baseline was 88 cases disposed of per judge in 2002. The objective for 2007 was 98 and the actual result was 106. Between 2002 and 2006, the Appellate Courts have been able to dispose of more cases than new cases coming in. In 2007, the First Instance Courts reached the same target. However, the issue of disposing of incoming workload has not 144 Sénat 2008: 79, 80. been completely resolved and in 2007 the Appellate Courts once again received more incoming cases than they were able to dispose of,145 showing the signi�cant challenge posed by a 50% caseload increase between 2002 and 2007 in incom- ing caseload at the level of the Administrative First Instance Courts, which was mostly transferred to the Appellate Courts via regular appeals.146 111. As measurement is critical to NPM approaches to justice reform, indicators have to be carefully chosen and constantly re�ned. While performance mea- surement around quality remains challenging, the incentive systems put in place by choosing some indicators rather than others may provide a distorted view of performance. Various indictors were chosen in France to measure quality, such as the number of user requests to interpret a decision, to correct clerical errors and to correct refusals to decide on a case (requêtes en interprétation, en recti�cation d’erreurs matérielles et en omission de statuer) and according to these indicators the quality of the French Courts deteriorated slightly between 2006 and 2007. Another indicator was the ratio of successful cassation decisions in civil cases against the number of cassation requests, later re�ned as the ratio of successful cassations in civil cases against the number of civil cases handled by the appellate courts.147 In the case of the quality of the services provided by maisons de justice et du droit, designed as one-stop shops for those in need of justice services, user satisfaction surveys have provided useful data and shown high satisfaction rate with the services provided (95% in 2007).148 Spain: A complex individual performance measurement system is declared uncon- stitutional 112. Instead of broader performance measurements, the Judiciary simply want- ed to establish a measurable connection between budget allocations and the performance of judicial staff. The Spanish case offers some insights about the tension between performance-based remuneration of judges and judicial inde- pendence.149 In 1989 the Spanish Judicial Council (Consejo General del Poder Judicial – CGPJ) introduced a series of workload modules (�output measures� or módulos 145 Sénat 2008: 81,83, 84. 146 Sénat 2008: 79, 85. 147 Sénat 2008: 15. The Law Commission has recommended further improving this indicator by taking into consideration only those cassations based on a factual or legal error and not those simple determining a jurisprudential interpretation. 148 Sénat 2008: 18. 149 This section is based on Contini et al. 2007, Moreno-Catena et al. 2005, Samaniego 1999, Spanish Judi- cial Council 1999, Signifredi 2006, Strecker 1998, World Bank 2001. de dedicación) to measure the workload of courts, designed to serve as the basis for budget allocations and ultimately to establish the right numbers of judges and personnel per court. Initially, the modules were structured around the simple principle that a reasonable workload for the courts has to be solely measured by the total number of decisions rendered. 113. After a simplistic measurement was rejected a revised system was devel- oped to explore the interplay of a number of variables influencing judicial staff performance. This �rst approach was heavily criticized because it did not measure in detail the many diverse tasks courts perform. The módulos did not take into account the signi�cant differences between the services rendered by the courts at different levels and in different jurisdictions. Moreover, it did not make allowances for the differing complexity of cases. After CGPJ collected the objec- tions raised in a “white book� in 1997, with the help of a group of expert judges it proposed a newly designed set of workload modules based on qualitative and quantitative data. Whereas the old output measures evaluated only case comple- tion rates per court, the revised módulos de dedicación introduced a new system based on the workload of each individual judge. The new performance measure- ment was based on the connection between two criteria: (a) the working hours of each judge per individual task; and (b) the average duration of each proceeding. The módulos further differentiated two levels and set speci�c standards depend- ing on: (a) panel courts or single-judge courts, due to the difference in the court proceedings; and (b) cases according to the type of applicable procedural rules or degree of complexity of the subject matter. 114. The allocation of an average duration to each court task was the key ele- ment of the revised performance measurement system. As different proceed- ings take different lengths of time, the module mechanism set a standard value for each type of proceeding at court. The numerical value, which essentially was the average time needed, included all activities a judge must carry out --from read- ing the written pleading, to being present while taking evidence and eventually drafting the judgment. Different values were applied to reflect the different ways a proceeding could be completed (i.e. settlement or trial, evidentiary hearings or no hearings needed, etc.). This chosen value was cross-referenced with statistical data on proceedings to assure that the average time selected was realistic, by comparing the de�ned average standard duration with the data on actual cases docketed in a sample of courts in recent years. 115.In an effort to better reflect the reality of day-to-day courtroom activities the standard modules grew increasingly complex. The average duration system was subject to further re�nements: one assumption was that the time required was based on normal working conditions, and not, for example, on extremely positive or negative circumstances, such as a judge working with more staff than needed or a judge who works with inexperienced staff or faces constant un�lled vacan- cies. For exceptional cases, the module had special provisions that allowed for ex- tra time. For instance, if a lawsuit was particularly complex (in facts or in law) such case could not be measured by normal standards. The decision on whether a case was to be quali�ed as an exceptional one was not in the discretion of individual judges. Upon the request of a judge or the court president, a special procedure could be initiated. The Permanent Commission of the CGPJ would decide if a case was exceptional and deserved a different standard. The modules also reserved a percentage of working hours for unspeci�ed tasks in recognition that certain du- ties of a judge are not closely linked to the resolution of particular cases and/or are difficult to quantify (conferences with attorneys or parties, letters rogatory, execution of judgments, time between trials and hearings). The percentage of unspeci�ed tasks varied among courts. Módulos were later further re�ned based upon the work of a consultancy �rm that turned them into an even more detailed tool for the evaluation of judges that was based on more complex indicators cov- ering �ve areas: efficacy, quality, commitment and professional development. 116. The result was a very complex evaluation system that linked standard timesheets with particular tasks in various types of courts. Although Spanish law does not regulate the allocation of judges’ working hours to particular tasks, módulos were developed on the basis of 37.5 work week per judge, the legally es- tablished work week for court staff. After subtracting holidays, vacation and train- ing, the módulos are structured around 44 working weeks per year, for a total 1,650 hours annual working hours per judge (see Table 7). According to this table a judge working in a �rst instance civil court should dispose of between 750 to 850 civil actions per year depending on the complexity of the proceedings. The proposed point system was cross-referenced with the case disposition rate from 1997.150 The system also proposed a continuous revision of the time values to ensure more accuracy of the �gures and to adapt módulos to changes in procedural laws that would affect the average time standard (e.g. expansion of simpli�ed procedures). 150 It showed that the 1,320 points would have been exceeded in a vast majority of cases. Table 7 – Workload module for �rst instance civil courts151 WORKLOAD MODULES (based on the number of cases concluded) Concluded Civil Actions Points / Hours Proceedings for Large Claims 12 Proceedings for Lesser Claims 3.25 Declaratory Proceedings 2 Oral Proceedings 1.4 Summary Executory Proceedings 1.25 Mortgage Proceedings 1 Eviction Proceedings 1.25 Bankruptcy Proceedings 12 Other Civil Actions 1 Cases Requiring an Exceptional Amount of Time Up to 130 Total annual hours 1,650 hours* Time subtracted for activities not reflected 330 hours (20% of the annual work hours, or -7.5 hours per week) 1,320 hours/ MODULE FOR CIVIL COURTS OF FIRST INSTANCE points *1650152 117.An incentive-based system was short-lived because of union opposition and constitutionality issues. The modulo system was approved in 2000 and applied between 2003 and 2006 including the second and arguably the most radical step of the performance-based reform, which was to establish a connection between the módulos and remuneration as an incentive-based system that would link in- dividual performance and salaries. The salary plan provided a �xed amount (base salary) plus a variable amount (based on productivity). Judges that exceeded the minimal módulos standard set for that year by more than 20% would receive an additional remuneration of 5% to 10% of their salary. There was also a provision 151 The numbers presented henceforth are based on the system as presented in CGPJ (1999), Memoria, Vol. 1, Madrid 1999. 152 point = 1 hour. for sanctioning less productive judges. The base salary of judges that would per- form less than 80% of the applicable módulo could be cut by 5% but the CGPJ nev- er applied this provision probably because of strong union pressure. Even though Spanish judges’ associations acknowledged the need for evaluation, they strongly opposed the Judicial Council’s decision to implement the performance-based re- muneration scheme and eventually �led a constitutional challenge. The Tribunal Supremo ruled that the módulos system violated the principle of �nancial indepen- dence of the judiciary and the variable remuneration scheme was not based on sufficiently objective, equitable and transparent principles. 118. Although the performance evaluation system was suspended, the design and implementation process provided valuable lessons learned. The Spanish case shows the challenges posed by introducing performance management sys- tems to the judiciary. It is an example of a managerial approach to court admin- istration blocked by union opposition and insufficient analysis of its consistency with the broader legal framework. Nevertheless, the development of módulos still had a positive effect as an exercise in evaluation methods over several years. The process of collecting relevant data for judicial services evolved from a simple and easy to handle measurement of case completion rates utilized for budget alloca- tion to a comprehensive model focused on judges’ performance. The improved system was more equitable because it differentiated between proceedings and types of courts, while producing more detailed data not only on courtroom per- formance but also of the performance of individual judges. Utilizing the data ob- tained through módulos directly to an incentive-based remuneration scheme was unsuccessful mainly because the scheme was largely rejected within the judiciary. Judges perceived the system as too productivity-focused and a threat to the val- ues of the judicial process that emphasizes the achievement of the abstract values of justice on an individual case-to-case basis. The Netherlands: Effective court evaluation and quality control 119. The Dutch judiciary embraced NPM approaches earlier than other European countries by linking court budgets with justice services. Starting in the mid- 1980s, the �rst wave of reforms restructured the �nancing of the Dutch courts and reformed the organization for judicial administration. 153Under the old structure of judicial administration, the Ministry of Justice carried out all administrative tasks for every judicial entity and paid the courts’ bills and those of the public prosecu- 153 Background information available online at http://siteresources.worldbank.org/INTLAWJUSTINST/Ima- ges/LinkPDF.gif. See also Albers 2008; Committee for the Evaluation of the Modernisation of the Dutch Judiciary 2006; Langbroek 2008, Ng 2005; Ng 2007. tion service. A new budgeting system with a planning and oversight cycle was introduced to give a greater degree of freedom and individual responsibility to the courts. The budget allocation was based on the workload and nature of ser- vices that each court provided. However, determining the evaluation criteria and a calculation formula for workload and the exact amount of required funds for the services remained controversial, as different services needed differing amounts of time and resources, e.g. rulings, interim legal measures, settlement etc. The lack of de�nite, objective criteria (i.e. timelines etc.) and benchmarks for those ser- vices generated broad political discussions and resulted in periodic rede�nitions. 120. The establishment of a dual system of judicial administration proved to be problematic and had to be reversed. In order to implement a new budgeting system a dual administrative system was implemented by splitting tasks between the court president and a newly introduced court manager. A court manager (Di- recteur Gerechtelijke Ondersteuning) was appointed for each of the nineteen Dutch circuits (arrondissementen). Most circuits cover several local courts and one re- gional court, with the exception of the �ve largest courts which include two re- gional courts each. The court manager became responsible for the administration of funds under the supervision of the Ministry of Justice. S/he would be respon- sible for collecting data and drafting the budget according to the new system. The court manager was in charge of all of the non-judge court staff but, in order to protect judicial independence, s/he was not given any authority over the judges. The dual structure turned out to be quite problematic as judges felt excluded from the operational aspects of the courts while the non-judge staff continued to re- port to the judges rather than to administrative supervisors, following traditional practices. As a consequence, the outcome of court managers’ work depended predominantly on her/his personal relationship to the court presidents and other judges. The negative overall experience of the dual judicial administrative system resulted in its repeal in the late 1990s. 121. The launching of “The Judiciary in the 21st Century� program signaled a new stage in the reform process. A second wave of reforms was initiated between 1998 and 2002. “The Judiciary in the 21st Century� (Rechtspraak in de 21e eeuw) covered a number of small initiatives, pilot projects and experiments, including structural analysis, initiated and �nanced by the Dutch state. This process was sparked by the NPM-in-the-judiciary debate. Its overall objectives were twofold: (1) to undertake an in-depth assessment of where the Dutch courts stood; and (2) to stimulate change in the judicial culture and generate readiness and openness for further reforms among the judges. Two principles were steering the process: (i) safeguarding judicial independence; and (ii) assuring judicial quality. The strate- gies included focus on knowledge management, training programs, improvement of internal and external communications and application of the latest ICT tech- nologies. The reform process aimed at changing all levels of the judiciary through the introduction of a performance-oriented funding system and the redesign of the organizational structure of the Dutch judicial administration. 122. A new Judicial Council was crucial to separating administrative and judi- cial functions without impairing judicial independence. By 2002, the reform process had resulted in a major system overhaul. Two important Acts went into effect: the Dutch Judiciary Organization and Management Act (Wet organisatie en bestuur gerechten) and the Act on the Judicial Council (Wet Raad voor de recht- spraak). Similar to some of the most powerful Judicial Councils of LAC (e.g. Colom- bia), the Dutch Council of the Judiciary was created as part of the court system, with no administrative responsibilities over justice. Instead the Council took over responsibility for a number of tasks from the Minister of Justice, mainly preparing, implementing, allocating and accounting for the court system’s budget. Further- more, the Council became responsible for the recruitment, selection and training of judicial and court officials and the procurement of ICT. Finally, the Council also was entrusted with promoting the quality of the court system; advising on new legislation concerning the administration of justice, and acting as a spokesperson for the judiciary in public and political debates. The courts became accountable to the Council for the utilization of their resources but not for judicial decisions, while the Council reports to the Minister of Justice for the management of the judicial budget. The Ministry retains political responsibility for the functioning of the court system as a whole. 123. A comprehensive court evaluation system started to operate in 2002 based on quality control standards. The Council initiated reforms on legal quality and began to develop a comprehensive quality control system for all courts in the Netherlands, RechtspraaQ, an innovative methodology located between conven- tional production-related benchmarks and measurements of actual quality. The system is designed to outline the judicial functions at the court and circuit level and can be used for comparing quality between various courts and circuits. Every other year each court is required to conduct a court-wide review based upon the INK (Instituut Nederlandse Kwaliteit) procedure, the Dutch equivalent of the Euro- pean Foundation for Quality Management (EFQM). The court’s management team analyzes the progress of improvements based on the INK-standards. Once every four years, the courts are also obliged to conduct a survey on how users perceive the court’s services. Clients/users are litigants, lawyers, public prosecutors and other “repeat-players�. Within the same four-year cycle, the courts must evaluate staff satisfaction with their workplace which includes their jobs, the court’s orga- nization and the management team. Also every four years, the courts are visited by an independent evaluation committee (including outside parties) that renders a report on the current state of the quality of the Dutch judiciary to the public and the Ministry of Justice. 124. Innovative peer review and complaint systems complemented the quality control mechanisms. Ground-breaking elements of this system are peer reviews and a nationwide complaint procedure. Peer-review, a professional consultation among colleagues, is designed for individuals and intended to create a more open culture of exchange within the court system. Judges can use this instrument to evaluate, discuss and improve their own performances. It focuses on the judge’s interactions with the parties to the procedures, behavioral aspects and the quality of the judge’s decisions. Also, in 2002 a uniform complaint procedure for judges, support staff and the court as a whole was set up, aimed at streamlining the treat- ment of complaints and providing and improving the overall quality of the courts. 125. A special organizational structure was established to support the operation of the quality control system. The implementation of RechtspraaQ and its appli- cation by the courts is supported through two agencies: The Quality Bureau of the Council and Prisma. The Quality Bureau is the central entity responsible for vali- dating and maintaining the overall system at the national level, serving as central contact point. Prisma is an independent service provider that assists individual courts implement RechtspraaQ at their request. 126. Hard data and perception data have con�rmed the success of the �rst �ve years of the Dutch justice reform process. Five years after these reforms start- ed, a Committee for the Evaluation of the Modernization of the Dutch Judiciary carried out the �rst nation-wide, comprehensive evaluation of the reform pro- cess and published a report in 2006. It concluded that the reform process led to a halt of a long period of decline in judicial productivity and slightly reversed the trend between 2002 and 2005 (See Figure 33). While nationwide polls had showed a decline in con�dence in the judicial system in the 1990’s, data for 2000 to 2005 indicate the decline had stopped and Dutch public opinion was positive regarding the quality of the judiciary, which remained stable at around 60%. User opinion is even better: costumer appreciation surveys (including legal profes- sionals) conducted by the courts in 2003-2005 as part of RechtspraaQ show an increase in satisfaction between 2001 and 2004. By contrast, the judges’ percep- tion suggests that the performance-oriented funding system may cause a de- crease in quality in the long term because of the high production pressures.154 The different results in the quality of judicial services’ polls have been explained by an obvious difference in the perceptions between insiders and outsiders, as they are based on diverse assumptions and values of users and judges. 154 Similarly Langbroek 2008. Figure 33. Productivity of Dutch courts -Production per year of work of the Judiciary (Indices 1995 = 100) 160 140 120 100 80 60 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 personeel productie productie per arbeidsjaar 127. In spite of the tangible achievements, ensuring the sustainability of the pro- ductivity gains may prove challenging. Notwithstanding the overall success of the Dutch approach, concerns have been raised by the Committee and the judges regarding the need to continuously rebalance the values of efficiency, quality and independence while reforming the Dutch judiciary. The Committee noted that quality is under great pressure and recent gains may not be sustained because RechtspraaQ measures the pre-requisites for quality of the justice services but does not actually advance improvements in quality. A key feature of the Dutch system is that it adopted a mixed approach and developed a normative framework which ensures the autonomy of the judicial branch while increasing performance accountability through mechanisms inspired by NPM. 155RechtspraaQ seems to be the key element of this successful initiative in improving the work of the courts and evolving towards a more client-oriented culture within the judiciary. The Dutch case suggests that quality management is an ongoing process rather than a one-time quick-�x change, and the reform process has to be periodically evalu- ated and adjusted. 128. The reforms have resulted in improvements in productivity and cost effectiveness by the Dutch courts.156 The evaluation published in 2007 was wide-ranging and used a variety of evaluation instruments such as 155 Ng et al. 2008: 62. 156 Boone et al. 2007. web questionnaires, self-assessments, interviews, etc. It found that, over- all, the productivity of the Dutch courts increased by 8% between 2002 and 2005.157 As courts settle cases faster, the average cost per case has fallen.158 As recognition of improved performance and incentive for further reforms, the justice sector budget was one of the few areas in the public sector which was not decreased in the same period. While the other branches of Government have ful�lled their budget commitments to the Judiciary, the Dutch reform process has also shown that it is extremely useful for the Judiciary to provide solid data during budget negotiations. 129. There were also some unexpected side-effects of NPM-based justice re- form initiatives resulting from priorities and sequencing. The evaluation159 has shown that at the initial stages of reform the staff of the court system can get so excited about the new approach that they focus on easy wins such as in- creased productivity and cost savings, while more challenging aspects such as quality management are left to be addressed at later stages. For example, the Dutch judiciary quality management system was put in place a year later than the establishment of the new �nancing system, as the �rst priority for the Judicial Council and the Management Committees was to demonstrate to the political branches of Government that they had sufficient capacity to handle public money efficiently. Moreover, between 2002 and 2005, reformers engaged in a race for improved productivity, while a new performance measurement system was still being put in place.160 130. Critical voices maintain that the pressure on judges and court administra- tors to deliver is too high. Critics are concerned that judges and court adminis- trators may have to work far beyond the call of duty for the reform to happen,161 and there is a real threat to judicial independence. 25% of judges interviewed dur- ing the evaluation say that they have been summoned by their peers or the court president for failing to comply with the guidelines on the content of judgments. Although 74% of judges considered themselves free not to follow these guidelines, 60% indicated that only in rare cases they do not follow them. Nonetheless, a sur- vey among users indicates that there remains signi�cant room for improvement in the area of consistency of judgments. Judges reportedly complain that this is due to the high pressure to deliver which does not give them sufficient time to ful- ly consider the facts and the law before they are required to make a judgment.162 157 Langbroek 2008: 77. 158 Boone et al. 2007: 264. 159 The evaluation methodology relied on 2,900 questionnaires with a return rate of 63 %, self-evaluation of 25 management committees, meetings and roundtables with almost 200 judges and court administra- tors. 160 Langbroek 2008: 76. 161 Langbroek 2008: 77. 162 Langbroek 2008: 77. 131. Evaluations have also shown that the Dutch courts are concerned about the decreasing quality of their work. Although the outcomes of the survey show that this may be less serious than it appears from the interviews, there are reasons for concern. In order to address this issue, the Judicial Council and the court adminis- trators agreed on targets in 2006 to improve the judicial quality. The 2007 evalua- tion found that the effects of this intervention were still limited in the day-to-day practice, but anticipated that this would probably change in the short term.163 Box 3 - Six Reasons to Evaluate Court Performance Performance data enables veri�cation of assumptions, perceptions and beliefs of court insiders permits courts to respond to the concerns of individuals and groups being served standardizes and set the outcomes and ends rather than the means and, thus, help staff to better understand their individual contributions are central prerequisites for evidence-based demands for new court initiatives, additio- nal resources and the budget provide the means for courts to demonstrate how the public resources are spent and thus ful�ll their duty of public accountability Adapted from Brian Ostrom (2005) Why Measure? Five Reasons to Assess Court Perfor- mance. 132. The development of court performance standards was crucial for NPM-in- spired justice reforms to advance in the U.S. As part of the general efforts in the U.S. during the 1980s and early 90s to outsource, reduce and reorganize the public sector, the discussion about performance-based public institutions was carried over to the judicial sector. According to Richard Schauffler, the move to- wards performance measurement in the judiciary was further stimulated by the following factors:164 (a) steep increases in cases prosecuted as part of the national ‘war on drugs’; (b) more attention to court delays and costs of judicial services; (c) economic recession at the beginning of 1990s and corresponding cuts in state budgets; and (d) a lower level of public trust and con�dence in the judiciary in comparison to other institutions. 165 163 Boone et al. 2007: 264, 265. 164 Schauffler 2007: 118. 165 NCSC 1999: 12. Nonetheless, the con�dence in the U.S. courts by the public has increased as a compa- rison between a survey in 1978 and 1999 show. This study came to the conclusion that there is a strong support of the American Justice System, see American Bar Association (1999) Perceptions of the US Justice System, http://www.abanet.org/media/perception/perceptions.pdf 133. The U.S. Trial Court Performance Standards represented the �rst compre- hensive framework to introduce performance measurement. In 1987 the Na- tional Center for State Courts (NCSC)166 and the Bureau of Justice Assistance (BJA) initiated a project to develop and introduce standards to describe, classify and measure the performance of trial courts. As a result in 1990 the Commission on Trial Court Performance Standards published the U.S. Trial Court Performance Standards (TCPS).167 The TCPS system emphasized the improvement of court ser- vices to the public and focused on the users of the court system. The Standards were designed to evaluate the performance of the court as an organization (court performance) and not the performance of a single judge (judicial performance). TCPS was intended for internal use and evaluation, not for cross-court compari- son.168 It identi�ed �ve broader performance areas169 to be covered through twen- ty-two standards or guiding principles and used sixty-eight measures.170 134. TCPS changed attitudes and perceptions about the value of data related to court services, but was too complex for day-to-day use. TCPS used a variety of methods for data collection, such as: (a) surveys of clients and focus groups; (b) review of case and administrative records; (c) observations and simulations; and (d) internal working group techniques, such as brainstorming and focus groups. These methods helped to raise the awareness of practitioners, and advance their understanding and knowledge of performance measures in court houses. Given the novelty of this approach, TCPS encountered a number of challenges during the implementation stage, the main one being its complexity, which prevented successful implementation into the day-to-day work of the U.S. state court sys- tem. It was this complexity that ultimately led to the failure of TCPS. 135. The challenges surrounding the implementation of the TCPS recently led to the development of a new reform tool. Responding to criticism that TCPS had too many measurements and taking into account the popularity of the balanced scorecard, the NCSC developed CourTools,171 a new set of performance measure- ment tools based on TCPS but with a narrower focus. Measurements focused on ten core performance indicators that were supposed to be easier to implement in practice (see Table 8). 166 Among its many roles, the NCSC serves as a: (a) national think tank to anticipate new developments, identify best practices, promote experimentation, establish performance standards and measures, eva- luate program performance, and foster adaptation to change; (b) a national forum for discussion of issues affecting the administration of justice; (c) a national leadership agenda for improving the admi- nistration of justice; and (d) a national voice for the needs and interests of the state courts. NCSC also promotes collaboration among national court associations, and related national organizations, as well as international work. For more information see their website at http://www.ncsconline.org/. 167 NCSC et al. 1990. For more information see the NCSC website on this topic at http://www.ncsconline. org/D_Research/tcps/. 168 Schauffler 2007: 119; Casey 1998: 28. 169 Casey 1998: 25. 170 Albers 2008: 4, 5. 171 http://www.ncsconline.org/D_Research/CourTools/tcmp_courttools.htm Table 8 – CourTools 1. Access and Fairness 2. Clearance Rate Ratings of court users on the court’s accessibility The number of outgoing cases as a percentage of the and its treatment of customers in terms of fair- number of incoming cases. ness, equality, and respect. 3. Time to Disposition 4. Age of Active Pending Caseload The age of active cases pending before the courts, The percentage of cases disposed or otherwise measured as the number of days from �ling until the resolved within established time frames. time of measurement. 5. Trial Date Certainty 6. Reliability and Integrity of Case Files The percentage of �les that can be retrieved within The number of times cases disposed by trial are established time standards, and that meet estab- scheduled for trial. lished standards for completeness and accuracy of contents. 7. Collection of Monetary Penalties 8. Effective Use of Jurors Measurement of juror yield (the number of citizens who report for jury duty as a percentage of those Payments collected and distributed within estab- summoned) and juror utilization (the number of pro- lished timelines, expressed as a percentage of to- spective jurors actually used as a percentage of those tal monetary penalties ordered in speci�c cases. who reported for jury duty). 9. Employee Satisfaction 10. Cost per Case Ratings of court employees assessing the quality The average cost of processing a single case, by case of the work environment and relations between type. staff and management. Source: National Center for State Courts, 2007 136. CourTools were designed to ensure a consistent focus on inter- nal and external variables affecting court operation. NCSC pre- pared a sample template data spreadsheet for each measure with built-in graphs172 and practical guides for each of the ten measures including on its implementation and how to monitor the results.173CourTools is gov- erned by three interrelated criteria:174 (a) fundamental court values,175 such as independence, impartiality, fairness, access, and equality are the key ele- ments when determining performance measurement. The organizational design of the institution and the entire work process of the courts are based on these val- ues and, therefore, have to be developed around them; (b) a balanced perspective of court’s work processes and outcomes that takes into account the perspectives 172 See the NCSC website at http://www.ncsconline.org/D_Research/CourTools/ctTemplates.htm 173 http://www.ncsconline.org/D_Research/CourTools/tcmp_courttools.htm 174 Ostrom 2005: 4. 175 For more details on core values and court administration see Keilitz et al. 1998. of various players involved in the tasks; and (c) feasibility and sustainability which allow a stronger focus on the implementation of the system into the courts’ actual work processes. 137. CourTools were designed to be practical and �t into daily work. Design takes into account the possible legal restrictions and costs linked to performance mea- surement. CourTools should enable the courts to embark on a short to long-term reform process. As a result CourTools can measure: (i) court deliverables to cus- tomers; and (ii) cost-effectiveness in the allocation of court resources.176 CourTools should generate the data required to measure the value-added by the justice ser- vices provided by each court, thus making the courts accountable while facilitating cross-court comparisons. 177At least four States have started to implement CourTools measures on a state wide level178 but most are still in a pilot test phase. CourTools have also been implemented by individual courts throughout the United States.179 The evaluation of the results is pending. 176 Ostrom 2005: 3. 177 2007: 121, 122. 178 Arizona: http://www.supreme.state.az.us/goodtogreat/default.htm; http://azjudges.info/home/index. cfm California: http://www.courtinfo.ca.gov/reference/devperf.htm North Carolina: http://www.nccourts.org/Citizens/SRPlanning/Performance/Default.asp; Utah: http://www.utcourts.gov/courtools/ 179 For an overview, see Schauffler 2007: 122. Chart 4. TCPS Performance Areas and Standards Trial courts should ensure that the structure and court I. Access to Justice machinery are accessible to those they serve Public Proceedings Effective Participation Accessibility and Convenience . Trial courts should meet their responsibilities in a timely and Affordable Costs of Access expeditious manner II. Expedition and Timeliness Prompt Implementation of Law and Procedure Case Proceeding Compliance with Schedule III. Equality, Fairness, and Trial courts should work to instill public trust that courts are accessible, fair and accountable. Integrity Fair and Reliable Judicial Process Juries Court Decisions and Actions Clarity Responsibility for Enforcement Production and Preservation of Records IV. Independence and Trial courts should establish their legal and organizational boundaries, monitor and control their operations, and account Accountability publicly for their performance Independence and Comity Accountability for Public Resources Personnel Practices and Decisions Public Education Response to Change V. Public Trust and Con�dence Trial courts should provide due process and equal protection of the law to all who have business before them. Accessibility Expeditious, Fair, and Reliable Court Functions Judicial Independence and Accountability Source: National Center for State Courts, 2007 138. Quality management methods originated in the private sector and subse- quently adapted to the public sector can also be applied to justice services. Recent justice reform programs have been tailored around quality as a key value of justice institutions. They focus not only on performance and effectiveness but also include quality improvement and assurance concepts. Various quality models have been developed around the central elements of quality management: set- ting quality standards, quality control, quality assurance, quality improvement, and client feedback. Originally, management tools were designed to set quality standards for products. As a key aspect is client needs and satisfaction, generat- ing client feedback and utilizing it for management purposes is also central to any model. The quality models are quite comprehensive as they do not simply focus on the �nal product or service, but are designed to take the overall production process into account in order to ensure continuous improvement.180 139. Various quality improvement methods and systems have been developed in OECD countries. In the U.S. Total Quality Management (TQM)181 is an orga- nization-wide business management approach to long-term success by improv- ing products, processes, services and company culture developed since the early 50s.182 A similar model was developed in Europe by the European Foundation of Quality Management (EFQM)183 whose Excellence Model184 is an organizational framework of management systems based on nine criteria: (a) �ve ‘enabler’ crite- ria (leadership, people, policy & strategy, partnerships and resources); and (b) four ‘results’ criteria (people results, costumer results, societal results and key perfor- 180 Albers 2008: 1. 181 Dale 2003: 3, 4. 182 Feigenbaum 1951. 183 Albers 2008: 1. 184 http://www.efqm.org/ mance results). ‘Enablers’ apply to what the organization does, while ‘results’ cri- teria cover the organizational achievements. ‘Results’ are caused by ‘enablers’ and ‘enablers’ are improved using feedback from ‘results’. This model can be used not only as a Management System, but also as a practical tool for self-assessment/ benchmarking, or as a guide for improvement or creation of a common vocabulary. 140. International quality management models have also become very popular in both OECD countries and in Latin America. Another approach was developed by the International Organization for Standardization (ISO) which published the revised version of the ISO 9000 standards in 2000, a set of standards on good quality management for organizations. ISO 9001:2000 provides standardized re- quirements for a quality management system against which organizations can be certi�ed. The other standards from the ISO 9000 family cover further fun- damentals and vocabulary (ISO 9000:2000), performance improvements (ISO 9004:2000), documentation, training, and �nancial and economic aspects. This management system is based on eight quality principles that should lead towards improved performance: (a) customer focus; (b) leadership; (c) staff involvement; (d) process approach; (e) system approach to management; (f) continuous im- provement; (g) fact-based approach to decision making; and (h) mutually bene�- cial supplier relationships.185 Finally, the quality management philosophy of 6 (Six Sigma)186 was developed around the idea of defect prevention to gain competi- tive advantage. It assumes a standard deviation within a statistical universe of no more than 3.4 defective parts per million meaning that for practical purposes no items should fail to meet the set of standards selected. One central aspect of Six Sigma is the DMAIC approach to identify problems and solutions (De�ne, Mea- sure, Analyze, Improve, Control). 141. Some OECD justice institutions have pioneered the implementation of quality management standards originally designed for private companies. In France, for example, the international management standards ISO 9000 and ISO 9001 were explored in the late 1990’s and early 2000s.187 Justice reformers in the Netherlands and Portugal have worked with systems developed around EFQM standards. Outside Europe, the justice reform process for the subordinate courts of Singapore successfully applied Balanced (Justice) Scorecard and Six Sigma.188 The introduction of these managerial approaches into the justice sectors can cre- ate tensions among various stakeholders, especially between judges and the Ex- ecutive and has to be carefully designed and implemented.189 185 http://www.iso.org/iso/iso_catalogue/management_standards/iso_9000_iso_14000/qmp.htm 186 http://www.asq.org/learn-about-quality/six-sigma/overview/overview.html 187 Deffigier et al. 2005, Fortier 2002. 188 Subordinate Courts Singapore 2007. The German State of Hesse is another example where pilot pro- jects using Balanced Score Card as a tool for improving the administration have been implemented (e.g. youth prisons): http://www.hmdf.hessen.de/irj/HMdF_Internet?cid=3f71f334fe8813863214f1252f46ffa7. 189 Contini et al. 2007. 142. Justice services stakeholders have to agree on the meaning of quality. While Governments tend to focus more on efficiency and cost-effectiveness than on “quality�, judges and other sector operators emphasize this attribute of a justice service. Speci�cally “quality of justice� for judges means the “legal quality� of judicial decisions.190 Broadly speaking the “quality of the justice sector� for them means judicial independence. Complains about decreasing “quality of justice� are linked to real or perceived pressures from the Executive for higher productivity and efficiency. 143. The quality of judicial decisions is a critical element of advanced justice re- forms. In 2008, the Consultative Council of European Judges issued an opinion on the quality of judicial decisions191 that requires clear reasoning and analysis in judicial decisions for the bene�t of citizens. However, the opinion acknowledges that “it is not only the legal quality stricto sensu of the actual decision that matters; attention has also to be paid to other aspects such as the length, transparency and conduct of the proceedings, the way in which the judge communicates with the parties and the way in which the judiciary accounts for its functioning to society.� 144. The users’ views of the court system are a critical test for the quality of jus- tice. Although the quality of the judicial decisions may be supported by man- agement models, the public’s understanding of “quality� incorporates additional elements: fairness, accessibility, timeliness, affordability, treatment. It is therefore essential that the quality management system put in place not be limited to effi- ciency aspects but also take into account the expectations of the community and users about services delivered by the justice sector agencies.192 This more holistic approach to quality based on the needs and priorities of those who receive justice services thus combines data about the supply side (statistics, case-�le analysis etc.) with data generated through user feedback and surveys. This type of data has proven useful to validate or question justice operators’ own perceptions and were used, for example, by the Dutch RechtspraaQ system. 145. CEPEJ is conducting a research study on quality models implemented by Eu- ropean countries. CEPEJ researchers are examining the quality of the courts work by distinguishing between: (a) legal quality, or the standards, controls and poli- cies to ensure the quality of justice services; (b) managerial quality, or standards, controls and policies to improve court effectiveness and efficiency; and (c) public 190 Albers 2008: 2. 191 Opinion no.11 (2008) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the quality of judicial decisions. HTTP. Available online https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2008)OP11&Language=lanEnglish&Ver=original&Site =COE&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3. 192 Albers 2008: 3. service quality, or the standards, controls and policies to develop and maintain core-values, such as fairness, timeliness, independence, etc. in connection with court users (see Table 9). This methodology will be used to assess the quality con- trol systems in the courts of a sample of eight countries.193 Box 4. Paris Court of Appeals – Quality of judicial decisions evalua- tion questionnaire Evaluation criteria of the decision-making process of judicial decisions: • Has a report been written during the hearing? • What type of hearing was? • What kind of decision was? • The dates of the hearing, the decision and the handing out of the judgment Evaluation criteria of the judicial decisions: • Are the facts stated in a way that is sufficiently clear? • Are the claims of the parties mentioned? • Is the decision motivated? • Is the legal foundation mentioned? Is the judgment quali�ed? • Does the decision deal with the costs? • Are the start dates for interests and �nes speci�ed? • Are the enforcement mechanisms clearly speci�ed? 146. The Paris Court of Appeals took the lead in developing its own quality evalu- ation mechanism for judicial decisions. In 2003 the Paris Court of Appeals ad- opted a system to measure the quality of decisions in civil cases.194 It assumed that litigants in civil cases always expect a decision that recognize their right to: (a) be informed about the process until the decision is �nalized; (b) check whether their arguments have been taken in consideration; (c) be informed about the legal basis of the decision; (d) understand a clear, complete and easily enforceable decision. In addition to the formal legal control exercised by the appellate court, a roster was established to evaluate the quality of a sample of civil judgments on the basis of a one-page questionnaire that required simple answers (yes/no, clearly, par- tially, not at all) to a set of key questions (see Box 4). 147. Regular evaluation of decision quality of a representative sample may be a very valuable learning exercise. This roster mechanism was initially applied to a small sample of judgments in 2004. Two years later, the roster was extended to a more representative sample of 1,500 civil judgments issued by all the Tribunaux de Grande Instance of the Paris Court of Appeals. The analysis provided good insights about the process and the decisions: 80% of the judgments were rendered by a 193 Albers 2008: 9, 10. 194 Marshall 2008: 125. single judge and had a clear basis. By contrast, in 31% of the judgments, the legal basis was not speci�ed. This was a learning exercise not intended to stigmatize a judge or a jurisdiction, but left valuable lessons and showed that Judiciaries can learn from experience about how to improve the quality of judicial decisions. If practiced on a regular basis, the analysis of representative samples would allow regular measuring of subsequent changes in quality. 148. A voluntary benchmarking “circle� system has started to operate in the Ger- man state court system. Performance measurement and sophisticated court sta- tistics systems have a long tradition in Germany that resulted in PEBB§Y, a remod- eled and detailed workload measurement tool that is used across the states. The benchmarking circle of the Oberlandesgerichte (higher regional courts of appeal) is a cross-state initiative to improve the quality of the judiciary by combining hard statistical data with open and con�dential approaches for self-assessment in the German courts. The circle is an ongoing example of voluntary cooperation be- tween judicial players that shape quality management from within the judiciaries. 149. In 2005 the conference of the state ministers of justice agreed on a uniform justice quality management based on benchmarking. The Benchmarking Circle of Oberlandesgerichte is one of the latest quality management approaches in Ger- many. The courts of general jurisdiction (civil, family, commercial and criminal) are administrated by the states. Although the courts are largely structured along identical patterns, the administration of the judicial system is separate for each state. The State ministers of justice adopted a system of “benchmarking circles� for the �rst instance courts of general jurisdiction (local and district courts [Amts- and Landgerichte]). The benchmarking is used for comparison within each State and 195 is based on three data sources: (a) caseload statistics; (b) judicial admin- istration statistics; and (c) staff and client satisfaction surveys. The caseload and judicial administration statistics are available to the courts through PEBB§Y –a tracking system for court personnel requirements.196 195 Benchmarking cannot be applied to so-called “solitaires,� i.e. courts without appropriate equivalents within a State, such as the Oberlandesgerichte or courts that are in charge for the centralized judicial order for payment procedures (Mahngerichte) since in most States there is only one court of this type. In order to make the quality management approach useful for solitaires, a voluntary group of various Oberlandesgerichte decided to create their own benchmarking circle designed for an inter-State compa- rison. This benchmarking circle measures rests upon the same structure already used for the intra-State benchmarking at the �rst instance level in the State of Lower Saxony but was adapted to the speci�c nature of these courts of appeal. 196 PEBB§Y is a nation-wide system to calculate the personnel requirement for the ordinary courts (civil and criminal jurisdiction) and the public prosecution service. PEBB§Y de�nes average time standards for different types of tasks and proceedings handled within courts/public prosecution. This system forms the basis for allocation/hiring of staff and shows court performance. The data can also be used for budget allocations and judicial policy making. 150. Staff and lawyer satisfaction surveys are another key source for perfor- mance feedback. Staff and client satisfaction surveys are speci�cally designed for this benchmarking exercise. Each survey area is assessed on a scale from 1 to 7 (ranging from completely unsatisfactory to completely satis�ed). The staff survey has 124 questions from 16 areas used to assess satisfaction (See Table 10). Another key source for performance feedback is lawyer satisfaction surveys, the so-called “User I Surveys� designed to assess the satisfaction of lawyers that fre- quently use the courts of appeal. The lawyers’ survey covers 49 questions from 9 areas of measurement (see Table 11) The Lower Courts Satisfaction Survey (“User II Surveys�) also provides valuable performance information and is based on 58 questions from 9 different areas of measurement (see Table 12). 151.Data from the various user surveys are then used for benchmarking purposes. After the satisfaction surveys are �lled out and returned to the respective courts, data are electronically �led and prepared for benchmarking by a single coordinat- ing body. Each court of appeal will receive a copy of the results in an anonymous format. To allow internal self-assessments each court receives only its own scores in each evaluation area together with the average for all State courts and the ag- gregate �gures of the best performing court (see Figure 34). 152. Each court decides whether or not to share the outcome of the benchmark- ing process. By making the outcome of the surveys only available to each court, the benchmarking system seeks to ensure honest answers and avoid public pres- sure for competition among different courts. Instead, the system is designed to establish an open internal evaluation process and generate trust among the peo- ple involved in order to move from pure data collection to a culture of change and performance improvement. Some courts have agreed to share all their data freely among themselves to allow a better exchange of information and have a broader discussion on the relevant areas. Table 9. CEPEJ evaluation criteria of quality models Quality Management Quality Values Q. Standard Q. Controls Q. Development Areas Judges meetings at Consistency, pro- chamber and unit Improvement of judg- Judgments & Legal Q. cedural level, training for ments (e.g. legal reason- legal reasoning fairness new laws, appeals? ing, readability) Efficiency, timeli- Managerial ness of proceed, Time Manage- Statistics on perfor- Active case management Q. cost per case ment mance program Satisfaction of 75% of users Quality of service meet- Regular users’ “Public� Q. the public for the satis�ed with… ings with key users, focus surveys service delivery compartment, groups, etc. Source: Albers, 2008. Table 10. Staff satisfaction survey areas 1. Overall Satisfaction 7. Prognosis 13. Decisions 2. IT / Online Services 8. Affiliation 14. Personnel Review 15. Information and Internal Com- 3. Training 9. Section / Working Group munication 4. Direct Superior 10. Court President 16. Organization 5. Court Management 11. Internal Coordination 6. Department Management 12. Work Source: Albers, 2008. Table 11. Lawyers’ satisfaction survey areas (Appeals Courts) 1. Overall Satisfaction 4. Daily Work 7. Quality of Work 2. Staff 5. Work Space 8.Availability 3. Organization 6. Timeframes and Deadlines 9. Service Source: Albers, 2008. Table 12. Lawyers’ satisfaction survey areas (Lower Courts) Overall Satisfaction Transparency 7. Reliability Administrative Decisions Cooperation and Communication 8. Auditing Daily Work Innovation and Changes 9. Reporting System Source: Albers, 2008. Figure 34. Sample overview for performance in staff satisfaction survey 153. An effective information-sharing process is required for the benchmarking approach to succeed. The collection of data is only the �rst step in this quality management approach; the second step includes analysis, information exchange, and identifying weaknesses. Each Oberlandesgericht holds a presentation on the �ndings of the surveys for their staff. Depending on the size of the court, this can be done in an all-in-one presentation or more detailed presentations on speci�c issues for the staff concerned (criminal cases, civil cases, family cases, adminis- tration, etc.). A detailed analysis down to the outcome of each question is made available to interested staff members. Then a series of staff workshops (including judicial and non-judicial staff) takes place within each court. These meetings are moderated by peers from other courts that received a three day training to ensure that they also have the same set of standards and are familiar with the issues to be discussed. At this working level an information exchange between two courts is established. The staff-workshops are a forum to discuss the �ndings in details. Participants may come up with a series of ideas and suggestions for improvement and workshop �ndings will ultimately be sent to the courts president/manag ement. Separate workshops for the users (lawyers and �rst instance courts) are held to receive comments and suggestions. 154. The �nal evaluation phase involves conferences on administrative issues and case law aimed at developing action plans for addressing weaknesses. The third phase of broader information exchange is a series of two conferences; one for the administrative issues and one for case law. Each conference brings togeth- er the relevant staff from all participating Oberlandesgerichte that will exchange information on different sub-topics. Both the surveys and information from the States’ electronic information management system provide input for the confer- ences. The management system contains all relevant hard-core performance data on case load �gures and administrative �gures collected for PEBB§Y. Once the catalogue of action plans for improvement is complete, a new survey cycle is pro- grammed to enable periodic comparisons of staff and user satisfaction as well as the case and administration statistics submitted. 155. The development of quality control was initially linked to the change of the budgetary allocation system. In Sweden, court managers decided to start systematic work on quality issues in 2004. A quality group composed of judges and other staff issued a handbook suggesting methods and a strategy for qual- ity management in courts.197 Subsequently, proposals have been developed to es- tablish a modi�ed resource distribution model to take into account the quality enhancement initiatives carried out by the courts. The goal was to con�rm the Judiciary’s commitment to quality and to modify the old system of distribution of funds among courts that relied heavily on quantitative variables.198 The new sys- tem would set strong incentives for courts to start conducting systematic work on quality-enhancement issues. In the meantime, numerous courts in Sweden have already started implementing quality management approaches. 156. A continuous process of internal and external dialogue created the basis for successful reforms. Although court managers had shown strong interest in sys- tematic quality work, they struggled to implement this approach because at their core courts are organizations with independently-minded judges who were reluc- tant to believe that court managers are more knowledgeable about how to pro- duce high quality work. Court administrators found it challenging to tell judges what to do, and both felt ambiguous about the ability of consultants to improve court functioning. Some courts overcame the initial challenges by establishing an internal dialogue process engaging all judges and other court staff with the court manager about how to improve court operations. The court managers and their teams then selected the measures to be implemented from the proposals received and substantiated their decision by explaining the reasons in commu- nications to dialogue participants. Subsequently, the measures were also imple- mented and evaluated through participatory processes that allow staff to express their opinion on what has worked and what has not, and to make suggestions for changes (see Chart 5).199 157. The internal and external dialogue system is time consuming but generates lasting results. The dialogue has been widened to include lawyers, prosecutors 197 Domstolsväsendet 2005. 198 Statens Offentliga Utredningar 2008: 26. 199 Hagsgård 2008: 10. and court users, external stakeholders that provide additional suggestions on how to improve the courts. This external feedback is discussed internally among judges, court staff and court manager, and once a decision is made the reasons are communicated externally. After implementation and evaluation, lawyers, prose- cutors and users are approached again to provide feedback on the results and make suggestions for further improvements so as to make a continuous circle of internal and external dialogue (See Chart 5). Experience in Sweden has shown that the courts that underwent this dialogue process were better at reducing delays. Job satisfaction also increased, and the improvements were sustained over time. An additional advantage of this process is the lasting commitment by those work- ing in the courts to new areas of quality, such information to and treatment of court users, which they have now internalized as main responsibility.200 Chart 5. Sweden: Circle of internal and external dialogue Circle of internal and external dialogue Internal and Internal external decision dialogue Adjust Plan Check Do Internal and external Internal dialogue decision Source: Hagsgård 2008: 10 158. The Netherlands and Finland have developed their own quality monitor- ing systems through participatory mechanisms. Experience in Europe shows that a common understanding of quality will ultimately determine the commit- ment to, and the success of, quality enhancement efforts. In order to reach such a common understanding by judges, court staff, and court managers, an inclusive process has to be followed that engages all relevant stakeholders. The details of 200 Hagsgård 2008: 11, 17. the agreements reached may be different, but the successful implementation of quality management approaches requires passing through this process, as it has happened in the Netherlands and Finland.201 In the Netherlands, the agreed upon areas of quality measurement were: (a) independence and integrity; (b) timeliness of proceedings; (c) consistency of case law; (d) expertise; and (e) services to the users. For each of these areas, several indicators were de�ned, as well as speci�c measurement tools such as statistics, staff and user surveys, and audits to gener- ate and collect the relevant data. 202 In the Rovaniemi Court of Appeal in Finland, a quality project was launched in 1999. By 2003, a set of six quality benchmarks for adjudication was agreed to analyze the quality of court activities. Each of these benchmarks comprises between four and nine quality criteria: (a) the process; (b) the decision; (c) services to users and the public; (d) speed of the proceedings; (e) competence and professional skills; and (f) organization and management of adjudication. Each quality criterion is evaluated on a six-point scale, and the total points for each benchmark are the result of adding the points obtained under each criterion. The maximum score is 210. The assessment based on these benchmarks is undertaken every 3 to 5 years, but some aspects are monitored constantly.203 159. The court system in the United Kingdom has embraced quality management approaches based on a Balanced Scorecard approach. More than a decade after the Lord Woolf report, the strategic quality goal of Her Majesty’s Courts Services (HMCS) is to provide access to justice as quickly and at the lowest cost possible thereby increasing respect and con�dence in the court system. The HMCS busi- ness strategy published in 2006 sets quanti�able targets, details the initiatives to achieve these targets and explains the indicators measuring the progress towards achieving the goals.204 160. Public Service Agreements help achieving key performance results. Realizing that the focus on productivity alone is not enough to adequately address services provided by the courts, HMCS has developed a tool that integrates the courts’ achievements in building a good reputation with users and the community, as well as in investments in staff development (see Chart 6). The Department’s aims and objectives are also set out in public service agreements that explain how targets will be achieved and how performance against the targets will be measured. The example in Chart 7 shows how customer satisfaction surveys are integrated into the agreements.205 201 Savela 2006. 202 Albers 2008: 11. 203 Albers 2008: 14; Savela 2006. 204 Her Majesty’s Court Service 2007: 22. 205 Her Majesty’s Courts Service 2009: 14, 22, 26. 161. Building on a rich variety of approaches, an International Framework for Court Excellence was launched in 2008. Experts from North America, Europe, Australia and Singapore reviewed the court quality models used in a number of countries, and analyzed the processes, models and lessons learned with these ap- proaches. The underlying idea was not that “one size �ts all� but, rather, that there are common aspects and useful tools which courts worldwide can take as a start- ing point to develop their own approaches to court excellence, independent of their legal culture, location, size, resource level and degree of institutional matu- rity. The purpose of the framework is to inform and inspire such initiatives.206 The International Framework for Court Excellence is an evolving tool. Courts across different jurisdictions have started to use it because it is adaptable to their own needs and priorities. While it is still too early to assess the impact of the Frame- work, the Consortium is committed to regularly amend and adapt it to reflect new systems and initiatives directed at improving how courts deliver services.207 162. The Framework allows assessing court performance against seven detailed areas of court excellence. It provides a model methodology for continuous eval- uation and improvement speci�cally designed for courts. Its approach is holistic and is, therefore, different from reform initiatives focusing on a limited range of performance measures targeted to a number of aspects of court activity. 206 International Consortium for Court Excellence 2008. 207 For more information on ongoing initiatives see the Consortium’s website at http://www.courtexcellen- ce.com. Chart 6. HMCS’s balanced scorecard Source: HMCS, 2009 It assumes that measurement and management are the key concepts for a quality ap- proach to succeed. Proactive management and leadership are required at all levels, not only at the top. Sound decision-making to promote quality, however, requires reliable information on relevant performance areas including court management and leadership, which become also an area for measurement (see Chart 8).208 163. Courts share a range of core values that give meaning and provide direction to the organization. In order to approach quality holistically, the Framework inte- grates these values into considerations on quality management, which also serves to avoid undermining the values underlying the system and distorting the system as a whole. For the same reason, the areas of measurement or the indicators are selected to prevent perverse incentives. Taking the Framework as a starting point, courts could agree on their own set of values, their own indicators, and their own areas of measurement. Once shared values are agreed upon and priorities are determined, a judiciary committed to court excellence has to build a consensus 208 International Consortium for Court Excellence 2008: 12. around how to apply those values. This is critical for the actors of the system to take ownership of the reform agenda (see Chart 9). 164. An assessment of current court performance is a key �rst step. The Interna- tional Framework for Court Excellence provides a self-assessment questionnaire based on experiences in different countries.209 In an open and participatory pro- cess involving judges, administrators, and other staff as well as the bar, law en- forcement agencies and civil society organizations, the judiciary should lead the effort in order to identify areas that work well and issues that can be addressed. The self-assessment questionnaire enables the courts to put in place and lead a change process. Chart 7. User satisfaction surveys in public service agreements High level targ et Business ar ea Key Other targ ets and measur es Supporting Target Performance Indicator (SI) Indicator (KPI) KPI 10 - The ‘very satis�ed’ element of the HMCS court user survey to 41% be maintained at or above the year 2 (2007-08) survey baseline of 41% Area Measure - each area to maintain their ‘very Local area satis�ed’ survey results at or above their 2008-09 baseline area baseline targets Customer Service Unit (CSU) - proportion of 90% complaints responded to in 15 working days Customer Ser vice Area offices - proportion of complaints responded to 90% in 10 workings days Courts - proportion of complaints responded to in 10 90% working days Source: HMCS, 2008 165. Development and implementation of an improvement strategy follow the initial assessment. Once the court has identi�ed its strengths and weaknesses, it can develop a strategy identifying short-term, mid-term, and long-term goals as well as the interventions through which these goals can be achieved. The Frame- work provides guidance on both process and content to make sure key perfor- mance areas are adequately de�ned and quality addressed in a holistic way. Pe- riodic follow-up assessments during implementation allow the court to monitor improvements, readjust goals, and re�ne improvement interventions. 209 International Consortium for Court Excellence 2008: 41. 166. The Framework also measures the extent to which courts have developed or implemented an effective approach with respect to key performance areas. It helps courts to reflect on their performance and determine whether a compre- hensive strategy or area-speci�c strategies have been developed, whether these approaches are consistent and support key performance areas and to what extent these approaches are innovative. In the case of courts that have developed a strat- egy document but have not implemented it in whole or in part, the Framework provides the tools to understand where the court really stand, how to look at these issues openly and �nd out why the strategy was not effectively translated into action and how this can be addressed.210 167. Finally, the Framework helps courts to look at the results of the quality im- provement approaches. Measuring the outcomes of improvement initiatives is critical to a court’s understanding of whether it is directing its resources to the right targets. To evaluate the results, the Framework suggests looking at aspects such as the current performance levels relative to the targets set, performance levels compared to appropriate benchmarks, and the rate, breadth, and relevance of performance improvements.211 168. The Framework uses a balanced scorecard to facilitate self-assessments. A balanced scorecard based on experiences with similar approaches across different jurisdictions has been developed by the International Consortium for Court Excel- lence. It enables courts to give scores and to quantify the �ndings by establishing a matrix built on the performance areas, on the one hand, and the degree of de- velopment, implementation and effectiveness of the court’s existing initiatives on the other. The court looks at each performance area to assess how well designed and considered an approach is, how well it has been deployed, and to what extent it has generated results (see Chart 10).212 169. The balanced scorecard is a helpful tool only if it is fully owned by the Court. The total score provides an overall indication of the court’s performance based on a maximum score of 1,000 points. Since measurement is not part of the tra- ditional court culture, most numerical scoring systems are generally received by courts with distrust. If, however, the courts develop ownership of these systems, they can use them as a particularly valuable tool to track their own performance, measure their relative progress over time, and gain momentum by energizing ev- eryone involved in the reform process. If the balanced scorecard is imposed from the outside, for example by the executive, the distrust may grow. Courts should take the lead in the assessment process, while pursuing a participatory approach involving all relevant stakeholders. The Framework provides guidance on how to organize the assessment process in order to reach a consensus on the scores through this participatory process. 210 International Consortium for Court Excellence 2008: 26, 27. 211 International Consortium for Court Excellence 2008: 28. 212 International Consortium for Court Excellence 2008: 29, 31. 170. The Framework helps to identify areas for further improvement in conjunc- tion with external actors. Once the self-assessment is completed, the courts can use the �ndings to develop an improvement strategy by focusing on areas where it is relatively under-performing. It is important that while the process is led by the courts, at the same time it needs to involve a variety of internal stakeholders such as judicial officers, court employees as well as external stakeholders such as the court’s professional partners (bar, agencies of the justice sector, etc.) and civil society.213 171. The effective implementation of improvement initiatives requires the col- lection of data measuring both quantity and quality of justice services provid- ed. While the Framework emphasizes that courts must collect and use informa- tion on the duration of proceedings and other quantitative data, it recognizes the need to shift the focus from simple inputs and outputs to court user satisfaction and quality of service. In addition to the data obtained through case management systems, courts may use surveys of staff, professional partners such as lawyers, and other court users. The decision on who will generate, collect, and analyze this information is crucial. As courts may not have staff trained in research methods and analysis, and consultants may be useful but hiring them requires resources, thus, the Framework suggests teaming up with social scientists from local univer- sities or other institutions.214 172. Courts should be open to communicate evaluations and improvement plans to all stakeholders. The Framework acknowledges that courts may initially be reluctant to communicate their �ndings. When looking to establish an appropri- ate balance between transparency, on the one hand, and a sufficient autonomy for courts to identify and discuss de�ciencies without potential outside criticism and pressure, on the other hand, courts have a tendency to favor the latter. However, the Framework notes that open communication, especially if combined with a court strategy for improving performance and a willingness to lead and monitor this effort, is key for building public trust and con�dence. This is particularly im- portant if the starting point of court performance is less than stellar. 173. Striving for court excellence is a gradual process. The various justice reform experiences in OECD countries have provided a wealth of lessons about how to approach reforms as well as which pitfalls to avoid. They certainly show that striving for court excellence is not about a one-time solution or quick �x. It is a process of constant learning and improvement. Cross-country learning is an in- valuable resource on the journey towards court excellence, but tailor-made ap- proaches based on international standards are essential for the process to have good chances of success. 213 International Consortium for Court Excellence 2008: 31. 214 International Consortium for Court Excellence 2008: 33. Chart 8. Areas for Court Excellence (drivers, systems and enablers, and results) Source: International Consortium for Court Excellence 2008: 12. Chart 9. Values underlying the International Framework for Court Excellence215 EQUALITY (BEFOREE THE LAW) FAIRNESS IMPARTIALITY COURT INDEPENDENCE OF DECISON-MAKING COMPETENCE VALUES INTEGRITY TRANSPARENCY ACCESSIBILITY TIMELINESS CERTAINTY Source: International Consortium for Court Excellence 2008: 12. 215 International Consortium for Court Excellence 2008: 8. Chart 10. Balanced Scorecard WEIGHTS Source: International Consortium for Court Excellence 2008: 31. 174. The success of justice sector reforms depends on cooperation of a range of institutional stakeholders that only strong reform leaders can build. A variety of institutions are generally involved in the governance of the justice sector, and improvement initiatives can be negatively (or positively) affected by any of them. At the same time, the service delivery chain is only as good as its weakest link yet it may be difficult for one part of the chain to influence another, as they have different incentive and governance structures (e.g. police performance affecting court cases). It is therefore key to generate a minimal level of consensus around a strong reform leadership for reform initiatives so as not to be doomed from the outset. 175. Ownership of, and support for, the reform process are essential to avoid deadlock, generate initial success stories, and sustain the reforms in the long- term. Although justice reform programs are tailored for each particular country case, certain general conclusions emerge from the experiences outlined above. The �rst is that continuously involving the main stakeholders affected by the changes at an early stage in the reform process signi�cantly enhances its chanc- es for success. The Dutch reforms were initiated partly from within the judiciary itself and followed an inclusive bottom-up approach that was essential to build trust. This trust was critical to ensure the reforms’ success. A sustainable process that effectively raises the quality of the justice services will need the support from court staff at all stages. Strong opposition among key institutional players (e.g. Judges vs. Ministry of Justice) diminishes the chances of success. During a partici- patory reform process each institutional player will have to acknowledge that the values pursued by the other are equally valid (e.g. Judges: fairness, Government: efficiency). 176. An effective communications strategy is also critical to manage sensitive re- lationships between the executive and the judiciary, and to engage citizens. Not only is the relationship between the judges and the Executive especially sen- sitive and needs to be tackled with care but cultural and professional backgrounds have a signi�cant impact on the process and outcome of reforms. Most judicial staff, not only judges, are trained in law but are not prepared to be managers or administrators of a courtroom. They are not sensitive to the impact of orga- nizational development issues in their day-to-day work. However, it is essential to ensure that these stakeholders learn to understand the fundamentals of an organizational change process and �nd a common language with the reformers, as exempli�ed by the Dutch case. This has to be a two-way process: (a) lawyers and judges have to understand organizational reform and quality management terminology and need training to assume new roles as court managers or opera- tors responsible for non-legal areas in order to implement the reforms success- fully; and (b) non-lawyer reformers need to learn about the particular values and characteristics of the legal staff. In the Netherlands, a continuous exchange of information and better understanding between senior judges and court adminis- trators allowed them to move to the subsequent outreach phase. The Council of the Judiciary took on the responsibility of community outreach by developing a media strategy ensuring that the judiciary speaks with one voice. 177. Redesigning courtroom processes to favor teamwork helps mitigate the risk of bureaucratization and isolation of individual judges. The justice reform pro- gram in the Netherlands also involved the construction of new court buildings and/or refurbishment of old court offices complemented by up-to-date ICT tech- nology that helped creating an environment more conducive to teamwork among all actors involved in delivering justice services. Teamwork also mitigates the risks associated with a highly bureaucratized system in which the highest levels of the organization are disconnected from the day-to-day work of individual judges. Re- chtspraaQ, for example, focuses on managing court operations and productivity but does not review the substance of the judges’ work due to concerns about judicial independence. Teamwork may promote exchanges of information and opinions that serve as an internal “checks and balances� for the decision-making process of a group of judges without impairing judicial independence. 178. Performance evaluation remains a complex area of justice reform, perma- nently exposed to politicization. In Spain, data from performance measurement systems was supposed to serve as basis for debate on how to improve judicial services but quickly transformed into politically-charged debates about linkages to court outcomes/budget allocations. Linking the measurement system to remu- neration generated protracted discussions on the value-added and complexity of certain judicial procedures, which were hard to tackle in technical terms but be- came unmanageable in political terms. The entrenched views of the executive and the judiciary changed the focus of the discussion and, in the end, the measure- ment system’s inherent value was reduced by political discourse into a bone of contention. What was supposed to be a debate on a transparent source of became an argument on the values and ends of justice services (public trust, quality etc). Spain’s case also shows that measurement systems for the judiciary have to be de- signed in such a way that the data collected is sufficiently detailed and differenti- ated to lead to meaningful results, but at the same time needs to be cost-efficient and easy to apply. Reformers have to strike the right balance between the degree of detail and the limits set by practicality. 179. Automatic linkages between performance and remuneration may be per- ceived as infringing on judicial independence. Linking data from measuring in- dividual judge’s performance automatically to judge’s salaries led to even more complex debates on judicial independence in Spain. The Spanish High Court agreed with the judges’ complaints. In countries where remuneration based on performance cannot be established because of similar constitutional concerns, it is possible to look into variable remuneration mechanisms that do not rely on an evaluation system. 180. A sound and balanced set of indicators is crucial when linking budget and performance information. If it is true that things that get measured get done better, there are three additional aspects to consider: (a) the negative is also true: things that do not get measured may not get done at all; (b) not everything that is measurable is relevant; and (c) not everything relevant is easily measurable. As a consequence, in order for performance-based budgeting to function well, it is critical to generate performance information based on a balanced and sound set of indicators. The choice of indicators sets incentives that affect the behavior of those working in the organization.216 The OECD found that “while the existence of output measures may lead staff to strive for improved performance, it may also lead to the neglect of non-measured dimensions or to ‘gaming’ the system, in which either the output itself is adjusted or the measurements are distorted in order to achieve the appearance (rather than the reality) of ‘good’ performance.217 181. The impact of the reforms inspired by NPM approaches is still relatively re- cent, but has been signi�cant in terms of efficiency gains and savings of pub- lic monies. NPM has initiated a change of court culture. Obviously, this has not happened without hesitation and sometimes open resistance from parts of the Judiciary. Consensus building in particular has turned out to be a key factor in de- termining success or failure of reform efforts. While some objections were legiti- mately based on considerations of judicial independence, others may have been based on vested interests. Although the politicization of the discussion in many countries may have exaggerated both the bene�ts and the risks of the reforms, in France, the Netherlands, and the United Kingdom reform initiatives based on NPM approaches have shown clear bene�ts in terms of efficiency gains and public monies saved. 182. New approaches aimed at achieving performance improvements are being developed based on a revised appraisal of reform objectives and instruments. Although it is generally acknowledged that the results of justice sector reforms 216 Decker 2009: 49 217 OECD 2009: 16 only materialize in the medium to long-term, after more than 20 years of reforms in Latin America a number of stakeholders have grown disillusioned with tradi- tional reform programs and have started to search for different approaches that provide for more rapid changes in outputs and impacts. On the basis of lessons learned from experience and recent research suggesting that earlier diagnostics and treatments were not adequate, it is time to revise some of the traditional as- sumptions as to the nature of the sector’s illnesses and their remedies. Some of the new approaches are inspired by the experience of OECD countries, very often at the suggestion of OECD donors active in Latin America. They do not imply radi- cal departures from the objectives or structure of the reform programs but aim at tightening the links between sector inputs-outputs (see Table 13). Table 13. Alternative approaches to justice sector reform objectives Justice sector re- Traditional Performance-based form objectives Certain justice sector issues (e.g. criminal justice, prop- erty rights, secured transactions) can only be solved through a functional approach, i.e. by addressing the full set of agencies and activities that together deliver Justice sector problems a service to the public. This will entail engaging agen- Court productivity will be solved by increas- cies outside the court system but part of the justice increases ing court productivity sector that are responsible for key service delivery ac- tivities (police, prosecutors, property registries, credit bureaus) and have to be reformed/modernized in tan- dem with the court system. Although court workloads are a valid indicator of court performance, they have to be �ne-tuned Aggre- gate statistics and case �le analysis should determine whether courts are overloaded. Screening of court Court workloads re- Courts workloads must dockets is critical to ascertain real workloads and pro- duction be reduced pose effective backlog reduction/elimination strate- gies. Workload analysis should be combined with oth- ers (e.g. users’ perceptions about quality). Although court delays are a valid indicator of court performance, they have to be �ne-tuned. Case �le analysis should determine the level of delays. Screen- Court delays reduc- Court delays must be re- ing of court dockets and internal processes are critical tion duced to identify bottlenecks and propose re-engineering. Delays analysis should be combined with others (e.g. users’ perceptions about quality). Table 14. Alternative approaches to justice sector reform instruments Justice sector re- Traditional Performance-based form instruments New laws may signal a desired change, but orga- nizational capacities and incentive systems will New laws will generate Legal reforms new behaviors determine whether change happens or not. The implementation of the new laws should be fully funded and closely monitored. Increases in court budgets and salaries not always are associated to improved court performance. Increased justice sector Budget and salary increases should be linked to Financial resources budgets and salaries will productivity increases that result (among other improve performance improvements) in workload and delay reduction. Cost- effective use of all court resources (in par- ticular, staff) should be closely monitored. Although automation and modernization can help, most backlogs and delays derive from pro- Automation and modern- cedural and attitudinal factors – excessive op- ization of courtroom pro- Case management cessing will reduce back- portunities for dilatory practices and judges’ reluctance to curb them. These procedural and logs and delays attitudinal issues should be tackled in advance for case management reforms to be effective. Speed and number of judgments are valid indica- Speed and number of Impact measure- tors, but court performance has to be measured judgments are the best in- ment also by quality aspects (including user percep- dicators of court efficacy tions). Demand growth does not depend of supply growth but is subject to economic cycles that require appropriate prevention/reaction strate- gies (i.e. population growth, economic growth, Increasing courts’ pro- Service supply and �nancial crisis). The increasing role of the state cessing capability will demand in economic/social activities is a major source of make room for new users justice demand that cannot be matched by court supply increases (e.g. pension systems). Admin- istrative agencies should complement/substitute the courts. Human resources Transparent and competi- Transparent and competitive appointment sys- tive appointment systems tems may reinforce independence, reduce cor- will increase judicial inde- ruption or enhance performance provided that pendence thereby reduc- accountability mechanisms are established (in- ing corruption and im- cluding periodic evaluation of individual and proving performance court performance). Capacity building Capacity building can be useful but should be Capacity building will help accompanied by changes in judicial culture and to improve justice sector incentive systems that ensure improved perfor- performance mance. Cost-effectiveness of capacity building should be closely monitored and evaluated. 183. With the support of OECD donors a second generation of justice reforms is ready to begin which are based on the lessons learned from the �rst genera- tion. A major shift in justice sector reform programs in Latin America towards a second generation of reforms is now happening. The new approaches would reposition these programs as long-term institutional development efforts with potential quick gains in the short-term. Some elements of these new approaches have already been incorporated into on-going programs at the experimental level and can now be mainstreamed to accelerate progress. The new approaches pro- mote a wide focus in which country needs and priorities will take precedence and the learning process will continue. Reference to the experience of OECD coun- tries will continue to inspire a number of reform efforts. 184. Broader developmental objectives and strategies may still inform justice programs but should avoid over-promising. Holistic strategies in the �rst gen- eration reforms did not accomplish their ambitious goals; prioritization of more modest objectives is critical for the success of the second generation. While strengthening of institutional capacities continues, second generation programs have to be embedded into the broader national development goals. Not only because of the high level ends of justice reforms (economic growth, poverty re- duction, political stability) but also because some objectives crucial for the jus- tice sector’s principal mandate (e.g. crime control, conflict reduction, contract enforcement) cannot be pursued without a broader policy framework, and the cooperation of other agencies. However, the broader the program, the more criti- cal the identi�cation of institutional responsibilities becomes. Crime prevention and law enforcement, for instance, includes prevention and rehabilitation aspects that fall outside the scope of the justice sector but should be coordinated with the actions of the police, prosecutors, courts and public defenders. The experi- ence of OECD countries in this area con�rms that these reforms face formidable obstacles that cannot be tackled through short-term initiatives. 185. Justice reform programs have to be more modest in their objectives and more realistic in the appraisal of likely impacts. Middle Income Countries (MICs) in Latin America’s now have the basic capacity required to provide bet- ter justice services to citizens and enhance their value-added for society at large. Stakeholders have a better understanding of the sector issues, and the areas most critical for performance improvement. As in the OECD countries, justice reform is not seen as a short term initiative but rather a continuous effort to match institu- tional performance with societal needs. Latin American MICs and donors (mostly OECD) are now more modest in their promises as to how much a better func- tioning justice sector can provide services to citizens. A more realistic appraisal of the likely impacts of reform efforts also provides a better basis for achieving results and for assessing the feasibility of reform programs. Lessons learned from past initiatives should allow the countries and the donors to design performance- based programs, while evaluation and testing remain key elements of the new approaches (see Box 5). 186. The experience of well-functioning OECD justice sectors may serve to de- velop organizational models for the same sectors in Latin America. As the justice sector is a central to any system of governance, the �rst goal of reform programs should be enhancing the sector’s contribution to the whole system. Re- forms should ensure that it functions effectively and efficiently through opera- tional models that include modern structures and procedures. Institutional de- velopment programs have to address speci�c complaints about sector operations (delays, costs, unequal or limited access to services) voiced by citizens. The expe- rience of well-functioning OECD countries may help the Middle Income Countries (MICs) of Latin America select their own model based on tested organizational practices. Nevertheless, these countries should also take into account that the OECD countries launched the last wave of reforms from a high baseline which included: (a) reasonable levels of institutional independence; (b) merit-based se- lection and management of professional and administrative employees; and (c) effective inter-institutional coordination. If the Latin American countries do not work in parallel in these fundamental areas, the results of the performance im- provement programs may be quite limited. Box 5. Designing performance-based justice sector reforms Identify the real causes of poor performance. Only the issues originated in poor organizational management and internal practices can be solved through performance management tools. Other issues typical of some Latin American countries (like traditional or customary justice, access for the poor) should be tackled through different mechanisms (political decisions, constitutional and legal reforms, government subsidies) Identify the political impediments for reforms. Political decisions influence the levels of insti- tutional independence or accountability for performance. Political impediments for reform may be posed by multiple vested interests with no interest in change, outside the justice sector or within. These political obstacles also determine the level of difficulty to implement technically sound reform proposals. Early identi�cation of these impediments will facilitate decision-making processes on the reform path selected, and most likely narrow down the scope of the interven- tions and societal expectations. Select a strategic mix of broader lessons learned and country-speci�c knowledge. Latin Ame- rican justice sectors share many common issues, but an effective performance-based reform pro- gram also requires recognizing country differences. Diagnostics in the early stages of program design remain essential and should lead to a results framework that connects inputs (especially budget with outputs (backlog/delay reductions) and outcomes (user satisfaction, citizen trust). Develop a functional approach to the sector. The court system remains the backbone of the justice sector but programs to improve performance must encompass other agencies, seeking to eliminate dysfunctions/externalities in the delivery of speci�c services (civil, family, labor dispute- resolution; criminal law enforcement). Reform programs should target speci�c functions/services instead of trying to cover the whole sector or individual institutions. Select tangible/measurable results. For reforms to improve performance, benchmarks/indica- tors must be selected at the inception to ensure investments accomplish speci�c targets/impacts. These indicators must be relatively simple to measure (business processes or single results) until institutions are ready for the more complex (ratio measures). (*) Privilege cost-effectiveness. Improved performance should ensure not only that sector organi- zations operate faster and produce more outputs, but also that they generate the greatest value- added at the lowest cost for the public budget and for the users. Develop robust monitoring and evaluation mechanisms. A solid M&E system will help track performance improvement and take corrective actions as needed. M&E should be closely linked to the budget cycle. Ensure coordination with reforms in other sectors. Other governance/rule of law programs have a large potential impact in the justice sector. Reformers must ensure consistency of the interventions and take advantage of potential synergies. (*)218 187. OECD experiences may be particularly useful for Latin American justice reforms as references for the design of country-speci�c programs. No �xed OECD model exists to target justice sector issues, however, more that 15 years of NPM-based experiences can provide a useful basis for the design of country-spe- 218 Manning 2009: 52. ci�c programs. In OECD countries these reforms were aimed at: (a) programming and tracking resource use; (b) establishing transparent and efficient procedures; (c) monitoring individual and collective performance; and (d) promoting external and internal accountability. Once these performance improvement tools were in place initiatives to reduce delays in processing court cases, facilitate enforcement of judgments, or to provide practical training were successfully tested. Diagnos- tic and performance measurement were also developed to identify weak points in sector operations or improve patterns of service provision. While avoiding prescriptions, these experiences are useful reference points that Latin American countries can use while taking into account local resource constraints and imple- mentation capacity. 188. While overall objectives may be similar, the particular sequencing and depth of the reforms has to be tailor-made for each country. The overall objectives of most justice reform programs in Latin America may be similar: to ensure that the justice sector ful�lls its basic functions in a reasonably efficient and effective way, while overcoming speci�c weaknesses identi�ed in user complaints. However, the sequencing of reforms and the depth of the changes will be country-speci�c as they depend on local needs, priorities and resource endowments. Despite the similar cultural background and convergence of development levels within Latin America, the reform strategies for Haiti or Mexico, for Argentina or Panama, nec- essarily have to be different. For most MICs the experience of OECD countries will be more relevant in that they should have already reached the basic conditions to begin organizational re-engineering (independence, merit-based selection of judi- cial staff, inter-institutional coordination). Otherwise, countries may need to �rst work on these basic conditions before they embark into full-fledged performance- based reforms (resource programming and tracking, performance monitoring, ex ternal accountability).219 189. OECD experience shows that performance-based reforms generally do not require legal reforms unless the legal framework is clearly not conducive to improved performance. The OECD justice reforms discussed in this paper looked primarily at internal operational issues of sector agencies: organization, management, and control. Most of the reforms involved promoting changes in the internal culture and functioning of the sector agencies to move them toward the most efficient delivery of the services provided. However, certain legal changes were also required, as in the case of the Lord Woolf reforms. In Latin America the legal framework will have to be reformed to avoid encouraging inefficiencies or facilitating unreasonable interferences. Some of these reforms will have to be ap- proved by Congress (in particular for procedural codes) while others can be han- dled through internal administrative ordinances of governance bodies of sector 219 The distinction between upper-middle income/lower middle income countries and reformed/unrefor- med bureaucracies in Manning 2009: 114 may be particularly relevant to select the entry points for re- forms with higher chances of success. Performance-based reforms would remain limited to a few coun- tries (Chile, Brazil). agencies (judicial councils in most countries). While improving the performance of the justice sector agencies, countries may also launch programs to reduce the level of conflict or campaigns to spread the acceptance of, and compliance with, new social or economic norms particularly in cases of transition in the constitu- tional or legal frameworks. To start building public trust in the reformed sector institutions, citizens have to be informed from the beginning of the process and be allowed to provide feedback on both the process and the results. 190. Basic efficiency and integrity standards must be reached before moving into complex quality enhancement programs. Satisfactory levels of efficiency and integrity are pre-conditions to initiate more complex and ambitious programs. In absence of acceptable institutional performance in these areas, moving forward into more demanding territories may be difficult. Agencies must exercise a rea- sonable control over their own resources and operations before they engage in the technical complexities of certain OECD programs like RechtspraaQ. Courts, prosecutors, and police must be able to monitor staff performance, and to man- age their own resources before they engage into sophisticated programs to en- hance quality. 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