How to measure court performance while safeguarding the fundamental principles of justice?
François Paychère, Judge at the Court of Justice of the Geneva Canton Switzerland, Chairman of the GT-QUAL
A debate between "independence" and "accountability"
Today's debate cannot consist in examining the legitimacy of systems for measuring the performance of judges with regard to all the principles of fundamental justice. Arguing that judges must work effectively while respecting the principles as those contained in Article 6 of the European Convention of Human Rights seems to increase the flatness. In criminal cases, for example, one can hardly see how the judge might be satisfied with a lesser degree of personal conviction to enhance his own performance, the search for truth requires an investment of time, whose relevance cannot meet with only quantitative criteria. How can one argue that the office of judge is detached from all the constraints on public activities, as close as they are from the heart of the notion of state
I will more specifically emphasise the relationship between the measures of court performance and the principle of independence, because this principle is often seen as a defensive line of judges, where it seems to me rather like a face of a medal, the other being responsibility.
Independence conceived as a bulwark
Literature, even the recent one, sometimes give a negative image of the independence of the court judges, it would be built "against" (1) :
Independence would serve primarily to protect judges from the intervention of representatives of the executive or legislative, or economic powers. With regard to international courts, the danger would come from some member states, also parties to litigation, or the international organisation itself, more concerned with its own interests as with the effectiveness of international jurisdiction, and occurrence of hierarchies within the jurisdiction. The fate of national courts is not always much better, beside the parties which sometimes threaten independence of the judge, we should also name parliaments and governments, more quick in proclaiming the independence of the judge than in ensuring it effectively. Not only the budgetary resources would serve the purpose of other powers to control the judges. In a context full of suspicion, the simple idea of measuring court performance arouses no surprise to the reluctance on the part of the involved judges.
The existing mechanisms of control
So, we often read that the judiciary has its own mechanisms of control. Remedies sensu lato constitute the essential tool for a quality control, at least of judgments, as it has been highlighted by the Consultative Council of European Judges (2). The literature points out in this connection that the control of legality, as made by a Court of Cassation, is the archetype of the review of judicial decisions (3).. Concerning the conventional right, it also promotes the establishment of a double degree of jurisdiction, new warranty contained in both the Additional Protocol No. 7 to the European Convention on Human Rights and in art. 14 para. 5 of the International Covenant on Civil and Political Rights of 16 December 1966, without taking into account the development of the jurisprudence of the Strasbourg Court, which exercises a more and more strict control of national procedures.
Besides this classical form of monitoring of court decisions, creating more and more high Councils of Justice in the member states is seen by some as a sufficient complement to adequate remedies.
Regarding both the remedies and the control done by a supreme Council of justice, the expected target differs from the implementation of performance indicators for several reasons.
The cassation or appeal are as many ways to "correct" - or try to make change - a decision that was taken in violation of the law, at least in the eyes of the parties. The logic of the control by the authority of cassation or appeal stems from the individual, the plot. This is not a global functioning that is appreciated, but the treatment of individual cases and wrongly considered as affected by defects.
The referral to a high council also conducts a logical plot, whether it is about the file justifying such a referral, or the person of the magistrate concerned by the disciplinary procedure.
Such approaches are unsuitable to allow the measurement of "performance" of a court, whatever the meaning of that term is. They stem from an argument based on the "case" and from the assumption that it is pathological. A Court of Cassation is hardly referred to see the excellence of a trial decision or appeal as well as a judge would not be deferred to the Supreme Council of Justice to establish his good behaviour. The observation of clinical cases is indeed the reason to be of the scientist, without necessarily inform on the health of a population.
The approach by observing the performance, deals with all issues, both “healthy” topics, which do not require treatment, and pathological ones, which require one.
Difference of object, different approach and different anchoring in the outside world which respond to modification of expectations of litigants concerning the judge, assumed defender of individual freedoms (4).
The judge must respond to an increasing demand in a context of rarefaction of public resources: "Do more and do more with less, in values at least”, that are the expectations facing judges and officials administering justice in the countries of the Council of Europe.
Accountability, an extension of independence
Besides this heavy trend to increased demand for justice, development goes also to various forms of justice self-management, as evidenced by the development of Councils for justice among the Council of Europe member states. In the march towards independence of functioning corresponds the ability to report, even if it is only from the standpoint of sound management of public funds.
Measuring the performance of courts is in this sense of accountability. The independence of a judge is untouchable when time comes to decide (5). It is also complete with respect to the path that leads to the decision, subject to compliance with the principle of legality, embodied here in the rules of procedure and use of "best practices". We can not create a super-set of procedural rules through the principle of economicity.
For a responsible management
Faced to the principle of independence, the principle of accountability commands the development of performance indicators. They must be designed to give the judge, who is accountable for the good leading of the files, tools to have a good management of his working time. Each judge must therefore have a permanent and up to date status of his cabinet, information designed for the practical purpose of helping him to work better.
Design of information
As for the quality systems (6), the introduction of performance indicators assumes - and I have experienced it myself – the engagement of the concerned magistrates to succeed. It is futile to attempt to develop a system of performance indicators without the people involved in the design of the tool, its development and use. All judges of the court must have the capacity of ownership with the tool, in order not to develop a habit of distrust.
Once they are released outside, data from performance indicators should be aggregated so as not to turn them into a personalised tool that could help to influence the concerned judges.
Appointment and promotion authorities
A complete information appears correct in the (first) appointment and in a promotion, but not outside these assumptions and provided that the judges involved have the ability to comment on the figures collected through performance indicators.
Assuming that there is a hierarchical structure, communicating information on how a cabinet works should only be possible if the right to be heard of the judge is extended, including in particular the right to access to his full administrative file and to figures. If these are used for evaluation, criteria for measuring performance must be known.
Press and public
There is no assumption justifying the release of individualised information to the general public.
Use of information
Once accepted the principle that information is collected in accordance with principles developed in a participatory manner and distributed according to known rules, it is necessary that the use of the information itself is not felt by the judges concerned as a simple means of additional control by a hierarchical or disciplinary authority. It is therefore appropriate that those involved can take ownership of the tool at the early stage of its design, but also of its use. In this sense, it is necessary to analyze the output performance indicators within the courts, following a new participatory model, depending on how quality circles. The discussion must be conducted so as to promote collective ownership of the functioning of the court.
The use of performance indicators is a powerful reminder of the working methods of judges involved. It can be seen as involving a risk of material uniformity of judgments if the measure of individual performance is not accompanied by an individual and collective improvement of the working methods (7). In this regard, the individual measurement of reform rate by a higher court seems to have little meaning without double reflection on the quality of confirmed judgments, cancelled or reformed by a higher court (8)..
From intuition to the effort of objectivity
Any judge proceeds daily to the measurement of his own performance, as well as he arbitrates between the resources offered by the parties for its decision and those that are necessary. In this sense, he constantly worries about measuring the performance of his cabinet. Objective measures serve justice without undermining the independence (9) if their design, dissemination and use are done in a participatory context. They enable increasing the accountability of the judicial system in front of litigants and therefore its independence from other branches of state.
(1) Luzius Wildhaber, "Justizmanagement Unabhängigkeit und der Justiz" Justice - Justiz - Giustizia, 2009 / 3, No. 4-5.
(2) Consultative Council of European Judges, Opinion No. 11 (2008), ch. 5.
(3) Benoît Frydman, "The evolution of criteria and methods for monitoring the quality of judicial decisions," Working papers Perelman Center for Philosophy of Law, 2007 / 4, p. 5.
(4) Danny Cohen, "The judge, guardian of freedoms?" Powers, 2009/130, p. 113.
(5) Paragraphs 9, 10 and 21 of the draft new recommendation to replace Recommendation No. R (94) 12 on the independence, efficiency and role of judges.
(6) Cf on this point: CEPEJ-GT-QUAL, "Quality Management for Courts in a Comparative Perspective", forthcoming in 2010.
(7) I therefore share some of the position of European Magistrates for Democracy and Liberty, as expressed on p. 3 of their contribution to the study session: While any system of assessment "should aim to promote quality ... "not only" judgments "but of justice as a public service, in addition, I see no effects" counterproductive "performance indicators.
(8) In addition to uncertainty about the nature of the supervisory jurisdiction: is it the Court of Cassation National or its equivalent? Or rather, the European Court of Human Rights?
(9) Paragraphs 32 to 33 of the draft new recommendation to replace Recommendation No. R (94) 12 on the independence, efficiency and role of judges provides an adequate conceptual framework to mediate between independence and measure performance.