Resources

Performance Management



Enhancing the performance of the justice system for better service delivery is a complex undertaking. This section comprises information on: Performance Measurement Court Delay Case Management Enforcement of Judgments Judicial Council Integrity Measures for the Judiciary Performance Measurement Measuring the performance of the various elements of the justice sector is a prerequisite for effectively managing their performance. It is also crucial for any justice reform initiative. Empirical research and court statistics are key in this context. Benchmarks and comparative data are invaluable tools for justice reform practitioners working on evaluations. International Framework for Court Excellence In 2008, an International Consortium consisting of groups and organizations from Europe, Asia, Australia, and the United States developed this International Framework for Court Excellence. The goal of the Consortium’s effort has been the development of a framework of values, concepts, and tools by which courts worldwide can voluntarily assess and improve the quality of justice and court administration they deliver. The Framework represents a resource for assessing a court’s performance against seven detailed areas of court excellence and provides guidance for courts intending to improve their performance. It provides a model methodology for continuous evaluation and improvement that is specifically designed for use by courts. It builds upon a range of recognized organizational improvement methodologies while reflecting the special needs and issues that courts face. The Framework incorporates guidance on standard performance measures, but more importantly it provides a path for improvement in the quality of court performance. Unlike many existing initiatives employed by courts throughout the world to measure or improve specific areas of a court’s activities or services, the Framework tries to take a holistic approach to court performance. It represents a process for a whole-court approach to achieving court excellence rather than simply presenting a limited range of performance measures directed to limited aspects of court activity. The document is available at: Monitoring and Evaluating Court Performance for Management Purposes (CEPEJ) Monitoring and evaluating the performance of a court system for management purposes is an approach that has been on the rise in Europe. Based on cross-country quantitative data from 45 countries across Europe and Central Asia and more in-depth insights from six countries in particular (France, Italy, Netherlands, Croatia, Serbia, Slovenia) a 2008 comparative study by the European Commission for the Efficiency of Justice (CEPEJ) looks into how these approaches have evolved in these countries and what initial lessons can be learned from them. Particular attention is given to the questions who monitors and evaluates, what is monitored and evaluated, how this is done, and what are the trends and problematic issues. back to top Delay Court delay is the most common symptom of malfunctions within the justice system. CEPEJ - Time Management in Justice Systems of the Nordic Countries Improving time management in the justice system is one of the responses to court delay by justice reform projects worldwide. In 2006, the European Commission for the Efficiency of Justice (CEPEJ) has published a report summarizing approaches to and experiences with time management in the justice systems of Northern Europe. Part one - time management in Nordic courts: Review of proposals and policies aimed at reducing timeframes in courts - describes and analyzes the use and setting of timeframes in the Nordic countries with special focus on time frames for priority cases. It also provides a typology of deadlines. It then turns to time management strategies with emphasis on court leadership and pre-trial conferences and addresses numerous other approaches undertaken in these countries to improve time management in the courts. Part two deals mainly with approaches to fighting delays in the Norwegian criminal justice system. The study separates processing time into two major components - action time and standstill time and made an in depth study of them. Action time is the time spent when someone works on the case. Standstill time is the time when nothing happens. The study has a distinct focus on standstill time. Link to Word Document CEPEJ - Compendium of Best Practices for Judicial Time Management How do courts go concretely about improving their time management? This compendium published in 2006 by the European Commission for the Efficiency of Justice (CEPEJ) is a collection of concise but detailed information about policies and practices that have been concretely undertaken in courts, as described by the CEPEJ Network of Pilot Courts in 46 European and Central Asian countries, or that have been recommended by the Council of Europe in order to improve time management in the courts. The compendium is structured around the key concept of optimum and foreseeable timeframes. Under the case law of the European Court of Human Rights, we have become accustomed to referring to the concept of reasonable time as provided for in Article 6.1 of the European Convention of Human Rights. Yet this standard is a lower limit (which draws the border line between the violation and non-violation of the Convention) and should not be considered as an adequate outcome where it is achieved. Therefore the goal must be the timeliness of judicial proceedings, which means cases are managed and then disposed in due time, without undue delays. In order to do that, courts and policy makers need a tool to measure if cases are disposed in due time, to quantify delays, and to assess if the policies and practices undertaken are functional and consistent to the general objective of timeliness case processing. Timeframes are this tool. This compendium is a starting point for collecting good practices and will be constantly updated and improved. Link to Word Document CEPEJ - Court Delay in Europe and Central Asia In 2006, the Council of Europe's European Commission for the Efficiency of Justice (CEPEJ) published a report on court delay in 46 European and Central Asian countries. The findings are based on the case-law of the European Court of Human Rights on Article 6 of the European Human Rights Convention ("Right to a Fair Trial within Reasonable Time") and interviews with instances in the Council of Europe familiar with these cases. First, the report identifies which timeframes are reasonable and which ones are not for certain types of cases. In other words, this part of the report analyzes the European Court of Human Rights' approach to and criteria for court delay. It also provides some benchmarks for excessive and non-excessive timeframes. Second, the study maps the reasons for court delay based on the hundreds and hundreds of cases decided by the Court on this issue as well as additional information by the Council of Europe, which follows up on these judgments and evaluates national reforms undertaken to address this issue. The report maps the reasons for court delay providing concrete examples and national reform approaches. It distinguishes between external reasons for delays, delays common to all types of proceedings, and delays in civil, criminal, and administrative proceedings. Third, the report contains a number of useful tables, which make the findings in different cases comparable and provide for some interesting benchmarks in terms of court delay. English Version: Link to Word Document French Version: Link to Word Document CEPEJ - Checklist of Indicators for the Analysis of Lengths of Proceedings in the Justice System The Council of Europe's European Commission for the Efficiency of Justice (CEPEJ) has adopted a checklist in 2005 regarding time management in the courts. It is aimed at helping to collect appropriate information and to analyze relevant aspects of the duration of judicial proceedings in order to reduce undue delays, ensure effectiveness of the proceedings and provide necessary transparency for the users of the court system. CEPEJ - Practical Ways of Combating Delays in the Justice System, Excessive Workloads of Judges and Case Backlogs The Council of Europe's European Commission for the Efficiency of Justice (CEPEJ) published a report in 2005 about practical ways of combating court delay, excessive workloads of judges, and case backlogs. The report presents lessons from the Netherlands, the Czech Republic, and Austria. Reforming Civil Justice Systems: Trends from Industrialized Countries Civil justice reform efforts in industrial countries face common problems in increasing access to justice and reducing costs and delays. These efforts also confront a common obstacle —the legal profession’s interest in the status quo. This PREM Note published in 2000 summarizes trends in OECD countries. The Processing of Each Case Within an Optimum and Foreseeable Timeframe (Council of Europe) This framework program developed by the Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ) summarized causes of court delay, defines the basic principles to consider, and defines lines of action to reduce court delay. Framework Program CEPEJ back to top Case Management Case management is the way cases flow through the entire court system. In other words, it is the way cases and court capacity are matched. From a management perspective, the supply of judicial services has to match the demand for judicial services by those seeking justice, not only in aggregated numbers, but also in terms of location and time. Capacity must be available at the time and the place demand occurs. Moreover, general and specialized jurisdictions have to match the demand in terms of number and types of cases. Furthermore, the case management has to take into consideration the interaction between lower and higher courts in terms of first instance, appeals and cassation. A dysfunctional case management system means that the distribution of cases across the court system does not utilize existing capacities in an optimal way. This leads to court delay in certain parts of the court system, either for certain courts, for certain types of cases, or at certain times. It is a challenge for the judicial system not only to anticipate the number and types of cases, but also to adapt itself to changes in demography and type of litigation. Certain flexibility helps to deal with these issues. This flexibility when matching supply and demand of judicial services is provided by three elements: moving courts, moving judges, and moving cases. Case management is about moving cases. Fourteen Questions for Court Case Management Evaluators This document, prepared by a case management consultant in 2008 for a presentation at a court management conference, summarizes in 9 pages the questions practitioners should ask when evaluating the performance of case management in the courts of a particular country. The purpose of this document is to be practical, concise and targeted. In addition to the questions, it also provides definitions of key terms and examples. Answering these fourteen questions can help to construct a statistical profile of caseloads that enable conclusions to be drawn about the performance of the case management system in case. The Use of ICT in European Judicial Systems (CEPEJ) This 2008 report (64 pages) by the European Commission for the Efficiency of Justice (CEPEJ) provides an account on the strategic ICT innovation approaches taken in Europe, and on the uses of ICT within the courts and for judicial data interchange. The availability of web services, the use of electronic filing, the exchange of legal documents electronically, the possibility of laws and jurisprudence online are only some examples that are spurring the judicial administrations around the world to rethink their current functions and activities. According to this report, ICT can be used to enhance efficiency, access, timeliness, transparency and accountability, helping the judiciaries to provide adequate services. However, it also warns that this is not always the case. The interaction between technology and highly regulated organizations, such as courts, may lead to unexpected negative results. This study provides and insight into the dynamics and problems that may characterize such experiences. CEPEJ - Territorial Jurisdiction The Council of Europe's European Commission for the Efficiency of Justice (CEPEJ) as adopted a report in 2003 about the role of the allocation of territorial jurisdiction and the judicial map for improving case management. Based on the French, German, and Swedish experiences, the report attempts to provide elements of answers to questions such as: Which mechanisms can be identified to allocate cases between courts? What is the optimal size of a court (for handling cases efficiently)? What are the arguments in favour of and against creating specialized courts? What are the effects of selective forum shopping by parties on the functioning of the judicial system? CCJE - Fair Trial and the Role of Judges in Trials Taking into Account Alternative Means of Dispute Settlement The Council of Europe's Consultative Council of European Judges (CCJE) published an opinion in 2004 on fair trial within a reasonable time and judge’s role in trials taking into account alternative means of dispute settlement. The opinion revolves around four aspects: (1) access to justice, (2) the quality of the justice system and its assessment, quantitative statistical data, monitoring procedures, (3) the courts' workload and case management, and (4) alternative dispute resolution with the emphasis on the judges' role in the implementation of the European Convention on Human Rights. Judicial Case Management in American Federal Trial Courts A common strategy for reducing delay and cost in civil litigation is to curtail the parties' freedom to engage in procedural maneuvers by empowering the judge to set firm deadlines and otherwise manage the litigation process. Case management was pioneered in the United States, and in the attached paper an American judge discusses its implementation in the federal trial courts there. A RAND Evaluation of Judicial Case Management In the United States The Civil Justice Reform Act (CJRA) of 1990 is rooted in more than a decade of concern that cases in federal courts take too long and cost litigants too much. The CJRA required each federal district court to conduct a self-study with the aid of an advisory group and to develop a plan for civil case management to reduce costs and delay. Ten district courts, denoted "pilot" district courts, were required to adopt plans that incorporated certain case management principles through December 1995. The evaluation focused on the consequences of that pilot program. Civil Litigation Caseflow Management Operations Manual The aim of a caseflow management system is to ensure cases are processed within a reasonable time, a time will differ based on the complexity of the matter and what is at stake. A well-functioning caseflow management system shunts cases into different "tracks" based on these factors. This manual, prepared for the Palestinian National Authority by DPK under a US AID contract in 2003, describes what first instance courts need to do to create and introduce such a system. It outlines the standards that should govern a caseflow management system, provides model procedures for handling different types of cases, and describes how to implement a caseflow management system. Preliminary Evaluation of Woolf Reforms in England and Wales In April 1999 a wide ranging series of reforms were adopted by the courts in England and Wales following recommendations made by Lord Woolf. One of the major changes was to require litigants to attempt to negotiate a settlement before commencing a lawsuit. The Law Society examined the impact of "pre-action protocols" in three types of cases: personal injury, clinical negligence, and housing disrepair. Among the findings in its report, the Society noted no increase in the use of mediation or other forms of ADR and no perceptible decrease in case costs. These and other highlights appear in the attached summary of the report. Summary Continuous Trials A common law trial ordinarily continues day-to-day until all witnesses are heard and a judgment rendered. But thanks to increasing caseloads, difficulties in securing the attendance of witnesses, and pressure from the bar, in some countries the practice of trying cases piecemeal, over several weeks or even years, has developed. Research conducted in the Philippines found that discontinuous trials sharply reduced the efficiency of the system. A related survey of judges disclosed that while most favored continuous trials, they reported that court personnel and lawyers strongly opposed them. Research Survey Documents used by the French Case Management judge (Le juge de la mise en état) In French civil procedure a judge is assigned to more important civil cases to oversee case preparation. This case management judge ensures that the parties do not delay the proceeding or run up the cost unnecessarily. Among the innovations in French case management are the forging of agreements between the courts and the local bar on time limits for various steps in case preparation. The following documents are examples, French originals, with some corresponding English translations: Protocole relatif au traitement des procédures civiles – Agreement between the Créteil District Court and the Local Bar Association for the Treatment of Civil Cases French English Convention sur la mise en état des procedures civiles à la Première Chambre du TGI de Meaux – Agreement between the Meaux District Court and the Local Bar Association for the Treatment of Civil Cases French English Avenant modificatif relatif à document numéro 2 – Amendment to Document No. 2 French English Avenant modificatif relatif à document numéro 2 – Amendment to Document No. 2 French English Contrat de Procédure – Proceedings Contract French English Contrat de Procédure – Proceedings Contract French English Injonction (formulaire) – Injunction (form) French Ordonnance de clôture – closing order French Ordonnance relative à la désignation d’un expert (exemple) – Order for Appointment of Court Expert (Example) French Ordonnance (incompétence, exemple) – Order (Absence of Jurisdiction, Example) French Ordonnance (affaires jointes, exemple) – Order (Joinder, Example) French Ordonnance (refus de prononcer une condamnation au titre de l’article 700 NCPC, exemple) – Order (Refusal of Disclosure Application, Example) French Ordonnance (provision, exemple) – Order (Interlocutory Payment, Example) French Ordonnance (radiation, exemple) French back to top Enforcement of Judgments Lawsuits can end with the issuance of an order requiring one of the litigants to pay a sum of money or do or not do a specified act. If the party to whom the order is directed refuses to comply voluntarily, the prevailing party must seek to have the judgment enforced. The institutional arrangements for enforcing judgments vary dramatically from nation to nation. At one extreme the court itself may be the primary enforcement agent. At the other, a specialized enforcement agent may have the main responsibility for enforcement, and the court may be called upon only when disputes arise. Below are materials describing and analyzing different approaches different countries take. In 2003, the Council of Europe as issued two Recommendations as well as Explanatory Notes providing useful guidance in the area of enforcement of judgments. The first one concerns the execution of administrative and judicial decisions in the field of administrative law. It asks the Member States to ensure the effective execution of administrative and judicial decisions in the field of administrative law by following, in their legislation and their practice, the principles of good practice contained in this Recommendation. Attached below are the Recommendation as well as the Explanatory Memorandum: The second Recommendation deals with enforcement of judgments in civil matters including commercial, consumer, labor, and family cases. Attached below are the Recommendation as well as the Explanatory Memorandum: IFES - Barriers to the Enforcement of Court Judgments and the Rule of Law The International Foundation for Election Systems (IFES) completed a global comparative and analytical report on the enforcement of civil and commercial judgments and judgments against the State, with a particular focus on Latin America. This 2003 report, Barriers to the Enforcement of Court Judgments and the Rule of Law focuses on country case studies in Argentina and Mexico and also includes expert survey research related to Peru and three countries of the former Soviet Union, Armenia, Azerbaijan and Georgia. It builds upon preliminary research and previous studies undertaken by the World Bank, the Council of Europe and legal experts. This report was made possible through a close partnership with leading nongovernmental organizations in Argentina (FORES) and Mexico (CIDE) and through interviews with scholars, practitioners, judges and users of the court systems in the countries surveyed. IFES - Regional Best Practices: Enforcement of Court Judgments IFES has also produced a Regional Best Practices Study about enforcement of judgments in 2004. They find that in Latin America, the kinds of problems analyzed from the perspective of users of the system, including SMEs, are strikingly similar and often parallel problems in other regions. Common problems in many developing countries include: (i) excessive legal formalism; (ii) unnecessary judicial technical oversight; (iii) undue delays; (iv) case backlogs; (v) petty corruption; and (vi) problems related to the identification and location of assets. The Russian System of Enforcement Agents In 1997 the Russian government created a new agency, the Bailiffs Service, to enforce judgements rendered in non-criminal cases. In most of Western Europe and the United States the party seeking to have a judgement enforced plays a significant role in the process. Under the new Russian system, by contrast, the Bailiffs Service is almost entirely responsible for enforcement. The attached provides a searching analysis and critique of this new system and in the process illustrates issues common to all enforcement institutions. CEPEJ - Execution of Decisions by National Civil Courts Against the State and its Entities in Russia In 2005, more than 50 % of the court decisions condemning the Russian Federation to the payment of sums to the applicants are not executed or not executed in a reasonable time. This is a frequent violation of the right to a fair trial within a reasonable time under Article 6 of the European Convention of Human Rights. It makes up more than 40 % of the cases at the European Court of Human Rights against the Russian Federation. The Council of Europe's European Commission for the Efficiency of Justice (CEPEJ) published a report in 2005 examining the problems related to the execution of decisions by national civil courts against the State and its entities in the Russian Federation. It assesses the situation and makes recommendations for reforms. The report may also provide some valuable insights in the shortcomings of enforcement of judgments in other transition countries. Enforcement of Court Decisions in Europe (CEPEJ) Based on quantitative and qualitative data from 45 countries in Europe and Central Asia with different approaches to enforcement judicial decisions, this 2008 study by the European Commission for the Efficiency of Justice (CEPEJ) identifies the elements that have a positive influence on enforcement procedures with respect to effectiveness and efficiency. This study is in two parts: The first one addresses questions of accessibility of enforcement. It looks, in particular, at the problems that might arise as a result of the way services are organized and the cost of procedures. The second part examines the efficiency of enforcement. It makes a distinction between the efficiency of the services and the efficiency of enforcement measures. The summary of this study is presented in the form of guidelines and concrete recommendations for the CEPEJ presented under two headings: "Accessibility of enforcement systems" and "Effectiveness of enforcement systems". back to top Judicial Councils Judicial Councils of various kinds oftentimes ensure a certain degree of self governance of the justice sector. Self governance ensures a judiciary's independence, accountability and integrity. In addition to the judiciary's control over its appointments, budget, and apportionment, the term self governance also refers to the enforcement of constitutional provisions to protect against other branches of government. On the one hand, a judiciary must be respected by the other branches of government for it to be respected by society and enable it to fulfill its mandate. On the other hand, the judiciary is an established component of the government structure which must be allowed to exercise its powers fully and maintain its delicate balance with the executive and legislative branches. Often referred to as the nonpolitical branch, the judiciary must nonetheless be able to ensure its independence and impartially adjudicate cases, protect individual rights, and regulate the exercise of government authority. The Argentine Judicial Council in Comparative Perspective An analysis of the composition, duties, and responsibilities of the Consejo de la Magistratura Argentina using the judicial councils of Western European states and the Judicial Conference of the United States as points of comparison. Among the differences highlighted: 1) Unlike councils in Western Europe, a majority of the members of the Argentine council are not drawn from the judiciary. 2) The Argentine council has less control over the management of the judicial corps than its counterparts in Western Europe, 3) but far more responsibilities for monitoring and managing the judicial system. Includes references and a table with information on the French, Spanish, Italian, and Portuguese councils. Governing the Justice System: Spain's Judicial Council Following the European model, many developing and transitioning countries have established councils independent of other government branches to govern their judiciaries. Spain’s experience illustrates the issues raised by the creation and operation of these entities. Judicial Councils: The Latin American Experience Judicial councils are designed to increase judicial independence by taking responsibility for the appointment and promotion of the career judiciary away from the executive branch and vesting it in an independent entity. Venezuela was the first Latin American state to create a council, and while it recently abolished its council, the council form of judicial governance is found in 14 other countries in the Hemisphere. Like most judicial reforms, the author finds that there is no unambiguous answer to the question of whether the Latin American councils have been a desirable reform. Rather, their success has depended upon a host of contextual factors. She provides an analysis of the key ones together with case studies of the El Salvadorian, Mexican, Peruvian, and Colombian councils. Councils of the Judiciary in EU Countries This extensive comparative study written in 1999 by Dr. Wim Voermans desribes and analyzes the underlying models of existing judicial councils across Europe. back to top Additional Resources American Judges Association Information on membership, conferences, training events, and publications. Conference of State Court Administrators, US Information on this organization dedicated to the improvement of US state court systems. Council for Court Excellence The Council for Court Excellence is a Washington, DC based organization that is dedicated to the improvement of judicial administration at both the local and federal levels. Iberius Website of the Latin American Legal Documentation Net (Red Iberoamericano de Documentacion y Informacion Judicial). In Spanish, French, English and Portuguese. National Association for Court Management Association of court management professionals dedicated to the improvement of courts and development of court managers. JUDICIAL COUNCILS Belgium Conseil Superieur de la Justice. In Dutch and French. Bolivia Consejo de la Judicatura. In Spanish. Brazil Conselho da Justica Federal. In Portuguese. Cambodia Law Enacting the Conseil Superieur de la Magistrature. In French. Canada Canadian Judicial Council. In English and French. France Conseil Superieur de la Magistrature. In English and French. Italy Consiglio Superiore della Magistratura. In Italian. Portugal Conselho Superior da Magistratura. In Portuguese. Spain Consejo General del Poder Judicial. In Spanish. United States Judicial Conference of the United States. In English. back to top Integrity Measures for the Judiciary Ethics of Legal Professionals in the United States and Europe A discussion of the principle issues involved in regulating the conduct of lawyers and other legal professionals in the United States and Europe. The paper provides an overview of the organization and the sources of regulation, briefly highlighting the differences between common and civil law jurisdictions. It also compares and contrasts the disciplinary systems for legal professionals in the U.S. and Europe. It is one of several Concept Papers prepared by the American Bar Association's Central and East European Law Initiative. CCJE - Principles and Rules Governing Judges' Professional Conduct: Ethics, Incompatible Behaviour and Impartiality The Council of Europe's Consultative Council of European Judges (CCJE) issued an opinion in 2003 on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality. This opinion covers two main areas: (1) the principles and rules governing judges’ professional conduct, based on determination of ethical principles, which must meet very high standards and may be incorporated in a statement of standards of professional conduct drawn up by the judges themselves and (2) the principles and procedures governing criminal, civil and disciplinary liability of judges. Additional Resources back to top