Meeting of the working group Independence and Effectiveness
in Beaulieu sur mer on 9th and 10th October 2009
Subject: Fastening of procedures before administrative courts and possible tensions with fundamental rights : draft agenda and questionnaire
The meeting will start at 10:00 a.m. on Friday and last till Saturday noon.
We might start with an introduction, then present the answers to the questionnaire, then discuss several issues in sub groups. You will be informed about the topics of the subgroups at the beginning of September.
Here is the the questionnaire to the attention of all participants. We ask you to respond until 15th of September. In countries with only one participant (Estonia, United Kingdom, Netherlands, Luxemburg) it is clear that this participant is invited and responsible to present the case. For the other countries I ask the following participants to organize the answers internally in time:
Susanna Gamauf-Boigner for Austria
Werner Heermann for Germany
Anders Alenksär for Sweden
Giuseppina Adamo for Italy
Pedro Marchao Marques for Portugal
Georgia Sakarelou for Greece
Alenka Praprotnik for Slovenia
Ljiljana Karlovcan-Durovic for Croatia
Fani Naydenova for Bulgaria
Marion Jaffré for France
We have to follow the topics that we have promised to the European Commission (GD Justice, Freedom and Security, within the Fundamental Rights’ programme), to study for funding.
The questionnaire prepared for this WG-meeting refers also to a double base :
1°)-The report from the European Commission for Efficiency of Justice (CEPEJ), “Length of court proceedings in the member states of the Council of Europe based on the case-law of the European Court of Human Rights”, CEPEJ 2006. You can find the report on the CEPEJ web-site.
In the case law of the European Court of Human Rights – a case law which is very large – you can find the following tendencies (according to the CEPEJ report) for defining “reasonable time” within the meaning of Article 6.1 of the European Court on HumanRights:
For administrative cases a length of proceedings in simple cases of 2 years was generally regarded as reasonable (including all instances). As a general rule no case should be waiting more than 12 months in one instance.
When proceedings have lasted more than two years, the Court examines the case closely to determine whether the national authorities have shown due diligence in the process.
In priority cases the Court may find violation even if the case lasted less than two years.
In regular and complex administrative cases the Court may allow longer time - up to 5 years - but pays special attention to periods of inactivity.
The only cases in which the Court did not find violation in spite of manifestly excessive duration of proceedings were the cases in which the applicant’s behavior had contributed to the delay.
All the member states, represented in AEAJ, have problems with long proceedings and may have been criticised by the Court.
2°)-The issues of the CJ-S-JUD, the Group of Specialists on the Judiciary who is responsible to revise Recommendation No R (94) 12 on “The independence, efficiency and role of judges” before the end of this year 2009.
Of the 6 issues that CJ-S-JUD is focusing, two general questions seem to be compatible with our topic, namely:
the balance between independence and effectiveness of the judiciary;
the responsibilities of judges in terms of the independence of judges.
The other four issues of CJ-S-JUD – the role of independent authorities in the administration of the courts; the status and responsibilities of judges in relation to the development of modern societies; the principle of the tenure of judges and training of judges – are a bit on the side for the meeting in Beaulieu in October but might be of interest later on.
What might be interesting to discuss at the WG meeting are common reasons for lengthy proceedings and what we can do about them, with a purpose to find solutions that are not interfering with fundamental rights, nor for judges or for the applicants.
1. The proportion and the number of cases in the administrative courts who have been waiting longer than the time limits set down by the European Court on Human Rights. There are not detailed data about the number of the cases, pending more than the above time limits. But the average time for setting a hearing for a case that is filed today is 5 years for the Athens Administrative Court of First Instance, 3 years for the regional Administrative Courts, 2 years for the Administrative Courts of Appeal and 3 years for the Council of State. But petitions for interim relief can be heard within 2 months from filing.
The causes of delay
2. Is the number of cases judged by the administrative courts increasing each year ? If, yes what is the evolution during the past years? For the first instance, the courts of appeal, the supreme court? The number of cases judged by the administrative courts is set by the standing orders in a specific number by judge (p.e. in Athens is 20 cases per month by one judge, 10 cases in the Administrative Court of Appeal and 10 cases in the Council of State).
3. Lack of resources at the courts, shortage of judges.
3.1. What is the number of the administrative judges in your country and the number of cases registered each year? There are 732 judges in the Administrative Courts of First Instance and Courts of Appeal and 150 judges in the Council of State. The number of registered cases each year is almost 150.000 to the Administrative Courts of First Instance and Appeal and almost 10.000 to the Council of State.
3.2. The number of judges is increasing or not ? The number of judges, above mentioned is set by law,
3.3. Is there inadequate support staff? The judges have assistants or not? Almost 10% of the staff positions is vacant and there is a constant complaining about not filing them, by lawyers, judges, secretaries etc. but the Government invokes economic difficulties. The judges have not assistants (law clerks) for performing their judicial duties.
3.4. Are judges obliged to deal with things that are not really judicial matters, and that other personnel could do instead? That was the case in the past, but after the Constitutional revision in 2001, judges are not allowed to perform administrative duties, except Court Administration and the participation in the education of young judges.
4. An uneven geographical distribution of courts within the country
In your country do some courts have too much workload and others not, due to demographical changes or other evolutions? That is not the case for the Administrative Courts, because the number of the cases is set between 180-200 per year and per judge to all the Courts, regardless of the region.
5. The organisation of the courts
5.1. The proportion of single judges and collegial judges. Is judging in chambers at first instance regarding as a source of delay? (It has been judged as a source of delay by the Court on Human Rights).
Example : Administrative justice in France was originally exclusively
organised in colleges. But the intervention of single judges is increasing
more and more. These single judges can perhaps work faster, but are they as
independent as collegial judges ? Some of these single judges decide without
an hearing. Are the reflections about this subject similar in the different
Greece has a similar system to the French model, therefore we face the same problems and we have a similar approach. The model of collegial chambers is the rule in First and Second Instance and judges hesitate to demand the expansion of single panels as the main administrative court. But the tendency is towards the single judge in the First Instance and law no 3659/2008 has expanded significantly the jurisdiction of single judges.
5.2. Is there a specialisation of courts or of judges in your country ? Is it a way of avoiding delays? Special divisions (Tax divisions, Social Security division, Immigration divisions etc.) are set only in big Courts (Athens, Thessaloniki). Specialisation helps dealing with complex cases faster, as experience shows in those courts.
6. Inadequate procedural rules.
6.1. Are the procedural rules themselves creating delays, for instance by giving the parties too much time to answer? Nobody in Greece consider procedural rules as a cause for delay.
6.2. Oral hearings - Are the proceedings in the administrative courts mainly in writing (percentage)? If there are possibilities for oral hearings, are these hearings, in your opinion, too many or too few? Has your country been criticized by the European Court of Human Rights for not holding oral hearings? What is happening in oral hearings (are they prepondaretly devoted to take evidence (witnesses and experts) or to the question of law?
Oral hearings - Are the proceedings in the administrative courts mainly in writing (percentage)? Yes.
If there are possibilities for oral hearings, are these hearings, in your opinion, too many or too few? AC: There is always an oral hearing, except for cases regarding interim relief.
Has your country been criticized by the European Court of Human Rights for not holding oral hearings? AC: No
What is happening in oral hearings (are they prepondaretly devoted to take evidence (witnesses and experts) or to the question of law?AC: Mainly to take evidence
6.3. In order to accelerate proceedings, do you think that the using of witnesses and experts ought to be encouraged? Are witnesses heard by the courts themselves or by the administration during the previous administrative procedure? Does the court nominate experts of its own or does he usually just refer to the expertises ordered by the administration? Which kind of experts does the administration use (civil servants who are employees of the administration or independent experts)? Which kind of experts are nominated by the court? Who has to cover the costs of all these experts? Are there rulings concerning recovery of these costs if the administration or the party wins the case? Can such costs be covered for parties who enjoy themeselves of legal aid. Experts are used in complex cases of technical character (p.e. cases of medical negligence of public hospitals). Witnesses are heard by the courts as a rule, but testimonies in administrative procedures are taken under consideration. The experts are appointed by lists set by the Administration and the boards of professional syndicates (lawyers, doctors, architects, etc.).
6.4. Appeal - Is leave to appeal required to enable a court of appeal to consider a case? If not, do you think there ought to be? There is not leave required to file an appeal in front of a Court of Appeal and there should be not one. As far as the Council of State there is not either, but the judges of that Court thing there should be.
6.5. What kinds of restrictions of judicial review are existing : a./ between the challenged decision of the administration and the first level of administrative jurisdiction? b./ between the different levels of the lawsuit within the administrative justice? Administrative procedure has to be exhausted before the courts can interfere. There is no right to an appeal in front of the Administrative Court of Appeal, if the case has an economic cost less than €5.000, or €20.000 if the appeal concerns the Council of State, except for cases dealing with social security. The Council of State is not dealing with the merits of the case, when it works as the Court of final appeal.
6.6. What changes in procedural rules may, in your opinion, help accelerating procedures? In particular, what could be a court’s reaction if witnesses (also those who live abroad) do not appear before court or if experts are in delay to deliver their expertise. The enforcement of existing rules is sufficient and no new rules should be introduced. If the witnesses or the experts are delaying the procedures, Administrative Courts should be more severe as to the rules of the burden of proof required.
7. Goals set up by the Government or administrative authorities or stated by law
7.1. Has your government set up specific goals for how fast the administrative cases should be dealt with (before the administration and before administrative jurisdiction)? No such goals have been set.
7.2. Are there time limit rules laid down by law for certain cases? Could you enumerate the subjects ? The custody of mentally ill, children, drug or alcohol misuses, immigration cases... In certain cases (p.e. interim relief, electoral disputes etc.) there are time limits to issue a decision (20 days, 1 month etc).
7.3. If yes, what happens when the time limits are not followed? There is not a problem of legal validity of the decision of the Court issued after the time limit set, since the Council of State has a long established case-law that those time limits are only an indication that the judge should act quickly.
The possible tensions with fundamental rights.
This part of the topic can be connected to the aforementioned general issues of CJ-S-JUD, “The balance between independence and effectiveness” and “The responsibilities of judges in the terms of the independence of judges”. In some countries, the government has taken measures in order to accelerate the procedures, which interferes with the independence of judges.
8. A new system of remuneration partly based on individual salaries for judges : look further questions number 11 to 13.
9. The matter of the responsibilities of the president of the court (or other entities within the courts).
9.1. What may or must they do in order to fasten procedures?
The president of the court can not do much to fasten procedures, since the number of incoming cases is the main cause of delays.
9.2. Is it possible, in your country, that the president of the court can remove a case from a judge that is dealing with the case too slowly? It is as far as the Administrative Courts of First Instance and Court of Appeal, if the reporting judge is delaying to write an opinion, more than 8 months from the hearing. There not such an option in front of the Council of State.
9.3. If yes, can this be done without interference with the independence of the judge? Only under special circumstances this can be done and under strict scrutiny by the Vice President of the Council of State, therefore, judicial independence is always respected.
9.4. What happens when a case has been unduly delayed – will there be disciplinary measures against a judge who is responsible for the delay? Can the judge be prosecuted? According to the Code of the Organisation of the Courts and Judges (law 1756/1988) which applies also to the status of the Administrative Judges, it is a disciplinary offence to delay without a specific reason. The rule is that the judge has to issue a decision within 4 months from the hearing of the case and within 1 month in cases concerning interim relief.
Example : The Swedish government laid a proposition to the Parliament with a law “Declaration of priority of cases in court”. An applicant should be able to turn to the court and ask for priority if his case has been unduly delayed. Then the president of the court can decide that a certain case should be dealt with with priority and the judge in question must follow this decision. If he does not there can be disciplinary actions against the judge.
10. Is there a legal remedies against delays in the sense of article 13 EMRK in the respective national procedural laws (see the ECHR’s cases Kudla/Poland and Sürmely/Germany). What kind of legal remedies do we find to be compatible/incompatible with the independence of judges? There are not such legal remedies in Greece.
Judges remunerations and its evolution in the new economical context
11. Could you describe the system of the judges remunerations in your country, and give some information about the level of their remunerations? The judges have a special salary system and the level of their remunerations is over the average of civil servants. A newly appointed judge in the Administrative Court of the First Instance earns €2.700 net per month and the President of the Council of State earns €5.200 net per month.
12. Is there an evolution now because of the economical crisis? Laws or other texts had been adopted recently or are in discussion in your country? No such consideration is being taken in Greece.
13. Do you think that "bonus systems" and “individual subjective salaries” must be regarded as incompatible with the judges independence? Yes, we think so in Greece.
”Bonus systems” or ” individual subjective salaries” are generally viewed as incompatible with the judges’ independence, because it could convey the unseemly impression of a possible exertion of influence on jurisprudence. Such forms of judicial remunerations are incomatible to the existent judicial ethics in our country.