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
Questions and Swedish answers
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.
A very small amount of cases have been waiting longer than the time limit set down by the European Court of Human Rights. About 2 % of the cases are older then 2 years, mainly social security cases. The Supreme Court had some problems with cases waiting too long but we have seen a big improvement the last year.
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 has been about the same over time, we can see a small increase due to new types of cases, mainly immigration cases. During the past years though there has been a decrease in number of cases.
The court of appeal has fewer cases due to transfer of some types of cases to the court of first instance.
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?
In Sweden there are approximately 400 administrative judges. About 163 000 cases are registered each year in the administrative courts. (120 000 cases in first instance, 34 500 in court of appeal and 8 500 in the Supreme Court)
3.2. The number of judges is increasing or not ?
The number of administrative judges is Sweden is decreasing slowly but we saw a significant increase in number of judges when the immigration cases came to the courts a few years ago.
3.3. Is there inadequate support staff? The judges have assistants or not?
The administrative judges in Sweden have many assistants and legal clerks. There is adequate support staff but it’s often quite hard to recruit new legal clerks.
3.4. Are judges obliged to deal with things that are not really judicial matters, and that other personnel could do instead?
Administrative judges in Sweden are mainly not obliged to deal with things that are not judicial matters. Over the years efforts have been made to sort out judicial matters.
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?
Some administrative courts might have more workload due to demographical changes. In Sweden the majority of administrative courts are very small and therefore it’s difficult to determine the need of resources. This year we have a reform in Sweden that will reduce the number of administrative courts in first instance from 22 to 12 and hopefully create a more even workload.
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).
In Sweden there are only single judges in first instance, with 3 lay judges participating in majority of cases.
5.2. Is there a specialisation of courts or of judges in your country ? Is it a way of avoiding delays?
There are no special courts in Sweden. In the larger administrative courts there is some specialisation among the judges but mainly the judges handle many different types of cases. The general view is that a judge should be able to handle all types of cases.
6. Inadequate procedural rules.
6.1. Are the procedural rules themselves creating delays, for instance by giving the parties too much time to answer?
There are no procedural rules that themselves create delays.
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?
The proceedings in the administrative courts in Sweden are mainly in writing but more and more oral hearings are being held after request from the parties. About 15 to 20 % of the cases in the first instance are decided after oral hearings.
Our view is that there are too few oral hearings held in the administrative courts. The oral hearing can be a very good complement to the written material and evidence.
Sweden has been criticised by the European Court of Human Rights for not holding oral hearings, but now days oral hearing is normally held if requested by the parties.
The oral hearings held in Swedish administrative courts are free and informal. Witnesses or experts can bee heard and other evidence can be presented. The oral hearing is a complement to the written material.
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.
It would not accelerate the proceedings in Swedish administrative courts to encourage the use of witnesses and expert.
Witnesses referred to by the parties are heard by the courts themselves.
The court both obtain statements from experts nominated by the court and make reference to experts heard in the previous administrative procedure.
Swedish administrative courts use independent medical experts, psychiatric experts and tax experts. The administration use experts that are employees of the administration.
The costs for experts are normally taken by the party who referred to them or by the court if nominated by the court.
Normally the parties do not get their costs recovered, but in tax cases the parties can get recovery of costs if they win the case or if the case is very difficult.
Parties who enjoy legal aid can get their costs covered.
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?
Leave to appeal is required in most cases, except for tax cases and custody cases.
In our opinion leave to appeal ought to be required in tax cases.
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?
The court of first instance makes a full review of the challenged decision; except for municipality decisions where the courts reviews only comprise the decisions accordance with law.
Also the court of appeal can make a full review of the judgments of the court of first instance and gives leave to appeal if necessary.
The Supreme Court can only give leave to appeal if the case (the judgment of Court of Appeal) is interesting as a precedent.
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 procedure in the court of first instance could speed up if we abolish the participation of lay judges. Another way to speed up the procedure would be to increase the use of telephone hearings and video conference.
The courts reaction if witnesses do not appear before the court could be to order the parties to serve the witness at the risk of not getting to hear the witness before the court.
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)?
The Swedish government has set up goals for how fast the administrative cases should be dealt with. The goal is six month in each instance, except for priority cases and immigration cases where the procedure should be faster.
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...
There are time limits laid down by law in cases concerning the custody of mentally ill, custody of children, custody of drug or alcohol misuses and immigration.
7.3. If yes, what happens when the time limits are not followed?
If a judge repeatedly ignores the time limits laid down by law he or she can be prosecuted for official misconduct.
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 may and must act to insure that the procedures are not getting to slow. He or she has an overall responsibility for the court but must act with the respect of the independence of judges.
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?
The president of the court can, under very special condition, remove a case from a judge that obviously is dealing with the case to slowly.
9.3. If yes, can this be done without interference with the independence of the judge?
In our opinion this can be done without interference with the independence of the judge. It is only to be done in very special cases when it is obvious that the judge cannot handle the case in reasonable time.
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?
If a judge does not handle the cases in reasonable time he or she can be prosecuted for official misconduct.
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?
In Sweden there is a new legal remedy against delays. With the “declaration of priority of cases in court” an applicant are 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 priority and the judge must follow this decision.
The applicant can also turn to the parliamentary ombudsman who then will investigate the proceedings. If the parliamentary ombudsman finds that the proceedings have been too slow he will criticized the judge.
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 salaries of Swedish judges are now days set individually after a so called “collected assessment”. The salary is not to be influenced by how the judge works with his/her cases but there are no ways to guarantee this. There has been a huge conflict between the Swedish judges and the National Courts Administration during the past five years concerning the system of the judges remunerations. The level of judges remuneration is about 5 000 – 5 500 Euro a 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?
There in no evolution now because of the economical crisis, but the financial budget for the courts are set under direct influence of the government witch is a threat to the independence of the courts.
13. Do you think that "bonus systems" and “individual subjective salaries” must be regarded as incompatible with the judges independence?
The individual subjective salaries for judges in Sweden must definitely be regarded as incompatible with the judges independence.