Final Report

STUDY ON ROMANIAN COURT RATIONALIZATION

By Terry R. Lord (judicial specialist)

and Jesper Wittrup (court administration specialist)

March 2005

Introduction..........................................................................................................................................................................4

PART ONE: Court structure and the allocation of human resources1 Methods and Models for evaluating the existing allocation.........................................................................................82 The number of judges.................................................................................................................................................123 Allocation of Human Resources in District Courts....................................................................................................15

3.1 Model 1: The Population Model..........................................................................................................................173.2 Model 2: The Caseload model.............................................................................................................................20

3.2.1 Comparing 2002 and 2003-data.................................................................................................................203.2.2 Comparing number of cases and number of judges in district courts........................................................22

3.3 Restructuring of the District Courts.....................................................................................................................273.4 Case backlogs.......................................................................................................................................................313.5 Allocation of clerks..............................................................................................................................................353.6 Summary: District Courts....................................................................................................................................37

4 Allocation of Human Resources in the Tribunals......................................................................................................384.1 Model 1: The Population Model..........................................................................................................................404.2 Model 2: Total number of cases...........................................................................................................................43

4.2.1 Comparing 2002 and 2003-data.................................................................................................................434.2.2 Comparing number of cases and number of judges...................................................................................45

4.3 Model 3: DEA......................................................................................................................................................504.4 Specialized Tribunals...........................................................................................................................................534.5 Case backlogs.......................................................................................................................................................554.6 Allocation of clerks..............................................................................................................................................594.7 Summary: Allocation of positions in the Tribunals.............................................................................................614.8 Model 1: The Population Model..........................................................................................................................634.9 Model 2: Total number of cases...........................................................................................................................65

4.9.1 Comparing number of cases and number of judges...................................................................................654.10 Model 3: DEA.................................................................................................................................................674.11 Case backlogs..................................................................................................................................................704.12 Summary: Allocation of positions among the Courts of Appeal....................................................................73

5 The High Court of Cassation and Justice...................................................................................................................746 Military courts............................................................................................................................................................757 Conclusion..................................................................................................................................................................76

PART TWO: Related subjects1 Introduction to Part Two............................................................................................................................................802 Independence..............................................................................................................................................................81

2.1 Introduction..........................................................................................................................................................812.2 Safeguards............................................................................................................................................................812.3 Implications for court management.....................................................................................................................82

3 Budgetary issues and economic management............................................................................................................834 Infrastructure and resources.......................................................................................................................................845 Information Technology.............................................................................................................................................846 Court management and organization..........................................................................................................................85

6.1 Introduction..........................................................................................................................................................856.2 Court organization................................................................................................................................................856.3 Court flow - access to court files, archives, courtroom and court building.........................................................86

7 Quality........................................................................................................................................................................867.1 Introduction..........................................................................................................................................................867.2 Overturn rate........................................................................................................................................................867.3 Career access and career development (training)................................................................................................877.4 Employee satisfaction..........................................................................................................................................87

8 Legal certainty............................................................................................................................................................878.1 General introduction............................................................................................................................................878.2 Quality of the legislation......................................................................................................................................878.3 Unity (Consistency) of the legal decisions..........................................................................................................88

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8.4 Workload (entries, backlog) at the High Court level...........................................................................................889 Credibility...................................................................................................................................................................88

9.1 Introduction..........................................................................................................................................................889.2 Integrity, Discipline, Ethics, Anti - Corruption...................................................................................................889.3 Enforcement capability........................................................................................................................................89

10 Public image.........................................................................................................................................................8910.1 Introduction.....................................................................................................................................................8910.2 Surveys............................................................................................................................................................8910.3 Public outreach and participation....................................................................................................................89

PART THREE: Strategy and action plan1 What to do..................................................................................................................................................................922 How to do it................................................................................................................................................................923 Project One: Establishing the new allocation model..................................................................................................934 Project Two: Restructuring the court system.............................................................................................................945 Project Three: Investing in court infrastructure..........................................................................................................956 Project Four: Loosening hierarchical decisions structures.........................................................................................96

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Introduction

As democracies stabilize, dissatisfaction with the judiciary runs high in many countries. At the international level, economic integration is also forcing countries to change their laws and legal systems. Not only is there greater pressure for efficient enforcement of laws, there is also a need to rewrite legislation to conform to regional and international standards, and to establish new institutions. In addition, when countries apply to join international organizations they must comply with certain legal prerequisites that force them to allow foreign institutions to review their administration of law. Finally, as countries try to make themselves more attractive to foreign investment they find that an inefficient judiciary may repel potential investors or corrupt the process. One factor that investors consider when rating a country is whether they will have access to suitable mechanisms to resolve disputes properly. Delay and judicial uncertainty are cited as the most harmful to business by investors. The judicial system in many countries is inefficient and distrusted. Rapid changes to the judiciary have caused problems for judges from the old system as well as for those newly appointed judges who are in need of training. The judiciary has been under tremendous pressure due to the dramatic increase in the litigation rate. While these countries are responding to calls for judicial reform, modernization cannot be easily or rapidly achieved. Such a program often includes court modernization, legal reform, alternative dispute resolution mechanisms, and training for judges, court personnel, lawyers, students, civil society and improved access to justice. The starting point for the program should be a clear plan that focuses on activities that have a high probability of success and that provide immediate benefits. This will help to win over judges and political actors who may have a vested interest in the continued inefficiency of the judicial system.Some authors argue that ninety percent of successful reforms are due to actions of the leadership and ten percent due to actions of management. Reform requires a change in attitudes, which will require cultural changes. Due to their traditional culture, judiciaries are often not accustomed to change and seldom-initiate reform. To overcome cultural resistance to change, the early participation of the main actors in the process of change has become a powerful tool to help achieve full commitment to the process

The overall objective of this report is to assist the Ministry of Justice and the Superior Council of Magistracy in analysing the existing statistical system of the courts, deficiencies in the organization of the court system and allocation of human resources within the system. In addition, this report will propose reforms aimed at improving the judicial system based on the results of the analysis.

This report does not aim to develop sophisticated strategies with little chance of success, or simply promote a facile criticism against government, judicial authorities or any other entity, or to present judges and court staff in a light that may seem unfair or unsympathetic. Based on the experience of the experts involved in this project in working with the Romanian judiciary, the contributors to this report will do their best to identify feasible solutions to concrete problems and try to display with accuracy and honesty a number of solutions that are helpful, and will permit measurable progress in the Romanian judiciary in a relatively short amount of time.

The consultants believe that it is their responsibility to prioritise and focus on certain aspects of judicial reform for which we can make recommendations and propose an Action Plan that can be implemented within a reasonable time frame utilizing the least amount of resources. As an

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example, we will take generic actions to promote ideas for the creation of a set of indicators by which the complexity of cases can be determined systematically. This will promote a more efficient and fair case assignment system.

The last six months have brought a great deal of advancement in the reform of the judiciary in Romania. The Romanian judiciary has witnessed a remarkable number of changes since the summer of 2004. Although it is not the primary purpose of this study to analyse these developments, it has become obvious that due to the scale and the implications of the changes, these developments cannot be ignored.

In June 2004, the laws on the Superior Council of Magistrates, the Organization of Judiciary and the Statute of Magistrates were adopted. This three-law package, which came into force in September, is intended to significantly improve the independence and efficiency of the judiciary. Under these new laws, the Superior Council of Magistrates took over full responsibility for the recruitment, career development and discipline of magistrates, judges, and prosecutors from the Ministry of Justice

In December 2004, Romania concluded negotiations for admission into the European Union. The Justice and Home Affairs chapter (JAI) was the last issue to be agreed upon after two years and seven months of difficult negotiations. However, until 2007, when Romania is set to join the European Union, 11 specific reforms must be implemented. Seven of these specific conditions are under the JAI chapter. In relationship to the judiciary system, Romania must present a strategy and an Action Plan regarding the reform of the judiciary system, including the most important measures needed for implementing the law on the Organization of the Judiciary, law on magistrates’ status, and the law regarding the Superior Council of Magistrates by March 2005.

In the first part of this report we intend to present the results of our examination of the existing court structure and allocation of human resources within the Romanian court system. Our aim is to determine if the current statistical system is able to provide the necessary information for establishing a detailed and exact picture of the activities of the courts, to provide advice on necessary modifications of the system in order to provide the necessary additional data, and to give advice with regard to restructuring the court system.

In the second part of the report, we identify a number of additional factors that must be dealt with: independence, efficiency, quality, legal certainty, infrastructure and resources, court management and organization, credibility and public image. The analysis of each factor includes theoretical observations, practical remarks about the current situation, and suggestions for future steps.

In the final part of the report we present a strategy for how to progress on implementing the recommendations. We discuss the most common mistakes that may cause reform projects to fail, and how to avoid making them. We furthermore identify and elaborate on what we consider to be the four most important reform projects that should form the next steps for the Romanian authorities to complete the analysis started in this report. These four reform projects are:

1. Establishing an allocation model that, given the number and types of cases in each court, provides adequate information about the amount of work in each court.

2. Restructuring the court system by using this model, and:

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a. Increase the number of positions in courts with a high workload, and decrease the number of positions in courts with a low workload

b. Abolish the smallest District Courtsc. Establish specialized Tribunals in counties that have a demand that will justify the

allocation of at least 8-10 judges for this purpose.

2. Investing in improving court infrastructure – the number and space of courtrooms, and working space available for judges and clerks. The first investments should be made in the localities with the highest number of judges per courtroom.

3. Loosening the hierarchical decision-making structure in the entire court system, so as to empower courts to make economic dispositions without prior approval from the SCM or the MoJ (as long as the court stays within its overall budget), and so as to empower non-judicial staff to take over some administrative responsibilities, and thus relive the court president of some of his or her workload.

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PART ONE: Court Structure and the Allocation of Human Resources

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1 Methods and Models for evaluating the existing allocation

In this first part of the report we will present the results of our examination of the existing court structure and allocation of human resources within the Romanian court system. Our aim is to determine if the current statistical system is able to provide the necessary information for establishing a detailed and exact picture of the activities of the courts, and we will provide advice on necessary modifications of the system in order to provide the additional data needed. Furthermore we will give advice with regard to restructuring the court system.

The procedure for allocating judges among the courts in Romania is described in and determined by the Law on Judicial Organisation. According to article 121, the maximum number of positions for courts shall be established by Government decision upon proposal from the minister of justice. Endorsement from the Superior Council of the Magistracy is now required.

According to article 120, the President of the High Court of Cassation and Justice and the presidents of the courts of appeal shall, together with the minister of justice analyse the workload of courts every year and, according to the results of the analysis, take measures to supplement or reduce the number of positions with the agreement of the Superior Council of the Magistracy. Analysis of the number and complexity of cases will also determine which tribunals sections (with section presidents) will be established, and whether 1or 2 vice presidents will be appointed to support the president.

The existing resource allocation has been criticised in the OPDAT report1 from 2002. This study finds a marked disparity in court personnel and facilities among the courts. According to the report, some courts seem to have inadequate staff compared to workload, and suffer form severe shortages of equipment while other courts apparently have plenty of personnel and more adequate facilities. Specifically, the report mentions that courts within the Bucharest area seem to be severely understaffed and share inadequate facilities, and that tribunals in general seem to have a much higher workload than the lower and higher level courts.

The OPDAT report goes on to recommend a review of existing staff levels to determine which courts are overstaffed, and which courts are understaffed. The review should be based upon standardized work measurement formulas, developed by court representatives.

This concern is also reflected in the Terms of Reference for this assignment, which comes with the following statement:

“The current court “map” has unrealised opportunities for more efficient organization: e.g. the caseload is unevenly distributed among various courts, present “specialized” sections in Tribunals and Courts of Appeal do not satisfy the existing demand for specialized judicial expertise in particular areas of law, allocation of judges and court personnel is not proportionate to a caseload of a particular court, there is no flexible mechanism for re-distributing a caseload from overburdened courts to less busy courts etc. To achieve better overall performance and higher effectiveness and efficiency of the Romanian judiciary, the

1 Report on Progress and Recommendations for Reform in the Courts of Romania, US Office of Overseas Prosecution, Development, and Training (OPDAT), 2002

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court system needs to be analysed and policy options for reorganization measures to be outlined.”

In this section we will, by use of available statistical data, analyse the existing allocation of positions. We will do so in order to find out whether the existing statistical system is able to provide necessary and sufficient information in order to assist the parties in the allocation process.

We will use three different models for evaluating the existing allocation of positions. The three models are briefly introduced below.

The first model (the population model) will compare the number of judges in each court with the number of inhabitants in each jurisdiction. As a standalone model for allocating positions, model one is inadequate. Even if two jurisdictions have exactly the same number of inhabitants, differences in industrial structure and in demographic factors, for example may give rise to significant differences with regard to the number and character of the problems and conflicts the courts are supposed to deal with. Such differences in demand should be taken into account when positions are allocated.

However, the population model has immense value as a supplement to a model based only on the number of cases (model 2). The population model is immune to the “noise” generated by sudden fluctuations in the number of “trivial” cases (like when a traffic control campaign is launched in a specific jurisdiction), which may otherwise lead allocating authorities to falsely believe that major changes in the number of positions are needed. Furthermore, the population model may provide the best basis for long-term planning. Even if economic development comes to some regions before others, and in the short term increases the demand for judges in the most developed regions, the population model can provide information for the allocation of judges when other regions have caught up.

The second model (the caseload model) will compare the number of judges in each court with the total number of (incoming) cases. We understand from our talks with the Ministry of Justice and court officials that this is the model currently in use. When new positions are allocated, the number of cases is one of the most important factors. The court officials we talked to explained that at the end of the year the court president will ask for extra positions. The president will try to support his request with the use of the statistical data on the number of cases.

The major problem with the caseload model is, as indicated above, that a case is not just a “case”. Some cases may be quite simple for the court to handle, and require only little work. Other cases are extremely complicated and demand a huge amount of work from the court. Thus, it may be “unfair” just to benchmark the number of completed cases in each court, since some courts may have a disproportionate number of complex cases.

There are two ways to address this issue. First, one can gather additional data, which will further explain the complexity of each type of case. Based on this it will be possible to establish weights for each type of case, so that the measure for efficiency is:

Efficiency = weighted sum of outputsweighted sum of inputs

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The current statistical system does not provide sufficient data for such a measurement. This problem is addressed at the end of this chapter. We should stress that this lack of data does not necessarily mean that variations in complexity are entirely disregarded now when positions are allocated, only that the allocation is not systematically supported by data on case complexity. In fact, the court presidents from Pitesti told us that they had been able to convince the Ministry of Justice that they had relatively more complex cases (being a relatively rich area) and had received an extra number of positions because of this.

An alternative method for addressing the problem of differences in case complexity is Data Envelopment Analysis (DEA). DEA constitutes our third model for evaluation of the existing allocation, and is a linear programming based technique for measuring the relative performance of organizational units where the presence of multiple inputs and outputs makes comparisons difficult. The major advantage of DEA is that the method does not require us to establish a single common set of weights. DEA results however, may sometimes be difficult to interpret, and the method is disputed among researchers.

Since the DEA model requires a certain number of different outputs (different types of cases) in order to be effective, the model will not been applied to the District Court level, where it has only been possible to obtain data for the total number of civil and criminal cases in each court. The model will be applied to the Tribunals and the Courts of Appeal, for which it has been possible to obtain more detailed information with regard to the number of different types of cases.

In the following sections, the models will be applied to the different court levels, and the results from each model will be compared with the existing allocation of positions. We should stress that when we mention below that a number of judges according to a specific model should be “moved” from one court to another, we mean this only in a hypothetical sense, as an indication of how much the model differs from the status quo. In practice, an individual judge cannot be moved against his or her own will. Reallocation, therefore takes time, and has to be based on decisions with regard to the filling of vacancies and allocation of new positions.

We compare the results from each model in order to assert whether consistent and unambiguous advice can be gained from these models with regard to the allocation of positions, or whether additional statistical data and a more sophisticated model are needed.

We then turn to the matter of court size. We will argue that some of the existing Romanian courts are simply too small to allow for the efficient use of resources.

We then proceed to analyse case backlogs. Case backlogs are supposed to correlate with workload (but does not do so necessarily), and since the three models each provide us with an indication of how much work is demanded from the courts, the correlation with each model will be analysed. This should give us an indication about whether application of one or several of the models could be expected to reduce backlogs by levelling out the workload.

Finally, we look upon the allocation of clerks. Judges need support from a sufficient number of clerks in order to perform efficiently. The proper allocation of clerks is thus an important prerequisite for an efficient court system.

The Ministry of Justice has supplied the data on which the following analysis is based:

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The number of cases in each court in 2002 and 2003 The number of judges in each court in 2002, 2003 and 2004 The number of clerks in each court in 2004

In order to check the validity of this data, we have asked the courts we visited in Pitesti and Craiova to confirm the information we received on their organisations. They have all confirmed that the stated numbers of positions are correct, and they have confirmed that the data on caseloads are identical to those the courts have themselves reported to the Ministry of Justice.

The court officials we talked with all expressed confidence in the statistical data. They stressed that the statistical department within the court is often able to ensure accuracy, since cases in courts with IT-systems are registered both manually and on the computer. Presently there seems to be no centrally organised audit of the registration of cases done by the courts, but it is expected that the Superior Council of the Magistracy may initiate such an audit.

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4 The number of judges

Before going on to discuss the allocation among courts, we will briefly consider the development in the total number of judges.

The size of Romania’s judiciary has increased significantly over the past several years. The number of judges has almost tripled since 1990.

Figure 2

Number of judges in Romania

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It should be taken into account that some of the positions are vacant. In 2000 there were approximately 80 vacant positions3 (2%). In 2001 there were 73 vacant positions4 (2%), and in 2002 there were 585 (1½%). In 2004 there were 491 vacant positions (11%), most of them (436) in the District Courts. Temporary vacancies arise because potential new judges need to pass the exam from the National Institute for the Magistracy, or need to participate in an election for promotion.

It should be mentioned that while the number of judges has increased dramatically, so has the number of cases entered into court. In recent years, this has been especially true for property rights cases. Some of the court officials we talked with argued that the number of property rights cases

2 Source: National Institute of Statistics (the years from 1990 to 2001); Ministry of Justice (the years from 2002 to 2004).3 Source: Judicial Reform Index for Romania, ABA-CEELI, 20024 Source: Iorgovan, Antonie, Ioan Les and Ioana Vasiu (2003). “Quality and Justice in Romania”, in The Administration of Justice in Europe: Towards the development of quality standards, Research directed by Marco Fabri, Philip Langbroek and Hélène Pauliat. Research Papers of the Institute di Ricerca sui Sistemi Giudiziari, Bologna. 20035 Source: The Ministry of Justice.

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may fall slightly, but the number of commercial cases is expected to continue to increase. The number of criminal cases is expected to continue at the present level.

There is some debate over whether Romania needs more judges. A recent report6 argues that Romania has a high number of inhabitants per judge compared to other European countries, and that Romania needs to add more judges in order to catch up.

The factual data does not support this claim. While the number of inhabitants per judge in Romania was more than 15.000 in 1900, the number is now less than to 6.0007. This is a comparatively low number. A recent study8 concluded that there are around 15.000 inhabitants per judge9 globally. In North America the number is close to this global average, while the numbers in Europe are a little lower. In Eastern and Northern Europe there are around 8.000 inhabitants per judge, while there are only around 5.000 inhabitants per judge in some Western and Southern European countries.

Figure

Number of inhabitants per judge in European countries

0 5.000 10.000 15.000 20.000 25.000 30.000 35.000

SloveniaGreece

Hungary

Czech RepublicGermany

Slovakia

Austria

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BulgariaLithuania

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FinlandLatvia

Norway

PortugalItaly

Netherlands

MoldovaFrance

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DenmarkUnited Kingdom

Ireland

Compared to Italy and France, countries that have judicial systems that are in many ways similar to that of Romania, Romania has a relatively large number of judges at 5.000 inhabitants per judge.

6 Iorgovan, Antonie, Ioan Les and Ioana Vasiu (2003). “Quality and Justice in Romania”, in The Administration of Justice in Europe: Towards the development of quality standards, Research directed by Marco Fabri, Philip Langbroek and Hélène Pauliat. Research Papers of the Institute di Ricerca sui Sistemi Giudiziari, Bologna. 20037 When all positions are occupied and when the judges in the High Court of Cassation and Justice are included there will be approximately 5.080 inhabitants per judge.8 Shaw, Mark, Jan van Dijk and Wolfgang Rhomberg (2003). “Determining Trends in Global Crime and Justice: An Overview of Results from the United Nations Surveys of Crime Trends and Operations of Criminal Justice Systems”, Forum on Crime and Society, vol. 3, Nos. 1 and 2.9 The data covers the period from 1998 to 2000.

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In the future, priority should be given, to improving the working conditions of the judges (training, buildings, IT etc) rather than to further increases in judges. We gathered from our visits to courts and interviews with court officials that a lack of resources for these purposes severely limits the benefit the court system gets from “additional” judges.

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5 Allocation of Human Resources in District Courts

Romania has 177 District Courts (judecatorii). In 2004 there were a total of 2.234 positions (judges) in these courts. This is an increase from 2.036 judges in 2002 (10% increase).

436 of these positions are presently vacant. For example, in the Pitesti Court of Appeal jurisdiction there are 10 District courts, and only 105 of the 120 District Court judge positions in these courts are presently occupied.

The vacant positions are supposed to be filled when new students graduate from the National Institute for Magistracy. This analysis is based solely on the official number of positions, since we have not been able to obtain updated general information about the present number of vacant positions in each District Court.

Figure

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Number of District Courts with different number of judges

The District Courts vary in size. Many of the District Courts are quite small, with only 2-5 judges. The largest District Court is the District Court of Timisoara with 51 judges.

In 2004 the District Courts had 3.030 clerical positions. Again, some of these positions are vacant. As with the number of judges, the number of clerks has, increased substantially since 200210.

10 599 positions for clerks were added to the court system as a result of the 2003 budgetary review.

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Besides clerks, the courts also hire other types of support staff (secretaries, IT specialists and drivers). The 10 District Courts in the Pitesti area reportedly have 251 auxiliary positions (including 175 clerks) of which all but 3 are presently occupied. But since we have only been able to obtain general information about the number of clerks, the following analysis does not include other auxiliary staff.

Below, the present allocation of judges in the District Courts will be analysed based on the number of inhabitants in each jurisdiction (model 1) and the number of incoming cases (model 2). These results will then be compared with data for backlogs, and finally, the ratio of clerks to judges will be benchmarked.

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5.1 Model 1: The Population Model

A straightforward criterion for evaluating the allocation of judges among courts is the number of inhabitants in each jurisdiction. It should be expected that the number of judges should correlate to some degree with the number of inhabitants.

Since it has not been possible to obtain information about the number of inhabitants in each District Court jurisdiction, the following analysis compares instead the number of inhabitants and District Court judges in each Tribunal jurisdiction (county). The figure below compares the number of inhabitants (in 2001) in each Tribunal jurisdiction11 (x-axis) with the number of District Court judges (in 2004) within the jurisdiction (y-axis).

Figure

Population and number of District Court judges in different Tribunal jurisdictions

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The simple linear regression model, which treats the number of District Court judges as a linear function of the number of inhabitants has a coefficient of determination (r2) of 0,939. Around 94% of the variance in the number of District Court judges can thus be “explained” by this linear relationship.

11 The Population data has been obtained from the National Institute of Statistics.

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Although there is a strong relationship between inhabitants and the number of judges, it is also evident that some courts deviate markedly. The figure below shows the number of inhabitants per District Court judge in the various Tribunal jurisdictions.

Figure

Number of inhabitants per District Court judge

0 2.000 4.000 6.000 8.000 10.000 12.000 14.000 16.000

GORJMEHEDINTI

VALCEACARAS SEVERIN

HUNEDOARABUCURESTI

TIMISSIBIU

IALOMITABACAU

BOTOSANISUCEAVA

ARADTELEORMAN

TULCEACONSTANTA

OLTCLUJDOLJALBA

BRAILAARGES

SATU MAREMARAMURES

BRASOVVASLUI

BIHORVRANCEA

BISTRITA NASAUDNEAMT

DAMBOVITAMURES

PRAHOVABUZAU

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GIURGIUCALARASI

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SALAJ

The average is 10.000 inhabitants per District Court judge, although some jurisdictions have below 6.000 and others more than 12.000 inhabitants per District Court judge. The courts with the highest number of judges compared to population are located in the South-western part of the country.

If all Tribunal jurisdictions should have approximately the same number of inhabitants per District Court judge it would be necessary to move 153 District Court judges (around 5% of all District Court judges) to another jurisdiction. The number of District Court judges should be reduced by 30 in Gorj, 26 in Bucharest, 24 in Mehedinti and 14 in Valcea. The number of judges should be increased by 15 in Iasi, 12 in Galati and 11 in Prahova.

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If the number of inhabitants was adopted as the only criteria for allocating District Court judges, 100 District court judges should be allocated to another Courts of Appeal jurisdiction. Craiova specifically has “too many” District Court judges, according to these criteria.

Figure

Changes in number of District Court judges needed to equalize the judge-population ratio

-60 -40 -20 0 20

ALBA IULIAPITESTIBACAUORADEASUCEAVABRASOVBUCURESTICLUJCONSTANTACRAIOVAGALATIIASITIRGU MURESPLOIESTITIMISOARA

As mentioned above, the population model is in itself an inadequate model for allocating judges among courts. We need to also take the number of cases into account, which is the focus of model 2.

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5.2 Model 2: The Caseload modelAn obvious criterion for evaluating the allocation of human resources is the number of cases. The number of cases and the number of judges should correlate so that the workload of a judge does not substantially vary from one court to another.

5.2.1 Comparing 2002 and 2003-dataWhile the number of inhabitants in a jurisdiction will not typically change dramatically from year to year, the number of cases might. It can thus be considered problematic to base the allocation of human resources upon statistical information about the number of cases in just one year.

The following analysis will be based on the number of incoming cases in 2003. In order to estimate whether the 2003-data are in some way an anomaly, a comparison with the 2002-data is made in this section.

The total number of cases in the district courts fell by 193.927 from 2002 to 2003, a drop of almost 18%. This is entirely due to a major decrease in the number of civil cases, since the number of criminal cases increased little from 2002 to 2003.

Figure

Number of incoming cases in district courts 2002 and 2003

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When we compare the number of cases in each district court in 2002 and 2003, we see that there is a strong correlation between the number of cases in the two years, and also that the general decrease

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in the number of cases has generally appeared in the large courts. There is thus a polynomial correlation between the total number of cases in 2002 and 2003, cf. the figure below.

Figure

Incoming cases in the District courts

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For most of the District Courts it will not make a significant difference whether we base our estimation of the allocation on 2002-dataor 2003-data. The exception to this is some of the large district courts, which have experienced a somewhat larger decrease in the number of cases than other courts. This is the case for the district court of Oradea and the district court of Timisoara, both of which experienced a decrease of approximately 45% in the number of cases from 2002 to 2003.

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5.2.2 Comparing number of cases and number of judges in district courtsThe following analysis is based on the number of incoming cases in 2003. When we compare the number of incoming cases in each District Court with the number of District Court judges, we get the graph pictured in the figure below.

Figure

Number of judges and number of cases in district courts

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The simple linear regression model, which treats the number of District Court judges as a linear function of the number of incoming cases, has a coefficient of determination (r2) of 0,927. Around 93% of the variance in the number of District Court judges can thus be “explained” by this linear relationship.

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The average workload12 in the District Courts is approximately 400 cases per judge. However, some District Courts have a workload below 250 cases per judge, while others have a workload of more than 600 cases per judge.

It is somewhat surprising that the allocation of judges does not reflect the number of cases to a higher degree, since model 2 (the case model) is the one the Ministry of Justice and the courts claim is in use. There can be several possible explanations. One explanation is that model 2 was only implemented a few years ago, and that it takes time to reallocate judges so that the number of judges better reflects the number of cases. The Ministry has only had the opportunity to influence the relative allocation in case of vacancies.

Figure

0

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ases

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ases

Number of District Courts with different amounts of workload

The figure above shows that most District Courts (107) have a workload between 300 and 450 cases per judge. 32 District Courts have a workload below 300 cases per judge. 38 District Courts have a workload above 450 cases per judge, and of those courts 11 have a workload above 550 cases per judge.

12 The ”workload” shown in the figure is not the real workload in a specific year, since the number of positions in 2004 is compared to the number of cases in 2003. It should be interpreted as the workload that would come about in 2004 if the number of cases did not change from 2003 to 2004, and if all vacant positions were occupied. The Ministry of Justice has calculated the actual average workload in the District Courts to be 472 cases per judge.

23

The average “workload” for District Courts has fallen a great deal since 2002 because of the decrease in the number of civil cases and the increased number of judges. In 2002 the average workload was 544 cases per judge, and this fell to 407 cases per judge in 2003.

Figure

Workload in District Courts

0

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Up to 5 judges 6 to 10 judges 11 to 15 judges 16 to 20 judges 21 to 25 judges 26 to 30 judges 31 to 40 judges More than 40judges

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200220032004

The workload no longer depends much on the size of the District Court. While the District Courts with more than 40 judges had a markedly higher workload than other courts in 2002, the workload for these courts has fallen close to the average, although the District Courts, with more than 25 judges still have a slightly higher workload than the courts with less than 15 judges.

24

When we compare the workload of District Courts in the various Courts of Appeals jurisdictions, we see that the courts in Craiova and Iasi have the highest workload, while the District Courts in Tirgu Mures and Oradea have the lowest.

Figure

Workload in District Courts in different Courts of Appeal jurisdictions

0100200300400

500600700

800

TIRGU M

URES

ORADEA

TIMIS

OARA

BRASOV

BUCURESTI

ALBA IU

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Num

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200220032004

If the District Court judges were to be allocated solely on the basis of the total number of incoming cases in 2003, this would imply that 183 District Court judges (8%) should be moved to another court. The District Court in Craiova should have 25 extra judges. The District Court in Iasi should have 20 new judges and the District Court in Targu Jiu 9. 14 judges should be taken away from the District Court in Timisoara. Appendix 2 gives the results for each court.

Applying this criterion would imply that 100 District Court judges should be moved to another Tribunal jurisdiction, and 80 of them should be moved to another Courts of Appeal jurisdiction.

25

Finally, we compare the results from using model 2 (number of cases) with those obtained by applying model 1 (population). The figure below shows the change in the number of District Court judges advocated by each criterion.

Figure

Comparing changes in the allocation of District Court judges applying model 1 and 2

-70 -50 -30 -10 10 30 50

ALBA IULIAPITESTIBACAUORADEASUCEAVABRASOVBUCURESTICLUJCONSTANTACRAIOVAGALATIIASITIRGU MURESPLOIESTITIMISOARA

Model 2Model 1

Some of the results are similar. According to both criteria, the number of District Court judges should be reduced in Timisoara, Bucharest and Alba Iulia. These courts have neither enough cases nor a big enough population to justify their present proportion of District Court judges.

Likewise, both criteria indicate that the number of District Court judges should be increased in Iasi, Galati and Cluj.

The models reach conflicting results with regard to Craiova, Ploiesti, Brasov, and Oradea. The two models give widely different recommendations, especially for Craiova. Based on the number of inhabitants, the District Courts in Craiova should have markedly fewer judges, based upon the total number of cases; however they should have a great deal more.

Since the two models reach rather conflicting results overall, we are not able to get a straightforward answer to our question about how District Court judges should be allocated by the use of currently available data. The conclusion must therefore be that we need more detailed and relevant statistical data, which will form a more convincing and satisfactory basis for decisions about the allocation.

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5.3 Restructuring of the District Courts.

Structural change in the Romanian judiciary pyramid should be undertaken by reconsidering the role of the District Courts.

Due to the size of the population, and the different pace of economic and civil dynamics, a number of localities are confronted with a huge increase in their workload; however the receiving structural capability has remained unchanged since 1968 following the administrative division operated at that point in time – one District Court for a locality, one tribunal for a county. This study proposes a reversal in this policy – what is happening on the ground should determine and shape the administrative pattern, which needs to be flexible in order to ensure an efficient resolution of the tensions at the input level. From this point of view, it is obvious that the current system of the District Courts, as a basis of the judicial pyramid, can be adjusted in a way that would allow the entire Romanian court system to deal effectively with the structural workload situation.

It has been a common trend among European countries lately to reduce the number of courts and jurisdictions in order to create larger court units. This is due to both efficiency and quality concerns. Large courts are seen as better suited to provide more efficient and quality professional management; they can better respond to the opportunities for economies of scale (duplicity of functions can be avoided); they are less vulnerable to vacancies or sudden changes in the amount of litigation; they allow better for specialisation and use of the principle of collegiality (more than one presiding judge) and finally large courts are often better able to create a healthy professional environment where judges may discuss and share knowledge about legal issues.

The main argument against abolishing the smaller courts is that their proximity to local communities gives citizens convenient access to justice. However, with improved infrastructure and opportunities for transportation this will become less of a concern. Furthermore, most citizens only need to attend court a few times in their life, if ever. When land registration is part of the courts business, then proximity may be more important, but in several countries land registration is now handled by a separate agency, as is the case in Romania.

Finally, large courts may be able to retain some of the advantages of proximity if they are allowed to operate branches or courtrooms in different cities. The smaller community may thus be visited from time to time by a judge, or a team of judges, who can then handle cases that cannot be conveniently heard in the city where the main court is located.

It is not possible to give an entirely scientific and conclusive answer to how small a court can be in order for it to function efficiently. A recent study conducted in Denmark reached the conclusion that a single court should have no fewer than 6-8 full judges (and in addition a number of deputy judges13) for the abovementioned reasons, and should actually have a few more. The geographical and infrastructural conditions in Denmark may be different from those in Romania, but we find it hard to justify the existence of courts that do not, – according to the current data - have enough cases for at least 5 judges. Even considering the lack of detail in the data described in the above sections, we think that such a low number of total cases is a strong indication that the courts in question are simply too small.

13 In the Danish judicial system it is not normal to become a “full” judge with tenure before the age of 40 (or later). Younger deputy judges serve as a kind of trainees.

27

Based upon the data we have received for the number of cases in 2002 and 2003, we have calculated how many judges each District Court should have had in those years, if the number of judges reflects the number of cases.

In 42 District Courts the number of cases cannot justify more than 4 judges in 2002 or in 2003. These District courts are listed below.

We propose that the SCM consider either abolishing these courts or merging them with another court.

11 of the smallest courts could be merged with another small court to form 6 courts of an acceptable size. This is dictated by the fact that these District Courts are located in small cities that are less than 30 kilometres from each. The merger should be based on a cost/benefits analysis that shows which District Court is better suited to take over the judicial resources and handle the combined

28

docket efficiently and competently. The freed resources will also be utilized for serving other more pressing needs of judiciary reform.

9 of the remaining small courts are located less than 25 km from a larger district court. We propose that these are merged with this larger court. Since several of the large district courts are in need of buildings this could be done so that the large district court takes over the buildings of the small district court.

For example District Court Arges (in Pitesti), which according to our information is in severe need of more space, could enlarge its competence over the District Courts located a limited distance from the city (maximum 25 kilometres) and shown by the statistical data as having a low number of entries, as is the case with Topoloveni, which has only enough cases to justify 4 judges, and possibly (see below) District Court Costesti , which can justify 5-7 judges, so that the buildings in Topoloveni and Pitesti will become branch offices for the Pitesti District Court . Consequently the Pitesti District Court will mobilize the resources of the two courts, and will utilize them in dealing with the total docket of the three courts. The benefit of this change will be that the number of cases per judge will decrease and the number of courtrooms available will also increase. These changes will increase the quality and the efficiency of the court. Legal subjects will benefit from changes in the structure because they will reap the benefits of a shorter trial. . The possibility that certain parties will have to travel further than Pitesti are within the acceptable margin as the costs involved by the 25 kilometres are low. The geographical re-allocation of the Pitesti city districts to three new sections of the District Court will use distance and case balanced allocation as reference elements.

The remaining 28 small courts, which are not close to another court, should be abolished, unless it can be shown that these communities are in so much isolation that such special treatment is justified. When their jurisdictions are abolished they must be divided among other courts.

While we argue that it is most urgent to consider merging or abolishing the courts that do not have enough cases to justify at least 5 judges, we think that courts that have only enough cases to justify around 5 judges should also be reviewed more closely. We have listed below those 32 district courts that in either 2002 or 2003 did not have enough cases to justify more than 5 judges.

29

Of these courts, 6 could be merged with other courts, according to the criteria described above. With regard to the remaining 26 courts, we propose that these courts be made subject to further review when more detailed data will become available (which takes the complexity of the cases into account).

All in all we recommend with regard to the restructuring of the district courts: Abolishing 28 small courts, and dividing their jurisdictions among other courts. Merging 12 small courts with other small courts in order to form 6 new courts of an

acceptable size. Merging 14 small courts with larger courts. Subjecting 26 smaller courts to further review.

30

5.4 Case backlogs

By the end of 2003, the District Courts had a total stock of 159.283 unresolved cases. The amount of unresolved cases corresponds to 17,5% of the incoming cases in 2003. The situation in 2003 was almost identical for civil and criminal cases, while the backlog for civil cases was somewhat lower in 2002.

Figure

Backlogs in the District Courts

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Most District Courts had a stock of less than 20% of the incoming cases. Only one court (Raducaneni) had a stock of unresolved cases that amounted to more than 50% of the incoming cases.

31

Figure

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Number of District Courts with different backlogs

To see how these backlogs relate to our two models we compare the stock in each District Court with 1) the number of inhabitants per judge and 2) the workload per judge.

As can be seen from the figures below there is absolutely no correlation between the percentage of pending cases and the number of inhabitants per District Court judge. The same can be said with regard to case backlogs and the number of cases per judge. A high workload does not seem to lead to severe backlogs.

Figure Backlogs and number of inhabitants per District Court judge

0,00%

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Number of inhabitants per District Court judge (in each Tribunal jurisdiction)

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Figure

32

Backlogs and workload

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Figure

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Backlogs in District Courts in different Court of Appeal jurisdictions

While we cannot identify a correlation between case backlogs and workload, we can certainly see that average District Court case backlogs are quite different in the various Court of Appeal jurisdictions. This could indicate that the most important factor in explaining variations in case backlogs could be related to differences in the working cultures in the different regions. During our

33

talks with court presidents from Craiova, which is the area with the highest workload and the lowest percentage of unresolved cases, they explained to us that an increased caseload would probably not lead to more severe backlogs, because judges would just work more (they often work on weekends) or spend less time on each case.

This is similar to the conclusion reached by Markus Zimmer and Robert St. Vrain14. They state that, because judges are evaluated in part on their ability to process and terminate cases, they try to handle as many cases as possible during the limited periods that a courtroom is available to them. The price the judges and the court system have to pay for keeping pending caseloads at a low level is working many extra hours (weekends and nights), increasing fatigue and stress levels, and in the end, diminishing the quality of justice.

The most troubling consequence of a high workload may thus not be severe backlogs, but that judges will not spend enough time on each case, which may lead to bad judgements or mistakes. The risk of mistakes is considered to be especially high among the court officials we talked to because the law is changed often, and is often imprecise and difficult to interpret. The backlog per court can be a misleading indicator when the efficiency of a court is under scrutiny. Due to the current job evaluation system used within the Romanian judiciary, the backlog represents a clear negative mark in the general assessment of a judicial activity. The same goes for court presidents or vice-presidents when a court activity is evaluated. Since this evaluation, done through judge inspectors, may represent an essential factor in their career development, it is clear that all judges and clerks will do their best, possibly sacrificing the quality standards or even sacrificing their health, to keep the backlog as reduced as possible. This trend is noticeable at all court levels.

Every court system has to maintain a delicate balance between the need for the swift processing of cases and the need for allowing judges enough time to consider each case. It seems to us that the Romanian court system may benefit from focusing more on the latter perspective, even if in the short run this may lead to increasing case backlogs. We will have more to say about this in part two of this report.

14 Report on Administrative and Management Reform in the Romanian Courts, Markus B. Zimmer and Robert D. St. Vrain, 1999

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5.5 Allocation of clerks

The allocation of clerks in District Courts correlates to some degree with the allocation of judges, as can be seen in the figure below.

Figure

Number of judges and number of clerks in District Courts

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The correlation is not perfect, though. There is a substantially higher average ratio of clerks to judges in the small courts. This is not surprising. It is more surprising that there are also some differences in the ratio in the various Court of Appeal jurisdictions. The District Courts in Tirgu Mures therefore have a relatively better supply of clerks than the District Courts in Bacau.

35

Figure

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Ratio (Clerks per judge)

Number of clerks per judge in District Courts of various sizes

Figure

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Clerks/judge-ratio in District Courts in the various Courts of Appeal jurisdictions

36

5.6 Summary: District CourtsWe have based our evaluation of the existing allocation of positions in the District Courts on two models. The first model takes into account the number of inhabitants in each jurisdiction, and the second model the number of incoming cases. The two models reach rather conflicting results overall, and therefore we are unable to recommend how District Court judges should be allocated based on the data currently available. conclude that More detailed and relevant statistical data is necessary to form a more convincing and satisfactory basis for decisions about the allocation.

We cannot identify a correlation between case backlogs and workloads, however we can certainly see that average District Court backlogs vary greatly in the various Court of Appeal jurisdictions. This could indicate that the most important factor in explaining variations in case backlogs could be related to differences in the working cultures in the different regions.

Even though the quality of data can certainly be improved, we nevertheless recommend with regard to the structure of district courts:

Abolishing 28 small courts, and dividing their jurisdictions among other courts. Merging 12 small courts with other small courts in order to form 6 new courts of an

acceptable size. Merging 14 small courts with larger courts. Subjecting 26 smaller courts to further review.

37

6 Allocation of Human Resources in the Tribunals

Romania has 46 County Courts or Tribunals (of which one, Ilfov Tribunal, is presently not functional). Three of the tribunals specialize in commercial matters, while one specializes in juvenile and family matters.15 Specialised tribunals are courts that operate alongside the “normal” tribunal at the county level, and they are generally located in the city of residence of each county

In 2004, there were a total of 1.361 positions (judges) in the Tribunals. This is an increase from 1.126 judges in 2002 (more than a 20% increase). 35 of these positions are vacant. However, neither of the two Tribunals we visited (Arges Tribunal and the Dolj Tribunal), had any vacant positions.

This analysis is based solely on the official number of positions, as we have not been able to obtain updated general information about the present number of vacant positions in each Tribunal.

Figure

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Up to 15judges

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Number of Tribunals of different sizes

The Tribunals vary in size. One of the Tribunals, the Bucharest Tribunal, has 151 judges and is substantially larger than any of the other Tribunals. The second largest Tribunal, the Dolj Tribunal, has 59 judges.

In 2004, the District Courts had 1.406 clerical positions. Again, some of these positions are vacant. The number of clerks, like the number of judges, has increased substantially since 2002.

15 The specialised tribunals will be treated in more detail in section 4.4.

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Besides clerks, the courts also hire other types of support staff such as secretaries, IT specialists and drivers. The two Tribunals of Arges and Vâlcea in the Pitesti area reportedly have 132 auxiliary positions (including 70 clerks) of which all but 4 are presently occupied. Since we have only been able to obtain general information about the number of clerks, the following analysis does not include other auxiliary staff.

In the following, the present allocation of judges in the Tribunals will be analysed based upon the number of inhabitants in each jurisdiction (model 1), the number of incoming cases (model 2), and the number and types of incoming cases (model 3). We will then discuss the issue of specialized courts. We will also analyse the possible correlation between backlogs and these models. Finally, the ratio of clerks to judges will be benchmarked.

39

6.1 Model 1: The Population Model

One simple criterion for evaluating the allocation of judges among courts is the number of inhabitants in each jurisdiction. It should be expected that the number of judges correlate to some degree with the number of inhabitants.

The figure below compares the number of inhabitants (in 2001) in each Tribunal jurisdiction (x-axis) with the number of tribunal judges (in 2004) within the jurisdiction (y-axis).

Figure

Population and number of Tribunal judges

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Number of inhabitants in the jurisdiction

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The simple linear regression model, which treats the number of Tribunal judges as a linear function of the number of inhabitants, has a coefficient of determination (r2) of 0,876. Around 88% of the variance in the number of Tribunal judges can be “explained” by this linear relationship.

40

The figure below shows the number of inhabitants per Tribunal judge in the various Tribunal jurisdictions.

Figure

Number of inhabitants per Tribunal judge in various jurisdictions

0 5000 10000 15000 20000 25000 30000

TRIB. MEHEDINTITRIB. GORJ

TRIB. VALCEATRIB. DOLJTRIB. SIBIU

TRIB. ALBATRIB. VRANCEA

TRIB. DAMBOVITATRIB. BRASOV

TRIB. CARAS SEVERINTRIB. BISTRITA NASAUD

TRIB. ARADTRIB. BUCURESTI

TRIB. IASITRIB. BRAILA

TRIB. SATU MARETRIB. HUNEDOARATRIB. CONSTANTA

TRIB. TULCEATRIB. COVASNATRIB. CALARASI

TRIB. ARGESTRIB. IALOMITA

TRIB. OLTTRIB. GALATITRIB. BUZAU

TRIB. TIMISTRIB. SALAJ

TRIB. BOTOSANITRIB. BIHORTRIB. CLUJ

TRIB. GIURGIUTRIB. MARAMURES

TRIB. SUCEAVATRIB. MURES

TRIB. TELEORMANTRIB. NEAMTTRIB. VASLUITRIB. BACAU

TRIB. PRAHOVATRIB. HARGHITA

Number of inhabitants per Tribunal judge

The average is 16.500 inhabitants per Tribunal judge, but some jurisdictions have below 10.000 and others more than 20.000 inhabitants per Tribunal judge.

If all Tribunal jurisdictions had approximately the same number of inhabitants per Tribunal judge, it would be necessary to move 117 Tribunal judges (more than 8% of all Tribunal judges) to another jurisdiction. The number of District Court judges should be reduced by 20 in Mehedinti, 16 in Gorj, 14 in Dolj and 13 in Valcea and Bucharest. The number of judges should be increased by 17 in Prahova and 14 in Bacau.

41

If the number of inhabitants was adopted as the only criteria for allocating Tribunal judges, 86 Tribunal judges would be allocated to other Courts of Appeal jurisdictions. Craiova especially has “too many” Tribunal judges, according to these criteria.

Figure

Change in number of Tribunal judges needed to equalize the judge/population-ratio

-50 -40 -30 -20 -10 0 10 20 30

ALBA IULIA

PITESTI

BACAU

ORADEA

SUCEAVA

BRASOV

BUCURESTI

CLUJ

CONSTANTA

CRAIOVA

GALATI

IASI

TIRGU MURES

PLOIESTI

TIMISOARA

Number of judges

The population model is however, in itself an inadequate model for allocating judges among courts. We need to at least take the number of cases into account, which is the focus of model 2.

42

6.2 Model 2: Total number of cases

Another criterion for evaluating the allocation of human resources is the number of cases. The number of cases and number of judges should correlate so that the workload of a judge does not differ substantially from one court to another.

6.2.1 Comparing 2002 and 2003-dataWhile the number of inhabitants in a jurisdiction will typically not change too dramatically from year to year, the number of cases may. Therefore, it can be considered problematic to base the allocation of human resources based solely upon statistical information about the number of cases in just one year.

The following analysis will be based upon the number of incoming cases in 2003. In order to estimate whether the 2003-data are in some way an anomaly, a comparison with the 2002-data is made in this section.

The total number of cases in the Tribunals fell by 51.903 from 2002 to 2003, a drop of 11%. This is due entirely to a major decrease in the number of civil cases, since the number of criminal cases did not vary much.

Figure

Number of incoming cases in the Tribunals 2002 and 2003

0

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Civil cases Criminal cases Total

20022003

43

When we compare the number of cases in each Tribunal in 2002 and 2003, we see that there is a strong correlation between the numbers of cases in the two years.

Figure

Incoming cases in Tribunals

0

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0 10000 20000 30000 40000 50000 60000 70000

Number of incoming cases 2002

Num

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2003

For most of the Tribunals it will not make a significant difference whether we base our estimation of the allocation on 2002-data or 2003-data.

44

6.2.2 Comparing number of cases and number of judges

The following analysis is based on the number of incoming cases in 2003. The graph pictured in the figure below compares the number of incoming cases in each Tribunal with the number of Tribunal judges.

Figure

Cases and judges in Tribunals

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Number of incoming cases (2003)

Num

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f jud

ges

(200

4)

The simple linear regression model, which treats the number of tribunal judges as a linear function of the number of incoming cases has a coefficient of determination (r2) of 0,953. Around 95% of the variance in the number of Tribunal judges can be “explained” by this linear relationship.

45

The average workload16 in the Tribunals is approximately 300 cases per judge. Most Tribunals have a workload of between 250 and 300 cases per judge. One Tribunal (Covasna) has a much lower workload of below 200 cases per judge, while another, Tribunal (Dolj) has a workload of more than 450 cases per judge. The allocation of judges does not perfectly correlate with the number of cases.

Figure 17

0

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15

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25

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f Trib

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s

150-200 cases 201-250 cases 251-300 cases 301-350 cases 351-400 cases 401-450 cases 451-500 casesNumber of incoming cases per judge

Number of Tribunals with different workloads

.

16 The ”workload” shown in the figure is not the real workload in a specific year, since the number of positions in 2004 is compared to the number of cases in 2003. It should be interpreted as the workload that would come about in 2004 if the number of cases did not change from 2003 to 2004, and if all vacant positions were occupied. The Ministry of Justice has calculated the actual average workload in the tribunals to be 359 cases per judge.

17 The ”workload” shown in the figure is not the real workload in a specific year, since the number of judges in 2004 is compared to the number of cases in 2003. It should be interpreted as the workload that would come about in 2004 if the number of cases did not change from 2003 to 2004.

46

The average workload for Tribunals fell from 415 cases per judge in 2002 to 332 cases per judge in 2003. If the number of incoming cases does not increase from 2003 to 2004, the workload will fall to 305 cases per judge.

Figure

Workload in Tribunals of different sizes

0

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200220032004

The workload in the Tribunals with more than 40 judges is on average the highest.

47

When the workload of Tribunals in the various Courts of Appeals jurisdictions is compared, it is apparent that the courts in Craiova and Bucharest have the highest workload, while the Tribunals in Pitesti and Suceava have the lowest.

Figure

Workload for Tribunals in the various Court of Appeal jurisdictions

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PITESTI

SUCEAVA

ALBA IU

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ORADEA

PLOIE

STI

GALATI

CLUJ

TIRGU M

URES

BACAU

BRASOV

TIMIS

OARA

CONSTANTA

BUCURESTI

CRAIOVA

Num

ber o

f inc

omin

g ca

ses

per j

udge

200220032004

If the Tribunal judges were to be allocated solely on the basis of the total number of incoming cases in 2003, 110 Tribunal judges (8%) would be moved to another court. The Bucharest Tribunal would have 40 extra judges and the Dolj Tribunal would have 36. 12 judges would be taken away from the Valcea Tribunal, 11 from Dambovita, and 10 from Mehedinti.

Applying this criterion would suggest that 73 Tribunal judges should be moved to another Courts of Appeal jurisdiction.

48

We now compare the results obtained from applying model 2 (number of cases) with those obtained by applying model 1 (population). The figure below shows the proposed change in the number of Tribunal judges obtained from applying each model.

Figure

Comparing the effects of model 1 and 2 on the number of judges in the Tribunals

-60 -40 -20 0 20 40

C.A. ALBA IULIAC.A. PITESTIC.A. BACAUC.A. ORADEAC.A. SUCEAVAC.A. BRASOVC.A. BUCURESTIC.A. CLUJC.A. CONSTANTAC.A. CRAIOVAC.A. GALATIC.A. IASIC.A. TIRGU MURESC.A. PLOIESTIC.A. TIMISOARA

Change in number of judges

Model 2Model 1

Some of the results are similar. According to both criteria, the number of Tribunal judges should be reduced in Pitesti and Alba Iulia. These courts have neither enough cases nor a large enough population to justify their present proportion of Tribunal judges.

The models reach conflicting results with regard to several Tribunals, most notably the Tribunals in Craiova. Based on the number of inhabitants in Craiova, the Tribunals should have markedly fewer judges. Based on the total number of cases, they should have a great deal more.

49

6.3 Model 3: DEAThe DEA model is, like model 2 based on the number of cases. The difference between model 2 and 3 is that the latter not only considers the total number of cases, but also takes the different types of cases into account. Even if a court has a relatively low total number of cases compared to its number of judges, the complicated subject matter of these cases may require more judges. The DEA-score of a court reflects the possibility that the court may have more “complex” cases.

For the Tribunals we have received data for the following types of cases: Commercial cases, first instance Family law cases, first instance Labour law cases, first instance Administrative cases, first instance Other civil cases, first instance Criminal cases, first instance Commercial cases, appeals Family law cases, appeals Other civil cases, appeals Criminal cases, appeals Civil cases, final appeals Criminal cases, final appeals

The figure below indicates the total number of incoming cases for each type in the Tribunals in 2003.

Figure

0

20000

40000

60000

80000

100000

120000

140000

160000

Com

mer

cial

cas

es,

first

inst

ance

Fam

ily la

w c

ases

,fir

st in

stan

ce

Labo

ur la

w c

ases

,fir

st in

stan

ce

Adm

inis

trativ

e ca

ses,

first

inst

ance

Oth

er c

ivil

case

s, fi

rst

inst

ance

Crim

inal

cas

es, f

irst

inst

ance

Com

mer

cial

cas

es,

appe

als

Fam

ily la

w c

ases

,ap

peal

s

Oth

er c

ivil

case

s,ap

peal

s

Crim

inal

cas

es,

appe

als

Civ

il ca

ses,

fina

lap

peal

s

Crim

inal

cas

es, f

inal

appe

als

Number of different types of cases in the Tribunals in 2003

50

The DEA-model is most effective when it is possible to apply weight restrictions, meaning that from the outset we know that some types of cases are more complex (have more weight in the model) than others. By the degree of complexity of a case, we mean the amount of work the case demands from the judge.

In order to find out whether some of the aforementioned types of cases could easily be categorized as more or less complex, we asked judges in the courts we visited to rank the average complexity of the various types of cases. We received these rankings of the Tribunal case types from 21 judges. We conclude, however, that there is no agreement among these judges about the relative complexity of the different types of cases. For instance, although most judges seem to think that commercial cases are, on average, among the most complex cases, and final appeals of criminal cases among the least complex, some judges made the exact opposite ranking. Because of this we have decided not to include weight restrictions in the model.

Figure

DEA-score for Tribunals

0 50 100 150 200 250

TRIB. BISTRITA NASAUD TRIB. ALBA

TRIB. SATU MARE TRIB. VRANCEA

TRIB. VALCEA TRIB. SIBIU

TRIB. MEHEDINTI TRIB. BUZAU

TRIB. COVASNA TRIB. BIHOR

TRIB. NEAMT TRIB. IASI

TRIB. VASLUI TRIB. HUNEDOARA

TRIB. CLUJ TRIB. DAMBOVITA

TRIB. IALOMITA TRIB. BRAILA

TRIB. MARAMURES TRIB. BOTOSANI TRIB. CALARASI

TRIB. BRASOV TRIB. CONSTANTA

TRIB. ARAD TRIB. GALATI TRIB. MURES TRIB. ARGES

TRIB. CARAS SEVERIN TRIB. PRAHOVA

TRIB. OLT TRIB. BUCURESTI

TRIB. BACAU TRIB. GIURGIU

TRIB. SUCEAVA TRIB. TULCEA

TRIB. SALAJ TRIB. DOLJ

TRIB. HARGHITA TRIB. GORJ

TRIB. TELEORMAN TRIB. TIMIS

The figure above shows the DEA-score for each Tribunal. A DEA-score of less than 100 indicates that the court is less efficient than other courts (eg. has relatively too many judges). More precisely, the measure quantifies the input reduction (in number of judges) necessary to become relatively efficient, while holding the outputs constant.

51

A DEA-score of more than 100 (super-efficiency) indicates that the input factor (number of judges) could be increased without making the court less efficient.

If the DEA-model were applied as the sole criteria for allocating judges among Tribunals, this would imply that 177 judges (13% of the total number) would be moved to another Tribunal. 84 of them would be moved to another Courts of Appeal jurisdiction. Figure 35 summarises these results and compares the three allocation models.

Figure

Comparing model 1, 2 and 3 for allocation of Tribunal judges

-60 -40 -20 0 20 40

ALBA IULIA

PITESTI

BACAU

ORADEA

SUCEAVA

BRASOV

BUCURESTI

CLUJ

CONSTANTA

CRAIOVA

GALATI

IASI

TIRGU MURES

PLOIESTI

TIMISOARA

Change in number of Tribunal judges

Model 1Model 2Model3

It is evident that the three models reach somewhat conflicting results. Based on the currently available data, we are not able to get a straight answer to our question about how Tribunal judges should be allocated. The conclusion must therefore be that we need more detailed and relevant statistical data, which will form a more convincing and satisfactory basis for decisions about the allocation.

52

6.4 Specialized Tribunals

The law on Judicial Organization established specialized courts to replace the former specialized sections and panels. By law the specialized tribunals required to operate are: Juvenile and family litigations; commercial litigations; labour conflicts and litigation cases; and administrative and fiscal litigations.

Currently, there are four specialized Tribunals - one for juvenile and family matters in Brasov, and three for commercial matters, which are located in Arges (Pitesti), Cluj and Mures.

There are plans to substantially increase the number of specialized Tribunals. According to the law on judicial organization, these new tribunals are required to commence operations before January 1st

2008.

The original plan was to establish 4 specialized tribunals in each county: one for commercial matters, one for juvenile and family matters, one for labour and social insurance, and one for administrative-fiscal cases. The total number of specialized tribunals will amount to 168 in 2008, and the total number of tribunals will be 210.

We cannot recommend that all counties should have the whole range of specialized Tribunals. Many of them would become too small to be able to operate efficiently.

The tribunals facing a lower workload should be able to effectively accommodate the specialized panels. The decision to set up a specialized tribunal shouldn’t be based on standardized criteria, but on the general demand on the court based on the general workload and the frequency of the cases using purely motivated and fully supported logistically criteria.

In our view, the Specialized Tribunals cannot be counted as separate tribunals. For example, we have 7 specialized tribunals and 42 county Tribunals that make 49 tribunals. We appreciate that this arithmetic approach conveys a certain sense of superficiality and is detrimental to the credibility of the Romanian Judicial system reform. A specialized tribunal is only complementary to a general tribunal and we do not see any benefit for the image of Romanian judiciary in reporting an artificially increased number of tribunals by the mere use of semantics.

The generic term “Specialized Tribunals‘should be abandoned in favour of individual ones, such as Commercial, Labour, Family, Fiscal /Administrative and Intellectual Property courts. As a rule, the location of these separate Tribunals should follow the location of the Appellate Court with priority for the areas where the litigation rate is high. The regulation of the Superior Council of Magistracy states that priority should be given to areas where the litigation rate is high, primarily Bucharest.

As stated above, the available data are presently not adequate or detailed enough to determine the exact localities that have enough cases to justify the establishment of a specialized Tribunal. The data gives some indications, though. In the following counties, there are enough commercial cases that a commercial tribunal will be able to employ at least 8-10 judges:

53

We recommend that in the short term, commercial tribunals are established only in these counties. Further establishment of commercial tribunals should await more detailed data to support such initiatives18. With regard to Labour Tribunals, the present data can only support their establishment in four counties: Brasov, Dolj, Gorj and Bucuresti. No county has enough family or administrative cases to validate the establishment of specialized tribunals in these areas.

We would like to add that in terms of specialization and training, the Superior Council of Magistrates should develop a strategy that will guarantee that there are a sufficient number of specialized judges, and that they have the competence to practice in that area. NIM and the School of Clerks need to develop a clear curriculum and tests that will ensure the quality of the process.

18 Notice that the already established commercial tribunals in Arges and Cluj do have enough cases to support an adequate number of judges. The same is probably true of the commercial tribunal in Mures. The number of commercial cases in Mures is very close to the threshold we have set up when performing this calculation.

54

6.5 Case backlogsBy the end of 2003, the Tribunals had a total stock of 73.170 unresolved cases. The amount of unresolved cases corresponds to 17,6% of the incoming cases in 2003. Most Tribunals had a stock of less than 20% of the incoming cases. Only one Tribunal (Bihor) had a stock that amounted to more than 50% of the incoming cases.

Figure

0

5

10

15

20

25

Number of Tribunals

Less than 10% 10-20% 20-30% 30-40% 40-50% More than 50%Stock as pecentage of incoming cases

Number of Tribunals with different amounts of unresolved cases

Figure

Backlogs: Different types of Tribunal cases

0%

20%

40%

60%

80%

100%

120%

140%

160%

180%

200%

Commerc

ial ca

ses,

first in

stanc

e

Family

law ca

ses,

first in

stanc

e

Labo

ur law

case

s, firs

t insta

nce

Admini

strati

ve ca

ses,

first in

stanc

e

Other c

ivil c

ases

, first

insta

nce

Crimina

l cas

es, fi

rst in

stanc

e

Commerc

ial ca

ses,

appe

als

Family

law ca

ses,

appe

als

Other c

ivil c

ases

, app

eals

Crimina

l cas

es, a

ppea

ls

Civil c

ases

, fina

l app

eals

Crimina

l cas

es, fi

nal a

ppea

ls

Stoc

k (3

1/12

-03)

as

perc

enta

ge o

f inc

omin

g ca

ses

55

When we look at the different types of cases, backlogs are not markedly different. The one exception to this is the appeals of commercials cases, where the stock of unresolved cases is almost twice the amount of incoming cases. The total number of these cases (in 2003) is, however only 184.

To see how these backlogs relate to our three models, we compare the stock in each Tribunal with 1) the number of inhabitants per judge; 2) the workload per judge; and 3) the DEA-score.

As can be seen from the figure below, there is absolutely no correlation between backlogs and the number of inhabitants per Tribunal judge. The same can be said with regard to backlogs and the number of cases per judge. A high workload does not lead to severe backlogs.

When we compare backlogs and the DEA-score we can actually identify an extremely weak correlation (explaining little more than 5% of the variance). The correlation is, however, the opposite of what should be expected, since a high DEA-score (which should indicate that the court needs more judges) correlates weakly with a low stock of unresolved cases.

Figure

Backlogs compared to the number of inhabitants per Tribunal judge

0,00%

10,00%

20,00%

30,00%

40,00%

50,00%

60,00%

0 5.000 10.000 15.000 20.000 25.000 30.000

Numer of inhabitants per Tribunal judge

Stoc

k (3

1/12

-200

3) a

s pe

rcen

tage

of i

ncom

ing

case

s

56

Figure

Backlogs and workload in Tribunals

0,00%

10,00%

20,00%

30,00%

40,00%

50,00%

60,00%

0 100 200 300 400 500 600

Number of incoming cases per judge

Stoc

k (3

1/12

-03)

as

perc

enta

ge o

f inc

omin

g ca

ses

Figure

Backlogs and DEA-score for Tribunals

0,00%

10,00%

20,00%

30,00%

40,00%

50,00%

60,00%

0 50 100 150 200 250

DEA-score

Stoc

k (3

1/12

-200

4) a

s pe

rcen

tage

of i

ncom

ing

case

s

57

While we cannot identify a correlation between case backlogs and workload, we can certainly see that average Tribunal case backlogs are quite different in the various Court of Appeal jurisdictions. This could indicate that the most important factor in explaining variations in case backlogs could in fact be related to differences in the working cultures of the different regions.

Figure

0%5%

10%15%20%25%30%35%40%45%

Stoc

k (3

1/12

-04)

as

perc

enta

ge o

f inc

omin

g ca

ses

CR

AIO

VA

PLO

IES

TI

CLU

J

GA

LATI

BA

CA

U

PIT

ES

TI

SU

CE

AV

A

TIM

ISO

AR

A

BU

CU

RE

STI

BR

AS

OV

ALB

A IU

LIA

TIR

GU

IAS

I

CO

NS

TAN

TA

OR

AD

EA

Case backlogs in Tribunals in different Court of Appeal jurisdictions

58

6.6 Allocation of clerks

There are 1.406 clerks in the Tribunals. Compared to the 1.361 judges this gives an average ratio of clerks to judges of 1,03.

Figure

Number of judges and number of clerks in the Tribunals

0

20

40

60

80

100

120

140

160

180

200

0 20 40 60 80 100 120 140 160

Number of judges

Num

ber o

f cle

rks

Figure

0

0,2

0,4

0,6

0,8

1

1,2

Num

ber o

f cle

rks

per j

udge

IAS

I

PIT

ES

TI

GA

LATI

TIM

ISO

AR

A

PLO

IES

TI

CR

AIO

VA

SU

CE

AV

A

OR

AD

EA

BR

AS

OV

BA

CA

U

ALB

A IU

LIA

CLU

J

TIR

GU

MU

RE

S

CO

NS

TAN

TA

BU

CU

RE

STI

Clerk/judge-ratios in Tribunals in different Court of Appeal jurisdictions

59

As it can be seen from the figure above, the ratio is not the same in all Tribunals. The Tribunals in the Iasi and Pitesti areas tend to have a slightly lower ratio, while those in Bucharest and Constanta are slightly higher.

60

6.7 Summary: Allocation of positions in the TribunalsWe have based our evaluation of the existing allocation of positions in the Tribunals upon three models. The first model takes into account the number of inhabitants in each jurisdiction. The second model focuses on the number of incoming cases, and the third model (DEA) is sensitive to the different types of cases. Overall the three models reach conflicting results; therefore we are not able to answer our question about how Tribunal judges should be allocated by the use of the data currently available. Therefore, we have concluded that we need more detailed and relevant statistical data, which will form a more convincing and satisfactory basis for decisions about the allocation.

We cannot identify a correlation between case backlogs and workloads, but we can certainly see that average Tribunal backlogs are quite different in the various Court of Appeal jurisdictions. This could indicate that the most important factor in explaining variations in case backlogs could be related to differences in the working cultures of the different regions

Even though the available data is not currently adequate or detailed enough to determine the exact localities that have enough cases to justify the establishment of specialized Tribunals. However, the data does give some indications; for instance, for 21 counties, we are with some confidence able to say that there are a certain number of commercial cases and that a commercial tribunal will be able to employ at least 8-10 judges:

We recommend that in the short term commercial tribunals be established only in these counties. Further establishment of commercial tribunals should await more detailed data to support such initiatives.

With regard to Labour Tribunals, the present data can only support their establishment in four counties: Brasov, Dolj, Gorj and Bucuresti. No county has enough family or administrative cases to validate the establishment of specialized tribunals in these areas.

61

Allocation of positions in the Courts of Appeal

Romania has 15 Courts of Appeal. In 2004 there were a total of 708 positions (judges) in these courts. This is an increase from 535 judges in 2002 (almost a 25% increase).

20 of these positions are vacant. The Court of Appeal in Craiova had 2 vacant positions out of a total of 74 when we visited the court in December 2004. The Court of Appeal in Pitesti had 2 vacant positions out of 43.

This analysis is based solely on the official number of positions, as we have not been able to obtain updated general information about the present number of vacant positions in each Court of Appeals.

The Courts of Appeals vary in size. The largest is in Bucharest with 154 judges. The smallest is the Court of Appeals in Tirgu Mures, with 24 judges.

Below, the present allocation of judges in the Courts of Appeals will be analysed based upon the number of inhabitants in each jurisdiction (model 1), the number of incoming cases (model 2), and the number and types of incoming cases (model 3). We will also analyse the possible correlation between backlogs and these models.

62

6.8 Model 1: The Population ModelThe figure below compares the number of inhabitants (in 2001) in each Court of Appeal jurisdiction (x-axis) with the number of Court of Appeal judges (in 2004) (y-axis).

Figure

Number of Court of Appeal judges and number of inhabitants in the jurisdiction

0

20

40

60

80

100

120

140

160

180

0 500000 1000000 1500000 2000000 2500000 3000000 3500000 4000000

Number of inhabitants

Num

ber o

f jud

ges

The simple linear regression model, which treats the number of Court of Appeal judges as a linear function of the number of inhabitants, has a coefficient of determination (r2) of 0,91. Around 91% of the variance in the number of Court of Appeal judges can thus be “explained” by this linear relationship.

63

The figure below shows the number of inhabitants per Court of Appeal judge in the various jurisdictions.

Figure

Number of inhabitants per Court of Appeal judge

0 10000 20000 30000 40000 50000

C.A. BUCURESTIC.A. BRASOVC.A. PITESTI

C.A. CRAIOVAC.A. SUCEAVA

C.A. TIMISOARAC.A. CONSTANTA

C.A. PLOIESTIC.A. ORADEA

C.A. IASIC.A. TIRGU MURES

C.A. BACAUC.A. ALBA IULIA

C.A. CLUJC.A. GALATI

The average jurisdictions have 31.650 inhabitants per Court of Appeal judge, but some jurisdictions have 25.000 and others more than 40.000 inhabitants per Court of Appeal judge.

If all Courts of Appeal should have approximately the same number of inhabitants per judge, it would be necessary to move 68 judges (almost 10% of all judges) to another jurisdiction.

Figure Model 1: Changes in the number of Court of Appeal judges

-50 -40 -30 -20 -10 0 10 20

C.A. ALBA IULIA

C.A. PITESTI

C.A. BACAU

C.A. ORADEA

C.A. SUCEAVA

C.A. BRASOV

C.A. BUCURESTI

C.A. CLUJ

C.A. CONSTANTA

C.A. CRAIOVA

C.A. GALATI

C.A. IASI

C.A. TIRGU MURES

C.A. PLOIESTI

C.A. TIMISOARA

64

6.9 Model 2: Total number of casesThe population model alone is an inadequate model for allocating judges among courts. We need to at least take the number of cases into account, which is the focus of model 2. The number of cases and number of judges should correlate so that the workload of a judge does not differ substantially from one court to another.

6.9.1 Comparing number of cases and number of judgesThe following analysis is based on the number of incoming cases in 2003. When we compare the number of incoming cases in each Court of Appeal with the number of judges, we get the graph pictured in the figure below.

Figure

Number of cases and judges in the Courts of Appeal

0

20

40

60

80

100

120

140

160

180

0 5000 10000 15000 20000 25000 30000

Number of incoming cases

Num

ber o

f jud

ges

The simple linear regression model, which treats the number of Court of Appeal judges as a linear function of the number of incoming cases, has a coefficient of determination (r2) of 0,948. Around 95% of the variance in the number of Court of Appeal judges can be “explained” by this linear relationship.

If the Court of Appeal judges were to be allocated solely on the basis of the total number of incoming cases in 2003, this would imply that 40 judges should be moved to another court. The results from model 2 are shown below.

65

Figure

Model 2: Changes in the number of Court of Appeal judges

-10 -5 0 5 10 15 20 25

C.A. ALBA IULIA

C.A. PITESTI

C.A. BACAU

C.A. ORADEA

C.A. SUCEAVA

C.A. BRASOV

C.A. BUCURESTI

C.A. CLUJ

C.A. CONSTANTA

C.A. CRAIOVA

C.A. GALATI

C.A. IASI

C.A. TIRGU MURES

C.A. PLOIESTI

C.A. TIMISOARA

66

6.10 Model 3: DEAThe DEA model is, like model 2, based on the number of cases. The difference between model 2 and 3 is that the latter does not only consider the total number of cases, but also takes the different types of cases into consideration. Even if a court has a relatively low total number of cases, compared to its number of judges, the composition of these cases may be complicated enough to require more judges. The DEA-score of a court reflects the possibility that the court may have more “complex” cases.

For the Courts of Appeal we have received data for the following types of cases: Civil cases, first instance Criminal cases, first instance Civil cases, appeals Criminal cases, appeals Civil cases, final appeals Criminal cases, final appeals

The figure below indicates the total number of incoming cases of each type in the Courts of Appeal in 2003.

Figure

0

10.000

20.000

30.000

40.000

50.000

60.000

70.000

80.000

Inco

min

g ca

ses

2003

Civil cases, firstinstance

Criminal cases, firstinstance

Civil cases, appeals Criminal cases,appeals

Civil cases, finalappeals

Criminal cases, finalappeals

Number of different types of cases in the Courts of Appeal

67

The DEA-model is most effective when it is possible to apply weight restrictions, 4.8meaning that from the onset we know that some types of cases are more complex (has more weight in the model) than others. By the degree of complexity of a case, we mean the amount of work the case demands from the judge.

In order to find out whether some of the aforementioned types of cases could easily be categorized as more or less complex, we asked judges in the courts we visited to rank the average complexity of the various types of cases. We received these rankings of the Court of Appeal case types from several judges. However, as there is no agreement among these judges about the relative complexity of the different types of cases, we have decided not to include weight restrictions in the model.

Figure

DEA-score for Courts of Appeal

0 50 100 150 200

C.A. BACAUC.A. SUCEAVA

C.A. PITESTI

C.A. BRASOVC.A. PLOIESTI

C.A. IASI

C.A. TIRGU MURESC.A. TIMISOARA

C.A. ORADEA

C.A. BUCURESTIC.A. CRAIOVA

C.A. ALBA IULIA

C.A. CONSTANTAC.A. CLUJ

C.A. GALATI

The figure above shows the DEA-score for each Courts of Appeal. A DEA-score of less than 100 indicates that the court is less efficient than other courts (eg. has too many judges). More precisely, the measure quantifies the input reduction (in number of judges) necessary to become relatively efficient, while holding the outputs constant.

A DEA-score of more than 100 (super-efficiency) indicates that the input factor (number of judges) could be increased without making the court less efficient.

If the DEA-model were applied as the sole criteria for allocating judges among Courts of Appeal, this would suggest that 39 judges should be moved to another Court of Appeal. The figure below summarises these results and compares the three allocation models.

68

Figure

Comparing results of the different models for the Courts of Appeal

-50 -40 -30 -20 -10 0 10 20 30

C.A. ALBA IULIAC.A. PITESTIC.A. BACAUC.A. ORADEAC.A. SUCEAVAC.A. BRASOVC.A. BUCURESTIC.A. CLUJC.A. CONSTANTAC.A. CRAIOVAC.A. GALATIC.A. IASIC.A. TIRGU MURESC.A. PLOIESTIC.A. TIMISOARA

Change in number of judges

Model 3Model 2Model 1

It is evident that the three models reach conflicting results. Therefore, we are not able to recommend how Court of Appeal judges should be allocated based on the data currently available. We will therefore require more detailed and relevant statistical data, which will then form a more convincing and satisfactory basis for decisions about the allocation.

69

6.11 Case backlogsBy the end of 2003, the Tribunals had a total stock of 16.563 unresolved cases. The average amount of unresolved cases corresponds to 13.2% of the incoming cases in 2003, while the largest percentage of pending cases can be found in Bucharest and Iasi, and the lowest in Craiova.

Figure

0%

5%

10%

15%

20%

25%

Stoc

k (3

1/12

-03)

as

perc

enta

ge o

f in

com

ing

case

s

C.A

. CR

AIO

VA

C.A

. PLO

IEST

I

C.A

. PIT

EST

I

C.A

. SU

CE

AV

A

C.A

. TIM

ISO

AR

A

C.A

. BR

AS

OV

C.A

. CLU

J

C.A

. ALB

A IU

LIA

C.A

. OR

AD

EA

C.A

. TIR

GU

MU

RE

S

C.A

. GA

LATI

C.A

. BAC

AU

C.A

. CO

NST

AN

TA

C.A

. BU

CU

RE

STI

C.A

. IAS

I

Percentage of pending cases in the Courts of Appeal

Figure

0,00%

10,00%

20,00%

30,00%

40,00%

50,00%

60,00%

Stock (31/12-03) as percentage of incoming

cases

Civil cases, firstinstance

Criminal cases,first instance

Civil cases,appeals

Criminal cases,appeals

Civil cases, finalappeals

Criminal cases,final appeals

Percentage of pending cases in the Courts of Appeal

70

To see how these backlogs relate to our three models, we compare the stock in each Court of Appeal with 1) the number of inhabitants per judge; 2) the workload per judge; and 3) the DEA-score.

As can be seen from the figures below, there is no correlation between backlogs and the number of inhabitants per Court of Appeal judge. The same can be said with regard to backlogs and the DEA-score.

When we compare backlogs and the number of incoming cases, we can actually identify a week correlation (explaining little more than 18% of the variance). The correlation is, however, the opposite of what should be expected as a high workload (which should indicate that the court needs more judges) correlates weakly with a low stock of pending cases.

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Case backlogs and number of inhabitanst per Court of Appeal judge

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Figure

Backlogs and workload in Tribunals

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Case backlogs and DEA-score in Courts of Appeal

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6.12 Summary: Allocation of positions among the Courts of AppealWe have based our evaluation of the existing allocation of positions in the Courts of Appeal on three models. The first model takes into account the number of inhabitants in each jurisdiction. The second model focuses on the number of incoming cases, and the third model (DEA) is sensitive to the different types of cases. Overall the three models reach conflicting results; we are therefore unable to recommend how Court of Appeal judges should be allocated based on the data currently available. We will therefore need more detailed and relevant statistical data to form a more convincing and satisfactory basis for decisions about the allocation.

We cannot identify a correlation between case backlogs and workloads; however we can certainly see that the Court of Appeal case backlogs are significantly different in the various Court of Appeal jurisdictions. This could indicate that the most important factor in explaining variations in case backlogs could be related to differences in the working cultures in the different regions

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7 The High Court of Cassation and Justice

There are 121 positions/judges in the High Court of Cassation and Justice, of which 16 are currently vacant. The number of incoming cases has fluctuated a great deal in the last years, from 25.784 in 2001 to 17.717 in 2002, and to 30.732 in 2003. The stock of pending cases amounted to a little less than 50% of the number of incoming cases by the end of 2003.

Given such fluctuations in the annual caseload, it is difficult to estimate whether the present number of judges is adequate for handling the workload. The officials we met from the Superior Council of the Magistracy appeared to be confident that the High Court of Cassation and Justice will be capable of avoiding severe backlogs.

The 121 positions in the HJJC amount to 2.7% of the total number of judges in Romania. This is a relatively low percentage compared to other European countries. In Italy, for example the High Court of Cassation has more than 400 judges, and this amounts to almost 7% of the total number of judges. However, in Finland the Supreme Court has only 22 judges, which is 3% of the total number of judges.

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8 Military courts

Military Courts are slated to l be part of the judicial reform process, and we have been informed that a Draft Law is currently being debated in the Senate., This law should clarify the role military courts will play and the number of military courts to establish.

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9 Conclusion

Because of the major increase in the number of judges over the last 10-15 years, Romania now has a comparatively high number of judges compared to other countries with similar judicial systems and population.

In the future priority should be given to improving the working conditions of the judges (training, buildings, IT etc), rather than further increasing the number of judges. Today lack of resources for these purposes seems in many instances to severely limit the benefit the court system receives from “additional” judges.

The assumption for this analysis has been that the allocation of judges and court personnel is not proportionate to the caseload of a particular court, and that there is no flexible mechanism for re-distributing a caseload from overburdened courts to less busy courts etc. To achieve better overall performance and higher effectiveness and efficiency on the part of the Romanian judiciary, the court system needs to be analysed and policy options for reorganization measure to be outlined.

The present allocation of judges and clerks has been analysed based upon: Distribution of population Number of cases A DEA-model

Taken together these criteria cannot provide a definite answer to our question: How should the ideal allocation be? Based on the data currently available we are unable to recommend how judges should be allocated. We therefore conclude that more detailed and relevant statistical data is needed to form a more convincing and satisfactory basis for decisions about the allocation.

As the current statistical system is unable to provide the necessary information for establishing a detailed and accurate picture of the workload of the courts, which makes providing the basis for a satisfactory allocation impossible, we recommend the establishment of a system with weighted caseloads (which gives a more accurate estimation of the workload by taking case complexity into account). In addition, new statistical data will have to be obtained for more comprehensive recommendations.

Such systems exist today in several European countries. For example, in the Netherlands the Lamicie-workload model for allocating human resources (and budgets) has been used for several years. In this model 48 categories of cases are identified, and for each category a fixed amount of time, needed for judges to handle the cases, is defined. The Lamicie-model has been filled out by a committee of judges, who determines the average degree of complexity for each type of case.

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Table 1: The Lamicie-model for civil cases in the Netherlands (District courts)

At the beginning of each year the Judicial Council in Holland makes an estimation of the number of incoming cases (using the Lamicie case categorisation), and by using the Lamicie model, it can in this way also estimate how many full-time equivalent judges each court needs. This information is then used by the Judicial Council to negotiate with both courts and the Ministry of Justice about resource allocation.

Similar practices exist in Sweden, Finland and Denmark. While the Lamacie-model is based solely upon incoming cases, the corresponding Danish model is based upon statistics for completed cases. This has the added advantage in that complexity can be estimated not only from a categorisation of the case as it enters the court, but also on how it is completed. A case that is settled by the parties before or during court meetings will consequently not be assigned the same amount of complexity/time as a case where the judge decides the case. This system may provide a more accurate estimation of the workload in the court, but it is also a model that looks to the past in order to project future workloads.We recommend that the Superior Council for the Magistracy take the initiative to establish a model like the Lamicie-model that provides detailed information about the expected amount of work in each court. We believe that a working group consisting of experienced judges should undertake the work. They should be given the task to identify a number of suitable categories of cases, and then estimate the average amount of time needed to handle each type of case.

In fact, Romanian courts currently have a system (or rather several) that assigns a degree of complexity to each case. This is done by the random case assignment system in the courts. Currently, each court of appeal district has its own set of types of cases and weights within this system, and these weights have been determined by groups of experts/judges. It is likely that an effort to establish a unified system, which operates with the same types of cases and the same weights in the entire country, could result in a model similar to the Lamicie.

When the model is established, the SCM will have more accurate information about the amount of work in each court, and thus be in a better position to make wise decisions with regard to allocation of human resources.

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Remarks and Recommendations

Even though the quality of data can certainly be improved, we recommend the following with regard to the structure of district courts:

Abolishing 28 small courts, and dividing their jurisdictions among other courts. Merging 12 small courts with other small courts in order to form 6 new courts of an

acceptable size. Merging 14 small courts with larger courts Making 26 smaller courts subject to further review

Furthermore, for 21 counties there are so many commercial cases, that we are with some certainty able to say that a commercial tribunal will be able to employ at least 8-10 judges:

We recommend that in the short term, commercial tribunals are established only in these counties. Further establishment of commercial tribunals should await more detailed data to support such initiatives.

With regard to Labour Tribunals, the present data can only support their establishment in four counties: Brasov, Dolj, Gorj and Bucuresti. No county has enough family or administrative cases to validate the establishment of specialized tribunals in these areas.

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PART TWO:Related subjects

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1 Introduction to Part Two

The main focus of this study is the allocation of human resources. However, a reform project that aims to rationalise the Romanian court system needs to certainly take other factors into consideration if it is going to be successful.

Following specific comments included in various studies and reports undertaken by the EU and other international donors, the Ministry of Justice initiated a survey to determine the factors and the circumstances that create problems and damage the quality of justice in Romania in the second half of 2003. More than 3000 judges participated in this research. At the time of the study in January of 2003, there were 3422 active judges in Romania. We appreciate that this study represents a valuable resource for judicial reform, which can be used as a one-reference source for this study. In the view of the more than 3000 judges who answered the questionnaire, the Romanian judiciary is: transparent in percentage of 77%, impartial 75%, correct 76%, capable to enforce its decisions in percentage of 69%, efficient 70% and accessible 81%. (We can assume that the error margin is 3%, which is generally accepted).

The average success rate of the Romanian judiciary system in the eyes of the judges is 75%. This percentage is significantly greater than the percentage of citizen’s satisfaction with the judiciary, with 38% of citizens satisfied, and 28% of corporations satisfied, as World Bank studies show. The level of trust in the Romanian judiciary expressed by the citizens has varied around 50% since 1996. A Gallup survey released on December 10 rates the justice sector with a 4.1 in a corruption scale from 1 to 5. Only the political parties and customs received a lower score, at 4.2.

The study identifies 8 elements (factors) to be considered by the justice community as constitutive parts of the general functionality of the Romanian judiciary system. : Transparency, integrity, impartiality, correctness, execution capability, efficiency, competence and accessibility.

In light of the objectives of this study, the experts identified and focused on the following areas: independence, efficiency, quality, legal certainty, infrastructure and resources, court management and organization, credibility and public image. The analysis of each factor includes theoretical observations, practical remarks about the current situation, and suggestions for future steps.

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10 Independence

10.1 IntroductionA truly independent judiciary protects individual rights and limits governmental power. Independence in decision-making allows judges to perform their judicial functions subject to no authority but the law, and therefore prevents them from being compromised by political attempts to undermine their impartiality.

Under the Romanian Constitution’s separation of the powers, the judiciary is an independent branch. Despite the adoption of a comprehensive package of laws to reform the legal and judicial system, there is wide spread recognition by civil society in Romania that additional measures are necessary to support a complete modernization plan.

10.2 SafeguardsThe study undertaken by the MOJ before the implementation of the three laws package revealed that 52% of the judges that participated in the MOJ research related to the independence of the judiciary confirmed the existence of political pressure generally, and more frequently, pressure in about 19% of cases. The specific way in which this type of pressure is exerted is mainly through the media, political channels, and less commonly through the administrative management of the courts.

81% of judges qualify the in-place legal guarantees meant to ensure their independence as insufficient or non-existent. 91% rate the guarantees against physical integrity as lacking.

The institutional mechanism now in place can ensure the independence of the magistrate’s body in the face of political influence. It is a reality that despite the acknowledged negative consequences which the interference of politics in the justice system may produce at the level of public perception and credibility, in Romania this temptation will still exist for a while because it appears to be part of the working culture. There is a certain sense of vulnerability or opportunism based on the past experiences of individual Romanian citizens or others they have known. The previous actions of the Romanian judiciary speak for itself. Promoting the independence of the magistrates will depend a great deal on the determination, substance, and vision of the newly elected members of the Superior Council of Magistracy. The new members must have the determination, the substance and the vision to promote a new sense of professionalism among the magistrates.

Our curiosity is fuelled even more by the following fact: in the last decade, there has been a display of dissatisfaction about the malfunctioning of the judiciary. This discontent has been reported in all international reports analysing the justice system since then. However, the first ever elections for the Superior Council of Magistrates have shown that many of the magistrates who were part of the decision making process in the past within the judiciary got elected, enjoying massive support from within the judiciary.

This aspect is important because the new SCM, besides working for ensuring the independence of the magistrates, must develop a different working culture within the body of magistrates in Romania That culture should promote a sense of responsibility for the quality and moral standards

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of the profession that would provide confidence to the magistrates by providing them with access to respectable social status.

10.3 Implications for court managementGiven the enormous importance of an independent judiciary, courts cannot be managed in the same way as other public institutions. The principles of ‘new public management’, or performance based management, must be applied with particular care when it comes to courts. While the theory of ‘new public management’ preaches that officials should be rewarded for results, this can be highly inappropriate in a judicial setting, because the independent judge herself is really the only one who is qualified to estimate which results that are worth rewarding.

The creation of the SCM will indeed contribute to strengthening the independence of the Romanian judiciary, however even the SCM should be careful not to influence judges in an improper way. Given that the setting of budgets and salaries are potential settings where people are tempted to “reward” or “punish” a court or a judge, this must be done carefully.

In general, we believe that performance related data should not be used to reward or sanction courts or judges financially. The motivation for each judge to do a good job should not come from pecuniary incentives, but should be embodied in the professional culture, which is nurtured and maintained by the socialisation judges receive during their education and career, and of course by the process of selecting candidates for new positions.

Performance related data does, however, have an important role to play. The performance of each court with regard to the time it takes to handle cases, the number of appeals and annulments, and the results of user surveys should be made public (ideally on the internet). In that way the courts will be provided with adequate “soft” incentives to perform well, since most judges will take so much pride in their work that they will strive to look good compared to their peers.

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11 Budgetary issues and economic management

MOJ has retained the budgetary function under the new laws, but the Superior Council of magistrates still has a voice. This model has been criticized, but budgeting represents a fundamental expression of the Government because justice cannot disregard or ignore the realities faced by the rest of the society.

We believe that it is worth mentioning that within the MOJ budget 3.5 million Euros were allocated to the Superior Council of Magistrates, which is exactly the amount requested.

The fact that the High Court has the authority to draft its own separate budget still illustrates progress in strengthening the independence of the judiciary. However, it is the conviction of the judicial specialist that the parliament should admit that there is a major imbalance now between the High Court, the SCM and the rest of the lower courts in expressing their budgetary needs. In conclusion, the allocation by law (the Law on Judiciary) of a secured percentage from the national budget would complete the reform in this area and would strengthen even more the independence of the judiciary in regard to its relationship with the legislative and executive branch. The education budget is required by law to be at least 4% of the GDP; this is an example that could be followed for the judicial budget.

The court administration specialist is sceptical about this proposal, however. First of all, the percentage of the national budget, which Romania presently allocates to the judiciary is (according to a recent CEPEJ-study) already relatively high, especially when compared to some of the countries in Northern and Western Europe (the main reason is of course that the national budget in Romania is comparatively smaller). When the Romanian welfare state develops, and the overall national budget grows, the share for the judiciary will naturally fall. In addition, the empirical evidence on the effects of such budgetary rules is not altogether encouraging. Finally, as long as the legislative and executive powers are only able to influence the total judicial budget, and not how that budget is allocated among courts, then the court administration specialist does not find the independence of the judiciary to be threatened (if the government is dissatisfied with a particular court or judge, and if it wants to “punish” that court or judge by budgetary sanctions, it essentially has to punish all courts).

The fact that 25% of the judiciary tax, which is required under the law and paid by the subjects involved in trials, goes into the MOJ budget represents an important step forward. However, it is obvious that if justice is a national priority this percentage must be significantly increased.

The Budget for the infrastructure of the judiciary should be more detailed in order to allow for a more precise monitoring of the actual cost involved for effective functioning.

Courts should have their own authority over a certain percentage of the taxes collected on behalf of the judiciary in order to cover expenses such as: fees for judges’ access to judicial databases, consumables, minor repairs, public outreach activities and for organizing public access to courtrooms or court buildings.19

19 This should be restricted to charges, which are not in any way influenced by the handling or the result of the case. There should never be reason to suspect that a court would act or rule in a certain way in order to generate more revenue.

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In order to get more out the existing Human and financial resources we recommend a further decentralisation of the economic management within the court system. The same conclusion has been reached by several other studies. Both the OPDAT report and ABA/CELLI report criticises the lack of influence the courts have on how their funds are spent. They state that individual courts seem to lack any real purchasing authority. The courts receive funds form the MOJ for specific line items such as salary, supplies and facilities, but they have no authority to reallocate between line items, and thus no incentive to save money by not filling an unnecessary position, for example.

These reports also recommend giving courts greater flexibility to manage their own budgets with proper safeguards and incentives to use resources efficiently. The reports also recommend the creation of a position of professional court administrator, who will have the expertise to manage the budget.

While a position as economic manger will now be established, it is not our impression that the courts are economically micromanaged any less than they were before. We strongly recommend that courts should be given control over there own spending, even though we realise that such recommendations will sound foreign to many Romanians, since the entire public sector – not just the courts – are managed in the same way.

In order to make the court system more effective, courts should be given a sizeable fixed budget before the beginning of each year. The allocation of budgets as well as the allocation of positions should be based on objective criteria. Courts should be allowed make economic dispositions without prior approval from the ScM or the MoJ, as long as they stay within the budget. They should be allowed to reallocate between line items (chapters), and courts should be allowed to transfer money from one year to the next.

12 Infrastructure and resourcesThe major increase in the amount of litigation and in the number of judges has not been accompanied by similar increases in the investment in buildings and courtrooms. It is evident that Romania needs to make such investments if it is ever to get the most out of its investment in human resources. In the final part of this report we will recommend the initiation of a project to serve this purpose.

13 Information Technology

Increasingly, the quality of judicial efficiency is fundamentally related to the IT infrastructure and by the use of modern technologies by magistrates and clerks. MOJ will acquire IT equipment worth 12 million dollars for courts and 10 million dollars for prosecutor’s offices. At the end of the first semester of 2005, the IT endowment will be completed in its general terms. All of the courts and prosecutors offices will have access to IT systems. The MOJ objective in this area is to have a capable IT integrated system by September 2005. This will include LAN communication infrastructure in 96 courts, 49 prosecutors’ offices, and 20 penitentiaries.

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The study mentioned above revealed that in regard to automation, 78 % of the interviewed judges consider the IT endowment necessary, but only 44% (1494) confirmed that they have computers, and less than half of them, 41% use these computers effectively. 54% do not have access to computers. 36% of judges cite technical reasons, 5% because they do not see the benefit of it and 41%. Because of a lack of training for the reason they do not utilize computers.–The conclusion is that under a fifth (18%) of the total number of judges use computer as part of their daily routine for anything but word-processing.

Countrywide, IT systems cover 61% of the territory of Romania. When specifics are analysed within this general indicator, the percentages are: 80% for the legislative databases and 50% for jurisprudence. The archive is covered in only 38% of cases, and the same figure goes for judgment hearings planning.

85% of the judges that do not have access to databases consider that such access would be useful, and 69% of those judges who have access take advantage of the access frequently or sometimes.

By the end of 2006, cases should also be allocated to judges on a random basis by means of an IT system. 76% of judges see random case assignments as beneficial while 23% believe that it is insufficient.

MJREP, ICRIS systems are used and they were well received by the Court Presidents. This should be continued, however outsourcing should also be taken into account for accomplishing this objective.

14 Court management and organization

14.1 Introduction

Another area of court reform necessary is in court management. Organizational changes should allow centralization of administrative duties to enable judges and staff to concentrate on their judicial duties. The process of reception and handling files and documents, providing information to users about the file’s status and court decision notifications should be backed up by a computerized case tracking system.

Organizational reengineering must be implemented with special care and with the respect of the traditional operating model. Coordination among the judges and administrative staff needs to rely on a work allocation system and case complexity criteria.

14.2 Court organization

Courts need to adopt modern administration techniques to increase their productivity, improve the quality of their service and restore confidence in the judiciary.

Traditionally, Romanian judges spend a high percentage of their time on administrative tasks and there is as of yet no clear division between administrative and judicial work. In addition, judges are accustomed to working alone with their own staff. The latest legislative initiatives did not solve the

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problem of SCM regulation. The President of the Court still withholds many administrative and human resources despite the presence of the court manager.

The President of the Courts is still burdened with certain activities that could be adequately handled by non-judicial employees. According to SCM decision 159/2004, the President is responsible for 276 activities in addition to the fact that he works as a judge, though with a reduced docket.In our opinion, the following activities should be considered for non-judicial employees.

- Hiring the auxiliary, technical and the administrative staff- Allocating the personnel within the auxiliary departments of the court- Ensuring the proper observation of the working schedule for all court staff

In addition, we are of the opinion that time is still needed in order to have the necessary data for evaluating the impact of a new position over the general activity of the court correctly. The MOJ and SCM should draft regular reports and make suggestions to the President of the Courts regarding what the court manager’s activities should entail. 

14.3 Court flow - access to court files, archives, courtroom and court building The general atmosphere of the majority of Romanian courts is crowded, chaotic, insecure, lacking in s orientation information and is bereft of adequate space and access for the public. These problems create direct or indirect pressure on the magistrates and judiciary staff, and are very detrimental to the general image and respect of the society towards justice. In addition, these conditions depress the level of confidence of potential foreign investors who are contemplating engaging in lucrative business activities in Romania.

15 Quality

15.1 IntroductionContinued quality improvement should be another distinguishing characteristic of the reform effort. “Where we are and where we want to be” is a basic precondition to advance modernization projects. As public institutions often work under the assumption that the performance was satisfactory, setting goals and indicators provide a powerful management tool to focus and control day-to-day activities while allowing services to improve.

Improvement cannot be demonstrated without adequate measurement tools. Being a provider of legal and judiciary services, the Romanian courts of justice need to be focussed on matters such as customer satisfaction, service quality, technology and human resources, and a proactive approach to facilitating interaction with the environment.

15.2 Overturn rateThe proportion of cases overturned on appeal decreased from 2002 to 2003. There continues to be an overturn rate of 30% of the civil judgments that are appealed. This indicator is quite substantial. A quality justice system cannot afford this indicator to be this high.

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15.3 Career access and career development (training)The exam for magistrates needs to be organized for those who seek entry into the magistracy after serving in other judicial fields, although the exam these candidates take and the periods of studies will differ from that of traditional candidates. In terms of access, the exams organized by NIM appear to be excessively difficult. The main evaluation needs to focus on the performance during studies rather than on entry.

The newly appointed judges should receive a bonus with their appointment in order to counter the attraction of the best graduates to well paying jobs at law firms. Law firms and bar Associations should pay fees in order to fund these bonuses. In terms of specialization, the Superior Council of Magistrates should develop a strategy, which will guarantee that there are a sufficient number of specialized judges, and that they have the ability to practice in that area. NIM and the School of Clerks need to develop a clear curriculum and tests that will ensure the quality of the process.

Regulation of the Superior Council of Magistracy by the evaluation of its performance within the Judiciary system, which is a positive step forward, should ensure fairness and transparency

15.4 Employee satisfactionIn relation to the rest of Romanian society, judges consider their working conditions, salaries, and living standards satisfactory. Regarding working conditions, 38% of judges consider them as being excellent, very good or good, 30% as satisfactory and 35% as unsatisfactory. Regarding housing, the percentage of those who are not satisfied is 25%.

However, financial bonuses for those who engage in higher and more complex activity are an effective practice. 91% of judges declared that such bonuses are part of their common court practice. This illustrates that there are still many opportunities for rising employee satisfaction.

The Judges in the panels presiding over corruption cases receive bonuses. In light of the latest legislative developments, the reforms should include bonuses for judges involved in organized crime and terrorism cases as well.

16 Legal certainty

16.1 General introduction The experience of Ordinance 58/2003 was successful. However, it showed that there is a need for clarifying the role of the High Court from a legal theory point of view. HCCJ jurisdiction should be limited rather than increased. Its role should not be diluted by assigning it to deal with law issues that only bring a heavy workload, which is a detriment to its essential purpose of maintaining the uniformity of the law.

16.2 Quality of the legislation Romanian judges are profoundly dissatisfied with the quality of the legislation. On average, only 7.5% of them are satisfied with the legislation. 5.17% of them believe that the legislation is

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complete, 9.43% systemized, 10.99% coherent, 9,75% clear and only 2.20% of the judges view the legislation as being stable. These indicators show the direct and unequivocal responsibility that the legislating body must assume for the credibility, efficiency and quality of the judiciary. It appears that the Legislative Council, working with legislative authorities such as the Romanian Parliament and Government needs to fulfil its role in guaranteeing the success of the justice system.

16.3 Unity (Consistency) of the legal decisionsThe unity of the application of the law could be ensured by measures including:Requiring all Court of Appeals to publish their jurisprudence, establishing a Judiciary Intranet, which should connect at least the Tribunals, Court of Appeals, High Court and main District Courts, as well as making this activity the main responsibility of the High Court by decreasing its workload. The workload of the HC will be curbed as a result of the quality increase, competence and increasing efficiency that this would provide.

16.4 Workload (entries, backlog) at the High Court levelThe two-remedy system ensures proper review of cases, but due to the high litigation rate, it is impossible to expect full conformity as ensured by the final decisions of a single nation-wide court. Consequently, it should be accepted that the uniformity of the law may suffer minor differences between App. Courts, but the main mission of the HC is to make sure that these minor differences are flowing within a reasonable margin, and that the major differences are detected and properly resolved.

The High Court is defining the Judgment standards in a more cohesive manner, which beside other criteria (objective, grounded etc) should include clearly accountable and transparent elements. The recourse will be the exclusive domain of the Appellate courts, with an exception for cases with a major impact on society.

17 Credibility

17.1 IntroductionImprovements in court operations directly impact an institutions image and its credibility. As public confidence is essential to maintaining an independent judiciary that enforces the laws, public perception over judiciary image concerns both national and international political actors.

Judges have to be trained to make decisions with integrity as guardians of the public trust. The court managers proactive approach to dealing with public complaints and suggestions will have a positive influence over clarifying administrative procedures, accurate case practices, monitoring, discouraging ex parte communication practices, and a review of nepotism rules. While independence should be respected, credibility and judicial accountability can be maintained through enforcing codes of conduct.

17.2 Integrity, Discipline, Ethics, Anti - CorruptionIn order eliminate the vulnerability to corruption, it is important to have in place systems that ensure integrity. For example, 89% of judges mentioned that they came across situations when the

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principle of continuity among the judging panel was not observed, and 59% of them asserted that they have seen this occur sometimes or frequently. The problems related to a system of continuity may affect the positive steps taken by the random assignment of cases. We believe that when the situation calls for a change in the composition of the panel, this decision needs to be made with transparency with legal remedies available.We believe that many positive steps have been taken in this respect, and we take the view that once the systemic problems are overcome, the credibility of the judicial system will increase.

17.3 Enforcement capabilityThe existence of a specialized judicial body of executors has improved the rate of enforcement capability. However, direct control of a judge over the implementation procedure of court decisions is needed. In terms of taxes paid for this activity, there are new regulations in place. One alternative in the case of higher taxes, which can be unaffordable for certain individuals or even small companies, is an installment plan.

18 Public image

18.1 Introduction

“In the eyes of the judges, the causes of negative perception towards justice are : media coverage – 51%, the lack of objectivity from the part of the justice subjects 44%, wrong or unlawful decisions – 16%, delays in the enforcement of the legal decisions 15%, delays in delivering court decisions – 8%. “

18.2 SurveysCourts should track the satisfaction of its clients. A division should be maintained between judicial administration services and judicial legal decisions. The surveys help the PIO to communicate to the Administrative Office (AO) how they should better meet the clients needs and provide new ideas for change. It is possible through this system that the AO will find out that many clients do not understand the legal system, making it difficult for judges and staff to work with them. In response, the AO may create communication and education programs in which judges would give classes on law and procedure for the community on local TV. By reaching out to the community and demonstrating their skills and knowledge, judges will gain the respect of the community that they were previously lacking.

18.3 Public outreach and participation

The structural changes and process reform being undertaken need to show concrete benefits for the client. The courts must be able to demonstrate and communicate that they are able to process cases more quickly, ensure that clients receive better service and have access to more readily and reliable information.

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Participation is a key ingredient in the process of change. Groups that should have a voice in the process include the higher and lower courts, the legislative and the executive branches of government, nongovernmental organizations, citizens groups, law schools, bar associations, judicial associations, business groups and other stakeholders in the reform process. However, the judiciary is sometimes reluctant to encourage participation because of fear of criticism, or occasionally because of its own experience in dealing with these different stakeholders .It may not even be aware that stakeholders outside the judiciary exist. This is one of the most difficult stages of cultural change to overcome. Participation by the general public is important. The public may raise important issues that lawyers and judges would not otherwise have noticed. Important issues in which the public can contribute to are access to justice and faith in the integrity of the system. Wide participation also has the advantage of engendering a feeling of ownership and enthusiasm in those participating. Public input into the process is crucial, particularly for long-term reforms, which can be difficult, time-consuming and politically costly. The participation of judges is crucial to the process. Another way to foster participation is to make the reform program voluntary. Participation will also be wider if the higher courts encourage the lower courts to initiate their own experiments.

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PART THREE:Strategy and Action Plan

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1 What to do

The Romanian judicial system is already facing a great deal of change, and our recommendations, presented in the first two parts of this report, will add to the list of things that must be considered. No system can, however, cope with changing everything at once, so we propose as a result of our study that attention be primarily given to the following four interrelated reform projects:

1. Establishing an allocation model that, given the number and types of cases in each court, provides adequate information about the amount of work in each court.

2. Restructuring the court system by using this model, and:a. Increasing the number of positions in courts with a high workload, and decreasing

the number of positions in courts with a low workloadb. Abolishing the smallest District Courtsc. Establishing specialized Tribunals in counties which have a demand which will

justify the allocation of at least 8-10 judges for this purpose.

3. Investing in improving court infrastructure – the number and space of courtrooms, and working space available for judges and clerks. The first investments should be made in the localities with the highest number of judges per courtroom.

4. Loosening the hierarchical decision making structure in the entire court system, so as to empower courts to make economic dispositions without prior approval from the SCM or the MoJ (as long as the court stays within its overall budget), and to empower non-judicial staff to take over some administrative responsibilities, and therefore relive the court president of some of his/her workload.

19 How to do it

Reform management is difficult, and the fact is that most reform projects fail to accomplish their goals. A Professor at Harvard Business School, John P. Kotter, has identified the following mistakes as the most frequent sources of failure20:

1. Too much complacency is allowed. It is a serious mistake to plunge ahead without establishing a high enough sense of urgency in managers and employees. Just by calling a meeting or circulating a consultant’s report one cannot expect people to rally to the cause.

2. The guiding coalition which supports the reform effort is too week. Individuals alone never have all the assets needed to overcome tradition and inertia. Weak committees are usually even less effective. The coalition of people committed to reform needs to be strong in all respects – in terms of formal titles, information and expertise, relationships, and the capacity for leadership.

20 Kotter, John P. (1996). Leading Change. Harvard Business School Press.

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3. The project suffers from too little communication. People need to be constantly reminded why reform is necessary, and what needs to be done.

4. Victory is declared before the war is over. People see forward to the completion of any task, and may as a result settle for too little too soon. Successful reform projects generally require a very long and consistent haul.

In order to avoid such mistakes, we recommend that for each of the four reform projects mentioned above, a powerful guiding coalition –or project group - be assembled. The group must be assembled, so as to have the right skills, experience and chemistry. It should include members from all levels of the judicial system, and thus include a diversity of views and voices. The members must be considered influential and important people in the Romanian judicial system, and be well respected among peers, so that their opinions and recommendations are obliged to be given attention.

We recommend that each project group kick the project off with a day-long retreat. During this day the group should:

Identify every possible factor that contributes to complacency. What are the reasons people might invent to resistreform?

Brainstorm specific ways to counter each factor, and develop an action plan to implement these ideas.

Agree upon the exact end goals for the project, intermediate goals, and upon a time schedule.

Develop a strategy for continuous and abundant communication about the project. People should be told, again and again why this project is necessary, and what it will try to accomplish. The members of the group must function as ambassadors for the project, and may even be required to travel around the country to sell and defend the new ideas.

The members of the group should end the day by formally committing themselves to work as a team and do their best to reach the end goals.

Finally, success with these reform projects requires, of course, that top-management within the SCM be deeply involved and supportive throughout the entire process.

20 Project One: Establishing the new allocation model

In order to establish a model for allocating positions among courts, it is necessary to categorise types of cases, and estimate the average amount of work that a typical case in each category demands. The task of the project group will be to:

Identify the relevant categories of cases. When identifying categories the following should be observed:

o Cases in the same category should not differ too much in the required amount of work.

o The number of different categories should be high enough to provide a reasonably detailed picture of the courts workload.

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o The number of different categories should be low enough to keep the allocation model reasonably simple, and to minimize the need for collecting new data. When striking this balance between detail and simplicity, we recommend a simple model with no more than 15 to 20 different categories. The model may be extended at a later point in time, if this is considered necessary.

Estimate the average amount of work for each category of cases. Establish procedures for reporting and collecting the required data.

The project group should consist solely of judges. Members of the group should be selected so that:

They are all well respected among their peers They have profound experience with handling different types of cases All court levels are represented in the group Different regions are represented in the group

The group should be provided with technical-administrative assistance from the SCM.

When the project group has worked out a draft model, this should be circulated to all courts, so as to give everybody an opportunity to comment on the draft. The project group should take these comments into account when preparing the final model. The SCM members must eventually approve the model.

This project should have its final deadline in mid 2006, at the latest, so that the model is in place and running when the final decisions about the specialized tribunals have to be made (see project two).

When the model is implemented, the SCM should be able to determine more precisely the workload in each court, and therefore be able to begin the process of increasing the number of positions in courts with a high workload per judge, and decreasing the number of positions in courts with a relatively lower workload per judge.

21 Project Two: Restructuring the court system

The project group should start out by determining what the minimum size of the future Romanian court should be. We have recommended a minimum of 6 to 8 judges, but since this question is not primarily a scientific one, but rather a “political choice” between the efficiency which might be gained through larger court size, versus the loss of proximity to local communities which will result from the abolishment of the smallest courts, we find it important that the Romanian judiciary forms its own opinion on this matter.

The project group should gather information by visiting courts of different size and noticing the pros and cons of small court sizes. Special attention should be given to:

Possibilities for economies of scale Efficient use of management resources

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Possibilities for specialization Possibilities for valuable sharing of knowledge and discussions of legal matters with

colleagues The importance of proximity to local communities

The project group should make its recommendation about minimum court size to the SCM so that the Council can make a formal decision about this issue.

This decision will be the foundation for restructuring the court system. Those district courts which do not have enough cases to justify the minimum number of judges should be abolished, and new specialised tribunals should only be established when the county has enough specialized cases to occupy at least the minimum number of judges.

Decisions about abolishing district courts and establishing new tribunals should ideally be informed by the new allocation model, which will be able to give a more precise indication about the workload. If the SCM decides that the minimum number of judges in a court should be 6-8 however, as advocated in this report, it will be possible to begin the process of restructuring even before the allocation model has been implemented. In this case, the 42 district courts mentioned in section 3.3 (part one) are certainly too small, and the 21 counties mentioned in section 4.4 (part one) have enough cases to justify the establishment of a commercial tribunal.

The members of this second project group should have roughly the same qualities as those in the first group. Due to the amount of work required, we think that overlaps should be avoided. The group may benefit from outside expertise with regard to issues such as economies of scale and mergers.

22 Project Three: Investing in court infrastructure Romania does not currently get a proper return in its investment in human resources in the judicial system because there are not enough courtrooms, and because office spaces are often too crowded. We recommend a total overhaul of the court infrastructure. The third project group must therefore identify the requirements of a modern Romanian court in terms of the number of judges per court room, and the number of square meters per judge and clerk.

Based upon such standards, the need for investments in each court should be evaluated. The group must be prepared to travel around the country in order to inspect buildings and office facilities.

The courts should be categorised into four groups:

1. Those courts where immediate action is required. If the working conditions, even in the short term, are intolerable, a quick solution is needed, and temporary buildings must be rented. In addition, the project group will have to put together an action plan for the longer term.

2. Courts with unsatisfactory buildings and working conditions that can wait for a year or two before conditions are intolerable. The group must establish an investment plan for to solve the courts problems within that time

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3. Courts with satisfactory buildings and working conditions.

4. Courts that underutilize office space or courtrooms. In this case a plan must be made for how to reduce space in order to free up resources. Some options may be to sell off unnecessary building space, or to relocate the court to a smaller building.

This project should o be coordinated with project number one and two. Unnecessary investments should not be made if the court is going to be abolished, or if the creation of a commercial tribunal in a new location will free up enough space in the “normal” tribunal.

This project group could probably benefit from outside expertise with regard to buildings. Furthermore it might be a good idea to include a representative from the Ministry of Public Finance in the group.

23 Project Four: Loosening hierarchical decisions structures

Because of decreasing communication costs, most organisations – public or private - will in the future have to become more decentralised in order to stay efficient21. Local decision makers furthermore are significantly more enthusiastic, committed and creative when they have more autonomy in their work. Local decisions can usually be significantly improved by taking into account local information that is hard to communicate. Finally, future employees will increasingly value freedom and individualization, and cannot be expected to accept extremely centralized and hierarchical decision structures.

It is our impression that the Romanian court system – compared to other countries – has a rigid hierarchical decision structure, especially when it comes to economic decisions. We recommend a project to investigate the possibilities for loosening this hierarchical decision making structure in order to improve efficiency, in addition to relieving the court presidents from some of their administrative duties.

This project group should consider the following issues with regard to overall economic management:

Whether each court can be given a sizeable fixed budget before the beginning of each year. Whether the allocation of budgets and the allocation of positions can be based on objective

criteria. Whether courts can be allowed make economic dispositions without prior approval from the

ScM or the MoJ, as long as they stay within the budget. Whether courts can be allowed to reallocate between line items (chapters), and to transfer

money from one year to the next.

With regard to the question of when the court president should delegate administrative decisions to others, we recommend that the project group examine the different types of administrative problems

21 See Malone, Thomas W. (2004). The Future of Work. Harvard Business School Press.

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the court president takes on day to day, and decide in each case if one of the following degrees of delegation from the court president to another person – or a group – could be applied:

1. Look into the problem - give me all the facts; I will decide what to do.2. Look into the problem - Let me know what the alternative actions are, including pros and

cons of each, and recommend one for my approval. 3. Look into the problem - let me know what you intend to do; delay action until I give

approval. 4. Look into the problem - let me know what you intend to do; do it unless I say not to. 5. Take action - let me know what you did. 6. Take action - no further contact with me is needed.

The higher level it is possible to reach, the more the president will be relieved of his or her administrative burden.

We recommend that the project group establish pilot projects in different courts in order to experiment with various degrees of delegation. Evaluation of these pilot projects should lead to the establishment of guidelines for the entire system.

In this, project participation from the Ministry of Public Finance will be essential. Furthermore, the project could probably benefit from outside expertise with regard to modern management techniques.

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