Minister of Justice Grete Faremo

Efficiency and fairness of civil, criminal and administrative justice

Budapest, 11-12 June 1996

Mr Chairman,

As my distinguished colleagues have done already, I would like to thank our host, the Hungarian Minister of Justice, for choosing the theme of this Conference which is so important and worthy of debate. I would like to thank him for his excellent report and his Czech and Maltese colleagues for their equally outstanding co-reports.

Efficiency and fairness in the administration of justice are essential ingredients in a modern democracy. Yet fair justice within a reasonable length of time is not an easy target to reach in societies with finite resources and a seemingly infinite number of disputes - both criminal, civil and administrative.

The courts of all of the European states are facing an increased workload in all types of cases. Criminalisation of conduct, increased crime rates generally and the institutionalisation of dispute settlement place a heavy burden on the courts.

The challenge presented by an increased workload can be met in many ways. All too easily it can be met with resignation, so that the backlog steadily increases and efficiency, at least temporal efficiency goes out of the window. Resignation will also necessarily have repercussions for the fairness of the legal system - a legal system where the wheels grind slowly will dispense a poor form of justice.

The challenge can instead be met with measures to reduce the number of cases that come before the courts, for instance by introducing various forms of alternative dispute resolution. Secondly, concerted efforts should be made to ensure that the cases that do come to the courts are dealt with as expediently as possible. The challenge here is to avoid compromising the legal guarantees of the rule of law inherent in the existing legal system.

Access to the Courts

Whilst access to the courts is undoubtedly an integral element of a fair legal system, it is hardly realistic nor, I would argue, desirable in a society of finite resources, to grant access to everyone to the courts in all kinds of cases.

In Norway, there have been concerted efforts to reduce the number of cases that come before the courts of justice by introducing alternative forms of dispute settlement to court proceedings. For instance, for many criminal offences, the police are empowered to impose a ticket fine if such a reaction is deemed appropriate. If the fine is accepted, criminal proceedings will not be instituted. Most minor offences, and indeed the overwhelming majority of cases are dealt with in this way.

Another, more recent, attempt to reduce the flow of cases to the courts is the introduction of mediation even with regard to criminal cases. One of the primary aims when mediation was introduced in 1992 was to find an alternative to prison, particularly for young offenders - the number of young persons in our prisons having begun to cause alarm.

The benefits of mediation, both in civil and criminal cases, are many: it places the dispute in the hands of the parties concerned and thereby keeps the matter out of the courts. It is an appropriate way in which to deal with minor cases simply and speedily, with a reaction that is quick and directly related to the offence. Moreover, in criminal cases it enables the victim to take an active role in resolving the dispute, and increases the chance of speedy compensation. Finally, it forces the parties to relate to each other as individuals, which in turn can contribute to avoiding recurrence and mutual prejudices.

Efficiency in Court Proceedings

Once a matter has come before the court, a major objective must be to ensure that the proceedings run smoothly, without delays and without unnecessary protraction.

The courts of many countries have simplified procedures for simple or uncontroversial cases, and this is also the case in Norway.

Criminal cases in which the accused has made an unreserved confession which is supported by other evidence can, with the consent of both the prosecution and the accused, be heard by a court of summary jurisdiction, sitting with one legally trained judge. Here, one can dispense with a formal indictment and the proceedings are much less formal.

Rules relating to simplified proceedings in civil cases were introduced in 1986. The parties may agree to simplified proceedings which secure the most fundamental legal guarantees while relaxing the procedural requirements in some areas. In debt cases, the nature of the case does not require the same legal guarantees, and the law therefore provides that simplified proceedings are obligatory in minor debt cases.

Further, civil cases, with a few exceptions, start before a board of conciliation. The purpose of the board of conciliation, which has the status of a court, is to mediate between the parties in order to come to an amicable settlement and thus obviate the need for further proceedings. If settlement cannot be reached, however, the board of conciliation can to a large extent pronounce judgement. The board of conciliation can also pronounce judgement in default. A very large number of debt collection cases and many other simple cases are resolved in this manner.

Norwegian legislation also contains rules of procedure designed to ensure that the case can be heard without delay. In criminal proceedings, the president of the court shall ensure that a case is heard without interruption. The president, however, can interrupt the proceedings if he feels that a point has been sufficiently argued or is irrelevant.

In civil cases, the parties are required to give prior notice of the evidence they intend to submit and the point in support of which such evidence is adduced. The court has power to deny evidence admitted on several grounds.

The power to make an order for costs in the event of unjustified delays can also serve as a mechanism for ensuring that the parties do their utmost to ensure temporal efficiency in court.

Fairness in Court Proceedings

When striving towards an efficient legal system, the primary consideration must always be not to compromise the fundamental guarantees of the rule of law. The right to a fair hearing is, as we all know, laid down in all of the major human rights documents in the world.

In Norway, fairness in access to the legal system is also guaranteed through rules on free legal aid for persons with low income, the right to self-representation and, in criminal cases except the most minor offences, the right to legal counsel at the expense of the state at every stage of the proceedings. It is a problem, however, that a large sum of money is often needed to pursue a civil case through the different levels of the courts.

Another crucial element in the fairness of court proceedings is the independence of the judiciary. Article 6 of the European Convention on Human Rights states explicitly that the tribunal shall be independent and impartial. The Norwegian Constitution is based on the principle that the courts of law shall be autonomous and independent organs of the State. Judges are according to our Constitution appointed by the Government and cannot be dismissed from their office by the Executive. The government cannot, of course, prescribe how the judges are to exercise their judgement in any particular case and there are procedural rules designed to secure the impartiality of the judiciary in individual cases. The decisions of the courts of law are binding on and must be respected by all, including the government and parliament.

In March 1996, a commission was appointed to consider the administrative position of the Norwegian courts. The courts of law are administratively organised under the government and the Ministry of Justice. The principal task of the Courts Commission is to consider whether the present arrangement is beneficial or whether the courts ought in future to be administered differently. The time seems ripe for a thorough examination with a view to securing the independence of the judiciary in the light of our obligations under the European Convention on Human Rights. Similar studies have also been undertaken in other Scandinavian countries.

Efficiency and Fairness in Judicial Proceedings Generally

I have so far concentrated on different ways of promoting efficiency and fairness in court proceedings, in line with the recommendation of the Hungarian Minister of Justice in his preliminary report to this conference. However, for my part I find it difficult to isolate court proceedings from the rest of the judicial process when considering efficiency and fairness. Efficiency in court proceedings will often presuppose efficiency in the preceding stages. Likewise, a fair court hearing presupposes fairness in the stages leading up to the hearing. And certainly, an efficient and fair enforcement stage, and in criminal proceedings a successful rehabilitation process, will depend upon what has gone before it.

I hope therefore you will allow me to digress a little and recount our experience from attempts in Norway at making the whole course of legal proceedings more efficient.

Norway has in recent years focused extensively on expediting criminal cases at all stages of the proceedings - from investigation and charge to judgement and service of sentence - and has initiated a number of projects aimed directly at increasing the speed of criminal cases. The focus in these projects has been directed at the speed of criminal cases in the conviction that the interests of all parties - the accused, the victim, the public and the state - are best served by the case as a whole being dispensed with quickly. This is important also from a preventive point of view. Particularly where young offenders are concerned, it is our experience that the potential success of rehabilitation programmes depends to a certain degree on the length of time between apprehension for and the reaction to an offence.

In his report to this Conference, our host has pointed out that measures aimed at expediting legal procedures often weaken the guarantees surrounding the fairness of justice. This has also been the traditional opinion in Norway, and the aim has therefore been to strike a balance where the interests of time do not outweigh the interests of fairness. However, experience from our recent projects shows that this traditional notion is not necessarily true, and that the expeditious processing of cases - within reasonable bounds - rather promotes fairness than compromises it. Expeditious processing entails fresh evidence, fresh witnesses and a keener interest in the case at all stages. And prompt conviction, sentencing and enforcement increases the likelihood of successful rehabilitation, which is the ultimate purpose of criminal proceedings.

Our projects have shown that the key element in promoting speed in the criminal process is close co-operation at all stages between the police, the prosecution service, the courts, the probation service and the prison service. Through co-operation, it has proved possible to organise routines that reduce delays to the absolute minimum. In some cases, considerable reductions in delay have been gained simply by reorganising routines, or simply by encouraging a conscious attitude to the fact that cases shall not lie undealt with.

The time taken by Norwegian courts to process criminal cases has in recent years improved, and this has by no means compromised the guarantees of the rule of law afforded to the accused. In 1995, almost 95 % of courts managed to process criminal cases within an average time of three months from charge to judgement. And this does not take into account cases where judgement is given summarily in confession cases.

In civil cases, 75 % of courts of first instance have reduced the time taken from the instigation of proceedings to judgement to less than 6 months. And efforts are being made to reduce the processing time even further.

Much of the reduction come from improvements in the management and organisation of the courts. Norwegian courts have traditionally been considered conservative and resilient to modernisation, but through a programme of leadership development and certain other organisational changes, this image has been changed. Amongst other things, efforts have been made to rationalise the administrative tasks of the courts, not least by introducing electronic data processing systems, thereby freeing resources to be applied in the administration of justice.

Concluding remark

I would therefore argue that efficiency and fairness in court proceedings ought not to be seen in isolation from efficiency and fairness in the remainder of the judicial process, but rather as an integral part thereof.

I fully agree that the challenge posed by providing efficient and fair justice should be taken up by the Council of Europe with a view to expediting court proceedings without compromising fairness. The resolution which we are to adopt will signify a first step in this direction. I trust that member states can profit greatly from an exchange of ideas and experiences and by common efforts to develop possible new remedies to expedite court procedures. Our peoples are entitled to demand and expect efficient justice from the courts. We should take care to encourage the interest and the initiative of the judiciary in promoting efficiency. The basic principle of the independence of the judiciary should not, however, cause governments and parliaments to refrain from taking initiatives aimed at achieving the overriding goal of fair and efficient justice.

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Lagt inn 22 juli 1996 av Statens forvaltningstjeneste, ODIN-redaksjonen