sou · GOB399d2 · 2001-01-01 00:00:00 — I detta innefattas också förändringar i domstolarna såsom t ex nedskärningar och sammanläggningar av rotlar eller avdelningar. Genom att beslut även i sådana frågor fattas kolle- gialt tillförsäkras domare det reella inflytandet på verksamheten som de skall kunna utöva enligt de nämnda internationella dokumenten. Ett gemensamt beslutsfattande är vidare en styrka i förhållande till en stark centraladministration som genom direktiv och föreskrifter kan tänkas vilja styra domstolarna och dess chefer på ett från självständighetssyn- punkt betänkligt sätt. Om kommitténs förslag såvitt avser domstolschefens suveräna beslutsrätt i anslags- och budgetfrågor och därmed sammanhängande spörsmål antas, är det angeläget att beslut som kan påverka självstän- digheten i dömandet kan överprövas på ett snabbt och smidigt sätt. En domare, som anser att självständighetsprincipen åsidosatts, borde där- för kunna föra upp frågan i plenum i den egna domstolen. Jag har inget att invända mot kommitténs förslag att prövning i ett särskilt organ skall kunna ske. Detta organ bör dock ta ställning främst till större och mer komplicerade frågeställningar samt till frågor som inte är av så brådskande natur. The general principles in the assessment of matters relating to the appointment of senior judges and the role of the head of the court should be the following: that such issues shall be assessed based on the constitutional principles regarding the independence of the courts and the judge, and from a civic point of view where the judiciary is concerned, that the appointment procedure for senior judges should be organised in such a way that it contributes to strengthening the legitimacy of the courts, and that the appointed judges have excellent qualifications and that the management function in the courts shall be strengthened and modernised whilst maintaining the independence of individual judges in the administration of . The appointment of senior judges There are certain fundamental values and interests that should be considered in a review of the appointment procedure for senior judge positions. It is important to establish an order that ensures a broad, high-quality recruitment process that both gains the confidence of citizens and expresses the independent position of the courts and the judges alike. The government should continue to constitute the body that appoints senior judges. The government should not be able to delegate the assignment of appointing ordinary judges. The drafting should be introduced in a special preparatory body organisationally independent of both the Swedish parliament and the government, which submits proposals to the government regarding suitable candidates for senior judge positions – a proposals board for senior judge positions. Such a board should be a body governed by law. The proposed suitable number of members is seven. Four should be judges, one a solicitor and two representatives of the general public. The judges are appointed by the government, two of them following nomination by the members of the Supreme Court and the Supreme Administrative Court respectively, and the other two according to nomination by the presidents of the courts of appeal and the administrative courts of appeal. The solicitor is nominated by the and appointed by the government. The two general public representatives are selected by the Swedish parliament. The board should be given strong administrative support in its work by means of a secretariat for the preparation and presentation of matters before the board. The secretariat should include ordinary or former ordinary judges. Requirements relating to openness and insight are best met by means of the public announcement of all vacant positions and the introduction of a system whereby interested candidates can submit applications to the proposals board. Interested persons can either manifest their interest themselves or, with their consent thereto, be entered onto the list of interested candidates by another party. Applications from interested persons can also be initiated by one of the members of the proposals board or its secretariat encouraging the candidate to submit an application. Candidacies relate primarily to a certain position. Candidates for senior judge positions shall also have the opportunity to manifest their interest at a more general level. There should, therefore, also be a list of general candidacies that cover all senior judge positions. The task of the board is to submit to the government a public proposal of suitable candidates for senior judge positions. If possible, three persons should be proposed and classified in each case of appointment. The proposal shall be motivated. If fewer than three persons are on the list of proposals, special motivation shall be provided. The government should be able to choose freely from among the persons proposed by the board if the board has set forth several persons. However, the eventuality of the government having reason to prefer a person other than those proposed cannot be eliminated in certain cases. In such a case, the requirement should be that the government resubmits the matter to the board for consideration, with a request for an opinion as to whether the candidate in question should be set forth as proposed. Should it be the intention of the government to completely disregard the proposals of the board, it shall be incumbent upon the former to report the circumstances to the Standing In such a case, the Committee shall hold a public questioning of both the candidate nominated by the government and the boards first choice of candidate. can subsequently choose to express an opinion, in which case such shall be binding for the government. The proposed appointment procedure with preparatory work in a special proposals board shall apply to all senior judge positions in ordinary courts, ordinary administrative courts as well as regional tenancies tribunals and regional rent tribunals. The positions covered are of the Supreme Court, of the Supreme Administrative Court, President - Court of Appeal, President - Administrative Court of Appeal, Head of Division – Court of Appeal, Head of Division – Administrative Court of Appeal, Presidents of the city courts and the three largest county administrative courts respectively, and Presidents of the three largest regional tenancies tribunals and regional rent tribunals. The special proposals board for senior judge positions should initially work in parallel with the Committee (– TFN) for the judiciary, but in time it is natural that preparation for the appointment of judges would be managed by one body. The composition of such a body could be variable. Even with the proposals board solution, it is crucial to safeguard the special proceedings employed to appoint members of the Supreme Court and the Supreme Administrative Court. In these proceedings, prior to the appointment, the government presents the name of the envisaged candidate to the plenary assembly of the court. It can be said that the consultation is based on constitutional practise. is of the opinion that there is a strong symbolic value in the ordered proceedings, which highlight the position and significance of the supreme courts. therefore wants this order to remain in place and be formalised. It should also be possible to provide the suggested proposals board with a role when it comes to appointing judges in the special courts. The board should not be composed in a special way in the context of these appointments. On the other hand, the secretariat should be provided with particular specialist knowledge ahead of dealing with these matters. The consultation conducted with labour market parties preceding appointments of legally qualified members of the Labour Court can in future be carried out by the secretariat of the proposals board. discuss certain matters relating to the form of employment for certain judges in the Labour Court and the Market Court. It calls into question the part-time appointment of employees of the Swedish Cabinet Office and the Ministries to the position of deputy chairman of the Labour Court, and emphasises the need for the head of a special court to be an ordinary judge. The role of the head of the court The discussion relating to the role of the head of the court and the structure of court management should be based on the fundamental values on which court operations rest. Court management shall be structured and shall operate in such a way that it contributes to maintaining and strengthening these values. It is natural that the fundamental discussion relating to court management and court administration is based on the problem of setting boundaries, which is a distinctive characteristic of the courts due to their special constitutional status. Court management can be divided into external and internal management respectively. External management concerns the courts relation to external operations and bodies, mainly the Swedish parliament, the government and the (– DV). The focus of internal management is mainly on the independence of individual judges in relation to the head of the court and other managerial functions. The role of the head of the court can be discussed from different standpoints. One is to emphasise the role of the head of the court as a manager and developmental leader. This appears to the standpoint adopted in the committees directives. Another emphasises the head of the court more as a first among equals – inter pares – than as a manager and developmental leader. From a civic standpoint, both can be defended, the first on a practical level and the second more as a matter of principle. does not believe that it can execute its task by adopting only one of the two standpoints, but is of the opinion that both have to be considered. The head of the court bears responsibility not only for administrating i.e. administrate the court, but also for developing it within the framework of the body of regulations, and thus creating the best conditions for the administration of . To fulfil their role in society, the courts must be able to attract skilled, committed staff members who are stimulated by the responsibility and progress potential afforded by the judiciary. Special emphasis should therefore also be placed on the function of the courts as a workplace. It is impossible to achieve a management function structure for all courts in all of their phases of operations. The requirements that should be placed on the head of the court vary from court to court, and even over time. Meanwhile, it is important to emphasise in general the importance of leadership for the internal management of the courts. The court management should have great insight into the role of the courts in our society and exercise high-quality, leadership. The external management of the courts should be characterised by a long-term approach and set principles and should be bound by law to the greatest extent possible. The matter of central court administration structure is not expressly included in the tasks of the committee. The discussion relating to the role of the head of the court and the internal court management at the local level cannot, however, be pursued in isolation from this matter. In the light of past and present discussion in and in other countries (mainly within circles and particularly in our Nordic neighbour countries, and ), it is important to emphasise that different national traditions, constitutional principles and organisational structures can mean that the application of one solution is not a self-evident matter of course. The chosen solution should, on the one hand, coincide with the principle regarding an independent judiciary and independent judges and, on the other, gain legitimacy both in a democratic context and within the courts. A higher level of local administration and self governance for individual courts places high demands on skilled heads of courts. A head of a court has to be able to undertake the assignment with responsibility not only for his or her own court, but also for the judiciary at large and the role of the courts in society. The constitutional requirement for an independent administration of is in place in order to secure the rights of citizens in a state governed by law. The principle of maintaining the independence of judges in rulings is thus of crucial civic interest. Herein actually lies the reason for why this principle must be upheld. The principle of independence restricts the leadership role while a judge is concerned with one particular case. The judge is independently in control of the legal procedure and the ruling. Intil the limit of independence in the administration of , however, the judge, just like other staff, must obey the head of the court and the court management. This limit is not always clear. A basis in assessing where this limit is to be drawn should be that the scope in which the head of the court may act and intervene with regard to the independence of judges is no less than the corresponding scope of the Parliamentary Ombudsman (ombudsman – JO) and the Chancellor of (Justitiekanslern – JK). It is, however, important to highlight several aspects in a comparison with the supervision of JO and JK. Whilst the supervisory tasks of JO and JK are extraordinary, it is incumbent upon the head of the court to administrate court work, manage the court and supervise its operations on an ongoing basis. In addition, JO and JK carry out control measures following an event, while the management assignments of the head of the court should mainly be practised to render repressive measures unnecessary. By a proactive approach in management tasks, problems can be prevented. On the other hand, it is crucial for the head of the court to be aware of the problem of setting the limit. A head of a court who neither has a feeling for nor respects independence in rulings is a danger to law and order for the individual. However, a passive head of a court who, through fear of violating the independence issue, avoids dealing with problems relating to a judge also constitutes such a danger. Both approaches are unacceptable, not least from a civic standpoint. It is crucial that good heads of courts are appointed to the courts. The possibilities of a head of a court to act are, according to the committee, largely appropriate and sufficient in the currently applicable order. It is important however that this order be conveyed and clarified. is of the opinion that one of its important tasks is to implement this. In this respect, references are made in the report to the JO and JK statements and to the management policy for district courts and county administrative courts recently drawn up by a working group appointed by DV. also provides an account, under a number of headings, of how it views the possibilities of the head of the court to act in various tangible cases, and the limitations involved therein. Where the allocation of work assignments is concerned, the committee is of the same opinion as the Commission of the Judiciary of 1993, i.e. that the principles for case allocation and redistribution should be based on the provisions of law, and that the main rule should be a system based on random selection combined with scope for special case destination in accordance with objective criteria. The basis for the allocation of cases should be specified by rules of procedure for the court. For the sake of consideration for the judges independent position, certain in law or statute specifically mentioned administrative management decisions of particular importance for administration of should be taken by an internal panel of judges in the court. Otherwise, the head of the court or the person or persons to whom the former has delegated decision-making authority should decide in administrative management matters. The structure of the judge panel body cannot be completely uniform. The different sizes and functions of the courts can motivate different solutions. The internal panel of judges should consist of the courts ordinary judges in the plenary assembly in district courts and county administrative courts, with the right of the plenary assembly to delegate decision-making authority to a smaller panel if so deemed appropriate. In the largest district courts and county administrative courts, the smaller panel structure should, however, be applied. The decision-making authority of the plenary assembly should also be exercised by the panel in courts of appeal and administrative courts of appeal. The task of the plenary assembly in these courts will be merely to choose certain members of the smaller panel. In the Supreme Court and the Supreme Administrative Court, the plenary assembly and its role according to the present order are preserved. If so required, the two supreme courts are given the possibility of appointing a smaller panel for decisions in particular matters. emphasises in particular the importance of decision-making, regardless of the decision form, taking place in the context of excellent internal preparatory forms and in collaboration with all staff. hereby supports the work currently in progress in the courts relating to developing the application of the Act on Employee Participation in Decision-Making and creating new forms of collaboration. As a stage besides the order relating to decision-making in the context of a panel of judges, the possibility should be introduced whereby the individual judge and those carrying out other assignments relating to the administration of can appeal an administrative management decision if they are of the opinion that this infringes on their independent position in the ruling or the decision-making process. It can e.g. be a matter of decisions regarding the redistribution of individual cases, the composition of the courts members in a certain case, or other decisions that, in a particular way, affect the judge or decision-maker in the very ruling or decision-making process. As a rule, these matters come to light in various supervisory contexts and are linked to other matters relating to the legal position of judges, such as disciplinary matters and labour law disputes. It is natural that all of these matters be tried in a body – an internal supervisory body within the judiciary. In anticipation of such a solution, the committee suggests that TFN be assigned to submit authoritative statements in the form of recommendations in independence-related matters. thus sees a potential development towards the of an internal supervisory function within the judiciary. Such a body would be able to take a position in independence-related issues on the one hand and in staff and supervisory matters at large on the other. It is perceivable that the internal supervisory body takes over the role of when it comes to judges and, in time, it could even replace the supervision that JK currently exercises over the courts. The matter of an internal supervisory body within the judiciary should be further investigated. Besides JO, and also the Prosecutor-General (- RÅ) in the penal law area, only JK is obliged to act when problems arise relating to a head of a court. Where other judges are concerned, the head of the court must notify . It would be suitable if the supervisory responsibility for the head of the court was managed within the judiciary. It is, meanwhile, difficult at the present time to find good forms for this. A solution whereby heads of courts in superior courts are given a supervisory function over heads of courts in lower courts is fundamentally not a fitting solution. If a special internal supervisory body was created within the judiciary, then such a body could take care of supervising the heads of courts In the meantime, however, this function should remain with JK. There are strong reasons indicating that the head of a court should have a background as a judge. supports the high level of importance that has been attributed to the leadership function over recent years in conjunction with the appointment of heads of courts. It is important that heads of courts be given sufficient and appropriate support in their leadership tasks and thus also time to judge. The amount of time that the head of a court should spend on administrating and management tasks respectively should not be set in stone. This must necessarily vary from court to court as well as over time. The ongoing progress related to transferring more administrative functions from the DV to the courts should proceed. The role of the head of the court would be highlighted, if decision-making authority in the staff issues in which currently decides was delegated from the DV to the individual courts. proposes that this be the case. There should also be well functioning leaderships in the courts under the heads of courts. The staff that carry out managerial assignments under the heads of courts must be able to assume their leadership roles and live up to what is expected of them. This requires, however, clear definitions in terms of authority and responsibility and that the limits are clear not only to the head of the court and other persons with leadership and administrativt tasks, but also to other employees. In the light of the different circumstances in courts, which vary in size and in other ways, it is impossible to set forth a general solution regarding the structure of the allocation of responsibilities between the head of the court and other staff with managerial responsibility. It is crucial that in each court, a position is taken to these matters in order to avoid floating, unclear responsibility and shortcomings in legitimacy. Also persons with leadership and administrative tasks under the head of the court should be provided with training and support in their leadership roles. The trend towards an increased importance of regional or local administration structures within the judiciary places demands not only on the heads of courts, but also on other persons performing managerial tasks in the courts. Like the head of the court, these persons too should be able to assume responsibility not only for their own court, but also for the judiciary at large and the role of the courts in society. sees the advantages inherent in introducing a time- limited position for the head of a court. However, the committee is doubtful as to whether a head of a court appointed to a time-limited position by an external appointing body is in line with the principle of independent courts. This is the case even if the time limitation is based on an agreement with the head of the court in question. In a system where reappointment is impossible, the same dependency on the appointing body does not arise. Such a system risks, however, leading to a lack of managerial continuity and recruitment difficulties, and that the term of skilled heads of courts ends prematurely. In our current times of rapid change, such effects would prove particularly unfortunate. Indeed, an order whereby the head of the court is selected internally from among the judges of the court does not lead to the same fundamental apprehensions against a position with a limited term for the head of a court. Such an order does not, however, guarantee the leadership in the courts that is both desirable and necessary. Instead, better circumstances should first of all be created for the heads of courts, whereby they can withdraw from their positions on their own initiative, prematurely and voluntarily. This can be the case if e.g. the head of a court is given the right to a maintained salary, pension or other special compensation following withdrawal from the position as a head of the court. Solutions such as the aforementioned may presuppose agreements between labour market parties.