sou · GRB3102d1 · 2004-01-01 00:00:00 — När det gäller kostnader för ordinarie domare bör en kraftfull satsning på beredningsorganisationen en effek- tivare yttre organisation frigöra de resurser som kan komma att be- höva disponeras vid en öppen domarrekrytering. Det kommer som jag bedömer det att finnas ett minskat behov av extra domarresurser och resurser av mindre omfattning kommer därför att frigöras. Den nya kommer att innebära ökade kostnader för beredningen av domaranställningar. Kostnadsökningen kan be- räknas till . Kostnadsökningarna för utbildning av nyutnämnda domare bör bli ca . Jag föreslår att de ökade kostnaderna för utbildning av domare och de ökade kostnaderna för att bereda domaranställningar finansieras med en höjning av ansökningsavgifterna i tvistemål. Avgiften föreslås bli . Intäkterna som hänförliga till ansök- ningsavgifterna skulle då öka med ca . En annan tänkbar lösning är en höjning av avgifterna för den frivilliga rättsvården. Jag tar inte ställning till hur stor en sådan höjning bör vara. Om full kostnadstäckning införs skulle det innebära att av- gifterna höjdes från 275 resp. 375 till ca per ärende vilket sammantaget medför ökade intäkter med ca . Om båda alternativen väljs innebär det ett inkomst- tillskott som med bred marginal motsvarar domstolsväsendets kostnadsökningar för ett bättre rekryteringsförfarande och dess- utom kan ge utrymme för andra förbättringar för domstols- väsendet. Båda lösningarna eller en kombination av dem är möjliga och rimliga åtgärder för att finansiera de kostnadsökningar som blir följden av mina förslag. Jag pekar på att ansökningsavgifter i de allmänna förvaltnings- domstolarna och avgifter för att överklaga mål till hovrätt och kammarrätt kan vara en möjlighet att bidra till domstolsväsendets behov av resurser . Förslagen bör leda till en jämnare könsfördelning bland de ordi- narie domarna och framförallt till att rekryteringen av kvinnor till anställningar som chefsdomare kommer att öka. Min bedömning är att en öppen domarrekrytering som jag före- slagit i kombination med ett ändrat rekryteringsförfarande i någon mån bör kunna bidra till att domarkåren speglar den etniska och kulturella mångfalden i vårt land. För att de integrationspolitiska intressena skall få genomslag vid domarutnämningar behövs emellertid andra åtgärder än dem som jag har haft att utreda. The Government has commissioned me to conduct a review of the recruitment of permanent judges. Under the terms of my assignment, I am instructed to present proposals for changes that will enable the courts to continue to recruit permanent judges who are among the very most skilful and most suitable lawyers for the profession. The assignment includes the task of considering whether, for the sake of ensuring good recruitment to the judicial profession, there should continue to be a specially organised career path for judges. If I conclude that there should be a specially organised career path for judges, I am also to present proposals on the future design of the career. I am also instructed to consider and make proposals on how the courts needs for occasional additional and substitute judges can be met. The stated assumption here is that permanent judges should be available to fill these needs. My thoughts on the future recruitment of judges I have interpreted the terms of reference to mean that my assignment concerns only recruitment to judicial positions that are filled after a process of application. Accordingly, my proposals do not cover the appointment of Supreme Court or Supreme Administrative Court judges, presidents or heads of division at courts of appeal or administrative courts of appeal, or chief judges in the district courts or county administrative courts in , and . In the light of the terms of reference, I have further assumed that the assignment has a broader purpose than merely to ensure good recruitment of judges. The essential point is to find a system for recruiting judges that will entail that our courts are able in future to meet the demands that judicial business needs to face. If we can create the conditions that will allow representation in the courts of a broader range of professional experience than our judges have traditionally possessed, in my opinion it will be possible to satisfy citizens demands and expectations of the court system more adequately than is now the case. The courts must also be able to satisfy the justified demands of individual parties that court decisions maintain high levels of quality and competence. Moreover, recruitment to the judicial profession needs a broader base if it is to be possible to secure the services of the most skilful and most suitable lawyers. At the same time, it is essential to guarantee that all parts of the country have an adequate supply of judges. Opportunities should also be opened up for the courts to recruit lawyers with special qualifications so as to further raise the quality of judicial work. Taken together, measures mainly along these lines should result in both judges and the courts as a whole being better equipped to meet the demands that must be made now and in future. Permanent judges have long been recruited almost exclusively from the group of lawyers who have completed the judicial training programme. However, there is no formal requirement for judicial training prior to appointment as a judge. The relative lack of success in recruiting lawyers who have not undergone judicial training is due in part to the fact that preference has been given to candidates who have judicial training. A judicial training programme will be less attractive if a person who has taken the programme does not have a reasonable chance of becoming a judge. The judicial training programme has been of great value in that it has attracted competent lawyers who have proved well able to meet the courts needs for skilful judges. The question, however, is whether judicial training can be equated with the recruitment of permanent judges any longer. In itself, the judicial training programme does not provide the broader experience of life and work that is considered valuable in a judge. The to have judges with a variety of professional backgrounds is mainly provided for by according greater value to secondary qualifications in the form of service outside the courts – such as work for the Government Offices or some other government employer – than to service in the courts alone, when appointing permanent judges. Lawyers appointed as judges rarely have any types of professional experience other than these. If there is to be any change in the current state of affairs, so that a greater breadth of experience is represented in the judiciary, we must depart from our present, closed system for recruiting permanent judges. As things stand at present, moreover, the judicial training programme does not provide an adequate output to ensure that all courts in the country can be supplied with judges. Lawyers with judicial training are reluctant to move and due to this state of things trained candidates are not available for recruitment as judges everywhere in the country. The resulting recruitment problems are now affecting courts in county capitals and other regional centres, not just courts in smaller towns. It is important that the efforts that have been initiated to reform the system of district courts continue. Even if the reforms lead to courts being increasingly concentrated in larger and more central towns, this will not suffice to solve the problems. It will not remedy the difficulties that have arisen in recent times in recruiting judges to serve in county capitals and other regional centres, still less solve the recruitment problems in other towns. For many years, the judicial training programme has enabled the state to recruit well-qualified lawyers. My considerations are based primarily on the assumption that my proposals should aim to address the courts need of skilful people who are suitable for the judicial profession. Modifications in the present judicial training programme In my opinion, the judicial training programme has intrinsic value. Strictly from the employers point of view, moreover, there are advantages to the way in which the judicial training programme makes it possible to attach skilful and suitable lawyers to the courts system and retain them for future employment as permanent judges. There is therefore reason to analyse whether it is possible to improve the recruitment of judges while retaining a special judicial training programme. I do not take the view that there is any need to question the quality of the present judicial training programme. rather whether there is some other way of making the programme more attractive for skilful young lawyers. However, in my view the way forward is not to limit the number of places on the programme, so as to be able to guarantee those who have completed judicial training a position as a permanent judge. My terms of reference suggest the possibility of concentrating judicial training to a smaller number of training centres than today. On my assessment, the result of any such step would be to exacerbate the problems that already exist in recruiting judges to serve in all parts of the country. Consequently, I do not see this as a solution for the future. One solution I have considered is to postpone judicial training, so as to make, for example, a certain, relatively extensive period of experience of work as a lawyer a requirement for acceptance to the judicial training programme. On my assessment, in view of the limited recruitment needs, such a programme would need to be concentrated to a few training centres. It seems to me there is likelihood of established lawyers being prepared to leave a place they have made their home in order to take the training programme. Furthermore, the problem of securing a countrywide supply of judges would remain in a model of this kind as well. I therefore do not see a postponement of judicial training as a way forward. My overall assessment of the possibility of developing our present system of recruiting judges, which is based primarily on a special internal court career/judicial training, is that this system cannot satisfy the wish to be able to make different types of working and life experience available to the courts. Furthermore, in a closed system for recruitment the competition for employment as permanent judges is limited. Apart from the above-mentioned circumstances the judicial training programme no longer provides an adequate supply of judges for the whole country. The present difficulties in inducing suitable lawyers to seek appointment as permanent judges in different parts of the country cannot be attributed to a shortage – or surplus – of lawyers who have completed judicial training. is the explanation that the lawyers who have undergone judicial training lack the necessary skill to be judges. Consequently, I see no possibility of achieving a good level of recruitment of permanent judges throughout the country simply by making changes to the judicial training programme. even prove counter-productive. The attractiveness of the programme may suffer if changes are constantly being made to the conditions for training. Recruitment of both lawyers with judicial training and lawyers without judicial training The to have lawyers with experience from a variety of areas among the corps of judges can be satisfied if there is greater openness than at present to the recruitment of lawyers who have not undergone judicial training. One approach in that case can be to make substantial cutbacks in the number of places available in the judicial training programme so that the number of people who complete the programme only corresponds to a certain proportion of expected recruitment needs. Another approach can be to attempt to achieve broader recruitment by other means. The principal purpose of a system in which both lawyers with judicial training and lawyers with other backgrounds are recruited as permanent judges is to ensure that both categories are represented at least at the great majority of courts. One major weakness in both models is that they cannot be expected to lead to this purpose being achieved. A more general attempt to achieve broader recruitment would require that lawyers with judicial training and lawyers with other backgrounds are able to compete for appointment as judges on equal terms. This might have the effect of making the judicial training programme less attractive. Consequently, I do not advocate a solution based on a combination of open recruitment and recruitment of lawyers with judicial training. Completely open recruitment of judges In the course of my investigation, I have become convinced that our judges and courts will be better equipped to meet the present and future demands if we abandon our closed system for recruiting permanent judges and switch to a completely open system of recruitment. One benefit of open recruitment is that the judges will have a range of professional backgrounds, which will be an advantage in their judicial work. Open recruitment, moreover, will result in a substantial broadening of the recruitment base, which will create conditions for increased competition for judicial appointments. With more competitors there will be increased opportunities to select the most skilful and suitable lawyers for the judicial profession. Another advantage is that the courts that now have difficulties when recruiting judges will stand a better chance if lawyers working in local practices are able to seek appointment there. Open recruitment will make it easier to satisfy the courts needs for specialist qualifications. One positive effect of open recruitment, in my view, is that lawyers will not need to decide early on in their career whether they might want to be judges later in life. This will give them the opportunity to try out different professions before making their choice. One weakness in our present system is that in practice the great majority of lawyers are excluded at an early age from the possibility of becoming permanent judges later in life. Naturally this group includes many well-qualified lawyers, who would make good judges. Open recruitment, moreover, is free from another drawback that marks the present system. In a system in which in practice only those who have completed the judicial training programme are recruited as permanent judges, the problem arises that it is difficult when accepting candidates for the programme to assess how different people will develop later in life. The issue of appointment as judge does not arise until long after these initial assessments. It cannot be taken for granted that at a later stage in life, after completing the programme, a person will have the right qualities to make a good judge. Conversely, a person who has not been considered to possess the right qualities when young may mature and become a lawyer who would make a quite excellent judge. One advantage of the present judicial training programme is that young lawyers acquire insight into the peculiar nature of the judicial profession. This is a kind of experience and knowledge that lawyers who have not been through the programme lack. In my opinion, however, the traditional programme of judicial training is not essential to prepare a person to work as a judge. The lack of specific training can be compensated by giving newly appointed judges basic training in connection with the assumption of their duties. I am convinced that experienced lawyers, given they have the right personal qualities and have undergone a certain amount of individual introductory training in connection with their appointment, will relatively soon be able to serve well as judges. If a system of open recruitment is to be successful, it is absolutely essential that there are lawyers in the public and private sectors who have the qualifications that are needed for the judicial profession and who are prepared to give up their profession to work as a judge. In my considerations I have assumed that the organisational reform of the courts system will continue and that courts of suitable size will be established. In that case, by far the majority of courts will probably be located in the three metropolitan regions, county capitals and other relatively large towns. In the metropolitan regions (, and ), the labour market for lawyers is so large and so diversified that it provides a very good basis for recruiting skilful lawyers. As regards the other towns in which courts may be concentrated, with almost no exceptions a relatively large number of lawyers are in practice there. In view of these observations, I believe there will be a good recruitment base throughout the country. Furthermore, in my estimation the judicial profession has qualities that make it an interesting occupational choice for many lawyers who are in different areas of the law. Although the judicial training programme is not a formal requirement for employment as a permanent judge, it is extremely uncommon for lawyers with other backgrounds to apply for judicial positions. There may be several reasons for this, but one important explanation may be the present system of assessing applicants qualifications. Even if the present evaluation of qualifications assumes an overall assessment of the skills and suitability of prospective judges, there can be no doubt that candidates with judicial training are given priority because of the perceived value of the judicial training programme. In an open recruitment process, the system for evaluating qualifications must therefore be changed to enable a more equitable comparison and evaluation to be made of the relative advantages of judicial training and experience and other educational backgrounds and professional experience. This does not mean valuing judicial training less highly, but it does mean the knowledge and experience that such training has given a candidate must bear objective comparison with other qualifications. An open system for recruiting judges also presupposes various marketing measures and a more recruitment process with more refined methods of selection than at present. It will be impossible to maintain a special judicial training programme if an open system for recruiting judges is introduced. The judicial training programme will become a less attractive option and there is a risk that it will attract fewer and less competent lawyers than at present. the programme will also obstruct efforts to enable lawyers with other backgrounds to secure employment as judges. Earlier attempts to broaden the recruitment base, not least, have shown that this is impossible as long as there is a special programme of judicial training. I therefore recommend closing down the special judicial training programme. A step of this kind will not entail the courts system losing a valuable resource for recruiting permanent judges. lawyers who have an inclination and aptitude for the judicial profession will be able in future too to qualify themselves for appointment to the judiciary. I find it difficult to imagine that lawyers would refrain from applying for judicial appointments because they have not previously had the opportunity to train as judges. If a decision is made to switch to a system in which there is no longer any special career path for judges and all recruitment of judges takes place on the open labour market, there will need to be a possibility of greater flexibility than at present in the salaries offered newly appointed judges and an ability to use individual starting salaries as a tool in recruiting competent lawyers. However, I do not see any intrinsic value in an exaggerated wage spread among new appointees. In certain situations it will nevertheless be quite essential to abandon the basic salary level and exercise greater freedom when setting salaries, so as to be able to recruit the most skilful and most suitable lawyers for the profession. that prepares decisions on judicial appointments should also decide starting salaries. In conjunction with the issue of starting salaries, salaries during the period of appointment are also discussed. In my view, the time is not ripe to introduce individual salaries for permanent judges. It should, on the other hand, be possible to build further on the system already introduced in collective agreements, so as to establish a system of personal salary supplements that can be given to a number of judges, independently of the court at which they are employed. I recommend that the special committee that prepares decisions on judicial appointments should also decide which judges should receive salary supplements. Requirements for prospective judges In my opinion, the requirements that have applied until now – independence, objectivity, knowledge about and ability to apply the system of legal regulations, and personal qualities – are sufficiently general that it should be possible to retain them for use in an open system of judicial recruitment. In some respects, though, they should be supplemented and made more precise. One new requirement that should be introduced is an ability to bring cases to a conclusion in reasonable time. This requirement follows from Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Another requirement that in my opinion should be emphasised is a judges ability to lead and stimulate collaborators in their work. As things stand at present, this requirement has particular importance only in connection with the appointment of judges in leading positions. However, even judges who are not in such positions often have responsibility for managing the work of non- judicial staff, including reporting, clerks and court secretaries. In my opinion there is reason when making appointments to accord greater weight than has been formally allowed until now to the ability of applicants to lead and stimulate other staff in their work. A judge should also have the ability, willingness and interest to take on different and/or new responsibilities and to work in general to ensure good overall results for the business of the court. Alongside the basic requirements, I consider it should also be possible to introduce special requirements in individual cases as appropriate, e.g. because a court has a need for certain specialist skills. General principles for assessing skill For the sake of public confidence in the courts, appointments to the judiciary must be based on an objective and factual assessment of the ability of applicants to serve as a judge. This implies that it is not only the levels of skill and suitability that are required of a judge and are to be applied in assessing applicants for judicial appointments that should be set in advance; the principles for making the assessment should also be clearly established beforehand. Having said this, the development and formulation of detailed grounds for evaluating applicants should be largely the responsibility of the body preparing judicial appointments. The basic principle should be that an overall assessment shall be made, taking into account all qualifications applicants have that are relevant for the position applied for. This overall assessment, along with the skills required for the particular position, may mean that varying weight will be accorded to different factors. The factors that should be decisive are in the first instance professional skill, personal qualities, education and training and professional experience. In the interests of legal security and of individual parties and public confidence in the courts, it is extremely important that decisions made by the courts are of a consistently high quality. It is therefore essential that lawyers recruited to be judges have an excellent knowledge of the legal system.