sou · GRB3102d1 · 2004-01-01 00:00:00 — The judge must also be able to apply the legal rules according to generally accepted methods. The judge, in other words, must be a skilful lawyer, which also presupposes an ability to analyse the problems and issues he or she is confronted with. A prospective judge must also have the right personal qualities, and these qualities, in my opinion, generally have great importance as grounds for assessment. In my report, I draw attention to a range of factors that should be taken into account in the assessment. The decisive consideration in assessing whether a person has the potential to be a skilful and suitable judge should be an overall picture of the applicants personal qualities. Another important factor in assessing applicants is their previous professional experience. As I see it, no particular types of experience can be singled out as particularly valuable. However, in my report I do indicate certain kinds of experience that are typically of great value in a judge. It is a matter, primarily, of experience in dealing with legal issues, but experience other than strictly legal work can also be of value. One such area, which I point out in my report, is parenthood. In my opinion, parenthood should be comparable with non-legal professional experience, as parenthood is also a source of life experience and personal maturity, which are valuable qualities for a judge. This arrangement will both promote gender equality and help prevent any disadvantage accruing to parents, whether women or men, who have taken part in parenthood when competing for judicial appointments. As regards education and professional experiences, judicial training must be weighed against other types of education. Judicial training and experience of service in the courts shall not, as at present, be accorded special importance when assessing applicants for judicial appointments. As previously, gender equality shall be a further objective factor that can tip the balance in a judicial appointment when applicants qualifications are broadly identical. In the very few cases in which it is impossible to decide between candidates on the basis of an assessment of their skills, the outcome will be decided, as previously, by the period of service demanded. I assume that judicial appointments will continue to be made by the Government. I assume, further, that judicial appointments currently based on a process of application will continue to be decided in the same way. For reasons of principle and on practical grounds, I am unwilling to accept the idea of probationary appointments for judges. I recommend a relaxation of the rules for adjunct judges in courts of appeal and administrative courts of appeal to make it possible to call in a broader circle of lawyers outside the judiciary to serve as adjunct judges. This will give lawyers working in other areas an opportunity to try out the judicial profession before deciding whether to apply for a judicial appointment. Preparation of judicial appointments An open system of recruitment for judges should not lead to a departure from the present arrangement in which judges are appointed by the Government on the basis of proposals from a government agency in which judges exercise a decisive influence. This arrangement not only guarantees the independence of the judiciary and the autonomous role and position of the courts in our democratic legal system. It is also calculated to inspire confidence on the part of the general public and actors in the legal system that judicial appointments are not affected by inappropriate considerations. The recruitment of skilful lawyers who are suited to the judicial profession makes special demands on the competence and working procedures of the body responsible for preparing judicial appointments. These demands will increase if judges in future are not recruited almost exclusively from among lawyers who are or have been employed in the courts system. The working duties involved, moreover, will become more onerous and demands on the general process ahead of new recruitment will grow. Consequently, if an open system of judicial recruitment is adopted, the composition of the body responsible for preparing appointments will need to be reconsidered, as also will its working procedures. A new of judicial appointments I propose that a new committee should replace the Committee. The members of the new committee (which may be named ) should include four judges, two advocates, one representative of the general public and the Director-General of the . Each member should have a personal alternate. Two alternates should be available for the public representative. The Government should appoint the judges and advocates on the Committee. The Chief Parliamentary Ombudsman in consultation with the other Parliamentary Ombudsmen should nominate the representative of the general public and his or her alternates. The should nominate the advocates on the Committee. A special nominations group consisting of a majority of judges should nominate the judges to serve on the Committee. The members and alternate members of should be appointed for five-year terms. Reappointment of members or alternate members should not be possible. In view of the unique constitutional position of judges, provisions relating to the composition of the Committee and the appointment of members and alternates should be set in a special Act on judicial appointments. This Act should also include fundamental rules on the duties of the Committee. The Government should be able to instruct to also deal with other responsibilities now managed by the Committee. should have its own office, which should be integrated in the Committee. Procedures leading up to the appointment of a judge Heads of courts should make continuous efforts to encourage suitable candidates to apply for judicial appointments. I see no reason why the courts and judges should not play an part in this regard; on the contrary, I consider that the independence of the courts will be strengthened if they themselves are actively involved in the recruitment of judges. One important aspect in this connection is that attention is paid to efforts to promote gender equality in recruitment processes. Accordingly, the search for suitable candidates for judicial appointments should focus on encouraging both women and men to apply. If there is an a lack of gender balance at a court, in that most of the judges are men, in my opinion the court or head of the court should strive primarily to identify skilful and suitable women candidates for an appointment as judge. With respect to the appointment of chief judges at district courts and county administrative courts, it should be the responsibility of to take a more part in encouraging suitable candidates to seek appointment. Here too, gender equality considerations are naturally important. At present the proportion of chief judges at these courts who are women is very low. To achieve even representation of women and men among heads of courts, I think it is particularly important that attempts as far as possible to encourage women lawyers to apply for such appointments. should also more generally be actively involved in the search for suitable candidates. An open system of recruitment will be more demanding in terms of the basis for the positions taken by . Written remarks will generally need to be supplemented by oral information from those providing testimonials. Interviews should be a natural element in all cases. If the interviews are to serve their purpose properly, it is important that they be conducted in a professional . Interviews and references will need to be supplemented by aptitude and personality tests. The use of different types of tests and their design is a matter on which will have to take a precise position. The head of the court should take part in interviewing applicants. The head of the court should also have the right to participate in the deliberations leading up to the proposal from . The head of the court should, however, not be involved in the actual decision-making. As far as possible, the reasons given by for its decision should reflect the factors that have been crucial in deciding between the different candidates. The number of candidates proposed by should be limited to the number of appointments to be made (normally one). The Government should not be bound by the proposal of . No appeal should be possible against the proposal of in a case concerning a judicial appointment. A regulation on secrecy will be needed for the personality test used in connection with judicial appointments. A secrecy regulation should not, however, focus on such cases alone, but should be formulated in more general terms. A reversed requirement of damage, i.e. a presumption of secrecy, should be set. The secrecy must not infringe against informant protection. Regulation of which judges are permanent judges I consider that incorporating in the legislation more precise regulations to the effect that judges sitting in courts of appeal, administrative courts of appeal, district courts and county administrative courts must have permanent status should strengthen the constitutional position of judges. This provision should be taken up in the special Act on judicial appointments that I propose in my report. The judge and the organisation for preparing cases I consider that the existence an organisation for preparing cases that consists of well-qualified staff in various capacities plays a major part in making the judicial profession attractive. From the perspective of the judiciary and citizens in general it is also important that the organisation preparing cases meets exacting demands. In addition, in purely general terms, the availability at courts of staff who are able to relieve the judges of tasks that they do not necessarily need to take on themselves leads to increased efficiency and, not least, makes it possible to put the available economic resources to the best possible use. importantly, a competent organisation for preparing cases allows the judges to concentrate on the courts core activity, namely, judging. A development along these lines is conducive to high quality judging. I have come to the conclusion that the legal basis for narrowing the focus of the judges responsibilities must remain that given in Chapter 1, Section 3e and Chapter 2, Section 4 of the Swedish Code of Judicial Procedure and Sections 12 and 18 of the Administrative Court Act (1971:289). Under these provisions, measures that relate solely to the preparation of cases and that are not of a nature that they should be reserved for legally trained judges may be performed by other court officials who have sufficient knowledge and experience. Tasks performed by officials other than judges are the responsibility of the member of staff entrusted with them. In my opinion, each court is in the best position to assess the organisation for preparing cases at that particular court, taking into account local circumstances. The point of departure in the continued reforms should therefore be that the courts themselves as far as possible are entrusted to decide about their internal organisation and the distribution of tasks during the preparation of cases. I consider that court secretaries and clerks will continue to constitute the essential structure of the organisation for preparing cases at the district courts. At county administrative courts, in addition to secretaries and clerks, the case preparation organisation should also include permanently employed case preparation lawyers. At district courts there may also be tasks (for example, in more complicated cases) that should be performed by specially employed case preparation lawyers. To guarantee the availability of clerking positions, lawyers should not be employed to perform tasks that can equally well be carried out by clerks. Permanently employed reporting clerks should in future perform the case preparation at courts of appeal and administrative courts of appeal, which is now carried out by lawyers undergoing judicial training. A transition to a system in which case preparation tasks are managed by lawyers appointed specifically for this purpose should make for substantially increased continuity and stability in the case preparation organisations of courts of appeal and administrative courts of appeal, which in the longer term may also help enhance the quality of activities. One benefit of an extended period of service as reporting clerk is that it will allow scope for greater concentration and specialisation in different areas. If the only consideration guiding the recruitment of lawyers for reporting clerks duties is the personnel requirements of the courts of appeal and administrative courts of appeal, an additional advantage will be that the case preparation organisation at each court can be set up in the that is most appropriate and effective for that particular court. As regards the case preparation organisation at the highest instances, future needs will have to be provided for by recruiting lawyers who have not undergone judicial training. Training of newly appointed judges Special introduction and training programmes should be created for newly appointed judges. These programmes will need to be individually designed and adapted to the needs of the particular judge concerned. The head of the court should be responsible for ensuring that the training plan is drawn up and implemented. The plan should be set up as soon as possible after the appointment is made and should involve consultation with the newly appointed judge and the , which should be responsible for ensuring that it is possible to carry out the various parts of the training programme. The training plan should include a certain period of service as an adjunct judge at the court of appeal or administrative court of appeal. The court that has employed the newly appointed judge will have an important task in training him or her for judicial duties, and as at most workplaces, the main emphasis of training will be on the job work with the duties that the appointment entails. Collaborators, above all the other judges at the court, will have an important part to play. Further training and continuing professional development for permanent judges Alongside the need of the general public for competent judges, there is an interest in making substantial investments in training so as to enhance the attractiveness of the judicial profession. In my opinion, substantial gains can be expected from such investments in terms of the quality of the work of the courts and attractiveness of the judicial profession. Education and training has until now not been sufficiently extensive to satisfy the demands that need to be made. In future, efforts should be made to ensure greater coordination of the total needs of the court and a planned approach to the training actions needed both by individual judges and by the court overall. The head of the court should be responsible for continuous analysis of training needs at the court. The head of the court should also be responsible for ensuring that the judges undergo necessary further education and training and that in terms of the workload scope is provided for these measures. With respect to any needs that may arise for specialised education or training, it should be the court concerned that determines the measures that may be required, as it is the court and its judges that are most aware of local needs. should continue to administer and coordinate much of the education and training that is requested. The judges should have a decisive influence on the form and contents of educational and training measures. With regard to the training of judges, the existing training council should be able to give judges influence over these important issues. Pure education and training measures for judges should be organised so as to provide the maximum possible benefit for as many judges as possible. Training of case preparation personnel Personnel engaged in the case preparation organisation at the courts should be offered continuous, advanced further education and training. It should be possible to design essential parts of this training as a joint programme for reporting clerks from all courts of appeal and administrative courts of appeal, with more specialised sections for particular types of court. should administer the training of reporting clerks much as it does at present. Training of law clerks I consider that the law clerks training programme should be retained and that as many lawyers as possible should be given the opportunity to engage in advanced law clerk service. In terms of substance, I consider that a high standard should be maintained irrespective of where the training programme occurs or which judges serve as instructors. One point of departure for the training of law clerks should be that as their skills increase, law clerks should take on case preparation measures at their own responsibility. In order to enable a gradual extension of the duties and responsibilities assumed by law clerks, judges will have to take the time needed to train the clerks in the processing of cases and court business. Clarity, a good educational approach and general high quality in the treatment of law clerks will create conditions for an attractive programme for training law clerks; judges, meanwhile, in return for relatively limited efforts on their part, will obtain a legal service that will enable the judges work to concentrate on judicial responsibilities. To give as many lawyers as possible the opportunity to serve as law clerks, the training period should be shortened to one year and six months. This will create an annual scope for an additional 100 places as law clerk. Proceeding from the needs of the district courts and the county administrative courts for lawyers for case preparation purposes, a shortened programme for law clerks focusing primarily on legal tasks will have the same outcome as the present programme, in which the law clerks also perform other types of duties. I consider that law clerks should continue to have the opportunity to decide relatively simple cases in the course of their training. Broader opportunities should be available to combine law clerk training at a court with other advanced legal service. should have the task of considering other possible combinations. In addition to measures aimed at making law clerk training seem an attractive alternative, young lawyers also need to be made well aware of the substance and future value of the programme. The information activities begun by the National Courts Administration and the courts should therefore continue and be further developed. Court needs for occasional additional and substitute judges Already at the planning stage, the courts should be guaranteed an adequate number of judges to manage their activities. One necessary condition for this is that the organisational reform of the courts that has already begun is carried through. A change along these lines, leading to larger courts, should also help to make it possible for courts to solve problems involving substitute and additional judges (especially temporary problems) internally, thereby reducing the need for help from outside. In cases where the issue of additional judges cannot be solved internally, the need for further resources should be met in the first instance by judges agreeing voluntarily to serve at other courts. It should be possible to enlist the services of former permanent judges to meet temporary needs for additional judges. In the absence of a constitutional amendment, I reject the idea of solving the problem of the availability of additional judges by a more general practice of appointing judges to serve at more than one court. can any far-reaching obligation be imposed on a judge to serve at a court other than the one where he or she is employed. However, as a measure to solve a regional need for occasional additional judges, it should be possible to appoint a small number of judges who are authorised to sit in all the courts in the region. A similar solution should also be applicable for the sake of employing judges with specialist knowledge. The opportunities to combine professional life and parenthood opened up by modern working arrangements and technology should be made use of as far as possible. Changes at the courts, in working arrangements and other respects, should put women in a better position to compete with men. The grounds for assessing skill in connection with appointments should be formulated so as to prevent any disadvantage accruing to women and men who have been parents. One of the aims when recruiting judges and heads of courts should be to achieve a balance between men and women judges. The heads of courts and should be responsible for ensuring that these objectives are achieved. A reform of the system for recruiting judges should be seen in an extended time perspective and implemented so as to gradually take fuller and fuller effect. The first step should be to establish the new . I propose 1 January 2006 as the date for this step. In connection with this, the new grounds of assessment for judicial appointments should begin to apply. Marketing and information about the new system of recruitment and the judicial profession should be a priority once a decision on the change has been taken. As regards closing down the judicial training programme, I propose that this should be done by stopping accepting new trainees at a certain point. Those who have already been accepted to the programme by then should be allowed to complete the entire judicial training programme as it now stands. The terms of employment and tasks of those who are following the programme or have completed it must not be affected by the fact that no new trainees are being accepted. The question of when to stop accepting new trainees should be decided with reference to the various needs of the courts. The courts of appeal and administrative courts of appeal should be able to manage the transition to recruiting permanently employed lawyers for case preparation purposes without any very long delay. On my assessment, the effects of closing down the judicial training programme will not be felt by the Supreme Court and Supreme Administrative Court until at least four years after the programme stops accepting new trainees. This will give these courts sufficient time to establish routines for recruiting reporting clerks in future. In the event of a discontinuation of the judicial training programme, reporting clerks will not be available for judicial duties at district courts and county administrative courts, nor will acting associate judges of appeal be available to act as judges in courts of appeal and administrative courts of appeal. A transitional period of 1-3 years should suffice before the resulting loss of resources for judicial work can be compensated by permanent judges taking over judicial duties and by other measures. Turning to employers outside the courts system who for many years have recruited lawyers with judicial training, my assessment is that a four-year transitional period will give them enough time to find ways of employing lawyers with other backgrounds. I propose that no more trainees be admitted to the judicial training programme after 1 January 2006. Consequences of my proposals The greater continuity and effectiveness resulting from permanently employed personnel should be able to provide full compensation for the increased costs that my proposals will entail for case preparation organisations at the Supreme Court, the Supreme Administrative Court, the courts of appeal and administrative courts of appeal.