Abstract
Abstract Performance assessments have become commonplace in management, even in the public sector. With the increasing pressure on courts to perform while making efficient use of resources, performance assessments in the justice system are also gaining in importance. However, the need for judicial independence poses special challenges for performance assessments in courts. Against this background, this article conducts a constitutional appraisal, and contrasts the need for judicial independence with the principles governing effectiveness and efficiency, self-government and supervision, and appointment and re-appointment. A duty to guarantee justice can be derived from this that does not in principle exclude the performance assessment of judges, but even renders it essential, subject to compliance with certain requirements. In these circumstances, it seems hardly surprising that numerous countries conduct performance assessments of judges and also that various international institutions have developed principles for this purpose, a summary of which is presented – in Switzerland’s case based on a recently conducted survey. In the field of conflict between the guaranteeing justice and protecting the judiciary, the following key questions arise in particular: What is the purpose of performance assessments and what are the consequences? What is subjected to a performance assessment and what are the assessment criteria? How is performance recorded as the basis for the performance assessment? Who is subjected to a performance assessment, and must a distinction be made between judges in higher and lower courts? Who carries out the performance assessment and what methods of protecting one’s rights are available? Who should receive the results of the performance assessment? The contribution sketches out possible answers to these key questions and aims to encourage academics and practitioners to give further consideration to this subject.
Highlights
Courts have recently found themselves under an increased pressure to perform, and there are several reasons for this: the workload is rising, whereas the available resources are limited.[2]
Preliminary Conclusion Constitutional law offers certain principles that underline the appropriateness of performance assessments of judicial activity: judicial performance is an element of effectiveness and efficiency, the subject matter of self-government, supervision and oversight, and a criterion in appointments, re-appointments and dismissals or disciplinary proceedings
Judicial independence above all other factors is meant to allow courts and judges to perform their duties without performance targets that directly influence judicial activity
Summary
Courts have recently found themselves under an increased pressure to perform, and there are several reasons for this: the workload is rising, whereas the available resources are limited.[2]. In particular the performance of judges is singled out as an issue This has been a topic of discussion in Switzerland for some time[10] and was recently the subject of an international conference of the Swiss Judges’ Association (Schweizerische Vereinigung der Richterinnen und Richter, SVR)[11]. The importance and current relevance of the topic was underlined by a recent decision not to re-appoint a supreme court judge due to perceived shortcomings in his working methods and organisation.[12] In the canton of Lucerne, a change to cantonal law has given rise to a debate on the principles for deciding who should be appointed as a judge.[13] The canton of Geneva’s new constitution even contains the following regulation: ‘Before each appointment to the judiciary, the Magistrates Supervisory Council shall evaluate the qualifications of the candidates. Stadelmann, ‘Überlegungen zur Wahl und Wiederwahl von Richterinnen und Richtern, Kritische Anmerkungen anlässlich eines Gesetzgebungsprojekts im Kanton Luzern‘, 2014 Richterzeitung, no. 3 ( (last visited 20 October 2014)). 14 Art. 127 Constitution of the Republic and Canton of Geneva of 14 October 2012 (KV-GE, SR 131.234)
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