Multiannual dynamic indicators for human resources management planning in judicial system

Author:Teodor Victor Alistar
Position:PhD, Associate professor
Pages:39-46
SUMMARY

Romanian Judicial system is often affected by legislative changes and external factors weighing upon its capacity to deliver justice as a public service. Prognosis is a key factor to determine the mid-term strategy of human resources given the natural internal dynamics and standard external factors. These are comprised in a list of specific influencing factors as well as quantification formulas to assess and use them. Their conjunction is reflected in DPF (Dynamic Ponderation Factor) for planning in judiciary.

 
CONTENT
Multiannual dynamic indicators for human... 39
MULTIANNUAL DYNAMIC INDICATORS
FOR HUMAN RESOURCES MANAGEMENT PLANNING
IN JUDICIAL SYSTEM
Associate professor Teodor Victor ALISTAR, PhD1
ABSTRACT
Romanian Judicial system is often affected by legislative changes and external factors weighing
upon its capacity to deliver justice as a public service. Prognosis is a key factor to determine the mid-term
strategy of human resources given the natural internal dynamics and standard external factors. These
are comprised in a list of specific influencing factors as well as quantification formulas to assess and use
them. Their conjunction is reflected in DPF (Dynamic Ponderation Factor) for planning in judiciary.
Keywords: judiciary, influencing factors, indicators, management of human resources, statistic
indicators
Chapter 1: General aspects concerning efficiency of personnel policies in the
judiciary and current developments
The judiciary is one of the powers in a State and therefore it should be
analysed in light of both its role and its capacity to ensure and manage resources.
The principles used to evaluate public services cannot be directly applied here
(except for the delivery indicators), as the KPI (key performance indicators) cannot
be used to estimate the judiciary’s constitutional role as they are used for the other
public services.
The international norms and standards set out coordination framework
[Cocosatu, M. 2016] for national developments with respect of fundamental principles
of law. Common base ensures on one hand common grounds for democratic standards
and role of law, and on the other hand capacity of international legal cooperation.
The factors influencing the ability of the judiciary to fulfil its mission are
internal factors regarding the planning of resources, and external factors regarding
the dynamics of legal regulations and conflicts.
The delivery indicators should always be defined in such a way as to avoid
any alteration of the role justice plays in society. For instance, the speed in solving
cases, when used as indicator, should take into account the balance between two
1 National University of Political Studies and Public Administration, Faculty of Public Administration
E-mail: victor.alistar@yahoo.com
Law Review vol. III, Special issue 2017, pp. 39-46
40 TEODOR VICTOR ALISTAR
risks: a) the risk of a lengthy solving of a case, which would void the law of its
efficient application, and b) the risk of a too short solving of a case, which might
lead to a superficial judgement.
In our opinion, the indicators used to estimate the efficiency of the judicial
authorities should not be financially quantified, as in the case of the classic public
services, as the concept of investment recovery cannot be applied here. In this
respect it is important to underline the general context of professional skills in
Romanian public sector [Carausan, M. 2010].
The aim of justice is to ensure social organization from the point of view of stable
judicial rules, irrespective of the sector – public or private. Therefore, it would be
wrong to estimate the financial resources against investment recovery, considering
the role of justice as fundamental component of the social establishment.
The Romanian judiciary has four degrees of jurisdiction, which are, from the
lowest to the highest: district courts, tribunals/county courts, Courts of Appeal
and the Supreme Court, with hierarchical role of judicial control. The prosecutors’
offices are symmetrically organized beside these courts.
Chapter 2: Design and management of magistrates career as a tool for
enabling proper capacity of judiciary
The ability of the judiciary to meet optimum standards in public service
exercise [Barac, L. 2009] (for example: duration of trials, quality of procedure
application or access to justice) or to fulfil its role of ensuring the stability of laws
(for instance: unitary practice, quality and clarity of decisions or non-selective
approach) is determined by several categories of factors of influence:
1. Internal factors: personnel management that allots resources according to the
needs;
2. External factors: changes of the regulations governing the solving
competences or changes of the rights and liberties, able to generate legal conflicts
(for example, the properties retrocession laws, the pensions and social benefits
laws, or the regulations regarding administrative jurisdictions, whose decisions are
censured by courts).
Capacity
criterion
Internal
factors Remedies External
factors Remedies
1. Duration of
trials
Lack of
sufficient
personnel in
some courts
Forward
looking
planning of the
pyramidal
career (A)
Le
g
islative
changes
regarding
procedure
Includin
g
in the
ex-ante evaluation
the criterion of
quantitative impact
on the degrees of
jurisdiction2
2 A similar mechanism exists in the Republic of Moldova, but concerning the legal risk of
generating corruption. Romania should complete the methodology necessary to draw up the public
policy file accompanying the regulations.
Multiannual dynamic indicators for human... 41
2. Quality and
predictability
of decisions
Lack of
consequences
for the wrong
or incomplete
decisions
Introducing in
the
professional
evaluation
criteria the
annulments to
be imputed as
errors of
judgement (B)
Over-
specialisation
of legal
conflicts and
emergence of
new
technological
approaches
Specialisation of
courts and extended
promotion term,
seniority principle
3. Non-unitary
practice
generating
litigations
during the
appeal phases
Approaching
independence
as arbitrary
right of
decision
Introducing in
the
professional
evaluation
criteria the
annulments to
be imputed as
errors of
judgement (C)
Unclear or
contradictory
legislation
Increased ability of
the Supreme Court
to issue decisions
with interpretation
and guidance role3
4. Over-
burdening
magistrates
with cases
Unidentified Unidentified Laws
generating
huge
numbers of
litigations4
Introducing pilot
decisions of the
courts5
It is therefore only natural that the design of the career steps and the mobility
within the system should answer the factors of influence, allowing the judiciary to
accomplish its social role. The career structure in the Romanian judiciary is a
pyramidal one with hierarchical organization of the degrees of jurisdiction, but it
has certain peculiarities with unpredictable effects on the equity, balance and
predictability, both of the individuals and the system as a whole.
We shall limit our analysis to measure (A) of remedy, pertaining to the ability
of the judiciary to promptly answer challenges 1, 2 and 4 in the table above.
A strict management of the judiciary’s capacity to fulfil its mission should start
with a right allocation of the resources to the different degrees of jurisdiction,
according to objective criteria. In Romania, the Higher Magistracy Council
operates with the following objective factors:
3 This provision is included in the civil procedure, but its application is limited and inefficient
and cannot be applied in the penal procedure.
4 The laws regarding the property retrocession required the courts intervention in order to certify
the right of property, and the laws regarding pensions required the courts intervention to annul the
unlawful application of the legal provisions by the administrative bodies.
5 The pilot decisions of the ECHR could be models for the cases where there are several similar
litigations. An example is that of the work conflicts in an oil company, when the employees demanded
pay rights in over 10,000 individual trails; other examples are the over 18,000 cases of litigations in a 12
months period concerning banks and their clients, regarding similar contract clauses.
42 TEODOR VICTOR ALISTAR
Existing factor Existing indicator Proposed intervention tool
Optimum number
of cases
Court average number of
cases/judge in given courts vs.
national average no of
cases/judge
Dynamic of recruitments,
dynamic of promotions, time
frame per career step
Understaff grade Number of vacancies Order of career steps, direct
recruitment from other legal
professions
Career path in Romanian judiciary6
6 This career steps are regulated in law 303/2004 regarding status of judges and prosecutors into
force in November 2017.
Recruitments
through National
Magistracy
Institute [1]
Direct
recruitments of 5
years experience -
senior legal
fi l[2]
First level of
jurisdiction DISTRICT
COURTS
Effective
promotion to
upper level of
Promotion in
grade without
mobility [3]
After 5 years (including
two from Magistracy
Institute) a magistrate
Effective
promotion to
upper level of
Promotion in
grade without
mobility [3]
Second level of
jurisdiction COUNTY
COURTS/
TRIBUNALS
Effective
promotion to
upper level of
Third level of
jurisdiction COURTS
OF APPEAL
Highest level of
jurisdiction SUPREME
Early retirement after 20 years of service [5] and vocational retirement after 25 years of service [6]
ih f
hllf dih lii
Irre
g
ular career
L
inear career
Multiannual dynamic indicators for human... 43
As far as the career steps are concerned, they have good or bad effects,
according to the time and manner they occur. The statistical data regarding the
evolution of human resources and the system needs showed that, during a ten
years period (2007-2017), disturbances appeared in the system due to the lack of
coordination or the lack of strategic use of these career tools.
Career step Positive impact Negative impact Remedies and
recommendations
[1]
Magistracy
Institute
recruitment
Assures the early
selection of best talents
It is a lengthy
mechanism (2 years)
till the use of the
resource. Low level of
life experience.
Complementary
judicial practice in
related professions
[2] Direct
recruitment
Assures the immediate
use of the resource,
brings seniority into
the judiciary, as well as
trans-judicial abilities.
Not identified for the
system
Equal share (50-50%)
for entrances into the
system
[3]
Promotion
on the spot
Financially motivates
the human resource.
Assures seniority and
increased experience
for the level of
jurisdiction.
Undermines the
selection basis for the
necessary human
resource for higher
levels of jurisdiction.
Leads to
discriminations
among judges of the
same court.
Renounce this career
tool pending the
recommendations for
step [4] or condition
the next step on good
performance in the
acquired step during
maximum 2 years.
[4] Effective
promotion
Assures predictability
and regularity of career
within the system.
Generates continuous
flow and balance
between new entries
into the system and
retirements.
Depletion of lower
cours of human
resource, at a faster
pace than the
Magistracy Institute
ability to prepare
people.
Extend the promotion
term to minimum 6
years from the time a
judge is appointed, for
each level of
jurisdiction.
[5] Early
retirement
Not identified for the
system.
Creates positive
discrimination
compared to the other
categories.
Renounce this means
of exiting the system.
[6]
Vocational
retirement
Offers an incentive to
recruit talents due to
vocational benefits.
Greatly reduces the
principle of seniority
and entices
experienced
magistrates to leave
higher levels.
Introduce the
condition of minimum
age (60 years)
44 TEODOR VICTOR ALISTAR
The following highlights are valid theoretically and proven by practice in the
Romanian judiciary7:
The minimum age for becoming full judge is 24 (including the 2 years at the
National Magistracy Institute);
The minimum age for becoming judge at the High Court of Cassation and
Justice is 38 years;
The minimum age for early retirement with 90% of the vocational pension
is 42 years (including the 2 years at the National Magistracy Institute);
The minimum age for retirement with full vocational pension (frequently
higher than the last salary) is 47 years (including the 2 years at the National Magistracy
Institute).
These elements, plus the practice of promotion up to the maximum professional
level, without mobility in the career are internal factors significantly influencing the
capacity of personnel management within the judiciary.
The table below, showing the evolution of personnel management decisions in
the last four years concerning the promotion of judges from district and county courts
to higher courts, supports the recommendations for the career steps [3] and [4]:
Carer and
mobilit
y
Effective promotion Promotion in
rade without
mobilit
y
Year Court
level
Advertised
p
ositions
Occupied
p
ositions Balance Advertised
p
ositions
Occupied
p
ositions Balance
2014 Total 96 80 -16 00 0
Tribunals 81 57 -24 -- -
Court of a
pp
ea
l
15 23 +8 -- -
2015 Total 81 103 +22 164 164 0
Tribunals 63 73 +10 103 103 0
Court of a
pp
ea
l
18 30 +12 61 61 0
2016 Total 81 110 +29 150 160 +10
Tribunals 58 77 +19 100 108 +8
Court of a
pp
ea
l
23 33 +10 50 52 +2
2017 Total 259 218 -
4
1300 218 -82
Tribunals 187 148 -39 200 148 -52
Court of a
pp
ea
l
72 70 -2 100 70 -30
Data source: 2014, 2015, 2016, and preliminary 2017 reports of the Higher Magistracy C ouncil on the
state of justice www.csm1909.ro
As the data show, the ability to efficiently manage the necessary human
resource is affected by discontinuities and the disproportion among the career tools.
In 2017 there is a deficit of positions for the intermediary levels of jurisdiction, that
7 Mention should be made that this article used the provisions of Law 303/2004 regarding the
statutes of judges and prosecutors still in force (November 2017), as the modifications meant to correct
the errors concerning the personnel policy within the judiciary, put forward by the Government, have
not been yet adopted by the Parliament.
Multiannual dynamic indicators for human... 45
was not covered by either the valorisation of the degrees obtained in previous
years or by effective promotion.
There are two main career tools defined by law and able to adjust the imbalances
within the system:
a) The existence of a system of reserve positions, at the Ministry of Justice
disposal and managed by the Higher Magistracy Council, to be used to cover the
needs of transfer or appointment, when several magistrates meet the promotion
requirements (Example of use in 2014).8
b) The possibility to promote from a lower to a higher level of jurisdiction, but
without effective appointment to the higher court. This career tool can be used to
motivate judges with higher salaries, but it could have negative effect on the
system, as it breaks the predictable flow of personnel on levels of jurisdiction. This
is one of the reasons why the linear system of career is avoided, which affects the
multiannual dynamic planning of human resources for courts.
The process elements needed to reach the strategic goal of ensuring the
necessary number of judges and prosecutors in view of optimum functioning of
courts and prosecutors’ offices [Superior Council of Magistracy The Strategy
concerning human resources for the judiciary 2010-2015] required a set of integrated
measures, that had not been taken in the process of planning the necessary
resources and its dynamics monitoring.
Chapter 4: Conclusions and recommendations
For the development of a set of indicators it is important to determine predictable
impact for each use of personnel tools with clear quantitative formula as compared to
the other tools. The optimum planning process needs to start gradually with external
factors of influence, internal factors of influence, reducing gaps through other
personnel tools resulting into final estimation of each intervention’s instruments.
8 Law 304/2004 for judiciary organisation Article 1341 provides reserves of budgeted positions to
be allocated according to concrete needs. For 2017 the total number of positions available was
approximately 130 positions.
46 TEODOR VICTOR ALISTAR
Besides the fact that any career tool should be used after an ex-ante analysis as
the one shown above, some concrete adjustments are needed in order to ensure the
management capacity of the judiciary:
1. Increase the ability to resist the influence of the external factors:
Include in the ex-ante evaluation the criterion of quantitative impact on the
levels of jurisdiction;
Assure specialisation of courts and extend the promotion term;
Introduce pilot decisions of courts.
2. Increase the ability to resist the influence of the internal factors:
Increase seniority within the courts by extending the promotion term to
minimum 6 years for each level of jurisdiction, from the time of appointment as
full judge;
Use in equal share of the two mechanisms to enter the system, for a better
flexibility of the personnel policy from the very beginning;
Renounce the mechanism of promotion on a higher position, granting
instead the degree equivalent to a higher level of jurisdiction, without occupying
de facto a position in that higher court.
BIBLIOGRAPHY
Revised strategy for the management of human resources for the judiciary, Superior
Council of Magistracy 2010
Law no. 303/2004 on the statute of judges and prosecutors, republished,
with subsequent amendments https://www.csm1909.ro/ChooseFile.aspx?Guid=
6ed8b1d2-a779-4bd3-829c-41b8521f008a%7CInfoCSM
Law no. 304/2004 on judicial organization, republished, as amended and
supplemented https://www.csm1909.ro/ChooseFile.aspx?Guid=5b849d4d-e7f9-4d18-
892c-512c2314d185%7CInfoCSM
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1ddaaf2047e8%7CInfoCSM
Barac, Lidia. Management judiciar, Editura Hamangiu 2009
Improving the efficiency and quality of the judicial system, focusing on a balanced
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Carausan, Mihaela The crisis of professional qualifications. Case study – Romania,
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