Dr Erik Kerševan
Judge of the Supreme Court of the Republic of Slovenia
1. Introduction
Every judicial system tries to find appropriate solutions to the challenges it faces, which means that in many Member States of the European Union, the paths are different, but the goal is the same: a well-functioning judiciary and motivated, competent and responsible judges who perform their work in the best possible way and in the best interests of the state and the parties to the dispute. This presentation will introduce the system of evaluation of judges in Slovenia, which is only a fragment of the judicial system. This means that it must be seen in a wider context and that, unfortunately, many relevant points may be missing from the picture. Nevertheless, I will try to present it from the perspective of practice and my experience as a former member and president of the Judicial Council in Slovenia as well as from a purely normative point of view, as determined by the relevant laws and statutes.
It is well known that in the European Union, there is no obligation to establish a system of evaluation of the work of judges and that many Member States do not know it as such or even consider it incompatible with their constitutional legal order. If such a system is established, there are conditions and standards set by international bodies that these national systems must follow. These include the Minimum Standards for the Evaluation of Professional Performance and Irremovability of Members of the Judiciary (2013 and 2019) elaborated by the European Network of Councils for the Judiciary (ENCJ) and Opinion No. 17 (2014) on the Evaluation of Judges’ Work, the Quality of Justice and Respect for Judicial Independence of the Consultative Council of European Judges at the Council of Europe (CCJE). It is not the purpose of this contribution to evaluate the various features of the Slovenian evaluation system in light of these criteria, so it is sufficient to say that the Judicial Council and other bodies dealing with these issues within the judiciary have been aware of these aspects and have endeavoured to follow them in their practice.
2. Main reasons for the formal evaluation system in Slovenia
In Slovenia, there is a formalised system for evaluating the work of judges, which has both a formal legal framework and legally determined consequences in terms of promoting and sanctioning the work of individual judges. This system is rather complex and is based on various criteria and procedures that should enable it to function in an objective and predictable way, which should give credibility to its existence and results.
It is difficult to give a comprehensive explanation as to why this system of formal evaluation has been established and maintained in the Slovenian legal and judicial system for decades. Many factors may significantly influence it, such as tradition, the management of a large number of judges, and the establishment of a complex career system within the judiciary.
First of all, in the Slovenian tradition, there has always been the conviction that a formalised system of evaluation of work in the public sector should enable an objective ‘measurement’ of individual results, which should form the basis of a career for civil servants, judges and other public sector employees. Various examples of other evaluation systems in the public sector have shown that the work of some employed persons (e.g. state civil servants) has obviously not been evaluated in an objective manner. The latest official government report published by the Ministry of Public Administration shows that in 2022,[1] 85.8% of all civil servants in the state administration received the grade ‘excellent’ (i.e. 5/5) and 11.9% received the grade ‘very good’ (i.e. 4/5), i.e. 97.7% of civil servants performed above average according to their evaluation system. If we compare this with the data on the evaluation of the work of judges in 2022 from the official report of the Supreme Court, the judges evaluated in that year (268 of them) were found to ‘meet the conditions for regular promotion’ (meaning 3/5) in 57% of cases and to ‘meet the conditions for faster promotion’ (meaning 4/5) in 41% of cases, while the highest grade of ‘meet the conditions for exceptional promotion to a higher judicial position’ was not given to anyone.[2] This shows that the evaluation system for judges has a high degree of credibility in that it represents a relatively reasonable distribution of grades. The discussion could of course go on, but let us stop here.
Second, as the recent discussions on the legislative reform of the judiciary (which have been going on for a number of years) have clearly shown, it is politically untenable to abolish the evaluation system for judges. Interestingly, this idea has met with considerable resistance within the judiciary itself. This is probably because the current formal evaluation enables the majority of judges to achieve their career goals, so they currently see the trade-off between the need to have their work periodically evaluated and the possibility of increasing their pay and position as positive.
The next reason for the existence of a formal evaluation system is related to the management of a relatively large number of judges (853 in 2024).[3] With a large number of employees, it is often necessary to have a predictable and standardised system for evaluating their work, and the evaluation system for judges in our judicial system is and can be seen as a response to this fact. In Slovenia, we have traditionally had judges working in a rather dispersed network in a number of small courts of first instance across the whole territory of the country, so the number of judges has increased as a result. The second reason for the relatively large number of judges is the fact that judges in Slovenia traditionally perform tasks that in many other systems are assigned to counsellors, notaries and civil servants employed by the courts. A judicial system with many hundreds of employees, which in practice has to be managed within a formal framework, often resorts to formalising the procedures and criteria for evaluating the work of its employees. Slovenia is no exception in this respect.
In addition to the large number of judges, there is a rather complex system of promotion (career system), which depends on the evaluation system of the judges’ work. If a candidate enters a career system at the lower levels of the judicial hierarchy and has the possibility of achieving both a higher salary grade and a higher position within this judicial system, the formation of a formalised evaluation system is a logical consequence that attempts to objectify the application of criteria and the reliability of merit-based employment.
It is important to clarify that the managerial positions within the judiciary, meaning vice presidents and presidents of courts, are not considered to be a part of the judicial career mentioned above. There is no promotion to these positions; they are appointed by the Council of the Judiciary through a public selection procedure (concours) from among the qualified persons who apply for these positions.[4]
3. Legal framework for the evaluation of (the work of) judges
Both the criteria for the selection and promotion of judges and the procedure for the evaluation of judicial performance are determined by the Judicial Service Act, the Act on the Judicial Council and subsequent regulations, which are mainly adopted by the Judicial Council. It is considered incompatible with the principle of independence of the judiciary that any important aspect of the judicial career be regulated by the executive, i.e. the government and the Minister of Justice.
The body that has the main or at least a very important part of the competence to evaluate the work of judges is the Judicial Council, which has been briefly mentioned above. It is a constitutional body (Article 131 of the Constitution of the Republic of Slovenia). According to the Judicial Council Act, the Judicial Council is ‘an autonomous and independent state body, which performs the tasks established by law, ensures the independence and autonomy of the judiciary and ensures the quality of the work of courts and judges and the public image of the judiciary’ (Art. 2). The Judicial Council is composed of eleven members. Five of them are elected by Parliament, on a proposal from the President of the Republic, and from among eminent lawyers, professors of law, advocates and other legal professionals. The other six are elected by the judges themselves, taking into account all levels of the judiciary. It is important to note that the Judicial Council makes the most important decisions with a two-thirds majority of all its members, i.e. the recruitment of judges, exceptional promotion possibilities, termination of judicial service and similar decisions require eight votes of the members of the Judicial Council to be adopted (Art. 29 of the Act on the Judicial Council). This means that even if judges have a majority in this body, it is always necessary to convince other members of the Council to support a certain important decision for it to be adopted. From practical and direct experience, I must stress that the work and the decision-making in the Council have never been divided along the lines of different categories of members of the Judicial Council (e.g. judges versus non-judges) but have been based on arguments and serious discussions.
With regard to the regulation of the evaluation of the work of judges in the Judicial Service Act, it is interesting to note first of all that the criteria to be taken into account are, in the Act, formulated in the same way as those to be applied in the recruitment procedure, e.g. when the Judicial Council selects the best candidate(s) for the judicial office. This is also logical in view of the fact that it is possible to enter the judicial office (and career) in a higher level court (Supreme Court not excluded) if those from other legal professions (attorneys, prosecutors, etc.) are selected as the best candidates, even when competing with judges from lower level courts who want to be promoted to a higher level court.
The idea and the main purpose of the legal framework is to establish objective criteria on which all judges can rely when their professional performance is evaluated by the competent bodies. The criteria established by the Judicial Service Act are professional ability and competence, personal qualities, social skills, and the ability to perform the duties of a managerial post if a judge is appointed to such a post (Art. 32). These criteria are set out in the law only in general terms, and it is up to the Judicial Council to specify the criteria for evaluating the work of judges.
The Judicial Council did so in 2017 by adopting a special regulation entitled ‘Criteria for the quality of the work of judges, for the evaluation of the judicial service’. It regulates not only the detailed criteria but also the procedure for the evaluation. It goes into considerable detail about what is to be determined in relation to the professional skills and expertise of a judge, the judge’s personal qualities and other criteria established by law.
An important fact should be mentioned at this point: regardless of the detail and complexity of the above-mentioned criteria, in practice, the result of the evaluation of judges is not very long, usually only a few pages. The application of these criteria in practice produces general and brief descriptions (of the quality) of the work and the achievements of the judge in question as well as statistical data collected in relation to the judge’s efficiency, in particular with regard to the time taken to resolve cases, the time taken to draft the written decision, and the success rate of appeals against the judge’s decisions.
4. The evaluation procedure
The evaluation of the work of judges is carried out in accordance with the Judicial Service Act periodically every three years until the end of the judicial service of an individual judge (Art. 31). This is independent of the question of whether the judge can be promoted to a higher pay grade or position, so even those (senior) judges who cannot reach a higher grade or position can be evaluated.[5] Exceptionally, a judge’s work may be evaluated at the request of the Judicial Council, the president of the court or higher court, the Minister of Justice or the judge themselves. Exceptional evaluation of a judge’s work is rather rare and is usually based on special circumstances. The evaluation system also includes a ‘hidden’ probationary period for new judges, since the Judicial Service Act requires that the evaluation of a judge’s performance be carried out annually during the first three years of a judge’s judicial service. If one of these evaluations shows that the judge is unfit for judicial service, their position is terminated by the Judicial Council. As far as I know, there have not been any such negative cases for a number of years, and the reasons for this could be various. However, very good candidates have been selected for judicial positions (usually from quite a large number of applicants), so a negative evaluation in itself would be really surprising.
It is also very important to present the bodies responsible for setting the evaluation grades and applying the criteria prescribed by the Judicial Service Act and the statutes of the Judicial Council. First of all, the opinion of the president of the court in which the judge sits is very important, as it is always the basis for the subsequent determination of the judge’s work evaluation. The bodies that actually determine the evaluation grades are established in accordance with the Courts Act and are called personnel councils. According to the law, the personnel councils are composed of the president of the court and a number of members elected by the judges themselves from among judges serving at the same level of courts (presently four to six per council, elected for four years). These members are not exempt from their judicial work, so this is a position that has to be performed in addition to the rest of their duties (often quite late after hours).[6]
The personnel councils of the higher courts (courts of appeal, Supreme Court) are responsible for determining the performance evaluation of the judges of the lower courts. This means that the (four) Personnel Councils of the Higher Courts[7] have to bear the greatest burden in the evaluation system, as they are responsible for evaluating the work of judges of first instance. In this context, it is also important to emphasise that the members of the Supreme Court Personnel Council are composed of the President of the Supreme Court and members elected by the Supreme Court judges. This means that the first-instance judges have no influence on the composition of these Personnel Councils. Similarly, it is the Personnel Council of the Supreme Court that evaluates the work of the judges of the higher courts (or of the Supreme Court, if the occasion arises). One important solution established by the Courts Act is that a judge has the right to appeal the decision on their evaluation, adopted by the personnel council of the higher court. This appeal is then decided by the Personnel Council of the Supreme Court. However, there is no further judicial review of a judge’s performance evaluation. However, judicial review is possible in cases where a judge’s evaluation would lead to negative decisions regarding their career, which would be made by the competent bodies, in particular the Judicial Council (refusal of promotion, termination of judicial service, etc.).
In accordance with the Judicial Service Act, the personnel councils can give several grades based on the evaluation of the work performed by the individual judge in the evaluation period, which is, as mentioned, generally three years (Art. 32). The personnel council may determine that the judge is unsuitable for the judicial service, that the judge does not fulfil the conditions for promotion, that the judge fulfils the conditions for promotion or accelerated promotion and, in exceptional cases, that the judge fulfils the conditions for exceptional promotion to a higher judicial position. If the assessment of the judge’s unsuitability for judicial service becomes final, the judge’s judicial service is terminated. Other grades lead to various possibilities for promotion, in either pay grade or position within the judicial system. Decisions on termination of judicial service or promotion to higher positions are made, as mentioned above, by the Judicial Council and may be subject to judicial review by the Supreme Court. The Judicial Council in the exercise of its competencies does not necessarily follow the grades determined by the personnel council since by law it is not bound by them. If the Judicial Council decides not to accept a given grade as a basis for its decision (refuses to promote a judge etc.), this must be clearly stated and explained in the Judicial Council’s decision.
As shown above, in practice, most of the judges’ evaluations are ‘middle’ evaluations (the judge meets the conditions for promotion). The higher ratings (the judge fulfils the conditions for accelerated or even exceptional promotion) are closely scrutinised by both the personnel councils and the Judicial Council when it decides on the promotion possibilities of the judge concerned. A verdict of unsuitability for judicial service is very rare (but not unheard of) and must be specifically confirmed by the Judicial Council in order to become final and have the effect of dismissal. To date, neither the Supreme Court nor the Constitutional Court has ruled that this consequence is not in accordance with the Constitution.
5. Analysis, conclusions and observations
The system of evaluating the work of judges in Slovenia has several positive aspects. One of them is certainly its transparency, in the sense that each individual judge can reasonably expect that their work (and other achievements) will be periodically evaluated every three years on the basis of criteria established by law and in a legally regulated procedure, in which independent bodies perform their own tasks on the basis of evaluation of merit and not on the basis of other (e.g. political) criteria. This is very important in view of the fact that in Slovenia, there is a career system within the judiciary, and every judge is keen to make use of their opportunities. Another positive aspect from a management point of view is that there is a general overview of the capacities and qualities of judges working in the Republic of Slovenia in each court, at each court level and in each area of specialisation.[8] On the basis of the evaluation results, it is also possible for the presidents of courts and the Judicial Council to examine and determine the possibilities of positive and negative measures necessary for the improvement of the system as a whole. This is, of course, possible as long as the evaluation system is truly representative and reflects the actual performance of individual judges on the basis of their merits and does not deviate into a system based on other incompatible (or even irrational) reasons or criteria, especially those of camaraderie and/or social sensibilities.
On the other hand, there are some negative aspects of the current evaluation system, which have been the focus of discussions within the Judicial Council as well as with presidents of courts and relevant ministers in recent years. First, from a systemic point of view, the system is overburdened by mass periodic evaluation procedures, which therefore take up a lot of the active time of judges serving on personnel councils, court presidents and the Judicial Council. This overburdening leads to generalised evaluations without the necessary focus on the individual achievements and qualities (or deficiencies) of an individual judge’s work. The Judicial Council has therefore proposed that the reform legislation should extend the evaluation period to six years and that special attention and focus should be given only to exceptionally good or bad cases of judicial performance. In my opinion, it would be best to seriously analyse and discuss whether it is really necessary to maintain such an elaborate career system for judges. I believe that it is incompatible with the dignity of the judicial function that an individual judge should be forced to strive for a higher salary or a better position by means of a periodic and general evaluation of their work, just to ensure reasonable and adequate remuneration. It would be better to abolish the (horizontal) promotion in pay grades and to have only a simple system of evaluation of judicial service for those judges who wish to advance in their careers (to a higher court etc.). The evaluation system should remain in place mainly to carry out requested evaluations of judicial performance in cases where the relevant president deems it necessary to initiate an individual evaluation to provide both the judge and the president with objective but detailed feedback on the evaluation of the judge’s work. In such cases, it might be appropriate to continue to have an individual judge’s performance evaluated in a formal procedure.
This would solve the second problem with the current system. Due to the short and general determination of the evaluation grade, an individual judge doesn’t (always) receive the necessary feedback on their work and the necessary improvements because both the overburdening of the evaluation bodies and the system of appeals motivate bodies to write short, merely factual statements without further insights or elaborations and without subjective (but often helpful) assessments of personal characteristics, social skills and other criteria that cannot be measured in numbers. Unfortunately, as many of the criteria for judging are difficult to express in measurable terms, there is a tendency to use and repeat only general phrases in the evaluation of judges’ work, which only vaguely describes the adequacy of an individual judge in this respect. This, of course, does not give the judge the opportunity to have an in-depth view of how the bodies responsible for the evaluation view their achievements and results, nor of the other aspects of the performance of their judicial service. It does not give the judge a clear picture of what needs to be improved, other than, to put it bluntly, statistical data.
As we can see, there are many facets to the evaluation system in Slovenia and therefore many views on how it works. There is certainly room for improvement, but to be honest, many other systems could be worse, so it is quite comforting to be recognised as such. The reforms are still planned by the current government, so let’s hope for the best.
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[1] ‘Poročilo o ocenjevanju delovne uspešnosti za leto 2022 in napredovanju v letu 2023 v organih državne uprave’, Ministrstvo za javno upravo Republike Slovenije (Report on the assessment of work performance for 2022 and promotion in 2023 in state administration bodies, Ministry of Public Administration of the Republic of Slovenia). A more comprehensive official analysis of public employees career system from 2019 by the same Ministry shows even more incomprehensible disparities. ‘Analiza kariernega napredovanja javnih uslužbencev, december 2019’ (Analysis of career progression of civil servants, December 2019).
[2] ‘Letno poročilo o učinkovitosti in uspešnosti sodišč 2022’, Vrhovno sodišče Republike Slovenije (Annual Report on the Efficiency and Effectiveness of the Courts 2022, Supreme Court of the Republic of Slovenia).
[3] The number of judges is being slowly reduced from 2012 onwards, but it is not without legislative changes of judicial competence and/or the domestic network of courts that there could be a serious change. In the presented view – shared by many – this would be necessary and adequate, but the judges themselves have limited influence on these (political) issues.
[4] According to Art. 62.a of the Courts Act, the presidents (and corresponding vice-presidents) of the courts are appointed by the Judicial Council after receiving (non-binding) opinions on the candidates from the Minister of Justice, the President of the Supreme Court and the President of the immediately superior court. Only the President of the Supreme Court is appointed by the National Assembly on the proposal of the Minister of Justice, after receiving the opinions of the Judicial Council and the Joint Assembly of the Supreme Court (as with judges sitting en banc in Estonia) on the candidates.
[5] The judges of Supreme Court are generally exempt from periodical evaluation.
[6] The remuneration is very symbolic and determined per attendance in a session of the personnel council.
[7] In Slovenia there are four courts of appeal of general competence named ‘higher courts’.
[8] Within the courts of general jurisdiction, judicial work is generally divided (except in very small courts of first instance) into different sections, e.g. criminal and civil, and then within these sections into different subjects, such as family law, commercial law, enforcement procedures, registries, etc. There are also specialised labour and social courts and administrative courts. In addition to these courts, there are specialised labour and social courts and administrative courts, although the Constitution provides for only one Supreme Court.