REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: SPANISH Country of exchange: AUSTRIA Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: SPANISH Functions: JUDGE IN CIVIL MATTERS IN FIRST INSTANCE. Length of service: 14 YEARS Identification of the exchange Hosting jurisdiction/institution: VIENNA COURT OF APPEAL and VIENNA REGIONAL COURT. City: VIENNA Country: AUSTRIA Dates of the exchange: FROM 9TH TO 20TH SEPTEMBER 2013 Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) REPORT I and II-. PROGRAMME OF EXCHANGE and THE HOSTING INSTITUTION. The activity took place in two separate parts (two weeks): group and individual. A) The first part: we went altogher in a group (nine judges and prosecutors of several nationalities) to do some visits to the following institutions and courts: 1st day.- We were welcomed at the Vienna Palace of Justice by the President and managers of European Judicial Training Network. They kindly introduced themselves and showed us the agenda of the programme. As well, they displayed, briefly, the most important principles of the legal system in Austria,

3 the judicial organization and the division of jurisdictions. Also about the process to become a judge or a prosecutor (exams, time of training ). Through these explanations, we were able to compare to our own legal systems and process to become a judge. For instance, I could be aware that there are many common things in the procedure (austrian and spanish) basically in the formalistic part of the procedure. On the other hand, I could check that, in criminal matters, in austrian system, the prosecutor is in charge of the previous investigation (before the trial) and not the judge (whose job in this part of the criminal process is to be a guardian of the fundamental human rights). As for the process to become a judge or prosecutor, the most different aspect compared to spanish system is that, in Austria, when they pass the exams and do the training, they not only can choose between beeing a judge or a prosecutor but to change the function during the career. In Spain you can,t change the function during the career unless you repeat the process again (public exam, training..). So I think in Austria they have more possibilities to give dynamism to their career. 2 nd day.- Visit to the Regional Court and Penal Institution of Korneuburg (near Viena). It was amazing for me that the prison was built just in front of the court. It,s very practical (you can save lots of money in transport) but, on the other hand, it was curious that they could see each other (people working at the court and people in prison) from the windows. We could the opportunity to be in a Court-Room where it was taking place a trial about murder. We also had a meeting with some members of the court (judges and prosecutors) and we were discussing about procedures, some aspects of the criminal investigation and even the organization of the judicial office. For me, it was remarkable that in Austria there is no "Judicial Secretary" which it is a difference to spanish system ("Secretario Judicial", who has similar formation and way to access to the career and whose job is to be in charge of all the formal aspects of the procedure and the execution -after the judge gives "the general order of execution"-). At the Penal Institution, we could visit all the departments, services, infraestructures. and we were kindly and profesionally attended during the visit. At the end, we could make several questions. Among them, if work in prison was compulsory. It is in Austria (not in Spain). At this point, I realized that may be in Spain it,s not a good idea that convicted can decide not to do anything at all (due to an "old" and wrong idea that compulsory work in prisons is like "forced work"). 3rd day.- Viena Commercial Court. We had a meeting with two judges. We could discuss about some aspects of this special jurisdiction. It was very interesting for me (as a judge in civil matters) to find out that in Austria the division between civil and commercial jurisdiction is very clear because it depends only on the defendant person (a registered company) irrespective of the materia. So, there is no jurisdiction conflicts, not as in Spain. In fact, we have a lot of "border" matters that give problems to decide if the jurisdiction is civil or commercial, and Courts of Appeal and, finally, Supreme Court, have to decide these conflicts after some time. So, meanwhile, it,s difficult to decide about it and may be the decisions are not coincidental between one court to another. Afterwards, we went to the Public Prosecutor`s Office against Economic Crimes and Corruption. These prosecutors are specialist in economic cases (over 5 millions of euros). They were explaining their competences and systems of investigation. It was new for me to hear about the "blower-whistle": anonymus person that contacts with the prosecutors through a secure web page and do reports about possible economic crimes. So, these "blowers-whistlers" can help at the beginning and during the investigation (giving data and details) with no pressure to have to reveal their identities. 4th day.- Visit to Vienna Regional Court for Penal-Law Cases and the Public Prosecutor Office. We were attended by a prosecutor and a judge (whose job is, besides regular job, also to assist the President of the Court). We had the opportunity to discuss about the differences between austrian and another countries systems (of the several nationalities of the participants). In the afternoon, we went to an interesting touristic tour. 5th day.- The last day of the group activity took place at the Viena Palace of Justice. We had a meeting with a trainee judge who spoke about the details of the process to become a judge and she also gave us a "speech" about fundamental human rights, provoking a feed-back among us. It was very interesting to

4 conclue that all of us in Justice (judges, prosecutors, lawyers, police ) can do many things, daily, to preserve and protect these rights and it,s not only a question of "big" courts. It,s a question that we deal with every day, in our regular job. Afterwards, we were told the story of the event in 1927 when the Palace of Justice in Vienna was set on fire (during an spontaneus demostration) and we watched an old documentary -with real images- of the event. I didn,t expect much from it, but finally it turned to be an interesting and moving activity and we could know more things about the History in Austria. At the end, we had lunch with our tutors to know each other. B) The second part of the activity was individual, each one with one tutor. My tutor was a judge in Vienna Regional Court. The scope of his jurisdiction is all kind of civil matters (excluding commercial and family matters) over euros. III and IV.- THE LAW OF THE HOST COUNTRY AND THE COMPARATIVE LAW ASPECT OF THE EXCHANGE. I am developing both aspects as I describe the content of the five days of staying with my host tutor: The first day we were discussing about his daily work, I mean, regular agenda, timetable of the day (so different to Spain due to the diferent customs in each country); days of hearings; time dedicated to write sentences; organization of the judicial office; trainees and trainers judges; division of jurisdictions; types of procedures in civil jurisdiction; and general things of judicial system. I was introduced to a trainer judge that worked with my tutor. The second day we were looking through the files which hearings were taken place the day after. I had the opportunity to see directly all the structure of the file: the sue (either in a form -in case of claims of amount of money- or in a formalistic way -if not-); the order of payment (in case the procedure begins with a claim of amount); the answer; the decision of the judge about the proceedings (give documents and propose other evidences as witnesses, expert reports ). Also we were looking through some sentences and other decisions of the judge. I could check that in Austria, the civil judge has to write "the facts" totally separated from the arguments and fundaments of the sentence. The third day I was with my tutor during the hearings for all the day. As for remarkable things to name (interesting for me due to they are different from spanish system) I could mention the followings: -lawyers don,t wear robe. -the turns of intervention are more flexible than in Spain, I mean, they can take the word with no special plea to the judge. -the parties are seated beside their lawyers (a good idea because I think the direct comunication between the client and the lawyer reforces the right of defence). -the judge has to record -only audio- a summary of what it,s happening ("protocol"): so, from time to time, he/she makes a gap to record this summary of the statements (from parties, witnesses, experts ), the positions of the parties, the possible settlements.. and so on. I think it,s more convenient the system in Spain because all the hearings, trials.. are recorded audio and video and, so, the judge is concentrated on the development of the trial and doesn,t have to make gaps to dictate the "protocol". Besides, the court of appeal has the opportunity to watch the CD directly (with all the evidences) and even the lawyers, if they want to appeal, can review the CD before explain, to the Court, the arguments of the appeal. Anyway, my tutor told me that he was satisfied with this way of doing the "protocol" because, in his opinion, it was a "summary" of the hearing to be easily consulted if neccessary. The fourth day we were discussing about all those "formalities " in hearings and comparing them to the formalities in Spain. I could check that the civil judge in austrian system can decide, depending on the

5 case, how many hearings are convenient, and give to the parties diferent deadlines to propose evidences, not only one. In Spain, the procedure is not so flexible (for instance, documents have to be given with the sue and no afterwards; there is a concrete and unique moment to propose the rest of the evidences; normally there is only one hearing; to get an order of payment the plaintiff have to present a document that contents the debt ). I was introduced to a judge at the Court of Appeal and we had a chat about this part of the process (second instance). The most remarkable difference with spanish second instance is that in Austria, the court of appeal can,t change o alterate the "facts" and only if it,s considered that evidences haven,t been valorated properly by the first instance judge, then the court of appeal "gives back" the file to the judge to valorate again the evidences and set again the "facts". In Spain, Court of Appeal can alterate the valoration of the evidence (only forbidden in "third instance" - "casación" at the Supreme Court) and never gives back the file to the judge in first instance (only in case of "formal nullity of the sentence"). The last day I was introduced to a colleague of my tutor whose competences, besides civil matters in first instance, was to solve cases about Administration Liability. This is also a diference from Spain because we have totally separated the civil from the administrative jurisdiction so that if in the case the Administration (whatever level) takes participation in the matter, then the competence belongs to "contencioso-administrativa" jurisdiction. Anyway, I was told that there is a project in Austria to create "administrative courts" in first instance. Afterwards, we were chatting about substantial law (to mention: in Austria there is a different system to determine compensations due to traffic accidents because judges are not submitted to a "Scale" as in Spain). Finally, I was very interested in "Mediation" and I was chatting with my tutor about it. For me it,s an important way to unburden the courts and to help the parties to solve their problems without "fighting". In Spain we have a recent regulation and, therefore, we are begginers in this area. We don,t have a well organiced service of mediation, yet. My tutor explained me that in Austria they have already an organiced system in mediation that works properly and even it,s for free in family matters. He also told me that judges are specially involved in getting settlements by the parties so they dedicate long time (and patience) to this aim during the hearings (as I could check in the hearings I,ve been to). Finally, we had lunch with the representant of the President of Court of Appeal and we got our assistance certificates. V.- THE EUROPEAN ASPECT OF THE EXCHANGE. As for the first part of the activity, I could get to know that, in order to coordinate criminal investigation when some countries of Europe are involved, there are "TEAMS" which members (judges, prosecutors ) work together and have meetings to solve problems and to aim the investigation properly in this border cases. I didn,t know about it (for several years I wasn,t in criminal jurisdiction any more) and I think it,s very interesting and practical. As for civil scope, I had a wide conversation with my tutor about Consumers Law and the special protection that European Law and the European Court of Justice give to the consumers. We discuss about the problems that sometimes the national laws -specially the procedure- can suppose to give this protection because the judge have to act "ex officio". In Spain there has been a wave of cases due to the economical crisis and judges have had to face difficult situations (in foreclosures, for instance) and act ex officio against unfair clauses in contracts (specially in bank contracts as loans, mortgages ). Even some newly decisions of the European Court of Justice have the origin in spanish courts. I could check that in Austria this situation has been a minor relevance and the judges, normally, don,t act "ex officio". VI.- THE BENEFITS OF THE EXCHANGE.

6 All I can say about the exchange is highly positive. It,s a perfect way to open your mind to another systems and ways to do things and to get to know that there are many possibilities to get the same goal, not only the way of your own country. Apart from that, the group activity has the advantage that you can share your experience not only with your tutor -and rest of colleagues of the host country- but with the rest of participants of the group, I mean, you have the opportunity not only to get knowledgments about the jurisdiction and competences of the host tutor, but the legal and judicial system in general (criminal, commercial, civil, prosecutors, prisons ) and even of another countries because everybody has the chance to participate at the same time and to tell how things are in her/his country. This activitie also helped me to practice and improve my english and, specially, "legal terms" in english that I didn,t know. Finally, it,s not only an enriching profesional experience but personal too, because you can share some days with another colleagues and get to know about many aspects of their daily job and life (I mean, how to conciliate familiar and profesional life; which the social position of the judge is; customs or life style depending on the country and so on). VII.- SUGGESTIONS. I think the programme (group activity) has more advantages than the individual programme (as I told before). Anyway, I havent,t been in individual activity, so my opinion is just from a point of view. May be if the participants (from several countries) had the opportunity to get in contact before the activity, we could arrange to find acommodation together and so, not only save money -taxis etc.- but to tight relationship during the activitie. As for the rest, I think the programme is perfect and, for me, it has been an unique and unforgettable experience that I wish have the chance to repeat in the future.

7 SUMMARY - This programme of exchange allows you to open your mind and get knowlegments about judicial and legal systems of another countries. Besides, if the activity is "in group" you have the opportunity not only to get knowledgments about the jurisdiction and competences of the host country, but in another countries because participants can share all their own information. - There are some diferences between Austria and Spain at division of jurisdictions: diferent way to separate "civil" from "commercial" jurisdiction and "civil" from "administrative" jurisdiction. As for criminal jurisdiction, the most important diference is that in Spain the judge is in charge of the previous investigation and in Austria the prosecutor is. -The civil procedure is similar but with diferences in some formalities. The procedure in Austria is more flexible. The scope of actuation of the Court of Appeal is different from one system to other (in Austria the "facts" can,t be alterated). -The sustancial law, in both cases, is based in "Roman Law" but, anyway, there are some diferences (regulation of compensations in traffic accidents, consumers law ). - I think the programm is perfect and, for me, it has been an unique and unforgettable experience that I wish have the chance to repeat in the future.

8 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?