Strasbourg, le 31 May 2018

CEPEJ-GT-QUAL(2018)5

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ)

WORKING GROUP ON QUALITY OF JUSTICE (CEPEJ-GT-QUAL)

23^rd meeting (Strasbourg, 14 – 15 March 2018)

MEETING REPORT

Report drawn up by the Secretariat
Directorate General I – Human Rights and Rule of Law

1. OPENING OF THE MEETING AND ADOPTION OF THE AGENDA

1. The Working Group on Quality of Justice (CEPEJ-GT-QUAL) of the European Commission for the Efficiency of Justice (CEPEJ) held its 23rd meeting at the Council of Europe in Strasbourg on 14 and 15 March 2018.

2. The agenda and the list of participants are set out in Appendices I and II respectively of this report.

2. appointment of the chair of CEPEJ-GT-QUAL

3. Joao ARSENIO DE OLIVEIRA (Portugal) was appointed Group Chair.

3. IINFORMATION GIVEN BY THE CHAIR AND THE SECRETARIAT

4. The Secretariat informed the Working Group that a report on the assessment of European judicial systems was being prepared and would be made public on 4 October 2018 and invited the participants to organise events to present the report in their respective countries.

5. The Secretariat informed the Group members of the implementation of co-operation programmes with member states and partner states, in particular Albania, Latvia, Slovakia, Albania, Kosovo*, Morocco and Tunisia. It was also mentioned that co-operation programmes with Slovenia and Spain were currently being discussed. While the implementation of the CEPEJ’s tools and methodology, particularly in the field of the assessment of judicial systems, had an important place in these programmes, public policy-makers were showing growing interest in issues relating to the use of information and communication technologies (ICTs).

4. The challenges of the use of artificial intelligence algorithms in          judicial systems

6. The Secretariat presented the framework note on the use of artificial intelligence algorithms in judicial systems, which concerned in particular so-called predictive justice. Following an introduction on the state of development of predictive justice applications in member states, the note presented an analysis of the challenges arising from the open data publication of judicial decisions. A third technical chapter concerned artificial intelligence mechanisms (in particular machine learning) used by these “predictive” tools. Their advantages but also their limits were underlined in the document: they were based on the statistical and probabilistic processing of a broad database of judicial decisions and did not reflect legal reasoning and could not automatically distinguish the real causes from among established correlations. In a fourth part, the document examined the main applications in civil and criminal law and highlighted the points worthy of attention with regard to the rights safeguarded by the European Human Rights Convention. Suggestions for the development of applications which are fully compatible with fundamental rights and of service to judicial professionals were also set out in the note. Finally, the document stressed the need for a balanced and participative approach to governance, which involved both judicial professionals and experts in artificial intelligence, and the absolute need to develop an ethical framework for guiding their activities.

7. The Group thanked the Secretariat and expressed its appreciation for the quality of the analysis set out in the framework note. Several members thought that the document was of good use to the policy-makers who wished to consider the advantages and drawbacks of integrating predictive justice tools and artificial intelligence applications in general, so as to determine a roadmap in public justice policies. The importance of identifying a framework of values was also underlined.

8. Suggestions were put forward as to how to promote the document at a later stage. For example, it was suggested that the work should be divided into three parts: the first would concern an ethical charter, which would mention the guiding principles for the use of algorithms in processing case-law data in the light of the Council of Europe’s values; a second part would incorporate a glossary of common definitions shared with the Council of Europe’s other working groups; and finally, the third part would comprise the technical study.

9. The Group instructed the Secretariat to present a new working document at the Group’s next meeting.

5. Going further with Cyberjustice Guidelines and implementation guide of electronic case management systems with a user-FRIENDLY approach

10. At its 22^nd meeting, the Working Group had tasked Harold EPINEUSE (technical expert, France) with adding a “toolkit” to the Guidelines on how to drive change towards Cyberjustice, which would make the guidelines more operational and more easily applicable to CEPEJ co-operation programmes. He had also been tasked with developing a document for discussion on electronic case management systems, a subject for which there was considerable demand in the context of co-operation programmes.

11. Harold ÉPINEUSE and the Secretariat presented two working documents. The first summarised the key principles of the Guidelines and also included a step-by-step checklist, which helped to gauge the progress made in implementing a data-processing project in the light of the main guidelines, as well as an evaluation method for such a project. The second document outlined, on the basis of feedback from co-operation missions, the main strategic issues to be considered before creating an electronic case management system, both during the design stage and once it was implemented.

12. The Working Group thanked Harold ÉPINEUSE and expressed its appreciation of the above-mentioned documents. It approved the idea of a “toolkit” and suggested including a document, which was being prepared in the context of the programme of co-operation with Albania, on the strategic approach to be taken when using ICTs in the judicial system. Finally it asked Harold ÉPINEUSE to draft a more detailed document on electronic case management systems and to present it at the next meeting.

6. Justice and MEDIA

13. At its 22^nd meeting, the Working Group had specified the issues that should have been examined in detail in an issue paper and had instructed the Secretariat to identify court communication specialists. For example, the Secretariat had invited Pierre CORNU (technical expert, Switzerland) to make a presentation of the different themes indicated by the Group.

14. Pierre CORNU made a detailed presentation of communication in courts in which he addressed questions such as the choice of communicant (in particular whether the person should be from within or from outside the judicial institution), the media to be used, the type of communication to use depending on the situation, communication in a crisis, or the role of courts in communicating with the public, particular on the essential features of justice.

15. The Group thanked Pierre CORNU for his presentation and noted that it covered all the subjects which the Group wished to consider in detail in an issue paper. A debate ensued on practical matters such as the broadcasting of hearings on television channels, the ethics of judges who communicate via social networks and the most appropriate existing means of communication for arousing young peoples’ interest in judicial missions.

16. The Group agreed to develop a more substantial document, which courts could use as a handbook or vademecum to manage their communication with the public and the media, and which would cover both the management of everyday business and crisis situations. This document, which would be based on Pierre CORNU’s presentation, should also cover court communication on the general functioning of justice. It instructed the expert to prepare this document for the Group’s next meeting, with the contribution of Merethe ECKHARDT (member, Denmark), who would share her expert knowledge of the most appropriate means for communicating with young people.

7. Evaluating judicial activity from a quality viewpoint

17.  At its 22^nd meeting, the Working Group had expressed the wish to study the question of the evaluation of the quality of the overall judicial activity of a court, and not only questions of performance. It had also sought the Secretariat’s assistance in identifying relevant examples in member states in time for the 23rd meeting and in deciding whether to make a presentation of a particular practice within a judicial system (such as the Netherlands).

18.  The Secretariat presented an information note on the assessment of the quality of judicial activity, which presented several tools and good practices for enhancing the quality of judicial activity, in terms of both know-how and attitudes. Gilles ACCOMANDO (member, France) presented the French experience in intervision, by highlighting the important role of the National School of Judges in expanding this practice (in particular by means of an “intervision charter” and an evaluation scheme, and by drawing judges’ attention to this a peer to give an outside view of the judge’s conduct during hearings.  The aim was to help judges improve their personal attitudes. This method, which was based on goodwill, trust and reciprocity, was, however, seldom applied in France, for reasons relating to both professional culture (culture of honour and judges tendency to work in isolation) and the voluntary nature of the intervision exercise.

19.  The Group noted that the document presented by the Secretariat provided a good basis for continuing this work but a number of examples from other European countries were necessary. In this connection, there was considerable interest in the Danish experience of intervision, in which psychologists and communication experts were involved. Moreover, all reference to assessment in the title should be removed and the main theme of the document should be highlighted, i.e. the need to put an end to the culture of working in isolation and to foster the sharing of knowledge between judges on the one hand, and between judges and other legal professionals on the other. Finally it was suggested that the obligation for the national authorities responsible for the public justice service and for putting in place effective tools for strengthening judges’ competences be mentioned in the text.

20.  The Group instructed the Secretariat and the President of the Group to draw up a questionnaire for the attention of pilot courts (and members of the CEPEJ where appropriate) and to incorporate the replies into the work document to be presented at the Group’s next meeting.

8. Ex ante and ex post regulatory impact assessment

21.  At its 22^nd meeting, the Working Group had expressed the wish to take a closer look at ex ante and ex post regulatory impact assessment affecting the justice sector and had instructed the Secretariat to seek experts in this field.

22.  Professor Jon Fløysvik NORDRUM (technical expert, Norway) presented the Norwegian experience in this field and said that this type of assessment was firmly rooted in the legislative process, and that both the Parliament and the Government were involved. The ex ante study had to reply to a number of questions, linked to the positive and negative effects of the measures recommended with regard to a number of subjects (individuals, businesses, and state authorities) and to their sustainability. The main difficulties were encountered when it came to assessing the savings that could be made by introducing certain measures, but the evaluation of practical aspects was also problematic (for example: how to gauge in advance what the advantages of a reform of the civil procedure on the effectiveness of the courts might be) owing to the wide range of factors to be taken into account and the number of years necessary to assess their impact.

23.  The members of the Group discussed the follow-up to this work and raised questions concerning the scope of the study (and in particular its relation to matters concerning the quality and efficiency of justice) and the work carried out by other international organisations on this subject. In answer to this question, the expert replied that the European Union had devised a 500-page Toolkit on this subject. There were therefore risks of overlapping.

24.  While underlining the interest of the themes presented by Professor NORDRUM, the Group noted that it was difficult to become actively engaged in this filed, which concerned legislation and was far from the concrete work carried out by the CEPEJ with regard to the quality and efficiency of justice. The Group therefore decided not to continue working on this theme.

9. Review of the definitions used by CEPEJ Working Groups

25.  Joao ARSENIO DE OLIVEIRA gave a brief report on the meeting of the ad hoc working group responsible for identifying the key terms and concepts used by the CEPEJ. This work appeared to be particularly important for the coming years to ensure that all CEPEJ working groups used identical concepts. A meeting had been held in Cologne in February 2018 to finalise the work already taking place. The definitions should be adopted at the plenary session of the CEPEJ in December 2018.

APPENDIX I / ANNEXE I

Agenda / Ordre du jour

1. Adoption of the agenda / Adoption de l’ordre du jour

2. Appointment of the President du CEPEJ-GT-QUAL / Désignation du Président du CEPEJ-GT-QUAL

3.   Information by the Chairman, the experts and the Secretariat / Information du Président, des experts et du Secrétariat

4. The challenges of the use of artificial intelligence algorithms in judicial systems / Les enjeux de l’utilisation des algorithmes de l’intelligence artificielle pour les systèmes judiciaires

5. Going further with Cyberjustice Guidelines and building a case management systems with a user’s approach / Aller plus loin avec les Lignes directrices Cyberjustice et construire un système électronique de gestion des affaires avec une approche usager

       Presentation by Harold Epineuse (scientific expert, France) of a toolkit to support the implementation of the Guidelines on driving changes towards cyberjustice, as well as of an outline on building a case management system that serves the users / Présentation par Harold Epineuse (expert scientifique, France) d’une boite à outils pour renforcer la mise en œuvre des Lignes directrices sur la conduite du changement vers la cyberjustice, ainsi que d’un aperçu sur la construction d’un système informatique de gestion des dossiers au service des usagers

6. Courts’ communication / Communication par les tribunaux 

                  Presentation by Pierre Cornu, scientific expert (Switzerland) / Présentation par Pierre Cornu, expert scientifique (Suisse)

                  Discussion

7. Evaluating judicial activity from a quality viewpoint / Evaluation de l’activité des juges sous un angle qualitatif 

         Presentation by Gilles Accomando (France) of the French experience of « intervision »/ Présentation par M. Gilles Accomando (membre, France) de l'expérience française de "l'intervision".

     Discussion / Discussion

8. Ex ante and ex post regulatory impact assessment/ Etude d'impact ex ante et ex post des textes juridiques

       Presentation of the Norwegian experience by Mr Jon Christian F. Nordrum, assistant professor at the Norwegian institute of Public Law / Présentation de l'expérience norvégienne par M. Jon Christian F. Nordrum, professeur assistant à l'Institut norvégien de droit public

       Discussion / Discussion

9. Review of the definitions used by CEPEJ Working Groups / Révision des définitions utilisées par le Groupe de travail de la CEPEJ

       Summary of the ad hoc meeting / Rapport de la réunion ad hoc

10. Other business / Divers

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