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CEPEJ(2018)3

Strasbourg, 5 February 2018

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

Ad hoc CEPEJ Working Group entrusted with the harmonisation of the definitions used by CEPEJ

2^nd meeting

30 January 2018

Meeting report

Document prepared by the Secretariat
Directorate General I – Human Rights and Rule of Law

A. Introduction

1. The ad hoc Working Group entrusted with the harmonisation of the definitions used by CEPEJ held its 2^nd meeting in Cologne (Germany), with Laetitia BRUNIN (France) in the chair.

2. The list of participants appears in Appendix I to this report.

B. Methodology

3. The working group continued the discussions begun at its 1st meeting and confirmed its decision to suggest to the CEPEJ that the final version of the working document take the form of a “CEPEJ glossary”.

4. With regard to the general approach by which the working group should be guided when preparing the glossary, the following was agreed:

- The glossary is distinct from the explanatory note to the scheme for evaluating judicial systems. The explanatory note also contains definitions but is intended solely for the national correspondents responsible for completing the scheme. Some definitions may be common to both documents, however, such as the CEPEJ indicators;

- The object of this exercise is to compile the definitions used in CEPEJ documents and to ascertain inter alia whether these definitions have always been used in the same way over time; the CEPEJ glossary is not meant to be an exhaustive compendium of definitions in the way that a legal dictionary might be;

- The glossary will thus be used solely in relation to CEPEJ documents. Some definitions may not be the same as those found in dictionaries but will be peculiar to the CEPEJ. For example, the glossary will need to include the terms “whole justice system budget” and “judicial system budget” which refer to concepts specific to the CEPEJ and are central to the Commission’s whole investigation into justice budgets, even though these definitions may not comprise the same elements in a different context.

- Certain terms used “in accordance with the CEPEJ definition”, i.e. understood in the same way by all member states, will not be defined. One example is the term “civil cases”, whose meaning varies too much from one national judiciary to another. The group is nevertheless aware that it may seem odd that there should be no universally acceptable definition for such a common term and wishes to point out that this was a deliberate choice to ensure comparability of data within the framework of the evaluation exercise (in the case of these concepts, the explanatory note refers to examples rather than definitions);

- Each definition will be followed by a reference to the documents in which the terms defined are used.

5. In the course of its discussions, the working group noted that even though they had been widely used by the CEPEJ for many years, some definitions remained fuzzy or problematic. In the case of “resolved cases” for example, it was not clear from the CEPEJ documents whether a case should be considered to be resolved when the decision was delivered, when it was notified or when it was executed. The group agreed to look again at these issues in order to try to resolve them where possible.

6. The working group also took note of the need to streamline the concepts so as to retain only the most “effective” ones. For example, there was a need to sort through certain terms whose meaning was similar, such as “caseload”/”pending cases”/”workload” or to try to decide at precisely what point, when using the indicators, an “incoming case” became a “pending case”.

C. Further work

7. The working group recommended holding a further meeting in order to complete its review of all the definitions. It proposed the following dates: 9-10 July 2018 or, failing that, 17-18 September 2018. The draft thus agreed would then be sent to the other CEPEJ working groups (CEPEJ-GT-EVAL, CEPEJ-GT-QUAL, SATURN) for consultation. Depending on the extent of the amendments proposed by the working groups, the working group on definitions would meet again or finalise the document by email. The draft would then be submitted to the CEPEJ for consideration with a view to its adoption.

8. A slightly different approach was being taken with the definitions concerning mediation: the CEPEJ-GT-MED having started work only recently, it was agreed to begin by consulting the members of that group about the definitions rather than working on them directly. The working group on definitions therefore instructed the Secretariat to send the definitions concerning mediation to the CEPEJ-GT-MED without delay.

9. The Secretariat was instructed to first finalise document CEPEJ(2018)2PROV2 (appended hereto) in the light of the current discussions and to send it to Noel Rubotham who would check the English. The document would then be forwarded to the members of the group for comments on those definitions which had not been discussed at the current meeting owing to lack of time.

10. Lastly, the working group thanked Simone Kress sincerely for the able manner in which she had hosted and organised the meeting and Margarete Gräfin von Schwerin, President of the Higher Regional Court, for her warm welcome and for allowing the group to use one of the courtrooms.

Annexe I : List of Participants / Liste des participants

Laetitia BRUNIN, Adjointe à la Sous-Directrice de la statistique et des études, Secrétariat général, Ministère de la justice, Paris, FRANCE

e-mail : [email protected]

Simone KREβ, Vice-President, Landgericht Köln, Luxemburger Str. 101, 50939 Köln, GERMANY, Tel: +49 221 477 2712, Tel: +49 221 477 2700,

e-mail : [email protected]

Joao ARSENIO DE OLIVEIRA, Head of Department, International Affairs Department, Directorate General for Justice Policy, Ministry of Justice, Av. D. Joao II, n° 1.08.01 E, Torre H, Pisos 2/3, 1990-097 Lisbon, PORTUGAL, Tel: + 351 21 792 40 30,

e-mail: [email protected]

Noel RUBOTHAM, Head of Reform and Development, Courts Service, Green Street Courthouse, Halston Street, Dublin, IRELAND, Tel: +353 1 88 86 761,

e-mail: [email protected]

Marco FABRI, Director, Research Institute on Judicial Systems, National Research Council (IRSIG-CNR), Via Zamboni 26, 40126 Bologna, ITALY, Tel: +39 051 237 044, e-mail: [email protected]

COUNCIL OF EUROPE / CONSEIL DE L’EUROPE

Secretariat

Directorate General of Human Rights and Rule of Law (DG I)

Division for the Independence and Efficiency of Justice/

Direction Générale des Droits de l’Homme et Etat de droit (DG I)

Division pour l’indépendance et l’efficacité de la justice

E-mail: [email protected]

Muriel DECOT, Co-Secretary of the CEPEJ / Co-secrétaire de la CEPEJ, Tél: +33 (0)3 90 21 44 55, e-mail : [email protected]

Christel SCHURRER, Secretary of the CEPEJ-GT-EVAL / Secrétaire du CEPEJ-GT-EVAL, Tél : +33 (0)3 90 21 56 97, e-mail: [email protected]

Annexe II : CEPEJ(2018)2PROV2

definItions used by CEPEJ

ACCESS TO JUSTICE

All the legal and organisational factors affecting the availability and effectiveness of judicial services. Access to justice should enable society to deliver a maximum number of decisions at reasonable cost to the taxpayer, with quality a prime requirement. Access to justice must also give the individual user a quality decision at – a prime requirement – reasonable cost to him or her.

In the context of cyberjustice, this concept includes means of accessing the law (online information on one’s rights, publication of case law) and accessing dispute settlement procedures (online granting of legal aid, referral to a court or mediation service).

See in particular:

CEPEJ - Access to justice in Europe / CEPEJ studies No. 9 p13

CEPEJ (2016) 13 - Guidelines on how to drive change towards Cyberjustice, 1.1 11 p5.

ARBITRATION (CEPEJ-GT-MED)

Artificial intellingence for justice

AVERAGE (SEE ALSO MEDIAN)

The result obtained by adding several amounts together and then dividing the total by the number of amounts.

The average is sensitive to extreme values.

See in particular:

European judicial systems, Efficiency and quality of justice, CEPEJ Studies No. 23, Edition 2016 (2014 data), p10.

BACKLOG

Pending cases which have not been resolved within an established timeframe.

For example, if the timeframe has been set at 24 months for all the civil proceedings, the backlog is the number of pending cases that are older than 24 months.

See in particular:

CEPEJ (2016)5 - Towards European Timeframes for Judicial Proceedings - Implementation Guide, Intro p3.

BUDGET (4 definitions)

BUDGET APPROVED

The budget which has been formally authorised by law (eg. by the Parliament or another competent public authority).

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, p3 and p7.

BUDGET IMPLEMENTED

The actual expenditure incurred in the reference year.

See in particular:

European judicial systems, Efficiency and quality of justice, CEPEJ Studies No. 23, Edition 2016 (2014 data), p18.

Judicial system budget (see also whole justice system budget)

The budget allocated to the courts, the public prosecution services and legal aid.

Ajouter schema

See in particular:

European judicial systems, Efficiency and quality of justice, CEPEJ Studies No. 23, Edition 2016 (2014 data), p17.

WHOLE JUSTICE SYSTEM BUDGET (see also judicial system budget)

The budget allocated to the judicial system, and other elements such as the budgets for the prison system, probation services, High Councils for the Judiciary, the Constitutional Court, the judicial management body, State Advocate (i.e. the budget referring to a lawyer representing the State’s interests), enforcement services, notariat, forensic services, the judicial protection of juveniles (i.e. the budget referring to the youth protection, mainly the budget allocated to social workers and not the budget for juvenile courts), the functioning of the Ministry of Justice, refugees and asylum seekers services, immigration service or even the budget for some police services (i.e. judicial police, prisoners’ transfer, security in courts, etc.).

Ajouter schema

See in particular:

European judicial systems, Efficiency and quality of justice, CEPEJ Studies No. 23, Edition 2016 (2014 data), p17.

CASE (4 definitions)

COMPLEX CASES

Cases which, by virtue of particular attributes (e.g. number of parties, volume of evidence, number and/or complexity of issues in dispute), may require additional timefor disposal beyond that which would be expected for ordinary cases within the case category concerned.

See in particular:

CEPEJ (2016)5 - Towards European Timeframes for Judicial Proceedings - Implementation Guide, 2. P5.

Normal cases

In the future, replace “Normal cases” by “ordinary cases”.

PRIORITY CASES

Cases which should be disposed of as quickly as possible, as referred to in the jurisprudence of the European Court of Human Rights.

See in particular:

CEPEJ (2016)5 - Towards European Timeframes for Judicial Proceedings - Implementation Guide, 2. P5.

URGENT CASES

Cases for which exists a procedure enabling the judge to take a provisional decision (e.g. decision on the right to control and care for a child) or when it is necessary to preserve evidence or when there is a risk of imminent or hardly repairable damage.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q87 p19.

Type of cases (6 definitions)

ADMINISTRATIVE LAW CASES

Cases involving citizens and public administrative authorities.

Administrative law cases are in some countries dealt with by special administrative courts or tribunals, whilst in other countries they are dealt with by the ordinary civil courts.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p20.

CIVIL LAW CASES

No definition of civil cases, but only examples, because of the diversity of the systems.

See in particular:Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, p3.

CRIMINAL LAW CASES

Cases for which a criminal sanction may be imposed, even if this sanction is foreseen, in some national systems, in an administrative code (e.g. fines or community service). Such offences may include, in some national systems, minor offences involving anti-social behaviour, public nuisance or traffic offences.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p23

Other than criminal cases

Cases for which a criminal sanction may not be imposed. This category may include in particular :

- civil (and commercial) litigious cases,

- non-litigious cases : non litigious civil and commercial cases, registry cases (land registry cases, business registry cases),

- administrative cases.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p23

Litigious cases (to be improved)

Cases for which the judge decides the case.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p19.

NON-LITIGIOUS CASES (to be improved)

Cases which are not brought to court or for which a registration is made by an individual.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p19.

CASE STATUS (7 definitions)

DISCONTINUED CRIMINAL CASES

Cases received by the public prosecutor, which have not been brought before the court and for which no sanction or any other measure has been taken.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q107, 108 and 109 p25.

INCOMING CASES

Cases filed in the court concerned within a defined time period.

Any case which has previously been filed in and is remitted to the same instance level (for instance after an appeal) should be considered as a new incoming case.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p19.

CEPEJ Guidelines (2014)16 Ep29.

PENDING CASES

Cases which remain to be resolved by the court concerned at a given point in time (for example 1^st January).

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p19.

CEPEJ (2016)5 - Towards European Timeframes for Judicial Proceedings - Implementation Guide, Intro p3.

CEPEJ (2016)12 - Measuring the quality of justice, p8

PENDING CASES OLDER THAN 2 YEARS

Cases which at a given point in time (eg. on 31st December of the reference year) remain to be resolved after expiry of a period of 2 years from their filling in the court concerned.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p19.

PENDING CASES BY AGE

Cases which at a given point in time (eg. on 31st December of the reference year) remain to be resolved, grouped by reference to the length of time which has elapsed since their filing.

Ajouter tableau Marco

See in particular:

CEPEJ (2016)12 - Measuring the quality of justice, p11.

RESOLVED CASES

Cases which terminated (“termination” to be defined) in the court concerned either through a decision by the court, or through any other procedural step which ended the case (eg. a discontinuance of the case or a settlement).

Usually, this term is used in the Scheme for evaluating judicial systems by reference to a period of a year.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q91 to 109 p19.

SMALL CLAIM

Civil case which follows a simplified procedure according to the limited value of the claim, as defined by national law.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q45,45.1,45.2 p13.

CASELOAD (see also workload)

Caseload is the same as pending cases.

See in particular:

CEPEJ (2016)5 - Towards European Timeframes for Judicial Proceedings - Implementation Guide, Intro p3.

CASEFLOW

The process by which pending cases, incoming cases and resolved cases are dealt with by a court during a given period.

See in particular:

CEPEJ (2016)12 - Measuring the quality of justice, p8.

CASE MANAGEMENT SYSTEM

A system, usually automated, which enables the processing of cases in a court, including features such as case filing, case event scheduling, production of template orders and other documents, and capture, extraction and reporting of caseflow data.

See in particular:

CEPEJ (2016) 13 - Guidelines on how to drive change towards Cyberjustice, 1.4.1 55 p24.

CYBERJUSTICE

Technologically enabled access to justice, including on-line delivery of court services and dispute resolution, video-conferenced hearings etc. The development and operation of software tools, so as to embrace all the current developments affecting the way in which justice is administered by harnessing ICT.

Used in preference to “e-justice”, which implies that the use of IT is a means of applying justice in the digital world, the term cyberjustice in fact refers to a body of literature which is now extensive and cross-disciplinary and has its origins in information theory. This literature points to the depth of the changes taking place in human organisations and activities that make use of information systems in order to better identify the challenges facing them. Cyberjustice is therefore broadly understood as grouping together all the situations in which the application of ICT, at least, forms part of a dispute resolution process, whether in or out of court

See in particular:

CEPEJ (2016) 13 - Guidelines on how to drive change towards Cyberjustice, Intro.2 p3

CLEARANCE RATE (CR)

The Clearance Rate is a ratio, obtained by dividing the number of resolved cases with the number of incoming cases in a given period, expressed as a percentage:

A Clearance Rate close to 100 % indicates the ability of the court or of a judicial system to resolve approximately as many cases as the number of incoming cases within the given time period. A Clearance Rate above 100 % indicates the ability of the system to resolve more cases than those received. Finally, a Clearance Rate below 100 % appears when the number of incoming cases is higher than the number of resolved cases. In this case the total number of pending cases will increase.

Essentially, the Clearance Rate shows how the court or judicial system is coping with the in-flow of cases.

See in particular:

European judicial systems, Efficiency and quality of justice, CEPEJ Studies No. 23, Edition 2016 (2014 data), p185.

CEPEJ (2008)11, “CEPEJ Guidelines on judicial statistics (GOJUST)”, 5.1 p 12.

CONCILIATION (CEPEG-GT-MED)

Court

A body established by law appointed to exercise the judicial power of the State in adjudicating on specific type(s) of civil disputes or trying persons accused of criminal offences within a specified administrative structure where one or several judge(s) is/are sitting, on a temporary or permanent basis.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, p11.

COURT ANNEXED MEDIATION (CEPEJ-GT-MED)

COURTS OF GENERAL JURISDICTION

A court which is competent to adjudicate on all types of proceedings brought at the jurisdictional instance to which that court belongs and which are not to be dealt with before specialised courts owing to the nature of the subject-matter.

See in particular:

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q8 p7.

↓↓

Still to be examined

DISSMISSAL

Termination of (an) employment (contract) at the initiative of the employer (working in the private sector). It does not include dismissals of public officials, following a disciplinary procedure for instance.

See in particular:

CEPEJ (2014)16 - CEPEJ-SATURN – Revised Saturn Guidelines for judicial Time Management (2^nd revision), EUGMONT, p 11.

DISPOSITION TIME (DT)

Alongside the Clearance Rate, the calculated Disposition Time provides further insight into how long it takes for a type of case in a specific jurisdiction to be solved. The indicator compares the total number of pending cases at the end of the observed period with the number of resolved cases during the same period and converts this ratio into a number of days. This indicator measures the theoretical time necessary for a pending case to be solved in court in the light of the current pace of work of the courts in that country.

The number of pending cases at the end of the observed period divided by the number of resolved cases within the same period multiplied by 365 (days in a year):

The conversion into days simplifies the understanding of the relation between pending and resolved cases within a period. The calculated DT would show, for example, that the time necessary for solving a pending case has increased from 120 days to 150 days. This allows comparisons within the same jurisdiction over time and, with some prudence, between judicial systems in different countries. It is also relevant for assessing court efficiency in this regard in the light of established standards for the length of proceedings.

However, it needs to be mentioned that this indicator is not an estimate of the average time needed to process a case but a theoretical average of the duration of a case within a specific system. For example, if the ratio indicates that two cases will be processed within 90 days, one case might be solved on the 10^th day and the second on the 90^th day. The indicator fails to show the mix, concentration, or merit of the cases. Case level data of actual duration of cases from functional ICT systems is needed in order to review these details and make a full analysis. In the meantime, this formula may offer valuable information on the estimated maximum length of proceedings.

See in particular:

European judicial systems, Efficiency and quality of justice, CEPEJ Studies No. 23, Edition 2016 (2014 data), p185.

CEPEJ (2014)16 - CEPEJ-SATURN – Revised Saturn Guidelines for judicial Time Management (2^nd revision), EUGMONT, p 13.

CEPEJ (2008)11, “CEPEJ Guidelines on judicial statistics (GOJUST)”, 5.3 p 12.

DURATION OF PROCEEDINGS

The actual duration measures the length of time between the date on which a new case is initiated/commenced/filed and the date on which the case is resolved. See other definition “resolved cases”

See in particular:

CEPEJ (2016)12 - Measuring the quality of justice, p10

EFFICIENCY RATE (ER INDICATOR) (to be improved)

Relation between the number of personnel employed in a court in a given year and the output of cases from the same court at the end of that year. ER measures the quantity of output produced by a productive unit over a unit of time.

Output (decisions, proceedings, etc.)

ER = ------------------------------------------------------------------

Nr. of People (who produced that output)

See in particular:

CEPEJ (2014)16 - CEPEJ-SATURN – Revised Saturn Guidelines for judicial Time Management (2^nd revision), EUGMONT, p 14.

CEPEJ (2008)11, “CEPEJ Guidelines on judicial statistics (GOJUST)”, 5.1 p 12.

CEPEJ (2016)12 - Measuring the quality of justice, p12.

ENFORCEMENT (8 definitions)

Enforcement

The execution of court decisions, and also other judicial or non-judicial enforceable titles in compliance with the law, including by seizure by an enforcement agent of the assets of a judgment debtor which are legally available for seizure.

See in particular:

Enforcement of court decisions in Europe - CEPEJ Studies No. 8 p15

Recommendation Rec(2003) 17 of the Committee of Ministers to member states on enforcement

Enforcement agent

A person authorised by the state to carry out the enforcement process irrespective of whether that person is employed by the state or not.

See in particular:

Recommendation Rec(2003)17 of the Committee of Ministers of the Council of Europe on enforcement of court decisions.

CEPEJ Studies n°8 – Enforcement of courts decisions in Europe, p16.

Explanatory note to the scheme for evaluating Judicial Systems 2016-2017 cycle, CEPEJ(2017)3rev, Q169 p29.

ENFORCED CASE

In order to be enforced, the case must have been the subject of an action that has fully satisfied the plaintiff (in a civil case) or of an action that has implemented the determination of the sentence (in a criminal case).

See in particular: