The Role of the Council of Europe’s Commission on the Efficiency of Justice (CEPEJ) in the integration of Human Rights in Europe[1]

Presentations at La Trobe University November 25, 2008 and Macquarie University November 26, 2008 

1 INTRODUCTION

Although the human rights ideology has roots that might be traced far back in history, the modern development might be said to have started with the Atlantic Charter on Human Rights that was issued by the Allied powers towards the end of WW II. It describes a number of undeniable rights that every human being should be granted. The main point with the undisputable rights is to protect the individual from harmful state intrusion, not intrusion from other civil actors.

The Atlantic Charter has been followed by several global and regional human rights conventions. In Europe, the Council of Europe has been the main international force in disseminating human rights. The European Convention on Human Rights was issued as early as 1950 and went into force in 1953. It has now been in operation for more than 50 years. Today almost 50 states have joined, and more than 800 million people are protected by the Convention.  

Today, not only the fifty member states can allege violations of the convention. According to article 34, any person, NGO or other group might allege violations. In the European Convention, both national courts and the European Court of Human Rights are important vehicles in disseminating its provisions. The Convention obliges all member states to put up efficient systems within their own national legal systems for remedying violations. If such systems are missing or do not provide sufficient redress, everyone is free to bring their case before the European Court.  Over the years the Court has produced an extensive case law on the principles in the different articles in the convention that develops and concretizes the general wording in the text.[2] 

So much about the general background.  I will now talk about the work of one of the numerous committees of the Council of Europe – namely the European Commission for the Efficiency of Justice – that focuses on the development of the judicial systems of the member states. The commission is usually abbreviated “CEPEJ” – from the French version of its name. 

2 CEPEJ - The European Commission for the Efficiency of Justice

The main human rights background for establishing CEPEJ comes from article 6 in the Convention. The first sentence reads:

 “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Several principles can be read from the wording:

-       Fairness

-       Timeliness

-       Independence

-       Impartiality

-       Representation

-       Public access

-       Legally established competence and organization

Some of them are spelled out further in the other parts of article 6.

Although justice improvement has been a significant part of the human rights policies of the Council for a long time, the triggering event for establishing CEPEJ has been the huge backlog of the Court. It has received complaints in tens of thousands each year; resulting in a steadily increase in backlogs despite an extensive screening. According to oral information from the president of the court, L. Wildhaber,[3] the Court had 44,000 incoming cases in 2005, and a caseload of 82,000, of which 72,000 qualified as backlog.

Analyses showed that the bulk of the complaints related to violations of Article 6 on fair trial, with by far the largest category being violations of the entitlement to trial ‘within reasonable time‘. It appeared as a detrimental paradox that the Court – designed to be the prime protector of swift trials – was unable to comply with the requirement.  Most of the complaints came from jurisdictions in Southern Europe and from new members from Eastern Europe that joined after the dissolution of the Soviet Union.

The steering bodies of the Council wanted to remedy the problem both by making national remedies against human rights violations more effective, and by removing the causes for the claims by improving the quality and speed of the member states’ judicial systems. In 2002 they decided to establish CEPEJ from 2003 as a new organ to deal with the challenges. Its bodies are:

•  a plenary with representatives from all member states that meets twice a year;

•  a bureau with four members elected from the representatives, that function as a board for the Commission;

•  1-3 (or more) working parties with a maximum of six expert members.[4]

When handling violations, the Court has repeatedly stated that ‘Article 6 (1) of the Convention imposes on the Contracting States the duty “to organize their judicial systems so that they can meet its requirements.” The statement gives member states freedom to choose different strategies to fulfil their obligations, but their systems must work in practice.

Human rights, as understood by the Court, mainly constitute minimum rights that governments must not violate. States are free to establish better systems, and the Council of Europe often encourages such developments. Through CEPEJ the Council launched an ambitious policy strategy for improving the efficiency of European judicial systems on the assumption of voluntarily acceptance by the member states. Strategies concern improvements in both the quality and the speed of courts. They are inspired from the principles of Article 6, but as policy strategies, the convention does not limit them. Any remedy or improvement that might enhance speed and quality in the judicial systems might in theory be analyzed and proposed to the member states for implementation.

The Resolution (2002)12 on establishment outlines four major tasks for CEPEJ, namely to improve access to justice and efficient functioning of the courts, secure the status and role of the legal profession, improve the administration of justice and management of the courts, and the use of information and communication technologies.

The working methods of CEPEJ are:

•  examine results achieved by the different judicial systems by using common statistical and evaluation methods;

•  define problems and areas for improvements and exchange views on how the European judicial systems work;

•  develop better tools for analyzing judicial systems and models for improving them that are well adapted to the existing problems in the member states;

•  assisting individual member states in their request on how to better comply with the human rights requirements;

•  suggest, if deemed necessary, that the relevant steering committees of the Council of Europe draft new legal instruments or amendments to existing ones.

CEPEJ might develop indicators, collect and analyze data and define measures and means of evaluation. It might also issue reports containing statistics, best practice surveys, guidelines, action plans, opinions and general comments. The Commission might establish collaboration with research groups and invite qualified persons, specialists and NGOs for exchange, arrange hearings and create networks of professionals working in the justice area. It is not a supervisory or monitoring body, which means that independent control of the member states’ fulfilment of their human rights obligations on efficient justice is outside its scope. I will describe CEPEJ’s activities in three main areas, namely:

-       collecting  and issuing reliable statistics on the main characteristics of European justice systems

-       developing strategies for reducing court delay without reducing judicial quality

-       developing legal aid.

Statistics and delays have been subject to considerable efforts, while legal aid although part of the agenda, and have received significantly less attention so far.

The list is not exhaustive. Other important areas have been systems for quality management of courts and the development and increased use of mediation. I will not go into them.

3 EUROPEAN SURVEY

An important work has been a European survey of judicial systems in the member countries. A working group developed an extensive questionnaire on public expenditures on courts and legal aid, the judiciary and the courts, court performance, public prosecutors and legal professionals, and sent it to the member governments for answering. The research was meant as a pilot study with the aim to develop a statistical tool for measuring and evaluating the performance of the judicial systems as recommended in the mandate of CEPEJ. The findings have been published in CEPEJ: European Judicial Systems 2002. A new study with data from 2004 was published in 2006, and a third in October this year with data from 2006. The improvements have been considerable. It includes 45 of the now 47 member states.

A comparative study of 45 jurisdictions is a demanding task with vast methodology problems. From a researcher’s point of view, there are certain peculiarities connected with studies carried out under the auspices of an international organization of governments. Let me shortly mention some from my own experience with the pilot study:

All data in the survey had to be collected through official channels. The ministries and court administrations provided the information and answered the questionnaire. If research or other sources showed differing data, the study had to stick to the official version. CEPEJ might question the received information in private, but as an international body of governments, CEPEJ cannot publicly denounce or disregard information it has received from its member states.

The judicial systems in Europe differ significantly both in structure and in the conceptualization of its elements and functions. National statistics differ similarly. The huge variations also mean that the respondents perceive many of the questions differently, and that the answers and statistical information on the same question often related to entities in the respective judicial systems that were not directly comparable. Using a functional approach by describing certain essential functions in the judicial systems and requesting information about them independent of the national structure and conceptualization, often lead to ‘blank’ answers, since the national statistics lacked entities that corresponded to the functional description in the questionnaire. To remedy the problems, CEPEJ organized meetings with the national reporters, and issued lengthy instructions on how to fill in the questionnaire.

The statistics presented in the first report still had severe validity problems. Due to its character of a pilot study, the working group at a certain point decided not to ask the member states for further corrections even when it had strong indications that a misunderstanding might make the reported data misleading. Improving data quality as part of the revision process of the later reports seemed a better strategy.

The questionnaire therefore underwent a major revision before the collection of the 2004 data and then again for the collection of the 2006 data.

CEPEJ has been reluctant to publish data in a way that might be conceived as a ranking of the states. Therefore, the reports mainly present statistics alphabetically according to the nation’s name. Some are also presented according to numeric value. Comments are sparse, mainly limited to what can be read directly from the tables and figures. CEPEJ also has been reluctant to analyze the immense variations in the figures. The main justification is fear that such analysis might easily amount to criticism of several states. The variable quality of the data presented also might lead to severe misjudgements of the findings.

From a scientific point of view, such a presentation appears unsatisfactorily, and the alphabetical order makes it difficult to read the essential information from the tables and figures. CEPEJ has, however, encouraged everyone interested to make their own analysis of the findings and the intention is to make the data set downloadable from the Internet free of charge, making it possible for everyone to make their own analysis. The 2008 report also contains more analyses and rankings than the previous versions.

Due to the vast methodology problems described, one might ask if the European survey-project is too ambitious. I still find the CEPEJ study interesting and able to provide data of value. It is a huge enterprise. It includes many jurisdictions that have been absent in judicial research. More than 100 people have been involved in the data collection of the last report. The leading French newspaper “Le Monde” spent a full page on the last report when it was published in October.  

Since the governments studied have decided to set up CEPEJ themselves and also confirmed the study, their commitment to providing the data asked for was far greater than in a study conducted by an independent institution like a university or a research institute. There is reason to believe that governments, if necessary, also will develop new statistics to meet the needs of CEPEJ and contribute to the building of a common European statistics on judicial systems. Hopefully, it might initiate both a more sophisticated analysis and reforms of judicial systems in Europe.

Missing answers also indicate a lack of knowledge and control from the authorities in question. For CEPEJ also these findings have been of significant value. Many questions on time managements showed limited response from the jurisdictions with the largest backlogs, and gave a strong indication that both the administrative authorities and the courts lacked proper tools for controlling time use.

4 DELAY

The other major field of work for CEPEJ has been delay. A working group developed a document labelled a ‘Framework Programme’. It contains a wide range of general strategies – labelled ‘action lines’ – for increasing the speed of European judicial systems. Most of them concern time-management systems for court and court administrations.

CEPEJ has put up a network of “pilot courts” with 1-3 courts in each country, for testing new tools for time management, and has issued several reports and guidelines for clearing out cases within the limit of “reasonable time” set by article 6. The reports and guidelines are available at the website. 

Timeliness does not only involve the courts and their administration. If the courts’ working methods change, then the tasks for lawyers and parties also will change.  I will summarize a few of the action lines that will impact on the tasks of the parties and their lawyers and involve them more in the management of their case.

•  Development of procedures requiring the courts and the parties to agree on a time schedule. Lawyers might have to prepare their clients to make them understand the consequences of alternative timetables and decide between them.

•  Discussions with the parties about the use of ADR as a faster alternative to court proceedings. To make an informed choice, the courts and the lawyers must see to that parties understand the difference between the ADR alternatives in question and the ordinary court proceedings.

•  Sanctions against abusive processes.

•  Better complaint mechanisms against delay in ongoing matters. Lawyers must master such complaint systems to be able to use them for their clients.

•  Higher priority on quality at the first instance than to the appeal level. The demands for preparation might increase, also for lawyers and parties.

•  Multi tracking – meaning that cases might be handled and progressed differently by the courts, according to their complexity, importance to the parties, state of emergency, etc. Lawyers will have to adjust to a more flexible time planning.

•  Special attention to the most vulnerable categories of participants in the organization of hearings, with special attention to victims of violent crime. Legal aid clients obviously are an important target group for such concerns.

•  The professional actors (judges, prosecutors, lawyers, bailiffs, etc.), their professional organizations and the users of the courts and their organizations ought to become more involved in the management of the courts. If the problems of the poor in the judicial systems are to be addressed properly, both poor people’s organizations and legal aid lawyers must be involved in such processes.

•  IT-strategies and information systems ought be introduced and developed on a broad scale both for court management and for helping people solving legal problems. It will mean new demands on the skills of lawyers, and might open new possibilities for IT-assisted dispute resolution systems.  

5 LEGAL AID

According to the ‘Medium-Term Activity Programme’ of CEPEJ, access to courts an essential issue when dealing with the efficiency of justice and the application of Article 6 of the Convention. A new working group was proposed with the objective to improve the legal aid schemes of the member states.  A new working group was proposed with the objective

‘to facilitate the access to court to all citizens, without hampering the efficiency of the functioning of the justice system and enabling the smooth application of the instruments and standards of the Council of Europe as regards legal aid’.[5]

So far, CEPEJ has not had the means to establish this expert group although the work done by CEPEJ in other fields provides several indications about the importance of sufficient legal aid schemes for fulfilling the obligations of a fair justice system in article 6.

The questions on legal aid in the European Surveys have not been many, mainly mapping some basic information about the schemes. I think, however, that a closer look at the information gathered, reveals several interesting findings.

A listing of the total 2006 public expenditure on courts and legal aid together shows tremendous variations. Monaco reports 131 euro per inhabitant and Northern Ireland 106, while Armenia, Azerbaijan and Moldova used 1 Euro.[6]

Looking specifically into legal aid, expenditures varied enormously among the states that could provide figures. While Ukraine and Georgia used 0, 01 euro per inhabitant and Hungary 0, 02, England and Wales spent 56 euro per inhabitant, Northern Ireland 55 while Scotland spent 47 euro per inhabitant.[7]

The legal aid budget only made up a very small share of the court budget in several countries, while the UK jurisdictions spent far more on legal aid than on courts. [8]

All countries responded that they provide legal representation in court cases in criminal matters and 38 in civil matters.[9]

The number of legal aid grants also varies significantly. Georgia proved one grant per 10 000 inhabitant, Latvia 3 and Russia 4while the Netherlands report 254, Northern Ireland 445 and England & Wales 495.[10]

The data gathered are rough and basic. I still believe they give an impression of an immense variation in the access to legal aid in Europe. Although the sources of error are vast, one cannot escape the notion that the enormous variation in legal aid funding among European countries also mean that the legal aid offered to the poorer part of the population differs significantly both in volume and quality. A proposition that one will find widespread violations of the entitlement to legal aid embodied in Article 6 in the countries with the poorest funding seems close at hand. The figures strongly suggest that states also prioritize very differently between civil and criminal legal aid.

6 CONCLUSIONS – THE POWERS OF CEPEJ

Let me end with some remarks on the power of CEPEJ power to influence judicial systems around Europe:

- CEPEJ provides technical assistance upon request to any member of the Council of Europe in developing their judicial systems.

- CEPEJ is a catalyst for exchanges of reform ideas between different jurisdictions, through seminars, conferences, the website, and a ‘clearing-house’ for studies and reform ideas.

- CEPEJs proposals have backing both from the Council and the Court.

There is reason to believe that countries with deficits in their judicial aid systems will be receptive to reform models from CEPEJ. Since both the member states and the Council back the work of CEPEJ, implementing its proposals will minimize the risk for criticism and proposals for new legally binding regulations. CEPEJ also has backing from the Court. In a recent decision on the entitlement to a trial within reasonable time, the Court made an explicit reference to a statement in the ‘Framework Programme’, and said that instituting a system of compensations for violations of Article 6 that only repairs some of the damage done is not sufficient. Remedies must effectively prevent delay (Sordino v Italy, §§ 73 and 74).  Adopting proposals from CEPEJ will therefore help governments to avoid being found in violation of the Convention. 

-       The risk of being found in violation.

Governments dislike the Court finding against them. Since the Convention allows individuals to sue, the risk is significantly higher than for most other human rights instruments that do not allow individuals to complain. Several states prefer to operate with safety margins and change dubious rules or practices as a precaution instead of risk being found in violation of the Convention. Many states – often the small and rich ones – emphasize the development of human rights as an important part of their foreign policy. They are then vulnerable to complaints of not fulfilling them at home.

-       National courts

As mentioned the Convention obliges all states to provide an effective legal remedy in national law violations. Everyone is therefore entitled to sue their government for violations of article 6, for example on timeliness or legal aid, both before national courts[11] and – if not successful – before the Court.

-       EU’ accession process.

Another important enforcement vehicle comes from the accession process for countries wishing to join the European Union. They are all required to meet a set of conditions – the Copenhagen criteria – before they can become members. They must guarantee democracy, the rule of law, human rights and the protection of minorities. The standards applied on the judicial systems are derived from the provisions in the Convention, especially from Article 6. Monitoring reports show that the judicial systems and legal aid schemes of the applicant countries have deficits that they must sufficiently remedy before they can join. Knowing the strong drive of the new states to become part of the European Union, there is reason to believe that the accession process also will facilitate the adoption of reform proposals from the CEPEJ.