MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1406/H46-6

9 June 2021

1406th meeting, 7-9 June 2021 (DH) Human rights   H46-6 Bell v. Belgium (Application No. 44826/05) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)338, CM/Del/Dec(2020)1377/H46-5

 

Application	Case	Judgment of	Final on	Indicator for the classification
44826/05	BELL	04/11/2008	06/04/2009	Complex problem

Case description

The Dumont group concerning the excessive length of judicial proceedings (civil and criminal) was closed (17 cases) in December 2015 (Final Resolution CM/ResDH(2015)245). The examination of necessary general measures continued, however, with the Bell group (seven cases) concerning the excessive length of proceedings mainly of civil cases at first instance between 1981 and 2011 (violations of Article 6 § 1).

In September 2018, the Committee of Ministers closed the examination of six cases in the group, having regard to the individual measures adopted in those cases, recalling that the general measures required continued to be examined within the framework of the Bell judgment (CM/ResDH(2018)277). In December 2018, the Committee decided to end its supervision of the situation of labour tribunals and courts, and of criminal cases of the Court of Cassation’s Dutch-language chamber, thus limiting its examination to the excessive length of civil proceedings before first instance tribunals (CM/Del/Dec(2018)1331/H46-4).

Status of execution

In June 2020, the Committee expressed its “deep concern in the face of the persistent absence of data concerning the effective processing time of civil cases at first instance”. In case of non-transmission of that data before March 2021, it instructed the Secretariat to prepare a draft interim resolution for examination at its meeting in June 2021. “In view of the persistent excessive length of certain proceedings which raise doubts over the effectiveness of the domestic compensation remedy”, the Committee asked “for recent information about its functioning in practice (in particular, processing times, prescription and reparations granted), when it is intended to redress the excessive length of criminal proceedings”. Lastly, pending the implementation of the management autonomy of courts and tribunals and a new law on their financing, it invited the authorities “to reinforce quickly their means, in order to fully fulfil their mission under Article 6”.

On 26 March 2021, a new action plan was transmitted (DH-DD(2021)338). The authorities indicate that swifter justice is one of the flagship objectives of the new Minister of Justice (in function since the beginning of October 2020). Several areas of action have been identified, including use of alternative dispute resolution, the digitization of Justice, the upgrading of judicial functions and the recruitment of judges and support staff. An additional budget for the Justice system and its digitisation is foreseen. Lastly, the data on the length of proceedings requested by the Committee should be available still in 2021.

1)     Measures aimed at reducing the workload of courts and tribunals

The authorities stress that the impact of measures taken (notably the generalisation of the single judge and the deletion of the obligatory advice of the public prosecutor in many cases, see CM/Notes/1331/H46-4) to reduce the length of civil proceedings will be assessed to consider possible improvements.

In addition, the implementation of alternative modes of dispute resolution, judicial (family conciliation chambers already present in some tribunals) and extrajudicial (a future Federal Mediation Commission with a mediation service) should be encouraged. The aim is to extend mediation to all socio-economic fields.

In 2020, several laws expanded electronic communication to ensure the continuity of activities during the Covid-19 crisis, thus accelerating the digitisation of Justice. Soon, the electronic filing of any document initiating proceedings will be a permanent possibility and, as of 1^st March 2021, decisions can be notified through this channel. Finally, three projects are underway in order to achieve a fully digitised judicial file (the MaCH software, the filing of documents using the E-Deposit platform and the DPA platform for lawyers, a single “Just-on-web” justice portal with digital counters in courthouses).

2)     Statistics concerning civil tribunals at first instance

The authorities have given no new information relating to the “clearance rate” (rate of change in the stock of pending cases). As a reminder, the number of new cases has decreased between 2015 (39,334 cases) and 2019 (29,341). Although the number of closed cases is decreasing and lower, the “clearance rate” remained greater than 100% (114.91% in 2015; 108.16% in 2016; 102.58% in 2017; 109.56% in 2018; 108.30% in 2019), meaning an annual resorption of the backlog of these tribunals. This is explained by the addition of cases "omitted ex officio" (pending and frozen for more than three years) to the number of closed ones.

The authorities do still not have figures concerning the average length of civil proceedings at first instance. As a reminder, the registries (civil and family) were the subject of a change of computer (MaCH) which required adapting the case counting rules. The statistics are still being developed but they should be made available still in 2021, subject to the possible emergence of major quality problems.

Finally, the authorities stress that the volume of civil and administrative first instance cases in Belgium is significantly higher than the European median,[1] showing, according to them, that access to justice is guaranteed there and making it possible to explain, in part, the judicial backlog in the country.

3)     Information on the compensatory remedy to complain about excessive length of proceedings

The authorities indicate that it is not possible to respond to the Committee's request for information, as compensation remedies for excessive length of criminal proceedings are not registered under a specific code but under the general code of “quasi-tortious liability”.[2] The data requested by the Committee are thus difficult to identify. However, such types of cases would be rather limited (for example, they would not have arisen in a large first instance tribunal in the last ten years). Finally, the amounts allocated for compensation would not be recorded in the IT tool.

4)     Project for a better distribution of resources between courts and tribunals

The authorities do not indicate any progress on this subject. As a reminder, as part of the preparation of an autonomous management for judicial organisation (implementation of the Law of 18 February 2014), the CCT (College of courts and tribunals) aims to create a model for internal allocations (AMAI) in order to better distribute resources between courts and tribunals, taking into account the workload. Its development depends on the above-mentioned uniformisation of case counting rules and definition of cases, and of the use of computer applications. This project remains the first priority of the CCT. Its main lines will be included in a financing law which will replace the current “obsolete” legal and regulatory provisions on staff frameworks. Pending its implementation, the authorities are examining how to introduce more flexibility into the current frameworks.

5)     Developments in the budget and human resources of the judicial service

As previously indicated, since 2014, the staff budget for tribunals and the public prosecution service has increased from 634 million euros in 2014 to 694 million in 2019. Its evolution is regularly monitored by the executive which cross-checks budget data with the full-time staff in service. Unlike other public services, the judiciary was able to maintain, even increase its human resources, from 10,458 people in 2017 to 10,560 in 2019[3].

The authorities stress that the new Government's agreement of September 2020 provides that an additional amount of 300 million euros will be invested annually for Justice (50 for its digitisation). It is also planned to upgrade the functions of judicial expert and magistrate, in particular by speeding up the process of entering and recruiting judicial staff. Support is also provided to judges through the recruitment of more prosecution lawyers, criminologists and legal advisers.

Finally, the Belgian State has lodged an appeal (pending) against the judgment of 13 March 2020 of the Brussels tribunal at first instance which ordered it to publish all the vacant positions for judges and clerks  as of 17 January 2020, or whose vacancy is foreseeable within ten months from this date.

Analysis by the Secretariat

At the outset, the Committee may wish again to recall that the problem of excessive length of civil proceedings at first instance dates back to 2005 (CM/Del/Dec(2013)1179/3, De Landsheer judgment, No. 50575/99) and reiterate that excessive delays in the administration of justice constitute a serious danger, in particular for the respect of the rule of law and the access to justice[4].

It is significant in this respect to note that in its first report on the rule of law (2020), the European Commission referred to the monitoring of the Bell case and denounced, like the Committee, the lack of human and financial resources of the Belgian justice system and a “long-standing weakness” consisting in “the absence of reliable and coherent data”, allowing to measure the efficiency of the justice system.[5]

1)     Statistics needed to fully assess the impact of the measures adopted

In 2015, 2018 and 2020, the Committee noted the absence of data on the “disposition time” (estimated (maximum) duration of flow of the stock of pending cases) of first instance civil cases. The Committee could express its deep concern that, despite its second request to receive before March 2021 these data, which have been awaited for many years,[6] they have still not been transmitted, even if the authorities indicate that figures on the duration of the processing of first instance civil cases should still be made available in 2021. It is also regrettable that the authorities have not provided any updated data on their “clearance rate”. Thus, with the current available information, the Committee cannot assess the situation of the civil tribunals of first instance and the impact of the measures adopted with a view in particular to reducing their workload.

Whatever the reason for this statistical deficiency (lack of resources[7] and/or change of software[8]), the complementarity of the “clearance rate” and “disposition time” indicators deserves to be recalled, as being essential for any full assessment of the situation, while noting that the second indicator gives more information concerning the “reasonable time”[9].

Furthermore, as noted in the previous analysis (CM/Notes/1377/H46-5), this deficiency illustrates a more general weakness concerning the judicial statistics in that data transmitted to the CEPEJ are largely incomplete[10] as well as those of the CCT.[11]

However, an action plan was adopted in 2017 to establish uniform and reliable national statistics with a priority on the measures necessary for the aforementioned AMAI model but the CCT requested, to this end, more staff.[12] There is therefore an important delay in achieving these goals, as evidenced notably by the AMAI model, still unfinished.

The High Council of Justice (HCJ) stresses that the use of information technologies in the field of justice can considerably improve the effectiveness, efficiency and quality of service (...). Belgium is clearly lagging behind other countries (…). Reliable statistics are not always available. (…) for certain subjects, international research on the functioning of justice does not have data for Belgium.[13]

Given the persistent lack of comprehensive data on first instance civil tribunals, which has for many years prevented it from fully assessing their situation and the effectiveness of the impact of the measures adopted to reduce their workload in particular, the Committee may wish to adopt the interim resolution prepared by the Secretariat, in accordance with the decision adopted at its 1377^th meeting. In this context, it may wish to urge the authorities to devote all the necessary means to provide by June 2022 at the latest, complete data on the activity of these tribunals. It could also, once again, encourage them to improve judicial statistical information in general, through increased digitisation of Justice and any other appropriate means, including possible recourse to the cooperation of the CEPEJ.

2)         Other indicators of the excessive length of proceedings[14]

As a reminder, in view of elements raising doubts over the effectiveness of the domestic compensation remedy, the Committee, in June 2020, asked “for recent information concerning its functioning in practice (in particular, processing times, prescription and reparations granted)”.

In its report published later, the HCJ estimated in 2019 seven complaints for “slowness of the procedure” well-founded out of 20 admissible, including three in criminal matters, three in civil matters (two cases of first instance and one on appeal) and one complaint concerning a justice of peace.[15] As a reminder, in 2018, the HCJ had declared well-founded 11 similar complaints, including seven relating to civil proceedings at first instance and on appeal (notably because of the non-replacement of judges and the reduction of staff).[16]

Until now, the Court has judged  “effective” the compensation remedy (liability action against the State based on Article 1382 of the Civil Code) to redress the excessive length of administrative, civil and, in principle, criminal proceedings (CM/Notes/1377/H46-5). However, three new applications have been communicated to the Government[17] (Van Den Kerkhof No. 13630/19 and others) relating again to complaints of excessive length of civil proceedings.[18] Like the Committee at its (DH) meeting in June 2020, the Court asks questions on the functioning in practice of this remedy, in particular whether it works without excessive delays[19] and if it can offer an adequate level of reparation.

However, the authorities have given no element of answer, as these remedies for excessive length of proceedings are not recorded in the computer system under a specific code, which would make them difficult to identify.

They indicate, nonetheless, that this type of remedy would be quite limited in practice. In any event, in the absence of any concrete information which prevents it from evaluating its effectiveness, the Committee may wish to reiterate its request for information and invite the authorities to put in place the necessary means to respond to it, by considering, where appropriate, the creation of a specific compensatory remedy in the event of excessive length of proceedings.

3)         Developments in the budget and staffing of the judicial service and model for internal allocations

As noted in June 2020, the budget for judicial personnel (tribunals and courts and public prosecution) increased, between 2014 and 2019, of almost 9 % but its number of staff would have increased only "very slightly" between 2017 and 2019 (a little bit less than 1%).[20] It is regrettable that this concrete information has not been updated, the authorities having limited themselves to indicating positive intentions of the new Government (significant increase in the Justice budget, upgrading of functions and increased support for judges).

While taking note of these new elements still to be implemented, it is recalled that the finding of non-correlation between the budget and the staff seems all the more surprising given that for a long time, staff shortages have been criticised at the various levels of proceedings (CM/Notes/1377/H46-5).[21] In this regard, in March 2020, the first instance civil tribunal of Brussels (pending appeal) judged that the State did not prove that its numerous legislative reforms would have solved the problems linked to the lack of staff, which has a negative impact on the time and quality of access to justice.[22] Lastly, the new civil cases at first instance have decreased significantly, as the ones closed, which could be explained by a shortage of staff.

As for the AMAI project put forward by the authorities for many years, they have not provided any new information, only indicating they will reflect, awaiting its finalisation, on how to introduce more flexibility in the current staff frameworks. However, in order to properly assess needs, it is necessary to have a common, reliable and accepted workload measurement tool,[23] but the lack of uniform and reliable statistics (above) prevents this. In a press release, all the magistrates and lawyers stressed the need, in the meantime, to respect the frameworks of the courts and tribunals and prosecution service.[24]

The Committee may wish to take note of the shared intentions of the authorities to upgrade and strengthen the means of Justice, while inviting them to quickly make these concrete so that Belgian courts and tribunals can fully fulfil their missions under Article 6. It could also encourage them, once again, to deploy all the necessary means, including statistics, to finalise without delay the AMAI model which should allow a better distribution of resources between the courts and tribunals.

Financing assured: YES