Strasbourg, 9 November 2005
CEPEJ-TF-DEL (2005) 12
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
(CEPEJ)
TASK FORCE ON TIMEFRAMES OF PROCEEDINGS
(CEPEJ-TF-DEL)
3rd meeting, 7-9 November 2005
MEETING REPORT
At its 3rd meeting, the CEPEJ-TF-DEL:
(i) continued drafting the Compendium of Best Practices designed to implement the Framework Programme of the CEPEJ for optimum and foreseeable timeframes for judicial proceedings;
(ii) finalised the draft checklist of indicators on time management in courts, with a view to submitting it to the CEPEJ for adoption at its 6th plenary meeting;
(iii) agreed various future co-operation arrangements with the Network of Pilot Courts.
1. The Task Force on Timeframes of Proceedings (CEPEJ-TF-DEL) of the European Commission for the Efficiency of Justice (CEPEJ) held its 3rd meeting in Strasbourg from 7 to 9 November 2005. The Task Force was chaired by Mr Alan UZELAC (Croatia).
2. The agenda and list of participants appear in Appendices I and II to this report.
I. Information by the Secretariat
3. The Chair of the CEPEJ, Mr Eberhard DESCH (Germany), reported on the annual seminar of the International Union of Judicial Officers (UIHJ) on the contribution made by institutions to the creation of an area of freedom, security and justice, held in Reims on 3 and 4 November 2005 and at which he had been present. UIHJ members had expressed keen interest in the current and future work of the CEPEJ and were planning to enter the 2nd “Crystal Scales of Justice” competition in 2006.
4. As part of the UK Presidency of the European Union, a conference on civil justice had been held in Edinburgh from 24 to 26 October 2005. This conference had been chosen as the key event of the European Day of Civil Justice, during which the first-ever award ceremony for the Crystal Scales of Justice – a European prize for innovative practice contributing to the efficiency of civil justice – had been held. The winner was the Rovaniemi Court of Appeal (Finland) for its project on the quality of judicial work.
5. Details of the seven projects singled out by the Jury appeared on the CEPEJ web site. A publication would also be produced to ensure that the initiatives were widely disseminated.
6. Ms Jana WURSTOVA (Czech Republic), President of the Jury, spoke of the high standard of the 22 entries by 15 states and noted the large number of projects apt to be of interest to the Task Force, in particular the winning project. The competition was a testimony to the excellent co-operation with the European Commission’s European Judicial Network in Civil and Commercial Matters and helped raise the profile of the Council of Europe’s work.
7. Ms WURSTOVA stressed the need to attract more entries from central and eastern European states for the next Crystal Scales of Justice competition.
8. The Secretariat took advantage of John STACEY’s presence to express its sincere gratitude to the United Kingdom for the able manner in which it had organised the Edinburgh conference and the warm welcome extended to participants.
9. The Secretariat reported on the conference on “practical ways of combating delays in the justice system, excessive workloads of judges and case backlogs in Slovenia and Croatia” designed to assess follow-up to the CEPEJ’s assistance activities in 2004, and which was held in Ljubljana on 27 and 28 September 2005. It was felt that the very detailed discussions would further the process of reform in the two member states, which were planning to continue their dialogue within the framework of the CEPEJ.
II. Study of the situation with regard to judicial timeframes in ECHR case-law
10. The Secretariat reported on the progress made by Ms Françoise CALVEZ, Judge, Director of the European Law Observatory at the French Court of Cassation, in preparing the report on the situation with regard to judicial timeframes in Council of Europe member states based on the case-law of the European Court of Human Rights. In order to supplement the Court’s case-law and other relevant documents provided by the Secretariat, Ms CALVEZ had travelled twice to Strasbourg, where she had managed to visit the ECHR library and meet with staff from the Court’s Registry, the Department for the Execution of Judgments and the Secretariat of the Steering Committee for Human Rights (CDDH).
11. A progress report would be sent in mid-November to the Secretariat which would arrange for it to be translated and sent as quickly as possible to members of the Task Force so that they could read it and submit comments in writing. Depending on the state of preparation of the report, the Task Force would decide whether it should be submitted to the CEPEJ for information at its 6th plenary meeting in December. It was pointed out that this was a lengthy exercise that required plenty of time for discussion. The final report was due for the first half of 2006.
III. Study “Time management in Nordic courts”
12. The CEPEJ-TF-DEL welcomed Ms Mirka SMOLEJ (Finland) from the Finnish National Research Institute for Legal Policies, who had been tasked with preparing the study on “Time management in Nordic courts”.
13. Ms SMOLEJ said that since the beginning of October, her job had involved summarising all the existing studies and reports on judicial systems in Denmark, Finland, Norway and Sweden and which contained in particular: (i) descriptions and studies of the use of time and existing time management systems; (ii) proposals, ideas and strategies for reform aimed at improving the way timeframes were managed and calculated; (iii) studies focusing on waiting times.
14. Ms SMOLEJ said that the aim was not to create new data but to summarise existing relevant information in Nordic countries. From an initial look at the reports in her possession, she had observed that they were mainly administrative reports describing a given situation or recommending new measures, but that they contained little in the way of practical steps that could be directly applied by the CEPEJ.
15. In order to give the expert more material to work from, the Task Force and the Secretariat suggested supplying her with a number of CEPEJ working papers on similar topics, some of which contained practical measures. Notable examples included the replies from the designated pilot courts in the Nordic countries and the studies by the experts MM M. FABRI (Italy) and P. LANGBROEK (Netherlands).
16. An exchange of views was held on the structure of the report: the Task Force seemed to favour a thematic rather than a country-based layout, whilst agreeing, however, that it should be for the expert to decide at the time of drafting.
17. The task of analysing the various documents was to be completed by the end of 2005 and the initial version of the report was expected to be available at the end of February 2006. Members of the Task Force said they would like to examine the report so that they could comment on it before a final version was drawn up, to be distributed in April at the first meeting of the Task Force in 2006.
18. The Task Force thanked Ms SMOLEJ for explaining the drafting procedure and Mr Jon JOHNSON (Norway) for the vital role he had played in initiating and preparing the report.
IV. Compendium of Best Practices for implementing the lines of action set out in the Framework Programme on timeframes
19. The Secretariat reminded participants of the general aim of the Compendium of Best Practices: to provide policy-makers, judicial bodies, courts and legal professionals with practical ways of implementing the lines of action set out in the Framework Programme “a new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe” (CEPEJ (2004) 19 Rev 2), by supplementing them with practices that had already been tried in various states and which could serve as models for other states experiencing problems with judicial timeframes.
20. In the opinion of the Task Force, it was important to adopt an educational approach and to provide a guide that was easy to use. To avoid having too many cross-references, the Compendium could be laid out not according to lines of action but rather according to various themes such as: description of the problems encountered in states; existing legislation; planned reforms, with an indication of the advantages and disadvantages; existing good practice in dealing with these problems. In the appendix, there could be a page explaining each good practice mentioned in the main body of the text and a list of contacts in case the reader required further information. The Task Force agreed to return to the subject of the final layout of the Compendium later.
21. It was pointed out that the object of the exercise was to indicate, as far as possible, good examples that could be applied by all courts, even if that meant the list would be fairly short.
22. The Task Force went on to discuss each line of action in turn and examined the comments made by members of the Task Force since the previous meeting, in keeping with the distribution of tasks agreed on that occasion:
§ Line of Action 1: Acting on resources (K. DECKER’s comments)
23. This line of action could not be regarded as a priority insofar as any good practice identified by the CEPEJ in this area would have very little impact on the level of states’ justice budgets. Some good practices were nevertheless worth highlighting as regarded the distribution of resources (eg: Lamicie model in the Netherlands for allocating budgets within courts). The Group further believed that the level of the justice budget was a political matter and that there was no point in asking courts about the relationship between the amount of funds available and the length of proceedings.
§ Line of Action 2 : Acting on the quality of legislation
24. The Task Force felt that acting on the quality of national legislation was outside the CEPEJ’s remit, as it stood at present.
§ Line of Action 3: improving the foreseeability of timeframes (J. KRANENBURG’s comments)
25. From a reading of the replies provided by the pilot courts, various key elements emerged for the following 3 indicators: (i) performance indicators and targets: national provisions, targets within courts, specific practices in some courts; (ii) obligation to inform: general principle, new technology systems; (iii) evaluation and monitoring of timeframes: external monitoring, internal evaluation, new technology systems.
26. Participants also considered a number of other practices, whilst bearing in mind the need to examine them critically and the possibility that what worked in some states might not work in others: planning judges’ work, the possible introduction of statutory time-limits, easier access to information about courts’ activities.
§ Line of Action 4: defining and monitoring standards for an optimum timeframe for each type of case
27. Practice in the pilot courts indicated that there were preferred, optimum or maximum timeframes. It was important to be realistic, however, and begin by introducing a system for setting broadly “desirable” timeframes for certain procedural acts or minimum national targets, or to try to avoid unnecessary delays.
§ Line of Action 5: Developing information and communication strategies
28. There was a need to change users’ attitudes towards the justice system by introducing a more transparent system (by creating web sites containing, for example, a schedule of hearings or statistics) which users could access freely (enabling them to communicate with various court officials, for example) and comment on (by making complaints, for example).
29. It might also be worth considering using the teachware currently available for the justice system in general to educate users about the role that they could play in reducing the length of proceedings.
30. The European Day of Civil Justice could also be used to encourage states to introduce or improve PR policies within courts.
31. Another very important area was relations between the justice system and the press. It might be helpful, for example, to introduce a national system of external communication that would specify the type of information that should or should not be provided by the courts to the media and, if so, when.
§ Line of Action 6: Identifying pilot courts concerning the reduction of length of proceedings
32. This line of action had already been implemented.
§ Line of Action 7: Allowing adjustment of timeframes ( J. WURSTOVA’s comments)
33. It was important that proceedings be able to be planned, in consultation with the parties, although not all disputes required the same degree of foreseeability. In some systems, this necessary co-operation between the judges and the parties would only be possible if judges changed the way they viewed their job and status, ie if there were a genuine “change of culture”.
34. The lawyers and parties should not be the only ones to feel concerned about the impact of excessively lengthy proceedings or failure to enforce court decisions properly: genuine co-operation between judges and lawyers on how proceedings were conducted would be far more effective. The judge’s involvement or even intervention in the proceedings should also be regarded as a way of speeding them up: possibility of imposing fixed time-limits, penalties for lawyers who used delaying tactics, etc.
35. Care must also be taken to ensure that proceedings did not suffer unnecessary delays owing to “technical hitches”, whether due to the complexity of the case or to insufficient human resources or new technology facilities.
§ Line of Action 8: Acting on the number of cases dealt with by the court by ensuring appropriate use of appeals applications (comments by M. VRONTAKIS and J. KRANENBURG)
36. Practice in the pilot courts indicated that many states had introduced procedures for limiting appeals, which would have to be examined in depth.
§ Line of Action 9: Acting on the quality of proceedings (comments by M. VRONTAKIS and J. WURSTOVA)
37. It was agreed that when translating this line of action into good practice, the working group should be guided mainly by the reports produced by the Consultative Council of European Judges (CCJE) and the Magendie report on the efficiency of justice. The Secretariat told the experts that the President of the Regional Court of Paris, Jean-Claude Magendie, author of the report, was willing to attend a hearing at the next meeting of the Task Force.
§ Line of Action 10: Selecting cases according to their complexity – Defining priorities in case management (J. KRANENBURG’s comments)
38. This line of action called for special attention to be given to the meetings that took place before trials as well as to the preliminary hearings.
39. It was important to note that some pilot courts considered this line of action inadvisable.
§ Line of Action 11: Organising trials to reduce waiting time, while paying special attention to victims and witnesses ( J. JOHNSEN’s comments)
40. The CEPEJ report “European judicial systems 2002” found that some judicial systems afforded the possibility of an in-depth examination of waiting times and pauses in proceedings, even if courts did not yet take these into account in their time management systems when setting mandatory time-limits and deadlines.
41. The aforementioned CEPEJ report also contained valuable information for framing measures to improve matters for victims and witnesses.
42. A distinction needed to be made here between waiting time, particularly in the case of vulnerable persons, during trials, or in order to obtain a trial date, and pauses in proceedings when nothing happened. In the former instance, systems could be introduced to make better use of buildings, the time freed up through cancellation of a trial or judges’ availability. It was important here to consider the measures recommended in Line of Action 13: Making the rules on territorial jurisdiction of first instance more flexible.
§ Line of Action 12: Setting up a procedure to revive a pending case ( M. VRONTAKIS’s comments)
43. This measure was closely related to the one designed to eliminate pauses in proceedings. It must not, however, create a further stage in the main proceedings, which would merely serve to increase the overall length of the proceedings. It would be worth considering here whether such procedures might lead to penalties being imposed on judges in certain cases.
§ Line of Action 13: Organisation of the transmission of a case from a non-competent court to the competent court – Making the rules on territorial jurisdiction of first instance courts more flexible ( K. DECKER’s comments)
44. This Line of Action should be addressed in conjunction with Line of Action 11.
§ Line of Action 15: Developing the training of judges and prosecutors and, more generally, all the professionals concerned (J. WURSTOVA’s comments)
45. It might be worth looking into the possibility of providing a single training course for judges and prosecutors and even lawyers, such as already existed in some states.
46. Basic and further training should make legal professionals aware of the need to comply with procedural timeframes and meet users’ needs. In-service training in European law and new legislation should be recommended; the introduction of work placements in training courses and the widespread use of new technologies in day-to-day business were also considered important.
47. Another area worth looking at was how to balance the training needs of university graduates who wished to become judges with those of other individuals who were recruited as judges after considerable experience in another legal profession.
48. The following lines of action were addressed in a single discussion on co-operation between all the individuals involved in legal proceedings:
§ Line of Action 14: involving the relevant categories in the administration of the courts
§ Line of Action 16: setting up “contracts of objectives” between courts and lawyers – organising the relationships with lawyers (comments by J.WURSTOVA)
§ Line of Action 17: Enhancing the responsibility of judicial experts as regards judicial timeframes – Improving the monitoring of compliance with the time-limits by judicial experts ( K. DECKER’s comments)
§ Line of Action 18: Involving judicial professions in the efforts towards optimum and foreseeable timeframes
49. Members of the Task Force were asked to continue working on the Compendium, in the light of the present discussions and in keeping with the distribution of tasks agreed at the 2nd meeting of the CEPEJ-TF-DEL (see Document CEPEJ-TF-DEL (2005) 11 – Appendix III) and to send their contribution (which should be as detailed as possible) to the Secretariat by 30 January 2006. The other experts were urged to send their comments and suggestions, if any, to the “lead” expert for the relevant line of action.
50. In carrying out this task, members of the Task Force could draw on the expertise of the network of pilot courts, in particular by asking them about good practice concerning the lines of action for which they were responsible. To avoid inundating the pilot courts, any questions should be sent to the Secretariat which would contact the courts individually and report back. The experts were, however, at liberty to contact the pilot courts directly in order to discuss certain points in greater depth.
51. Subject to CEPEJ approval at its 6th plenary meeting (Strasbourg, 7-9 December 2005), the Secretariat would also take it upon itself in early 2006 to appoint a scientific expert to compile the contributions submitted by members of the Task Force and to prepare a preliminary draft Compendium which would be examined by the CEPEJ-TF-DEL and the Network of Pilot Courts at their forthcoming meetings.
The work of the scientific expert would be that much easier if, for each line of action, members’ contributions contained firstly some general information and, secondly, a preliminary selection of best practices chosen from those presented by the pilot courts.
52. In order that this Compendium should bring genuine added value to existing works on reducing the length of proceedings, the CEPEJ-TF-DEL suggested that the best practices contained therein be “road-tested” by the pilot courts, on behalf of the CEPEJ.
V. Draft checklist for time management
53. The CEPEJ-TF-DEL examined the revised draft checklist for time management (Document CEPEJ-TF-DEL (2005) 6 Rev 3) containing indicators for analysing the length of proceedings in the justice system. It reminded participants that this document had been created as a tool for internal use by policy-makers, courts and legal professionals in member states. It should enable them to obtain detailed information about the use of time in legal proceedings and, hence too, about the causes of delays, so that they could then remedy them via their own means.
54. The changes made to the draft were designed:
§ in the case of indicator ONE, to make courts aware of the importance of the length of the pre-judicial stages;
§ in the case of indicator TWO, to involve all the parties concerned in drawing up standards designed to establish optimum timeframes, in particular legal professionals;
§ in the case of indicator FOUR, to identify, or show how to list, the key stages in the proceedings.
55. The Task Force adopted the draft checklist and decided to submit it to the CEPEJ for approval at its 6th plenary meeting.
VI. Establishment of a typology of cases and the subsequent judicial timeframes
56. The Task Force examined the typologies of cases provided by the Netherlands (Lamicie model) and Austria. Other models were also mentioned, including the British, Finnish and Norwegian models.
57. The Lamicie model, for example, which was a way of allocating budgets to courts, involved calculating the time actually spent on each case by a judge or other officer of the court.
58. The CEPEJ-TF-DEL instructed the Secretariat to examine this matter further and to ask CEPEJ members, the pilot courts and the national correspondents responsible for co-ordinating the collection of data for evaluating judicial systems for other models with a view to producing a typology (if appropriate) by the end of 2007.
VI. Co-operation with the Network of Pilot Courts
59. The Task Force discussed the most effective way of working with the Network of Pilot Courts.
60. The competencies and expertise of these courts should serve to enhance the work being done by the CEPEJ, especially on court management, thanks to regular contact between the CEPEJ, its working groups and the Network. As well as commenting and providing information on the implementation of the Framework Programme, the Network could be consulted about the two studies being prepared by the Task Force (see items II and III above).
61. If they agreed, the pilot courts could serve as a test bed for assessing the quality and/or advisability of various measures proposed by the CEPEJ (eg the checklist on time management or certain measures selected from the Compendium of Best Practices).
62. It was also suggested that they be invited to enter the next “Crystal Scales of Justice” competition.
63. The Task Force stressed the need to maintain regular contact with the Network and noted that a “CEPEJ newsletter” could be a useful communication tool in this context.
64. It was proposed that some way be found of drawing attention to courts’ membership of the CEPEJ network (eg by providing them with a plate to be affixed at the entrance to the court).
65. To mark the Romanian Chairmanship of the Committee of Ministers of the Council of Europe (November 2005 – May 2006) and in response to the Action Plan adopted at the Third Summit of Heads of State and Government (Warsaw, 16-17 May 2005), the CEPEJ had been invited to hold the first meeting of the Network of Pilot Courts in Romania. This conference could take place in the first week of April 2006 and tie in with a meeting being held by the Venice Commission on national remedies in case of violation of the reasonable timeframe requirement. The CEPEJ-TF-DEL could also meet on that occasion.
66. The Task Force endorsed the CEPEJ Bureau’s proposal to invite members of the Bureau and the Chair of the Working Group on Evaluation of Judicial Systems (CEPEJ-GT-EVAL) to this conference.
67. The possibility of holding part of the conference in the form of workshops was mentioned, provided sufficient funds were available for interpretation. For budgetary reasons, the Council of Europe would only be able to meet the travel and subsistence expenses of one representative per pilot court (all the courts would be invited, even if more than one had been designated by the same state), to be designated by the court concerned. States could send other representatives of these courts at their own expense, if they felt, for example, that the conference should be attended by a judge and an administrator, or the president of the court and the person directly responsible for certain projects which were the reason the court had been designated as a pilot court.
68. Looking ahead to this first meeting of the Network, it was agreed that the Secretariat would sent out reminders to any states which had not yet designated pilot courts (asking them to designate only a limited number). Those states which had already designated pilot courts were asked not to designate any more.
69. Broadly speaking, while it was important to enable as many courts as possible to attend the conference, care should be taken to ensure that these courts had already demonstrated their intention to take an active part in the CEPEJ’s work by responding to the Secretariat’s calls for contributions (eg comments on the Framework Programme).
70. In the light of the present discussions, the Secretariat would prepare a draft programme for the meeting of the Network and would consult members of the Task Force by e-mail.
APPENDIX I
AGENDA
1. Adoption of the agenda
2. Information by the Secretariat
3. Study: « Time management in Nordic courts »: exchange of views with the researchers
4. Information on the study of the situation of judicial timeframes in the ECHR case-law
5. Compendium of best practices
§ Presentation of the findings by the TF-DEL members
§ Preparation of the Compendium
6. Tool for measuring judicial timeframes
§ Finalisation of the draft check list of indicators for the analysis of lengths of proceedings in the justice system
§ Establishment of a typology of cases and the subsequent judicial timeframes
7. Preparation of the meeting of the Network of Pilot courts /
8. Other business
APPENDIX II
List of participants
Jon T. JOHNSEN, Professor in Law, Dean of the Faculty of law, University of Oslo, NORWAY
Janny C. KRANENBURG, Vice-President, Court of Appeal of s’Hertogenbosch, Sector Civiel Recht II, THE NETHERLANDS
Gabor NAGY, Conseiller Référendaire, Directeur du Bureau des Droits de l’Homme à la Cour Suprême BUDAPEST, HONGRIE
Alan UZELAC, Ph.D. Professor at the Faculty of Law, University of Zagreb, CROATIA (Chair of the CEPEJ-TF-DEL/Président de la CEPEJ-TF-DEL)
Michael VRONTAKIS, Vice-Président du Conseil d’Etat, , ATHENES, GRECE (apologized / excusé)
Jana WURSTOVA, Head, International Department, Czech Bar Association, PRAGUE, CZECH REPUBLIC
Eberhard DESCH, Head of Division of International Law, Federal Ministry of Justice, BERLIN, GERMANY (Chair of the CEPEJ / Président de la CEPEJ)
John STACEY, Head of Civil and Family Procedures Branch, Customer Services Directorate, The Court Service HQ, LONDON, UNITED KINGDOM
OBSERVER / OBSERVATEUR
Klaus DECKER, Counsel, Justice Reform Practice Group, WORLD BANK, WASHINGTON D.C, UNITED STATES OF AMERICA
SCIENTIFIC EXPERT / EXPERT SCIENTIFIQUE
Mirka SMOLEJ, Researcher at the Finnish National Research Institute for Legal Policies, HELSINKI, FINLAND
CEPEJ SECRETARIAT
Fax: +33 3 88 41 37 43
e-mail: [email protected]
Stéphane LEYENBERGER, Directorate General I - Legal Affairs, Secretary of the CEPEJ / Direction Générale I - Affaires Juridiques, Secrétaire de la CEPEJ, Tel : +33 3 88 41 34 12, e-mail: [email protected]
Muriel DECOT, Directorate General I - Legal Affairs, Co-Secretary of the CEPEJ/ Direction Générale I - Affaires Juridiques, Co-Secrétaire de la CEPEJ, Tel : +33 3 90 21 44 55, e-mail : [email protected]
Jean-Pierre GEILLER, Directorate General I - Legal Affairs, Direction Générale I - Affaires Juridiques, Tel : +33 3 88 41 22 27, e-mail : [email protected]
Marie MORGAN-WELS, Directorate General I -Legal Affairs / Secrétaire, Direction Générale I - Affaires Juridiques, Tel. +33 3 90 21 50 59, Fax : +33 3 88 41 37 43, e-mail: [email protected]
INTERPRETERS / INTERPRETES
Nicolas GUITTONNEAU
Bettina LUDEWIG