Strasbourg, 15 October 2004 CEPEJ (2004) 24
Strasbourg, 22 - 24 September 2004
prepared by Directorate General I – Legal Affairs
1. The Working Party 2004 of the European Commission for the Efficiency of Justice, CEPEJ-GT 2004 (hereinafter referred to as the WP), held its second meeting at the Council of Europe in Strasbourg from 22 to 24 September 2004, with Mr Jean-Paul JEAN (France) in the Chair.
2. The agenda appears in Appendix I and the list of participants in Appendix II to this report.
3. This meeting was preceded on 21 September 2004 by an informal meeting of the national correspondents responsible for replying to the Pilot-Scheme for evaluating judicial systems. This meeting was the subject of the report contained in Document CEPEJ (2004) 25.
I. STATEMENT BY THE CHAIR OF THE CEPEJ
4. The President of the CEPEJ, Eberhard DESCH, informed the WP that, following the hearing to which he had been invited in connection with the 895th meeting of Ministers’ Deputies (15 September 2004), the Ministers’ Deputies had welcomed and expressed firm support for the work being done by the CEPEJ.
5. The Ministers’ Deputies had:
· approved the General Activity Report of the CEPEJ for 2003,
· taken note of the Report on the efficiency of the national judicial systems in their responses to terrorism, forwarded to CODEXTER,
· taken note of the Framework Programme: “A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe” and encouraged Member States to inform the CEPEJ on their observations and priorities in view of drafting concrete proposals for its implementation; they instructed the CEPEJ to elaborate and forward to the Committee of Ministers concrete proposals for implementing the Framework Programme,
· invited Member States to organise events at national level within the framework of the next European Day of Civil Justice (EDCJ), which will take place within the last week of October 2004, and to inform the Secretariat of these events as soon as possible.
II. FRAMEWORK PROGRAMME “A NEW OBJECTIVE FOR JUDICIAL SYSTEMS: THE PROCESSING OF EACH CASE WITHIN AN OPTIMAL AND FORESEEABLE TIMEFRAME”: DISCUSSION ON PREPARATION OF METHODOLOGICAL PROPOSALS IN ORDER TO IMPLEMENT THIS FRAMEWORK PROGRAMME
6. The Framework Programme “A new objective for judicial systems: the processing of each case within an optimal and foreseeable timeframe” had been endorsed by the Ministers’ Deputies. The latter having instructed the CEPEJ to prepare and send them concrete proposals for implementing the Framework Programme, the next meeting of the WP (8 – 10 November 2004) should focus mainly on this subject, so that the Activity Programme for 2005 could be drawn up accordingly. The CEPEJ Bureau would have given some preliminary consideration to the matter at its meeting on 20 October 2004.
7. Implementation of the Framework Programme should be among the priority activities pursued by the CEPEJ under its 2005 activity programme.
III. COMMUNICATION TOOLS OF THE CEPEJ: EXPLORING WAYS OF ENABLING THE CEPEJ TO ACT AS A CLEARING HOUSE FOR THE RELEVANT DOCUMENTS REGARDING THE EFFICIENCY OF JUSTICE, IN PARTICULAR THROUGH ITS WEB SITE
A. Development of the Internet Web Site of the CEPEJ
8. WP members stressed the need to reinforce the CEPEJ as a reference body for information on the functioning of the justice system, and as a source of expertise for member states and interested organisations.
9. They indicated that the information to be disseminated by the CEPEJ must be such as to enable the Commission to provide genuine added value for public decision-makers, the judicial community and citizens, while at the same time noting that legal practitioners should be the main target group in this initiative.
10. This would mean, inter alia, studying and disseminating “Good Practices” with regard to the functioning of the justice system.
11. It was pointed out that the CEPEJ web site was a useful tool for helping the CEPEJ to perform its various tasks: evaluating judicial systems, developing strategies for the efficiency of justice (turning existing standards into practical measures), on the basis of European standards for the quality of justice, and providing targeted assistance for Member States.
Publication of the Evaluation report on judicial systems should namely help to “pull in” visitors to the CEPEJ web site, thus affording the CEPEJ a valuable opportunity to establish itself as a benchmark for the provision of information in the judicial sphere.
Among other things, the site could provide a general description of all the judicial systems across the member states, according to certain uniform criteria.
12. The WP proposed also introducing a "CEPEJ Newsletter", aimed at a network to be gradually set up by the Commission, and which would include the national correspondents responsible for replying to the scheme for evaluating judicial systems. This network could also draw on the two international institutes of procedural law such as the International Association of procedural law.
13. The WP realised that developing this strategy required both technical and legal skills. Member States could be invited to consider lending the CEPEJ specific support in this regard.
14. These proposals are elements which should enable improving the quality and the efficiency of the CEPEJ's Web Site.
B. Drafting of a Thesis
15. The WP also expressed interest in Jean-Paul JEAN’s proposal to oversee a thesis on the efficiency of criminal justice. It would be important in that case to identify ways in which the CEPEJ could support this work.
IV. ANALYSIS OF THE REPLIES TO THE PILOT-SCHEME AND EXAMINATION OF THE DRAFT REPORT
16. The WP examined the pre-draft report prepared by the scientific expert Roland ESHUIS (the Netherlands): "Evaluation of judicial systems 2002" (Document CEPJE-GT (2004)1). The WG welcomed the work carried out by the scientific expert and the other experts who had helped process the data, in particular Hazel GENN, Beata GRUSZCZYNSKA and Jean-Paul JEAN. It highlighted the great quality of this work, both as regards its presentation and its content.
17. In order to better understand the grounds for the difficulties encountered while processing the data, Roland ESHUIS prepared several documents connected to the report: Comments on survey (Document CEPEJ-GT (2004) 2), Questions and answers (Document CEPEJ-GT (2004) 3), Synthesis of the survey (CEPEJ-GT (2004) 4).
18. The WG took note that 39 Stated had answered the Scheme and that the results of 37 States had been taken into account in the pre-draft report. The States which had not answered, or whose answers had not been complete enough to be processed are the following: Albania, Bosnia and Herzegovina, Greece, Luxembourg, Russian Federation, San Marino and Spain
A. The Network of national correspondents for the Pilot-Scheme
19. Members of the WP agreed that the meeting of national correspondents for the Pilot-Scheme (21 September 2004) had been very useful, in particular to enable a common understanding on some questions which had not always been understood in a similar way. Such a meeting allowed as well either redrafting a question to make it clearer or giving precisions to the correspondents so that they could answer according to the expectations of the CEPEJ.
20.The WG invited the CEPEJ to repeat this initiative in 2005, before the deadline for collecting data for the next evaluation exercise. It proposed setting up a network of correspondents for the Scheme, who would thus have de facto status with the CEPEJ.
B. Scientific confirmation of the data processed
21. The WP agreed it was important to present a report that satisfied the need for scientific rigour, along the lines chosen by the scientific expert. Only indisputable data and comments could be included in the pilot exercise report therefore. Data which were not readily comparable from country to country should not be included at this trial stage.
22.It was understood that the report was based on the data as submitted by the national correspondents. The WP felt that the meeting of national correspondents held on 21 September had enabled the correspondents to confirm these data. The experts refrained from making any unilateral changes to these data. Corrections could be made only after the scientific expert or the Secretariat had consulted the national correspondents concerned.
23.The GT agreed that the report was the result of a pilot exercise, with all the limitations and flaws normally associated with an experimental exercise of that kind. It must be stated in the report that owing to the experimental nature of the evaluation, not all of the data collected could be processed, as some were not interpreted in the same way by all States while other data were patently unreliable.
24.The GT was aware that the data included in the report were sensible data, in particular when they are read in a comparative perspective. Therefore the WP insisted on the confidential nature of the report at this stage. This report was given only to the WP members and the Bureau.
C. General structure of the report
25. The report should aim to highlight the trends revealed by data processing, while tying them in with the objectives of the CEPEJ.
26.Following the analysis of the pre-draft report, the following issues were highlighted:
§ the aim of the publication of the results was to rank States, except in the case of graphs where this was necessary for technical reasons;
§ to facilitate the reading of the report, links could be established between the tables and comments contained in the report and the questions of the Pilot-Scheme;
§ the tables and graphs featured could be accompanied by comments explaining their concept and purpose;
§ some of the data were moved to an Appendix to the report, in order to make it easier to read and ensure that it was scientifically accurate, without, however, losing data that, although insufficiently representative, were nevertheless useful.
27. The experts noted in particular two issues that, considering their relevance, should be addressed more in depth by the CEPEJ in its future evaluation exercises: legal aid and the way the different judicial systems dealt with victims.
D. Detailed analysis of the pre-draft report
28.The WP scrutinised the draft report prepared by the scientific expert, in order to provide him with pointers as to how he could review the report. The scientific expert took note of these comments, which would be reflected in a new version of the draft.
The following points could in particular be highlighted.
a. Names of Member States
29.The WP agreed with the thinking behind the decision, when presenting certain UK data, to differentiate between England and Wales, Scotland and Northern Ireland, so as to reflect the fundamental differences in the countries’ legal systems. It was important, however, to explain this decision in the report itself and to present the results in such a way as to make it clear that they related to the United Kingdom, a Member State of the Council of Europe.
30.In the case of Serbia and Montenegro, it was emphasised that the available data pertained only to Serbia, not including Kosovo. This would have to be reflected in the report.
b. Presentation of the results and comments
i. Chapter 2 (Cost of the legal system)
31. The WP asked that particular attention be given to the chapter headings in the report. The second chapter, for example, could be entitled “Public expenditure in court systems”.
32.Looking ahead to future evaluation exercises, the Scheme should be expanded to include a question on what share of the judicial system budget was covered by costs paid by litigants.
33.A table was designed on the authorities entrusted with the monitoring of the budget. As the question had not been understood in the same way by all member States, the table was deleted.
ii. Chapter 3 (The judiciary and the courts)
34.It was proposed that this chapter be split into 2 parts: a description of the judicial system and the functioning of the judicial system.
35. The WP drew attention to the difficulties involved in obtaining a uniform definition of the concept of “court” that would encompass all the Member States. It was thus important to spell out the distinction that needed to be made between ordinary courts and specialised courts.
36.Likewise, it was important to take account of countries where conciliation bodies, although not courts in the strict sense, played a prime role in settling disputes, some of which, indeed, could be dealt with only by bodies of this kind (e.g. Norway’s “conciliation boards” which handled divorce cases).
37. The WP agreed to regard as a “court” any body which gave decisions that were binding on the parties (in contradiction to the notion of conciliation). A specific explanation could be included in the report regarding countries where conciliation bodies played a prime role in settling disputes.
38.With regard to the timeframe of judicial procedures, the experts said it was important to establish a calculation rule common to all Member States. It could also be interesting to work beyond the average timeframe of proceedings by calculating the median timeframe as well. The WP was disappointed at the lack of available data in the replies to the questionnaire and suggested that the CEPEJ work on this aspect in future, on the basis of the recently adopted Framework Programme.
39.The WP also agreed to include a reference to the backlog of cases pending in future evaluation exercises.
40. While analysing of the data regarding the number of judicial decisions and the rate of appeals, the WG noted that this rate had not been calculated in the same way by the States and recommended that this question, where appropriate, be further studied in the next evaluation exercise.
Judges and court staff
41. On the subject of judges, there was a need to further refine the notion of “non-professional” judges, so as to reflect the differences that existed between systems and take account of the prominent role played by non-professional judges in some systems.
42.A reference could be included in the report to circuit judges and to “part-time” professional judges.
43.There was also a need to sub-divide court staff into those who performed judicial duties (Rechtspfleger), those who performed ancillary court duties and staff who performed purely administrative or technical duties.
44.The WP noted that in future evaluation exercises, it was might be helpful to consider certain data not only in relation to the total population, but also in relation to population density.
iii. Chapter 4 (The legal professions)
45. The scientific expert was asked to change the layout of the report as regarded the various legal professions (it was suggested that the term “legal professionals" be used), in order to achieve a better balance between judges and other legal professions, and in order to further highlight the comments on public prosecutors.
46.The WP said that particular attention should be paid to the definition of lawyer, on the basis of Recommendation R (2000)21, in order to take account of the distinctions made in certain member states between, on the one hand, legal advisers (solicitors) and, on the other, barristers, who could represent their clients in court. It also felt there was a need to look at the way trainee lawyers were included in the statistics.
47. The WP said that the comments made in the report must highlight the difficulty of treating the questions on bailiffs/enforcement officers and court clerks/Rechtspfleger in a standardised manner, given the major differences that existed between member states’ legal systems.
48.In view of the lack of consistency in the replies to the questions on mediation, the WP decided to disregard the data on procedures of this kind for now.
C. Publicity to be given to the evaluation report
49.The WP proposed that special attention be given to publicising the report once adopted by the CEPEJ. In particular, it called for a public seminar to be held in early 2005 to present the report, including to the media.
50.The World Bank representative also suggested holding a video conference.
D. Finalisation and possible adoption of the report
51. Following the work of the WP during this meeting, the scientific expert would supplement and amend his draft report, to be submitted to the Secretariat at the end of October. Once translated, this version would be sent to the CEPEJ members to be examined at the 4th plenary meeting of the CEPEJ (1 – 3 December 2004), in view of its adoption. It was understood that no new data would be able to be included.
52. It would be up to CEPEJ members to hold such consultations as they saw fit with the relevant departments in their respective countries, so that the report could be adopted by the CEPEJ at its next plenary meeting. The CEPEJ would decide on the arrangements for making the report public. It would also decide whether the replies to the Pilot-Scheme, as submitted by individual states, should be published and if so, how.
E. Follow-up to the evaluation exercise
53. The WP agreed to suggest to the CEPEJ that the evaluation exercise be repeated every two years. A new Scheme could be sent to member states at the end of the first half of 2005, setting 1 November 2005 as the deadline for collecting data relating to 2004.
54. With this in mind, the WP proposed that the introductory chapter of the draft report point out that the evaluation exercise was to become a regular event and explain how it would be conducted in future.
55. In addition, the follow-up to the report on the pilot exercise (e.g. conclusions to be drawn from the situation outlined in the report) could form part of the CEPEJ’s Activity Programme.
Of particular relevance in this context was the following paragraph, taken from document CEPEJ (2004) 15 discussed at the 3rd plenary meeting of the CEPEJ:
"From the results, the CEPEJ will be able to identify main trends and, on this basis, to define priority working lines for the CEPEJ itself as well as, if appropriate, other relevant bodies of the Council of Europe and the member states, in order to improve the efficiency of judicial systems.”
56. The Representative of the European Commission called for an exchange of information between the CEPEJ and the European Commission (which had data on the new member states and EU applicant States).
17 September/septembre 2004
2nd Meeting / 2ème réunion
22-24 septembre / September 2004
Palais de l’Europe - Room / Salle 6
1. Adoption of the agenda/Adoption de l’ordre du jour
2. Analysis of the replies to the Pilot-Scheme/Analyse des réponses à la Grille-pilote
a. Introductive elements – State of work by Roland Eshuis/Eléments introductifs – Etat des travaux par Roland Eshuis
b. Follow-up of the meeting on 21 September 2004 between the correspondents responsible for collecting national data with replies to the Pilot scheme/Suivi de la réunion du 21 septembre 2004 avec les correspondants nationaux chargés de répondre à la Grille
c. Preparation of the draft Report on the analyses of replies to Pilot-Scheme/ Préparation du projet de Rapport d'analyse des réponses à la Grille
Working documents/documents de travail
Report on the CEPEJ evaluation scheme by Roland Eshuis (Wetenschappelijk Onderzoek en Documentatie Centrum Ministry of Justice, The Netherlands) and Hazel Genn (University College London)
CEPEJ-GT (2004) 1
Comments on survey
CEPEJ-GT (2004) 2
Questions and answers
CEPEJ-GT (2004) 3
3. Other work/Autres travaux (For information/pour information)
a. Framework Programme: “A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe”: discussion on preparation of methodological proposals in order to implement this Framework Programme/Programme-cadre "Un nouvel objectif pour les systèmes judiciaires : le traitement de chaque affaire dans un délai optimal et prévisible": discussion en vue de préparer des propositions méthodologiques pour la mise en œuvre du Programme-Cadre
b. Tools for communication of CEPEJ: exploring the modalities which would make it possible for the CEPEJ to play a role of clearing house for the relevant documents regarding the efficiency of justice, in particular through its internet Web site/Outils de communication de la CEPEJ: réflexion sur les modalités qui permettraient à la CEPEJ de remplir une fonction de "clearing house" des documents pertinents en matière d'efficacité de la justice en particulier grâce à l'utilisation de son Site Internet
4. Any other business/Divers
Dates of the next meeting/dates de la prochaine réunion: 08-10 November/Novembre 2004
Report of the 1st meeting CEPEJ-GT 2004/Rapport de la 1ère réunion du (CEPEJ-GT 2004) CEPEJ (2004) 16
Report of the 3rd meeting of the CEPEJ / Rapport de la 3ème réunion de la CEPEJ
CEPEJ (2004) 20
Pilot-Scheme of evaluating judicial system / Grille-pilote d’évaluation des systèmes judiciaires
CEPEJ (2003) 36 Addendum I
CEPEJ- Activity Programme 2004 / Programme d’activité 2004 de la CEPEJ
CEPEJ (2003) 29 Rev
Strasbourg, 23 septembre /September 2004
WORKING PARTY 2004
THE EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE/
GROUPE DE TRAVAIL 2004
LA Commission européenne pour l’efficacité de la justice
2nd meeting / 2ème réunion
Strasbourg, 22-24 September / septembre 2004
List of participants / Liste des participants
Alan UZELAC, Ph.D. Professor at the Faculty of Law, University of Zagreb
Jean-Paul JEAN, Substitut Général, Cour d’Appel de Paris, Professeur associé à l'Université de Poitiers (President of the GT 2004 / Président du GT 2004)
Eberhard DESCH, Head of Division of International Law, Federal Ministry of Justice, Berlin (President of the CEPEJ / Président de lan CEPEJ)
Mario REMUS, Magistrat de Cassation, Ministère de la Justice, Rome
Fausto DE SANTIS , Directeur Général au sein du Bureau de l’organisation judiciaire, Ministère de la Justice, Rome
Pim ALBERS, Senior Policy Advisor, Strategy Department for the Administration of Justice, Ministry of Justice, The Hague
Roland ESHUIS, Researcher of the WODC, Ministry of Justice, The Hague (Scientific expert / expert scientifique)
Jon T. JOHNSEN, Professor in Law, Department of public law, University of Oslo
POLAND / POLOGNE
ROMANIA/ROUMANIE : Apologised / Excusée
UNITED KINGDOM / ROYAUME UNI
Hazel GENN, Professor of Socio-Legal Studies, Faculty of Laws, University College London
EUROPEAN COMMISSION / COMMISSION EUROPEENNE
Katarzyna GRZYBOWSKA, DG JAI – Unité A-5
WORLD BANK / BANQUE MONDIALE
Klaus DECKER, Administrator
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, Fax: +33 3 88 41 37 45, e-mail : email@example.com
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 20 44 55, Fax : +33 3 88 41 37 45, e-mail : firstname.lastname@example.org
José-Maria FERNANDEZ-VILLALOBOS, Directorate General I - Legal Affairs / Direction Générale I - Affaires Juridiques, Tel : +33 3 90 20 44 55, Fax : +33 3 88 41 37 45, e-mail : email@example.com
Jean-Pierre GEILLER, Directorate General I - Legal Affairs / Direction Générale I - Affaires Juridiques, Tel : +33 3 88 41 22 27, Fax : +33 3 88 41 37 45, e-mail : firstname.lastname@example.org
Elisabeth HEURTEBISE, Directorate General I - Legal Affairs / Direction Générale I - Affaires Juridiques, Tel : +33 3 88 41 35 54, Fax : +33 3 88 41 37 45, e-mail : email@example.com