Strasbourg, 13 October 2003

CEPEJ (2003) 27

WORKING PARTY No. 2

of

the european Commission for the efficiency of justice

(CEPEJ-GT2)

1st meeting

Strasbourg, 2-3 October 2003

MEETING REPORT

BRIEF FOREWORD

The CEPEJ-GT2 examined the three reports concerning delays written by the experts and prepared draft guidelines concerning delays. These draft guidelines will be examined by the Bureau of the CEPEJ during its next meeting (Brussels, 3 November 2003) as well as by the CEPEJ during the 2nd plenary meeting (Strasbourg, 3-5 December 2003) in order to decide how best to deal with this draft guidelines and particularly to include delays in the future activities of the CEPEJ.

Secretariat Memorandum

prepared by Directorate General I – Legal Affairs

I. Introduction

1. Working Party No. 2 of the European Commission for the Efficiency of Justice (CEPEJ-GT2) held its 1st meeting at the Council of Europe in Strasbourg on 2 and 3 October 2003. The meeting was chaired by Ms Barbara GÖTH-FLEMMICH (Austria). The agenda and the list of participants appear in Appendices I and II respectively.

2. The Secretariat recalled the content of the CEPEJ programme of activities for 2003 according to which the CEPEJ-GT2 would have to deal with the question of the excessive length of judicial proceedings, as it is considered by many as one of the main obstacles for a proper and effective functioning of justice.

3. For this reason, the CEPEJ considered that it would be necessary first to provide a “picture” of the current situation of delays in Europe and then to select the two following situations in which delays are particularly difficult for the users of the justice system: (i) persons waiting for a decision of divorce and (ii) the victims of crime.

4. The CEPEJ-GT2 experts would then have to determine concrete measures which would be disseminated to the professionals in the justice area of the member States, particularly through Best Practice Guides.

II. Examination of reports on “The users of the justice system vis-à-vis the slowness of justice: how to remedy THE SITUATION? Two symbolic situations”

5. The members of the CEPEJ-GT2 examined and discussed the three reports prepared by the expert consultants, after a brief presentation by them of their reports.

6. The reports concerned were the following:

(1) “Delay in judicial proceedings : a preliminary inquiry into the relation between the demands of the reasonable time requirements of Article 6 (1) of the European Convention on Human Rights and their consequences for judges and judicial administration in the civil, criminal and administrative justice chains” by Marco FABRI (Italy) and Philip Langbroek (The Netherlands) (Document CEPEJ (2003) 20);

(2) “Users of the justice system vis-à-vis the slowness of justice: how to react? The position of parties in a divorce procedure” by Gabriela THOMA-TWAROCH (Austria) (Document CEPEJ (2003)19);

(3) “Users of the justice system vis-à-vis the slowness of justice: how to react? The position of victims of crime” by Helen REEVES (United Kingdom) (Document CEPEJ (2003) 21).

7. After having thanked the three experts for the high quality and the importance of their work, the CEPEJ-GT2 proposed to ask them to finalise the content of their reports in the light of the discussions held during this meeting. Subject to the confirmation of this request by the Bureau of the CEPEJ, the experts would have to submit a new version of their reports by 10 November 2003, at the latest, in order to allow the Secretariat enough time to have these finalised reports translated before their transmission to the CEPEJ members for comments.

8. However, the Group noted that, considering the extent of its terms of reference which amount to dealing with “delays in judicial proceedings”, it would be very difficult to consider that even such detailed and comprehensive reports would be capable of conveying a complete and real picture of the situation in Europe concerning delays. The expert consultants noticed that very few studies and research were made in this field.

9. With respect to the report concerning “Victims of crime”, the members of the CEPEJ-GT2 agreed that an in-depth discussion of the report of Ms Helen Reeves in line with her very comprehensive approach reflecting the situation of victims and witnesses before, during and after the trial would require an enlargement of the CEPEJ-GT2's mandate. According to the strict mandate and short time given to the CEPEJ-GT2, the Working Group requested the expert consultant to focus the report on the position of victims in respect of delays.

10. Therefore, the CEPEJ-GT2 asked Ms Helen Reeves, without redrafting her very interesting contribution, to modify its structure by giving priority to the management of courts and procedure in order to reduce undue delays and then to deal with the negative experiences of victims and witnesses during the procedure. A member of the Group also proposed not to forget economic crimes, which are becoming increasingly important and not to limit the discussions to the victims of violent crimes.

III. PREPARATION OF Concrete measures aimED at findING remedies to delays in the TWO selected situations (i.e. persons waiting for a decision of divorce and victims of crime)

11.Following the examination of the three reports, the members of the Working Group concluded that concrete measures aiming at finding remedies to delays should focus at a first stage on delays of proceedings in general. The standard set of measures which should be applied with regard to all judicial proceedings irrespective of the concrete type of proceeding would have to be identified first. Due to the short time available for discussion in the CEPEJ-GT2 the elaboration of a common set of measures would constitute a valuable starting point and prevent unnecessary duplication.

12. At this stage of the discussions, the CEPEJ-GT2 prepared “Draft guidelines concerning delays in judicial procedures” (see Appendix III to this report) which contain two parts: (1) Specific issues and measures to be considered with a view to reducing courts delays in general whereas the second part contains some additional (2) Remarks and specific guidelines concerning divorce. This document is aimed at defining some of the main problems concerning delays as well as presenting certain guidelines which could be followed in this field in the CEPEJ’s future programme of activities.

13. In the light of this meeting report and the draft guidelines, the CEPEJ-GT2 proposed to let the Bureau of the CEPEJ decide how best to deal with this draft guidelines and particularly to include delays in the future activities of the CEPEJ.

14. Before the next meeting of the Bureau (3 November 2003), members of the CEPEJ-GT2 as well as all other participants to the present meeting, are invited to send written comments by e-mail to the Secretariat concerning the draft guidelines which appear in Appendix III.

IV. JoinT meeting with the members of the CEPEJ-GT1

15.In order to discuss, in particular, the specific aspects of delays in relation to the “Scheme for evaluating judicial systems” prepared by the Working Group n°1 of the CEPEJ, a joint meeting of the CEPEJ-GT1 and CEPEJ-GT2 was organised at the end of the two-days meeting.

16. Mr Jean-Paul JEAN and Ms Barbara Göth-FLEMMICH presented the work of CEPEJ-GT1 and GT2 respectively. It was explained, in particular, that the new draft of the scheme for evaluating judicial systems included now questions concerning delays in judicial procedure taken from a quantitative as well as a qualitative approach, which could help to improve the knowledge of the real situation concerning delays in Europe.

17.Moreover, the members of the CEPEJ-GT2 were invited to make written comments or concrete drafting proposals, in order to improve the questionnaire contained in the scheme (Document CEPEJ (2003) 26).

APPENDIX I

AGENDA

1. Opening of the meeting

2. Election of the Chair of the CEPEJ-GT2

The election of the Chair of the CEPEJ-GT2 will be carried out in conformity with Resolution Res(76)3 and the Rules of Procedure of the CEPEJ

3. Adoption of the agenda

4. Information from the Secretariat

The Secretariat will provide information about the work of the CEPEJ and the results which are expected from the work of the CEPEJ-GT2. As it will be the first meeting of the CEPEJ-GT2, participants will be invited to introduce themselves.

5. Preparation of a report on “The users of the justice system vis-à-vis the slowness of justice: how to remedy ? Two symbolic situations” on the basis of drafts prepared by the following experts:

· Marco FABRI (Italy) and Philip Langbroek (The Netherlands): their report should concern the delays of proceedings in general and would have the following structure : (1) description and factors of delays - evaluation of the situation in Europe; (2) synthesis of the case-law of the European Court of Human Rights concerning the length of proceedings and study of the lessons to be drawn from this case-law;

· Gabriela THOMA-TWAROCH (Austria): herreport should concentrate on the position of parties in a divorce and in particular their sufferings, from the excessive length of judicial procedures and would make recommendations to States as to the necessary concrete measures to remedy such sufferings;

· Helen REEVES (United Kingdom): herreport should concentrate on the position of victims of crimes and in particular their sufferings, from the excessive length of judicial procedures and should make recommendations to States as to the necessary concrete measures to remedy such sufferings.

The draft report to be prepared by the CEPEJ-GT2 should be divided into 2 parts:

1. a clear “picture” of :

(1) the current general situation of delays in Europe;

(2) the two selected situations in which delays are particularly painful for the users of the justice system:

- persons waiting for a decision of divorce;

- victims of crime.

2. in the light namely of the work of the CEPEJ-GT1 and taking into account the case law of the European Court of Human Rights, concrete measures aiming at find remedies to delays in the 2 selected situations

Working documents

Report prepared by Marco FABRI and Philip Langbroek

CEPEJ (2003) 20

Report prepared by Gabriela THOMA-TWAROCH

CEPEJ (2003) 19

Report prepared by Helen REEVES

CEPEJ (2003) 21

6. Meeting with the members of the CEPEJ-GT1 in order to discuss the specific aspects of delays concerning divorce and victims of crime in relation with the “Scheme for evaluating judicial systems”

Working document

Scheme for evaluating judicial systems

Doc CEPEJ (2003) 17 Rev

7. Work plan of the CEPEJ-GT2

The CEPEJ-GT2 would have to finalise the draft Report during this meeting and to submit it to the CEPEJ for adoption at its plenary meeting on 3-5 December 2003.

The members of the CEPEJ-GT2 are invited to decide on a procedure to make sure that the draft Report will be finalised in the fixed deadline.

8. Any other business

Background documents

Report of the 1^st meeting of the CEPEJ

CEPEJ(2003)10 rev

Report of the meeting of the Bureau

CEPEJ-BU (2003) 2

Report of the 1^st meeting of the CEPEJ-GT1

CEPEJ(2003) 16

2003 Programme of activity

CEPEJ (2003) 10 Add II

Rules of procedure of the CEPEJ

CEPEJ/GENERAL (2003) 3

Resolution Res(76)3

Resolution of the Committee of Ministers on Committee Structures, Terms of Reference and Working Methods

Miroslava TODOROVA, Judge, Vice-Chair of Sofia Regional Court, SOFIA

CROATIA

Alan UZELAC, Ph.D. Professor at the Faculty of Law, University of Zagreb, ZAGREB

CYPRUS

Loukis SAVVIDES, Ex-Judge of the Supreme Court of Cyprus – Legal Consultant, LIMASSOL, Excusé/Apologised

NORWAY

Jon T. JOHNSEN, Professor in Law, Department of public law, University of Oslo, OSLO

SWITZERLAND

Monique COSSALI SAUVAIN, Chef de la Division Projets et Méthode Législatifs, Office fédéral de la justice, BERNE

OTHER PARTICIPANTS

GERMANY

Eberhard DESCH, Head of Division of International Law, Bundesministerium der Justiz, BERLIN, Chair of the CEPEJ

THE NETHERLANDS

Werner STEMKER KÖSTER, Judge at the District Court of the Hague and temporary secondment to the Netherlands Council for the Judiciary Department for judicial development and stategy, The HAGUE

EXPERTS CONSULTANT

AUSTRIA

Gabriela THOMA-TWAROCH, Richterin des Landesgerichtes, Präsidium des LGfZRS, VIENNA

ITALY

Marco FABRI, Senior Researcher, Istituto di Ricerca sui Sistemi Giudiziari (Research Institute on Judicial Systems), Consiglio Nazionale delle Ricerche (National Research Council), BOLOGNA

THE NETHERLANDS

Philip Langbroek, Senior Researcher, Institute of Constitutional and Adminsitrative Law, UTRECHT

UNITED KINGDOM

Helen REEVES, Director, Victims Support National Office, Cranmer House, LONDON

OBSERVERS

JAPAN

Naoyuki IWAI, Consulat Général du Japon, STRASBOURG

MEXICO

Juan SILVA MEZA, Minister, Member of the Supreme Court of Justice of Mexico, MEXICO

SECRETARIAT

Alexey KOJEMIAKOV, Directorate General I - Legal Affairs, Head of the Private Law Department

Gianluca ESPOSITO, Directorate General I - Legal Affairs, Secretary of the CEPEJ

Muriel DECOT, Directorate General I - Legal Affairs, Co-Secretary of the CEPEJ

Jean-Pierre GEILLER, Directorate General I - Legal Affairs

Elisabeth HEURTEBISE, Directorate General I - Legal Affairs

INTERPRETERS

Robert SZYMANSKI

Derrick WORSDALE

Christopher TYCZKA

APPENDIX III

DRAFT GUIDELINES CONCERNING DELAYS IN JUDICIAL PROCEDURES

I. General considerations concerning delays

While the fact that excessive delays in judicial proceedings are a Europe-wide problem, as shown by the case-law of the European Court of Human Rights, very few studies have been made on this topic in Europe and it would be necessary to carry out more in-depth study and research in this field in order to adopt a common approach aimed at reducing delays in judicial proceedings.

For the proper administration of the justice system, each country should have a specific procedure to collect, measure and evaluate data concerning the length of judicial proceedings. This is also in line with the respect of the principle of transparency of justice.

To this end, a shared and common definition of court delays should be developed. In this context, some elements appear easily identifiable:

- delays should be separated from the notion of reasonable time which implies both absence of individual delays and the appropriate length of overall procedure;

- in order to reduce undue delays, it is necessary to fight against the different periods of inactivity occurring at different levels of the procedure;

- in order to reduce undue delays, it is necessary to establish specific goals and common standards of efficiency. It is also necessary to establish structures ensuring the application of these goals and standards.

In order to elaborate a more precise, shared and common definition, the following studies could be made:

- on the case-law regarding Article 6 of the European Convention on Human Rights, which would be necessary, even if the study is not limited to this topic;

- on the expectations and the level of satisfaction of individuals in all States/jurisdictions;

- on the areas which should be covered by the programmes on reduction of delays.

Moreover, research in Europe should explore the relationship between court delay and three major areas:

- features of court proceedings (criminal, civil and administrative);

- management of the courts;

- governance setting by the courts.

II. Specific issues and measures to be considered with a view to reducing courts delays in general

The factors indicated below should be taken into account in addition to the measures taken by States to reduce the work-load of courts, to allocate sufficient resources to courts and to remedy the lack of flexibility of procedural rules.

1. Judicial commitment, leadership and adequate accountability mechanisms

These elements have to be implemented through an objective and detailed system without undue interference on the independence of judges. This is the reason why it will be important to determine, in each State/jurisdiction, who will have to implement this process and determine precise accountability mechanisms. Judges’ motivation concerning the reduction of delays will have to be improved.

2. Involvement of the different other actors in the system

In order to better manage each case, as well as the system as a whole, all persons involved in the functioning of justice will have to be involved in the programmes on the reduction of delays. In addition to judges, these actors include lawyers, enforcement agents, administrators, court clerks, police, prosecutors, officials of Ministers of justice, experts, witnesses, members of existing High Judicial Councils. Parties and institutions or persons represented parties can also contribute to the good administration of justice.

3. Judicial supervision of case progress

There exists an objective obligation of the justice system to solve a dispute within a reasonable time, notwithstanding the type of cases which is submitted to him/her. However, this obligation is not absolute but relative concerning:

- criminal matters, for instance, as a part of the procedure may take place outside courts;

- all extra-judicial procedures which are being developed;

- certain behaviours of parties.

If judges have a duty to control the pace of the progress of trials, they shall have the competence and the means to do so. It will indeed be necessary to modify civil procedures or draft new rules in order to enable judges to ensure the respect of delays, to make sanctions or, at least, to fix calendars for the procedure.

4. Definition of goals and standards

This is a key factor to fight effectively against the excessive length of judicial proceedings, even if at this stage of knowledge of the situation in Europe it is not possible to determine these goals and standards. It will, beforehand, be necessary to be aware of the expectations in the area of reduction of delays, in order for them to be compatible with the goals and standards to be determined. The only certainty is that judges need to have clear objectives in this field, in order to know in practice how to reduce delays.

5. Case management approach including a monitoring of cases and a policy against unjustifiable continuances, like a firm trial date and a ‘backup judge’ system for trials

It will be necessary to produce best practices guides on countries/jurisdictions which have already established monitoring systems.

A case management approach shall include aspects of quality.

With due respect to the independence of judges, motivation and specific training of judges on the reduction of delays will have to be at the forefront as compared to case management issues.

Certain solutions tested in certain systems (e.g. an individual assignment system) will have to be further considered.

6. Education and training

Relevant education and training are necessary for all legal professionals and court staff to implement a delay reduction programme.

III. In the case of divorce

a. General remark

Undue delays are particularly painful for the parties in a divorce procedure, and namely in a fault divorce, by comparison to a divorce by consent or a divorce resolved through a mediation procedure.

It should be noted that the fault divorce no longer exists in some States.

b. Specific guidelines

1. In States/jurisdictions where the divorce owing to fault exists, the divorce proceedings should no longer be dominated by the search in the past for wrongs that are potentially attributable to the parties but, on the contrary, the spouses should be guided towards a future solution.

In certain specific cases however (e.g. serious violence), the consideration of the fault cannot be totally ignored.

However, in general, it is important to deal with the consequences of the divorce separately from the issue of fault.

2. The economic consequences of divorce should be as foreseeable as possible. In divorce cases which may lead to a possible degradation of the financial situation of spouses, the latter should receive relevant information and assistance, particularly as regards the sharing of assets.

3. Divorce procedures shall not be transformed into a “legal battlefield”. To this end, if the spouses engaged in the divorce procedure are represented by a lawyer, the latter should be able to intervene through a broader legal aid system.

4. In divorce matters, the importance of mediation procedures is recalled, the generalisation of which should lead to an increasing number of divorce procedures by consent. The general approach should be a conciliatory one (“win to win”).

In this context, the Recommendations No. R (98) 1 on family mediation and No. R (2002) 10 on mediation in civil matters of the Council of Europe should be recalled.

Moreover, it should be particularly useful in the field of divorce, to undertake more detailed studies and research concerning:

- the stage of the procedure in which mediation is most efficient;

- the maximum number of attempts of mediation that could be accepted;

- the situations where another solution than that of mediation should be envisaged.

5. The issuing of provisional measures during the divorce procedure may contribute to improve the satisfaction of parties to the procedure for whom the length of the divorce procedure could then appear less tedious.

6. Specific training will need to be provided for judges, lawyers and mediators in divorce matters, including from a psychological point of view.