cepej_coe

Strasbourg, 2 July 2015

CEPEJ-GT-QUAL(2015)2

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

WORKING GROUP ON QUALITY OF JUSTICE (CEPEJ-GT-QUAL)

17th meeting (16 and 17 April 2015)

MEETING REPORT

Report prepared by the Secretariat

Directorate General I – Human Rights and Rule of Law


 

I.          INTRODUCTION

1.      The Working Group on Quality of Justice (CEPEJ-GT-QUAL) of the European Commission for the Efficiency of Justice (CEPEJ) held its 17th meeting at the Council of Europe in Strasbourg on 16 and 17 April 2015.

2.      The Chair, François PAYCHÈRE (Switzerland) thanked the Secretariat for rapidly reorganising the Group’s work following the cancellation at the last moment, for reasons that could not be attributed to the Council of Europe, of the paperless hearing at the Saverne Tribunal de Grande Instance, which should have been held on 16 April. He welcomed Harold EPINEUSE, the representative of the French Institute for Advanced Judicial Studies (IHEJ), and Karin BATES, a researcher at the Cyberjustice Laboratory in Canada.

3.      The agenda and the list of participants are set out in Appendices I and II respectively to this report.

II.         INFORMATION FROM THE CHAIR, EXPERTS AND THE SECRETARIAT

4.      The Secretariat told the Group members about the co-operation activities intended to disseminate the CEPEJ’s tools more widely and to enable beneficiary States to draw on the CEPEJ’s expertise. It pointed out that co-operation programmes were in progress with the countries of the Southern Neighbourhood (Morocco, Tunisia and Jordan) and the Eastern Partnership (Azerbaijan, Moldova and Ukraine) and with Albania and Croatia. In addition, a programme aimed at enhancing the application of mediation in civil proceedings had just been launched in Turkey. Targeted co-operation with Kosovo*[1], which would be based initially on the assessment of the performance of a Kosovar court*, was also planned.

5.      François PAYCHERE told the participants that he had been invited by Georg STAWA, the Chair of the CEPEJ, to a working meeting on the quality of justice in Vienna on 14 and 15 April 2015. This meeting was part of a programme to improve the quality of justice in Austria which had been launched by the Austrian Ministry of Justice. Three working themes had been identified, namely the quality of judicial processes, the quality of judicial structures and the quality of the final product. The main stakeholders, particularly judges, were being consulted with a view to identifying the most important quality criteria, which should inspire Austrian justice. The Checklist for promoting quality of justice drawn up by the CEPEJ would serve as the reference point during this process.

6.      The Secretariat announced that changes had been made to the scheme for the evaluation of European judicial systems, particularly with regard to the question on the use of ITCs. These changes should enable it to gain a more detailed insight into the development of information systems in the member states and more accurately gauge their impact on the efficiency and quality of the work of courts. In view of the technical nature of this field, the Secretariat could well review this part of the questionnaire again for the 2016-2018 cycle in the light of the results obtained.

III.           HOW I.T. CAN IMPROVE THE QUALITY OF COURT WORK?

7.      The Secretariat presented a note on the activities which the Group could begin in the area of ICTs and justice. The approach should differ from that adopted by other Council of Europe working groups, particularly the Consultative Council of European Judges (CCJE), whose work had focused on the impact of ICTs on the role of the judiciary. The CEPEJ should approach the subject more pragmatically and think in particular about the strategic considerations which should govern the design and installation of ICTs so that they were truly at the service of the justice system and could help to improve its functioning and quality. Computing should be a means to an end, not an end in itself.

 

8.      Harold EPINEUSE described the IHEJ, which had been set up to identify new trends in the field of justice both in France and Europe-wide on the basis of an interdisciplinary approach combining practice and research. The links between ICTs and the justice system were one of the IHEJ’s working themes. The subject had to be looked at in a global, proactive manner in order to embrace all the questions which were raised and make the links between them. A better understanding of the challenges would help to fine-tune the strategic approach to digital justice and be better armed for the future.

9.      Harold EPINEUSE identified three main lines of inquiry about the impact of ICTs on judicial activities and the main issues at stake. Firstly, ICTs provided the justice system with new ways of communicating and exchanging information whether among professionals, between professionals and parties to proceedings or the public, or even between judicial systems. Court Internet sites, mobile terminals and new applications were increasingly common but there was a need to step back and think about the practical use of these tools. It was also important to think about whether courts were equipped to the same level, the costs of the transition from one system to another and the management of archives and the conservation and safety of data.

10.    Secondly, ICTs played a role in remodelling the management of the justice system. They provided information about the performance of courts and judges and made it possible to reallocate cases, even between courts far apart, and manage court staff. Sound and video recordings of hearings also had an impact on the work of judges (making it easier, for example, to manage hearings) and of lawyers.

11.    Third, ICTs radically changed the process of judicial decision-making. Judges now had a vast range of sources of information available (through on-line databases), but the question was whether enough attention was paid to the criteria and the neutrality of consultations or what the impact of last-minute submissions by the parties was on the quality of judicial work. Had it been properly gauged what effect the production of evidence “with a high technological content” had on the judge’s personal belief and the equality of arms between the parties? Further thought was also needed about decision templates, and their impact on the work and decisions of judges, and about online dispute resolution (ODR).

12.    Karin BATES described the activities of the Cyberjustice Laboratory in Canada, focusing in particular on its work on the impact of ICTs on courts and on the conduct of parties to proceedings. Three questions were currently being looked into, namely (i) did the parties feel that justice had been done when certain types of ICT were used?; (ii) did they feel that their case had been heard?; and (iii) did they feel that they had been treated fairly? ICTs had a profound impact on verbal language (making it more objective and less sentimental) and on non-verbal language and the dialogue between the parties; for instance, when tablets were used, the question was where the user’s attention lay: on the tablet or on the other participants? Attitudes were also affected as being filmed altered people’s behaviour and their awareness of their own image.Another question raised was the impact of ICTs on public perceptions of the fair and formal nature of the justice system.

13.    The Group thanked Harold EPINEUSE and Karin BATES for their contributions. A discussion ensued on the themes raised.

14.    Remote access to proceedings had advantages for parties who were physically remote from courts but also comprised the risk that bringing court proceedings would be trivialised. It was important for lawyers to be involved to avoid blockages.

15.    Several members noted that ICTs helped to improve the efficiency of judicial work and procedures and the performance of courts, while reducing costs (or the number of courts). They also had an effect on the independence of judges and the quality of and access to justice. Staff consultation and training and support during the transition phase were also essential when incorporating ICTs into the judicial system. Interoperability and the possibility of use by several users were also important, together with data security.

16.    Several questions were raised about the framing and management of the process of installing ICTs including the balance that should be sought between private subjects and the state authorities and whether ICTs should be geared to different types of proceedings or not.  

17.    Following the discussion, the CEPEJ-GT-QUAL instructed the Secretariat to draw up a list of the subjects discussed during this meeting and make proposals for specific areas of discussion for the next meeting. It also decided to continue its co-operation with the IHEJ.

IV.           ENFORCEMENT OF COURT DECISIONS

18.    At its 16th meeting, the CEPEJ-GT-QUAL had decided to prepare a compilation of good practices in respect of enforcement with specific examples from all Council of Europe member states and had instructed the Secretariat to provide the necessary practical assistance during this work.

19.    Guillaume PAYAN (France), academic expert, presented the draft good practice guide relating to guidelines to facilitate the implementation of the Council of Europe recommendation on enforcement. He highlighted the fact that a “good practice” should be interpreted in the broadest sense, in other words it should include laws and regulations and make it possible to fully meet the aims set out in the CEPEJ’s guidelines on enforcement.To date, no country was yet in line with all 82 of the guidelines on enforcement.

20.    The draft guide had been drawn up on the basis of data stemming partly from the major questionnaire on enforcement of the International Union of Judicial Officers (UIHJ) – a 350-question questionnaire sent out to the 85 member countries of the UIHJ, covering a very large range of data on the profession of enforcement agent and enforcement measures – and partly from a report on enforcement in the member countries of the UIHJ published in November 2014.

 

21.    The expert gave examples of various good practices for each of the following four main themes:

a)      control of the organisation of the enforcement process by enforcement agents;

b)     proper understanding of the enforcement process by the parties;

c)      the quality of enforcement procedures and a review of the enforcement process;

d)     a glossary of legal terms relating to enforcement.

 

22.    The members expressed their appreciation for Mr PAYAN’s presentation, which had made it possible to identify good practices and go a step further than the descriptive approach in the draft guide. The Chair, Mr PAYCHÈRE in particular encouraged the expert to reorganise his work to focus on the four themes identified in his presentation.

23.    In the light of this discussion, the Group invited Mr PAYAN to prepare a draft revised version of the good practice guide focusing on the four themes referred to above. The Secretariat was also instructed, when disseminating the meeting report, to ask the members to make additional proposals to add to Mr PAYAN’s work. The revised draft would be examined at the next meeting of the CEPEJ-GT-QUAL with a view to submission at the plenary meeting of the CEPEJ in December 2015.

V.                  Right to an effective remedy under the European Convention on Human Rights and prospects for CEPEJ involvement

24.    At the Group’s 16th meeting, the members had been invited to think about ways of pursuing the aims of Article 13 of the European Convention on Human Rights (ECHR) in the member states, namely “an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

25.    Giorgio MALINVERNI, honorary professor of the University of Geneva and former judge at the European Court of Human Rights, gave a talk on Article 13. The aim of this article was to secure the protection of the rights and freedoms guaranteed by the ECHR, which should be protected first and foremost in the member states, in accordance with the principle of subsidiarity on which the ECHR system was based. To achieve this aim, states were required to set up authorities and bodies with the capacity to ensure that they were respected. Professor Malinverni pointed out that Article 13 did not require the remedy to be judicial in nature. The national authority could be an administrative, government or even parliamentary body. The most important thing was that it was independent and impartial. To be effective remedies had to enable applicants to allege before the national authorities that a material provision of the ECHR had been violated. This meant that the remedy had to entitle the national authorities to take cognisance of the content of the alleged violation and offer appropriate redress. Remedies had to be effective in law and in practice or make it possible to prevent the violation of a right or its continued violation or to offer a remedy if the violation had already occurred.

26.    Giorgio MALINVERNI also went into the details of the links between Article 13 and other articles of the ECHR, particularly Article 6 (the right to a fair trial). In the case law of the Court, Article 13 was “subsumed” within Article 6 as a lex specialis unless a violation relating to excessive length of judicial proceedings was alleged. If the Court found a violation of Article 6 because of an unreasonable delay in the proceedings, it also examined the potential violation of Article 13 taken separately. In that respect, Article 13 required it to be possible for the victim to expedite the proceedings or, where appropriate, be paid compensation.The Court did, however, show a preference for the first option, as reflected in its Scordino v. Italy judgment of 29 March 2006:  “a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution”.

27.    The Group thanked Giorgio MALINVERNI for his presentation and asked him more particularly for his views on the CEPEJ’s involvement in this matter, which was consistent with its expertise in the engineering of judicial systems and judicial proceedings. The expert confirmed that the CEPEJ could make a contribution, particularly on the relations between the effectiveness of remedies and the shortcomings of judicial systems; he also underlined the value of work on the assessment of structural factors which could affect the existence and effectiveness of remedies, whether at the level of judicial proceedings or judicial systems. The preventive measures aimed at speeding up judicial proceedings which had been introduced recently in several member states should be a particular focus of attention. Innovative solutions preventing the overloading of judicial systems could also be proposed. Examples of countries which had introduced such preventive measures were Croatia and Greece.

28.    Following its discussion on the subject, the Group decided to continue its work on Article 13 of the Charter and, in particular: (a) to examine the structural factors having an impact on the effectiveness of remedies; (b) to reiterate the principle already established by the Court in its Scordino v. Italy judgment, according to which preventive measures were the most effective solution; (c) to investigate the best national practices with regard to preventive remedies and extra-judicial settlements. It also instructed the Secretariat to provide the necessary support to be able to continue its work on these themes.

VI.    COOPERATION WITH THE EU AGENCY FOR FUNDAMENTAL RIGHTS (FRA) ON THE “HANDBOOK ON ACCESS TO JUSTICE IN EUROPE”

29.    At its 16th meeting the Group had instructed the Secretariat to inform the members of the Group at regular intervals about progress on the preparation of the Handbook on access to justice in Europe, which was a joint project of the CEPEJ and the EU Agency for Fundamental Rights (FRA), and to seek their opinion on the detailed table of contents and the draft Handbook. The latter had been submitted shortly before the meeting by the University of Nottingham’s Human Rights Law Centre, which was the body commissioned to draw up the Handbook.

30.    Jana GAJDOSOVA, from the FRA Secretariat, and Debbie SAYERS, academic expert, gave a brief presentation on the progress of the work since the last Group meeting along with the content of the draft Handbook. They reiterated that the aim of the Handbook was to make those who played a role in legal proceedings (judges, lawyers, NGOs, etc.) more aware of and better acquainted with the standards which existed at European level in the sphere of access to justice, using clear and accessible language. Although, it was required to take account, in particular, of the case-law of the European Court of Human Rights and the Court of Justice of the European Union, the Handbook was also supposed to look into good national practices in the field of access to justice. Debbie SAYERS noted that the draft had been prepared within short time limits and that improvements would have to be made with regard both to the case-law cited and to the good practices.

31.    The members made comments on the draft Handbook. Most related to the substance of the subjects cited above and the style of writing, which was considered too academic and remote from the needs of the target audience, which was not just judges but also other people working in the judicial field. The draft was deemed to be too long and too heavily focused on case-law and not enough on good national practices, which should be a more integral feature in each chapter of the Handbook. Missing also was any consideration of practical public access to justice and the practical organisation of the judicial system. The Secretariat noted that overall, there was a contradiction between the theoretical approach adopted and the practical aspect evoked by the word Handbook, and that if the Handbook remained as it stood, the Group could find it difficult to remain associated with this exercise as it would not be sufficiently in line with the CEPEJ’s pragmatic approach.

32.    The members of the Group and the FRA agreed to simplify the document so that it was more attuned to the needs of a non-specialist audience and to shorten the introductory section on access to justice. Gilles ACCOMANDO proposed that the Handbook should be organised under the following headings:

-       introduction to access to justice;

-       the right to be advised, defended and represented;

-       legal aid;

-       access to courts;

-       the right to an effective remedy;

-       obstacles to obtaining justice;

-       length of proceedings;

-       subjects warranting particular attention.

33.    Matthieu CHARDON proposed that an example of a good practice in Sweden relating to access to information about debtors’ assets should be taken into account. Jana GAJDOSOVA informed the participants that the right of access to justice for women and children was also being dealt with in a separate handbook.

34.    Following the discussion, the Group noted that there was an agreement in principle with the representatives of the FRA and the University of Nottingham’s Human Rights Law Centre on certain matters (simplification of the document to cater for the target audience). It agreed to take a decision in principle as to its full participation in the publication of the Handbook once it had examined the amended version, which it should receive on or around 15 May 2015.

VII.      OTHER BUSINESS

35.    The definition of judicial system quality indicators would be discussed at the next meeting.


Appendix I

Agenda

1.            Adoption of the agenda

2.            Information by the Chairman and the Secretariat

3.            How IT can improve the quality of the court work?

4.            Enforcement of court decisions / Exécution des décisions de justice

·       Discussion on the Draft Guide on good practices related to the Guidelines for a better implementation of the CoE’s Recommendation on enforcement, prepared by Mr Guillaume Payan (France), scientifc expert

5.            Right to an effective remedy under the European Convention on Human Rights and prospects for CEPEJ involvement

·       Presentation by Mr Giorgio Malinverni, Honorable Professor at the University of Geneva, former Judge at the European Court of Human Rights, and follow-up discussion

6.            Cooperation with the EU Agency for Fundamental Rights (FRA) on the « Handbook on access to justice in Europe »

·       Discussion on the draft Handbook on access to justice in Europe

7.            Other business


Appendix II

List of Participants

EXPERTS

Joao ARSENIO DE OLIVEIRA, Head of Department, international Affairs Department, Directorate-General for Justice Policy - Ministry of Justice, Lisbon, PORTUGAL

Fabio BARTOLOMEO,  Director General of the Office of Statistics, Ministry of Justice, Via Arenula 70, 00100 Rome, ITALY

Anke EILERS, Judge, Oberlandesgericht Köln, Reichenspergerplatz 1, D-50670 Köln, GERMANY

Nikolina MIŠKOVIĆ, Judge, Commercial Court in Rijeka, Antuna Brubnjaka 6 Ika, 51414, Ičići, CROATIA

François PAYCHÈRE, Président de la Cour des Comptes, Case postale 3159, CH-1211 Genève 3, SUISSE (Chair of the GT-QUAL / Président du GT-QUAL)

Ioannis SYMEONIDIS, Judge, Court of Appeal, Professor at the Law School, University of Thessaloniki, 29, N.Foka, CP 546 21, Thessaloniki, GREECE

EXPERTS SCIENTIFIQUES / SCIENTIFIC EXPERTS

Gilles ACCOMANDO, Président du Tribunal de Grande Instance d’Avignon, 2, Boulevard Limbert, 84078 Avignon Cedex 9, FRANCE

John STACEY, Governmental Adviser for Judicial Reform, Mill View, The Green, Hickling, Norwich NR12 OXH, UNITED KINGDOM

Giorgio MALINVERNI, Professeur honoraire de l'Université de Genève, Ancien Juge à la Cour Européenne des Droits de l'Homme, SUISSE

Guillaume PAYAN, Maître de conférence à la Faculté de Droit de Montpellier, 2900 Chemin long, 83260 La Crau, FRANCE

EUROPEAN COMMISSION / COMMISSSION EUROPEENNE

Elsa GARCIA-MALTRAS, Directorate General Justice, European Commission, Rue de la Loi MO59 3/78, 1049 BRUXELLES

Fundamental Rights Agency / - AGENCE DES DROITS FONDAMENTAUX

Jana GAJDOSOVA, European Union Agency for Fundamental Rights, Schwarztenbergerplatz 11, VIENNA 1040, AUSTRIA

Debbie SAYERS, Legal research consultant, Human Rights Law Centre, Law School, University of Nottingham, UNITED KINGDOM

OBSERVERS / OBSERVATEURS

EUROPEAN UNION OF RECHTSPFLEGER AND COURT CLERKS / UNION EUROPEENNE DES GREFFIERS DE JUSTICE (EUR):

Jean-Jacques KUSTER, Président de l’Union européenne des Greffiers de Justice, 24 rue Canardière 67100 Strasbourg, FRANCE

INTERNATIONAL UNION OF BAILIFFS / UNION INTERNATIONALE DES HUISSIERS DE JUSTICE (UIHJ)

Mathieu CHARDON, Huissier de justice, Premier Secrétaire de l’UIHJ, 1 rue Chantreine, 78490 Montfort l’Amaury, FRANCE

World Bank / Banque mondiale:

Klaus DECKER, Public Sector Specialist, Public Sector and Institutional Reform, Europe and Central Asia, Vice-Presidency, World Bank, Room H 4-411, Mail Stop H 4-407, 1818 H Street NW, Washington  DC 20433, USA Apologised / Excusé

European Network of Councils for the Judiciary (ENCJ) / RESEAU EUROPEEN DES CONSEILS DE LA JUSTICE (RECJ):

Jean-Marie SISCOT, Administrator of the Belgian High Council for Justice, Member of the Working Group on Quality Management, BELGIUM Apologised / Excusé

OTHER PARTICIPANTS / AUTRES PARTICIPANTS

INSTITUT DES HAUTES ETUDES SUR LA JUSTICE (IHEJ)

Harold EPINEUSE, Chargé de mission IHEJ, FRANCE

Karine BATES, Anthropologue, professeur à l'université de Montréal représentant le Laboratoire de Cyberjustice, MONTREAL

TUNISIA / TUNISIE

Raja CHAOUACHI, Présidente du tribunal de première instance de Tunis

Rafik ACHOUR, Procureur de la République près le tribunal de première instance de Kairouan

SECRETARIAT

DGI - Human Rights and Rule of Law, Division for the independence and efficiency of justice /

DGI - Droits de l’Homme et Etat de droit, Division pour l’indépendance et l’efficacité de la justice

Fax: +33 3 88 41 37 43 - E-mail: cepej@coe.int

Stéphane LEYENBERGER, Head of Division, Executive Secretary of the CEPEJ / Chef de la Division, Secrétaire exécutif de la CEPEJ, Tel: + 33 3 88 41 34 12, e-mail: stephane.leyenberger@coe.int

Clementina BARBARO, Administrator / Administratrice, Tél : +33 3 90 21 55 04, e-mail : clementina.barbaro@coe.int

Yannick MENECEUR, Special Advisor to the Secretariat of the CEPEJ / Conseiller spécial auprès du Secrétariat de la CEPEJ, Tél : +33 (0)3 90 21 53 59, e-mail : Yannick.meneceur@coe.int

Jean-Pierre GEILLER, Documentation, Tel : + 33 (0)3 88 41 22 27, e-mail : jean-pierre.geiller@coe.int

Annette SATTEL, Administration et réseaux, Tel: + 33 (0)3 88 41 39 04, e-mail: annette.sattel@coe.int

Emily WALKER, Assistant / Assistante, Tel: + 33 (0)3 90 21 48 39, e-mail: emily.walker@coe.int

Interpreters / Interprètes

Gillian WAKENHUT

Christopher TYCZKA

Corinne McGEORGE