CEPEJ District of Prague 1/Czech republic, 28 January 2011

Strasbourg, 4 March 2011

CEPEJ-SATURN(2011)1

EUROPEAN COMMISSION FOR THE EFFICENCY OF JUSTICE

(CEPEJ)

Steering Group of the SATURN Centre for judicial time management

(CEPEJ-SATURN)

9th meeting

Strasbourg, 19 and 20 May 2011

Reports on the implementation of the CEPEJ guidelines

for judicial time management in 7 pilot courts / institutions

(from Czech Republic, Georgia, Italy, Norway, Switzerland, United Kingdom)

Contents

Completed by Central London Civil Justice Centre without the benefit of Coaching

(United Kingdom)

District of Prague 1/Czech republic, 28 January 2011

Lausanne/Dornach (Switzerland)

Nedre Romerike tingrett, Norway

Queen’s Bench Division of the High Court of Justice (United Kingdom)

Implementation of CEPEJ SATURN tools by Tbilisi Appeals Court (Georgia) – pilot court of CEPEJ

PILOT COURT OF TURIN, ITALY

District of Prague 1/Czech republic, 28 January 2011

Report on the implementation of the CEPEJ guidelines for judicial time management at the District Court of Prague 1 (first instance civil and criminal court)

1. Basic principles

1.1 CEPEJ guidelines for judicial time management (SATURN Center guidelines for judicial time management) of 10-11 December 2008 – CEPEJ document(2008)8Rev;

1.2 CEPEJ document «Implementation test of SATURN tools in selected pilot courts» of 12 and 14 April 2010 – CEPEJ document(2010)1;

1.3 Justice report for the year 2010 on the District court of Prague 1

2. General description of the court

2.1 Name and address: District Court of Prague 1, Ovocný trh 14, 112 94 Praha 1, Czech republic

2.2 Location: District of Prague 1 (not so many inhabitants but many companies and five ministries seated – which means more legal actions against the state)

2.3 Sphere of competence: Civil and criminal proceedings

2.4 Judges:

- Professional judges: Number: 44 - 13 criminal and 31 civil judges

(1 president and 3 vice-presidents)

- other judges: Type: associate judges (lay judges), Number: 27

interventions according to the need of the cases (only criminal law and labour law cases) ca. 5-10 cases where 2 lay judges are needed per week.

2.5 Clerks:

- Judge assistents/higher court clerks: Number: 11/9,

- other administrative staff: Number: 45

2.6 Use of IT:

- Court administration application : ISAS by the company CCA groupe;

- Word processing and Internet access for all judges and staff available;

2.6. Ratio of total resolved cases / incoming cases

(>1 reduction of the number of pending cases; <1 increase of the number of pending cases)

Civile litigations: 35.454/23.298

Enforcement of the decision: 6.093/6.432

Family law cases: 190/181

Criminal cases: 1335/1075

3. Description of the actual situation in Czech justice

This report was elaborated in cooperation with the representantive of the pilot court discribed above, Mgr. Andrea Pešlová, during several meetings and many discussions. This report is an analysis of the actual situation in Czech republic – to describe the current state of implementation of the SATURN guidelines for judicial time management.

There has not been selected a concrete project and a concrete court yet. To achieve this goal there has been published an article about the CEPEJ in general and about the SATURN guidelines for judicial time management in the magazíne(monthly) called „Judge“ to address judges and courts to bring their attention for eventual cooperation on the project.

But in the situation where the new governement has - because of the Crises - diminished the salaries of judges (who can not have other income, appart some exceptions, at all) and money for the courts´ spendings, there is a very difficult atmosphere to present new projects which mean some new work for judges or the representatives of the courts. There has to be understood that the situation of judges and justice in Czech republic is much different then that of Norway, Sweden or i Switzerland.

The impuls must come from the inside, therefore we have decided to translate all the important documents of the CEPEJ and publish them in the magazine which is read by judges, to create some kind of promotion forthe CEPEJ and its ideas.

The draft project which is described in the end of this report is not directly enforceable. This mean that only those judges who are interested in, will use the computer program and then, after some time, can report on the effect of the project on the lenght of the proceedings.

4. Analysis of current implementation of the rules

Ad I.: General principles and guidelines

(A. Transparency and foreseeability, B. Optimum length)

It is one of the main goals of the judiciary in the Czech Republic. The legislation, the system of control and the collected data are focused among others on the shortening of the length of the proceedings. The general rule of civil proceeding is to finish the case at the first hearing.

(C. Planning and collection of data, point 1. and 2.)

It seems as a little problem of the Czech civil procedural law (the penal law is much more bound by the legally determined length of different types of periods of proceedings). Nowadays the fact that parties are met, seems only the element prolonging the proceedings themselves.

(C. Planning and collection of data, point 3.)

The Czech courts use an information system which provides for all kind of information on the proceedings including the length of different kind of respective periods. This is the project that the pilot court is going to propose: to enlarge the existing IT system, that will be able to show everyday´s overview of all cases having a critical time or when a stand-still or dead time overcome certain time limit (i.e. one month).

(D. Flexibility)

There are some types of cases which have priority (with the duration set in the procedural law – for example: preliminary measures, family and penal cases). There is a control over following these rules.

Ad.II.: Guidelines for legislators and policy makers

(A. Resources)

It seems that resources are the main problem to fulfill all the goals of the effective judiciary (lack o finances causes lack of assistance for judges and the lower quality of administration).

(B. Oganisation)

One of the main demands on the new laws is to avoid the overburdening of courts.

(D. Procedure, point 1)

There are generally not such rules in the Czech procedural laws, which would prolong or complicate the procedures.

(D. Procedure, points 2.,3.,4.)

The new legislation of the civil procedure come with the institute of so called “Legal concentration of the procedure” which means that parties should come with all their relevant facts and evidences just on the first hearing of the procedure, so that in the opposite case court can not take them in consideration (art. 118b of Civil proceeding law).

(D. Procedure, point5.)

The new legislation of the civil procedure has enlarged the amount of cases, in which the appellation is excluded.

(C. Procedure, point 6.)

In the present state of affairs it is the case. The recourse to the Supreme Court is restricted to the most important cases and cases not yet treated by the Supreme Court.

Ad III.: Guidelines for authorities responsible for administration of justice

(A. Division of labour)

Ministry of Justice is consulting during the preparation of the new laws all the actors of the justice proceedings. Problem is based at the moment on the fact that there is not such duty incorporated in employment (working) duties of those people. Therefore, they devote mostly their free time, if needed.

(B. Monitoring, point 1.)

There are data collected by the statistical bodies of the Ministry of Justice.

The above mentioned justice report includes general statistics on the case and time management of the District Court of Prague 1: business and civil law remedy statistics (C + EC), Enforcement of the decision EXE and E) Family law (P and Nc) Criminal law (T) (these statistics are from the point of view of the Ministry of Justice, internal, confidential, in the Czech language. But, for the purposes of SATURN, we can provide them, if needed).

(B. Monitoring, points 2.,3.,4.)

There is a periodical control of length of proceedings (every 6 months) of old cases (more then 3 years)performed president of each court. Each individual judge has to provide respective justifications. President can take measures – usually order concrete judge to work on the case immediately. There is also other control existing, from the side of higher courts and the Ministry of Justice.

IV.Guidelines for court managers

( A. Collection of information)

They do not collect and publish such information themselves: it is the Ministry of Justice responsible to do it for them.

V. Guidelines for judges

(C. Co-Operation and monitoring of other actors (experts, witnesses etc.)

It is possible to impose the fine on those actors who are causing the unfounded lengthening of the proceedings (art. 53 of the Civil proceeding law).

For example:

Extension requests of the parties are accepted only if the prooves yet presented in the proces can be used (art. 95 point 2 Civil proceeding law).

In cases where an expertise is required, the deadline will be fixed by the court. In case of delay, the expert will be reminded insistently to deliver his report under the sanction of a fine.

5. Conclusion

The mentioned points of the CEPEJ guidelines for judicial time management are already

practiced by the District Court of Prague 1.

6. Draft of the Pilot court

Project of the electronic guardian of time limits (in relationship to the point I. B. 2 and 4 of the SATURN Center guidelines for judicial time management)

There could be useful to extend existing information system by the application on the guardian of time limits, in other words to extend this IT application the way to bring to attention of judges files or cases with so called risky deadlines that should be worked out (i.e. judgment that should be written down, etc., or the files in which there has not been done any procedural act for more than i.e. 2 months, or in case where the file is older than two years, so it needs special attention etc.). Those files (cases) should be marked with visible color when judge opens the computer. Every judge would have this way the overview over his files.

The idea of one specific project is to widen the IT program in the way that it would guard the old files. It means that the IT program would be able to appoint to the judges of the pilot District court of Prague 1, who will be willing to participate to this project the file which has a dead time period longer then one or two months so that he can bring his attention to this concrete file.

And then, when this project would show up usefulness and brings positive results (lower the number of old cases), try to spread this project to other courts.

We have been informed that the IT application can be by now adjusted to be able to function and there is no need more for any cooperation of the Ministry of Justice.

Queen’s Bench Division of the High Court of Justice (United Kingdom)

I. General principles and guidelines

B. Optimum length

2. It is particularly important and in the public interest that the length of judicial proceedings is not unreasonable. The cases should not last excessively long. They should, under some circumstances, also not be too short, if this would unduly impact the users' right of access to court.

Position in the Queen’s Bench Division of the High Court of Justice

Cases are actively managed by the judge and this control is required by the civil code. The judge is required to being the cases to a conclusion in the most expedient way. The judge has to take into account the importance and value of the issues at stake and ensures that disproportionate amounts of the state resource are not expended on the case. At all times the judge has to ensure access to justice and set an appropriate timetable. Currently there is no method that enables cases that fall through the net to be identified. This will require computer support that is not available although the need for such information is now recognised.

C. Planning and collection of data

1. The length of judicial proceedings should be planned, both at the general level (planning of average/mean duration of particular types of cases, or average/mean duration of process before certain types of courts), and at the level of concrete proceedings.

Position in the Queen’s Bench Division of the High Court of Justice

Civil code (Civil Procedure Rules) ensures cases are pro-actively case managed which ensures they are dealt with within a reasonable time. Unfortunately the local computer system does not allow for such information to be generated although this would be highly desirable. In other civil courts the IT is in place and the information can be produced.

2. The users are entitled to be consulted in the time management of the judicial process and in setting the dates or estimating the timing of all future procedural steps.

Position in the Queen’s Bench Division of the High Court of Justice

During the process the parties are present either in person or by telephone and are involved in the discussions regarding the timetable and future hearings. If a party does not attend the court will make the decisions in their absence. The court may also receive a proposed consent order agreed by the parties. This proposal will be considered by the judge and allowed if it is reasonable, if not, the parties will be required to attend a hearing.

3. The length of judicial proceedings should be monitored through an integral and well-defined system of collection of information. Such a system should be able to promptly provide both the detailed statistical data on the length of proceedings at the general level, and identify individual instances at the origin of excessive and unreasonable length.

Position in the Queen’s Bench Division of the High Court of Justice

Before this may be implemented the computer system at the High Court of Justice would need a major upgrade. If and when the resources are available for such an upgrade this requirement would be a feature. A manual system is not practical due to the current restrictions on staff numbers

III. Guidelines for authorities responsible for administration of justice

C. Intervention

1. If departures from standards and targets for judicial timeframes are being observed or foreseen, prompt actions should be taken in order to remedy the causes of such departures.

Position in the Queen’s Bench Division of the High Court of Justice

The judge undertaking his/her judicial case management role will ensure the parties and the court maintains the timeframe. If the case is not proceeding as planned the judge will take appropriate action by giving further directions and if necessary impose sanctions on the parties.

2. Particular attention should be given to the cases where integral duration is such that it may give rise to the finding of the violation of the human right to a trial within reasonable time.⁴

Position in the Queen’s Bench Division of the High Court of Justice

At present the Deputy Head of Civil Justice has the responsibility to monitor cases that may be deemed a violation under Article 6 but there is no local provision for this to be done beyond in the absence of adequate computer support. Fortunately The general judicial case management provisions in place ensures that cases do not fall into the violation category.

3. The monitoring should make sure that the periods of inactivity (waiting time) in the judicial proceeding are not excessively long, and wherever such extended periods exist, particular efforts have to be made in order to speed up the proceeding and compensate for the delay.⁵

Position in the Queen’s Bench Division of the High Court of Justice

During the course of judicial case management the judge will decide if one of the parties is causing delay and impose sanctions or order that party to cover the other person’s costs. If the court is responsible for the delay compensation may be paid to cover the additional costs incurred by delay cause.

D. Accountability

1. Everyone who, by his act or omission, causes delays and adversely affects the observance of set standards and targets in the time management should be held accountable.

Position in the Queen’s Bench Division of the High Court of Justice

In addition to the provisions mentioned in C3 above the judge may order the lawyers to be the wasted cots incurred by the parties because of the delay and if necessary strike out the claim or defence and award the case to the other party. If the court staff and or management are responsible this will be identified by the performance reports for the court and be reflected in the appraisal of the staff, possibly impacting on their pay and promotion prospects.

2. In addition to the individual accountability for the ineffective time management, the state may be held jointly and severally accountable for the consequences caused to the users by the unreasonable length of proceedings.

Position in the Queen’s Bench Division of the High Court of Justice

This does not apply as the court is seen as the organ of the state and the Ministry of Justice would be responsible for any compensation that is to be paid for delays caused by the court.

IV. Guidelines for court managers

C. Established targets

1. In addition to the standards and targets set at the higher level (national, regional), there should be specific targets at the level of individual courts. The court managers should have sufficient authorities and autonomy to actively set or participate in setting of these targets.

Position in the Queen’s Bench Division of the High Court of Justice

Local targets are set for different parts of the court office. Types of work may be allocated a target time for completion and daily reports produced to monitor progress. This information is used for the local allocation of resources to achieve maximum efficiency.

2. The targets should clearly define the objectives and be achievable. They should be published and subject to periodical re-evaluation.

Position in the Queen’s Bench Division of the High Court of Justice

National targets are published as is the performance against target. These targets are set each year after reviewing the previous year’s outcome and are considered achievable. Performance against some local targets is all displayed for the public and other court users and this performance is discussed at user group meetings.

3. The targets may be used in the evaluation of the court performance. If they are not achieved, the concrete steps and actions have to be taken to remedy the situation.

Position in the Queen’s Bench Division of the High Court of Justice

The results against local targets are circulated to Senior Management and the Court Manager is accountable for failure to meet targets and would is required to produce recommendations and a plan to rectify failures. It is important that managers are pro-active and take remedial action at the earliest stage.

D. Crisis management

1. In the situations where there is a significant departure from the targets set at the court level, there should be specific means to rapidly and adequately address the cause of the problem.

Position in the Queen’s Bench Division of the High Court of Justice

As a result of collecting management information priorities are reassessed and resources re-distributed. Without the collection of this management information on performance the problems would not be identified and the decline in performance would have continued.

V. Guidelines for judges

A. Active case management

1. The judge should have sufficient powers to actively manage the proceedings.

Position in the Queen’s Bench Division of the High Court of Justice

The Judge has the power to actively manage cases as this is fundamental to the civil procedure rules.

2. Subject to general rules, the judge should be authorized to set appropriate time limits and adjust the time management to the general and specific targets as well as to the particulars of each individual case.

Position in the Queen’s Bench Division of the High Court of Justice

This is also enshrined in the Civil Rules and allows the Judge almost total discretion to manage the case, set a timetable and impose restrictions on the parties as appropriate to the case being dealt with.

Completed by Central London Civil Justice Centre without the benefit of Coaching

(United Kingdom)

GENERAL PRNCIPLES AND GUIDELINES

QUESTION 1 B

Optimum length

This has been developed in England and Wales over a number of years and in particular since the introduction of CPR rules.

In some processes requiring a hearing parties to the proceedings are asked to provide an estimate of time. In others, and in particular cases requiring a final hearing the Judges may fix the time estimate after taking into account the numbers of witnesses, the complexity and costs. The process of assessing the time required for a hearing encompasses the “users’ right to access to Court.

It is the role of Court Administration to assist the judiciary in their functions by ensuring file availability and the completeness of files and to ensure that judicial diaries are effectively managed to meet the listing requirement.

QUESTIONS C

Planning and collection of data.

1. For this to be effectively discharged I have ensured that the Courts judicial listing policy is regularly reviewed in order to ensure that the demands of listing cases before the Judges are met without disadvantaging the court user.

2. In the cases that fall within the 3 tracks, “Small, Fast and Multi”, users are invited to provide time estimates and proposed case management directions. The Judges, in turn, will take such information into account when providing listing directions. The administration must ensure that the parties are served with the judicial order in time for them to comply with timeframes.

3. Data collection should provide administrators and judiciary with information against listing targets. This then enables administrators and judiciary in partnership with each other to assess weaknesses, failed targets and implement remedies.

Statistical data is collected from all Courts in regard to waiting times and targets have been set against various case types in Civil, Family. and Criminal proceedings. I must also add that it is important to involve stakeholders and supporting agencies in the sharing of information and data.

QUESTIONS C

Intervention

1. This is dealt with by the Civil Procedure Rules. Case management within the provisions of the rules provides for a party to the case to apply to the Court if the other party is not complying with the timeframes. Such matters are usually dealt with by application to a judge or by correspondence. The Judge will then have the opportunity to intervene. In either case of application or correspondence the administration must ensure that the process is treated with priority and a judicial order obtained without undue delay otherwise administrative delays may adversely affect the user and the length of proceedings.

2. The administration must support the judges in ensuring that timeframes are adhered to and there are no lengthy periods within the timeframe that calls for no activity from the parties. If a party to the case considers that the timeframe unreasonably lengthens the time of the proceedings then they can apply. However, the process of setting timeframes to cases within the Civil Procedure Rules does not provide for integral delay.

3. Waiting times must be monitored by administration both by scrutinising electronically collected data information and by reference to any local waiting times that are agreed with the judges and considered met the needs of the user. In order to achieve this administrators must ensure that judicial time is available for cases to be listed in accordance with the timeframe and if there are any concerns in achieving the listing target then the facility for using additional resources (part time judiciary) to bring waiting times back into target.

In the case of lengthy Court hearings of one day or more we have developed listing practices to ensure that judicial hearing days are heavily loaded. This takes into account the propensity for late settlements while maintaining full lists for the judges.

QUESTIONS D

Accountability

1. Accountability rests with the parties to the case. Any departure from the timeframes may render the offending party to a sanctions order and costs. In regard to the Court rules either party can make application either with or without a hearing and the judge must consider the implications to the progress of the case when making an order.

In addition any party that makes an application for an adjournment of a case, for an order to vary a timeframe or to amend must show good and just cause in doing so and judges will not grant any order without ensuring that a party is unreasonably disadvantaged.

2. The state provides the resources to the Court to discharge its functions. Therefore, if the length of proceedings are found to be unreasonable then the administration must anticipate the potential problems before they are experienced. Both the administration and the State must then consider what additional resources are required to remedy the problem. In addition administration must be satisfied that systems for listing, economical usage of judicial time and any other listing related factors are efficiently managed.

Guidelines for Court Managers

Established targets

1.Comments in regard to this have been mentioned in relation to other questions. However, Court Managers must ensure that they work with the local judiciary in setting local targets. Full autonomy cannot be given as much depends upon how judicial diaries are organised and the needs of the judges to attend to matters of priority. Progress has been made in setting local targets for interim applications, urgent matters relating to injunctive relief and applications for a stay of execution. Locally agreed targets including family matters are contained in the local judicial listing policy and this also provides information to administrative staff relating to the numbers and types of cases that must be listed within a target period.

2. Targets are judged to be achievable by assessing workflows against case type, judicial availability and importance. The listing policy is reviewed regularly and this must be the case as changes to legislation, workflows and changing judicial resources must be factors built into the review.

The policy should be published and court users must be aware of the aims and targets.

3. National targets are firstly used in the evaluation of Court performance as all Courts are assessed against them. Local targets are also used to measure performance. From a user perspective they are no less important and the relationship between National and local targets are inter-linked. For example, missing a target for interlocutory case management hearings may impact upon the substantive hearings and reflect poorly upon court performance.

Guidelines for judges

Active case management

1. Civil Procedure Rules provide the judges with sufficient case management powers. They can make orders for directions “by their own initiative” and provide any additional directions for the economical and effective disposal of a case as they see appropriate.

2. This is generally the case but the priority of a judge must firstly be to make orders with time frames that are appropriate for the case. The achievement of listing a case within target cannot always be achieved and this is why our targets are fixed at or around 70%.

Implementation of CEPEJ SATURN tools by Tbilisi Appeals Court (Georgia) – pilot court of CEPEJ

By Irakli Adeishvili, Member of the SATURN Steering group

Introduction

It was agreed during SATURN meeting on April 14, 2010 that the members will conduct a survey in their respective pilot courts to find out how the tools of CEPEJ and namely SATURN tools are being implemented in the pilot courts.

The present report is based on personal experience of the author working at the position of judge in the same court as well as on the information received by Deputy Chairman of the Court.

Tbilisi Appeals Court is an appellate court that is in charge of review of judgments and rulings of the first instance courts of Eastern Georgia (22 first instance courts) with population about 2.5 million inhabitants (including capital city of Tbilisi). The court staff includes 200 non-judge staff and 33 judges.

Consideration of the fifteen guidelines

I. General principles and guidelines

C. Planning and collection of data

According to procedural legislation when the case arrives at court it should pass the stage of admissibility which means that the appellate claim should contain certain pre-requisites as well as the state duty (court fee) should be paid unless party is exempted from payment. If such requirements are not met the case is not admissible. Once the case is admissible the judge adopts a formal resolution (ruling) and appoints a date of hearing which usually is within one-two months from the date of admissibility.

It should be underlined that there is no procedure of meeting with parties and scheduling a date of hearing. The law does not envisage doing that. However, in the first instance courts it is possible that the court appoints so called preparatory hearing to prepare a case for the main hearing, where the parties may file some motions, requests etc at the preparatory hearing. However, taking into consideration the peculiarities of appellate stage of proceedings the preparatory hearing is not necessary at this stage since the parties had opportunity to do so in the first instance courts.

The procedural legislation strictly defines that civil and administrative cases should be finalized within 2 months, in case of a difficult case within 5 months. These terms are strictly controlled by the court management and most of the cases are finalized within 5 months term. If case exceeds its time frames in the electronic database this fact shall be indicated. In criminal cases there are no time frames stipulated.

Conclusion – There are not time planning instruments involving parties, however, the time fames of the cases are strictly monitored that allows to maintain the high rate of cases finalized within legally binding periods of time.

The users are entitled to be consulted in the time management of the judicial process and in setting the dates or estimating the time of all future procedural steps.

It was already noted that procedural legislation does not allow the parties to take active role in appointing the hearing. However, if case is not finalized during the first hearing and it is postponed for some reasons it’s a common practice that judge fixes the date of next hearing according to parties’ requests. For example, if the party can’t attend the hearing at 10 o’clock the case maybe appointed for 16 o’clock. OF course, if the respondent wishes to postpone the case for an indefinite time such an attempt will not be allowed by the court. The situation is the same when parties are represented by lawyers and if lawyers are busy on certain hour or even date, the hearing may be appointed for another hour or another date.

Interestingly enough, almost all judges have special dates in their calendars for the cases postponed and such dates are not very far away which means that next hearing shall be appointed within three-four weeks from the first hearing.

Conclusion – taking into consideration the peculiarities of legislation the involvement of the parties in the process of appointing next hearing meets the requirements of the guidelines.

III. Guidelines for authorities responsible for administration of justice

B. Intervention

1. If departures from standards and target for judicial timeframes are being observed or foreseen, prompt actions should be taken in order to remedy the causes of such departures.

Tbilisi Appeals Court is the only court so far in Georgia which has and operates its own electronic case management system which produces number of landmarks in all types of cases. Such landmarks are

Time limit for admission of the case;
Time limit for appointing the first hearing;
Deadline for writing of the judgment;

In addition, all the procedural steps and documents are registered of the web page while word documents are attached to the same page and the parties can through their passwords view the current situation with their case and download word documents. When the time frames are exceeded the cases is show in red letters on a screen and it is easily identifiable that this case has a problem.

The chairman of the court can obtain the information about the lengthy cases, their quality and their content. If the situation is very problematic a special meeting may be held discussing the situation with the lengthy cases.

Conclusion – At this stage the above mentioned intervention shall be considered to be sufficient, however, there is always room for improvement, however, such improvement shall not take the form of overburdening the judge and the staff and allowing the necessity of prompt hearing to outweigh the necessity of fair trial, adversarial proceedings and quality of judgments.

Particular attention should be given to the cases where integral duration is such that it may give rise to the finding of the violation of the human right to a trial within reasonable time.

The main requirement of ECHR in relation with reasonable time is that the case should not suffer from so called waiting times i.e. time when nothing happens with the case. From the practice of the court we can see that such waiting times either do not exist at all or are at their minimal level. When the case is admissible the case is appointed immediately, and the appeal together with all the attached materials is sent to the opponent party. When postponing the hearing the date and hour of the next hearing is fixed at the moment of postponement. The only cases when the date of the next hearing is not appointed may be the cases when some documents or information are requested from other entities and it is not clear when they arrive, but the number of such cases is very few and it can not influence overall situation.

In relation to criminal cases, the court has no fixed terms for hearing because according to procedural laws the judgment of the first instance court enters the force from the moment of its announcement although it is subject to appeal. However, the Appeals Court still handles the cases within a very strict timeframes.

Conclusion – The fact that almost all cases are appointed after their admissibility provides that there are almost no waiting times. From this point of view the extended time limits of the case can be explained by some other factors (for example, difficult case, or involvement of tens or hundreds of parties etc.) and not by the inactivity of the court.

The monitoring should make sure that the periods of inactivity (waiting time) in the judicial proceedings are not excessively long, and wherever such extended periods exist, particular efforts have to be made in order to speed up the proceedings and compensate for the delay.

As analyses above may indicate, the periods of waiting time are at its minimal level that means that for no significant period of time the case is at standstill position. Where proceedings are excessively long, such cases are easily identified by electronic case management system and dealt with.

Conclusion – At this stage standstill time is under control by electronic case management system which identifies any shortcomings in this regard.

IV. Guidelines for court managers

A. Collection of information

1. The court managers should collect information on the most important steps in the judicial process. They should keep records regarding the duration between these steps. In respect to the steps monitored, due regard should be given to the Time Management Checklist, Indicator Four.

In the paragraphs above it was mentioned that Tbilisi Appeals Court uses its own electronic case management system which is available to the management of the court, to the judges, non-judge staff as well as to the users of the court but the later only in their own cases and not to the whole database. In civil and administrative cases the system uses ten out of 12 points of progress described in indicator four of the Time Management Checklist. Only “v. the use and timing of preparatory conference or preliminary hearings” and “vii. Existence and duration of technical expertises”. The court also does not use the points xiii – xvii because they concern the cassation stage of proceedings.

Conclusion – the main points of the checklist, indicator four can be easily viewed and identified through case management system.

2. The information collected should be available, to inform the work of court administrators, judges and the central authorities responsible for the administration of justice. In appropriate form, the information should also be made available to the parties and the general public.

The case management system is frequently used by the judges and the court management also uses it to be aware of the existing situation in the court. The Supreme Court (which is central authority in judiciary) also has access to the system because the system needs only internet and password to become accessible. As for general public, the yearly statistical data of judiciary in Georgia is published in special magazine which is widely circulated within various agencies and NGO’s. The interested party can only view his/her case in the case management system because it may result in a violation of privacy to allow access to the case details of other individuals.

Conclusion – The main data is submitted to the general public on a yearly bases. However, if someone is interested in some other information generated by case management system, such information may be issued in case of request.

B. Continuing analysis

1. All information collected should be continually analyzed and used for the purposes of monitoring and improvement of performance.

The court management is informed daily about situation with cases and in case of necessity there are meetings devoted to deal with the existing problems. The statistical data of performance of each judge is collected monthly and in case of significant decrease the reasons are analyzed.

Conclusion – The court’s practice is in accordance with the guidelines.

3. The report on the results of analyses should be produced at regular intervals, at least once a year with appropriate recommendations.

Although statistical data is published yearly, and there are monthly statistics of judges and chambers as well, still there are no formal recommendations issued except of mere figures. There may be some recommendations verbally during the meetings, but no formal recommendation is issued.

Conclusion - In this regards it may need some improvement to draft recommendations and submit to the court. It should be advisable that such recommendations are drafted either by the court management itself or by superior court, although it should be ascertained that such recommendation do not breach judicial independence.

C. Established targets

1. In addition to the standards and target set at the higher level (national, regional) there should be specific targets at the level of individual courts. The court managers should have sufficient authorities and autonomy to actively set or participate in setting of these targets.

Setting of targets is an absolute novelty for Georgian courts and there was no such attempt to set target for the court. The only target is to fulfill its activity according timeframes and standards set by law itself.

Conclusion – setting of an official target is very new for Georgian courts and it might need certain period of time for a particular court to find out the ways of setting targets.

2. The targets should clearly define the objectives and be achievable. They should be published and subject to periodical re-evaluation.

3. The targets may be used in the evaluation of the court performance. If they are not achieved, the concrete steps and actions have to be taken to remedy the situation.

Conclusion – There are no special targets for each particular court, however, the only target is to solve the case timely and if such a mission is not achieved of cause, the reasons are analyzed and conclusions made as indicated in previous paragraphs.

D. Crisis management

1. In the situations where there is a significant departure from the targets set at the court level, there should be specific means to rapidly and adequately address the cause of the problem.

A crisis is overcome internally either by reallocating resources or by applying for new judges. At present the court has increasing number of civil incoming cases and it is planned to increase number of judges specialized in civil matters.

Conclusion – The court understands when the crisis might occur and is ready to remedy the situation.

V. Guidelines for the judges

A. Timing agreement with the parties and lawyers

2. Where possible, the judge should attempt to reach agreement with all the participants in the procedure regarding the procedural calendar. For this purpose, he should also be assisted by appropriate court personnel (clerks) and information technology.

It was underlined above that adoption of procedural calendar is impossible due to peculiarities of procedural legislation but usually when postponing the hearing the new date and time is agreed at the trial among all the participants. As for the personnel, each judge has one assistant and one secretary of hearing (in charge of making minutes at the trial).This staff is mainly sufficient for the judges but sometimes there are interns as well who assist the assistant and secretaries.

Conclusion – Although it is not possible to have a formal calendar of the hearing whenever possible the dates and times of the proceedings are agreed among parties.

3. The deviations from the agreed calendar should be minimal and restricted to justified cases. In principle, the extension of the set time limits should be possible only with the agreement of all parties or if interests of justice so require.

The case may be postponed for number of reasons, but whenever postponed the date and time is set together with all parties who attend the hearing. It is possible to postpone the hearing because of parties or lawyers absence but such absence should be caused by justifiable reason such as illness (proved by doctor’s letter stipulating that the party is ill that makes it impossible to attend the hearing), attendance to other trial (to be proved by summon of that hearing). If party is absent for unjustifiable reasons in civil cases a default judgment may be adopted against such party.

Conclusion – In this area the court’s practice is in compliance with the guidelines.

***

Report on Implementation of the Project

by Irakli Adeishvili

The present report is drafted upon the decision of the SATURN center for judicial time management to carry out certain project in relevant pilot courts in order to prepare some feedback for the prospective projects to be fulfilled by all the pilot courts. The report shall analyze the introduction in Tbilisi Appeals Court of the new procedure for preparing the argumentative (motivated) judgments on civil cases and their delivery to the parties (the Project). Timely drafting of the judgment was also identified as one of the landmarks in the previous report on Implementation of CEPEJ SATURN tools by Tbilisi Appeals Court (submitted to the group for its October 2010 meeting) based on SATURN Guidelines for Judicial Time Management, III B1.

A Brief History

Drafting an argumentative judgment has always been a problem taking into consideration two facts - a) According to procedural rules the judgment should contain certain elements (Introduction, descriptive part, motivation part, resolution part) that are mandatory; b) There was 14 days period from the announcement of resolution part of the judgment to prepare the motivated one. Thus the previous legislation envisaged the period of 14 days for finalization of drafting and after the draft was ready it was the court’s obligation to send the draft to the parties. This very moment of sending the draft to the parties was a problematic issue because in practice when the judges had to write many motivated judgments within 14 days, it was difficult to do that in two weeks, and the obligation of the court to send it to the parties was used to extend the 14 days deadline. There was no deadline for sending the judgment thus it was possible to send it after a month or two and this term was sometimes used for drafting of the motivated judgments.

Amendment

In December 2010 the Parliament adopted a new amendment in Civil Procedural Code according to which if the party is present at the public announcement of the resolution part of the judgment (which is actually what was solved by the court in that case i.e. the conclusion of the court) or if a party was dully informed about the date of announcement of the judgment, then the party who wishes to appeal such judgment is obliged to come to the court not sooner then 20 and not later then 30 days after announcement of resolution part and receive copy of the motivated judgment. If the party fails to do so then the term of appeal shall be calculated from 30-th day after the announcement of the judgment. It is prohibited to renew or restore this term. Interestingly enough, this rule applies only in appeals courts (there are only two appeals courts in Georgia) and only in civil cases.

Implementation

As it is obvious the rule above is quite hard for understanding and especially for fulfillment because it includes number of terms and deadlines. Therefore, before it entered the force most of the judges had their own interpretation of this rule. In order to secure common application of this rule the management of the court and of the chamber of civil cases organized a meeting of all judges of civil chamber where not only the rule itself was clarified but also the idea behind the rule was explained to the judges, which was to provide parties in a reasonable time with the motivated judgment on their cases.

Of course, the meeting caused lots of debates about the proper understating and implementation, however, after the debates it became possible to come to one conclusion and common understating of the provision.

Finally, it was concluded that the provision should be used in the following manner. In cases when announcement of judgment is postponed for some other date (not later then 30 days from the last hearing), the parties presented at the hearing are notified in writing about the date of announcement of the resolution part of the judgment (usually the party signs appropriate document). After that it is a risk of the party to come within those ten days (not sooner then 20 and not later then 30 days) and take the judgment.

When announcing the resolution part of the judgment the court in final paragraph announces also the procedure and dates for the appeal so that the party presented at the hearing is aware how to appeal the judgment. If party who has been notified about the date of the announcement does not appear at the announcement then he/she may still come during the above mentioned ten days and take judgment. If party never comes during that period then the starting point for calculation of the 30 days appeal period shall be calculated from the 31-st day from the date of announcement of the judgment.

The procedure is pretty much the same when the judgment is announced immediately after the hearing. In such a case it is not necessary to obtain the parties’ written statements about the fact that were informed about the date of announcement because the judgment was already announced to them. The court only informs the parties about their obligation to come within the stipulated deadline in a manner described in paragraph above i.e. the court in final paragraph announces also the procedure and dates for the appeal so that the party presented at the hearing is aware how to appeal the judgment.

Practice

In order to carry out these amendments into everyday life, management of the court and of the Chamber of Civil Cases adopted number of steps. First of all, it became necessary to have the new forms of notification for the parties about the date of announcement, as well as the new forms of the last paragraphs of the resolution part of the judgment (where the court explains to the parties the terms of appeal). Such form have been elaborated and delivered to the staff in an electronic way.

Another very significant aspect was the step undertaken by the management of the court for facilitation of the drafting process - to give to each of the chamber (consisting of three judges) one additional assistant (clerk) for drafting the motivated judgments (decisions on merits) only. Before this novelty, each judge had one assistant who was in charge of both preparation of the case and drafting number of procedural documents including judgments and many other documents like rulings on eradication of shortcomings in the appellate claim, ruling on admission of appellate claim etc. Due to heavy case load it was expectable that one assistant would have huge problems to prepare case (i.e. draft number of procedural documents and take care of their sending and delivery) and to draft the motivated judgments as well. Thus, the decision to give each chamber one additional for the very purpose of drafting judgments in timeframes envisaged by law was a vital element to meet new deadlines.

Results

Although only 4 months elapsed from the adoption of the new procedure for appeal it is clear that all the staff, especially judicial staff is much more focused and attentive to meet the deadlines. All those afford mentioned above coupled with the dedication of the court staff shall greatly facilitate to meeting the deadlines and thus, contribute to fast and efficient justice in the interests of court users.

IMPLEMENTATION TEST OF SATURN TOOLS IN THE

FIRST INSTANCE COURT –

PILOT COURT OF TURIN, ITALY

On the basis of the implementation test of SATURN tools in selected pilot courts, suggested by Jon T. Jonsen, I tried to “test” at least a part of Saturn Guidelines for Judicial Time Management, adopted by the CEPEJ at its 12^th plenary meeting (Strasbourg, 10 – 11 December 2008), on the experience of the Turin (Italy) First Instance Court. Let me add I share the view expressed by Jana Wurstová’s report concerning Czech Republic, according do which such experiment should be realized in cooperation with the Ministry of Justice, which is the main partner, especially in relation to the assignment, ordering and operating the information system used by courts.

General description of the court. (Name, type, location, staffing, equipment and infrastructure, constituency, caseload structure, backlog etc.).

The First Instance Court of Turin has 162 judges (both in civil and criminal sections) and about 30 non-professional lay judges (charged from time to time to deal with some aspects of cases, like taking evidence in minor cases etc.). Non-judicial staff (from court clerks to drivers) is of 452 people. The court deals in first instance with practically any kind of civil and criminal cases. For cases whose value is under 5,000 Euros (and for damages provoked by car accidents under 20,000 Euros) first instance judges are the Justices of the Peace. Appeals against such decisions are brought before my Court (which, in these cases, acts like an Appellate Court). The number of inhabitants of the district of our First Instance Court is of approx. 1,800,000. The number of lawyers in the same district is of approx. 5,000. Current total backlog of cases (civil and criminal) is roughly of about 27,000 (about 24,000 civil and about 3,000 criminal). Each year about 40,000 new cases (about 32,000 civil and about 8,000 criminal) are brought before our Court. Number of cases resolved is usually slightly higher than the number of cases yearly newly brought before the Court. Therefore backlogs are regularly (though slowly) reducing.

Description of the process of selecting CEPEJ tools for implementation.

Actually, some of the CEPEJ tools have been “implemented” in the Turin first instance court even before they were adopted by the Council of Europe. In particular, since the year 2001 the President of our Court decided to launch the so called “Strasbourg Programme.” According to this programme, a case management policy was for the first time launched in Italy, starting from a census of all cases lasting for a period longer than three years, in order to know exactly for how long each case had lasted and what the percentages were for each period of time. Then the President issued a list of guidelines, inviting judges to follow them. Such practical recommendations dealt with possible good practices to adopt while dealing with cases, in order to avoid unnecessary delays, as well as how to deal on some special issues with lawyers. The regular answers to SATURN and CEPEJ questionnaires sent by my Court enhanced as well the awareness of many colleagues and members of the staff to cope with issues of timeframes shortening and reducing backlogs.

For this report I decided to choose a part of Saturn Guidelines for Judicial Time Management, adopted by the CEPEJ at its 12^th plenary meeting (Strasbourg, 10 – 11 December 2008), because the are, among the CoE’s documents, those who are maybe the nearest to the experience of the guidelines issued by the President of Turin First Instance Court.

To what extent did successful implementations result in actually improvements of the court’s time management?

The implementation of the “Strasbourg Programme” and of the guidelines relating to it brought about very good results almost immediately. In 2002 the Court managed to get rid of a number of cases which had been lasting for over ten years (among which also a case lasting since 1958!) and the percentage of cases lasting for over three years was drastically reduced. Currently, out of 24,355 civil cases pending before the Turin First Instance Court, only 1,215 have been lasting for longer than three years: a result that, if compared to the overall data concerning Italy, is surely remarkable. The current President keeps on monitoring every six months the evolving of the situation, issuing regular reports which are published on the Court’s website.

Time use. How long did the successful implementations take?

The implementation of the “Strasbourg Programme” and of the guidelines relating to it has been going on since 2001 through the regular monitoring, every six months, of the input and output data concerning cases. Particular attention is cast to cases which last for longer than three years. Such cases must be dealt with an absolute priority. Adjournments for such cases should be possibly avoided and in any case reduced to a very limited number of days, such as to reduce the length of procedures in any case under three years.

Such constant monitoring is one of the factors that influenced the success of this programme. Presidents of concerned sections of the Court are charged to inquire into the reasons for non-compliance of these rules, if cases exceeding that time limited are reported.

External cooperation.

A crucial factor for the good results of the “Strasbourg Programme” was represented by the cooperation with the local Bar Council, which tried to focus the attention of attorneys on the need (in their interest as well) to shorten timeframes. Relations to the Ministry of Justice are much more complicated. Actually, according to the Italian Constitution, the Ministry should provide the material means and supports for an efficient justice system. Unfortunately shortage of funds (even well before the current world financial crisis!) has dramatically reduced the amount of money used for financing justice and judicial activities. Shortage of staff is becoming more and more evident, as clerks who retire are not replaced. The same is true for judges, whose number is constantly below the needs and vacancies are often left blank.

Recommendations. Major findings on factors that influence the implementation and use of CEPEJ time management tools should be evaluated. How do the implemented tools influence time management? What are the gains? Are the findings applicable to other CEPEJ time management tools? Are they applicable to other courts in the jurisdiction of the pilot court and to courts in other jurisdictions?

CEPEJ time management tools like e.g. the Saturn Guidelines for Judicial Time Management, adopted by the CEPEJ at its 12^th plenary meeting (Strasbourg, 10 – 11 December 2008) should be implemented in each and every Court. But in order to achieve this goal, a previous work should be done at the level of Ministries of Justice. Only Ministries of Justice can envisage to have such tools first of all co-ordinated at European level (through the CEPEJ activities), then translated into different languages. Only Ministries of Justice could manage the huge and painstaking activity of monitoring the implementation of such instruments, to gather feedbacks and to analyse them, in order to make data comparable at the European level.

Taking into account the peculiar situation of the judiciary in large number of European Countries, where all major functions and tasks concerning the judiciary are dealt with not by the Ministries, but by Councils for the Judiciary, it would be important to somehow involve them as well in this process. For instance, they could issue guidelines and directives for Heads of Courts, inviting them to implement “model” guidelines, taken by SATURN guidelines translated into local languages and maybe also adapted to local needs and particularities.

As to the SATURN Guidelines for Judicial Time Management:

[N.B.: Only Chapters I. General Principles and

V. Guidelines for judgeswere taken into account]

Chapter I

General Principles and Guidelines

(A. & B. Transparency and foreseeability. Optimum length. Planning and collection of data)

Recent reforms of the Italian civil procedure have brought about the need, for each judge, at the start of each proceedings, to draw a calendar of the process, in which the judge, taking into account lawyers’ advices, “foresees” and “predicts” when each and any of the steps of the process will take place. Moreover, according to the guidelines issued by the President, each judge has to try to help parties to friendly settle the case. During such hearings judges prospect to the parties the advantages brought about by a settlement, also envisaging what could be the path to be followed by the case (of course no hint should be given on the merit of the case, but the judge can very well say, for instance, that if the case goes on, he/she will need to appoint an expert to answer this or that question, etc.).

As far as overall foreseeability of the length of proceedings is concerned, the initiative of the President of regularly spreading general statistical and other data on the length of proceedings, section by section, can very much helpful in this respect. Also the spreading of statistical evidence reporting the “productivity” rate of each and every judge fosters a sort of competition which helps avoiding backlogs of the size which had to be reported in the past.

It is true that, according to what stated by Point B. 3. of SATURN Guidelines, “The time management of judicial proceedings, if not determined by the behaviour of the users themselves, should be made in an impartial and objective manner, avoiding significant differences with regard to timing of similar cases.” Problem is that, at least in Italy, a significant role in the case management is played by the lawyers. Therefore it is important to involve Bars in the process of reduction of judicial delays.

Actually it may happen that very similar cases have very different lengths, simply because the lawyers tried to make use in some cases of procedural tactics and “tricks” which may result in a waste of time. Of course it is also up to the judge to be vigilant and to discourage such practices. For instance, it may happen that adjournments are required by lawyers, who assure they are going to settle the case, and they need time to do it. Here it is up to the judge not to be too “generous” and to monitor closely the seriousness of this prospective settlement, as well as the honesty and truthfulness of the intentions of the lawyers and of the parties who are involved in the case.

(C. Planning and collection of data, point 3.)

IT is useful to monitor the backlog situation and the correct proportion between input and output. In the future it might be envisaged to have an automatic monitoring of cases which last more than a fixed period of time. The system could automatically issue sort of “warnings” to the judge (directly sent to his/her mailbox), informing him/her of a possible problem. Currently judges are obliged to personally take care of this aspect and monitoring statistical data. This happens, of course, already with the help of computerized systems, but the initiative nowadays has to come from the judge. In my Court, only if the case has lasted more than three years, some colleagues charged by the President will inform the concerned judge (or his/her President of section) of this. It would be important in the future to be warned in time, even before the said timeframe has elapsed.

It is of paramount importance that the length of judicial proceedings be monitored through an integral and well-defined system of collection of information. As described by the Guidelines, such a system should be able to promptly provide both the detailed statistical data on the length of proceedings at the general level, and identify individual instances at the origin of excessive and unreasonable length. But it is also important that such system be envisaged at least on a national basis, so to avoid that each and any court have their own different systems. Moreover, it would be essential to have an uniformisation of such system all over Europe. CEPEJ could play a pivotal role in this field.

(D. Flexibility)

Also in this aspect a relevant actor and player is the Bar. Priorities should be set in the framework of an agreement between Court and Bar. On the basis of my personal experience I can assure that very often (especially during the summer time) a number of “urgent” cases are brought before the Court which actually have nothing to do with urgency. Lawyers should become aware that if any case is submitted as “urgent,” then the following lengthening of timeframes jeopardises the (relatively few) cases which are really and genuinely urgent.

(E. Loyal collaboration of all stakeholders)

Running the risk of becoming boring, I would like to once again stress the importance of the role of lawyers. I could here mention, among other things, the case of Italy, where one of the reasons for the non-respect of the reasonable deadline requirement resides in the geographical distribution of courts on the territory. It happens very often that local sections of courts are scattered in the provincial territory (Turin e.g. has four of them in small cities around the district) and it very often happens that, due to temporary problems (pregnancies, accidents, vacancies waiting for a new judge to be sent by the High Council for the Judiciary, etc.) those seats become temporary vacant (I mean for one, three, four months…). Very often judges in the “central” seat declare themselves ready to provide help, by taking upon their shoulders cases (esp. the most urgent ones) coming from those sections. Unfortunately lawyers, in order to avoid to have they cases dealt with at only 10-15 Kms distance, oppose this allocation of cases to the judges of the “central” seat, forcing the President to dispatch judges from the “Capital” to the small cities of the district. This is of course a reason for a huge and useless waste of precious time, because judges who travel from the centre to the district have to adjourn their cases in the central seat, not counting the time needed for travelling back and forth. Everything would be much better, more performing and also more respectful of modern and efficient case management criteria, if only lawyers could accept to have their cases dealt with (for just a few months) at… 10 or 15 Kms of distance!

This clear example of lack of collaboration from the part of the Bar shows how crucial a role Italian lawyers could play, were they genuinely interested in shortening judicial timeframes.

V. Guidelines for judges

(A. Active case management)

Point 1. (“The judge should have sufficient powers to actively manage the proceedings”) is self-evident. However, directives and instructions issued by the Head of the Court could help the judges to “find the strength,” taking into account the current state of aggressiveness of Italian lawyers, to play a pro-active role. Of course this should always be done within the frames of procedural rules, which in my country are, unfortunately, very narrow.

As far as Point 2. is concerned, let me stress again that rules issued by the Head of the Court should, as it happened in the Turin case, set priorities among different cases, like e.g.: reducing maximum length to no more than three years; giving priority to cases exceeding that deadline or dangerously approaching to it, etc.

(B. Timing agreement with the parties and lawyers)

I repeat here what I pointed out in the first part of this report: nowadays the Italian civil procedural rules oblige the judge to set a calendar for each case. Moreover, a special hearing devoted to attempt the friendly settlement of the case can help persuading parties of the need to find a solution to it, or at least to avoid practices which could uselessly enhance the length of the process.

Of course I appreciate that Point 2. underlines that the judge should also be assisted by appropriate court personnel (clerks) and information technology. Unfortunately in my Court only the second part of that sentence is true. Staff is absolutely lacking and too often IT is used as a way to have judges perform (in addition to their regular duties) the tasks of clerks and secretaries.

(C. Co-operation and monitoring of other actors (experts, witnesses etc.))

Guidelines issued by Heads of Courts should (as it is the case for the Court of Turin) focus on the need for the judges to closely monitor the respect of deadlines by experts. It happens very often that experts, simply because they have maybe too many assignments (and are not accustomed to workloads and working times of judges…), tend to apply for an adjournment of the deadline originally set by the judge for the delivery of the expertise. Judges should take care that such adjournments are given only when strictly necessary (e.g. because parties are discussing, under the control and with the assistance of the expert, for reaching a friendly settlement of the case). As far as witnesses and parties are concerned, judges should dispose of much more effective powers in order to oblige them to attend the hearing. But, once again, it is up to the Legislators to change current laws.

(D. Suppression of procedural abuses)

Also in this field much greater powers should be advocated for judges and this issue has to be primarily dealt with by the Legislative Powers. I can personally witness that the vast majority of cases brought before me could be easily resolved without even going to the Court, on the basis of a little bit more good will from the parties and also of a little bit more knowledge of the law by concerned attorneys. The issue deals therefore with the delicate topic of legal training for all the actors of judicial proceedings and first of all for lawyers. A well trained lawyer can understand how risky or useless can be going to the Court for frivolous cases. Once the process has started it is very hard for the judge to convince parties to find an amicable solution, because parties have already engaged expenses and lawyers know that the longer the proceeding is going to last, the more they will be earning. Therefore the first reform should concern legal fees: this means that lawyers’ fees should not be linked to the number of acts they write, nor to the number of hearings they attend. This would be a very good step forward, but once again this cannot be done by the judges.

Judges, on their part, should be more attentive to the need to find ways to “punish” incorrect behaviours by parties and lawyers. Currently our procedural rules give the judges some powers in this sense. Older judges are much more linked to “lenient” practices of the past, but I have very much confidence in new generations of judges, who are much more ready to apply sanctions against disloyal parties and attorneys. Once again, specific guidelines on this topic by the Head of the Court could be of use in persuading “older” judges to take into account, when the case has to be adjudicated, of the behaviour of parties and lawyers.

Giacomo Oberto, Judge of the First Instance Court of Turin (Italy).

September 2010

Giacomo Oberto

STUDY ON MEASURES ADOPTED

IN TURIN’S COURT (“STRASBOURG PROGRAMME”)

ALONG THE LINES OF

“SATURN GUIDELINES FOR JUDICIAL TIME MANAGEMENT”

Table of Contents: 1. A Short Description of the “Strasbourg Programme” and of the “Decalogue” for Dealing with Civil Cases. – 2. Rules of the “Decalogue” in comparison with “Saturn Guidelines for Judicial Time Management:” the Issue of Active Case Management. – 3. Rules of the “Decalogue” in comparison with “Saturn Guidelines for Judicial Time Management:” How to Adjust Time Management to General and Specific Targets. – 4. Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Timing Agreements with Parties and Lawyers. – 5. Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Co-operation and Monitoring of Other Actors (Experts, Witnesses, etc.). – 6. Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Suppression of Procedural Abuses. – 7. Reasoning of Court Decisions.

1. A Short Description of the “Strasbourg Programme” and of the “Decalogue” for Dealing with Civil Cases.

The “Strasbourg Programme” is the first experiment of case management tested in Italy, aiming at obtaining a significant reduction of judicial backlogs and the acceleration of the treatment of civil cases. The initiative was born in the year 2001 from an idea of the then President of the (First Instance) Court of Turin, Mr. Mario Barbuto (currently President of the local Court of Appeals) and continued during these last ten years first by Mr. Barbuto and since the end of 2009 by the new President, Mr. Luciano Panzani.

The Programme was started first of all through a monitoring activity of the whole backlog. Then the President drafted a circular letter containing several provisions and suggestions for Judges (the so-called “Decalogue”), with the aim of reaching the goal of a relevant shortening of judicial timeframes.

Starting from the assumption that proceedings lasting for longer than three years could be considered as in violation of the “reasonable time” requirement of Article 6 of the European Convention on Humans Rights, in the light of the case-law of the European Court of Human Rights, the Presidency of the Court of Turin activated since 2001 a periodical census–to be renewed every six months–of all cases pending before said Court. Following this survey, all cases had to be classified according to the period of time they had been lasting (cases pending for longer than one year, for longer than two years, three years, and so on).

According to that first census, ordinary cases lasting for longer than three years in all civil sections of Turin central seat of the Court amounted to 2.354 at the date of April 30, 2001 (52 of them went back to a period of time previous to 1990). At the same time the President announced the diffusion of a “Decalogue” for the quick and targeted treatment of old cases. Document files of cases lasting for longer of three years were also marked with a special tag on their cover, in order to allow Judges to easily recognize them.

Just to give an idea about the success of the initiative I can quote the results of the last edition (the 17^th of this kind) of the report, drafted by the President in the framework of the “Strasbourg Programme” in December 2010. According to this last survey, out of 22.268 cases pending before the central seat of the Turin First Instance Court, 21.418 cases were pending for no longer than three years (15.325 for one year, 4.264 for two years, 1.829 for three years), while only 850 for longer than three years.

The “Decalogue,” in the form of circular letter containing several recommendations addressed to all civil judges (for example the prohibition of adjourning hearings, when not specifically justified or allowed by the law) will be described in a more detailed way further on. Its aim is that of trying to ensure a uniform practice in all civil sections of the Court, while strictly respecting autonomy and independence of each and any Judge. This document was also forwarded to the local Bar, on one hand, in order to obtain the endorsement of an institutional body strongly concerned with the course of civil justice, but on the other hand also with the aim to prevent that parties in concerned cases could interpret the new course as a sort of vexation against them, or as an unexpected and episodical initiative of only some Judges.

It is worth saying that the “Decalogue”, although conceived some years before the adoption of Saturn Guidelines for Judicial Time Management, addresses in many parts of it issues which we can find in this document of CEPEJ (I am specially referring here to its “Part V – Guidelines for Judges”). Moreover, the very “spirit” of the “Decalogue,” along with many of the proposed solutions, seems to be in full harmony with aims, purposes and approaches of the “Saturn Guidelines,” so that we could even define it as a sort of “Saturn Guidelines” ante litteram.

As I have already explained in a former report, as far as overall foreseeability of the length of proceedings is concerned, the initiative of the President of regularly spreading general statistical and other data on the length of proceedings, section by section, can very much helpful in this respect. Also the spreading of statistical evidence reporting the “productivity” rate of each and every judge fosters a sort of competition which helps avoiding backlogs of the size which had to be reported in the past.

It is true that, according to what stated by Point B. 3. of “Saturn Guidelines,” “The time management of judicial proceedings, if not determined by the behaviour of the users themselves, should be made in an impartial and objective manner, avoiding significant differences with regard to timing of similar cases.” Problem is that, at least in Italy, a significant role in the case management is played by the lawyers. Therefore it is important to involve Bars in the process of reduction of judicial delays.

Having said this, I will submit here some comparative tables, reporting in the left side of them the relevant provisions of the Turin Court “Decalogue” (or at least the sense of them, or a short summary), while putting in the right side the equivalent Articles and Paragraphs of the “Saturn Guidelines.” Chapters of this report will be organized along the lines of the different Articles of “Part V. Guidelines for Judges” of “Saturn Guidelines.” After each and any set of provisions I will also join my commentaries. Let me point out as well that the version of the “Decalogue” which is here taken into account is the very last of it, as approved by the President with his circular letter of 30^th December 2008, No. 9. Its correct title is “Prescriptions and Suggestions on Dealing with Civil Cases” and it encompasses at present twenty separate Articles.

2. Rules of the “Decalogue” in comparison with “Saturn Guidelines for Judicial Time Management:” the Issue of Active Case Management.

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 4)

Judges are invited to constantly make use of Article 175 of the Italian Code of Civil Procedure (C.P.C.), according to which “Judges dealing with civil cases should use all powers aiming at a quicker and loyal carrying out of the proceedings.”

They should as well take into account Art. 127 C.P.C., prescribing that “… Judge directing hearings can take all appropriate actions, prescribing what is needed in order to ensure that cases are dealt with in an orderly and useful way. He/she provides rules for the discussion of cases, setting the points to be debated and closes the discussions, when he/she thinks it appropriate.”

During the first hearing of a case, the Judge should try to convince lawyers not to make use of the law provisions allowing them to get adjournments and deadlines for deposing additional petitions (which slows down the regular course of the proceedings: unfortunately lawyers almost never give up to such a right, accorded to them by Article 183 C.P.C.).

Judges should try to avoid drafting minutes of hearings in too lengthy a way. They should on the contrary just sum up what lawyers are asking.

Final petitions, submitted by lawyers when the judge is about to decide the case, should be as clear and concise as possible.

Judges should as well try not to concentrate too many hearings at the same time, but should fix them at different times of the day, between 9 a.m. and 1 p.m.

Article16)

Judges should make use of the powers of Article 210 C.P.C. (“Order to parties of the case or to third parties to provide evidence”) only when it is clear what are the documents or the objects to be shown, in order to take evidence; it should also be clear that one of the parties of a third person actually have such documents or objects. Interim decisions concerning such aspects should always clearly identify what documents and/or objects should be shown before the judge (all too often lawyers simply ask the Judge for an order to show “all commercial documents” concerning a certain corporation, whereas they should list them one by one: e.g. specifying kind of documents–like invoices, and so on–and also mention the concerned period of time.

20) Conciliation attempt

Judges should often make use of the discretionary power to try to convince parties to friendly settle the case. In this framework he/she will also take note in the minutes of the proposals of both parties, even though the conciliation attempt fails.

Other relevant provisions in this field are those of Articles 10 and 11 (see further, Paragraph No. 6).

A. Active case management

1. The judge should have sufficient powers to actively manage the proceedings.

That “The judge should have sufficient powers to actively manage the proceedings” is self-evident. However, directives and instructions issued by the Head of the Court could help the judges to “find the strength,” taking into account the current state of aggressiveness of Italian lawyers, to play a pro-active role. Of course this should always be done within the frames of procedural rules, which in my country do not, unfortunately, leave wide discretionary powers to the Judge.

In this framework I would particularly point out that the Judge has little or inexistent power to fix a “quick start” of the case, taking into account rules set forth by the Italian Code of Civil Procedure. Actually, according to Article 163-bis, between the day in which summoning act has been served to the defendant and the day of the first hearing before the Judge, at least ninety days must elapse (in case the summon act has been served in a foreign country that period of time is of hundred and fifty days). If one thinks that, at the first hearing, parties have the right to get another adjournment of at least eighty days for “fine-tuning” their petitions and pretensions (and it is enough that just one of them asks for it, without any power for the judge to deny the adjournment) it becomes clear that, after the service of a summoning on a certain day (a day which, among other things, concretely and procedurally marks the official start and beginning of the case), in the “quickest” imaginable solution, the Judge can practically start dealing with the case not sooner than six months after this event. This means that the Judge can start playing a pro-active role only after that (at least!) a good half of the first of the two (or three, according to our Strasbourg Programme) years of the “reasonable timeframe” has already elapsed.

3. Rules of the “Decalogue” in comparison with “Saturn Guidelines for Judicial Time Management:” How to Adjust Time Management to General and Specific Targets.

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 1)

All civil cases pending for longer than two and half years before the Court should be marked with a particular tag of different colour, according to the fact that they have been pending for:

a) longer than six years;

b) between six and two and a half years;

c) two and an half years.

Judges should give priority to all above mentioned cases.

Article 2)

Judges should ensure to adjudicate cases mentioned in Article 1) according to the following programme:

- for cases of the a) group: no later than … (six months);

- for cases of the b) and c) group: no later than … (one year).

All other cases should be finally adjudicated no later than three years from the day they have started.

A. Active case management

(…)

As far as this point is concerned, let me stress again that rules issued by the Head of the Court should, as it happened in the Turin case, set priorities among different cases, like e.g.: reducing maximum length to no more than three years; giving priority to cases exceeding that deadline or dangerously approaching to it, etc. I understand that rules of the “Saturn Guidelines” are referred to deadlines imposed by the Judge to parties (rather than by President to Judges), but the Italian Code of Civil Procedure leaves little judicial discretion in this field. I would like to underline again that, for example, adjournments on the basis of Article 183 of the Italian Code of Civil Procedure cannot be avoided, if at least one of the parties requires them, even in cases where it is absolutely clear that they are useless and that lawyers just need them in order to “add” such adjournments (as well as the petitions they wrote for each and any of them) on the their final check for the liquidation of their fees and honoraries. However, rules set by the President of the Court about time limits in a framework such as that of the “Strasbourg Programme” can also help the Judge to try to convince parties to avoid unnecessary requests and to try to “adjust their pace,” in order to meet the requirements of a quicker procedure.

4. Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Timing Agreements with Parties and Lawyers.

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 6)

Adjournments should never exceed 40/50 days. Judges should ensure that cases lasting for longer than two and a half years get a priority treatment.

B. Timing agreement with the parties and lawyers

1. In the time management of the process, due regard should be given to the interests of the users. They have the right to be involved in the planning of the process at an early stage.

2. Where possible, the judge should attempt to reach agreement with all participants in the procedure regarding the procedural calendar. For this purpose, he should also be assisted by appropriate court personnel (clerks) and information technology.

The issue of timing agreement with the parties and lawyers is now dealt with at a general level by a special provision of our Code of Civil Procedure. Actually recent reforms have brought about the need, for each judge, at the start of each proceedings, to draw a calendar of the process, in which the judge, taking into account lawyers’ opinions, “foresees” and “predicts” when each and any of the steps of the process will take place. Moreover, according to the guidelines issued by the President, each judge has to try to help parties to friendly settle the case. During such hearings judges prospect to the parties the advantages brought about by a settlement, also envisaging what could be the path to be followed by the case (of course no hint should be given on the merit of the case, but the judge can very well say, for instance, that if the case goes on, he/she will need to appoint an expert to answer this or that question, etc.).

Some months ago, when we first tried to concretely implement provisions concerning the calendar of the procedure, we discovered that it was not so easy as it could have appeared at a first glance. It is almost impossible to foresee one or two years in advance what the course of the case will be and to fix a certain day for each and possible procedural event. Therefore I suggested a solution which was concretely adopted by many colleagues, consisting in fixing not exact days, but exact deadlines, such as e.g.: a) deadline for the accomplishment of the hearings for questioning witnesses: no later than 30 June 2011; b) deadline for the accomplishment of an expertise (in case this would show as relevant): no later than 31 December 2011; c) deadline for the last hearing where parties summon their final requests and petitions before the Judge adjudicates the case: no later than 30 June 2012.

As far as above mentioned Point 2. of Saturn Guidelines is concerned, of course I fully agree with the principle that the Judge should also be assisted by appropriate Court personnel (clerks) and information technology. Unfortunately in my Court (as well as in almost any Court of Italy) only the second part of that sentence is true. Staff is absolutely lacking and too often IT is used as a way to have Judges perform (in addition to their regular duties) the tasks of clerks and secretaries.

Let me add on this point that in these very last months, thanks to the initiative of our Court’s President Luciano Panzani an agreement with the local Law Faculty is going to be signed in the next weeks. According to this agreement a certain number of selected and qualified law students and young law graduated will be admitted as trainees in our Court for periods of some months. We will take advantage of this training initiative, on one side, to have a number of young people better trained and prepared to face the very hard competitive examination to become Judge (of course, provided they will; otherwise they will address themselves to the legal profession, however with a much higher degree of awareness about the functioning of the “judicial machinery” and of the real needs of a quicker and more efficient justice). On the other side these people will provide a “helping hand” to the day-to-day work of Judges and clerical staff, helping Judges to draw minutes of hearings, to perform legal research activity, to put in order papers, petitions, acts and documents (very often hundreds of pages!) within each and any file, to single out particular questions and difficulties arising from cases, to fine-tuning the ongoing process of using IT for case management and the electronic management of procedures, to check that orders given by the judge to clerks are properly enforced, that lawyers and/or parties and/or experts have actually been informed about decisions to summon them for a certain hearing, etc.

5. Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Co-operation and Monitoring of Other Actors (Experts, Witnesses, etc.).

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 14)

Judges should periodically and systematically check all cases in which they are waiting for an expert to draw and submit an expertise, in order to ensure that deadlines for the submissions of such expertises are met.

Deadlines for the submission of expertises should not exceed 40/50 days. In case of not compliance Judges should replace the expert with another one. Prorogations of such deadlines should be awarded only in exceptional cases and upon motivated requests (e.g. because parties, under the assistance of the expert, are trying to reach a friendly settlement of the dispute).

Judges should always empower experts to try to find an amicable solution of the case.

Among the vast number of experts available, judges should prefer those who have proved to be able to help parties to find a friendly a friendly settlement.

Before appointing an expert, Judges should invite parties to submit suggestions on the questions to be asked.

C. Co-operation and monitoring of other actors (experts, witnesses etc.)

1. All participants in the process have the duty to co-operate with the court in the observance of set targets and time limits.

2. In the process, the judge has right to monitor the observance of time limits by all participants, in particular those invited or engaged by the court, such as witnesses or experts.

3. Adequate and efficient means have to be available against those players that do not fully co-operate in the observance of the set targets and time limits. They may include reduction of fees, striking from the list of experts, fines and other sanctions.

Actually a little improvement has been brought about by a recent reform, according to which the expert appointed by the judge, before submitting his/her report, has to present it to the parties, who have a deadline to send him/her their remarks. Finally the expert has to submit to the judge his/her expertise, together with the parties’ remarks and his/her final comments on the parties’ remarks. According to this procedure, lawyers will be no longer allowed to ask for further adjournments for commenting the expertise. No further hearing will be necessary, unless the Judge esteems that one or more points of the report need to be more thoroughly explained. So, once the expertise and the remarks have been included in the official file, the Judge can be ready to deliver his/her final decision.

6. Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Suppression of Procedural Abuses.

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 4)

See above, Para. No. 2.

Articles 5) and 8)

No adjournments will be granted without a specific and acceptable reason. Reasons for the lawyers to ask for an adjournment (e.g.: parties are seriously dealing about a friendly settlement of the case) should be explicitly mentioned in the minutes of the hearing. Such minutes should as well state whether both parties agree on such request. In the hearing following the request lawyers should always clearly refer about the follow-up of the situation which originated the request for an adjournment (e.g. about the results of their attempts to find a friendly settlement of the case).

Article 10)

Judges should ensure that both parties comply with requirements of Article 244 of the Italian Code of Civil Procedure, concerning the way they should submit a request to the Judge for questioning witnesses.

In particular, Judges should avoid to order the questioning of witnesses if:

a) parties did not submit specific questions to be asked;

b) such questions do not concern specific facts, but involve judgements and subjective appreciations (to be possibly deferred to a Court’s expert);

c) the number of witnesses indicated by parties is too high and should be reduced by the judge;

d) questions to be asked to witnesses are irrelevant or can be answered through existing documents.

In case a party wants to hear witnesses about certain documents (e.g. invoices, estimates, etc.) the Judge should first ask the counterpart whether he/she admits that document has been drafted by that prospective witness. Only contested circumstances have to be proved by witnesses: this means that the Judge, whenever possible, will first ask what facts are denied and contested and will order to hear witnesses only on those facts which are contested.

Article 11)

As far as questioning of parties is concerned, judges should always try to convince lawyers not to ask for it, as this kind of procedural activity is always useless. In case lawyers insist on it, judges should avoid to record on minutes all remarks made by parties pro se, as such comments are already enshrined in lawyers’ acts and petitions. Replies should be recorded in the shortest possible way (e.g.: “Yes, it is true;” “No, it is not true.”)

D. Suppression of procedural abuses

1. All attempts to willingly and knowingly delay the proceedings should be discouraged.

2. There should be procedural sanctions for causing delay and vexatious behaviour. These sanctions can be applied either to the parties or their representatives.

3. If a member of a legal profession grossly abuses procedural rights or significantly delays the proceedings, it should be reported to the respective professional organisation for further consequences.

As far as formal questioning of parties is concerned, the Italian law does not extend the statute of witness to parties of a case. This means that parties have the right not to tell the truth. Questioning of parties could theoretically be useful in the only case they admit something against their interest, which actually almost never occurs. Such old rules had a sense in times when citizens were generally illiterate and uneducated and, being before a Judge, could easily be intimidated and admit the truth. Nowadays (especially taking into account the very little degree of respect for Judges, brought about by years and years of attacks and denigration on the Judiciary) no one feels embarrassed openly lying before a Judge, especially when their personal interests are stake.

This explains why I call this kind of remedy “The most useless procedural remedy in the world.” Unfortunately, the interest of lawyers is to stuff procedural dossiers with all possible kind of acts, documents, petitions and activities, because (as I have already explained) for each and any of such things they get fees.

This explains why a serious reform of the Italian civil procedure would inevitably require a deep change in the way legal fees are calculated. I have been many time advocating a system (as the German one, for instance), in which lawyers’ fees are not linked to the number of acts they write, nor to the number of hearings they attend. This would be a very good step forward, but once again this cannot be done by the judges. Critics of this position of mine (lawyers of course) misunderstood this proposal as an attempt to curtail their revenues. This is by no way the case. I am personally persuaded that lawyers’ fees should be much higher than they are nowadays. The issue is not “how much” lawyers get, but “for what purposes” and “in reward for what” they get what they get. So, if they work in a competent and effective way, with the final result to have brought before a Court only the cases that deserve to be brought before a Court, they should earn much more than they actually do.

As I already explained many times, also in this field much greater powers should be advocated for Judges and this issue has to be primarily dealt with by the Legislative Powers. I can personally witness that the vast majority of cases brought before me could be easily resolved without even going to the Court, on the basis of a little bit more good will from the parties and also of a little bit more knowledge of the law by concerned attorneys. The issue deals therefore with the delicate topic of legal training for all the actors of judicial proceedings and first of all for lawyers. A well trained lawyer can understand how risky or useless can be going to the Court for frivolous cases. Once the process has started it is very hard for the Judge to convince parties to find an amicable solution, because parties have already engaged expenses and lawyers know that the longer the proceeding is going to last, the more they will be earning.

Judges, on their part, should be more attentive to the need to find ways to “punish” incorrect behaviours by parties and lawyers. Currently our procedural rules give the judges some powers in this sense. First of all Article 117 of the Italian Code of Civil Procedure allow the Judge to take into account parties’ behaviour in order to adjudicate the case. Let me bring an example on this. It happens some times that a party (or his/her lawyer) does not co-operate with the expert appointed by the judge, not providing information the expert requires, or having the expert fix dates for inspecting a building, or a machine, etc. and then not attending on that occasion. Under such circumstances the Judge can take into account such facts and decide the case against the party who did not co-operate.

A new version of Article 96 of the same Code provides for now that, even without a particular request on this point, the Judge can ex officio sentence the party losing his/her case to pay a sum of money (to be fixed by the Judge) to the other party, when the case or the defences of the losing party are frivolous. Older judges are much more linked to “lenient” practices of the past, but I have very much confidence in new generations of judges, who are much more ready to apply sanctions against disloyal parties and attorneys. Once again, specific guidelines on this topic by the Head of the Court could be of use in persuading “older” judges to take into account, when the case has to be adjudicated, of the behaviour of parties and lawyers.

7. Reasoning of Court Decisions.

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 3).

Judicial decisions have to be reasoned in a concise form, as provided for by Article 132, Second Paragraph, No. 4, of the Italian Code of Civil Procedure and by Article 118, Second Paragraph, of the Provisions for Implementation of the Italian Code of Civil Procedure. Only questions relevant for the decision of the case should be taken into account.

Judges should keep into account that the essence of reasoning is explaining the decision and not displaying erudition.

Judges should always comply with deadlines provided for by the law for deposit their decisions.

- - -

Italian legal tradition adopts a system for the reasoning of judgements which appears to be more suitable to long and detailed “treaties.” The advantage of this system is that lawyers may find in the reasoning answers to the issues and legal questions they raised during the case, as well as reasons and bases for filing an appeal. The disadvantage is that Judges, “frightened” by the need to thoroughly and at length explain reasons for a case, may be tempted to differ the moment of the judgement, thus hoping to persuade parties to abandon their disputes and to find a friendly settlement of the case, what unfortunately may not always happen.

So, one of the “bottlenecks” of Italian civil justice is the timeframe between the moment in which a case has been prepared by acquiring evidence and the moment in which it comes to a decision. This shows that one of the problems possibly causing judicial delays is brought about by the activity of reasoning in written the case.

Luckily a recent reform, affecting the two above-mentioned provisions of our Code of Civil Procedure, obliges nowadays judges to be more concise. But the weight of a tradition dating back centuries is still very strong. Therefore a recommendation like the one enshrined in above-mentioned Article 3) of the “Decalogue” appears to be most welcome.

Training on the drafting of judicial decisions could also be of some effect. An increased use of reference to judicial precedents, available in electronic format could as well be of use, in reproducing passages of former judgements, which the judge could deem applicable to the case he/she is dealing with. Lawyers could be invited to provide an electronic version of their acts, so that relevant passages of their remarks could be used for the reasoning of the judge, when he/she thinks this could be useful. The same is true for protocol of hearings with evidence (witnesses’ depositions, experts’ remarks, etc.).

In this framework a mention should be made also to the effort of reaching a sort of “standardisation” of the most common kinds of interim and provisional decisions. On this topic a working group is active in my Court and will report next month of May in Turin. Let me just add that an uniformisation and a standardisation of (at least) less relevant decisions fits with the European example. Actually a whole array of legal decisions in matters such as taking of evidence in foreign countries, European order for payment procedure, recognition and enforcement of judgments, etc., are taken (and have to be taken!) making use of forms available on the Internet, which are joined as an annex to different EU regulations.

A mention of this kind could as well be inserted in “Saturn Guidelines,” which apparently do not contain provisions of this kind.

Giacomo Oberto, Judge of the First Instance Court of Turin (Italy).

February 2011

Nedre Romerike tingrett, Norway

Pilot test of a protocol for the implementation of CEPEJ SATURN tools.

Professor Jon T. Johnsen, Norway, expert member of SATURN

Wednesday March 17, 2010 14-16

Participants:

Sorenskriver (Chief Judge) Bernt Bahr

Administrasjonssjef (Chief administrator) Heidi Bruvoll

Professor Jon T. Johnsen, CEPEJ Expert.

1 INTRODUCTION

At the SATURN meeting on September 9 and 11, 2009, Jon T. Johnsen was commissioned to identify relevant time management tools in various CEPEJ's documents which could be the subject to "in court tests", and to prepare a pilot protocol with a given court in a Nordic country. Johnsen has drafted a proposal on the methodology for the selection of such tools and for the development of implementation projects with the pilot courts, see “Implementation test of SATURN tools in selected pilot courts.” Johnsen also have prepared an abridged version especially for the Pilot courts.

The present report builds on this document and describes the outcome of a pilot test of the proposed methodology carried out in Norway by Johnsen and Nedre Romerike tingrett, one of the two Norwegian pilot courts. The report is written by Johnsen and builds both on his own recording of the meeting and the court’s summary after the meeting of its considerations of each guideline in the protocol. Time pressure made it impossible to have an extensive exchange on the final text of the report. Although the intention is to give an accurate picture of the court’s reactions and considerations, it should be kept in mind that the report expresses the experts observations and reasoning and not necessary the opinion of the court. Some inaccuracies also might occur. Since the purpose of the pilot test is to receive feedback on the proposed methodology for further considerations by CEPEJ, Johnsen thought the procedure acceptable.

When the draft for the methodology proposal[1] was ready, Johnsen sent it to the National court administration in Norway and asked for assistance in testing the methodology with one of the pilot courts in Norway. He asked for Nedre Romerike tingrett mainly because of its location close to Oslo were Johnsen lives which would make travel time and costs insignificant. The National court administration and the court helpfully arranged for the test as Johnsen had asked for.

Nedre Romerike tingrett is a first instance court located in the South-Eastern part of Norway in a mixed urban-rural area. Its jurisdiction covers 8 municipalities with 160 000 people. The staff counts 29 people, 12 judges and 17 administrative employees. The court has a chief judge and a chief administrator. Yearly caseload is somewhat above 2 000 – depending on the counting method. The meeting took place on March 17, 2010 at the localities of the court.

Johnsen first gave a brief overview of why the European Commission on the Efficiency of Justice became established, its organizational structure and main challenges. He then told about the tasks of SATURN and the role of the pilot courts. He shortly explained the ideas behind the “in court tests” and his agenda for and purpose with the meeting. The court had received his draft document on “Implementation test of SATURN tools in selected pilot courts” before the meeting.

The court, which is new to its role as a pilot court, told about its experiences with CEPEJ tasks so far and said that it found the work with the EUGEMONT statistics a bit toilsome.

The exchange was appreciated both by the court and the CEPEJ expert. The discussion then turned to the fifteen time management tools proposed by Johnsen in his draft proposal section 6 pp 12-14 for selection by the court.

2 CONSIDERATIONS OF THE FIFTEEN GUIDELINES

General principles and guidelines

C. Planning and collection of data

1. The length of judicial proceedings should be planned, both at the general level (planning of average/mean duration of particular types of cases, or average/mean duration of process before certain types of courts), and at the level of concrete proceedings.[2]

The pilot court schedules planning meetings in all civil cases shortly after the case has arrived at the court. The lawyers of the parties and the handling judge – but not the parties – participate and the meetings are supposed to plan all necessary steps until the disposal of the case. The meeting clarifies the claims of the parties, their main supportive arguments and the evidence they offer. During the meeting, the progress of the case is planned, deadlines put up and the dates and number of days needed for the main hearing set. In Norway it is exceptional to schedule more hearings than the major hearing. All evidence must be ready before a set date, and the parties therefore must plan their collection and presentation of evidence accordingly. The hearing dates are set according to the general standards for time use by the courts which is 6 months for ordinary civil trials and 3 months for small claims.[3] Scheduling at a later date demands special justification and is expected to be done rarely.

Planning in almost all criminal cases is carried out by the prosecution and is outside the court’s responsibility. The prosecution summons the accused and the witnesses and produces the technical evidence. The court oversees the preparations of the prosecution and might order alterations. Also criminal cases are disposed of during one major hearing and the judgement should be written immediately afterwards.

National standards for the court’s time use in criminal cases also exist, and the court schedules the main hearings accordingly. In a few exceptional cases the main hearing might go on for weeks and even months. Then the judge will organize a planning meeting with the prosecution and the defender participating.

Planning meetings are not held in cases on the division of estates, bankruptcy and enforcement, see further discussion under guideline III B 1 and IV B 1 below.

Conclusion: Time planning instruments already existed for ordinary civil and criminal cases. National deadlines exist and deemed sufficient at the pilot court, see under guideline III B 1 below. Together they form an efficient planning system. Although its structure might differ somewhat from the ideas behind the CEPEJ guideline, they produce outcomes as intended with the guideline.

2. The users are entitled to be consulted in the time management of the judicial process and in setting the dates or estimating the timing of all future procedural steps.

As mentioned above, the court calls planning meetings in civil cases and the prosecution performs similar planning functions in criminal cases. In addition to the lawyers, also the expert witnesses participate in the meetings. It appears, however, that the planning of the court does not include consultations the parties themselves unless they are unrepresented. The lawyers are expected to consult with the parties and forward the interests of their clients according to the lawyer’s code of good practice.

We discussed why the SATURN guidelines did not entrust the lawyers to represent the parties in this matter, and Johnsen suggested that the interest of the lawyers and their clients might conflict on time use. Lawyers have an interest in filling up their capacity with profitable commissions from clients for a significant time slot ahead and avoid running idle and losing income. Most clients prefer to have their case finished as soon as possible, and if they sometimes do not, their counterparts do.

The court argued, however, that according to Norwegian understanding, swift progress of cases is for the public good. Even when both the parties and their lawyers agree that it would be beneficial for them to delay the case, the public interest mean that the conflict should be brought to an end and the parties motivated to go on with their lives. Scheduling all cases within short limits leaves little space for negotiation about the time table between the lawyers and the parties. The point with time planning in Norway is not to negotiate the length of the trial, which is given by the time standards set by the national authorities, but only to plan how the proceedings must be conducted to conform to the standards set. Such planning tasks are mainly technical and the parties might have little to contribute.

Conclusion: Due to the limited space for delaying cases both for the parties and their lawyers, the intentions of the guideline is met without bringing in the parties.

III. Guidelines for authorities responsible for administration of justice

B. Intervention

1. If departures from standards and targets for judicial timeframes are being observed or foreseen, prompt actions should be taken in order to remedy the causes of such departures.

The national, electronic case handling system (LOVISA) produces a set of landmarks in civil cases as soon as the case is registered. The landmarks are:

- Time limit for sending off the plaintiff’s writ to the defendant

- Time limit for receiving the defendant’s pleading

- Deadline for scheduling the planning meeting

- Time limit for scheduling the main hearing

- Deadline for writing the judgment

The court then demonstrated how it used the landmarks during the processing of civil cases and how the progress of each case according to the landmarks was monitored through monthly reports generated from the electronic case handling system. These reports are checked by the chief judge and the chief administrator and also sent to each judge for keeping them updated on the progress of their cases. The judges found them useful, although some mildly remarked that they felt the reports a bit stressing and that the quality of the decision mattered more than the speed. The chief judge has the power to intervene if a significant deviance from the landmarks should occur and had not experienced any need for more extensive powers for intervention.

In criminal cases, the national electronic case handling system only produces statistics on average case handling time, which the court uses for quarterly monitoring

We also discussed landmarks in cases on the division of estates, bankruptcy and enforcement. The national electronic case handling system contains some landmarks on bankruptcy, but far less detailed than for ordinary civil cases. Johnsen therefore asked whether it might be an idea for the court to adapt the time planning regime used in the civil cases to the division of estates and enforcement cases.

However, the national electronic system allows each court to put in its own deadlines in addition to the national ones. The pilot court makes use of this opportunity in all three types of cases. In cases on enforcement, for example, the court has added deadlines for:

- the enforcement officer’s notification to the party (debtor)

- the debtor’s one month’s respite for fulfilling the claim

- making the decision on involuntary sale of confiscated property

- the four month limit for the enforcement officer to sell it

- the two week limit for the parties to protest on the sale

The electronic system issues warnings when the deadlines are exceeded.

We also discussed whether the national landmark system needed modifications.

Conclusions: The national landmarks and the additional landmarks set by the court satisfy the guideline for all civil cases. The average case handling time used for monitoring criminal cases might seem insufficient and landmarks similar to the ones used in civil cases ought to be introduced. More landmarks also might be introduced to the national landmark system but such a remedy is outside the autonomy of the court.

2. Particular attention should be given to the cases where integral duration is such that it may give rise to the finding of the violation of the human right to a trial within reasonable time.[4]

The court thought that its short average time use both in civil and criminal cases probably would protect it from “reasonable time” infringements. It also asked for an updated interpretation of the standards of the European Court of Human Rights.

Johnsen recommended the Calvez study available at the CEPEJ website. He also confirmed that the Court’s evaluation depended on a complex analysis which is discretionary in character. The study thoroughly indentifies the criteria used, and also puts up some fixed time limits which, if exceeded, will make the case vulnerable of violating the “reasonable time” criterion.

The discussion also helped focusing on the fact that statistics that mainly focus on average time use do not by necessity reveal exceptional long duration in a few atypical cases. Cases must be checked individually.

We also discussed the implications of the fact that the court did not monitor the time use at the police and prosecution in criminal cases. Pointing to the practice of the European Court of Human Rights that said that the “reasonable time” measurement starts when the investigation focuses on an identified suspect, we found out that the best practice of the court would be to ask the prosecution to provide information about the duration until the arrival at the court. The pilot court might then speed up its handling of criminal cases that had progressed slowly at the pre trial stage. The strategy would prevent unintended violations due to incomplete measurement of and information about the total time use.

Conclusion. The individual monitoring of the civil cases already described is deemed sufficient for detecting durations that might violate the “reasonable time” standard in ECHR article 6. On the other hand only monitoring the average time use in criminal cases seems somewhat insufficient although the strict national deadlines on the final disposal of criminal cases significantly help. This SATURN guideline is another argument for consulting the National court administration about introducing more national landmarks into the electronic case handling system. The pilot court also considers requesting more information about the time use during police investigation and prosecutorial decision-making when the prosecution forwards the case to the court.

Johnsen clarified the “waiting time” concept and told that the European Court of Human Rights puts special emphasis on the amount of “waiting time” or “standstill” time – periods when nothing happens to a case – when considering alleged violations of the “reasonable time” criterion. We discussed the idea of standstill time and the assumption that it probably is less complicated to reduce standstill time than working time.

At present the court had no procedure that explicitly focused on standstill time. It considered the idea interesting and would look into its tools to check if they might be used for indentifying waiting time. Due to the short overall time use, however, it seems reasonable to assume that the periods of waiting time cannot be excessively long. The electronic case handling system provides backlog lists that tell how fast main hearings are scheduled and how far the unfinished cases have progressed. The case administrators use them to check case progress. They also might be used for estimating waiting time.

Conclusion. The court will consider a more thorough mapping of waiting time.

IV. Guidelines for court managers

A. Collection of information

As described above, the pilot court – as other Norwegian courts – uses the nationwide electronic system for tracking case progress. The information is available both to court administrators and judges.

In ordinary civil cases, the electronic case handling system registers all the first eleven points of progress (or stages) described in indicator four of the Time management checklist. It probably also contains the other points on the list, but the pilot court, which is a court of first instance, does not concern itself with the later stages of the proceedings. As mentioned the system also provides electronic warnings when deadlines are exceeded.

Conclusion: The existing landmarks conform to the guideline in civil cases, but are in need of improvement in criminal cases, see above.

Both the court personnel and the National court administration have access to the information as described above. The court publishes a yearly report in print that also is downloadable from the Internet:[8]

In addition, the court’s website contains an overview of the average case handling time and the national standards set by the Norwegian parliament which is translated below:[9]

Case progress[10]

The case handling of the court progresses with satisfactorily speed, No backlogs of any significance exist. It is a main goal for the court to keep the case handling time at the court as low as possible. The court’s case handling time is measured from the time of arrival in the court until the case has been decided by the court. Average time use for the major categories of cases is:

Type of case	Number of cases (2009) arrived/handled	Case handling time	National Target figures
Civil	351/343	137 days	180 days
Mixed court	300/293	68 days	90 days
Single judge	1412/1413	12 days	30 days

We discussed whether a yearly update on average case handling times was sufficient. The court suggested a quarterly updating of its website figures.

Conclusion: The substantive information provided to the public is in accordance with the guideline. The court will consider more frequent updating of the average case handling time.

B. Continuing analysis

1. All information collected should be continually analysed and used for the purposes of monitoring and improvement of performance.

Reports on ordinary civil cases and criminal cases are discussed monthly in leader team meetings at the court. Reports on estate and enforcement cases are discussed quarterly or more frequently when special circumstances substantiate. An example is the present economic crises that might generate an increase in bankruptcy cases. If significant deviances from the time use targets are discovered, action is taken – for example by reallocating cases among the judges.

Since swift case handling is a prime goal for the pilot court, efforts is made to analyse statistics and other information to pursue this goal. As mentioned in the example, analysis is not limited to statistical information. Another example: A nationwide police strike on overtime work in 2009 significantly slowed down the investigation of criminal cases and resulted in a huge backlog within the police. To be prepared if a huge bulge in the flow of criminal cases appears, the court tries to update itself on how the dismantling of the backlog progresses in the local police and prosecution.

Conclusion. The court’s practice is in accordance with the guideline.

3. The reports on the results of analysis should be produced at regular intervals, at least once a year, with appropriate recommendations.

Conclusion: The court produces monthly statistics and yearly reports, see above.

C. Established targets

1. In addition to the standards and targets set at the higher level (national, regional), there should be specific targets at the level of individual courts. The court managers should have sufficient authorities and autonomy to actively set or participate in setting of these targets.[11]

The court explicitly adheres to the national standards for case handling time in its annual plan and also to some extent further specifies them. When national standards are lacking, the court supplements with its own goals for time use. According to the target in the annual plan of the court, 95 percent of all ordinary civil cases shall be disposed of within 180 days and 75 percent of the all small claims within 90 days. The pilot court also has an overall ambition of being among the best first instance courts in Norway in swift disposal of cases. National statistics is used to compare with other courts.

Conclusion. The court use targets as suggested in the guideline.

2. The targets should clearly define the objectives and be achievable. They should be published and subject to periodical re-evaluation.

National goals for time use are confirmed or revised regularly by national authorities (Parliament, Ministry of Justice, National Court administration). The National court administration generates reports on all first instance courts every six months. The court also reports once a year to the National court administration on the fulfilment of the targets set in its annual plan and comments and explains the figures in the text. The annual report also comments on other issues.

Conclusion. The court practices the guideline.

3. The targets may be used in the evaluation of the court performance. If they are not achieved, the concrete steps and actions have to be taken to remedy the situation.

As described above, the court regularly reports both on fulfilment of the national targets and on the targets set by itself in its annual plan. Significant deviance might lead to actions.

Conclusion. The court practices the guideline.

D. Crisis management

1. In the situations where there is a significant departure from the targets set at the court level, there should be specific means to rapidly and adequately address the cause of the problem.

A crisis will be handled by reallocating resources internally and, if insufficient, by applying for supplementary judges for a period from a national pool, or for a permanent increase in staffing. The court is presently well staffed and also helps other courts by lending them judges. The present leadership had not experienced a crisis of a significance that could not be handled by internal resources.

Conclusion. The court has a crisis preparedness that seems reasonable compared to the foreseeable challenges.

V. Guidelines for judges

A. Timing agreement with the parties and lawyers

As described under guideline 1C2, the national deadlines are obligatory in Norway. Neither the court, nor the lawyers or the parties are supposed to deviate from them. Sometimes cases are handled speedier than the parties would prefer, although they usually favour swift handling.

Conclusion: Time use in Norwegian courts is governed by official deadlines with limited space for deviation according to agreements among the actors.

The court’s case administrators work actively on scheduling cases within the set deadlines and targets. A lawyer who instigates proceedings or represents a defendant is supposed to be able to conduct the case within the official time limits. If the lawyer is unavailable, the administrators pressure for a transfer of the case to another lawyer at the firm. The court’s practice on adjournments is restrictive and mainly limited to illness documented from a doctor’s certificate.

Conclusion: The court practices the guideline.

3 SOME CONCLUDING COMMENTS

The discussion of the proposed protocol had to be done fast and more time should be spent if the methodology is accepted by CEPEJ and applied in a larger scale. Neither time permitted any follow up from the court on the conclusions of the meeting since the present report had to be written immediately after the meeting.

Still I think the present report provides a better and more accurate picture of the usefulness of the selected time management tools for Norwegian courts than SATURN had before. As might be expected, the implementation test does not reveal any gross deviance from the selected guidelines, but there are some results worth noting:

- For most of the guidelines, the court already had a practice established that conforms with the guidelines selected – obviously not due to the effect of the guidelines, but to national practices adopted independently of the guidelines.

- For some of the guidelines the national practice is different, but still estimated to produce results equal to the CEPEJ tools.

- For a few guidelines, the national practice seems insufficient, and the court expressed an interest in better adapting to the guidelines and also proposed some possible lines of action.

The report only describes the first stage in the implementation process proposed in Johnsen’s document “Implementation test of SATURN tools in selected pilot courts.” According to the methodology proposed in section 7 of the document, the implementation process of the CEPEJ tools selected by the pilot court also is supposed to be recorded with descriptions of the outcome, duration of the implementation process and external cooperation. The major factors that influence implementation should be identified and analysed and recommendations on the applicability of the findings on other CEPEJ tools and other courts both in the same jurisdiction and in other jurisdictions should be made.

The court did not use the CEPEJ guidelines in its daily work. The national time management ideology dominated its way of thought. It should be said that the court is new as a pilot court and have not participated in the previous CEPEJ meetings of the pilot courts.

The efficiency of our exchange was promoted by the fact that the CEPEJ expert is a Norwegian with particular knowledge of the national judicial system. Norwegian was used in the communication and the relevant English concepts used by CEPEJ could easily be translated and explained.

The court reported that the dialogue was very helpful in meeting the expectation from CEPEJ and understanding the tasks of a pilot court. The separate discussion of each guideline with some deepening of the ideas behind was extremely useful. The freedom to select and focus on guidelines that the court itself found it worthwhile to implement, is clearly more motivating than reporting for statistics that might seem of limited use to the court.

The exchange helped Johnsen as a CEPEJ expert to understand more about how the courts in Norway think and how the guidelines might be communicated to them. As a “pilot test” of the methodology, the depth of the discussion was very satisfactorily. On behalf of CEPEJ Johnsen would like to honour the pilot court for its willingness to participate in the process and for the openness it showed to the CEPEJ ideas during the discussions.

Lausanne/Dornach (Switzerland)

14 September 2010 / BrJ and 8 April 2011

Report on the implementation of the CEPEJ guidelines for judicial time management at the Judicial District Dorneck-Thierstein (first instance civil and criminal court) in CH-4143 Dornach SO

1 Basic principles

1.1 CEPEJ guidelines for judicial time management (SATURN Center guidelines for judicial time management) of 10-11 December 2008 – CEPEJ document(2008)8Rev;

1.2 CEPEJ document «Implementation test of SATURN tools in selected pilot courts» of 12 and 14 April 2010 – CEPEJ document(2010)1;

1.3 Justice report for the year 2009 on the Court Administration of the canton of Solothurn – Document SGB 054/2010;

1.4 Annual contract for the year 2011 for the Judicial District Dorneck-Thierstein, from mid-May 2011 (recte 2010).

2 General description of the court

2.1 Name: Judicial District Dorneck-Thierstein

2.2 Location: Dornach (Canton of Solothurn)

2.3 Sphere of competence: Civil and criminal proceedings

2.4 Judges:
- Professional judge: Number: 1 district court president, full-time equivalent in %: 100; 1 district court deputy president, full-time equivalent in %: 10
- other judges: Type: district judges (lay judges; incl. district judge substitute), Number: 8 full-time equivalent in %: none, interventions according to the need of the cases, (ca. 5-10 interventions per years, plus study of the files). Type: lay judges for labour litigations: Number: 12, full-time equivalent: none, intervention according to the need of the cases (ca. 2-5 interventions per year, plus study of the files)

2.5 Clerks:
- Legal staff/court clerks: Number: 3, full-time equivalent in %:250; plus 1 law trainee/volunteer
- other staff: Number (chancellery of the court): 3, full-time equivalent in %: 210; plus 1 apprentice.

2.6 Use of IT:
- Court administration application : JURIS by the company Abraxas Juris AG;
- Word processing and Internet access for all judges and staff available;
- IT-Services are provided by the canton of Solothurn.

3 Description of the method for determining the level of implementation of the CEPEJ guidelines for judicial time management

3.1 Selection of the court

A meeting of the cantonal coordinators for the collection of statistical data in the legal field was held on 22 June 2010. On this occasion, the project to coaching a court in the judicial time management was presented.

In July, the Court Administration of the canton of Solothurn reported the interest of the Judicial District Dorneck – Thierstein to participate in this coaching project.

3.2 Selection of rules to be implemented - Methodology

3.3
On 30 August 2010, the first meeting with the Judicial District Dorneck-Thierstein took place in Dornach. The following people took part in it:
- from the Court: the directorial District Court President, Markus Christ; the chief clerk, Remo Morand (clerk of district court) and the deputy clerk of the district court Erwin Frei;
- for the CEPEJ, the deputy Secretary General of the Swiss Federal Supreme Court Jacques Bühler.

Mr Bühler first explained the field of activity of the CEPEJ in the following fields: court statistics, quality of justice, judicial time management, mediation and enforcement.

The CEPEJ guidelines for judicial time management were treated afterwards. Mr. Bühler commented a selection of 16 points that can be implemented by a court independently. The goal was to determine the current status of implementation and also a possible need for action.

4 Current state of implementation of the CEPEJ guidelines for judicial time management

From the various points of the above-mentioned CEPEJ guidelines, only the points which can be implemented by a court in its own sphere of competence were viewed in a first phase.

4.1 Punkt I, C, 1.
«I. General principles and guidelines

C. Planning and collection of data

1. The length of judicial proceedings should be planned, both at the general level (planning of average/mean duration of particular types of cases, or average/mean duration of process before certain types of courts), and at the level of concrete proceedings.»

4.1.1 General planning
The Judicial District Dorneck-Thierstein plans the length of judicial proceedings for the coming year. These are included in the above-mentioned annual contract and consist of the following indicators that must be achieved:
- EQ 1: Ratio of resolved incoming cases / incoming cases (Indicator for the speed of resolution, maximum 1);
- EQ 2: Ratio of resolved old cases / cases pending at the beginning of the new reporting period (Indicator for the resolution of old cases, maximum 1);
- EQ 3: Ratio of total resolved cases / incoming cases (>1 reduction of the number of pending cases; <1 increase of the number of pending cases);
- Duration of resolution: age structure of the executed cases in the reporting period (year); this structure contains the following subdivisions: 0 to 3 months, 0 to 6 months, 0 to 12 months and 0 to 24 months.

Isolated year targets for the following type of cases will be determined:
a) Family law divided into divorce proceedings (including amendments, complaints about marriage validity and legal separation, invalidity and separation complaints according to the Same-Sex Partnership Act) and proceeding measures for the protection of the matrimonial union (including summaries according to the Same-Sex Partnership Act).
b) Other civil law divided into ordinary proceeding, simplified proceeding, summary proceeding and debt collection and bankruptcy proceeding.
c) Criminal proceeding divided into presidential competence (single judge) and District Court competence (three judges).

4.1.2 Specific planning for the concrete proceedings

Upon arrival of a new case, the receipt of the case is normally confirmed the next day and at the same time the next step is set and communicated. The appointments are fixed, so that the annual targets are met.

Extension requests of the parties are generally not granted more than twice (art. 81 Civil proceeding law of canton of Solothurn from 11.9.1966).

In cases where an expertise is required, the deadline will be agreed with the expert (telephone interview). In case of delay, the expert will be reminded insistently to deliver his report. In general a delayed expertise occurs only rarely.

To avoid date collisions and delays, the date and time of the hearings will be fixedly settled with the lawyers.

4.1.3 Performance level
It can thus be concluded that the court practices the guideline for the point I, C, 1.

4.2 Point I, C, 2
«I. General principles and guidelines

C. Planning and collection of data

2. The users are entitled to be consulted in the time management of the judicial process and in setting the dates or estimating the timing of all future procedural steps.»

It can thus be concluded that the court practices the guideline for the point I, C, 2 (see above n° 4.1.2).

4.3 Point I, C, 3
«I. General principles and guidelines

C. Planning and collection of data

3. The length of judicial proceedings should be monitored through an integral and well-defined system of collection of information. Such a system should be able to promptly provide both the detailed statistical data on the length of proceedings at the general level, and identify individual instances at the origin of excessive and unreasonable length.»

The business management application JURIS includes the necessary data for the control of the proceeding duration and allows to produce the required statistics.

The above mentioned justice report (see appendix 2) includes general statistics on the case and time management of the Judicial District Dorneck-Thierstein: business and civil law remedy statistics p. 38 and 40, Criminal law, p. 51 and the indicators, particularly relating to procedure length, p. 39 (Civil law and criminal law).

It can thus be concluded that the court practices the guideline for the pointI, C, 3.

4.4 Point III, C, 1
«III. Guidelines for authorities responsible for administration of justice

C. Intervention

1. If departures from standards and targets for judicial timeframes are being observed or foreseen, prompt actions should be taken in order to remedy the causes of such departures.»

Every 6 months (30.6. and 31.12.) a list of the cases that are older than two years is printed. The courts of the canton of Solothurn have to deliver a justification for the proceedings duration of those cases to the Administrative Court Commission. Therefore, the Judicial District Dorneck-Thierstein has to watch that as few cases as possible are included on that list. On 30 June 2010, 5 cases with a proceeding duration between 27 and 32 months were on the list. In three cases, the trial will take place within the next six months. In one case, a non-extendable deadline for the submission of the complaint response was fixed. Previous to that, the procedure was suspended for a long time at the request of the parties. In the latter case, the procedure was suspended, due to the death of a party, until the completion of the inventory and a clear acceptance or the disclaimer of the inheritance by the heirs. (see appendix 1)

It can thus be concluded that the court practices the guideline for the point III, C, 1.

4.5 Point III, C, 2
«III. Guidelines for authorities responsible for administration of justice

C. Intervention

2. Particular attention should be given to the cases where integral duration is such that it may give rise to the finding of the violation of the human right to a trial within reasonable time.»

The jurisprudence of the European Court of Human Rights (ECHR) generally plans that in processes that last more than two years for each instance, the Court makes a detailed control in order to discover and analyze the possible phases during which the case does not move forward without well-grounded reasons (see the jurisprudence overview of the ECHR in the 3^rd study of the CEPEJ "Length of court proceedings in the member states of the Council of Europe based on the case-law of the European Court of Human Rights" - also called Calvez report).

With the obligation to provide justification on the proceedings that last more than two years (see above n° 4.4), it can thus be concluded that the court practices the guideline for the point III, C, 2.

4.6 Point III, C, 3
«III. Guidelines for authorities responsible for administration of justice

C. Intervention

3. The monitoring should make sure that the periods of inactivity (waiting time) in the judicial proceeding are not excessively long, and wherever such extended periods exist, particular efforts have to be made in order to speed up the proceeding and compensate for the delay.»

The Judicial District Dorneck–Thierstein applies the following rule to case management: all cases must be given a deadline for the next step. This deadline can either be external (example: for the submission of a response to a complaint) or internal (example: for the resumption or continuation of a proceeding). This ensures that no case stands still.

As an additional measure, the first clerk requests from the court chancellery to control the status of all pending cases every three months. If a case without a deadline is detected, a deadline is provided.

It can thus be concluded that the court practices the guideline for the point III, C, 3.

4.7 Point IV, B, 1
«IV. Guidelines for court managers

B. Continuing analysis

1. All information collected should be continually analysed and used for the purposes of monitoring and improvement of performance.»

The court that prevails over the Court Administration Commission of the canton of Solothurn requires regular statistics and lists; the court also keeps its own statistics with the court administration application JURIS, see also above n° 4.3 and 4.4.

It can thus be concluded that the court practices the guideline for the point IV, B, 1.

4.8 Point IV, B, 3
«IV. Guidelines for court managers

B. Continuing analysis

3. The reports on the results of analysis should be produced at regular intervals, at least once a year, with appropriate recommendations.»

Statistics will be regularly kept within the court. Possible actions will be taken afterwards. Every three months, all cases will be checked for the presence of a deadline (see above point. 4.6) and, if necessary a deadline will be provided.

Once a year, the Court Administration gives an annual report to the supervisory authority (Parliament of the canton of Solothurn) based on the work of the Judicial District Dorneck-Thiersteih (see "report on the administration of justice" of the canton of Solothurn - for the year 2009 document "SGB 054/2010", see appendix 2, p. 38 – 40 + 51). The report of the Court Administration on the court management (see Accountability Report p. 12 f.; see appendix 2, p. 12 – 14 + 19) shows that the High Court president and the court administrator visited the Judicial District and discussed with them based on the annual contract the case management for the year 2009. The report also includes recommendations for the fastest possible completion of the proceedings that are pending for more than two years.

It can thus be concluded that the court practices the guideline for the point IV, B, 3.

4.9 Point IV, C, 1
«IV. Guidelines for court managers

C. Established targets

1. In addition to the standards and targets set at the higher level (national, regional), there should be specific targets at the level of individual courts. The court managers should have sufficient authorities and autonomy to actively set or participate in setting of these targets.»

Based on the targets included in the annual contract, it can be concluded that the court practices the guideline for this point.

4.10 Point IV, C, 2
«IV. Guidelines for court managers

C. Established targets

2. The targets should clearly define the objectives and be achievable. They should be published and subject to periodical re-evaluation.»

The agreed targets of the Judicial District Dorneck-Thierstein are included in the annual contract. They consist of individual goals (such as coping with impending staff changes), indicators (resolution ratios and resolution durations).The annual report of the previous year shows that the goals are realistic (s. appendix 2).

The targets will not be published. Only the performances of the Court (resolution ratios and resolution durations) will be published in the annual report, the half-year report and the progress report.

The content of the annual contract will be reviewed annually and if necessary re-defined.

It can thus be concluded that the court practices the guideline for the biggest part of the point IV, C, 2.

4.11 Point IV, C, 3
«IV. Guidelines for court managers

C. Established targets

3. The targets may be used in the evaluation of the court performance. If they are not achieved, the concrete steps and actions have to be taken to remedy the situation.»

The resolution ratio and resolution duration defined as targets will be included in the annual report as proof of the additional yield. In the ensuing discussion between the court and the supervisory authority the possible necessary measures will be agreed.

It can thus be concluded that the court practices the guideline for the point IV, C, 3.

4.12 Point IV, D, 1
«IV. Guidelines for court managers

D. Crisis management

1. In the situations where there is a significant departure from the targets set at the court level, there should be specific means to rapidly and adequately address the cause of the problem.»

The annual contract foresees that the indicators and the list of the cases that are pending for over two years, will be delivered by the middle and the end of the year and that by significant deviations, the district court directorial President shall immediately inform the Administrative Court commission of the reasons.

The purpose of this reporting obligation is to detect deviations early and if necessary, to take specific measures in time.

It can thus be concluded that the court practices the guideline for the point IV, D, 1.

4.13 Point V, B, 2
«V. Guidelines for judges

B. Timing agreement with the parties and lawyers

2. Where possible, the judge should attempt to reach agreement with all participants in the procedure regarding the procedural calendar. For this purpose, he should also be assisted by appropriate court personnel (clerks) and information technology.»

Upon arrival of a new case, the next steps will start immediately and, if possible, they are set in agreement with the parties involved.(see above n° 4.1.2).

The Judicial District Dorneck-Thierstein has the necessary human resources at its disposal thanks to the law trainee/volunteer who can rapidly act as a clerk and the necessary computer science resources, and in particular the business management application JURIS.

It can thus be concluded that the court practices the guideline for the point V, B, 2.

4.14 Point V, B, 3
«V. Guidelines for judges

B. Timing agreement with the parties and lawyers

3. The deviations from the agreed calendar should be minimal and restricted to justified cases. In principle, the extension of the set time limits should be possible only with the agreement of all parties, or if the interests of justice so require.»

The daily practice of the Judicial District Dorneck-Thierstein shows that the proceedings are conducted in accordance with the above principles. (See n° 4.1 above).

It can thus be concluded that the court practices the guideline for the point V, B, 3.

5 Conclusion

The mentioned points of the CEPEJ guidelines for judicial time management were already practiced by the Judicial District Dorneck-Thierstein at the start of the coaching program.
The approach of a global budget combined with an annual contract (including target formulation) and a semi-annual controlling as well as a tight management of the court cases allowed this excellent result. Thus, the court may also serve as a model in Switzerland.

The undersigned warmly thanks the Judicial District Dorneck-Thierstein and in particular its Presidents for their participationin the CEPEJ coaching program for the judicial time management field. Useful experience on the methodology of the coaching program could be collected on this occasion. The feasibility of the implementation of the judicial time management guidelines could also be established.

We are pleased and grateful that the Judicial District Dorneck-Thierstein offered to act as a pilot court for Switzerland in the network of pilot courts of the CEPEJ.

* * * * *

Appendices:

1. List of the cases that are older than two years (anonymised)

2. Extracts of the annual report 2009 on the administration of justice of the canton of Solothurn

File n°: 14.6.30_2010

[1] “Implementation test of SATURN tools in selected pilot courts”

[2] The guideline refers both to the courts and other judicial authorities. I have highlighted the part of the guideline that I suppose pilot courts to be able to implement independently.

[3] The small claims’ limit applies to claims with a value less than 15 000 euro.

[4] See CEPEJ Studies No. 3: “Length of court proceedings in the member states of the Council of Europe based on the case-law of the European Court of Human Rights”.

[5] The duty to pay special attention to the periods of inactivity that can be attributed to the courts and other state authorities also arises out of the case-law of the European Court of Human Rights in relation to Art. 6 of the European Human Rights Convention.

[6] Time management Checklist (CEPEJ (2005)12Rev).

[7] For instance on the court's web site.

[8] See http://www.domstol.no/DAtemplates/Article____13797.aspx?epslanguage=NO

[9] Visited March 19, 2010.

[10] See http://www.domstol.no/DAtemplates/Article____10474.aspx?epslanguage=NO

[11]The Guideline refers both to the courts and other judicial authorities. I have highlighted the part of the guideline that I suppose pilot courts to be able to implement independently.