Strasbourg, 5 October 2015
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ)
WORKING GROUP ON QUALITY OF JUSTICE (CEPEJ-GT-QUAL)
18th meeting (1 – 2 October 2015)
Report prepared by the Secretariat
Directorate General I – Human Rights and Rule of Law
1. The Working Group on Quality of Justice (CEPEJ-GT-QUAL) of the European Commission for the Efficiency of Justice (CEPEJ) held its 18th meeting at the Council of Europe in Strasbourg on 1 and 2 October 2015, with François PAYCHERE (Switzerland) in the Chair.
2. The agenda and the list of participants are set out in Appendices I and II respectively of this report.
II. INFORMATION GIVEN BY THE CHAIR AND THE SECRETARIAT
3. The Secretariat informed the GT-QUAL that the new evaluation cycle on European judicial systems was underway and that a new report based on an interactive and ergonomic database would be published in autumn 2016. Cooperation was continuing with the European Commission regarding the preparation of scoreboards on the justice systems of the Member States of the European Union. The work of the SATURN Group with regard to judicial time management was also continuing; this was increasingly linked to the enforcement of decisions of the European Court of Human Rights.
4. The Secretariat reminded participants that cooperation programmes had been in progress for several years in the southern neighbourhood countries (Morocco, Tunisia and Jordan), those of the Eastern Partnership (Azerbaijan, Republic of Moldova) and Albania and Croatia. The aim of these programmes was to make available to these countries' policy-makers and courts the tools developed by the CEPEJ regarding judicial timeframes and the quality of justice, while taking into account specific national characteristics. Given the growing number of programmes in which the CEPEJ was involved, it was necessary to increase the number of experts. The CEPEJ had thus called on new experts keen to familiarise themselves with its tools and had organised special training sessions.
III. HOW TO DRIVE CHANGES TOWARDS E-JUSTICE; PREPARATION OF GUIDELINES
5. The Secretariat presented a concept paper on e-justice, prepared on the basis of the contributions made at the last meeting of the group and the last meeting of the pilot courts (Strasbourg, 24 September 2015). The Secretariat had also relied on the work of the CEPEJ-GT-EVAL as well as the examples of experience collected for the “Crystal Scales of Justice” prize. The document was in two parts. The first part set out the various examples of use of IT on a European level. The obvious benefits, problems, possible developments and potential risks were evaluated in this part. The second part identified the main general principles and good practices. The participants, in turn, then gave their views on the document.
6. The group agreed that the discussion on e-justice must be balanced and take into account both the benefits and the points of concern in respect of judicial work. While referring to examples of national experience, the document should enable the identification of good practice principles and the exchange of good practices between Council of Europe member States. The experience examples gathered should, as far as possible, cover all areas of the law (civil, criminal, administrative).
7. The proposed SWOT table met with a consensus within the group. However, the Chair suggested carrying out a further analysis of the risks and benefits so as to draw readers’ attention to issues that had not yet or not sufficiently been addressed. The document should be drawn up bearing in mind that the potential recipients were policy-makers and justice system professionals and users.
8. The representative of the Council of Bars and Law Societies of Europe (CCBE) made several observations. Firstly, he suggested that an assessment could be carried out not only at the level of individual countries but also on a European Union level. Secondly, he pointed out the security risks relating to e-justice systems; the CCBE was working on a lawyer certification system within the EU which would prevent fraudulent practice by non-genuine lawyers. For the CCBE, the main issue with e-justice was that it should not give fewer rights than a paper-based system or upset the equality of arms between parties to proceedings. He shared his concerns regarding the fact that the public would, in the future, have more and more direct contact with the courts and less access to lawyers as intermediaries. He also referred to a risk of “uberisation” of the profession of lawyer and of a disconnect between judges and lawyers, who were meeting each other less and less frequently.
9. The representative of the European Committee on Legal Co-operation (CDCJ) informed the participants that that committee was currently working on the issue of electronic evidence and, in particular, data security. As e-justice might concern procedural questions, it could be beneficial for both parties to work together.
10. Participants made several comments regarding the themes addressed by the document, notably: access to justice (for example, highlighting the risk of a huge increase in the number of proceedings in the event of indiscriminate access, whereas it would be more appropriate to target vulnerable population groups and promote alternative dispute resolution methods and tools); communication between the courts and practitioners (in this regard, questions were raised about the need to guarantee the security of exchanges, evidence and record-keeping); administration of the courts and assistance for judges, public prosecutors and court registrars (regarding these two points, the participants noted the vital role played by case management tools in judicial systems reorganisation processes, and the impact of ICT on the professions of judge and registrar).
11. The group concluded that the objectives to be pursued must be very clear. It was not a matter of simply describing the various systems that existed, but of maintaining a global approach to the manner in which changes towards e-justice are driven. The Chair underlined that it was necessary to flesh out the first part of the document, prioritise the points mentioned in the SWOT tables and better define the main principles and guidelines for driving the process of change towards e-justice.
12. At the end of the discussion, the CEPEJ-GT-QUAL instructed the Secretariat to update the concept paper jointly with Harold EPINEUSE (France), scientific expert, so as to include the various points that had been discussed and proposed. The revised document should reach the Secretariat by the end of January 2016.
IV. ENFORCEMENT OF COURT DECISIONS
13. At its 16th meeting, the CEPEJ-GT-QUAL had decided to compile a guide on good practices in respect of enforcement of court decisions, with specific examples from all Council of Europe member States, and had instructed the Secretariat to provide the necessary practical assistance during this work.
14. Guillaume PAYAN (France), scientific expert, presented the draft Good Practices Guide which was structured around four main themes:
a. control of the organisation of the enforcement process by enforcement agents;
b. proper understanding of the enforcement process by the parties;
c. the quality of enforcement procedures and a review of the enforcement process;
d. a glossary of legal terms relating to enforcement.
15. The participants were asked to comment on the draft document as a whole. They noted the quality of the work done by G. PAYAN, who had taken full account of the comments made at the last meeting. They underlined, however, that the language used was too prescriptive for a document of this type, which should be of a more descriptive nature. Indeed, the aim with this document was not to issue guidelines, but rather to pool good practices and good ideas on which the member States could draw. Another problem that arose was the choice of relevant domestic examples coming under the various themes addressed: in this connection, the group decided that the document should refer to all the relevant experience examples in a separate Appendix, instead of singling out a few of them in the narrative.
16. All the participants, in turn, then gave their views on each section of the document. The participants’ suggestions were noted by G.PAYAN.
17. The CEPEJ-GT-QUAL asked G. PAYAN to prepare a revised draft based on the comments made at this meeting for mid-November. The Secretariat would then consult the members of the group by email and finalise the document with a view to its presentation at the plenary meeting of the CEPEJ in December 2015.
V. PROTECTION OF THE RIGHT TO A FAIR TRIAL, MISCARRIAGES OF JUSTICE AND IMPLEMENTATION OF EFFECTIVE DOMESTIC REMEDIES
18. Francesco DE SANTIS (Italy), scientific expert, presented a preliminary study on effective domestic remedies entitled “Protection of the right to a fair trial, miscarriages of justice and implementation of effective domestic remedies”. This study encompassed three main areas:
a. The background to the requirement of an “effective remedy” with regard to violations of Article 6§1 of the European Convention on Human Rights.
b. Implementation of “effective remedies”: scenarios, critical aspects and recommendations.
c. Structural measures upstream from the introduction of effective remedies aimed at reducing the load on justice systems and improving their functioning.
19. Paola TONARELLI LACORE, representing the Registry of the European Court of Human Rights, and Corinne AMAT, representing the Department for the Execution of Judgments of the Court, highlighted the need for States to give themselves means of identifying the causes of miscarriages of justice within their judicial systems. Domestic remedies could only temporarily make up for structural problems; violations of Article 6 of the Convention continued unless an in-depth analysis of the reasons for them was carried out at national level. In practice, however, States were unable to do this analysis and take measures to redress miscarriages. The impression was that States often took a trial-by-error approach and also failed to evaluate the impact of the measures taken. P. TONARELLI LACORE and C. AMAT drew attention to the huge contribution the CEPEJ might make to this analysis and to the search for solutions. They suggested that the CEPEJ-GT-QUAL study should focus on structural measures, instead of “effective remedies”.
20. The group thanked F. DE SANTIS for his presentation and underlined the quality of his analysis. The participants agreed that effective remedies did not resolve the root problems and might even increase the burden on judicial systems. The group therefore decided to focus its discussions on the structural measures that needed to be taken before introducing effective remedies, so as to lighten the load on judicial systems. The Chair suggested that greater attention be paid, in particular, to issues relating to limitation of the demand for justice and raised the question whether the indicators of the checklist developed by the CEPEJ-GT-QUAL should be supplemented, and whether to update the CEPEJ questionnaire for the evaluation of European judicial systems.
21. The group asked F. DE SANTIS to expand the third part of the document and to highlight the good practices adopted by member States to ensure the smooth operation of their judicial systems, referring, in particular, to the action plans closed by the Committee of Ministers within the framework of the process on execution of the decisions of the European Court of Human Rights. The Secretariat would finalise the document by the end of January 2016.
VI. PRESENTATION OF RESEARCH WORK
22. Sandra TAAL and Mirjam WESTEMBERG (Utrecht University, the Netherlands) presented to the CEPEJ-GT-QUAL their research projects, respectively entitled “Managing knowledge in the judiciary” and “Quality indicators in four judiciaries in Europe”. The first study concerned the importance of knowledge sharing among judges, which was an essential element in the knowledge management process and had a direct impact on the quality of judicial work, and the need to develop a social environment that facilitated such exchanges. It had also been shown that knowledge sharing was all the more effective when members of the judiciary were willing to assist one another.
23. The second study presented a fundamental method of quality management, called the “PDCA cycle”. This acronym referred to various actions to be carried out to achieve continuous quality enhancement: it involved planning and setting objectives (“Plan”), deciding the most appropriate measures to attain them (“Do”), examining the effectiveness of these measures (“Check”) and moving forward to the next action (“Act”). The PDCA cycle had been applied within various quality management frameworks specifically aimed at the judiciary in a number of countries (United States, the Netherlands, Norway, Germany and Sweden).
24. M. WESTENBERG observed that judges and central authorities had very different expectations with regard to quality values. For judges, the aim was to guarantee the independence and impartiality of the judiciary and high professional standards and to meet the needs of court users, whereas the central authorities wanted to manage and monitor judicial work, while being answerable for this to Parliament or other State entities. The former set themselves qualitative objectives which could be measured in a flexible way (for example, on the basis of discussions with colleagues or feedback from court users), whereas the latter had quantitative objectives which could be measured in a more tangible fashion. This last approach, however, entailed a risk of degenerating into a purely managerial collection of information, whereas the other could facilitate a process of appropriation by judges. M. WESTENBERG underlined that it was necessary to find common ground between the expectations of both sides, and that moderators were necessary for this purpose. Although there was a need to continue reporting and measuring performance, it was extremely important for quality enhancement to be managed by judges themselves through tangible measures and projects.
25. The Working Group thanked S. TAAL and M. WESTENBERG for their presentations which fitted perfectly into the work currently being carried out by the group.
26. With regard to the first presentation, the participants concurred that judges were often isolated within the courts and rarely worked together, whereas collaboration and knowledge sharing would be useful. The Chair said that a judge's willingness to contribute to such sharing should be taken into consideration during assessment and promotion procedures. The other members underlined that exchange of information between judges could be an important criterion in measuring quality, but it was necessary to avoid disproportionately increasing the workload. Lastly, the possible development of guidelines by the group on this theme was mentioned.
27. With regard to the second presentation, questions were raised regarding the limitations of an approach that would involve judges being almost the sole instigators in developing quality standards. M. WESTENBERG replied that responsibility to society, a factor which should not be neglected, should be part and parcel of the judges' outlook, and they should be able to demonstrate that the judicial system included quality standards.
VII. INDICATORS FOR MEASURING THE QUALITY OF JUDICIAL SERVICES
28. Mrs Inka TEMPELMAN (the Netherlands), scientific expert, presented the document that she had prepared relating to the indicators for measuring the quality of judicial services. She pointed out that the last document prepared by the CEPEJ-GT-QUAL on this issue had not met the CEPEJ's expectations and that it was therefore necessary to start the work again, with a clear view of the objectives to be achieved. In this connection, it was necessary to take into account the fact that there was not always a consensus on the indicators for measuring quality among the various actors involved in the judicial system. She considered it preferable to set one's sights on improving the quality of services rendered to the public – a point on which judges and public prosecutors were particularly keen – and to develop quality standards, instead of measuring and developing quality indicators.
29. Mrs TEMPELMAN asked the group to choose among the three possible approaches listed below:
a. To develop guidelines on the conditions and factors that should be borne in mind to improve judicial work and develop general standards with regard to quality, based on the work already carried out by other bodies (EU, World Bank, CCEJ);
b. To focus on more specific issues and develop quality standards based on certain sections of the checklist (for example, the work itself and operating procedures);
c. To develop a general framework of quality standards to which the courts could refer, which would consist of several pillars, each having its own quality indicators.
30. Several members noted that it was necessary to put oneself in the position of the courts so as to allow them to appropriate tools and then develop policies for change. Small steps should be taken to begin with, aimed at enabling the courts to be the driving force behind changes regarding quality, while taking into account the fact that some courts did not have sufficient financial autonomy to be able to implement quality measures. The advantage of this approach was that it brought perceptible results in the short term.
31. One participant underlined that so far the tendency had been to measure factors which had proved to be of secondary importance in the operation of the courts, whereas it would be more appropriate to improve the quality of what existed already and to ensure that the courts took ownership of the quality measures, while taking care that such initiatives were not perceived as calling into question the quality of judges' work or decisions. One participant nonetheless drew attention to the importance of not focusing solely on the courts or on the needs of judges, as the central authorities issued guidance which had an impact on the courts' work; this guidance should be taken into account and its impact should be measured.
32. During the subsequent discussion some participants indicated that quality should be a process aimed at improving the judicial system through the definition of values, and that this should trigger a process at court level, which would enable the distance from the target to be measured. The fundamental values needed to be defined from the bottom up, a process in which the courts would play the key role. Court responsibility and accountability should be encouraged, while maintaining means of external evaluation (such as user satisfaction surveys). According to one participant, self-assessment and self-improvement, which were key factors in the development of quality standards, necessarily had to be combined with external evaluation.
33. One of the members of the group indicated that, up to now, quality had been reduced to a small number of factors, whereas it was a very broad concept. He therefore proposed adopting a range of indicators and determining criteria which would enable them to be measured, even if criticisms were subsequently raised for lack of a consensus on the results of this measurement process. He underlined, as did other participants, the need to focus on the quality of judicial services rather than the quality of court decisions. Another participant noted, however, that the checklist contained a large number of points and that it would be useful to focus on developing quality indicators within a narrower domain.
34. Another member pointed out that it was also necessary to focus on the powers and responsibilities of judges and the means of maintaining quality (such as salary, time, education, etc.). He also noted the benefit of taking into account the PDCA cycle mentioned previously by M. WESTENBERG.
35. I. TEMPELMAN suggested that one possible approach could be to identify the critical aspects and threats which might have a major impact on quality (for example, an excessive workload on a judge).
36. Following the discussion, the CEPEJ-GT-QUAL decided that it was necessary to consider further the approach to be adopted. It instructed the Secretariat to promptly prepare the meeting report so that a decision could be taken on the methodological approach to be subsequently adopted.
VIII. ACCESS OF WOMEN TO JUSTICE
37. F. PAYCHÈRE presented a document on the theme of access to justice from the specific viewpoint of the effectiveness of women’s rights. The document had been drawn up to serve as an aid for a discussion within the CEPEJ-GT-QUAL as to whether this theme should be included in its work programme for 2016-2017. Even though this issue had already been the focus of work within the Council of Europe, and also at United Nations level, no specific proposals to reform judicial systems had been made and the approach remained very theoretical. The documents produced by the CEPEJ to date, in particular the 2010 report devoted to access to justice, the 2008 checklist or the 2014 report on “European Judicial Systems: efficiency and quality of justice” referred to “vulnerable” persons but not directly to women.
38. F. PAYCHÈRE wondered whether it was appropriate to reduce women's access to justice to the issue of “vulnerable” users and how to handle this theme without duplicating other initiatives. One avenue might be to carry out a survey of all good practices in this area in order to derive guidelines from them.
39. The Secretariat explained that this was a subject that the CEPEJ had not wanted to deal with until now, principally for the following reasons. Firstly, it was difficult to find a way of tackling this issue which could guarantee real added value by the CEPEJ; women's access to justice could indeed be measured only in relation to certain types of proceedings; furthermore, the CEPEJ was focusing on the engineering of judicial systems, without becoming directly involved in specific areas of civil or criminal law. Secondly, it was necessary to identify an approach that complemented the work of the department of the Council of Europe which was doing the main work on this subject and to avoid duplicating its efforts.
40. After all the participants had stated their views in turn, the group decided that it was not currently in a position to give real added value to this initiative.
Discussion on the document prepared by the Secretariat
Discussion on the Draft Guide on good practices related to the Guidelines for a better implementation of the CoE’s Recommendation on enforcement, prepared by Mr Guillaume Payan (France), scientifc expert
“Managing knowledge in the judiciary”
"Quality indicators in four judiciaries in Europe
Discussion on the document prepared by Mrs Inka Tempelman (The Netherlands) scientific expert
List of participants
Joao ARSENIO DE OLIVEIRA, Head of Department, international Affairs Department, Directorate-General for Justice Policy - Ministry of Justice, Lisbon, PORTUGAL Apologised / excusé
Fabio BARTOLOMEO, Director General of the Office of Statistics, Ministry of Justice, Rome, ITALY
Anke EILERS, Judge, Oberlandesgericht Köln, GERMANY,
Nikolina MIŠKOVIĆ, Judge, Commercial Court in Rijeka, CROATIA
François PAYCHÈRE, Président de la Cour des Comptes de la République et du Canton de Genève, Genève, SUISSE (Chair of the GT-QUAL / Président du GT-QUAL)
Ioannis SYMEONIDIS, Judge, Court of Appeal, Professor at the Law School, University of Thessaloniki, Thessaloniki, GREECE
Gilles ACCOMANDO, Président du Tribunal de Grande Instance d’Avignon, France
Francesco DE SANTIS, Avocat, Chercheur en droit procédural civil à la Faculté de Droit de l’Université de Naples « Federico II », ITALIE
Harold EPINEUSE,Chargé de mission à l’Institut des Hautes Etudes sur la justice, Paris, FRANCE
Guillaume PAYAN, Maître de conférence à la Faculté de Droit de Montpellier, France
Yinka TEMPELMAN, Quality Manager of the Dutch Council for the judiciary, The Hague, THE NETHERLANDS
Ingo WEUSTENFELD, Policy Officer, European Commission, Directorate-General for Justice, Unit 0.3 General Justice Policies and Judicial SystemsBRUSSELS
CONSEIL DES BARREAUX EUROPEENS (CCBE)
Michel BENICHOU, 1st Vice Président, CCBE, Conseil des barreaux européens / Council of Bars and Law Societies of Europe BRUXELLES
European Network of Councils for the Judiciary (ENCJ)
Jean-Marie SISCOT, Administrator of the Belgian High Council for Justice, BRUSSELS
EUROPEAN UNION OF RECHTSPFLEGER AND COURT CLERKS
Jean-Jacques KUSTER, Président de l’Union européenne des Greffiers de JusticeStrasbourg, FRANCE
INTERNATIONAL UNION OF BAILIFFS
Mathieu CHARDON, Huissier de justice, Premier Secrétaire de l’UIHJ, Montfort l’Amaury, FRANCE
Mirjam R.M. WESTENBERG, Westenberg Research, Amsterdam, THE NETHERLANDS
Sandra TAAL PhD Candidate | Montaigne Centre of the Utrecht School of Law (The Netherlands) Utrecht, THE NETHERLANDS
Mr EDOUB, Procureur Général près du TPI de Nabeul
Mr NSIR, Procureur Général près du TPI de Kairouan
REPUBLIC OF MOLDOVA
Galina VAVRIN, Ad interim President of the Cahul Court, CAHUL
Marcel SOFICIUC, Ad interim President of the Soroca Court, SOROCA
Ludmila BARBOS, Ad interim President of the Ialoveni Court, IALOVENI
Dorel MUSTEAȚĂ, Member of the Superior Council of Magistrates, CHISINAU
Registry of the European Court of Human Rights
Paola TONARELLI LACORE, Registry of the European Court of Human Rights/Greffe de la Cour européenne des droits de l’Homme, 67075 STRASBOURG, FRANCE, Tel : +33 3 88 41 35 98, e-mail : Paola.Tonarelli-Lacore@echr.coe.int
DGI - Human Rights and Rule of Law, Department for the Execution of Judgments of the European Court of Human Rights
Corinne AMAT, Head of Division
DGI - Human Rights and Rule of Law, Division for the independence and efficiency of justice /
Fax: +33 3 88 41 37 43 - E-mail: firstname.lastname@example.org
Stéphane LEYENBERGER, Head of Division, Executive Secretary of the CEPEJ / Chef de la Division, Secrétaire exécutif de la CEPEJ, Tel: + 33 3 88 41 34 12, e-mail: email@example.com
Clementina BARBARO, Secretary/Secrétaire of CEPEJ-GT-QUAL Tél: +33 3 90 21 55 04, e-mail : firstname.lastname@example.org
Leonid ANTOHI, Project Manager/Manager de programme, Tel: +33 (0)3 90 21 49 65, e-mail: email@example.com
Yannick MENECEUR, Special Advisor to the Secretariat of the CEPEJ / Conseiller spécial auprès du Secrétariat de la CEPEJ, Tél : +33 (0)3 90 21 53 59, e-mail : Yannick.firstname.lastname@example.org
Jean-Pierre GEILLER, Administration et Finances, Tel : + 33 (0)3 88 41 22 27, e-mail : email@example.com
Annette SATTEL, Administration et réseaux, Tel: + 33 (0)3 88 41 39 04, e-mail: firstname.lastname@example.org
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Lucie DE BURLET