Strasbourg, 7 December 2016
Guidelines on how to drive change towards Cyberjustice
Stock-taking of tools deployed and summary of good practices
Document prepared by the CEPEJ-GT-QUAL
on the basis of the preparatory work of Mr Harold EPINEUSE, scientific expert (France)
As adopted at the 28th meeting of the CEPEJ on 7 December 2016
1. In recent years all Council of Europe member States have deployed information technology (IT) tools with a view to improving the performance and efficiency of their judicial systems. Whether on a small or large scale and with more or less significant financial implications, the introduction of digital tools was often regarded in itself as a means of modernising justice. However, it was rarely accompanied by prior consideration of the overall impact it would have on modernised judicial systems. There is general agreement today that the justice system cannot remain on the side-lines of a development that is having a huge impact on the societies within which it operates and on the populations for whom it is intended. However, it must be acknowledged that the challenge of incorporating information and communication technologies (ICTs) into the justice system without distorting its underlying purpose and values is still an area that has been too little documented. Nonetheless, the development and maturity of certain technologies applied to the judicial field since the early 2000s allow an initial assessment to be made of their use fifteen years later, on the basis of the experience of Council of Europe member States.
2. Through these Guidelines, the CEPEJ wishes not only to contribute to documenting this field by compiling details of the most recent experience gained in the context of European judicial systems, but also to take a critical look at IT development as applied to the justice system in recent years and at the challenges it poses for both justice professionals and policymakers. The CEPEJ’s intention in focusing on “cyberjustice” is to encourage debate on this issue and to provide those judicial systems that so wish with expertise extending beyond questions to do with the development and operation of software tools, so as to embrace all the current developments affecting the way in which justice is administered by harnessing the ICTs. Used in preference to “e-justice”, which implies that the use of IT is a means of applying justice in the digital world, the term cyberjustice in fact refers to a body of literature which is now extensive and cross-disciplinary and has its origins in information theory. This literature points to the depth of the changes taking place in human organisations and activities that make use of information systems in order to better identify the challenges facing them. Cyberjustice is therefore broadly understood as grouping together all the situations in which the application of ICTs, at least, forms part of a dispute resolution process, whether in or out of court.
3. While the digital tools of cyberjustice now often contribute to the greater efficiency and effectiveness of judicial systems, within a general context of scarcer resources, it is crucial that their deployment should take account of both the requirement to guarantee higher quality standards for the public justice service and of the expectations and needs of justice system professionals and users. In particular, the development of justice information systems should not call into question the basic principles that underpin judicial activities. The right to a fair trial safeguarded by the European Convention on Human Rights and Fundamental Freedoms (ECHR) as well the instruments for promoting the quality of justice drawn up by the CEPEJ must not be undermined but, on the contrary, must have their effects extended by IT, which does not constitute an end in itself but a means available to policymakers, professionals and parties to proceedings.
4. These Guidelines thus have a dual objective. Firstly, they take stock of existing solutions at the European level, while at the same time considering the aims they pursue and their ability to improve the quality and effectiveness of judicial systems. In keeping with this approach, the various applications of cyberjustice identified have been divided into four main categories according to their intended aim: access to justice, communication between courts and professionals, court administration and direct assistance for the work of the judge and the registrar. The following details will be provided for each category: the benefits expected by introducing the tool, the possible long-term developments that will result from its use, the aspects essential for the success of the planned innovation, and the potential risks associated with its use.
5. Secondly, the aim of these Guidelines is to help policymakers master the change process towards cyberjustice by putting into perspective the general principles, along with some feedback considered particularly useful in connection with the development and the implementation of European digital justice policies.
6. These Guidelines have been drawn up on the basis of the detailed data and information gathered by the CEPEJ in the course of its work, particularly in the context of the evaluation of European judicial systems (CEPEJ-GT-EVAL). In this connection, it is worth mentioning that the 2016 assessment cycle (data from 2014) gave considerable prominence to the question of ICTs by producing a specific report, published in September 2016 and drawn up on the basis of member States’ replies to a dedicated questionnaire. This comprehensive report accurately determines the level of development of each country in this field and also elaborates on previous CEPEJ analyses of the impact of IT on the effectiveness and quality of judicial systems. These data have been supplemented by original information on specific IT projects gathered in spring 2016 from representatives of member States on a voluntary basis and from various discussions among CEPEJ members and the Network of Pilot Courts.
7. Lastly, critical areas for reflection have been outlined and discussed by the CEPEJ Working Group on Quality of Justice (CEPEJ-GT-QUAL) on the basis of the experience of each group member. With the aim of following on from the work of this group, these Guidelines endeavour to indicate the links between the subject-matter of this report and the issues at stake as far as the quality of justice is concerned. In particular, reference is made where relevant to the “Checklist for promoting the quality of justice and the courts” (CEPEJ(2008)2E), an instrument taking the form of a self-assessment tool for policymakers and legal practitioners that aims through a variety of questions to improve legislation, policy and practice with regard to the quality of justice. An additional checklist specific to the field of cyberjustice is proposed in an appendix to these Guidelines in order to extend and facilitate this self-assessment in connection with the development of ICTs in the administration of justice. It is followed by a short bibliography referring to the various Council of Europe instruments and documents directly connected with the subject of cyberjustice.
8. This section provides an overview of existing cyberjustice systems at the European level on the basis of the data available in the last CEPEJ-GT-EVAL report, to which information has been added on initiatives already noted by the CEPEJ in connection with the “Crystal Scales of Justice” competitions. It is also supplemented by information provided by member States, which were invited to contribute to this study on a voluntary basis by sharing their chosen experiences with the scientific expert. Finally, it incorporates the content of discussions with CEPEJ members and the Network of Pilot Courts.
9. The systems identified have been grouped according to the aim pursued by their promoter: access to justice, communication between courts and professionals, direct assistance for the work of judges and registrars and, finally, court administration. This breakdown is clearly academic in nature, and the boundaries may at times prove somewhat blurred. Some of the more advanced examples could therefore have been included in several categories because they link together tools aimed at improving access to information and staff communication, a case management system and aids for professionals. However, to avoid repetition, the chosen approach will be to mention them only once, in view of the specific characteristic of the tool to be highlighted at that moment in the sample concerned.
10. These Guidelines include a general analysis of the potential of each category of tool, which consists in systematically examining the identified benefits for the justice system, the possible developments for judicial systems, points to consider in their implementation and, finally, the potential risks inherent in their introduction. Each subsection accordingly provides an overview of the issues to be considered followed by an infographic summary of the systems existing in each country and a sample of available tools to illustrate the diversity of member States’ experience in this matter.
11. This notion must be understood here in a broad sense, as it includes both ways of accessing the law (online information on one’s rights, publication of case law) and access to dispute settlement procedures (online granting of legal aid, referral to a court or mediation service) . Access to justice is a notion frequently advanced by judicial systems to justify the use of digital tools, which, depending on the context, are intended to increase the amount of information or level of services available to court users or to lower the barriers (taken to mean the material and financial costs) to accessing existing services.
12. As early as 2008, the CEPEJ’s “Checklist for promoting the quality of justice and the courts” (CEPEJ(2008)2E) underlined the important link between IT and access to justice by devoting an entire section to the subject. More recently, a Council of Europe Parliamentary Assembly resolution of November 2015 pointed out that access to justice “is a cornerstone of any democratic State based on the rule of law, and a prerequisite for citizens’ effective enjoyment of their human rights |and that] access to the justice system often entails high costs in terms of time and money”. The Assembly also welcomed the fact that “efforts are being made in a number of States to reform court processes in order to accelerate procedures and make them more affordable, in particular through the use of modern forms of information and communications technology (ICT)” .
13. Information technology therefore holds out the promise of a more accessible public justice service, as long as citizens themselves are connected to the Internet and are prepared to accept this new relationship, and provided that judicial systems are prepared to invest sufficiently in ever more advanced and more complex tools, which necessitate or lead to a reshaping of their organisation and interrelationships, and sometimes even new skills that they must integrate so as to derive full benefit from the new digital services offered to litigants and citizens in general.
14. The development of IT has led everywhere to an expansion of the capacity for interaction between individuals, with the result that public services, including the justice service, have sought to take advantage of the new digital tools so as to reconsider the ways in which they communicate with their users. Providing more information and improving its delivery are the two objectives that seemed to operators of judicial systems to have become possible at lower rollout cost thanks to IT. The focus is on deriving two sets of benefits: improving the quality of the service rendered while at the same time controlling the operating costs of the justice system.
15. The primary objective of the many information websites set up in the last few years is to provide citizens with a basic level of information in advance of an any dispute or lawsuit, available from their home and in a language they understand, through the development of a user-friendly interface that informs them about the extent of their rights and the procedural steps to be followed so as to exercise or defend them. Information portals are therefore gradually being set up in all countries and very often involve the courts as well as bar associations or other associations in order to provide a level of information that are as complete and uniform as possible, accessible from anywhere in the country. It should be noted that the European Union is furthering this effort by working on interconnecting information and has set up a portal, in the EU countries’ languages, for accessing national information provided by States.
16. The development of online information services now focuses on assisting the citizen through the provision of practical information concerning the procedures to be followed. By completing a kind of dynamic questionnaire designed to narrow down their request both with regard to its nature, the sum involved and the geographical location concerned, citizens can visit these new-generation portals and obtain personalised and contextualised information enabling them to continue their path through the appropriate institutional channels, such as contacting a lawyer, being put in touch with a conciliation or mediation service or, of course, referral to the relevant courts. Citizens are also sometimes given more precise information on the arrangements for referring their case to the institution together with the documents to be completed (downloadable online), a list of documents to be provided in support of an application, the institution’s postal or email address, the access plan, the institution's internal organisation and, possibly, the waiting periods and deadlines involved. In the States’ experience, these services require a significant amount of work to overhaul the provision of information, simplify the language used, take account of ergonomic principles, and sometimes even streamline procedures.
17. Some judicial systems consider the development of “open data” as the ultimate goal of policies concerning access to justice. A clear trend has emerged in the last few years, with strong political support at the international level, for some countries to move towards opening up judicial data to the general public. The aim is to make all judicial decisions available to everyone online free of charge (with various restrictions with regard to personal data – names of the parties, addresses, etc. – according to the legislation in force in the country concerned). These “open data” policies constitute a considerable theoretical advance in access to the law by making court decisions and judgements available to everyone under the same conditions. At the same time, they raise many questions on the real accessibility of law made available to citizens in a raw form and foreshadow fundamental changes in professional circles as far as counselling and judicial publishing are concerned.
18. This therefore means that the impact of the development of open judicial data on access to justice must be qualified. In order to be effective this process must take into consideration the fact that it is in practice no easy task for citizens to pick their way through such a wealth of information and utilise it to support their claim or defend their rights. In many cases they need to contact a professional intermediary because the law or the case is complex. In some countries, new intermediaries may even emerge to process the free and open legal and judicial information. In addition, judicial systems have to weigh the advantages of making these data available online for certain activity sectors (insurance, banking or the employment market) and the individual or statistical use they may make of them. Public authorities can agree to put data online, sometimes without the knowledge and possibly to the detriment of those they are supposed to serve and protect – i.e., justice system users, only under certain conditions, failing which they are at risk of triggering mistrust in the judicial apparatus.
19. Judicial systems are increasingly implementing active institutional communication policies on the Internet by exploiting the power of multimedia and the social networks. At the level of a court or network of courts, countries are trying out a new form of relationship with their citizens that enables the justice system to report on its work in various ways (like the other branches of power – the executive and the legislative – on their websites) by introducing genuine communication strategies and policies via the web: press releases (sometimes in several languages), video broadcasts of all or part of a hearing (mostly in the case of supreme or constitutional courts), or a Facebook page or Twitter account, to mention only the two most commonly used social networks. The justice system views all these new tools as direct opportunities to make itself heard and understood by a national or local audience utilising these new media.
20. The simplicity and very affordable price of installing certain tools today must, however, not cause us to overlook a much more complex situation according to the judicial systems that have experience of it. The investment made in developing communication tools, raising great expectations in the population, must be followed by even more substantial investments in communication techniques and public relations through the recruitment of professionals and the on-going training of various players within the institution concerned. Accordingly, the establishment of a genuine communication policy should also go hand in hand with a debate on the limits to such a policy for a judicial institution. This means considering the type of information to be put online, or not, and the appropriate handling of that information. For the sake of the image and dignity of the judicial institution it is imperative to answer these questions calmly and in a well-reasoned way before throwing oneself body and soul into the most fashionable means of communication. Furthermore, the response to all these questions no doubt differs according to the type of court and the kinds of cases it deals with.
21. Paperless communication with court users regarding their cases is already up and running in some countries and being developed in others. These primarily consist in services for referring a matter to a court directly online, mainly designed for proceedings not requiring compulsory representation: these services spare the citizen the trouble of sending documents in paper form through the post or delivering them by hand to the court registry. Under this approach, the information systems recently introduced enable citizens, whether or not assisted by a lawyer, to receive notifications concerning their cases in paperless form by means of SMS alerts or email, inviting them to visit a secure online account and/or contact their lawyer. Some countries have also introduced paperless systems for delivering notices to attend hearings and for confirming the litigant’s intention to attend by a message sent to his/her telephone a few days beforehand, thereby permitting a significant increase in court appearance rates for both sides in proceedings and, as a consequence, a lower proportion of hearings postponed. Other countries make the court's decision on the case available to the parties within their secure personal space, followed by information on the legal remedies available (whether or not online) to challenge it or have it enforced.
22. The introduction of information systems potentially improves physical reception of the public within courts and elsewhere. Apart from the benefits for users, who are individually no longer obliged to travel to courts in person to obtain information or initiate proceedings, these online services facilitate the organisation of the court as they enable a reduction in waiting times at court reception desks, or even eliminate waiting times for anyone able to obtain the information they are looking for on a PC. The time gained by no longer having to inform people who can search for the information they need directly on the Internet also enables trained staff to concentrate on helping those without these facilities or whose cases require a specific level of information, or an interview with a professional. It should be noted that some countries supplement this information offer made available both online and person to person at the court with a hybrid system involving use of telephone hotlines accessible nationwide. Others promote an even more ambitious policy of relocating physical access points to the law by setting up local agencies shared between public services, whose staff are specially trained in cross-sectorial work and can navigate the various information systems concerned and provide citizens with on-the-spot assistance, if necessary with the help of a court’s judicial staff.
23. Other arrangements that make it possible to avoid travelling to the courts are being developed through the use of videoconferencing, which is being systematically introduced in every country, including for the purpose of judicial co-operation between countries. These arrangements, which are available to a category of individuals or in specific situations in connection with preparing a case for trial or for certain parts of a hearing (expert report, lodging a complaint, questioning or remote testimony), are seen as a significant means of saving time and expense in both civil and criminal cases. On the other hand, from a quality standpoint many practitioners in the member States think the use of videoconferencing still requires a number of improvements on the technical side and with regard to hearing records. This was emphasised by the rapporteur who drew up the Parliamentary Assembly's resolution on access to justice and the Internet: “courts that use videoconferencing should continue to explore ways to mitigate these disadvantages, such as pursuing technological advances that would improve the quality of the videoconference and encrypting the video signal to protect against interception. Lawyers, judges and court staff should also familiarise themselves with common differences between in-person testimony and videoconference testimony in order to increase their awareness of how these differences may have certain implications for videoconference testimony. For example, persons testifying via videoconference tend to look at the screen to see the other person rather than into the camera, therefore eliminating the appearance of direct eye contact with the people in the courtroom. Understanding this and other differences can help lawyers, judges and courtroom staff to modify their expectations of videoconference testimony, as opposed to in-person testimony.” These matters are, of course, of concern when it comes to ensuring the quality of justice.
24. Websites designed for the online settlement of disputes have also recently been developed in some of the Council of Europe member States. In civil cases, they are generally used to deal with small claims (consumer disputes, residential leases) or specific proceedings involving payment orders, but they are also developing in the area of family disputes (divorce proceedings). Both public and private operators provide online dispute resolution (ODR) services directly accessible by litigants. Some judicial systems regard this as an alternative service while others see it as a complementary offering provided in advance of the possible referral of the case to a court. This approach makes a significant contribution to preventing court congestion by encouraging the settlement of a dispute through conciliation or computerised mediation. If conciliation or mediation fails, switching to the traditional court system is then possible but made easier – when the information system is linked up or recognised by the public authority – because of the automatic transfer of information concerning the parties and the case, which is then almost ready for trial, thus avoiding the need for court clerks to manually create a new entry in their case management system, and for the parties to restate their claims and provide the same information and documents supporting their case.
25. It should be noted that the Parliamentary Assembly of the Council of Europe recently called on member States to “make voluntary ODR procedures available to citizens in appropriate cases; raise public awareness of their availability, and create incentives for participation in such procedures, including by promoting the extrajudicial enforcement of ODR decisions and by enhancing the knowledge of legal professionals about ODR”. Reference is also made to the need to control the contribution of ODR so that it is able to provide citizens with quality justice, which for States consists in “ensuring that existing and future ODR procedures contain safeguards compliant with Articles 6 and 13 of the European Convention on Human Rights, which may include access to legal advice”; “(ensuring) that parties engaging in ODR procedures retain the right to access a judicial appeal procedure satisfying the requirements of a fair trial pursuant to Article 6 of the Convention”; (and finally) “undertaking to develop common minimum standards that ODR providers will have to comply with, inter alia in order to ensure that their procedures do not unfairly favour regular users over one-time users, and strive to establish a common system of accrediting ODR providers satisfying these standards” .
26. Access to justice via information systems – reducing costs and reallocating resources. As a result of all these innovations aimed at ensuring that the parties have to visit the court building only when strictly necessary, reform of the judicial map to reduce the physical presence of courts in a given area has been implemented or is under consideration in some countries. These reforms are, incidentally, often described as the ultimate advantage of using digital services, since the costs of developing and operating information systems are perceived by States as being far lower than those of procuring and maintaining judicial buildings, and they even produce savings in human resources at the local level.
27. However, some people point out that such a calculation does not necessarily take account of the hidden costs of switching to paperless services. Firstly, this involves a transfer of costs from the operator (the judicial system) to the user (the citizen), the main costs being related to the time spent by the person who inputs data into the information system, a form of transfer observed with most online public or consumer services. Then there are the incidental costs that have an impact on the associated savings, with online access to justice causing a dramatic shift in the role, the services and, consequently, the economic model of the legal and judicial professions. Finally, there are the new costs that have to be incurred for the deployment of a high-quality paperless service in the longer term, for example investing in the new human resource profiles that have become essential for online justice (mostly by recruiting new staff when training or retraining is not enough), although the statutory staff costs for judges, prosecutors and registrars should, for the moment at least, remain unchanged.
28. Operators of other judicial systems point out that simply putting services online is not sufficient to automatically achieve the quality improvement and cost reduction goals which are sometimes set. Making paperless services available involves a considerable long-term effort (and cost) to communicate with the public, through all possible channels, before it can be expected that: i) a sufficient number of citizens are aware of the availability of new tools; ii) the confidence that will enable the public to take the leap and make use of them is built up; and iii) recurring and lasting changes occur in citizens’ habits as far as their relationship with the public justice service is concerned.
29. In contrast to the all-out development of online services, some countries seem to want to limit the possibility of referring a case to a court by electronic means, which they believe could result in trivialising recourse to the courts, leading to a sort of levelling down in relation to the various assistance services and online dispute resolution platforms. The debate among both supporters and opponents of the development of online services is in fact driven by the same questions: how to convince citizens of the benefits and safeguards the public justice service can bring them in terms of the defence of their rights, whether or not the service is paperless. In its Opinion No. (2011)14 on “Justice and information technologies (IT)” the Consultative Council of European Judges points out that “the introduction of IT in courts in Europe should not compromise the human and symbolic faces of justice. If justice is perceived by the users as purely technical, without its real and fundamental function, it risks being dehumanised. Justice is and should remain humane as it primarily deals with people and their disputes” .
30. At any rate, citizens’ perception of fully electronic systems still has to be measured and evaluated in order to establish whether the degree of confidence in online processing is the same as in the case of face-to-face interaction, as regards obtaining information on one’s rights, placing one’s case in the hands of an identifiable representative of an institution and the holding of a hearing by a justice professional in the presence of the various protagonists. This is particularly the case when it comes to assessing the conduct of the parties and their witnesses, which is an exercise undertaken in a courtroom by the competent judge. This approach appears all the more necessary given the need to take account of the specific requirements of individuals who for reasons of age or social status cannot easily access services and do not have a well-developed practical knowledge of digital services and interactions. As the CCJE writes in its aforementioned Opinion: “Not all individuals have access to IT. At present, more traditional means of access to information should not be abolished. Help desks and other forms of assistance within courts should not be removed because of an erroneous argument that IT has made justice ‘accessible for all’. This is a particularly pressing concern as regards the protection of vulnerable persons. The use of IT should not diminish procedural safeguards for those who do not have access to new technologies. States must ensure that parties without such access are provided specific assistance in this field” .
31. The following chart gives a graphical overview of the points made above.
· Provision of information to litigants at all levels made easier (information on physical access to the court, on the way the court is organised and how to bring proceedings, on existing alternatives and on the online monitoring of proceedings; access to the decision as soon as it is delivered)
· Reduction in waiting times at “physical” court reception desks or some journeys rendered unnecessary
· Online settlement of some disputes before bringing proceedings in order to relieve the courts of simple cases
Points to note
· Maintenance and durability of data, especially archives
· Significant reinvestment in human resources through recruitment or training plans for the new services proposed
· Account to be taken of the growing number of online dispute resolution (ODR) services provided by the private sector complementing or competing with the public sector
· Integration of access–to- justice tools into the general information system of the judicial services
· Rethinking the judicial map and investment in buildings in the light of the migration of some uses of the building to the court’s online space
· Online court referrals: care must be taken to ensure that accessing justice is not trivialised
· Threatens the future of officers of the court, who are no longer obligatory intermediaries between the court and the litigant
· Perception of parties to proceedings: will they feel listened to and treated fairly if the alternative dispute resolution or judicial process takes place online? Might the potential character of the proceedings be affected?
· Retrieval by private companies of open judicial data for purposes other than access to the law
Austria: COURTPUB – Online publication of decisions (commercial courts) and single-window commercial information service [source: 2006 Crystal Scales of Justice]
Spain: Redabogacia – "One-stop-shop" for filing an application for legal aid via a physical reception desk and online access [source: 2014 Crystal Scales of Justice]
Estonia: AET – Online service for initiating proceedings and tracking information on a case, including the transmission of documents and an online fee-payment service [source: 2014 Crystal Scales of Justice]
France: Justice.fr – Dynamic Information portal for litigants enabling them in particular to identify the court responsible and download the relevant referral forms [source: 2016 survey]
France: Sagace – Administrative service enabling the litigant to consult summary information on his/her legal case [source: 2016 survey]
France: Consultation Avocats – National platform for consulting a lawyer (by appointment, by telephone or email) whose services are then covered by a fees agreement [source: 2016 survey]
France: JuriCA and JuriNET – Case law database of the appeal courts in civil and commercial cases (JuriCA) and the Court of Cassation in all cases (JuriNET) [source: EVAL 2016, 2014 data]
France: Medicys – Online mediation platform for consumer disputes provided by the Chambre Nationale des Huissiers de Justice de France [source: 2016 survey]
Lithuania: TEISMAS – Justice information portal facilitating communication with litigants via email alerts, the litigant can sign on to a secure server [source: EVAL 2016, 2014 data]
Netherlands : Rechtwijzer – Conciliation and mediation platform in advance of all proceedings concerning disputes involving human relations, especially lease related, neighbourhood or family disputes [source: 2015 Crystal Scales of Justice]
Council of Europe countries – European Court of Human Rights: HUDOC – Access to all of the Court’s case law via an advanced search engine [source: 2016 survey]
Council of Europe countries – European Court of Human Rights: Webcasts of hearings – broadcasting of the Court's hearings on the Internet and provision of case data in several languages [source: 2016 survey]
EU countries: e-Justice Portal – information portal on European legal systems (judicial systems and professions, European case law) with a single identification number for court decisions in Europe [source: 2016 survey]
EU countries: Portal for the online resolution of consumer disputes – platform to enable communication between parties to a cross-border consumer dispute in Europe [source: 2016 survey]
United Kingdom: Make a plea – service for pleading guilty online to traffic offences, thus avoiding the need for the citizen to travel to the court when the offence is not disputed and enabling a court decision to be obtained within a shorter timeframe [source: 2016 survey]
Turkey: UYAP – Centralised information system providing an information portal on the legal system and procedures, with notification of events to users by SMS [source: 2008 Crystal Scales of Justice]
Table 1: Communication between courts and users in 2014
Source: “European judicial systems: efficiency and quality of justice: Use of Information and Communication Technologies in European Judicial Systems”, CEPEJ Studies o. 24, 2016 Edition (2014 data) – question 64 of the evaluation questionnaire
32. The development of information systems that facilitate citizens’ access to justice could not succeed without the underlying extensive electronic communications between the various institutions involved in handling litigants’ cases: court-to court, between the courts and various State services and, naturally, also with officers of the court. Many judicial systems have therefore made improvements to communications between courts and with professionals the key focus of their digital strategy. The quality expected of justice is understood here to be more fluid communication enabling an individual’s case to be dealt with more quickly and, of course, more reliably.
33. While it has long existed, the consultation of computerised registers maintained by various administrative bodies (such as criminal records, land registers or personal insolvency registers) is now carried out directly by electronic means, either by sending a request to the department concerned or through direct access to data via one’s computer. The compilation, updating and remote consultation of registers was felt to be a real challenge in some countries but is nothing compared with the now increasingly widespread use throughout Europe of electronic communications between all the players involved in court procedure. This is an even bigger challenge, as these players belong to various public or private professional organisations that must be consulted at the moment when each organisation is required to adapt to new working methods. This is moreover a challenge in terms of the legal issues surrounding such communications, which are of crucial importance for citizens.
34. In most countries, lawyers are now able or will soon be able to communicate, entirely electronically with the courts for the transmission of their procedural documents, submissions or other case-file documents. Migration to a fully electronic system, which has been experienced as a major undertaking by all the countries that have embarked on it, generally comprises two stages: the establishment of secure communication through normal electronic mailboxes, which means that data have to be processed by a member of staff at the point of entry to the court system like any other mail unless already delivered in digital form together with the relevant documents, and the direct input of the lawyers’ documents into the court’s information system (“e-filing”) without data being input or transferred at the point of entry to the court system by a member of staff, who in this case merely verifies their submission and their legal effects (opening a case file, interruption of a limitation period, etc.). The most advanced systems clearly reduce the work of court registries, and some countries are considering refocusing this work on high-value legal activities and assistance for judges and prosecutors.
35. Some countries have extended the possibilities for communication with the courts by establishing specialised portals open to other officers of the court, such as bailiffs (or other recognised enforcement officers) and experts. Electronic communication with the former makes it quicker and easier to monitor the execution of judicial decisions. As far as the latter are concerned, the filing of their reports in a shared space open to the court and the parties within a deadline set by the IT system enables the information to be transmitted with no disparities, and, according to the system's current users, permits more discipline in performing their tasks. In certain countries judicial service providers in general, first and foremost court-appointed experts or interpreters, now have access to a forum for sharing information with members of the judiciary and registries, thus enabling the ordering and payment of services to be speeded up and rendered more efficient via a single system, here too streamlining the ways in which those concerned work together.
36. In some countries, the hearing preparatory phase is totally paperless: judges and lawyers now send their written submissions solely electronically. Some countries are even considering the possibility of holding preparatory and directions hearings in different locations, with everyone – the judge and the representatives of the parties – communicating with one another by videoconference from their normal place of work or the closest connection point permitted by the system.
37. The only limit to dematerialisation concerns the judgement hearing, for which the physical presence of the parties (or their representatives) still seems to be required. This is very clearly the case regarding criminal trials in most countries, but with some variations with regard to civil or administrative proceedings. Although remote court appearances are encouraged in some situations (in criminal cases, the savings on transfers and the convenience for detainees are often emphasised) certain, primarily legal, obstacles are encountered as far as the judgement hearing is concerned. However, there are also a number of obstacles regarding the quality of the justice rendered in this way: investments in videoconferencing equipment are deemed far from satisfactory in many countries as regards the quality of the hearing, and the situation cannot improve until the premises used for court appearances have been overhauled at both ends of the chain. The addition of a camera and screen, or even several cameras and screens, is not enough if they are not supplemented with suitable protocols and appropriate court procedures.
38. As they have developed, information technologies have therefore enabled the arrangements for co-operation between the courts and the judicial professions to be redefined. Many people consider that they have thus provided an opportunity to review working methods in each of the professions concerned. More often than not, the primary aim of paperless or paper-light systems was to bring about a reduction in processing costs associated with generating and handling paper documents in both courts and law firms. The work of court registries in particular has been transformed in some cases, while specialised assistants have been appointed in others. The standardisation of communication patterns can produce considerable efficiency gains and in some cases has enabled staff to be redeployed between different types of court affected to a greater or lesser extent by the automatic processing of certain tasks. “Change management” policies may have been lacking or, on the contrary, may have aided the transition in cases where the organisational and human consequences of the new methods of communication with the courts’ partners have been anticipated as early as possible. Judicial systems have accordingly sought to make the development of electronic communications a means of speeding up the transmission and processing of information, ultimately transforming IT into a common structural element of legal procedure and of work organisation between the various operators involved.
39. This new type of communication has required major changes to all the organisations’ structural elements. Firstly, legislation has had to be adapted so that electronic communications can have the desired legal effects (interruption of limitation periods, for example) and has been brought into line with new time constraints (with conclusions no longer delivered “at the last minute” but “at the last second”) in order to continue to comply with the adversarial principle. The second change concerns everyday practices, with some countries pointing out, for example, that the limits on the volume of attachments inherent in the IT system sometimes make a lawyer’s work very difficult. However, paperless communication also necessitates very good co-ordination between IT services from one end of the institutional chain to the other (courts and bar associations, for example) in order to ensure technical consistency and, of course, data security in view of the confidential nature of the interchange in question. Accordingly, and especially in the case of cross-border procedures, lawyers are confronted with new dilemmas regarding the right to (electronic) evidence and the harmonisation of codes of ethics in order to make paperless communication at least as secure as paper-based communication. Generally speaking, the development of paperless communications forces every country to consider the particular nature and role of digital evidence by enacting the appropriate specific legislation.
40. An argument frequently heard regarding the development of electronic communication between professionals concerns the level of security. Some countries believe the justice system is vulnerable owing to the increasingly sophisticated and ever more numerous cyber-attacks to which administrative bodies are exposed, whereas others put this development into perspective by pointing to all the vulnerabilities and damage caused in the past by the paper system. One thing is certain: the vulnerabilities in the two systems – paper and digital – differ. Everyone underlines the need for proper means of protection and control and emphasises the importance of providing all staff with IT security training for online communications. Many means are deployed at the level of the State itself today and can, of course, be relied on by the judicial services, while at the same time raising the issue of the particular nature of the data they process. Attention is also drawn to the need to ensure that other State services cannot access judicial systems' substantive content. But data security would not be complete if we were not capable of ensuring its integrity, i.e. the quality thereof for an administrative body - that of justice –in which the confidence that the citizens have in its functioning and its decisions is a key driver
41. The following chart gives a graphical overview of the points made above.
· Cost reductions, speed of processing
· Organisational simplification
Points to note
· Technical compatibility and reliability of the system between different entitles
· Change management policy to be rigorously determined
· Effects of blocking the communication chain in case of failure
· Definition of common communication patterns (starting from court services and continuing to all the services involved in the operation of the judicial system)
· Considerable loss of time in the event of an uncontrolled technical failure
Germany: Electronic Court and Administration Mailbox at the Federal Patent Court – System of mailboxes that enables exchanges with the Federal Patent Court and archiving to be carried out entirely online [source: 2016 survey]
Germany: RegisSTAR – Electronic system for the management of commercial register data, accessible by citizens [source: 2016 survey]
Germany (Lower Saxony): elektronische Justiz Niedersachsen (eJuNi) – System available in the Land of Lower Saxony to provide support for the transition and switch to a fully paperless environment in Germany [source: 2016 survey]
Austria: ERV (Elektronischer Rechtsverkehr) – Online court referral system linked to the case management system [source: 2016 survey]
Bosnia and Herzegovina: Judicial Information System – Multimedia electronic communication system for the exchange of data and documents between professionals, linked to the case management system [source: 2016 survey]
Croatia: Electronic collaboration between national registers – Space interconnecting the various national registers of interest to the justice system and enabling the latest information available of relevance to a decision to be shared in real time [source: 2016 survey]
Spain: Electronic judicial auctions– Online judicial sales platform [source: 2006 Crystal Scales of Justice]
Spain: Lexnet – Advanced case processing system permitting exchanges of documents and the use of electronic signatures [source: 2012 Crystal Scales of Justice]
Estonia: E-Toimik (e-File) – System of advanced electronic communication between the courts, prosecution services, police, prisons, probation services, bailiffs, legal aid offices and Customs services, involving the exchange of case documents and moving towards totally paperless functioning [source: 2014 Crystal Scales of Justice]
Estonia: Digital Payment Order Procedure – Semi-automatic orders-for-payment case management system, enabling the assistant judge in charge of this type of case to process data in a paperless environment, from the initiation of proceedings to the communication of the decision [source: 2016 survey]
France: RPVA (Réseau Privé Virtuel des Avocats) and E-Barreau – Platform for communications between lawyers, via their bar associations, and the courts in civil matters through its equivalent the RPVJ (Réseau Privé Virtuel Justice – Private Virtual Justice Network) [source: 2016 survey]
France: EIA – Inter-application exchanges between the Ministry of the Interior and the Ministry of Justice for the processing of criminal proceedings [source: 2016 survey]
France: OPALEX – Entirely paperless communication platform between experts and the courts in civil cases, which lawyers can also access to consult reports as soon as they are submitted [source: EVAL 2016, 2014 data]
France: CHORUS Portail Pro – Portal that permits the management and payment of service providers by the courts [source: EVAL 2016, 2014 data]
France: Télérecours – Online system for the commencement of proceedings available to lawyers and administrative authorities for all administrative disputes [source: 2016 survey]
Ireland: Digital Evidence Bundles – System for the digitisation of cases, including evidence, supplied in a single indexed and navigable PDF file for use at a hearing [source: 2016 survey]
Ireland: Remote Witness Video Conferencing – System available for vulnerable people, supervised by the judge in charge of the hearing [source: 2016 survey]
Italy: PCT (Processo Civile Telematico) – System for the communication and submission of electronic documents between lawyers and the courts in civil cases [source: 2016 survey]
Latvia: TIS (Tiesu informatīvā sistēma) – System allowing vulnerable people to give remote testimony by videoconference, supervised by the judge in charge of the hearing [source: 2016 survey]
Lithuania: e-Services System – Fully electronic system of communication with parties, including the payment of court costs and fines as well as consultation of audio recordings of hearings [source: 2016 survey]
Moldova: Integrated Case Management System (ICMS) – Computerised case management system, including a function for randomly allocating cases to trial and appeal court judges [source: 2016 survey]
EU countries: E-CODEX – Tools for interconnecting European systems of justice, available to States for the circulation of data and the management of cross-border cases [source: 2016 survey]
United Kingdom: Crown Court Digital Case System – DCS – Collaborative case management system for the Crown Prosecution services. Can be shared with court registries, defence lawyers and judges [source: 2016 survey]
Slovakia: Electronic Case File – Computerised case and timetable management system, linked to a case law database, available in some cases for the electronic production of documents [source: 2016 survey]
Table 2: Communications between courts and professionals in 2014
Source: “European judicial systems: efficiency and quality of justice: Use of Information and Communication Technologies in European Judicial Systems”, CEPEJ Studies o. 24, 2016 Edition (2014 data) – question 64 of the evaluation questionnaire
42. This third example of the use of IT within the courts of Council of Europe member States focuses on the work of judges, prosecutors and registrars. There is no denying the importance attaching to information systems when it comes to aiding the work of lawyers, for example, and it is clear that a number of IT applications are today transforming both the practices and the structure of the profession, as mentioned above. Although some tools are common to all the legal and judicial professions, the focus here will be on court organisation and the support that IT can give to the actual work of a court.
43. IT first began to have an impact in the courts by replacing typewriters for the drafting of decisions, as well as by automating a number of repetitive tasks. Non-judicial staff and non-prosecutorial staff, who assist judges, followed by judges and prosecutors themselves, have made use of these tools so as to achieve considerable productivity gains as regards mass litigation. More recently, legal practitioners have used IT as an aid for the substantive aspects of their intellectual legal work, since it has become the key tool used by judges, prosecutors and registrars and a vehicle par excellence for improved legal certainty.
44. Access to extensive knowledge bases has helped to make judges better equipped for their work. They mainly consist of legislative and case law databases that have been enriched over time and now facilitate searches through bodies of law and make a larger amount of data available to practitioners. Some regard this as progress in terms of legal certainty because the same, and all, sources of law are disseminated to the entire professional community, especially since these databases tend to develop in a number of countries and are in their format open to all public and free, around a public service of legal data. Others perceive it as a drain on efficiency, because these databases bring along a significant increase in the number of sources and quotations included in lawyers’ written submissions, with an attendant loss of hierarchical order regarding the authority of judicial decisions in particular, a phenomenon specific to the construction of these databases. In some countries the development of databases is alleged to have helped change the legal reasoning of practitioners, whose argumentation is less principle-based and more case-based as a result of the profusion of references to past judgements. In the context of computerised knowledge bases, mention can also be made of the development of online learning methods underway in European schools and training establishments, which in the case of the most recent platforms add multimedia and interactive learning formats to existing virtual libraries – tools that very broadly disseminate details of judicial practices and experience among all professionals, expanding upon the mailing lists that began to develop between judges at the early days of the Internet.
45. The possibility of remote access to electronic court records amplifies cooperation arrangements within courts. Initially designed for sharing information within the department concerned, access to electronic files now not only permits information to be shared between departments (when legally possible) but also enables judges in some cases to work from any location, such as their home or an office made available at a place other than the court in which they sit, while at the same time remaining in contact with their colleagues and using the same work tools. This has made it possible in some cases to adopt a new approach to the office space available in court buildings, whereby the permanent physical presence of staff on the court premises has become an optional working arrangement. A reduction in the amount of office space or the introduction of office sharing has been accompanied by an increase in, or designation of spaces for, social interaction. According to some sources, although online work increases flexibility and efficiency in many cases, it must not have the effect of eliminating the need for physical contact between professionals at the level of the court, or of reducing their number, but should instead serve as a reason for redefining the conditions under which they are received by the courts.
46. The use of IT tools for procedural measures outside the courtroom increases the judge’s powers and effectiveness when travelling. As in the case of the police services and all the professions (such as bailiffs, when travelling, and courtroom lawyers) it has become possible for judges to work outside the office thanks to the development of mobile apps and the general availability of access to secure Wi-Fi networks. These ‘mobility’ tools make it possible to broaden the scope for judges to take on-the-spot evidence (for example, at a crime scene or a place where evidence is recorded) by making it easier for them to exercise their powers immediately and to take a better informed, approved and immediately communicated decision. For instance, through a direct interaction on the spot with the person whose consent or signature is obtained, in the case of a guardianship court. They also reduce the time taken to process information, an operation that does not have to be repeated on the judge’s return to the court. In criminal cases, the consultation of criminal records from the place where the offence has been committed can provide better knowledge of the past history of the individuals concerned (especially given the interconnection of European judicial records) and thus improve prosecutorial decision-making.
47. Judges’ use of judgement templates and guides is proving to be a factor for ensuring the consistency of judicial practices. The use of templates has enabled many courts to maintain a good standard of efficiency with regard to processing simple and repetitive cases. Together with grids for analysing cases by subject-matter, which serve as guidance for judicial reasoning, they ensure more consistency in judicial decision-making, which some believe leads to more equal treatment and greater predictability for parties to proceedings. IT enables knowledge and practices to be shared within a professional community (judges responsible for supervising the execution of sentences, district judges, family court judges, etc.) in order to make better use of the collective intelligence of judges and prosecutors and disseminate good practices as standards to be met, so that the best practices benefit the greatest number of people. It would therefore seem appropriate that templates should initially be based on sharing and exchanges between several judges and lawyers, be regularly updated and on no account result solely from the input provided by legal or software publishers.
48. IT has gradually developed as a means of facilitating decision-making, enabling easier access to a mass of information or making a complex case more easily understood. In such a context, decision-making by judges and prosecutors can be both strengthened by the amount of additional information made available to them to bring their case to a close, and strongly influenced by the profusion and nature of the information generated by IT systems and the links between individual items. Belief in an item of information as being the most recent and most reliable (linked to the methods of bringing cases before the courts) and the structuring of the information which is invisible to the user but presents the results of an application or evidence in a hierarchical manner (linked to the supposed neutrality of the algorithms): all of these elements are inherent in the information system and must therefore not only be guaranteed in terms of quality and neutrality but also brought to the knowledge of users in a format they understand. This applies especially to judges, whose independence when reaching a decision also depends on their ability to exercise caution with regard to the information system available or to free themselves from its constraints. As the CCJE notes in its aforementioned Opinion (2011)14: “The aids to judicial decision must be designed and seen as an ancillary aid to judicial decision-making, and to facilitate the judge’s work, not as a constraint. (…) Instructions, templates or other suggestions as to form or content of decisions should not be addressed to judges by whatever other authority on the basis of needs reflecting the architecture of IT systems to be employed in the judicial process; rather, this architecture should be flexible, and ready to adjust to judicial case-law or practices” .
49. Respect for the principle of independence nonetheless requires that all judges can and must ultimately reach a personal decision after a reasoning process for which they must be able to assume personal responsibility, without regard for the IT tool used. The use of templates and guides to deliberations must therefore not deprive judges of their decision-making capacity at any point in the chain by imposing on them a form of reasoning from which they may not depart if they so wish, or by confronting them with a workload that gives them no opportunity to reconsider the form of reasoning inherent in the IT tool. The European Court of Human Rights, while accepting that judges may resort to simplified deliberation processes in some circumstances, points out that they continue to be duty-bound to conduct a proper examination of the submissions, arguments and evidence adduced by the parties. In its aforementioned Opinion (2011)14, the CCEJ is categorical on this: “IT must not prevent judges from applying the law in an independent manner and with impartiality (…) over dependence on technology and on those who control it can pose a risk to justice. Technology must be suitable for the judicial process, and for all aspects of a judge’s work. Judges should not be subject, for reasons solely of efficiency, to the imperatives of technology and those who control it” .
50. A guarantee of the adversarial principle and equality of arms must also be provided in the same way as in proceedings without IT in the light of the technological tools made available or which may be used by all the parties at their own discretion. The proceedings at the hearing stage must grant all the parties access to the same tools (for example, a tool for carrying out searches in a digital file) and guarantee that the technical limits imposed by the IT tool do not adversely affect the parties’ rights and privileges. As the CCJE points out, “the use of IT should not, however, diminish the procedural safeguards (or affect the composition of the tribunal) and should in no event deprive the user of his/her rights to an adversarial hearing before a judge, the production of original evidence, to have witnesses or experts heard and to present any material or submission that he/she considers useful” . The judge must at any rate be careful to ensure that no party is placed at a disadvantage as compared with another just because it does not have the resources to access the technology, especially electronic document management when the case-file is particularly voluminous, and also, for example, in the event of reconstruction of the facts by means of computer-generated images in a liability case.
51. The use of big data as an aid for judges heralds the emergence of predictive justice. This is a trend that is underway in some countries, where big data analysis tools are intended to provide support for prosecution, sentencing or compensation policies or help to anticipate the effects of a judgement (criminological analysis of a population or territory, scales for the payment of maintenance or compensatory allowances, assessment of the risk of re-offending). Some tools enable sophisticated analysis of case law in order to inform judges how likely it is that a decision in one direction or another has been taken by their peers. Other tools enable the situation to be put into context using statistical data unrelated to the case. With this type of system, the judge’s own input into the judgement may be either supported or skewed by the effects of over-determination or “anchoring”. The greatest caution must be exercised to these effects, as well as the nature of the data when it is not strictly the case law (e.g. the identity of judges, for profiling purposes).
52. The following chart gives a graphical overview of the points made above.
· Improvement in the formal quality of decisions
· Access to large legal data bases
· Time saved by the electronic administration of evidence
· System facilitates remote working or the fairer distribution of cases among judges
· In criminal cases, guarantee of acquiring a good knowledge of the past history of the accused to increase the number of individually tailored decisions
Points to note
· For pre-established templates, ensure their quality (working group) and regular updates
· Design tools in such a way that the judge retains the possibility of taking back control over the system at all times
· Lever to improve the dissemination of case law
· Harmonisation of practices with regard to the drafting and reasoning of judgements
· The decision should not be influenced by the constraints of a computer system
· The system should not undermine the independence of judges or cause a breach of the equality of arms between the parties
· When designing databases, need to ensure the neutrality of consultation criteria and that users understand them
· Risk of depriving the judge of his/her decision-making capacity or of confining his/her power to judge within too formal a framework (as a result of an excess workload leading to automation of the tasks performed or reliance on standard judgements)
Germany (Brandenburg): SAS - Justice used in the Public Prosecutor’s Offices – Document templates and drafting assistance for prosecutors, including a voice input system and linked to a prosecution management system [source: 2009 Crystal Scales of Justice]
Germany: forumSTAR – System designed to facilitate the work of all judges and communication between judges on the basis of easy-to-use professional modules [source: 2016 survey]
Azerbaijan: e-Court system – Case management tool coupled with decision templates [source: 2014 Crystal Scales of Justice]
France: OARM – Drafting aid based on decision templates and ready-for-use arguments used in family cases [source: 2016 survey]
France: Persée – Tool developed for use with tablets to provide assistance with preparing and holding criminal hearings, including a function for integrating case data and documents into the diary, as well as assistance with drafting decisions using templates shared with professionals, a complete legal and case law database and samples of reasoned arguments [source: 2016 survey]
Ireland: Winscribe – Dictation system with voice recognition available on request to Supreme Court, Court of Appeal and High Court judges [source: EVAL 2016 –2014 data]
EU countries: ECRIS – European Criminal Records Information System, which organises the sharing of information between the EU member States concerned [source: EVAL 2016 – 2014 data]
United Kingdom (Scotland): Judicial Hub– Online training and collaborative work platform open to all judicial staff and accessible from different types of device [source: 2015 Crystal Scales of Justice]
United Kingdom: Professional Court User Wi-Fi – Equipping of criminal courts with Wi-Fi access for professionals on a secure network, available for use during a hearing (data consultation, document sharing) [source: 2016 survey]
United Kingdom: In-Court Presentation– Equipping of courts with means of easily connecting the computers of professionals to the on-screen courtroom-sharing system for the presentation of arguments and evidence in multimedia format [source: 2016 survey]
United Kingdom: HMCTS Store and Magistrates Bench Devices – Secure file-sharing system based on cloud-computing technology, the aim being to permit the electronic transmission of documents between the prosecution services and the court in criminal cases as they are presented at the hearing on a connected tablet [source: 2016 survey]
Table 3: Direct assistance for judges, prosecutors and registrars in 2014
Source: “European judicial systems: efficiency and quality of justice: Use of Information and Communication Technologies in European Judicial Systems”, CEPEJ Studies o. 24, 2016 Edition (2014 data) – question 64 of the evaluation questionnaire
53. Court administration tools are mentioned last, even though in their simplest form they were among the first uses of information technology in courts. From simple recording of the number of cases dealt with by a court to today’s systems for managing all judicial activities, the power of IT has resulted in dramatic changes in the field of judicial administration, as it provides chief administrators of courts as well as all judges, prosecutors, registrars or other members of court staff with comprehensive information on their work and the ability to analyse it. The ever-increasing quantity of information generated by more and more numerous IT applications constitutes an unprecedented reservoir of data and metadata for running a court and has become a key component everywhere. It is in fact a real backbone of judicial work.
54. The use of information systems for the administration of justice goes back several decades and has undergone many developments as IT has itself developed, and experienced a number of failures too. These failures, rather characterised, depend sometimes on details, and can be summarized to the following frequent cases encountered by the European judicial systems: inadequate documentation or no documentation allowing full appropriation of the system, particularly when it is supplied by a service provider; the use of out-dated or marginal technology causing the rapid obsolescence of the information system in which it was invested; partial or insufficiently rapid development of the information system leaving different situations over a too long period, which at the end makes impossible a proper management ; insufficient training or underestimated means causes that the best system in the world has no chance to be really invested by its users; an inadequate analysis of the needs finally leads to a marginalized product favouring t old practices; a lack of assistance for users to quickly correct recurring errors or defects in the system in the early days of its deployment. The state of development and especially the quality of IT system of administration of justice vary at present amongst the judicial systems of the Council of Europe. The first to have embarked on this course are not necessarily the most advanced today, as they are burdened by big investments in old IT applications that are still operational and continue to carry out the role assigned to them at the time but permit neither extensive updating nor additional functions, let alone interconnections with other, more recently developed, application software. In other cases, judicial systems comprise a variety of courts, for each of which it has been, or still is, necessary to develop specific administrative tools. Whatever the level of computerisation achieved and the extent of the difficulties encountered in the past, all judicial systems without exception seem to have set about constructing “new generation” systems for the administration of justice that promise to achieve unsurpassed managerial efficiency.
55. Case management was the first area to be computerised and this happened faster and more extensively than in any other area. By replacing the management of paper registers with electronic databases managed by staff duly trained for the purpose, case management systems have improved over the years and put behind them the frequently unfortunate experiences of their early days. Initially designed as separate, closed systems, these applications are today at the heart of judicial organisations and regarded as the core of a larger information system that integrates or brings together some very advanced features based on the import and export of data generated by other applications. Case management systems, which are of key importance for court administration and the allocation of the resources needed to try cases according to case flow and backlog data, produce the main input for the statistical apparatus available to courts, ministries and judicial councils. They naturally also serve as benchmarks for court registrars and staff as far as the situation in their own offices is concerned. As they are connected to personal assistance tools, the most advanced systems enable the monitoring of a case to be linked to the various applications already mentioned: hearing schedule, summons systems, electronic document management, decision templates, etc.
56. These tools have, even more than others, facilitated the dissemination of the principles of New Public Management within courts by structuring the work of registries in particular around new work organisation patterns. This has also affected the work of judges, for whom some countries have developed assessment policies based primarily on quantitative criteria and on objective measurement by means of information technology. Generally speaking, the statistical and IT tools to aid decision-making have enabled numerous schemes for modernising performance-based public management policies to be supported: annual distribution of budgetary and human resources correlated to case flow and backlog data, for example, by the administrative body that allocates the resources, plus distribution of resources during the year by the head of court. These tools have also enabled Active Case Management solutions to be developed. These are solutions that make it possible, for example, to correlate the progress of a case with the procedural timetable, permitting precise calculation of the case timelines, analysis of actions undertaken by the parties and a system to issue alerts regarding the urgency of taking action in a particular case – tools put in place that, in particular, make it possible to anticipate breaches of the reasonable-time rule enshrined in Article 6 of the European Convention on Human Rights.
57. Court administration applications, which are associated with tools for communicating with users and professionals and for assisting court staff, are at the very heart of a judicial information system as they can potentially breathe life into all these components and harmonise all the procedural and data models, thus structuring professional practices and local policies around the flow and analysis of information. As the information technologies are becoming a vital court reorganisation tool owing to their ability to modify simultaneously the entire processing chain in all its dimensions (organisational, human, budgetary), their development is proving particularly important in strategic terms. It must not be left in the hands of programmers alone and needs to involve all users.
58. The development of complete information systems makes the method of electronic administration a key source of vulnerability for judicial activities. This vulnerability is twofold in nature: it can be both due to human error and IT-related. Many countries, even the most advanced, appear to be experiencing significant problems regarding the quality of recording of data in the information system, and such problems often remain an obstacle to the full, trouble-free use of the potential of IT. The information input stage is error prone (producing not computer errors but "bugs" in judicial procedures) and can be seen to constitute an even more important issue than the tendency of all users not to question the result produced by the machine. Data quality policies accordingly need to be put in place at both the national and local levels. For example, attention needs to be paid to the training and qualifications of data input staff, random samples should be taken to test the quality of data packets, and it is necessary to raise the awareness of everyone involved. Also, as regards human errors, significant differences between figures produced by IT applications and the perceived reality within courts raise important questions. Although they too can be ascribed to incorrect recording of the information, either because the software is not very user-friendly or because staff are insufficiently trained or qualified, analysis of data and, especially, their interpretation by senior judicial administration staff and users must not only be of a high standard, but must also be transparent and based on shared methods if they are to constitute genuine management tools accepted by all concerned.
59. As far as IT system vulnerability is concerned, while full systems have clear advantages in terms of data consistency, the resulting concentration entails many risks, and the system's technical reliability must therefore be rigorously guaranteed (by ensuring widespread availability of the necessary infrastructure), which can lead to considerable maintenance costs. The non-availability of such applications, which are real driving forces for making the courts more efficient, is a risk that must be seriously taken into account by judicial systems as it can quickly lead to the creation of a large backlog and jeopardise the expected benefits (in addition to the financial costs involved in an urgent response). As the Consultative Council of European Judges points out, “it is particularly important to ensure that difficulties in the functioning of IT do not prevent the court system, even for short periods, from taking decisions and ordering appropriate procedural steps. Appropriate alternatives should always be available whenever the IT system is under maintenance, or when technical incidents occur, in order to avoid any adverse impact on court activity” .
60. The developers of the most efficient IT systems have apparently foreseen several measures to counter a sudden total breakdown. First of all, the system is designed around software building blocks that communicate with one another. It is then possible to interrupt the operation of one of these communications for security or maintenance purposes instead of bringing the whole system to a halt (at the same time, this modular construction enables tools to be gradually made available and blocks to be updated and renewed one by one). Precise, clearly established protocols that are known to everyone and are tried and tested (both technically and at the legal level) must also be put in place to remedy a possible breakdown and clear the way for the system to be up and running again at the earliest opportunity, at the least cost and with the least possible damage to the service and its users. This means that all staff have to be trained for this even though the risk of an IT failure may be considered minimal.
61. The transition from paper files to fully electronic court files is, however, far from being completed in the Council of Europe member States. Paper-based files are still a physical reality, indeed essential, in most European courts. This is mainly for evidence purposes since not all countries attach the same weight to paper evidence and its paperless equivalent. The same applies to documents exchanged between the parties and placed in the files, which in this transition period entails digitisation procedures and costs, followed by archiving procedures and costs, which are redundant compared with the costs of investing in and running IT systems under development. Countries therefore now very often maintain two management workflow systems: paper-based to ensure the evidentiary value of documents and paperless for easier and swifter communication (essential in particular for large files). The prospect of justice with no paper (or almost) remains an objective for all countries, not without noting that the transition process will take time, and sometimes without knowing precisely if and when the goal is reached.
62. The managing and handling of paper documents and any remaining physical media can be facilitated by employing a tagging system, such as use of labels that can be scanned for incorporation into databases or, even better, a system where files, documents and seals are marked with RFID chips. The ability to geolocate files, documents and seals in real time on a map of a judicial building, and possibly outside the building, significantly improves document management performance according to those who use a judicial system that offers this possibility.
63. One fast-developing field is that of making audio and video recordings of hearings on a digital medium for the use of the court and the parties. The assumptions is that this enables the administration of justice to be carried out more efficiently when combined with the case management system and with the tools available to professionals (judges, registrars and, sometimes, prosecutors and lawyers), such as note-taking tools, and, of course, the record of the proceedings. The idea of recording proceedings from end to end, including the possibility of supplying a recording of the delivery of the decision as an enforcement order, or of using the recording of the trial as a support for the appeal proceedings is currently gaining momentum in a number of countries. This development, which certain judicial systems are already undergoing to varying degrees, is raising a number of new, IT-related issues (data integrity, survivability and security), for example when it comes to archiving all these multimedia data stored on servers. It also brings about other, more profound, non-IT related changes, in terms of modifications to court rituals, the necessarily greater importance attached to the orality principle in proceedings or the role devolving to appeal proceedings and other legal remedies in general on the basis of recordings.
64. The following chart gives a graphical overview of the points made above.
· Improvements in the efficiency of the courts
· Increases in or redeployment of staff (full time equivalent) by reducing duplication of effort
· Reduction in court operating costs
· Improvements in judicial activity statistics
Points to note
· Equipment’s technical reliability to be ensured and maintained
· Change management policy to be strictly defined
· Quality of data input to be supervised to avoid statistical distortions
· Thin line between the performance of the court as a whole and that of each individual (especially the judges) and consequences for assessing judges’ work
· Driving force for the reorganisation of a court’s operation
· Definition of management objectives and real-time monitoring of court’s performance
· Integration of CMS applications into a more extensive information system (especially with electronic communication)
· Considerable loss of time in the event of a breakdown
· Considerable financial losses if the deployment fails
· Concentration on the court’s quantitative performance to the detriment of its qualitative performance
Albania: ICMIS – System for the fully computerised tracking of cases brought before the courts [source: 2016 survey]
Azerbaijan: e-Court system – Case management tool coupled with decision templates [source: 2014 Crystal Scales of Justice]
Finland: Sakari – Integrated system for the management of the criminal justice chain between the courts and prosecutors’ offices [source: 2016 survey]
France: Cassiopée, Minos –Combined criminal case management tools for the trial stage (covering both the activities of the Public Prosecutor’s Office and of the court), structured exchange of data on judicial proceedings with the investigation services of the Ministry of the Interior in order to reduce data entry operations [source: 2016 survey]
France: PHAROS – System for monitoring the work of trial and appeal courts, integrating quantitative and qualitative parameters and involving the production of management information schedules and comparative data specific to the type of court [source: 2016 survey]
France: Pilot – System for managing the schedule of hearings and the resources allocated to them [source: 2016 survey]
France: OUTILGREF – Tool for the management and distribution of work among registry officials. Application for assessing the workload of registry staff and courts’ staffing requirements on the basis of indicators that measure the case flow at the court concerned [source: EVAL 2016, 2014 data]
Georgia: COURT – Integrated case management system with work space for professionals and communication by Internet [source: 2016 survey]
Greece: ICMS-AJ (Integrated Case Management System for Administrative Justice) – Computerised system for the management of cases before the administrative courts in the form of a portal open to parties, together with a system for the electronic exchange of documents from one procedural stage to another and, finally, the production of case statistics, all available in several languages [source: 2016 survey]
Norway: LOVISA – Advanced case management system enabling each judge, especially the court president, to ascertain the status of a case and the number of cases currently being dealt with by each judge. The system includes the proactive management of procedural deadlines using colour coding [source: EVAL 2016, 2014 data]
Poland: Audio Protocols in Courts – Recording of hearings with an indexation system linked to the case management interface and to the notes taken during the hearing by the judge and the registrar [source: 2016 survey]
Poland: Informationmanagement system based on RFID technology – Systematic labelling of documents and paper files of proceedings for geolocation purposes [source: 2016 survey]
Portugal: CITIUS – Combined case management and communication system in the form of a single portal for the interconnection of applications used by justice professionals, part of which can also be accessed and navigated by the public [source: 2016 survey]
Portugal: SITAF – Equivalent of the CITIUS portal for administrative and tax courts [source: 2016 survey]
Slovenia: Judicial Data Warehouse and Performance Dashboards – Tool for the real-time monitoring and management of the activities of the Supreme Court [source: 2012 Crystal Scales of Justice]
Slovenia: EVIP – Centralised case management system [source: 2016 survey]
Slovenia: Presidents’ Dashboards– Complete statistical information tool enabling court presidents to ascertain the allocation of resources and productivity within the court in real time [source: EVAL 2016, 2014 data]
Switzerland: Judicial statistical database – System enabling the cantonal judicial authorities to make comparisons, if desired, with other cantons in order to justify requests or provide the reasons for a request or document specific judicial organisation projects [source: 2016 survey]
Turkey: UYAP – Centralised case management and information system on the state of proceedings in the form of a portal for both professionals and litigants, including a large number of interactive functions [source: 2008 Crystal Scales of Justice]
Table 4: Court administration and case management (Q63)