EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ)
Steering Group of the SATURN Centre for Judicial Time Management (CEPEJ-SATURN)
Kristiansand (Norway), 5 and 7 September 2017
MEETING REPORT
Report prepared by the Secretariat
Directorate General I – Human Rights and Rule of Law
2. The agenda appears in Appendix I and the list of participants in Appendix II to this report.
1. Information from the Chair, Group members and the Secretariat
4. The Secretariat pointed out what an excellent reception there had been for the “Handbook for implementing CEPEJ tools” (CEPEJ-SATURN(2016)6Rev2), prepared by the Steering Group.
6. The Secretariat stated that the CEPEJ would continue its co-operation programmes with Albania and Kosovo*[1] and the South Neighbourhood countries (Morocco, Tunisia, Jordan). These efforts in the intergovernmental sphere, particularly those with non-member states, had been welcomed by the Committee of Ministers.
2. Towards European timeframes for judicial proceedings - implementation guide
7. In preparation for the exchanges to be carried out with the pilot courts, Marco FABRI (scientific expert, Italy) pointed out that a general presentation had already been made to them in September 2016. However, it was important to continue to update this information on the basis of regular data collection (on new cases, solved cases, cases pending).A minimum of three previous years could be shown (2015 – 2016 - 2017) along with a column on the age of cases pending. Cases could be categorised along the general lines already used in the implementation handbook (adversarial civil and administrative cases and criminal cases) in addition to any more specific classifications which might be communicated by the courts.
8. Noël RUBOTHAM (Ireland) talked of the potential difficulties of collecting this information from such a highly varied network (in terms both of authorities and of any specialisations) and of classifying cases. In his view, another use of this information could be considered. He suggested that an observatory of European timeframes should be set up, providing a graphic representation of the activity data on the courts in the network of pilot courts. For this purpose, he proposed that a trial graphic representation could be submitted to the Group. An extremely simple questionnaire should be drawn up and sent to one or two pilot courts.
10. The Steering Group confirmed the benefits of regular data collection from pilot courts to ensure that European timeframes for judicial proceedings are updated. This principle should be presented to the pilot courts.
12. The Group instructed the Secretariat to set up a trial data collection procedure for the next group meeting to be applied to one (or two) pilot courts and based on a simplified questionnaire comprising categories proposed by Marco FABRI. A trial graphic representation could be drawn up by the Secretariat to serve as a basis for discussion.
3. Recent European Court of Human Rights case-law on the reasonable time criterion and possible follow-up by the CEPEJ
14. This document was an interim summary of the work carried out by Nicolas REGIS to update the report on the study of the length of court proceedings in the member states of the Council of Europe based on the case-law of the European Court of Human Rights. The purpose of this report, which had last been updated in 2012, was to present some general information which should enable the Council of Europe member states to reduce the length of their judicial proceedings.
15. The final report would comprise two parts:
- the criteria for the application and calculation of the reasonable time for court proceedings in the case-law of the Court;
17. Nicolas REGIS stated that over the period 2012-2017 he had examined, there had been several major changes in the functioning of the Court which had had an impact on the decisions given in cases of excessive length of proceedings. Firstly, the entry into force of Protocol No. 14 in June 2010 had resulted in a significant decrease in the judgments and decisions given in this area. In addition, since 2015, the practice had been adopted of dealing separately with manifestly inadmissible or ill-founded complaints within the same proceedings so that they could promptly be declared inadmissible by a single judge.
18. Nicolas REGIS noted that because of these developments, practically no decisions or judgments were published in cases in which the length of proceedings was deemed “reasonable” by the Court and such cases were now covered mainly by decisions given by a single judge (as manifestly ill-founded). More generally speaking, indications by the Court as to the criteria guiding it when assessing whether lengths of proceedings were reasonable had become increasingly scarce. This had been a consistent trend since the first version of the report but it had accelerated over the period from 2012 to 2017. It should be noted however that this statistical reduction could also be accounted for by the improvements to judicial proceedings resulting from the reforms introduced by member states to align themselves with the Court’s case-law, as revealed by the annual reports and resolutions of the Committee of Ministers.
19. Despite this context, Nicolas REGIS had been able to carry out his appraisal on a sufficiently large sample of decisions (700, see above). Over this period of updating, the Court had reiterated its assessment criteria, to which there had been little change. The main feature of the period under consideration was a development of the Court’s case-law on domestic remedies to excessive length of proceedings. The Court had specified what should be the nature of these remedies for them to be effective and, on this basis, it had developed increased supervision with regard – specifically – to the right to a hearing within a reasonable time.
21. Francesco DEPASQUALE proposed that this work should be widely promoted, as the previous update had provided much structure for all of the Steering Group’s activities. A press conference could be held, as for the evaluation report.
4. Management of the rules on judicial time for criminal cases under Articles 5 and 6 of the ECHR
24. Jon JOHNSEN (scientific expert, Norway), presented the conclusions of a preparatory study on the management of rules on judicial time for criminal cases under Article 5 of the ECHR. The purpose of this study was to enable the Group to delimit the content of a report dealing with the time frames which could be inferred from the Convention in criminal proceedings.
25. Jon JOHNSEN said in introduction that his study had been extended to the provisions of Article 6 of the ECHR relating to criminal law. Article 6 required all accused persons to be informed promptly of the charges brought against them and to have adequate time for the preparation of their defence. These guarantees had seemed to the expert to need to be dealt with jointly with those of Article 5 (all persons deprived of liberty to be brought promptly before a judge, right to be tried within a reasonable time, speedy decision by a court). Although the two articles protected separate interests, they sometimes overlapped and were complementary.
28. In sum Jon JOHNSEN’s assessment comprised two main aspects:
30. He proposed therefore that a timeline applying solely to criminal proceedings should be incorporated into the SATURN guidelines, structured in the same way as the current indicator four, but with events adapted to the special features of criminal proceedings (particularly placing more emphasis on the timeline of investigations and prosecution). The provisions of Articles 5 and 6 of the ECHR should, of course, be integrated into this timeline, as “safe minimum periods”. Pilot courts could be called on to provide information on their own practices and measure time ordinarily taken.
31. Jon JOHNSEN also suggested that the use of computer tools should be recommended in courts for the supervision of the use of time on the basis of this timeline, including warnings and alarm systems for all the important stages. The system should notify the police, the prosecution department and the courts of the combined time spent since the beginning of the investigation.
33. Noel RUBOTHAM welcomed the outstanding work that had been done. He stressed how difficult it could be to involve everyone with any responsibility for the timeframe of criminal proceedings (police, prosecuting authorities). However, in view of the systematic review by the courts of the length of proceedings, case-law could be found on “safe minimum periods” and the means of supervision delegated to judges.
34. The Steering Group therefore instructed Jon JOHNSEN to incorporate the timeframes relating to criminal proceedings provided for by Articles 5 and 6 of the ECHR and their related case-law into CEPEJ’s existing tools, particularly the SATURN guidelines.
37. The Group considered it too early at this stage to call on the pilot courts.
5. Discussion about the Study on judicial timeframes in 2nd and highest instance courts (2014 data)
40. The Group considered it pertinent to use median indicators (instead of averages).
43. The Group asked the expert to produce an initial framework document on her study, based on the proposal made by Jacques BUHLER (Switzerland) at the Steering Group meeting of March 2017.Julinda BEQIRAJ was invited to present her initial findings at the next plenary meeting of CEPEJ.
6. Impact of lawyers’ conduct on the length of proceedings
- description of the obligations arising from Article 6 of the ECHR and its case-law;
46. Giacomo OBERTO stated that the solutions were sometimes to be found in the law, particularly a system for the calculation of lawyers’ fees encouraging them to work quickly. There was a lack of such measures in Italy.
47. Ivan CRNCEC (Croatia) wondered what form of document could be produced by the Group. The report could take the form of a compendium of good practices or a practical guide.
48. Noel RUBOTHAM said that it would not necessarily be a case of creating a new document but simply incorporating new references into existing documents. Francesco DEPASQUALE agreed with this approach. Marco FABRI suggested that the “Compendium of ‘best practices’ on time management of judicial proceedings” (CEPEJ(2006)13) could be supplemented by new specific examples.
49. The Steering Group wished to collect new examples to add to the compendium of good practices. Ivana BORZOVA (Czech Republic) was instructed to collect examples from continental law countries for the next meeting.
7. Information technologies in court hearing rooms – time-saving tools
53. An example of a video hearing with an asylum seeker was presented. This demonstrated the problems with such procedures (such as the legibility of the evidence presented by the asylum seeker) and the issues of image framing (images had their own semantics, which could create bias). More generally speaking, videoconferencing pitted the standard ideal of physical presence at court hearings against new considerations (particularly economic ones of cutting legal costs).
54. More specifically, in the expert’s view, remote appearance systems could be regarded in two different ways. From the first viewpoint, they undermined the ideal of joint presence as a key form of sociability (institutional or otherwise) and made the management of social situations prone to all sorts of more or less harmful forms of digital porosity. From the second, they were a positive means of reasserting the need to deal with people, users and citizens in the context of interactive situations in which it was expected for them to be able to be heard and therefore that something would happen in these situations, and of preserving this possibility.
56. Giacomo OBERTO pointed out that these technologies were very widely used in Italy in civil proceedings and that they required adjustments to law and procedure. Noel RUBOTHAM considered for his part that time saving was not the result of the new technologies themselves but was to be found in new working arrangements based on these technologies. Christian LICOPPE confirmed that an appraisal of procedure was a prerequisite for any definition of a genuinely useful hearing. In Georg STAWA’s opinion, the most common approach was to attempt to apply information technologies to a 19th century procedural framework. This was the reason why the expected time savings were not systematically achieved. Janis DREIMANIS (Latvia), the member of an invited delegation, talked of the situation in his country, where the use of videoconferencing was spreading (this system already facilitated the hearing of persons in detention). He agreed that there was a need for changes in the procedural framework. It was a major paradox that current public policy promoted ease of access to justice while reducing access to judges.
57. Danka KOVALA (Slovakia), the member of an invited delegation, considered that there was a lack of qualified staff to assist with the digital changeover. The computing industry and services had a major influence on the fitting out of courts, whereas courts should be equipped according to their real needs.
58. Giacomo OBERTO pointed out that Article 6 of the ECHR placed the emphasis on public hearings in criminal cases.In civil matters, the need for physical hearings might seem less essential if the evidence was adduced in writing.
59. The Steering Group thanked Christian LICOPPE for his presentation.
8. SATURN Guidelines for Judicial Time Management
61. With regard to the EUGMONT Appendix to the guidelines, the Secretariat presented the following update:
- the addition of a column on cases over two years old to example table 1 in Appendix I;
62. The Steering Groups adopted the changes made by the Secretariat.
9. Case weighting in European courts
64. The Steering Group discussed the conclusions of the workshop held on 6 September 2017 with the various pilot courts.This report was drawn up jointly by Francesco DEPASQUALE and Noel RUBOTHAM. They pointed out in introduction that there was a widespread demand from the representatives of pilot courts to understand more about this concept to implement it effectively.
65. It was explained that case weighting was a system by which to assess the complexity of proceedings. This assessment was then useful to work out the estimated duration of hearings and the resources to be allocated to them, to fine-tune statistical analysis and to distribute work fairly between judges.
66. In the Netherlands, the case weighting system was based on a scale from A (simple) to D (complex). The mechanism operated in only three first instance courts and three appeal courts. It made it possible to establish the estimated hearing time for a case and ensure balanced allocation of cases between judges. The system was criticised however for its lack of transparency and the absence of strict rules. The dematerialisation of cases (which was under way) was likely to change the system.
67. In Austria, the system ensured fair distribution of cases between judges. A specialised court officer examined all new cases using a dedicated Excel spreadsheet. It divided cases up into 40 categories and made the necessary calculations (case x estimated duration / available judges). The system had been positively reviewed by a Swiss consultant, who had obtained the same results by timing the actual time spent by a cross-section of judges. This instrument had been used throughout the country for ten years now to calculate estimated workloads (new cases) and was to be adjusted to calculate actual workloads (solved cases). The tool was only used partly for the allocation of staff. It was reviewed regularly to ensure that it was functioning properly.
68. In Croatia, an extremely precise system was applied to judges. A highly detailed categorisation of cases had been made (165) and a minimum number of cases to be dealt with by each judge each year had been set according to the complexity of each category. Between 2004 and the current day, substantial results had been achieved because the overall number of pending cases had been reduced from 1.6 million to 500 000. These targets for each judge were not flawless, however, as goals were easily attainable for some categories while for others they were never reached.
70. There were also targets in the Czech Republic but they were not binding.
71. In Azerbaijan, cases were allocated randomly but the allocation was based on an extremely clear categorisation of proceedings. The problem encountered when the system was implemented two years ago was that no assessment was made of the complexity of cases and so the distribution of cases among judges was somewhat unbalanced. Furthermore, the system took no account of sick leave or post vacancies. An additional investigation was being carried out to adjust the computerised allocation tools. No link was made between the system and the allocation of resources.
72. In Finland, a questionnaire was sent regularly to judges to assess their workload.
73. In Israel, the system was based on a practice imported from the United States. The country used the Delphi method (an average from a sample of cases processed over the last five years) on an array of 51 judges with a strict categorisation of cases.A time was estimated for each type of case. The idea was now to extend the sample, as the perception of judges as to the reality of their work sometimes differed. At all events, the assessment did not focus on one judge in particular but took an average from the entire court for a given category.
74. In Ireland, there was no case weighting system. Judges were allocated a list of cases and they dealt with them as best they could. Noel RUBOTHAM talked of a previous expert study in a particular European country, where he had found that the system was being manipulated by some to be given a lower workload.
76. Giacomo OBERTO questioned how clear the aims attributed to this type of calculation were as it could be used for the allocation of cases but also for the appraisal of judges by a Council of Judges. It was also essential for the calculations to be geared to each category of case. Francesco DEPASQUALE said that although these details had not been mentioned during the workshop with the pilot courts, they would be included in the analysis made in the final document produced by the Group. It seemed to him that the link should be made with the European timeframes established by CEPEJ and the case-law of the European Court.
79. The Group also decided to hold a working session before its next meeting in a court wishing to set up such a system so as to compare the various European methods with the concrete practices of an actual court. Francesco DEPASQUALE expressed his desire to host this working meeting as part of a court coaching programme so as to foster progress in this practice in his own court.
10. Scoreboards for court management
- analysis at the level of the judges themselves;
- a breakdown by procedural stage to identify potential bottlenecks in the processing of cases;
- “predictive” analysis based on past statistics.
Appendix I: Agenda
1. Opening of the meeting
2. Information by the President, members of the Group and the Secretariat
3. Preparation of the 12th plenary meeting of the network of pilot courts
4. Towards European timeframes for judicial proceedings - Implementation Guide
5. SATURN Guidelines for Judicial Time Management
6. Recent ECtHR case law regarding the reasonable time criterion and possible follow-up by the CEPEJ
7. Managing judicial time regulations for criminal cases in ECvHR article 5 and 6
8. Discussions about the Study on judicial timeframes in 2nd and highest instance (data 2014)
9. Case weighting in European courts
10. Impact of the behaviour of the lawyers on the length of proceedings
11. Information technology in courtrooms - time saving
12. Dashboard[2] for court management
13. Co-operation programmes
14. Court coaching programmes
15. Other items
ANNEXE II
List of Participants / Liste des participants
MEMBERS / MEMBRES
Ivana BORZOVÁ, Head of Department of Civil Supervision, Ministry of Justice, PRAGUE, CZECH REPUBLIC
Ivan CRNČEC, Assistant Minister of Justice, ZAGREB, CROATIA
Francesco DEPASQUALE, Magistrate, Legal Advisor to the Director General, Ministry of Justice and Home Affairs, VALLETTA, MALTA
Gerassimos FOURLANOS, Vice-President of the Supreme Civil and Penal Court, ATHENS, GREECE, Apologised / Excusé
Giacomo OBERTO, Magistrat, TURIN, ITALY
Noel RUBOTHAM, Head of Reform and Development, Courts Service, DUBLIN, IRLAND
PRESIDENT OF CEPEJ /PRESIDENT DE LA CEPEJ
Georg STAWA, Secretary General of the Austrian Ministry of Justice, VIENNA, AUSTRIA
***
Scientific ExpertS / Experts scientifiques
Julinda Beqiraj, Associate Senior Research Fellow in the Rule of Law, Bingham Centre for the Rule of Law, LONDON, UNITED KINGDOM
Marco FABRI, Director, Research Institute on Judicial Systems, National Research Council (IRSIG-CNR), BOLOGNA, ITALY
Jon T. JOHNSEN, Professor in Law, Faculty of law, OSLO, Norway
Christian LICOPPE, Department of Social Science, Telecom Paristech, PARIS, FRANCE
***
INVITED DELEGATIONS / DELEGATIONS INVITEES
LATVIA / LETTONIE
Jānis DREIMANIS
Lauma LEGZDIŅA
SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUIE
Danka KOVALOVÁ, Director of the analytical Centre, Ministry of Justice, BRATISLAVA
OBSERVERS / OBSERVATEURS
EUROPEAN UNION OF RECHTSPFLEGER AND COURT CLERKS / UNION EUROPEENNE DES GREFFIERS DE JUSTICE (EUR)
Michel CRAMET, Directeur Délégué à l’Administration Régionale Judiciaire, Cour d'appel de LYON, FRANCE, Excusé / Apologised
***
COUNCIL OF EUROPE / CONSEIL DE L’EUROPE
SECRETARIAT
Directorate General of Human Rights and Rule of Law (DGI, Division for the Independence and Efficiency of Justice / Direction générale droits de l’Homme et Etat de droit (DGI), Division pour l’indépendance et l’efficacité de la justice
E-mail : [email protected]
Stéphane LEYENBERGER, Executive Secretary of the CEPEJ / Secrétaire exécutif de la CEPEJ, Tel: +33 (0)3 88 41 34 12, e-mail: [email protected]
Yannick MENECEUR, Administrator / Administrateur, Tél: +33 (0)3 90 21 53 59, e-mail : [email protected]
Stéphanie BUREL, Project coordinator, Albania, Kosovo* / Albanie, Kosovo*, Tel : +33 (0)3 88 41 22 27, e-mail : [email protected]
Annette SATTEL, Administration and Networks, Tél: +33 (0)3 88 41 39 04, e-mail: [email protected]
Ioana VOELKEL, Assistant/Assistante, Secretariat of the CEPEJ / Secrétariat de la CEPEJ, +33 (03) 90 21 42 94, e-mail: [email protected]
Elisabeth HEURTEBISE, Assistant/Assistante, Secretariat of the CEPEJ / Secrétariat de la CEPEJ, Tél : +33 (0)3 88 41 35 54, e-mail: [email protected]
[1] * All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.