Strasbourg, 7 December 2022

CEPEJ(2022)12

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

“BACKLOG REDUCTION TOOL”

Concept note on the preparation of a backlog reduction tool

Document adopted by the CEPEJ at its 39^th plenary meeting

(Strasbourg, 6 and 7 December 2022)

1. OBJECTIVE

Article 6 of the European Convention on Human Rights stipulates that “everyone is entitled to a fair and public hearing within a reasonable time”. Many judicial systems continue facing backlogs of cases in the courts. This may negatively affect the compliance with the “reasonable time” requirement. There is an interest from many states to address this matter.

Therefore, the CEPEJ-SATURN decided to develop a set of practical tools to support member States in setting up and implementing measures to improve the level of efficiency of justice and prevent backlogs. Many of these tools have been already developed by the CEPEJ-SATURN. However, no tool has been so far developed specifically to contribute to reducing backlogs. This tool aims to support member States in developing specific backlog reduction programmes.

2. WORKING METHODS

The CEPEJ-SATURN aims to prepare the backlog reduction tool in close co-operation with other working groups of the CEPEJ in line with their respective mandates. The co-operation can concern:

• measures conducive to reducing backlog based on the tools developed by CEPEJ-GT-QUAL (e.g. mediation);

·         use of information and communication technologies (ICT) in addressing backlog based on the tools developed by CEPEJ-GT-CYBERJUST;

• measures based on the information and analysis of the functioning of judicial systems resulting from the evaluation carried out by the CEPEJ-GT-EVAL.

It is envisaged that the Network of the CEPEJ pilot courts will be consulted to contribute to the development of the tool.

3. CONTENT

The tool should provide methodologies and specify measures that can be applied to prevent and reduce a backlog. The tool will be intended for different stakeholders of judicial systems at all levels (judicial council, supreme courts, ministries of justice, court presidents, heads of court units or individual judges).

The guidelines can be structured around the four main sections (analysing the situation, defining the measures to prevent and reduce backlog, setting up the targets and monitoring of the situation). A template for backlog reduction plan will complement the tool.

The proposed structure for the tool is as follows:

SECTION 1: ANALYSING THE SITUATION

The tool should propose methodologies for identification of key issues that cause backlogs in the courts. The backlog is defined as “pending cases at the court concerned which have not been resolved within an established timeframe” (CEPEJ Glossary).

In this section, the tool will propose data and indicators to be analysed to make the diagnosis of the current situation in the courts. The stakeholders may also undertake the legal and operational analysis of the functioning of judicial systems to identify certain shortcomings at the systemic level that cause undue delays.

1.1. STATISTICAL DATA AND INDICATORS

Examples of indicators to be included in the tool: 

·         number of incoming/resolved/pending/backlog cases

·         age of pending cases

·         clearance rate

·         disposition time

·         length of proceedings

·         number of judges

·         number of non-judge staff

·         incoming/pending/resolved/backlog cases per judge etc.

An example of calculation of the expected trends if the current inflow of cases and court performance remain the same:

1	2	3	4	5	6	7	8	9
Court	Number of judges	Avg number of received cases in the previous years (average number for the last 3-5 years)	Avg number of resolved cases in the previous years (average number for the last 3-5 years)	Number of pending cases on 1 Jan	Expected increase/decrease in the number of pending cases (court level) 1. Jan – 31. Dec (f= Col.4 - Col.3)	Expected number of pending cases on 31 Dec (f= Col.5 - Col.6)	Expected increase/decrease in the number of pending of cases (per judge) 1. Jan – 31. Dec (f= (Col.6  / Col.2)	Expected number of pending cases (per judge) on 31. Dec (f= Col.7 / Col.2)

1.2. LEGAL AND OPERATIONAL ANALYSIS

Depending on the individual situation, the states may conduct substantive analysis of the functioning of judicial system by looking into the aspects, such as:  

·         resources (their availability and effective use)

·         procedural rules (regulatory frameworks and practices)

·         organisation of internal work in the courts (regulatory frameworks and practices)

SECTION 2: INTRODUCING MEASURES

The tool should propose a catalogue of potential measures helping to prevent and reduce a backlog. The catalogue should be wide enough to offer possible solutions for various situations at different levels (justice system, court and individual judge) and different periods for their implementation (short-term, medium-term and long-term). The use of dashboards can play an important role in giving an overview of the situation in courts. In this context, attention should be paid to the existing documents, such as the Handbook on Court Dashboards adopted by the CEPEJ in 2021.

2.1. MEASURES AT THE SYSTEM LEVEL

Measures to be implemented in the whole judicial system. Examples of measures might include:

• introducing certain ICT solutions that can improve efficiency (case management system, videoconferencing, e-filing, dashboards, etc.).
• changing regulatory frameworks (amendments to procedural rules that would, for example, shorten the deadlines, exclude unnecessary procedural steps, insist on stricter procedural discipline, etc.).
• introducing alternative dispute resolution as a way of decreasing inflow of new disputes as well as a way of resolving pending court cases (e.g. court-annexed mediation).
• improving cooperation and communication between courts and other participants in court proceedings such as bar, public prosecution, notaries, enforcement agents, expert-witnesses, etc. 
• increasing resources by hiring new judges, non-judge staff, ensuring new courtrooms, etc.
• in the most worrying situations, states should think of the possibility to set up provisional sections in the courts, whose aim should be that of disposing of the oldest cases. Such sections could be composed of ad hoc appointed legal experts (lawyers, notaries, university professors), who should cease their mandate once the backlog has been eliminated.

2.2. MEASURES AT THE COURT LEVEL

Measure to be implemented at the court level. Examples of measures might include:

• adopting a backlog reduction programme and appointing responsible persons/institutions for monitoring its implementation.
• reallocating judges and non-judge staff to the departments with the largest number of backlog cases.
• defining the most efficient way of using available resources, such as courtrooms, offices and equipment.
• streamlining court internal procedures (organising more efficiently the document flow, reducing the workload of judges by transferring administrative tasks to non-judge staff).
• improving co-operation with participants in court proceedings, such as bar, public prosecution, notaries, enforcement agents and expert-witnesses, etc. 

2.3. MEASURES AT THE JUDGE LEVEL

Measures to be implemented at the individual judge/panel level. Examples of measures might include:

• analysing the structure of backlog cases (age of the case, last action in the case, remaining actions in the case).
• reorganising work with auxiliary staff to allow judges more time to work directly on cases.
• preventing further backlog accumulation - making stricter procedural calendars in new cases and insisting on procedural discipline.
• giving precedence to old cases, which should be dealt with and disposed of before new cases.

SECTION 3: SETTING UP TARGETS

Based on the analysis of the situation and measures taken, the tool should propose different ways for setting up realistic targets, such as methodologies for setting up “SATURN timeframes”[1]

Other practices that will be presented in the document:

An example for calculating targets when one of the measures has resulted in the increase in the number of judges (e.g. transferring judges from another court or department, or recruiting new judges):

1	2	3	4	5	6	7
Court	Number of judges (existing  judges + newly appointed judges)	Avg number of received cases in the previous years (per judge)	Avg number of resolved cases in the previous years (per judge)	Number of pending cases on 1 Jan (court level)	Expected decrease in the number of pending cases after implementation of the measure (court level) 1. Jan – 31. Dec (f= (Col.4 X Col.2) – (Col.3 X Col.2)	Target 1 (court level) Expected number of pending cases on 31 Dec (f= Col.5 - Col.6)

An example of calculating targets when one of the measures has resulted in the increase in the efficiency per judge (by for example reducing their administrative tasks and thus increasing by 20% the time of judges to work on cases):

1	2	3	4	5	6	7
Court	Number of judges	Avg number of received cases in the previous years (per judge)	Avg number of resolved cases in the previous years (per judge)	Number of pending cases on 1 Jan (court level)	Expected decrease in the number of pending cases after implementation of the measure (court level) 1. Jan – 31. Dec (f= (1.2 x Col.4 X Col.2) – (Col.3 X Col. 2)	Target 1 (court level) Expected number of pending cases on 31 Dec (f= Col.5 - Col.6)

SECTION 4: MONITORING

Monitoring mechanisms should define the indicators that should be monitored, how they will be monitored, responsible person(s)/institutions(s) and periods of time in which monitoring should be performed.

Graph 1 - an example of a dashboard for monitoring, as proposed in the CEPEJ "Handbook on Court Dashboards"

ANNEX: TEMPLATE FOR A BACKLOG REDUCTION PLAN

To facilitate the implementation of the future national backlog reduction instruments, the tool should contain a template for the drawing up of a plan to reduce backlog. The template – presented in the form of a table might include elements, such as targets, measures to address backlog, deadlines and responsible institutions/persons.

TARGET	MEASURE	DEADLINE (short - term, mid - term, long - term)	RESPONSIBLE INSTITUTION/PERSON	IMPLEMENTED YES/NO

POSSIBLE NEXT STEPS AND INDICATIVE TIMELINE

a)     CEPEJ plenary meeting, 6 – 7 December 2022, presentation of the concept note and agreement on the way forward

b)    December 2022: identification of a group of experts to be appointed to work on the tool

c)     January 2023: consultation on the concept note with the CEPEJ-GT-EVAL, CEPEJ-GT-QUAL and CEPEJ-GT-CYBERJUST

d)    March 2023: submission to the CEPEJ-SATURN of the first draft of the tool for review

e)     March/April 2023: consultation on the first draft with the CEPEJ-GT-EVAL, CEPEJ-GT-QUAL, CEPEJ-GT-CYBERJUST and with the Network of the CEPEJ pilot courts

f)     May 2023: submission of the draft tool to the CEPEJ-SATURN for adoption

g)    June 2023 – submission of the tool to the CEPEJ for adoption

The proposed indicative timeline provides the shortest possible deadlines and thus can be modified during the development of the tool in the light of the new circumstances.