Strasbourg, 13 December 2017
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
WORKING GROUP ON THE QUALITY OF JUSTICE (CEPEJ-GT-QUAL)
22nd meeting (Strasbourg, 19 – 20 October 2017)
Report prepared by the Secretariat
I. OPENING OF THE MEETING AND ADOPTION OF THE AGENDA
1. The Working Group on the Quality of Justice (CEPEJ-GT-QUAL) of the European Commission for the Efficiency of Justice (CEPEJ) held its 22nd meeting at the Council of Europe in Strasbourg on 19 and 20 October 2017. The meeting was chaired by François PAYCHÈRE (Switzerland).
2. The agenda and the list of participants are appended to this report (Appendices I and II respectively).
II. COMMUNICATION BY THE CHAIR AND THE SECRETARIAT
4. The Secretariat informed the Group members of the programmes of co-operation with member states and partner states being developed by the CEPEJ. The most recent assignments to Tunisia and Morocco had focused mainly on training for judges and prosecutors. These countries were faced with questions regarding the content of training for judges taking up their functions, in-service training and specialist training for certain jobs, particularly court management, just like most Council of Europe member states.
5. The Secretariat highlighted the central role of quality in the co-operation programme carried out in Albania, particularly with regard to security in courts. A reform was also being prepared to devise a fully-fledged strategy for the use of new technologies in courts.
III. COMPARATIVE STUDY ON THE USE OF VOLUNTARY JURISDICTION FOR IMPROVED ACCESS TO JUSTICE
6. Juan Ramon Liebana Ortiz (Spain) presented the working group with a proposal for a comparative study on voluntary jurisdiction proceedings, focusing in particular on their impact on the quality of justice in terms of access to the judicial system and the length and cost of proceedings. He gave a detailed description of his work in this field, defining the concept of voluntary jurisdiction proceedings then outlining the example of Spain, where the management of this type of case had been assigned to legal professionals other than judges. Through such a study the benefits for the entire judicial system in terms of efficiency and quality could be gauged.
7. The expert proposed that initially the study could be assigned to a group of university academics and legal practitioners from various Council of Europe member states, so as to identify the European common denominator in this sphere.The study could then be used as a basis to draw up Guidelines on the subject.
8. The Group members recognised that this was a topical subject in view of the legislative reforms, some recent some further in the past, carried out by many member states. However, they agreed unanimously on the difficulty of defining “voluntary jurisdiction”. The concept appeared on the face of it to cover quite different actual circumstances in Europe and this raised the question of the possibility of and the need for a prior standardisation process.
9. The Secretariat also pointed out that the Working Group on Mediation (GT-MED) had been re-established in 2017 and could be interested in this research. This would follow on logically from the small store of existing documents on the subject, which already made use of the concept of “dejudicialisation”.
11. The Group opened its discussion on the basis of previous presentations by Merethe ECKHARDT (Denmark), Director in the Danish department in charge of the administration of courts, and François MOLINS (France), State Prosecutor at the Paris Tribunal de Grande Instance, which had been set down in two summary documents.
- What tools should be used? What kind of media (websites, social networks, press conferences)? What framework (legislation)? What ethical standards should be applied to individual communications on social networks or through other media? What training should be provided?
- What type of communication should be used in what types of situation? How frequently and how promptly should information be communicated? What form of institutional communication should there be (on current or completed proceedings or on the judicial system in general and its role)? What form of communication should there be in crisis situations?
- What content should be included (balance between information and confidentiality of investigations or deliberations)?How should decisions be communicated? Difference between the communications of Supreme Courts and lower courts.
15. Joao ARSENIO DE OLIVEIRA (Portugal) agreed to co-ordinate the work in this area and would seek out potential experts. Anke EILERS (Germany) would also sound out professionals to find out when they might be available.
16. Once the experts had been identified, the Group wished to present them with the topics identified and would collect their initial contributions at the next meeting. It instructed the Secretariat to identify these experts and send them the working themes in preparation for the next meeting.
V. Sharing knowledge within the judiciary
17. This theme had been explored at the previous meeting by Ms Sandra TAAL (Netherlands), research worker at the Dutch Institute of Public Administration. Insofar as the sharing of knowledge and experience between judges was a natural phenomenon characterising the functioning of the judicial system, the GT-QUAL members felt it would be difficult to go into the subject in more detail with such broad parameters.
18. On the other hand, an investigation of the teams working around judges and the new communication technologies used in such teams could prove interesting. With regard to the latter point, the question of sharing knowledge using the latest digital tools would be dealt with specifically under the item “Access to justice in the digital era”.
VI. Access to justice in the digital era
19. François PAYCHERE and the Secretariat described the work done in connection with two different activities, the first being participation in a conference on “predictive justice” (Lille, 19 May 2017) and the second a contribution to an ad hoc assignment of the French Ministry of Justice on Open Data and judicial decisions (Paris, 6 July 2017).
20. A brief description was given of the issues surrounding the provision of judicial decisions as Open Data, which was presented as an unprecedented opportunity to increase the transparency of justice, involve citizens in its functioning and contribute to the development of the market. The group considered it essential to address the questions of anonymisation of parties and professionals from the angle of protecting privacy and legitimate processing purposes.
21. The use of artificial intelligence tools in the justice sphere, particularly the processing of decisions as Open Data to provide a forecast of the outcome of new disputes (“predictive justice”) was identified as a second working theme by the Group. The potential of these tools was enormous but it was clear that it had to be put in the context of their actual capacity and ethical standards for their use.
22. The Group considered it appropriate to ask an expert from the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD) to make a contribution.
24. Harold EPINEUSE (France) presented the feedback he had received following his contributions as a CEPEJ expert to co-operation programmes in the Slovak Republic, Latvia, Albania and Kosovo*. The beneficiaries from these countries or entities had expressed very high expectations about the potential of electronic case management systems to improve the efficiency of case processing and reduce case backlogs. On a more general level, they had welcomed the efforts made by other countries to share good practices to guide them in the implementation of new computerised systems.
25. Harold EPINEUSE highlighted the benefits of the CEPEJ’s Cyberjustice Guidelines, which provided an extremely good starting point to devise public policies based on such systems. However, the guide could be usefully supplemented by specific implementation guides, offering, in particular, a toolbox for public decision-makers providing them with practical support for the development of long-range strategic plans and deploying structural computer systems.
26. Harold EPINEUSE proposed therefore that a critical review should be made of the experiences in this area (based on feedback from co-operation assignments and on targeted research work in the existing literature) to produce a working document including, in particular, a strategic-type plan, a method for calculating the value of a project and a checklist through which to assess electronic case management systems.
27. The Group called on Harold EPINEUSE to contribute, in his capacity as a scientific expert, to the drafting of a detailed outline of an implementation guide for the next Group meeting and to submit any comments he considered relevant for the purpose of updating the existing Cyberjustice Guidelines. A second expert, from the judiciary (a judge, prosecutor or judicial administrator), would have to be found to assist with the work.
28. Harold EPINEUSE (France) presented the Court Quality Framework Design (CQFD) report on the quality of justice. This report was financed by the European Commission and formed part of French policy vis-à-vis the EU Justice Scoreboard. The focus of the project was on the service on offer to users of the justice system and information management as a means of building trust in the system (at all stages in proceedings). The working method was to visit pilot courts in the five countries participating in the project run by France, namely Portugal, Slovenia, Estonia, Italy and France itself. Subsequently, a conference was held in Paris, in August 2017.
29. The report contained examples of good practices on quality policy and a table of possible quality indicators, most of which were quantitative not qualitative. The table identified the first relevant indicators in view of the specific objectives to be achieved, in the light of existing instruments and European standards.
IX. Evaluating the work of judges from the standpoint of quality
31. Anne SANDERS (Germany) presented CCJE Opinion No. 17 on the evaluation of judges’ work, the quality of justice and respect for judicial independence. Questions of training and evaluation of judges lay at the core of the proposed survey and revealed the difficulty of reconciling the independence of the judiciary with the critical evaluation of a judge’s activity.
32. Following the presentation, the Group decided to limit its discussion to the question of evaluating the quality of a court’s overall judicial activity, avoiding questions of performance and looking at the quality of decisions given by the court and harmonisation of case-law through discussions between judges rather than the individual evaluation of judges, which had already been dealt with by CCJE Opinion No. 17. The question of the use of the practice of so-called intervision also seemed relevant for the purposes of identifying how judges could improve the quality of their work by sharing practice and experience.
33. The Group asked the Secretariat to identify appropriate examples in the member states in time for the next meeting and to consider describing a particular practice carried out within one judicial system (such as the Netherlands).
34. Joao ARSENIO DE OLIVEIRA (Portugal) described the preparatory work done on this subject. Bearing in mind that a significant body of doctrine already existed on the quality of law, particularly on standards such as clarity, simplicity and legal security, he proposed looking into the tangible impact of laws on the functioning of justice, not on “legalistic” aspects. Ex ante and ex post assessment of the effects of laws was considered fundamental in terms of the quality of justice. It was practised already in some countries, whose experience could serve as the basis for a guide.
35. The Secretariat proposed that political science teachers should be sounded out and asked to find potential experts, to whom the preparatory document could be communicated for the next Group meeting.
XI. REVISION OF THE DEFINITIONS USED BY THE CEPEJ WORKING GROUPS
36. Joao ARSENIO DE OLIVEIRA reported on the meeting of the ad hoc working group responsible for identifying key terms and concepts used regularly by the CEPEJ. It was clear that this work would provide much structure for future years where it came to using identical concepts throughout the CEPEJ’s working groups. An additional meeting would be held in February 2018 to finalise the work that had been started.
Agenda / Ordre du jour
Information du Président, des experts et du Secrétariat
3. Comparative Study with voluntary courts for a better access to justice / Etude comparative avec des juridictions volontaires pour un meilleur accès à la justice
4. Justice and media / Justice et media
5. Sharing knowledge within the judiciary / Partager les connaissances au sein du pouvoir judiciaire
List of participants / Liste des participants
MEMBERS / MEMBRES
Gilles ACCOMANDO, Président du Tribunal de Grande Instance d’Avignon, 2, Boulevard Limbert, 84078 Avignon Cedex 9, France
Joao ARSENIO DE OLIVEIRA, Head of Department, International Affairs Department, Directorate-General for Justice Policy - Ministry of Justice, Av. D. Joao II, n° 1.08.01 E, Torre H, Pisos 2/3, 1990-097 Lisbon, PORTUGAL
Anke EILERS, Presiding Judge of the Court of Appeal, Vorsitzende Richterin am Oberlandesgericht, 3. Zivilsenat, Oberlandesgericht Köln, Reichensperger Platz 1, 50670 Köln, GERMANY
Nikolina MIŠKOVIĆ, Judge, Commercial Court in Rijeka, Antuna Brubnjaka 6 Ika, 51414, Ičići, CROATIA Apologised / Excusée
François PAYCHÈRE, Magistrat titulaire de la Cour des Comptes de la République et du Canton de Genève, Case postale 3159, CH-1211 Genève 3, SUISSE (Chair of the GT-QUAL / Président du GT-QUAL)
Georg STAWA, Secretary General of the Austrian Ministry of Justice, Federal Ministry of Justice, Museumstrasse 7, 1016 VIENNA (President of the CEPEJ /Président de la CEPEJ) : Apologised / Excusé
Ioannis SYMEONIDIS, Judge, Court of Appeal, Professor at the Law School, University of Thessaloniki, 29, N.Foka, CP 546 21, Thessaloniki, GREECE
SCIENTIFIC EXPERTS / EXPERTS SCIENTIFIQUES
Harold EPINEUSE, Chargé de mission à l’Institut des Hautes Etudes sur la justice, 8 rue chanoinesse, 75004 Paris, FRANCE
Juan Ramón LIÉBANA ORTIZ, Associate Professor on Procedural Law, International University of La Rioja
Anne SANDERS, Juniorprofessorin, Rechts- und Staatswissenschaftliche Fakultät, Rheinische Friedrich-Wilhelms Universität Bonn, Adenauerallee 24-42, 53113 Bonn, GERMANY
Yinka TEMPELMAN, Quality Manager of the Dutch Council for the judiciary, Postbus 90613, 2509 LP The Hague, THE NETHERLANDS
INVITED DELEGATIONS / DELEGATIONS INVITEES
ALBANIA / ALBANIE
ALI LYSIEN, Chief of IT and Statistics Sector, The Information Technology Department, Ministry of Justice
ARDIAN BERISHA, Database Administrator, ICT/CMIS project, Kosovo Judicial Council
MOROCCO / MAROC
SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUE
Danka KOVALOVÁ, Director of the Analytical Unit, Ministry of Justice, BRATISLAVA
Zuzana SHUERER-PIOVARCIOVA, Adviser of the Analytical Unit, Ministry of Justice
TUNISIA / TUNISIE
OBSERVERS / OBSERVATEURS
EUROPEAN UNION OF RECHTSPFLEGER AND COURT CLERKS / UNION EUROPEENNE DES GREFFIERS DE JUSTICE (EUR)
Jean-Jacques KUSTER, Représentant de l’EUR, 24, rue de la Canardière, 67100 Strasbourg, FRANCE
INTERNATIONAL UNION OF JUDICIAL OFFICERS / UNION INTERNATIONALE DES HUISSIERS DE JUSTICE ET OFFICIERS JUDICIAIRES (UIHJ)
Mathieu CHARDON, Huissier de justice, Secrétaire général de l’UIHJ, 6 place du Colonel Fabien, 75019 PARIS, FRANCE
COUNCIL OF THE BARS AND LAW SOCIETIES OF THE EUROPEAN UNION / CONSEIL DES BARREAUX EUROPÉENS (CCBE): Apologised / Excusé
EUROPEAN EXPERTISE AND EXPERT INSTITUTE / INSTITUT EUROPEEN DE L’EXPERTISE ET DE L’EXPERT (EEEI) : Apologised / Excusé
EUROPEAN COMMISSION / COMMISSION EUROPEENNE: Apologised / Excusée
WORLD BANK / BANQUE MONDIALE: Apologised / Excusée
DGI - Human Rights and Rule of Law, Division for the independence and efficiency of justice /
DGI - Droits de l’Homme et Etat de droit, Division pour l’indépendance et l’efficacité de la justice
Hanne JUNCHER, Head of the Justice and Legal Co-operation Department / Service de la coopération judiciaire et juridique
Stéphane LEYENBERGER, Head of Division, Executive Secretary of the CEPEJ / Chef de la Division, Secrétaire exécutif de la CEPEJ
Yannick MENECEUR, Administrator / Administrateur
Leonid ANTOHI, Project coordinator
Stéphanie BUREL, Project coordinator, Albania, Kosovo* / Albanie, Kosovo*
*This designation is without prejudice to positions on status, and is in line with UNSCR 1244 and the ICJ Opinion on the Kosovo Declaration of Independence.
Guergana LAZAROVA-DECHAUX, Principal Administrative assistant / assistante administrative principale
Annette SATTEL, Administration et réseaux
Elisabeth HEURTEBISE, Assistant / Assistante
Emeline LLAS, Study Visitor / Visiteur d’étude
Daria CRIAU, Trainee / Stagiaire
Interpreters / Interprètes