23 July 2020

CEPEJ-GT-QUAL(2020)5

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

WORKING GROUP ON QUALITY OF JUSTICE (CEPEJ-GT-QUAL)

Questionnaire on centrality of the users in court proceedings related to civil matters

Foreword

The CEPEJ GT-QUAL has tasked two scientific experts[*] to carry out a preliminary study concerning the issue of the centrality of the users in court proceedings related to civil matters. The underlining idea of this exercise is that, considering court proceedings from the point of view of the users – and shaping the functioning of court proceedings accordingly – should finally increase the trust of citizens in the administration of justice.

Having considered the CoE’s standards related to access to justice as well as to the principle of a fair trial, the study aims at exploring the best relevant national practices in this field, which might even go beyond these standards.

You are kindly asked to give an answer to the following questions; it would be highly appreciated if you could quote the relevant sources (legislation, case law) and provide some concrete examples.

QUESTIONS

1.       The role and the position of the court user change significantly if a court user is a legal professional or another individual. In your legal system:

1.1.    Is the legal representation by a lawyer in court proceedings compulsory?

1.2.    In this case, is there any exception?

1.3.    If legal representation by a lawyer in court proceedings is not compulsory: does it often happen that individuals are not assisted by a lawyer in court proceedings?

2.       In the last years, the use of pre-established templates has become more and more frequent in court proceedings.

2.1.    Can you quote some example in your national judicial practice?

2.2.    If such templates are regularly used in court proceedings, is there still room for a certain flexibility to adapt templates to the specific circumstances of each case?

2.3.    According to your experience, did the use of templates prove to be helpful for court users? Please state the reasons why this is or not the case?

3.       One might think that some procedural steps or formal requirements set forth by national law are not actually aimed at ensuring a good administration of justice but are rather the result of tradition.

3.1.    Would you agree with such a statement?

3.2.    If yes, can you offer some examples of such an outdated regulation/interpretation of procedural law?

3.3.    Can you provide an example where such an outdated regulation/interpretation was simplified in order to avoid putting an excessive burden on the parties to the court proceedings?

4.       What happens in your legal system if a party’s submission does not meet the legal formal requirements? 

4.1.    Does each and any failure in complying with formal requirements make the act null and void?  

4.2.    Is it possible for the judge to declare a procedural act null and void for non-compliance with formal requirements if the act has, in concreto, achieved its purpose within the proceedings?

4.3.    Once having declared the act null and void, is the judge obliged to fix a deadline for the parties to regularise the act and/or provide for the missing information? Has this regularisation a retroactive effect?

5.       Failure to comply with a deadline and/or a procedural obligation might entail the loss of certain procedural rights or even directly affect the outcome of the proceedings. However, this can result either from a procedural obligation which was practically impossible to comply with or from errors/negligence of other actors of court proceedings.

5.1.    Could you provide us with some examples, if any, of these scenarios in your legal system?

5.2.    Does your legal system contain any legal remedy in order to avoid that procedural rights are irreparably lost in such scenarios?

5.3.    Would you agree with the idea that the loss of procedural rights can occur only in the presence of fault/negligence of the court user?

6.       Insofar as your system is articulated in multiple jurisdictions, please answer the following questions:

6.1.    Are there any legal remedies in order to avoid negative conflicts of jurisdiction which can lead to a denial of justice?

6.2.    Are there legal remedies aimed at reducing the negative effects of a situation in which a court user addresses his case to the wrong jurisdiction? Is the principle of translatio iudicii (meaning: the examination of the case, originally brought before the wrong court, should continue before the judge having jurisdiction without any prejudice for the party’s rights) is applied in your legal system?

6.3.    Do the same legal remedies or even the principle of translatio iudicii, apply where the court user has wrongly brought his case to a “separated specialised jurisdiction” (for instance: the administrative judge) instead of bringing it to the ordinary jurisdiction, or vice versa?

7.       In a legal system, several ways of appeal/legal remedies may be available against the same judgment.

7.1.    Is it the case of your legal system? Can you provide any example?

7.2.    How the relations between parallel remedies are regulated?

7.3.    Is this regulation clear enough to secure users’ procedural rights?

8.       An oral and public hearing constitutes a fundamental principle enshrined in Article 6 § 1 of the ECHR. The ECtHR case law has nuanced its absolute character, taking into account the nature of the issues to be decided by the competent national court as well as the level of jurisdiction.

8.1.    Can you briefly describe the situation of your judicial practice as concerns holding a hearing in first instance court proceedings? Can you indicate the main exception to holding a hearing?

8.2.    Is the court user entitled to take part personally to the hearing on his case? If this is the case:

8.2.1. Does the judge undergo a specific training in the view of ensuring a proper interaction with the user? is the judge expected to use a simple and understandable language?

8.2.2. Is there any way to avoid that user makes statements contra se which can irreparably affect the outcome of his case?

9.       The reasoning of a judicial decision is of crucial importance for the user – a properly reasoned decision can contribute to increasing the user’s feeling that his case has been duly heard and considered, irrespectively of its outcome.

9.1.    In your legal system, to which extent, is the judge required to provide the reasons for his decisions? Is there any kind of decision that can be unreasoned?

9.2.    Is the judge supposed to follow a certain structure (for instance: facts, party’s arguments, applicable law, interpretation of the applicable law, conclusions)?

9.3.    Does the judge undergo a specific training for legal drafting?

9.4.    Is the reasoning supposed to be concise?

9.5.    Is the reasoning supposed to be comprehensible even for non-professional court users?

9.6.    Does the obligation to provide the reasons of judicial decisions apply in the same way in first instance proceedings and in appeal proceedings?

10.   The introduction of digital means of communication between users and the courts may impair their accessibility because of an existing digital gap affecting some users.

         10.1 Is communication through electronic channels (email or a special website) between courts and users compulsory? If it is the case are there any exceptions?

         10.2 Is filing of lawsuits via an electronic platform mandatory? If it is the case are there any exceptions?

         10.3 What are the consequences for the users if they nevertheless send letters by mail?

         10.4 Is the attendance of hearing by videoconference compulsory?

         10.5 Is some specific help provided for users who do not know how to communicate by electronic means or conduct a videoconference?

11. In your point of view of judicial practitioner, which aspects of court proceedings in civil matters should be particularly tackled to improve the centrality of users?