Strasbourg, 22 October 2020

European judicial systems – CEPEJ Evaluation Report 2020 Evaluation cycle (2018 data)

Presentation of the Report

The European Commission for the Efficiency of Justice was set up by the Committee of Ministers of the Council of Europe in September 2002 and is today a unique body composed of qualified experts from the 47 member States of the Council of Europe. It develops tools and proposes concrete measures to improve the efficiency and quality of the public service of justice for the benefit of its users by:

-          promoting the effective implementation of existing Council of Europe instruments used for the organisation of justice;

-          ensuring that public policies concerning courts take into account the needs of the justice system users;

-          offering States effective solutions prior to the points at which an application would be submitted to the European Court of Human Rights and preventing violations of Article 6 of the European Convention on Human Rights, thereby contributing to reducing congestion in the Court.

In order to fulfil these tasks, the CEPEJ has undertaken since 2004 a regular process for evaluating every two years the judicial systems of the Council of Europe member States.

The CEPEJ 2020 Evaluation Report on "European Judicial Systems" is based on 2018 data. 45 member States of the Council of Europe as well as three observer States to the CEPEJ, Israel, Morocco and, for the first time, Kazakhstan, participated in this eighth biennial evaluation cycle.

This edition remains faithful to the evaluation process developed by the CEPEJ and to the methodology of data collection and quality control.

However, for the first time, the Report is composed of three different and complementary parts:

-        A first part "tables, graphs, analyses" which presents, on the basis of statistical tables/graphs, analyses of European trends on a series of data and themes chosen according to their importance for the judicial systems (budgets, professionals, court organisation, users, IT, efficiency and quality).

o This part presents both an overview of the state of play of judicial systems and the identification of trends in Europe. In order to allow a more interactive reading, each chapter is built around questions which the analyses presented attempt to answer. The general European trend is identified and the specific cases that deviate from it are highlighted.

o In order to better respond to current events, the Report also deals with issues such as the impact of e-Justice in the context of the Covid-19 crisis.

This first part also highlights some of the good practices developed in the member States so that the Report can also be a vehicle for exchanges between member States on the functioning of judicial systems. 

-        A 2nd part "Country profiles" which contains the main data and indicators developed by the CEPEJ presented in a synthetic way by country.

o The CEPEJ responds here to a strong expectation of countries in the field of judicial statistics. These country profiles allow users to situate a country in a European perspective thanks to the key data presented in relation to the European median.

o In addition to information on resources (human, financial), information on salaries or recruitment and promotion of judges and prosecutors is presented. The efficiency of the different courts (civil, criminal, administrative) at all levels of instance (1^st, 2^nd, supreme court) is analysed through performance indicators developed by the CEPEJ, the clearance rate (CR) (how effectively courts within a State or entity are keeping up with the incoming caseload) and the disposition time (DT) (the estimated number of days that are needed to bring pending cases to an end). The activity of public prosecution services is also measured.

o In order to answer current questions on the impact of the development of new technologies and the use that could be made of them in courts, an indicator of the development of ICTs in each judicial system, particularly through the rate of deployment according to the type of cases (civil, administrative, criminal) is also presented in these country profiles. 

-        - A 3rd part “CEPEJ-STAT”, the dynamic database of the CEPEJ which contains all the qualitative and quantitative data collected by the CEPEJ since 2010 as well as the comments accompanying each data.

o The database will be enriched with all the 2018 data collected through the CEPEJ evaluation questionnaire, the data presented in part 1 and the other data.

o It also contains various dashboards (synthesis of data, budget of judicial systems, new technologies, gender in courts). For this cycle, the CEPEJ has developed a new dashboard concerning efficiency.

European trends

Budget

-                      In 2018, European States spent on average more than 1 billion Euros for their judicial systems, equal to 72 € per inhabitant (8 € more than in 2016) and 0,33% of GDP. On average, member States allocated 65% of judicial system budget to courts, 24% to prosecution services and 11% to legal aid. Switzerland and Monaco are the countries that spend the most significant amount per inhabitant (220 € and 197 €), while Montenegro and Bosnia and Herzegovina dedicate to judicial system the highest percentage of their GDP (0.88% and 0.72%).

-                      Countries with a higher GDP per capita invest more per inhabitant in judicial systems, while less wealthy countries allocate more budget as a percentage of GDP, showing a greater budgetary effort for their judicial systems.

-                      Between 2010 and 2018, the member States and entities have slightly increased the average budget allocated to the judicial system. In 2018, all States and entities have increased the budget allocated to their judicial systems (+8%). The most significant increase (between 2016 and 2018), equal to 13% on average, has been recorded for courts’ budget and it concerns, in particular, investments in new buildings and computerisation.

-                      Less wealthy countries invest proportionally more on prosecution services (32% on average), while States and entities with higher GDP per capita spend relatively more in legal aid (19% on average).

-                      The budget allocated to courts seems to be related not only to the wealth of the country, but also to the number of courts. This may seem logical given that 65% of the court budget is spent on salaries.

-                      In order to rationalise budgetary resources of courts and, at the same time, reinforce specialisation and expertise, an increasing trend to outsource certain services is confirmed.

-                      Generally speaking, all the countries have implemented a legal aid system in criminal and other than criminal matters (representation by a lawyer before the court or legal advice), in compliance with the requirements of the European Convention on Human Rights and the case-law of the European Court which advocates an appropriate legal aid system to ensure access to justice for everyone.

-                      Some countries tend to have a low cost per legal aid case and a high number of cases granted legal aid, while others choose to provide a higher amount for a smaller number of cases.

Professionals

-          While the number of professional judges remains globally stable, 21 judges per 100 000 inhabitants on average, significant differences are still noticed between States and entities (from 3.1 in UK-England and Wales to 101.8 in Monaco per 100 000 inhabitants). The latter can be partly explained by the diversity of judicial organisations, use of occasional professional judges and/or lay judges. Variations over the years have not led towards harmonisation.

-          The number of prosecutors is tending to increase, on average 12 prosecutors per 100 000 inhabitants (in 2018, the number varies from 2.2 in Ireland to 25.1 in Ukraine).

-          31 Member States of 47 declared that public prosecutors are statutorily independent.

-          While the number of prosecutors increased, their workload decreased since 2010 from 4.2 to 3.1 cases per 100 inhabitants.

-          The trend towards the feminisation of judges and prosecutors is confirmed but the glass ceiling remains a reality: in 2018, at the level of all instances, there was 46% of men and 54% of women judges but 66 % male court presidents as opposed to 34 % of female court presidents; for the prosecutors : 48% of men and 52% of women but 64% of male and 36 % of female head of public prosecution offices. More and more States and entities seem to be focusing on the topic of specific provisions in favour of

-          gender parity in the procedures for the recruitment and promotion of judges and prosecutors. Taking measures to promote gender balance in the higher and highest justice functions should be encouraged.

-          The ratio between non-judge staff and professional judges is about 4 in 2018, this figure being quite stable through the years, the minimum being 1 in Luxembourg and the maximum 10 in UK - Northern Ireland.16 European States set up Rechtspfleger.

-          Salaries of judges vary widely between States and entities, but also between instances. The changes in salaries in recent years are not uniform and do not lead to harmonisation. The ratio between salaries of judges and national average salary shows significant disparities in Europe: from 0.9/1.6 in Germany (at the beginning /the end of career) to 4.8/31.5 in Ukraine (at the beginning /the end of career).

-          Meaningful disparities also persisted in the salaries of prosecutors. The ratio between salaries of prosecutors and national average salary shows significant disparities in Europe: from 0.8 in Ireland and 4.0 in Romania (at the beginning of the career); 1.6 in Germany and 6.4 in Italy (at the end of the career).  

-          Prosecutors’ salaries are, on average, lower than those of judges.

-          The number of lawyers is also continuing to increase in Europe, with an average of 164 lawyers per 100 000 inhabitants, with important disparities between States (in 2018, from 16 per 100 000 inhabitants in Azerbaijan to 488 per 100 000 inhabitants in Luxembourg). This constant increase between 2010 and 2018 (27%) is mainly due to economic growth.

-          Recent developments suggest that the topic of gender balance with regard to lawyers is being taken into account by an increasing number of States and entities. Currently, however, European lawyers are still predominantly male.

Courts

-          Between 2010 and 2018 there was a reduction in the number of courts in Europe, both in terms of legal entities (-19% on average for the first instance courts of general jurisdiction) and geographical locations (-10 % on average).

-           For the same period, we can also notice an increase in the specialization of courts (the average share of specialized courts increased from 21% to 26,7% from 2010 to 2018).

-          Small claims were only slightly affected by the above-mentioned developments. Only the average amount of what constitutes a small claim has increased (from 4 029 € in 2016 to 4 836 € in 2018).

Court users

-          More and more member States provide specific information to users, both on the judicial system in general and on individual court proceedings.

-          States address more and more specific information and arrangements to vulnerable categories of users (the complaints procedures regarding functioning of justice exist in 43 States, implementation of compensation systems (the average amount of compensation is 6 353 € in 2018), user satisfaction surveys, establishment of monitoring mechanisms in respect of violations of the European Convention on Human Rights).

-          In order to improve further social responsibility and trust in the judicial system, member States should devote additional resources and staff to improvecommunication with the users of justice.

-          The analyses and use of data, gathered through quantitative and qualitative research into the satisfaction of court users, increases the legitimacy of judicial systems and helps court leaders and administrations provide a better and more efficient service of justice.

-          The use of information systems to support such activities is crucial. However, it is “interactional justice “- the human touch, the treatment of all involved in judicial proceedings with dignity and respect, that substantially helps to provide just decisions and consequently build trust in justice.

Information and communication technology (ICT)

-          ICT has become a constitutive part of justice service provision. States have focused their efforts on court and case management tools, more then on decision support and communication tools. The general ICT index (court and case management, decision support and communication with courts) varies from 1.52 in Cyprus to 9.79 in Latvia.

-          European judicial systems are increasingly moving from paper-based procedures to electronic ones. This is true for the activities carried out within the courts, as well as for the communication exchanges between courts and all parties.

-          The economic cost of this innovation should be considered with caution as the ICT budget may vary considerably during the development, deployment and maintenance phases.

-          Court systems with comparatively higher resources generally tend to invest a higher percentage of the court budget in ICT.

-          ICT are an integral component of the judicial systems, which is reflected both in the regulatory and governance choices implemented by the member States.

-          Member States and entities have set up various solutions regarding leadership in ICT governance: most States tend to consider both of them equally relevant, with a slight prevalence of the judicial one.

-          As basic technologies are now generally fully deployed in member States and entities, this analysis has focused on court and case management tools, decision support tools and tools for communication between courts, professionals and/or court users, showing very high levels of deployment.

-          The high levels achieved in the areas of decision support, e-communication and remote proceedings increase the need to monitor the impact of these tools on principles such as fairness, impartiality and judicial independence.

Justice in the context of the Covid-19 crisis

-          ICTs have proven to be valuable and even indispensable tools for the continued work of judicial systems during the COVID-19 crisis in Europe.

-          In many cases, their use has required not only changes in legislation but also technical improvements, as has been observed in member States and entities.

-          Concerns have been expressed about the use of certain ICT tools in court proceedings, but it is still too early to assess their actual impact on the parties’ rights.

-          To address these issues, the CEPEJ has adopted on 10 June 2020 a  Declaration on lessons learnt and challenges faced by the judiciary during and after the Covid-19 Pandemic.

Efficiency

-          The clearance rates give a generally positive balance sheet (stable and close to 100%) and conclusions can be more usefully drawn from the disposition time analysis. Criminal justice is the most effective at all three levels of court (disposition time at first instance: 122 days; second instance: 104 days ; third instance: 114 days) and the second instance courts appear as the most efficient in all areas (disposition time in civil and commercial cases: 141 days; administrative cases: 209 days; criminal cases: 104 days). It should be noted that although the results are unquestionably positive, they have deteriorated over time in several States and entities analysed.

-          Conversely, it is at first instance and in the field of administrative law that the courts have proven to be the least efficient. Administrative cases tend to record the highest DT (241 days at 1^st instance, 209 days at 2^nd instance, 228 days at 3^rd instance) with, however, considerable disparities between States and entities.

-          Cases concerning asylum seekers and the right to entry and stay for aliens continue to have a strong impact on European jurisdictions. Many States and entities reported productivity problems related to these case types. In 2018, States received 291 443 cases concerning asylum seekers or 8 % fewer than in 2016. 183 920 incoming cases pertaining to the right to entry and stay for aliens represent an increase of 84 %. The highest number of incoming cases concerning asylum seekers was recorded in Germany, 149 593 cases. The second highest inflow is in France which received 58 671 asylum seekers cases and 79 807 right of entry and stay for aliens cases. Italy, then, received 48 891 asylum seekers cases and 2 224 right of entry and stay for aliens cases.

-          The share of cases older than two years is available for a limited set of States and entities. Within these, the shares of cases older than two years do not vary over time.

-          A number of States and entities have undergone or are currently undergoing significant justice sector reforms which have influenced the performance of their systems. The results of these States and entities need to be monitored cautiously and with an understanding of the context.