European Commission for the Efficiency of Justice (CEPEJ)
Compendium of “best practices” on time management of judicial proceedings
Compendium of “best practices” on time management of judicial proceedings
This Report has been adopted by the CEPEJ at its 8th plenary meeting (Strasbourg, 6 - 8 December 2006)
This document may be subject to editorial revision.
This document may be subject to editorial revision.
Foreword
This Compendium has been conceived by the European Commission for the Efficiency of Justice (CEPEJ) as a practical tool for policy makers and judicial practitioners so as to introduce new normative frameworks or judicial or administrative practices for improving time management of judicial proceedings both at the court level and at a national level.
This Compendium has been conceived by the European Commission for the Efficiency of Justice (CEPEJ) as a practical tool for policy makers and judicial practitioners so as to introduce new normative frameworks or judicial or administrative practices for improving time management of judicial proceedings both at the court level and at a national level.
The Compendium has been thought as a first map of concrete measures to deal with the length of judicial proceedings, which should be further investigated to validate their effectiveness. It will be regularly updated with further good practices and innovative ideas provided to the CEPEJ by European courts or other relevant bodies. Any contribution to this evaluative tool can be sent to the CEPEJ: cepej@coe.int.
The Compendium was prepared by the CEPEJ Task Force on timeframes of judicial proceedings (CEPEJ-TF-DEL), according to a preparatory work by Mr Marco Fabri and Mr Francesco Contini (Research Institute on Judicial Systems, National Research Council, Bologna, Italy). The CEPEJ-TF-DEL was chaired by Mr Alan Uzelac (Ph.D. Professor at the Faculty of Law, University of Zagreb, Croatia) and composed of Mr Jon Johnson (Professor in Law, Dean, Faculty of law, University of Oslo, Norway), Ms Janny Kranenburg (Vice-President, Court of Appeal of s’Hertogenbosch, Sector Civil Law Sec, The Netherlands), Mr John Stacey (Head of Civil & Family Procedure Branch, Her Majesty's Courts Service, London, United Kingdom), Mr Gabor Szeplaki-Nagy (Judge, Head of the Private Office of the President of the Supreme Court, Director of the Human Rights Office of the Supreme Court, Budapest, Hungary), Mr Michael Vrontakis (Vice-President of the State Council, Greece) and Ms Jana Wurstova (Czech Bar Association, Prague, Czech Republic). Mr Klaus Decker also participated in the Task Force as an observer in respect of the World Bank, and Mr Jean-Jacques Kuster as an Observer in respect of the European Union of Rechtspfleger and Court clerks.
The CEPEJ wishes to express its warm thanks to the scientific experts and the members of the CEPEJ-TF-DEL.
The CEPEJ wishes to express its warm thanks to the scientific experts and the members of the CEPEJ-TF-DEL.
The Report was adopted by the CEPEJ at its 8th plenary meeting (December 2006)
INTRODUCTION: FROM REASONABLE TIME TO "OPTIMUM" TIMEFRAMES
The length of judicial proceedings has been recognised as a priority within the objectives of the Council of Europe relating to human rights and the rule of law.
This work is a further step undertaken by the European Commission for the Efficiency of Justice (CEPEJ), which follows the adoption of its Framework Programme: “A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframes”, and the establishment of the CEPEJ Network of Pilot Courts.
It is worth to mentioning the three principles that have been considered as the cornerstone of the Framework Programme:
1) the principle of balance and overall quality of the judicial system,
2) the need to have efficient measuring and analysis tools defined by the stakeholders through consensus,
3) the need to reconcile all the requirements contributing to a fair trial, with a careful balance between procedural safeguards, which necessarily entail the existence of lengths that cannot be reduced, and a concern for prompt justice.
This work is a Compendium (a collection of concise but detailed information about a particular subject) of policies and practices that have been concretely undertaken in courts, as described by the CEPEJ Network of Pilot Courts, or that have been recommended by the Council of Europe in various norms and standards for the management of timeframes of judicial proceedings. Special attention has also been paid to the decisions of the European Court of Human Rights and to other documents that have been provided for by the CEPEJ, such as the “The time management checklist”, and country studies. Finally the literature in judicial administration which deals with case management and delay reduction has also been considered.
The Compendium has been built around the key concept of optimum and foreseeable Timeframes, which needs a brief explanation: as stated in the Framework Programme “we have become accustomed to referring to the concept of reasonable time as provided for in Article 6.1 of the European Convention of Human Rights. Yet this standard is a lower limit (which draws the border line between the violation and non-violation of the Convention) and should not be considered as an adequate outcome where it is achieved”. Therefore the goal must be the timeliness of judicial proceedings, which means cases are managed and then disposed in due time, without undue delays. In order to do that, courts and policy makers need a tool to measure if cases are disposed in due time, to quantify delays, and to assess if the policies and practices undertaken are functional and consistent to the general objective of timeliness case processing. Timeframes are this tool".
Timeframes are inter-organisational and operational tools to set measurable targets and practices for timeliness case proceedings.
Inter-organisational means that since the length of judicial proceedings is the result of the interplay between different players (judges, administrative personnel, lawyer, expert witnesses, prosecutors, police etc.), timeframes have to be goals shared and pursued by all of them. The stakeholders’ involvement is necessary for at least three reasons: 1) it helps to build the commitment among all the key players, 2) it creates a proper environment for the development of innovative policies, 3) it points out that the responsibility for timely case processing is not just in the court operations but also includes other players, in primis the lawyers. Therefore, if the issue at stake is to tackle length of proceedings, it seems more appropriate to talk of “timeliness case processing” rather than “timeliness court processing”.
Operational tools means that there are targets to measure to what extent each court, and more generally the administration of justice, meets the timeliness of case processing, fulfilling the principle of fair trial within a reasonable time stated by the European Convention on Human Rights.
Therefore the setting of timeframes is a condition sine qua non to start measuring and comparing case processing delays, which will be the difference between the actual situation and the expected timeframes, and to assess the policies implemented to reduce the lengths of case processing. From a policy making, as well as from a managerial perspective, having timeframes is a prerequisite for evaluating the results of the efforts made to improve the lengths of judicial proceedings.
This Compendium has used a bottom-up approach. Policies and practices have been identified through the analysis of the documents mentioned above and then classified in five main groups:
1. Setting realistic and measurable timeframes,
1. Setting realistic and measurable timeframes,
2. Enforcing the timeframe,
3. Monitoring and dissemination of data,
4. Procedural and case management policies and practices,
5. Caseload and workload policies.
Within these five policies, a list of practices has been singled out as reported by the Pilot Courts, the Recommendations or other documents of the Council of Europe, and the literature based on empirical research. For each policy and practice selected appear a brief comment, one or more concrete examples, and a reference section. Four appendices complete the Compendium. The first one is a brief glossary of terms to clarify the definition of the concepts considered. The second one is a summary analysis of the Council of Europe's Recommendations dealing with management of timeframes and timeliness of procedures. The third one is the bibliography. Finally, the list of the Pilot Courts with their contact details, which may be used to obtain information.
Within these five policies, a list of practices has been singled out as reported by the Pilot Courts, the Recommendations or other documents of the Council of Europe, and the literature based on empirical research. For each policy and practice selected appear a brief comment, one or more concrete examples, and a reference section. Four appendices complete the Compendium. The first one is a brief glossary of terms to clarify the definition of the concepts considered. The second one is a summary analysis of the Council of Europe's Recommendations dealing with management of timeframes and timeliness of procedures. The third one is the bibliography. Finally, the list of the Pilot Courts with their contact details, which may be used to obtain information.
1.Setting realistic and measurable timeframes
This is the fundamental step of each administration of justice towards timeliness of case processing. They should be established at three levels. At the State level as a general framework. At the court level to suit court features and local contingencies. At the judge level to have a real impact on the day-to-day court operations and practices. They should be designed and implemented with the active support of the stakeholders (in primis court personnel and lawyers, but also expert witnesses, social workers, police etc.). In order to be effective tools for the management of case processing, they have to be clearly measurable. Realistic timeframes may be compared among the different judiciaries that have a similar justice system (i.e. institutional governance, structure, procedural approach). The creation of clusters of countries with structural similarities may help knowledge sharing, promotion of common solutions, establishment of realistic benchmarks, and an effective learning process. Timeframes should be considered different from time limits. The latter are specific procedural rules that refer to a specific case; timeframes are inter-organisational tools to deal with targets and objective related to the timeliness of proceedings and court caseload, and therefore to the whole functioning of the court.
This is the fundamental step of each administration of justice towards timeliness of case processing. They should be established at three levels. At the State level as a general framework. At the court level to suit court features and local contingencies. At the judge level to have a real impact on the day-to-day court operations and practices. They should be designed and implemented with the active support of the stakeholders (in primis court personnel and lawyers, but also expert witnesses, social workers, police etc.). In order to be effective tools for the management of case processing, they have to be clearly measurable. Realistic timeframes may be compared among the different judiciaries that have a similar justice system (i.e. institutional governance, structure, procedural approach). The creation of clusters of countries with structural similarities may help knowledge sharing, promotion of common solutions, establishment of realistic benchmarks, and an effective learning process. Timeframes should be considered different from time limits. The latter are specific procedural rules that refer to a specific case; timeframes are inter-organisational tools to deal with targets and objective related to the timeliness of proceedings and court caseload, and therefore to the whole functioning of the court.
1.1. Setting of timeframes at the state, court, and judge level
Timeframes should be considered as tools used to achieve the timeliness of case processing. This means that the timeframes have to fit the contingencies of the so called “local legal culture”. In order to do so they have to be defined at three levels: a) Statewide level, as a general framework, b) Court or court district level, which should adapt the statewide timeframes to the local context, c) Court “elementary unit” level (e.g. chamber, panel, single judge), to adapt to specific customs and procedures that may be applied in the day-to-day operations.
Examples
§ Finland (Rovaniemi Court of Appeal) − targets are agreed every year in the budget negotiations between the Court and the Ministry of justice. It has been agreed that all the cases should be solved in less time than a year.
§ Finland (Turku District Court) − targets and objectives are negotiated annually by the head of court and the head of each court unit. Optimum timeframes for each type of cases are also agreed. The head of each court unit makes an agreement with each judge of the unit about the targets.
§ Finland (Turku Regional Administrative Court) − targets and objectives of every court unit (also called sector or section) are negotiated annually by the head of court and the head of each unit. Also the optimum timeframe for each type of case are agreed. Therefore, the head judge of each unit negotiates and makes an agreement with each judge and referendary of the unit about the target.
§ Slovenia (Maribor and Novo Mesto District Court) − court rules sets a timeframe of 18 months after the case has been presented before the court. If a decision is not taken within 18 months, the case is considered delayed. The head of court may ask the judge in charge of the case to report the circumstances why a decision has not been reached.
§ Sweden − targets for civil and criminal cases are set up by the Government. All units within the court define their targets.
Reference
Timeframes should be considered as tools used to achieve the timeliness of case processing. This means that the timeframes have to fit the contingencies of the so called “local legal culture”. In order to do so they have to be defined at three levels: a) Statewide level, as a general framework, b) Court or court district level, which should adapt the statewide timeframes to the local context, c) Court “elementary unit” level (e.g. chamber, panel, single judge), to adapt to specific customs and procedures that may be applied in the day-to-day operations.
Examples
§ Finland (Rovaniemi Court of Appeal) − targets are agreed every year in the budget negotiations between the Court and the Ministry of justice. It has been agreed that all the cases should be solved in less time than a year.
§ Finland (Turku District Court) − targets and objectives are negotiated annually by the head of court and the head of each court unit. Optimum timeframes for each type of cases are also agreed. The head of each court unit makes an agreement with each judge of the unit about the targets.
§ Finland (Turku Regional Administrative Court) − targets and objectives of every court unit (also called sector or section) are negotiated annually by the head of court and the head of each unit. Also the optimum timeframe for each type of case are agreed. Therefore, the head judge of each unit negotiates and makes an agreement with each judge and referendary of the unit about the target.
§ Slovenia (Maribor and Novo Mesto District Court) − court rules sets a timeframe of 18 months after the case has been presented before the court. If a decision is not taken within 18 months, the case is considered delayed. The head of court may ask the judge in charge of the case to report the circumstances why a decision has not been reached.
§ Sweden − targets for civil and criminal cases are set up by the Government. All units within the court define their targets.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Lines of action 3 and 4 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ Time management checklist, Indicator two, “Established standards for duration of proceedings” (CEPEJ (2005)12)
§ Reducing judicial time in the Nordic countries: 1 - 51 (CEPEJ(2006)14)
§ National Centre for State Courts (2005), Courtools, measures 1, 3 and 4.
§ Mahoney, B. (1988). Changing Times in Trial Courts. Williamsburg VA: National Centre for State Courts.
§ Mahoney, B., and Sipes, L. (1985). “Zeroing on Court Delay: The Powerful Tools of Time Standards and Managed Information”. Court Management Journal. 8.
§ Steelman, D. (2000). Case-flow Management: The Heart of Court Management in the New Millennium. Williamsburg, VA., National Centre for State Courts.
1.2. Setting of timeframes for kind of procedure
Timeframes make more sense if they are set up allowing for the different kinds of procedure (civil, criminal, administrative, enforcement, etc.). Their definition must consider the court organisation and procedural aspects of each country.
Examples
§ Denmark (Esbjerg District Court) − 58% of the civil cases should be disposed within 1 year, 63% of the criminal cases should be disposed within 2 months and 95% within 6 months.
§ Norway − the timeframes are proposed by the Ministry of Justice with consent from the Norwegian Parliament. As of today, 100% of civil cases should be disposed in six months, 100% of criminal cases in three months.
Reference
§ Information given by the CEPEJ Network of Pilot courts
Timeframes make more sense if they are set up allowing for the different kinds of procedure (civil, criminal, administrative, enforcement, etc.). Their definition must consider the court organisation and procedural aspects of each country.
Examples
§ Denmark (Esbjerg District Court) − 58% of the civil cases should be disposed within 1 year, 63% of the criminal cases should be disposed within 2 months and 95% within 6 months.
§ Norway − the timeframes are proposed by the Ministry of Justice with consent from the Norwegian Parliament. As of today, 100% of civil cases should be disposed in six months, 100% of criminal cases in three months.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Lines of action 3 and 4 of the CEPEJ Framework Programme (CEPEJ (2004)19)
§ Time management checklist, Indicator three, “Sufficiently elaborated typology of cases” (CEPEJ (2005)12)
§ National Center for State Courts (2005), Courtools, measures 1, 3 and 4.
§ Steelman, D. (2000). Case-flow Management: The Heart of Court Management in the New Millennium. Williamsburg, VA., National Center for State Courts.
§ Woolf, H. (1996). Access to Justice: Final Report. London, Lord Chancellor Office.
1.3. Setting timeframes for the main stages of a procedure
Timeframes are even more effective if they are set not only for the different procedures, but if they are also set taking into consideration the main procedural stages (i.e. pre-trial, indictment, trial etc.).
Example
§ Ireland (Dublin Commercial Court) − all aspects of cases in the Commercial Court are monitored and time periods calculated in respect of various stages within each case on an ongoing basis.
Reference
Timeframes are even more effective if they are set not only for the different procedures, but if they are also set taking into consideration the main procedural stages (i.e. pre-trial, indictment, trial etc.).
Example
§ Ireland (Dublin Commercial Court) − all aspects of cases in the Commercial Court are monitored and time periods calculated in respect of various stages within each case on an ongoing basis.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Time management checklist, Indicator four, “Ability to monitor course of proceedings” (CEPEJ(2005)12)
§ Lines of action 3 and 4 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ Time management checklist, Indicator four, “Ability to monitor course of proceedings” (CEPEJ(2005)12)
§ National Center for State Courts (2005), Courtools, measures 1, 3 and 4.
§ Cooper, C., Solomon, M., and Bakke, H. (1993). Differentiated Case-flow Management. Washington D.C.: Department of Justice.§ Steelman, D. (2000). Case-flow Management: The Heart of Court Management in the New Millennium. Williamsburg, VA., National Center for State Courts.
§ New South Wales Audit Office. (1998). Performance audit report: management of court waiting times: The New South Wales Audit Office.
§ Woolf, H. (1996). Access to Justice: Final Report. London, Lord Chancellor Office.
1.4. Setting timeframes for case complexity
Timeframes can also be established with reference to the “case complexity”, which should be defined by thecourt with the contribution of the parties. The establishment of these timeframes is related to the so called “multi-track” approach to case management, where each case is assigned to a specific procedural track based on its complexity.
Example
§ UK – England and Wales (Manchester) − 80% of small claims should be disposed in 15 weeks, 85% of cases assigned to a so called fast track procedure should be disposed in 30 weeks, 85% of case assigned to the so called multi track procedure should be disposed of in 50 weeks.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Lines of action 4 and 10 of the CEPEJ Framework Programme (CEPEJ(2004)19)
Timeframes can also be established with reference to the “case complexity”, which should be defined by thecourt with the contribution of the parties. The establishment of these timeframes is related to the so called “multi-track” approach to case management, where each case is assigned to a specific procedural track based on its complexity.
Example
§ UK – England and Wales (Manchester) − 80% of small claims should be disposed in 15 weeks, 85% of cases assigned to a so called fast track procedure should be disposed in 30 weeks, 85% of case assigned to the so called multi track procedure should be disposed of in 50 weeks.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Lines of action 4 and 10 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ Recommendation R (95) 12 of the Council of Europe on the management of criminal justice.
§ Time management checklist, Indicator three, “Sufficiently elaborated typology of cases”, (CEPEJ(2005)19)
§ National Center for State Courts (2005), Courtools, measures 1, 3 and 4.§ Steelman, D. (2000). Case-flow Management: The Heart of Court Management in the New Millennium. Williamsburg, VA., National Center for State Courts.
§ Woolf, H. (1996). Access to Justice: Final Report. London, Lord Chancellor Office.
1.5. Setting timeframes in collaboration with justice stakeholders
The building and maintenance process of setting realistic timeframes must involve the stakeholders at the different levels (state, court, single unit). Setting timeframes is not a once for all event, but it has to be a continuous process built through consensus and shared objectives between the stakeholders.
Examples
§ Finland (Rovaniemi Court of Appeal) − there is a tailored program for each case and directions are given informing the parties should be informed about the estimated timeframe of the pre-trial phase, pre-trial hearings and trial. Detailed hearing timetables are sent beforehand to the parties. The lawyers and prosecutors are copied in for comments.
§ Finland (Turku District Court) − several discussions take place between the judges and the local lawyers in order to come up with common ideas and guidelines on how to improve the efficiency of justice including the length of procedure.
§ Germany (Stuttgart Regional Court of Appeal) − regular meetings with lawyers are organised to discuss customer satisfaction and problems with the service delivered by the court.
§ Sweden (Huddinge District Court) − timeframes for each civil case are setting up in cooperation with the users.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Line of action 7 and 14 of the CEPEJ Framework Programme (CEPEJ(2004)19)
The building and maintenance process of setting realistic timeframes must involve the stakeholders at the different levels (state, court, single unit). Setting timeframes is not a once for all event, but it has to be a continuous process built through consensus and shared objectives between the stakeholders.
Examples
§ Finland (Rovaniemi Court of Appeal) − there is a tailored program for each case and directions are given informing the parties should be informed about the estimated timeframe of the pre-trial phase, pre-trial hearings and trial. Detailed hearing timetables are sent beforehand to the parties. The lawyers and prosecutors are copied in for comments.
§ Finland (Turku District Court) − several discussions take place between the judges and the local lawyers in order to come up with common ideas and guidelines on how to improve the efficiency of justice including the length of procedure.
§ Germany (Stuttgart Regional Court of Appeal) − regular meetings with lawyers are organised to discuss customer satisfaction and problems with the service delivered by the court.
§ Sweden (Huddinge District Court) − timeframes for each civil case are setting up in cooperation with the users.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Line of action 7 and 14 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ National Center for State Courts (2005), Courtools measures 1, 2 and 3.§ Svela, A., Ed. (2006). Evaluation of the quality of the adjudication in courts of law; Principles and proposed Quality Benchmarks. Oulu, Painotalo Suomenmaa.
2. Enforcing the timeframes
Timeframes are not designed and implemented in a vacuum. They are organisational tools that, in order to give the expected results need to be shared and supported by the stakeholders and, in particular, by the people who work in the organisation. Therefore it is necessary to create an organisational environment to support and enforce timeframes, which will be affected by the institutional setting of the justice system (e.g. structure of the judiciary, role of the chief judge, sensitiveness about judges’ internal independence etc.). Also, other agencies and the bar associations should support the enforcement, which should also be mentioned in the ethical rules for lawyers.
Timeframes are not designed and implemented in a vacuum. They are organisational tools that, in order to give the expected results need to be shared and supported by the stakeholders and, in particular, by the people who work in the organisation. Therefore it is necessary to create an organisational environment to support and enforce timeframes, which will be affected by the institutional setting of the justice system (e.g. structure of the judiciary, role of the chief judge, sensitiveness about judges’ internal independence etc.). Also, other agencies and the bar associations should support the enforcement, which should also be mentioned in the ethical rules for lawyers.
2.1 Internal actions if the pending cases pass the timeframes
The enforcement of timeframes may be achieved by solutions found within the court system. Interventions from the court manager, the chief judge or the Court of Appeal should be considered. They may start by default or after a complaint by the party. Judges should be immediately informed about their excessive delays. The caseload may be reallocated, or if the excessive delays are the responsibility of judges, they may result in disciplinary action. Some pressure may also come from the court manager, depending on the court organisation.
Examples
§ Austria (Linz District Court) − all the judges receive a summary including the numbers of all the pending cases classified by duration (i.e. more than 1, 2 or 3 years). The heads of courts undertake consistent activities with this information such as balancing the caseload or commencing disciplinary proceedings. Parties can request the Court of Appeal to fix a time limit for special parts of proceedings, if they believe the judge’s activities are not on time.
§ Finland (Turku District Court) − the head of court confers annually with every judge. In these conversations all cases that are considered pending for too long are discussed.
§ Germany (Stuttgart Regional Court of Appeal) − there is a system of inspections (Nachshau) through which the upper judges visit periodically the lower courts to control all cases pending longer than a certain period.
§ Hungary (Veszprem Municipal Court) − theupper court monitors the monthly report of the lower judge, checking monthly the settling of pending cases older than 2 years.
§ Latvia (Riga Central District Court) − once a week the head of court holds meetings with the judges to discuss problems and solutions related to timely examination of cases. Judges are accountable and may be disciplined for the delay in case processing.
§ Norway (Frostating Lagmannsrett) − the head of the district court can take the necessary measures to cope with the slowness of procedures, including reassigning the case to another judge.
§ Norway (Midhordland Tingrett District Court) − The head of district court makes monthly inspections and obtains monthly statistical reports showing for the court’s total processing hours. There is a procedure that enables the parties to complain about a judge to the Supervisory Council for judges.
§ Slovenia (Maribor District Court, Nova Gorica District Court) − complaints from a party about the excessive length of the procedure may lead to an intervention by the head of court to speed up the proceeding.
§ Sweden (Huddinge District Court) − pending cases are analysed by the Head of court who may ask for explanation.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Time management checklist, Indicator five, “Means to promptly diagnose delays and mitigate their consequences” (CEPEJ (2005)12).
The enforcement of timeframes may be achieved by solutions found within the court system. Interventions from the court manager, the chief judge or the Court of Appeal should be considered. They may start by default or after a complaint by the party. Judges should be immediately informed about their excessive delays. The caseload may be reallocated, or if the excessive delays are the responsibility of judges, they may result in disciplinary action. Some pressure may also come from the court manager, depending on the court organisation.
Examples
§ Austria (Linz District Court) − all the judges receive a summary including the numbers of all the pending cases classified by duration (i.e. more than 1, 2 or 3 years). The heads of courts undertake consistent activities with this information such as balancing the caseload or commencing disciplinary proceedings. Parties can request the Court of Appeal to fix a time limit for special parts of proceedings, if they believe the judge’s activities are not on time.
§ Finland (Turku District Court) − the head of court confers annually with every judge. In these conversations all cases that are considered pending for too long are discussed.
§ Germany (Stuttgart Regional Court of Appeal) − there is a system of inspections (Nachshau) through which the upper judges visit periodically the lower courts to control all cases pending longer than a certain period.
§ Hungary (Veszprem Municipal Court) − theupper court monitors the monthly report of the lower judge, checking monthly the settling of pending cases older than 2 years.
§ Latvia (Riga Central District Court) − once a week the head of court holds meetings with the judges to discuss problems and solutions related to timely examination of cases. Judges are accountable and may be disciplined for the delay in case processing.
§ Norway (Frostating Lagmannsrett) − the head of the district court can take the necessary measures to cope with the slowness of procedures, including reassigning the case to another judge.
§ Norway (Midhordland Tingrett District Court) − The head of district court makes monthly inspections and obtains monthly statistical reports showing for the court’s total processing hours. There is a procedure that enables the parties to complain about a judge to the Supervisory Council for judges.
§ Slovenia (Maribor District Court, Nova Gorica District Court) − complaints from a party about the excessive length of the procedure may lead to an intervention by the head of court to speed up the proceeding.
§ Sweden (Huddinge District Court) − pending cases are analysed by the Head of court who may ask for explanation.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Time management checklist, Indicator five, “Means to promptly diagnose delays and mitigate their consequences” (CEPEJ (2005)12).
2.1. Distinction and integration of organisational functions between the head of court and the court manager.
The head of court and a court manager have different tasks that should be supported by different set of skills and competences. While the head of court should deal mainly with “judicial management”, implementing strategies to guarantee a high “legal quality” of courts decisions, the court manager should be involved with the “management of the court organisation”. This should entail tasks such as planning, project management, and organisation of administrative personnel that are not the responsibility of heads of courts. Finally, since the overall outcome of a court depends heavily on the interplay between judges and administrative staff, it is important to set up a system capable building a shared responsibility between the head of court and the court administrator for the overall management of the office.
Example
§ The Netherlands − Courts are governed by the principle of “Integral management”. The responsibility for the functioning of a court is shared by all the members of the board (court president, head of each division (vice-presidents) and a court director (non-judge)) who control and review the performances of judges and administrative staff.
Reference
§ Albers, P., Borzova, I., and Goth-Flemmisch, B. (2004). Practical ways for combating delay in justice system (CEPEJ (2004)5)
The head of court and a court manager have different tasks that should be supported by different set of skills and competences. While the head of court should deal mainly with “judicial management”, implementing strategies to guarantee a high “legal quality” of courts decisions, the court manager should be involved with the “management of the court organisation”. This should entail tasks such as planning, project management, and organisation of administrative personnel that are not the responsibility of heads of courts. Finally, since the overall outcome of a court depends heavily on the interplay between judges and administrative staff, it is important to set up a system capable building a shared responsibility between the head of court and the court administrator for the overall management of the office.
Example
§ The Netherlands − Courts are governed by the principle of “Integral management”. The responsibility for the functioning of a court is shared by all the members of the board (court president, head of each division (vice-presidents) and a court director (non-judge)) who control and review the performances of judges and administrative staff.
Reference
§ Albers, P., Borzova, I., and Goth-Flemmisch, B. (2004). Practical ways for combating delay in justice system (CEPEJ (2004)5)
§ Ng, G.Y. (2005). Nederland. In M. Fabri, J.-P. Jean, P. Langbroek and H. Pauliat (Eds.). L’administration de la justice en Europe et l’évaluation de sa qualité. Paris, Montchrestien: 301-320.
2.2. Team approach to manage the cases within the timeframes
The effective management of cases within the timeframes should be a continuous learning process of the whole court organisation with the participation of the stakeholders. A team approach is an asset to support this learning process.
Examples
§ Finland (Turku District Court) − in the executive group of the court, there are representatives of all categories of personnel.
§ Finland (Rovaniemi Court of Appeal) − has established a team system and it is the responsibility of each team to achieve its planned results each month.
§ Norway (Frostating Lagmannsrett) − regular meetings of the court staff to increase the esprit de corps within the court and to reduce the “gap” between judges and officials working towards a shared goal.
Reference
The effective management of cases within the timeframes should be a continuous learning process of the whole court organisation with the participation of the stakeholders. A team approach is an asset to support this learning process.
Examples
§ Finland (Turku District Court) − in the executive group of the court, there are representatives of all categories of personnel.
§ Finland (Rovaniemi Court of Appeal) − has established a team system and it is the responsibility of each team to achieve its planned results each month.
§ Norway (Frostating Lagmannsrett) − regular meetings of the court staff to increase the esprit de corps within the court and to reduce the “gap” between judges and officials working towards a shared goal.
Reference
§ Information given by the Pilot courts§ Line of action 15 of the CEPEJ Framework Programme (CEPEJ(2004)19)§ Reducing judicial time in the Nordic countries: 1 - 51 (CEPEJ(2006)14)
2.4. Strong court commitment and leadership in carrying on timeframes
Courts should acquire a leading role and a strong commitment in setting timeframes and in carrying out actions in pursuing them. Commitment and leadership may be encouraged by incentives for the court personnel, leading to an increase in court resources relative to results achieved.
Examples
§ Italy (Turin First Instance Court) − a strong commitment by the head of court and the whole court personnel led to the implementation of the “Strasbourg Programme” to improve the length of proceedings.
§ United Kingdom (London County Court) − various users’ groups have been established to share objectives and carry out common actions.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Crystal Scale of Justice Awards 2006 – Special Mention awarded to the District Court of Torino
§ Reducing judicial time in the Nordic countries: 1 - 51 (CEPEJ(2006)14)
Courts should acquire a leading role and a strong commitment in setting timeframes and in carrying out actions in pursuing them. Commitment and leadership may be encouraged by incentives for the court personnel, leading to an increase in court resources relative to results achieved.
Examples
§ Italy (Turin First Instance Court) − a strong commitment by the head of court and the whole court personnel led to the implementation of the “Strasbourg Programme” to improve the length of proceedings.
§ United Kingdom (London County Court) − various users’ groups have been established to share objectives and carry out common actions.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Crystal Scale of Justice Awards 2006 – Special Mention awarded to the District Court of Torino
§ Reducing judicial time in the Nordic countries: 1 - 51 (CEPEJ(2006)14)
2.5. External pressure to support timeframes
Some kind of positive pressure to deal with a case progression delays can be brought from “external” institutions, such as ombudsman, non profit organisations (e.g. court watch groups), media, bar associations etc. to emphasise the importance of timeliness in court proceedings. This positive pressure may be helped through the transparency and dissemination of court data.
Example
§ Finland (Turku District Court) − It is always possible to contact the head of court and ask for an explanation for delay. A working group is debating possibilities to find out ways to submit complaints to the court.
Reference
Some kind of positive pressure to deal with a case progression delays can be brought from “external” institutions, such as ombudsman, non profit organisations (e.g. court watch groups), media, bar associations etc. to emphasise the importance of timeliness in court proceedings. This positive pressure may be helped through the transparency and dissemination of court data.
Example
§ Finland (Turku District Court) − It is always possible to contact the head of court and ask for an explanation for delay. A working group is debating possibilities to find out ways to submit complaints to the court.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Gramckow, H. 2005. Can US-type court management approaches work in civil law systems? European Journal on Criminal Policy and Research (11): 97–120.
2.6. Pilot approach to develop timeframes
Timeframes need to be tested and piloted before implementing them all over the country. Pilot courts and single units within the courts will be a valuable source of information for any further advancement.
Example
§ Finland (Turku District Court and Rovaniemi Court of Appeal) − the “quality project” has been piloted with satisfaction. It may be implemented and customised by other courts.
Reference
Timeframes need to be tested and piloted before implementing them all over the country. Pilot courts and single units within the courts will be a valuable source of information for any further advancement.
Example
§ Finland (Turku District Court and Rovaniemi Court of Appeal) − the “quality project” has been piloted with satisfaction. It may be implemented and customised by other courts.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Svela, A., Ed. (2006). Evaluation of the quality of the adjudication in courts of law; Principles and proposed Quality Benchmarks. Oulu, Painotalo Suomenmaa.
3. Monitoring and dissemination of data
What is not measured cannot be evaluated and improved, so the constant monitoring of pending cases is a key element for the setting and the development of timeframes. This is something more than the “traditional” court statistics. Quantitative data has to be finalised to create useful reports to monitor and highlight the length of proceedings. It is self-evident how an automated information system can ease the monitoring of pending cases but effective and simple monitoring can also be done manually. In this respect, the CEPEJ “Time management checklist” is a useful tool.
What is not measured cannot be evaluated and improved, so the constant monitoring of pending cases is a key element for the setting and the development of timeframes. This is something more than the “traditional” court statistics. Quantitative data has to be finalised to create useful reports to monitor and highlight the length of proceedings. It is self-evident how an automated information system can ease the monitoring of pending cases but effective and simple monitoring can also be done manually. In this respect, the CEPEJ “Time management checklist” is a useful tool.
3.1 Separate attention to standstill time due to inactivity on the parties and or the courts
Cases may be delayed because of the inactivity of parties. These cases have to be specifically monitored and addressed in a different way from those cases (active pending) that need a court intervention to proceed.
Examples
§ Austria (Linz District Court) − each case with no new entry in the electronic registry for more than three months appears automatically into a checklist. This list is handed out monthly to the head of court and to the judges and their staff for controlling.
§ Finland (Turku Regional Administrative Court) − all steps in the proceedings of each case are registered in the case management system. All the waiting times can be monitored and analysed.
§ Lithuania (Regional Administrative Court Vilnius) − inactive cases for more than three months are brought to the attention of the head of court.
§ Norway (Frostating Lagmannsrett Court of Appeal) − the length of proceedings are monitored and evaluated with statistical measures as a routine, at least every three months.
Reference
Cases may be delayed because of the inactivity of parties. These cases have to be specifically monitored and addressed in a different way from those cases (active pending) that need a court intervention to proceed.
Examples
§ Austria (Linz District Court) − each case with no new entry in the electronic registry for more than three months appears automatically into a checklist. This list is handed out monthly to the head of court and to the judges and their staff for controlling.
§ Finland (Turku Regional Administrative Court) − all steps in the proceedings of each case are registered in the case management system. All the waiting times can be monitored and analysed.
§ Lithuania (Regional Administrative Court Vilnius) − inactive cases for more than three months are brought to the attention of the head of court.
§ Norway (Frostating Lagmannsrett Court of Appeal) − the length of proceedings are monitored and evaluated with statistical measures as a routine, at least every three months.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Lines of action 5 and 12 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ Time management checklist, Indicator six, “Use of modern technology as a tool for time management in the justice system” (CEPEJ (2005)12).
§ National Center for State Courts (2005), Courtools measure 2.
§ New South Wales Audit Office. (1998). Performance audit report: management of court waiting times: The New South Wales Audit Office.
3.2 Data on court performance available to all court staff
All the court personnel should have access to detailed data about court performance and, in particular, on the length of the procedures. Data should be available to allow comparisons and improve internal transparency.
Examples
§ Denmark (Esbjerg District Court) − court statistics are used internally by the court’s manager for evaluation and monitoring of the time of processing each case and the court’s productivity.
§ Finland (Turku Regional Administrative Court) − statistics are produced monthly and sent by e-mail to all the judicial staff.
§ Finland (Turku District Court) − each court publishes annual reports that contain information about timeframes and applied strategies.
§ Latvia (Riga Central District Court) − court administration, all court’s staff and other courts have an access to the Courts’ Informative System, which provides data about the cases.
Reference
All the court personnel should have access to detailed data about court performance and, in particular, on the length of the procedures. Data should be available to allow comparisons and improve internal transparency.
Examples
§ Denmark (Esbjerg District Court) − court statistics are used internally by the court’s manager for evaluation and monitoring of the time of processing each case and the court’s productivity.
§ Finland (Turku Regional Administrative Court) − statistics are produced monthly and sent by e-mail to all the judicial staff.
§ Finland (Turku District Court) − each court publishes annual reports that contain information about timeframes and applied strategies.
§ Latvia (Riga Central District Court) − court administration, all court’s staff and other courts have an access to the Courts’ Informative System, which provides data about the cases.
Reference
§ Information given by the CEPEJ Network of Pilot courts.
§ Time management checklist, Indicator six, “Use of modern technology as a tool for time management in the justice system” (CEPEJ (2005)12).
3.3 Data on court performance made available to public scrutiny
Easily accessible and readable data about court performance should be available for public scrutiny, and to improve court transparency and public trust.
Examples
§ Albania (Tirana District Court) − data about the length of proceedings or the postponements of hearing are available on the web site.
§ Finland (Regional Administrative court of Turku) − publication of the yearbook of justice statistics and of an annual report on the performance of the courts. Court annual reports containing statistics of pending times of different types of cases are published on the Internet.
§ Slovenia (Nova Gorica District Court) − statistics are published in the annual report of the Ministry of Justice.
§ Spain (Commercial Court no. 3 of Barcelona) − every three months each court must produce statistics of pending cases to be published by the Consejo general del poder judicial (Judicial Council).
Reference
Easily accessible and readable data about court performance should be available for public scrutiny, and to improve court transparency and public trust.
Examples
§ Albania (Tirana District Court) − data about the length of proceedings or the postponements of hearing are available on the web site.
§ Finland (Regional Administrative court of Turku) − publication of the yearbook of justice statistics and of an annual report on the performance of the courts. Court annual reports containing statistics of pending times of different types of cases are published on the Internet.
§ Slovenia (Nova Gorica District Court) − statistics are published in the annual report of the Ministry of Justice.
§ Spain (Commercial Court no. 3 of Barcelona) − every three months each court must produce statistics of pending cases to be published by the Consejo general del poder judicial (Judicial Council).
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Line of action 14 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ Time management checklist, Indicator six, “Use of modern technology as a tool for time management in the justice system” (CEPEJ(2005)12)
3.4 Information collection about stakeholders’ expectations and opinions
Stakeholders’ expectations and opinions are fundamental to set, develop, and validate the timeframes, as well as to monitor the public perceptions and trust about courts and the administration of justice. Surveys should be periodically conducted at three different levels (state, court, elementary unit) Also users’ groups, focus groups and other techniques can be used for this purpose.
Examples
§ Denmark (Esbjerg District Court) − the Danish courts undertake, for each district, users’ surveys on a regular basis. Studies to measure the confidence and satisfaction of the users vis-à-vis have been implemented in few pilot courts.
§ United Kingdom - England and Wales (Manchester County Court) − three public surveys are carried out per year.
§ Finland (Rovaniemi Court of Appeal) − an external research Institute compiles a survey on the appellant’s views of the civil trial.
§ Ireland (Dublin Commercial Court) − there is a users’ group made up of a judge, two registrars, two barristers and one solicitor. It is proposed that representatives from the commercial sector will be asked to contribute to and join the group in the near future.
Reference
Stakeholders’ expectations and opinions are fundamental to set, develop, and validate the timeframes, as well as to monitor the public perceptions and trust about courts and the administration of justice. Surveys should be periodically conducted at three different levels (state, court, elementary unit) Also users’ groups, focus groups and other techniques can be used for this purpose.
Examples
§ Denmark (Esbjerg District Court) − the Danish courts undertake, for each district, users’ surveys on a regular basis. Studies to measure the confidence and satisfaction of the users vis-à-vis have been implemented in few pilot courts.
§ United Kingdom - England and Wales (Manchester County Court) − three public surveys are carried out per year.
§ Finland (Rovaniemi Court of Appeal) − an external research Institute compiles a survey on the appellant’s views of the civil trial.
§ Ireland (Dublin Commercial Court) − there is a users’ group made up of a judge, two registrars, two barristers and one solicitor. It is proposed that representatives from the commercial sector will be asked to contribute to and join the group in the near future.
Reference
§ Information given by the CEPEJ network of Pilot courts
§ Lines of action 14 and 16 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ National Center for State Courts (2005), Courtools measure 1.
§ Consejo General del Poder Judicial (2003). Enquesta a usuarios de la Administracion de justicia. Madrid, Consejo General del Poder Judicial: 124.
4. Procedural case management policies
These policies and practices are strongly affected by the differences that characterise procedural rules and customs of each justice system. However, case management and procedural rules are two of the most important elements to pursue timeframes and the timeliness of case processing. Recommendations of the Council of Europe and some policies used in single countries specifically focus on these issues. However, negative practices can be found in the jurisprudence of the European Courts of Human Rights.
These policies and practices are strongly affected by the differences that characterise procedural rules and customs of each justice system. However, case management and procedural rules are two of the most important elements to pursue timeframes and the timeliness of case processing. Recommendations of the Council of Europe and some policies used in single countries specifically focus on these issues. However, negative practices can be found in the jurisprudence of the European Courts of Human Rights.
4.1. Stakeholders involvement in drafting court procedural guidelines
Procedural guidelines have to be set at the court level to fit with the local contingencies and customs. This entails some discretion of the courts in local rules setting, within a common statewide procedural framework.
Examples
§ Denmark (Esbjerg District Court) − annual joint meetings with representatives from the prosecution service and the judicial districts’ lawyers.
§ Italy (Turin First Instance Court) − the court has established local guidelines to deal with the caseload, which have been shared with the stakeholders.
§ Norway (Frostating Lagmannsrett Court of Appeal) − letters sent to both counsel to state deadlines for new submissions, evidential lists and input for the appeal proceedings. Letters are followed by telephone calls to decide on the date and duration of the hearing. A week or two before the appeal hearing the judge contacts the lawyer directly (by email) to define a detailed join timetable for the appeal hearing (presentation of witnesses etc.). This is a real time-saver because it obliges the lawyers to talk to each other and agree on practical arrangements. On the criminal side, informal preparatory conferences are organised with the prosecutors for the most complex cases to discuss the evidence presentation, reasonable and realistic timing schedule etc. Guidelines for case handling are set up in writing and signed by the bar association and the court, resulting from common discussions and consensus. There are also close contacts with attorneys and a joint establishment of clerking rules for the court.
Reference
Procedural guidelines have to be set at the court level to fit with the local contingencies and customs. This entails some discretion of the courts in local rules setting, within a common statewide procedural framework.
Examples
§ Denmark (Esbjerg District Court) − annual joint meetings with representatives from the prosecution service and the judicial districts’ lawyers.
§ Italy (Turin First Instance Court) − the court has established local guidelines to deal with the caseload, which have been shared with the stakeholders.
§ Norway (Frostating Lagmannsrett Court of Appeal) − letters sent to both counsel to state deadlines for new submissions, evidential lists and input for the appeal proceedings. Letters are followed by telephone calls to decide on the date and duration of the hearing. A week or two before the appeal hearing the judge contacts the lawyer directly (by email) to define a detailed join timetable for the appeal hearing (presentation of witnesses etc.). This is a real time-saver because it obliges the lawyers to talk to each other and agree on practical arrangements. On the criminal side, informal preparatory conferences are organised with the prosecutors for the most complex cases to discuss the evidence presentation, reasonable and realistic timing schedule etc. Guidelines for case handling are set up in writing and signed by the bar association and the court, resulting from common discussions and consensus. There are also close contacts with attorneys and a joint establishment of clerking rules for the court.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Crystal Scale of Justice Awards 2006 - Special Mention awarded to the District Court of Torino
§ Line of action 18 of the CEPEJ Framework Programme (CEPEJ(2004)19)§ Reducing judicial time in the Nordic countries: 1 - 51 (CEPEJ(2006)14)
§ Crystal Scale of Justice Awards 2006 - Special Mention awarded to the District Court of Torino
§ Line of action 18 of the CEPEJ Framework Programme (CEPEJ(2004)19)§ Reducing judicial time in the Nordic countries: 1 - 51 (CEPEJ(2006)14)
4.2. Procedures consistent with the complexity of cases
Procedures should be consistent with the case complexity. The management of cases should be differentiated considering, for example, the value, the number of parties and the legal issues involved in a case. Summary procedures should be established to dispose of cases considered to have a low level of complexity.
Examples
§ UK - England and Wales (Manchester County Court) − there are three different tracks: small claim (up to about 7.500 Euro), fast track (up to about 22.500 Euro), and multi track (over 22.500 Euro).
§ Latvia (Riga Central District Court) − the cases are set for examination to their complexity.
Reference
Procedures should be consistent with the case complexity. The management of cases should be differentiated considering, for example, the value, the number of parties and the legal issues involved in a case. Summary procedures should be established to dispose of cases considered to have a low level of complexity.
Examples
§ UK - England and Wales (Manchester County Court) − there are three different tracks: small claim (up to about 7.500 Euro), fast track (up to about 22.500 Euro), and multi track (over 22.500 Euro).
§ Latvia (Riga Central District Court) − the cases are set for examination to their complexity.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Recommendation No R (87) 18 of the Council of Europe concerning the simplification of criminal justice.§ Peysner, J., and Seneviratne, M. (2005). The management of civil cases: the courts and post-Woolf landscape. London: Department for Constitutional Affairs.
4.3. Typical procedure based on no more than two hearings
Trials should be as concentrated as possible to be effective. The Recommendation Rec. 84 (5) advises the establishment of a typical procedure based on “not more than two hearings, the first of which might be a preliminary hearing of a preparatory nature and the second for taking evidence, hearing arguments and, if possible, giving judgment.”
Example
§ Slovak Republic (Bratislava District Court) − obligation to try and to decide a case on the first hearing, adjournments are only allowed for serious reasons, announced by the judge to the parties and put on the record.
Reference
Trials should be as concentrated as possible to be effective. The Recommendation Rec. 84 (5) advises the establishment of a typical procedure based on “not more than two hearings, the first of which might be a preliminary hearing of a preparatory nature and the second for taking evidence, hearing arguments and, if possible, giving judgment.”
Example
§ Slovak Republic (Bratislava District Court) − obligation to try and to decide a case on the first hearing, adjournments are only allowed for serious reasons, announced by the judge to the parties and put on the record.
Reference
§ Information given by the CEPEJ Network of Pilot courts.
§ Line of action 11 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ Recommendation Rec. (84)5 of the Council of Europe on civil procedure.
4.4. Active case management role by judges
Judges are the “third impartial player” in a conflict resolution process. They are the only ones able to set the pace of litigation independent of the parties’ interests. Therefore, they should have a pro-active role in case management in order to guarantee fair and timeliness case processing, accordingly to timeframes. It must also be noted that the jurisprudence of the ECHR says that “court inactivity”, “judicial inertia in producing evidence” and the “complete inaction by the judicial authorities” have been causes of violation of the reasonable time clause (CEPEJ(2006)15: para 29, 30, 36).
Example
§ Ireland (Dublin Commercial Court) − a system of intensive case management with a view to reducing timeframes is in place, It is possible to strike out cases or impose cost penalties for non-compliance with the Court’s directions. The drafting of Court rules ensures a speedy appeals procedure.
Reference
Judges are the “third impartial player” in a conflict resolution process. They are the only ones able to set the pace of litigation independent of the parties’ interests. Therefore, they should have a pro-active role in case management in order to guarantee fair and timeliness case processing, accordingly to timeframes. It must also be noted that the jurisprudence of the ECHR says that “court inactivity”, “judicial inertia in producing evidence” and the “complete inaction by the judicial authorities” have been causes of violation of the reasonable time clause (CEPEJ(2006)15: para 29, 30, 36).
Example
§ Ireland (Dublin Commercial Court) − a system of intensive case management with a view to reducing timeframes is in place, It is possible to strike out cases or impose cost penalties for non-compliance with the Court’s directions. The drafting of Court rules ensures a speedy appeals procedure.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Recommendation Rec. (84)5 of the Council of Europe on civil procedure.
§ National Center for State Courts (2005), Courtools, measure 5.
§ 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 (CEPEJ (2006)15).
§ Gramckow, H. (2005). Can US-type court management approaches work in civil law systems? European Journal on Criminal Policy and Research (11): 97–120.
§ Solomon, M., and Somerlot. (1987). Case-flow Management in the Trial Court. Chicago, IL: American Bar Association.§ Woolf, H. (1996). Access to Justice: Final Report. London: Lord Chancellor Office.
4.5. Strict policy to minimise adjournments
Numerous adjournments of hearings, either of the court’s own motion or at the parties’ request, and excessive intervals between hearings have been considered causes for unreasonable delay by the ECHR (CEPEJ (2006), 36). Adjournments have to be allowed only if clearly justified, and if a date for the next event has been established. If a court allows many adjournments, it encourages lawyers, not prepared for their cases, to ask for a new adjournment. In this way the judge’s hearing time will be underused.
Examples
§ Denmark (District Court of Esbjerg) – the court sets up meetings with the prosecutor and the defence lawyer to plan the schedule of the case to avoid unnecessary adjournments during the trial
§ Latvia (Riga Central District Court) − hearings cannot be postponed without fixing new dates.
Reference
Numerous adjournments of hearings, either of the court’s own motion or at the parties’ request, and excessive intervals between hearings have been considered causes for unreasonable delay by the ECHR (CEPEJ (2006), 36). Adjournments have to be allowed only if clearly justified, and if a date for the next event has been established. If a court allows many adjournments, it encourages lawyers, not prepared for their cases, to ask for a new adjournment. In this way the judge’s hearing time will be underused.
Examples
§ Denmark (District Court of Esbjerg) – the court sets up meetings with the prosecutor and the defence lawyer to plan the schedule of the case to avoid unnecessary adjournments during the trial
§ Latvia (Riga Central District Court) − hearings cannot be postponed without fixing new dates.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Line of action 9 of the CEPEJ Framework Programme (CEPEJ (2004)19).
§ Length of court proceedings in the member states of the council of Europe based on the caselaw of the European court of human rights (CEPEJ (2006) 15)
§ Steelman, D. (2000). Case-flow Management: The Heart of Court Management in the New Millennium. Williamsburg, VA.: National Center for State Courts.
§ Whittaker, C., Mackie, A., Lewis, R., and Ponikiewski, N. (1997). Managing courts effectively: The reasons for adjournments in magistrates' courts. London: Home Office.
4.6. Arranging early meetings between parties
A case management conference to set a clear schedule of events has been recognised as one of the most effective tools to help settlements, avoid adjournments, concentrate hearings, and (then) maintain timeframes. The decisions taken during the meeting may be formalised in a “contract”.
Examples
§ Denmark (Esbjerg District Court) − in civil cases a meeting is held at an early stage in the process, where the parties agree on the development of the case.
§ Norway (Midhordland Tingrett District Court) − preparatory meetings in civil cases resulted in legal settlement in more than 80 % of cases.
Reference
A case management conference to set a clear schedule of events has been recognised as one of the most effective tools to help settlements, avoid adjournments, concentrate hearings, and (then) maintain timeframes. The decisions taken during the meeting may be formalised in a “contract”.
Examples
§ Denmark (Esbjerg District Court) − in civil cases a meeting is held at an early stage in the process, where the parties agree on the development of the case.
§ Norway (Midhordland Tingrett District Court) − preparatory meetings in civil cases resulted in legal settlement in more than 80 % of cases.
Reference
§ Information given by the CEPEK Network of Pilot courts
§ Lines of action 14 and 16 of the CEPEJ Framework Programme (CEPEJ (2004)19).
§ Woolf, H. (1996). Access to Justice: Final Report. London: Lord Chancellor Office.
4.7. Enforcement of timetables to present evidence
Court delays can be due to the lack of lawyers, parties and expert witnesses to meet deadlines to present evidence and reports. “Failure of witnesses to attend hearings, causing repeated adjournments” has been considered one of the causes of violation of the "reasonable time" clause by the ECHR (CEPEJ (2006)15). A strict policy of incentives and sanctions to support these deadlines can be very effective for the pace of litigation.
Examples
§ Andorra Principality (Superior Court of Appeal) − lawyers have to present their conclusions in no more than 15 days.
§ Czech Republic (Prague 1 District Court) − fines are imposed by the court on any expert who does not respect the deadlines.
§ Finland (Turku Regional Administrative Court) − lists of cases in which the judicial expert’s report has not been received in the time set by the court are produced from the case management system monthly and notices to expedite are sent.
§ Slovak Republic (Bratislava District Court) − a specific deadline is provided to submit expert opinion. If the deadline is not observed the expert can be sanctioned.
Reference
Court delays can be due to the lack of lawyers, parties and expert witnesses to meet deadlines to present evidence and reports. “Failure of witnesses to attend hearings, causing repeated adjournments” has been considered one of the causes of violation of the "reasonable time" clause by the ECHR (CEPEJ (2006)15). A strict policy of incentives and sanctions to support these deadlines can be very effective for the pace of litigation.
Examples
§ Andorra Principality (Superior Court of Appeal) − lawyers have to present their conclusions in no more than 15 days.
§ Czech Republic (Prague 1 District Court) − fines are imposed by the court on any expert who does not respect the deadlines.
§ Finland (Turku Regional Administrative Court) − lists of cases in which the judicial expert’s report has not been received in the time set by the court are produced from the case management system monthly and notices to expedite are sent.
§ Slovak Republic (Bratislava District Court) − a specific deadline is provided to submit expert opinion. If the deadline is not observed the expert can be sanctioned.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Line of action 17 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ Recommendation Rec. (84)5 of the Council of Europe on civil procedure.
§ 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 (CEPEJ(2006)15)
§ Savvides, L. (2003). Steps introduced by the supreme court of Cyprus for eliminating delays. Strasbourg: CEPEJ.
4.8. Standard and concise format for written judgments (and the use of templates)
A standard format and some flexible limits to the number of pages of court orders or judgments can be useful to meet the timeframes. In addition some experiences show that concise judgments help to address the key points and the judge reasoning.
Example
§ Norway (Frostating Lagmannsrett Court of Appeal) − there have been efforts to compress the length judgments. A general judgment can run to 10-12 typed pages. If it is more than 14, then it is to long. The experience is that judgments are improved if they are shortened: it is clearer to see the key points, how the arguments were presented, and how the judge reasoned his conclusion. The format of the judgment is standard: a line indicating the legal theme of the case, a brief account of the background for the case, a summary report on the procedural history, the parties’ arguments and claims. Then the court presents its own deliberations with assessments and positions, and finally the court’s conclusion.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Recommendation Rec. (84)5 of the Council of Europe on civil procedure.§ Niv, M. B. and Z. Safra (1999). “The Undesirability of Detailed Judicial Reasoning.” European Journal of Law and Economics 7: 161–174.
A standard format and some flexible limits to the number of pages of court orders or judgments can be useful to meet the timeframes. In addition some experiences show that concise judgments help to address the key points and the judge reasoning.
Example
§ Norway (Frostating Lagmannsrett Court of Appeal) − there have been efforts to compress the length judgments. A general judgment can run to 10-12 typed pages. If it is more than 14, then it is to long. The experience is that judgments are improved if they are shortened: it is clearer to see the key points, how the arguments were presented, and how the judge reasoned his conclusion. The format of the judgment is standard: a line indicating the legal theme of the case, a brief account of the background for the case, a summary report on the procedural history, the parties’ arguments and claims. Then the court presents its own deliberations with assessments and positions, and finally the court’s conclusion.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Recommendation Rec. (84)5 of the Council of Europe on civil procedure.§ Niv, M. B. and Z. Safra (1999). “The Undesirability of Detailed Judicial Reasoning.” European Journal of Law and Economics 7: 161–174.
4.9. Use of audio and video technology in court proceedings
Audio conference and video depositions can save time and money for both courts and the parties. They can be used for preliminary hearings, but also in complex criminal cases to guarantee the security of the witnesses, or to avoid the transfer of persons under custody.
Examples
§ Finland (Rovaniemi Court of Appeal) – when the Court organises the hearings, detailed timetables are sent beforehand to the parties. Witnesses are called in accordance with fixed time and heard by phone when possible.
§ Ireland (Commercial Court of Dublin) – delay litigation have been overcome also through the use of initiatives such as the taking of evidence by way of video-link. The use of video-link to allow witnesses to give evidence together with the provision for the acceptance of witness statements can obviate the necessity for witnesses to attend Court.
§ Italy – ideo technologies are extensively used especially in criminal proceedings dealing with organised crime. In this way, it is possible to avoid the transfer of inmates from prisons to court facilities with a reduction of cost and hearing times.
Reference
Audio conference and video depositions can save time and money for both courts and the parties. They can be used for preliminary hearings, but also in complex criminal cases to guarantee the security of the witnesses, or to avoid the transfer of persons under custody.
Examples
§ Finland (Rovaniemi Court of Appeal) – when the Court organises the hearings, detailed timetables are sent beforehand to the parties. Witnesses are called in accordance with fixed time and heard by phone when possible.
§ Ireland (Commercial Court of Dublin) – delay litigation have been overcome also through the use of initiatives such as the taking of evidence by way of video-link. The use of video-link to allow witnesses to give evidence together with the provision for the acceptance of witness statements can obviate the necessity for witnesses to attend Court.
§ Italy – ideo technologies are extensively used especially in criminal proceedings dealing with organised crime. In this way, it is possible to avoid the transfer of inmates from prisons to court facilities with a reduction of cost and hearing times.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Lines of action 14 and 16 of the CEPEJ Framework Programme (CEPEJ (2004)19)
§ Recommendation Rec. (84)5 of the Council of Europe on civil procedure§ Fabri, M., and Contini, F., Eds. (2000). Justice and Technology in Europe. The Hague, The Netherlands: Kluwer Law International.
§ Reducing judicial time in the Nordic countries: 1 - 51 (CEPEJ(2006)14)
4.10. Use of information and communication technology for the case management and the taking of evidence.
The use of information and communication technology in the justice environment can increase the effectiveness of the administration of justice. Successful cases show how positive results come first from the automation of highly repetitive tasks. The timeliness of litigation can also be improved by the use of the Internet to facilitate the exchange of data and information between the courts and the parties.
Examples
§ Austria (Linz District Court) – with the Electronic legal communication developed by the Ministry of justice, it is possible to file cases electronically, and to exchange data between the courts and the parties.
§ Finland (Turku District Court) − E-services in civil and criminal cases allow an exchange of information and documents between the parties and along the criminal justice chain.
§ UK - England and Wales –Money claim on line allows citizens and businesses to file claims up to about 150.000 Euro through the Internet.
Reference
The use of information and communication technology in the justice environment can increase the effectiveness of the administration of justice. Successful cases show how positive results come first from the automation of highly repetitive tasks. The timeliness of litigation can also be improved by the use of the Internet to facilitate the exchange of data and information between the courts and the parties.
Examples
§ Austria (Linz District Court) – with the Electronic legal communication developed by the Ministry of justice, it is possible to file cases electronically, and to exchange data between the courts and the parties.
§ Finland (Turku District Court) − E-services in civil and criminal cases allow an exchange of information and documents between the parties and along the criminal justice chain.
§ UK - England and Wales –Money claim on line allows citizens and businesses to file claims up to about 150.000 Euro through the Internet.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Line of action 9 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ Recommendation Rec. (84)5 of the Council of Europe on civil procedure.
§ Recommendation Rec. (95)12 of the Council of Europe on management of criminal justice.
§ Recommendation Rec. (2001)2 of the Council of Europe on design of court information systems.
§ Recommendation Rec. (2001)3 of the Council of Europe on delivery of legal services through new technologies.
§ Recommendation Rec. (2003)14 of the Council of Europe on interoperability of information systems.
§ Recommendation Rec. (2003)15 of the Council of Europe on archiving electronic documents.
§ Time management checklist, Indicator six, “Use of modern technology as a tool for time management in the justice system” (CEPEJ (2005)19).
§ Fabri, M., and Contini, F., Eds. (2000). Justice and Technology in Europe. The Hague, The Netherlands: Kluwer Law International.
5. Caseload and workload policies
The caseload and the workload of courts changes over time, and therefore must be monitored and managed by judicial authorities. The monitoring can be based on the data collected with automated case management systems, but also with simpler and more traditional paper based system. Caseload can be managed by different means aiming at improving the productivity of courts, or at reducing the workload of judges and court staff. To forecast, manage, and decrease the workload helps to set and hold realistic timeframes.
The caseload and the workload of courts changes over time, and therefore must be monitored and managed by judicial authorities. The monitoring can be based on the data collected with automated case management systems, but also with simpler and more traditional paper based system. Caseload can be managed by different means aiming at improving the productivity of courts, or at reducing the workload of judges and court staff. To forecast, manage, and decrease the workload helps to set and hold realistic timeframes.
5.1. Forecast and monitoring of caseload and workload capacity of the courts
Forecast and monitoring the caseload and the workload are fundamental to determine the work capacity of a court and a consistent resource allocation. These tasks can be performed through different methods of measurements, such as weighted caseload, Delphi, historical data, specific time studies etc.
Examples
§ Netherlands – the Lamicie model is used to calculate the workload of judges and court staff in terms of time needed for the treatment of cases. It is based on 48 categories of cases dealing with civil criminal, administrative and taxes procedures. The model has been set up, and is regularly reviewed, thanks to time-management studies.
§ Spain (Barcelona Commercial Court n. 3) – the Modulos de trabajo indicate the average time that a judge is expected to dedicate to the treatment of each different type of case. They are based on time studies.
Reference
Forecast and monitoring the caseload and the workload are fundamental to determine the work capacity of a court and a consistent resource allocation. These tasks can be performed through different methods of measurements, such as weighted caseload, Delphi, historical data, specific time studies etc.
Examples
§ Netherlands – the Lamicie model is used to calculate the workload of judges and court staff in terms of time needed for the treatment of cases. It is based on 48 categories of cases dealing with civil criminal, administrative and taxes procedures. The model has been set up, and is regularly reviewed, thanks to time-management studies.
§ Spain (Barcelona Commercial Court n. 3) – the Modulos de trabajo indicate the average time that a judge is expected to dedicate to the treatment of each different type of case. They are based on time studies.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Recommendation Rec. (95) 12 of the Council of Europe on management of criminal justice.
§ Albers, P., Borzova, I., and Goth-Flemmisch, B. (2004). Practical ways for combating delay in justice system (CEPEJ (2004) 5) (D1)
§ Lawson, H. O. and B. J. Gletne (1980). Workload Measures in the Court. Williamsbourg VA, National Center for State Courts.
5.2. Encouraging alternative dispute resolution and an early settlement between the parties
Alternative dispute resolutions, in its various forms, can decrease the first instance court caseload and avoid court congestion. The Committee of Ministers of the Council of Europe, through its recommendations 86/12 and 2001/9 support different forms of dispute resolution outside the courts. Other recommendations (98/1 family matters, 99/19 criminal matters, 2002/10 civil matters), support mediation particularly in family matters, for the sake of children, and in criminal matters to enhance the victim rights in the criminal process.
Examples
§ Slovenia (Nova Gorica District Court) – the court has set up a specific program of ADR in civil cases. The goal is to solve the cases by settling the dispute without trial. If both parties agree, the court guarantees to schedule the first mediation meeting in 90 days. The proceeding is free for both parties. Specially trained mediators have the task to help the parties to reach an agreement that solves the dispute using negotiation techniques.
§ Croatia (Varaždin Municipal Court) – the court was part of the Project called “Efficiency in judiciary in Republic of Croatia”. The project found out that efficiency could be improved trough several activities, among which the increase of the number of cases in which the parts reach an agreement. The results of the project have been positive, with an increase of 40% of the case solved.
Early settlements have a strong impact on the workload, therefore they increase the ability of courts to comply with the timeframes. The Consultative Council of European Judges (CCJE) has recently emphasised the importance of this practice. They recognise the need for an early settlement of disputes and “a proactive and innovative” role of judges. In the evaluation of European judicial systems (edition 2006) 21 member states of the Council of Europe adopt this kind of procedures.
Examples
§ Netherlands – a mediation programme has been set up to facilitate the use of mediation before the hearing of a case (civil, family and tax cases) and during the process by professional mediators.
§ Norway (Midhordland District Court) – the purpose of Norwegian judicial mediation program is to reach a settlement that the disputing parties can accept before going to the main proceeding in court. The judicial mediator, who very often is a judge, assists the parties to reach an agreement. Judicial mediation succeeds in 70-80 % of the cases. If the disputing parties are unable to reach an agreement, the case is referred to another judge for further dealings. As the judicial mediator is under obligation of confidentiality, the judge taking over the case will not be in a position of knowing the details of the mediation. The court taking part in this project has found many advantages, among which: faster case scheduling and less time spent on each case. This is both because time-consuming main hearings are avoided, and because the judge need write no judgment in the case.
Reference
Alternative dispute resolutions, in its various forms, can decrease the first instance court caseload and avoid court congestion. The Committee of Ministers of the Council of Europe, through its recommendations 86/12 and 2001/9 support different forms of dispute resolution outside the courts. Other recommendations (98/1 family matters, 99/19 criminal matters, 2002/10 civil matters), support mediation particularly in family matters, for the sake of children, and in criminal matters to enhance the victim rights in the criminal process.
Examples
§ Slovenia (Nova Gorica District Court) – the court has set up a specific program of ADR in civil cases. The goal is to solve the cases by settling the dispute without trial. If both parties agree, the court guarantees to schedule the first mediation meeting in 90 days. The proceeding is free for both parties. Specially trained mediators have the task to help the parties to reach an agreement that solves the dispute using negotiation techniques.
§ Croatia (Varaždin Municipal Court) – the court was part of the Project called “Efficiency in judiciary in Republic of Croatia”. The project found out that efficiency could be improved trough several activities, among which the increase of the number of cases in which the parts reach an agreement. The results of the project have been positive, with an increase of 40% of the case solved.
Early settlements have a strong impact on the workload, therefore they increase the ability of courts to comply with the timeframes. The Consultative Council of European Judges (CCJE) has recently emphasised the importance of this practice. They recognise the need for an early settlement of disputes and “a proactive and innovative” role of judges. In the evaluation of European judicial systems (edition 2006) 21 member states of the Council of Europe adopt this kind of procedures.
Examples
§ Netherlands – a mediation programme has been set up to facilitate the use of mediation before the hearing of a case (civil, family and tax cases) and during the process by professional mediators.
§ Norway (Midhordland District Court) – the purpose of Norwegian judicial mediation program is to reach a settlement that the disputing parties can accept before going to the main proceeding in court. The judicial mediator, who very often is a judge, assists the parties to reach an agreement. Judicial mediation succeeds in 70-80 % of the cases. If the disputing parties are unable to reach an agreement, the case is referred to another judge for further dealings. As the judicial mediator is under obligation of confidentiality, the judge taking over the case will not be in a position of knowing the details of the mediation. The court taking part in this project has found many advantages, among which: faster case scheduling and less time spent on each case. This is both because time-consuming main hearings are avoided, and because the judge need write no judgment in the case.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Lines of action 8 and 9 of the CEPEJ Framework Programme (CEPEJ (2004)19).
§ Recommendation Rec. (84)5 of the Council of Europe on civil procedure
§ Recommendation Rec. (86)12 of the Council of Europe on excessive workload
§ Recommendation Rec. (98)1 of the Council of Europe on family mediation§ Recommendation Rec. (99) 19 of the Council of Europe on mediation in penal matters
§ Recommendation Rec. (2001)9 of the Council of Europe on alternatives to litigation between administrative authorities and private parties
§ Recommendation Rec. (2002) 10 of the Council of Europe on mediation in civil matters
§ Recommendation Rec. (86)12 of the Council of Europe on excessive workload.
§ Consultative Council of European Judges (CCJE) Opinion No. 6 (2004) on Fair trial within a reasonable time and judge's role in trials taking into account alternative means of dispute settlement.
§ European Judicial Systems. Edition 2006. Strasbourg: Council of Europe Publishing. p. 87.
§ Steelman, D. (2000). Case-flow Management: The Heart of Court Management in the New Millennium. Williamsburg, VA.: National Center for State Courts.
§ Woolf, H. (1996). Access to Justice: Final Report. London: Lord Chancellor Office.
5.3. Filtering and deflective tools to limit the number of cases to be filed in courts
Filtering and deflective rules should be applied to appeals without prejudice of the right of effective remedy. The Recommendation (95) 5 concerning the appeal systems and procedures in civil and commercial cases, point out several criteria ad methods for filtering the cases to be heard by second instance courts with the aim of reducing their workload.
Example
§ Norway (Frostating Lagmannsrett Court of Appeal) – this court filters the less serious cases through a preliminary examination process made by three judges. If all three agree that the appeal clearly will not succeed, then they can deny referral to an appeal hearing. As a result, the District Court’s judgment is final. To have an effective procedure, a team of three judges is always ready to consider an appeal when it arrives. Most cases are therefore examined and filtered in two or three days.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Recommendation Rec. (95) 5 of the Council of Europe on the appeal systems and procedures in civil and commercial cases.
Filtering and deflective rules should be applied to appeals without prejudice of the right of effective remedy. The Recommendation (95) 5 concerning the appeal systems and procedures in civil and commercial cases, point out several criteria ad methods for filtering the cases to be heard by second instance courts with the aim of reducing their workload.
Example
§ Norway (Frostating Lagmannsrett Court of Appeal) – this court filters the less serious cases through a preliminary examination process made by three judges. If all three agree that the appeal clearly will not succeed, then they can deny referral to an appeal hearing. As a result, the District Court’s judgment is final. To have an effective procedure, a team of three judges is always ready to consider an appeal when it arrives. Most cases are therefore examined and filtered in two or three days.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Recommendation Rec. (95) 5 of the Council of Europe on the appeal systems and procedures in civil and commercial cases.
5.4. Establishing and developing of discretionary prosecution
The principle of discretionary prosecution, as well as “prosecutions tickets or fines”, “police warnings” (e.g. ASBO “anti-social behaviour order”), may be effective measures to avoid court congestion without harming crime control. The recommendation (87) 18 proposes to tackle delays in the administration of criminal justice by several means including a clearer definition of priorities for the conduct of crime policy. In this framework, “the principle of discretionary prosecution” should be established “wherever historical development and the constitution of member states allow”. Otherwise the recommendation suggests taking measures that have the same purpose.
Example
§ Germany – in this country more than half of all preliminary investigation proceedings against known suspects are currently dropped also thanks to the use of the principle of discretionary prosecution. In this way public prosecutors have “cushioned the effect of an increasing crime rate by nearly doubling the rate of discretionary non-prosecution”. As a consequence a trial has become the exception […] and 50 percent of all persons sanctioned are sanctioned informally by dropping the case with or without conditions.
Reference
§ Recommendation Rec. (87)18 of the Council of Europe on simplification of criminal justice§ Oberwittler, D. and S. Hofer (2005). “Crime and Justice in Germany. An Analysis of Recent Trends and Research.” European Journal of Criminology 2(4): 465-508.
The principle of discretionary prosecution, as well as “prosecutions tickets or fines”, “police warnings” (e.g. ASBO “anti-social behaviour order”), may be effective measures to avoid court congestion without harming crime control. The recommendation (87) 18 proposes to tackle delays in the administration of criminal justice by several means including a clearer definition of priorities for the conduct of crime policy. In this framework, “the principle of discretionary prosecution” should be established “wherever historical development and the constitution of member states allow”. Otherwise the recommendation suggests taking measures that have the same purpose.
Example
§ Germany – in this country more than half of all preliminary investigation proceedings against known suspects are currently dropped also thanks to the use of the principle of discretionary prosecution. In this way public prosecutors have “cushioned the effect of an increasing crime rate by nearly doubling the rate of discretionary non-prosecution”. As a consequence a trial has become the exception […] and 50 percent of all persons sanctioned are sanctioned informally by dropping the case with or without conditions.
Reference
§ Recommendation Rec. (87)18 of the Council of Europe on simplification of criminal justice§ Oberwittler, D. and S. Hofer (2005). “Crime and Justice in Germany. An Analysis of Recent Trends and Research.” European Journal of Criminology 2(4): 465-508.
5.5. Increasing the use of a single judge instead of a panel
The “collegiate structure of criminal courts” and the “systematic use of benches of judges at first instance” have been causes of violation of the reasonable time clause by the ECHR (CEPEJ (2006) 15) 35, 40). In order to increase the court capacity, the use of single judges instead of panels should be considered. This change should be followed by a re-organisation of court resources such as hearing rooms and personnel.
Example
§ Italy – in the framework of the trial court unification policy that took place in 1999, the legislator expanded the jurisdiction of the single judge in civil cases (whilst reduced the one of panel of three judges). As a consequence, the courts of general jurisdiction normally sit with a single judge with few exceptions for cases in which the law still requires a panel of three judges.
Reference
§ Recommendation Rec. (86)12 of the Council of Europe on excessive workload.
The “collegiate structure of criminal courts” and the “systematic use of benches of judges at first instance” have been causes of violation of the reasonable time clause by the ECHR (CEPEJ (2006) 15) 35, 40). In order to increase the court capacity, the use of single judges instead of panels should be considered. This change should be followed by a re-organisation of court resources such as hearing rooms and personnel.
Example
§ Italy – in the framework of the trial court unification policy that took place in 1999, the legislator expanded the jurisdiction of the single judge in civil cases (whilst reduced the one of panel of three judges). As a consequence, the courts of general jurisdiction normally sit with a single judge with few exceptions for cases in which the law still requires a panel of three judges.
Reference
§ Recommendation Rec. (86)12 of the Council of Europe on excessive workload.
§ Recommendation Rec. (95)5 of the Council of Europe on alternatives to litigation.
§ 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 (CEPEJ(2006)15)
§ Fabri, M., Langbroek, P., and H. Pauliat, Eds. (2003). The Administration of Justice in Europe Towards the Development of Quality Standards. Bologna, Italy: Lo Scarabeo.
5.6. Flexible case assignment system
Case assignment is one of the core issues of court management and it affects the length of proceedings. To create a flexible case assignment system will help the court to better adapt to unforeseen changes in the caseload. In this respect, judges’ “task forces” or “flying squad” may be used. Also in countries in which the allocation of cases to single judge must be based on rules fixed in advance (principle of natural judge) it is possible to create some flexibility in order to face unexpected changes in caseload or heavy caseloads. Furthermore it is possible to make more flexible the rules of territorial jurisdiction, but also subject matter and value criteria to pursue a more effective allocation of cases and face unexpected changes in caseload. Flexibility can also help to avoid unreasonable delays caused by transfer of judges (CEPEJ (2006)15, p. 30)
Examples
§ France – the judges operating next to the court president (mostly heads of a department within a court) or the general prosecutor of the court of appeal can be called to temporarily replace their colleagues in case of disease, maternity leave, annual leave, training courses and also in a situation to reinforce the personnel capacity in a court in order to ensure the treatment of a case within a reasonable time (Art 3-1 of the Statute of the Judiciary). A similar solution exists for the court staff.
§ UK- England and Wales – Judges appointed to the High Court are, on the whole, meant to be generalists. Yet, within the court, there are divisions and sections that require particular expertise such as criminal commercial and families. For these areas judges are ticketed for certain fields. While most expertise is evaluated and defined upon appointment, judges are able to undergo further training to acquire new expertise and new tickets.
§ The Netherlands – the Flying brigade has been established in the Netherlands to support district courts overburdened by backlogs. It is a small centralised unit of judges and staff which assists the court in the reduction of pending cases.
§ Sweden (Huddinge District Court) – the court is divided in units’ of 2-3 judges. The judges in every unit can share the amount of work so that while one judge is concentrating on for example a big civil case the others can deal with more simple ones.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Information given by the members of CEPEJ-TF-DEL
§ Line of action 13 of the CEPEJ Framework Programme (CEPEJ(2004)19)
Case assignment is one of the core issues of court management and it affects the length of proceedings. To create a flexible case assignment system will help the court to better adapt to unforeseen changes in the caseload. In this respect, judges’ “task forces” or “flying squad” may be used. Also in countries in which the allocation of cases to single judge must be based on rules fixed in advance (principle of natural judge) it is possible to create some flexibility in order to face unexpected changes in caseload or heavy caseloads. Furthermore it is possible to make more flexible the rules of territorial jurisdiction, but also subject matter and value criteria to pursue a more effective allocation of cases and face unexpected changes in caseload. Flexibility can also help to avoid unreasonable delays caused by transfer of judges (CEPEJ (2006)15, p. 30)
Examples
§ France – the judges operating next to the court president (mostly heads of a department within a court) or the general prosecutor of the court of appeal can be called to temporarily replace their colleagues in case of disease, maternity leave, annual leave, training courses and also in a situation to reinforce the personnel capacity in a court in order to ensure the treatment of a case within a reasonable time (Art 3-1 of the Statute of the Judiciary). A similar solution exists for the court staff.
§ UK- England and Wales – Judges appointed to the High Court are, on the whole, meant to be generalists. Yet, within the court, there are divisions and sections that require particular expertise such as criminal commercial and families. For these areas judges are ticketed for certain fields. While most expertise is evaluated and defined upon appointment, judges are able to undergo further training to acquire new expertise and new tickets.
§ The Netherlands – the Flying brigade has been established in the Netherlands to support district courts overburdened by backlogs. It is a small centralised unit of judges and staff which assists the court in the reduction of pending cases.
§ Sweden (Huddinge District Court) – the court is divided in units’ of 2-3 judges. The judges in every unit can share the amount of work so that while one judge is concentrating on for example a big civil case the others can deal with more simple ones.
Reference
§ Information given by the CEPEJ Network of Pilot courts§ Information given by the members of CEPEJ-TF-DEL
§ Line of action 13 of the CEPEJ Framework Programme (CEPEJ(2004)19)
§ 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 (CEPEJ (2006)15)
§ Albers, P., Borzova, I., and Goth-Flemmisch, B. (2004). Practical ways for combating delay in justice system (CEPEJ (2004)5) (D1)
§ Banakar, R., J. Flood, et al. (2005). Internal case assignment in England. In P. Calvez, F. (2006). 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. Strasbourg, CEPEJ.§ Langbroek and M. Fabri. (eds.), Internal case assignment. A report on a comparative study into the rules and practices in courts in five European countries. Utrecht, Utrecht University: 63-134.
§ Langbroek, P. and M. Fabri (2006). The right judge for each case, Intersentia.
5.7. Extension of tasks undertaken by court staff
Court staff may have the competences to solve some cases without the judge’s intervention or with a limited judicial supervision. Specific timeframes may be set for these kinds of cases. Rechtspfleger can perform different tasks in selected civil and criminal proceedings. They are present in 16 member states of the Council of Europe.
Examples
§ Austria (Linz District Court) – judicial officers (Rechtspfleger) work in several areas such as inheritance cases, insolvency, execution proceedings and land registry.
§ Azerbaijan (Local Economic Court) − quasi judicial tasks are dealt with by Rechtspfleger in specific law areas such as inheritance, insolvency and land registry.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Recommendation Rec. (86)12 of the Council of Europe.
Court staff may have the competences to solve some cases without the judge’s intervention or with a limited judicial supervision. Specific timeframes may be set for these kinds of cases. Rechtspfleger can perform different tasks in selected civil and criminal proceedings. They are present in 16 member states of the Council of Europe.
Examples
§ Austria (Linz District Court) – judicial officers (Rechtspfleger) work in several areas such as inheritance cases, insolvency, execution proceedings and land registry.
§ Azerbaijan (Local Economic Court) − quasi judicial tasks are dealt with by Rechtspfleger in specific law areas such as inheritance, insolvency and land registry.
Reference
§ Information given by the CEPEJ Network of Pilot courts
§ Recommendation Rec. (86)12 of the Council of Europe.
§ European Union of Rechtspfleger. Model Statute for a European Rechtspfleger/Greffier, EUR.
5.8. Limitation of extra judicial activities dealt with by the judges and by the courts
Courts core business should be the resolution of disputes, dispensing justice. Any other activity not related to that is better dealt with by other agencies. Judges should avoid any other activity outside the courts as this can compromise the appearance of impartiality and organisational performance. The time actually spent by judges on the participation in “other” activities has been acknowledged as another source of “unreasonable delay” (CEPEJ (2006)15, para. 32).
Examples
§ Denmark – public reporting of second jobs in 2001 indicated that judges were earning average additional incomes from €11,000 - 88,000 per annum (depending on the court), most of which came from private arbitration. Concern was based on whether such judges are deprived of adequate time for court work (which was denied by court presidents) or conflicted with their duty of impartiality. As a response, in November 2001 the Council of Court President asked for some limitation of this practice.
§ Croatia – decision making in uncontested probate cases (inheritance cases) is being transferred from courts to notaries public. Some enforcement tasks were transmitted from judges, with a view to re-examine the role of judges in this field and consider outsourcing of present judicial activities in enforcement cases to professional bailiffs. A part of the activities previously undertaken by judges in Land Registry cases (e.g. issuing the extracts from land registry) is being transferred to qualified registrars/Rechtspfleger.
§ France – under the terms of the Law of 2 July 2003 regarding the simplification of the law and of the Decree of 7 June 2006 the government removed and reorganised various administrative commissions and withdrew the magistrates in some of them.
§ Hungary – as the result of a reform of the judiciary they are not allowed to engage in other professional (paid) functions (for example as an arbitrator). This is arranged according to the Law LXII of 1997.
§ Netherlands – judges are obliged to report their interests outside the court in a public register (on http://www.rechtspraak.nl/).
Reference
§ Information given by the members of CEPEJ-TF-DEL§ Practical ways for combating delay in justice system (CEPEJ (2004) 5) (D1) (see under III – Main Conclusions)
Courts core business should be the resolution of disputes, dispensing justice. Any other activity not related to that is better dealt with by other agencies. Judges should avoid any other activity outside the courts as this can compromise the appearance of impartiality and organisational performance. The time actually spent by judges on the participation in “other” activities has been acknowledged as another source of “unreasonable delay” (CEPEJ (2006)15, para. 32).
Examples
§ Denmark – public reporting of second jobs in 2001 indicated that judges were earning average additional incomes from €11,000 - 88,000 per annum (depending on the court), most of which came from private arbitration. Concern was based on whether such judges are deprived of adequate time for court work (which was denied by court presidents) or conflicted with their duty of impartiality. As a response, in November 2001 the Council of Court President asked for some limitation of this practice.
§ Croatia – decision making in uncontested probate cases (inheritance cases) is being transferred from courts to notaries public. Some enforcement tasks were transmitted from judges, with a view to re-examine the role of judges in this field and consider outsourcing of present judicial activities in enforcement cases to professional bailiffs. A part of the activities previously undertaken by judges in Land Registry cases (e.g. issuing the extracts from land registry) is being transferred to qualified registrars/Rechtspfleger.
§ France – under the terms of the Law of 2 July 2003 regarding the simplification of the law and of the Decree of 7 June 2006 the government removed and reorganised various administrative commissions and withdrew the magistrates in some of them.
§ Hungary – as the result of a reform of the judiciary they are not allowed to engage in other professional (paid) functions (for example as an arbitrator). This is arranged according to the Law LXII of 1997.
§ Netherlands – judges are obliged to report their interests outside the court in a public register (on http://www.rechtspraak.nl/).
Reference
§ Information given by the members of CEPEJ-TF-DEL§ Practical ways for combating delay in justice system (CEPEJ (2004) 5) (D1) (see under III – Main Conclusions)
§ Recommendation R (95) 12 of the Council of Europe on the management of criminal justice
§ 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. Strasbourg (CEPEJ (2006)15).
§ Wittrup, J. and P. Sørensen (2003). Quality and Justice in Denmark. In M. Fabri, P. Langbroek and H. Pauliat (Eds.) The Administration of Justice in Europe: Towards the Development of Quality Standards. Bologna, Lo Scarabeo. p. 131-132.
APPENDIX I
A BRIEF GLOSSARY OF TERMS
A BRIEF GLOSSARY OF TERMS
This brief glossary of terms should be helpful to share the same meaning of some concepts used in the Compendium. The glossary tends to use, as often as possible, the definitions already used in the CEPEJ Report "European Judicial Systems - Edition 2006".
Backlog − number of cases that exceed the “allowed duration” (see also page 75 "European Judicial Systems – Edition 2006"). This term is frequently used as a synonym of delay and it can be quite ambiguous. The establishment of timeframes makes it possible to adopt a more precise definition of backlog, as the number or percentage of cases not decided within an established timeframe (or time standard).
Caseload − it is the number of cases that a court has to deal with in a period of time. It is expressed by the sum of pending cases plus incoming cases in a certain period of time.
Court − a body established by the law appointed to adjudicate on specific type(s) of cases within a specified administrative structure where one or several judge(s) is/are sitting, on a temporary or permanent basis. (cf. page 204 of "European Judicial Systems").
Judge − an independent and impartial person who adjudicates cases in a court according to the law and follows an organised procedure, on any issue within his/her jurisdiction.
Lawyer − a person qualified and authorised according to national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters. (Recommentation R(2000) 21).
Mediation − a dispute resolution process whereby parties negotiate over the issues in disputes in order to reach an agreement with the assistance of one or more mediators (Recommendation R(2002) 10).
Pending cases − it is the number of cases that still have to be dealt with by the court in a period of time. It may be expressed in numbers (e.g. Pending cases by January 1) or in a percentage (e.g. Percentage of pending cases of more than 3 years).
Policy − a course or principle of action adopted or proposed by an organisation; a course of action or inaction chosen by authorities to address a given problem or interrelated set of problems.
Practice − Practical actions undertaken by organisational players.
Public prosecutor − public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice systems (Recommendation R (2000) 19).
Timeframe − a period of time during which an action occurs or will occur. Timeframes are targets to be used as inter-organisational means to pursue the timeliness of court proceedings.
Time limit − a limit of time within which something must be done. In judicial proceedings, this term indicate mainly the limits established by procedural rules. These limits can be mandatory and with consequences in a specific proceeding (e.g. the prohibition of presenting evidences after a specific time) or simply intimation without consequence (as when a judge should write a sentence within a week after the decision but nothing happens if the provision is not fulfilled). On the contrary timeframes should not be specified by procedural rules. They are just inter-organisational goals with consequences at this level.
Time standard − time required to complete a task. The time allowed carrying out a production task in a standard costing system. It may be expressed as the standard time allowed or alternatively, when expressed in standard hours, as the output achieved. From an organisational perspective a time standard is more rigid and focused on single activities than timeframes. However it is extensively adopted by the Anglo-Saxon literature with a meaning similar to timeframe. Therefore, it is possible to use time standard and timeframe as synonyms.
Workload − it may be defined as the whole work that a court deals with, while the caseload only refers to the number of cases that a court deals with.
Backlog − number of cases that exceed the “allowed duration” (see also page 75 "European Judicial Systems – Edition 2006"). This term is frequently used as a synonym of delay and it can be quite ambiguous. The establishment of timeframes makes it possible to adopt a more precise definition of backlog, as the number or percentage of cases not decided within an established timeframe (or time standard).
Caseload − it is the number of cases that a court has to deal with in a period of time. It is expressed by the sum of pending cases plus incoming cases in a certain period of time.
Court − a body established by the law appointed to adjudicate on specific type(s) of cases within a specified administrative structure where one or several judge(s) is/are sitting, on a temporary or permanent basis. (cf. page 204 of "European Judicial Systems").
Judge − an independent and impartial person who adjudicates cases in a court according to the law and follows an organised procedure, on any issue within his/her jurisdiction.
Lawyer − a person qualified and authorised according to national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters. (Recommentation R(2000) 21).
Mediation − a dispute resolution process whereby parties negotiate over the issues in disputes in order to reach an agreement with the assistance of one or more mediators (Recommendation R(2002) 10).
Pending cases − it is the number of cases that still have to be dealt with by the court in a period of time. It may be expressed in numbers (e.g. Pending cases by January 1) or in a percentage (e.g. Percentage of pending cases of more than 3 years).
Policy − a course or principle of action adopted or proposed by an organisation; a course of action or inaction chosen by authorities to address a given problem or interrelated set of problems.
Practice − Practical actions undertaken by organisational players.
Public prosecutor − public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice systems (Recommendation R (2000) 19).
Timeframe − a period of time during which an action occurs or will occur. Timeframes are targets to be used as inter-organisational means to pursue the timeliness of court proceedings.
Time limit − a limit of time within which something must be done. In judicial proceedings, this term indicate mainly the limits established by procedural rules. These limits can be mandatory and with consequences in a specific proceeding (e.g. the prohibition of presenting evidences after a specific time) or simply intimation without consequence (as when a judge should write a sentence within a week after the decision but nothing happens if the provision is not fulfilled). On the contrary timeframes should not be specified by procedural rules. They are just inter-organisational goals with consequences at this level.
Time standard − time required to complete a task. The time allowed carrying out a production task in a standard costing system. It may be expressed as the standard time allowed or alternatively, when expressed in standard hours, as the output achieved. From an organisational perspective a time standard is more rigid and focused on single activities than timeframes. However it is extensively adopted by the Anglo-Saxon literature with a meaning similar to timeframe. Therefore, it is possible to use time standard and timeframe as synonyms.
Workload − it may be defined as the whole work that a court deals with, while the caseload only refers to the number of cases that a court deals with.
APPENDIX II:
SUMMARY ANALYSIS OF THE COUNCIL OF EUROPE RECOMMENDATIONS DEALING WITH MANAGEMENT OF TIMEFRAMES AND TIMELINESS OF PROCEDURES
SUMMARY ANALYSIS OF THE COUNCIL OF EUROPE RECOMMENDATIONS DEALING WITH MANAGEMENT OF TIMEFRAMES AND TIMELINESS OF PROCEDURES
The Recommendations of the Council of Europe dealing with the improvement of the functioning of justice offer a rich set of advises related with timeliness of justice that, when appropriate, have been mentioned in the compendium as reference.
This appendix summarises the results of the study. The recommendations which are available at the CEPEJ website (http://www.coe.int/t/dg1/legalcooperation/cepej/) have been classified in four groups dealing with:
This appendix summarises the results of the study. The recommendations which are available at the CEPEJ website (http://www.coe.int/t/dg1/legalcooperation/cepej/) have been classified in four groups dealing with:
1) procedural issues in civil justice,
2) procedural issues in criminal justice,
3) workload reduction,
4) use of modern technologies.
This document does not substitute the original texts of the recommendations, but offers a brief description of the recommendations that are considered useful for the purpose of this compendium.
1. Procedural issues in civil justice
For civil justice, COE recommendations mainly deal with “new” principles of civil procedure to improve the functioning of justice (Rec. R (84) 5). Other measures related to the reduction of workload (Rec. R (86) 12), and with the improvement of the appeal system (Rec. R (95) 5) will be considered in the section that deals with the reduction of the workload.
This document does not substitute the original texts of the recommendations, but offers a brief description of the recommendations that are considered useful for the purpose of this compendium.
1. Procedural issues in civil justice
For civil justice, COE recommendations mainly deal with “new” principles of civil procedure to improve the functioning of justice (Rec. R (84) 5). Other measures related to the reduction of workload (Rec. R (86) 12), and with the improvement of the appeal system (Rec. R (95) 5) will be considered in the section that deals with the reduction of the workload.
Recommendation R (84)5 on the pr inciple of civil procedure designed to improve the functioning of justice
This recommendation establishes criteria to improve the functioning of justice through more flexible and expeditious judicial procedures, the amendment of the rules that can be manipulated or abused to cause delay, and the promotion of an active role of courts in case management. The focus is on procedures, on their opportunistic use by the parties, and on other delays caused by witnesses or by experts. Solutions are threefold. On the one side, they aim at discouraging strategic or opportunistic behaviour of lawyers, parties and witnesses with sanctions. On the other side, they suggest a more intensive use of “modern technologies” to take evidence. In addition judges and courts should have a more active role in case management.
More in detail, the recommendation suggests several procedural guidelines, among which:
§ to establish a typical procedure based on “not more than two hearings, the first of which might be a preliminary hearing of a preparatory nature and the second for taking evidence, hearing arguments and, if possible, giving judgment.”;
§ the need to impose sanctions:
- to parties that “does not take a procedural step within the time-limits fixed by the law or the court.”
§ to establish a typical procedure based on “not more than two hearings, the first of which might be a preliminary hearing of a preparatory nature and the second for taking evidence, hearing arguments and, if possible, giving judgment.”;
§ the need to impose sanctions:
- to parties that “does not take a procedural step within the time-limits fixed by the law or the court.”
- to witnesses “in case of unjustified non-attendance” at the hearing;
- to experts “appointed by the court [who] fails to communicate his report or [who] is late in communicating it without good reason.”
§ to assign new powers to courts to facilitate the rapid progress of proceedings such as:
- “to decide the case in a summary way and […] to impose a fine” to a party that “brings manifestly ill-founded proceedings”.
§ to assign new powers to courts to facilitate the rapid progress of proceedings such as:
- “to decide the case in a summary way and […] to impose a fine” to a party that “brings manifestly ill-founded proceedings”.
- to sanction a party that “fails to observe the duty of fairness in its conduct of the proceedings and clearly misuses procedure for the manifest purpose of delaying the proceedings”.
§ courts should also “play an active role in ensuring the rapid progress of the proceedings” with the powers “to order the parties to provide such clarifications as are necessary; to order the parties to appear in person; to raise questions of law; to call for evidence […] to control the taking of evidence; to exclude witnesses whose possible testimony would be irrelevant to the case […] or when their number would be excessive”.
§ other issues considered in this recommendation are the provision of limits for the admittance of evidences, the suggestion to write concise judgments and the use modern technical means to facilitate the taking of the evidence.
2. Procedural issues in criminal justice
Considering procedural issues in criminal justice, CoE recommendations advise to simplify procedures and to develop a more discretionary criminal action (Rec. (87) 18). Other ways to improve the management of criminal justice are the establishment of objectives, a better coordination of the agencies of the criminal justice chain and the use of modern technologies (Rec. (95) 12).
Considering procedural issues in criminal justice, CoE recommendations advise to simplify procedures and to develop a more discretionary criminal action (Rec. (87) 18). Other ways to improve the management of criminal justice are the establishment of objectives, a better coordination of the agencies of the criminal justice chain and the use of modern technologies (Rec. (95) 12).
This recommendation proposes to tackle delays in the administration of criminal justice mainly by a clearer definition of priorities for carrying out crime policy. “The principle of discretionary prosecution should be introduced or its application extended wherever historical development and the constitution of member states allow; otherwise, measures having the same purpose should be devised”.
“States which, in view of their historical development and their constitution, apply the principle of mandatory prosecution should introduce or extend the use of measures that, although different from discretionary prosecution, have nevertheless the same purpose as the latter”.
The recommendation requests the extension of “the number of cases in which initiation of prosecution is subject to a condition” and the possibility, for judges, “to suspend proceedings conditionally or terminate them in cases and according to procedures similar to those practised by prosecuting authorities under the system of discretionary prosecution”.
Other propositions deal with the decriminalisation of “offences, particularly mass offences in the field of road traffic, tax and customs law, under the condition that they are inherently minor” and, for such cases, the “use of summary procedures or written procedures not calling, in the first place, for the services of a judge”. In any case “Such procedure should not infringe the right of the suspect to have his case brought before a judicial authority”.
Out-of-court settlements, the setting of simplified procedures for minor cases, and the simplification of ordinary judicial procedures at all stages are other measures to be considered. For each of these lines of action a precise set of guidelines is outlined. On this regard, the recommendation addresses changes to criminal justice focusing manly on procedures in a classical fashion. It considers neither the use management techniques as it does the Rec. No R (95) 12, nor the concept of timeframe. However, many suggestions reported are still applicable and potentially useful to improve the timeliness of justice.
The goal of this recommendation is to guide the use of management principles, strategies and techniques to improve the functioning of criminal justice. The key points are twofold. First the establishment of goals related with workloads, finances, infrastructures, human resources and communications that each agency of the criminal justice chain should adopt. Second, the need of a strong coordination within the criminal justice system, starting from the establishment of shared and coordinated goals. This recommendation shows a new awareness. The outcome of the criminal justice system depends on the interplay of several independent organisations and it can be influenced by management techniques. This underlines a change of perspective in respect to other recommendations dealing mainly with procedural rules.
The focus of the recommendation is on goals and on management tools that have to be developed in order to reach them. It suggests developing procedures to monitor the workload, to appraise the functioning of criminal justice agencies, to evaluate their efficiency and effectiveness. The use of internal or external consultants could ease the accomplishment of these functions.
“Regular and on-going monitoring procedures should be in place, designed to appraise the functioning of criminal justice agencies”. The recommendation advices to handle cases in a “differentiated” manner: “criteria for efficient workload management and for the appropriate handling of the different categories of cases should be defined. These should be developed in collaboration with the judicial and other staff concerned. Appropriate support should be provided to help the agencies to conform to these standards”. These standards should include also the processing times and therefore the timeframe.The recommendations underlines that “judges and prosecutors should be freed of tasks that could be performed by other agents” and point out the need to set up a management infrastructure capable of long term planning and of supporting a better use of resources.The management of human resources and of information and communication are two issues dealt with by the recommendation that can be related with a proper management of timeframes. Finally, it advises that “the introduction of managerial principles, strategies and techniques should take into account the special culture and conditions pertaining to the judicial environment, and should be undertaken by persuasion rather than imposition”.
The focus of the recommendation is on goals and on management tools that have to be developed in order to reach them. It suggests developing procedures to monitor the workload, to appraise the functioning of criminal justice agencies, to evaluate their efficiency and effectiveness. The use of internal or external consultants could ease the accomplishment of these functions.
“Regular and on-going monitoring procedures should be in place, designed to appraise the functioning of criminal justice agencies”. The recommendation advices to handle cases in a “differentiated” manner: “criteria for efficient workload management and for the appropriate handling of the different categories of cases should be defined. These should be developed in collaboration with the judicial and other staff concerned. Appropriate support should be provided to help the agencies to conform to these standards”. These standards should include also the processing times and therefore the timeframe.The recommendations underlines that “judges and prosecutors should be freed of tasks that could be performed by other agents” and point out the need to set up a management infrastructure capable of long term planning and of supporting a better use of resources.The management of human resources and of information and communication are two issues dealt with by the recommendation that can be related with a proper management of timeframes. Finally, it advises that “the introduction of managerial principles, strategies and techniques should take into account the special culture and conditions pertaining to the judicial environment, and should be undertaken by persuasion rather than imposition”.
3. Reduction of workload
This third group or recommendations deals with various tools and strategies to control (or diminishing) the workload of courts.
This third group or recommendations deals with various tools and strategies to control (or diminishing) the workload of courts.
The recommendation No R (86) 12 introduces measures to prevent and reduce the excessive workload in the courts, and useful strategies to speed up the pace of litigation. The recommendation No R (95) 5 considers the filters and the means to be applied to reduce the caseload of the courts of appeal.
The most recent recommendation on the subject (Rec. (2001) 9) deals with alternative means for resolving disputes between administrative authorities and private parties tailored for the specific need of administrative justice.
Other recommendations suggest the development of mediation programs on family matters (Rec. No R (98) 1) as well as on penal (Rec. (99) 19) and civil matters (Rec. (2002) 10).
Recommendation Rec. (86) 12) concerning mesures to prevent and reduce the excessive workload in the c ourts
This recommendation deals with the problem of excessive workload due to the growing number of cases brought to the courts.
More in detail, it advises “encouraging, where appropriate, a friendly settlement of disputes, either outside the judicial system, or before or during judicial proceedings”. It considers measures such as “conciliation procedures for the settlement of disputes prior to or otherwise outside judicial proceedings” and “entrusting the judge […] with responsibility for seeking a friendly settlement of the dispute”. Also lawyers should be involved. The pursuit of conciliation should become an ethical duty.
A second strategy for reducing workload consists in “providing for bodies which, outside the judicial system, shall be at the disposal of the parties to solve disputes on small claims and in some specific areas of law”, making “arbitration more easily accessible and more effective as a substitute measure to judicial proceedings”.
A third strategy suggests improving the number of cases decided by courts reducing “the non-judicial tasks entrusted to judges by assigning such tasks to other persons or bodies” and “generalising trial by a single judge at first instance in all appropriate matters”.
Recommendation R ( 95) 5 c oncerning t he appeal systems and procedures in civil and commercial cases
This recommendation moves away from recognising that in principle it should be possible for any decision of a lower court (“first court”) to be subject to the control of a higher court (“second court”), but it should be considered appropriate to make exceptions to this principle.
The recommendation then fixes criteria for filtering the cases to be heard by the second court. Exceptions should be founded in the law and should be consistent with general principles of justice.
Specific categories of cases, such as small claims, could be excluded from the right to appeal. Other measures are the postponement of “the right to appeal in certain interlocutory matters to the main appeal in the substantive case” and “fixing specific time-limits for the exercise of the right to appeal”.
Another strategy advised by the recommendation is to “prevent any abuse of the appeal system” with measures such as “requiring appellants at an early stage to give reasoned grounds for their appeals and to state the remedy sought” or “allowing the second court to dismiss in a simplified manner […] any appeal which appears to the second court to be manifestly ill-founded, unreasonable or vexatious”. Sanctions can be imposed “where unnecessary delays have been caused by the fault of a party”
A number of measures improving the efficiency of the appeal procedures are also suggested among which the possibility to reduce the number of judges (from panels to single judge) required to deal specific cases such as “applications for leave to appeal, procedural applications, minor cases, family cases, urgent cases, where the parties so request and where the case is manifestly ill-founded”.
The recommendation suggests also three measures well related with the topic of timeframes: the enforcement of time limits, an active role of judges in case management and the involvement of stakeholders. More in detail, it suggests:
Another strategy advised by the recommendation is to “prevent any abuse of the appeal system” with measures such as “requiring appellants at an early stage to give reasoned grounds for their appeals and to state the remedy sought” or “allowing the second court to dismiss in a simplified manner […] any appeal which appears to the second court to be manifestly ill-founded, unreasonable or vexatious”. Sanctions can be imposed “where unnecessary delays have been caused by the fault of a party”
A number of measures improving the efficiency of the appeal procedures are also suggested among which the possibility to reduce the number of judges (from panels to single judge) required to deal specific cases such as “applications for leave to appeal, procedural applications, minor cases, family cases, urgent cases, where the parties so request and where the case is manifestly ill-founded”.
The recommendation suggests also three measures well related with the topic of timeframes: the enforcement of time limits, an active role of judges in case management and the involvement of stakeholders. More in detail, it suggests:
· “Strict observance of time limits, […] and providing sanctions for non-compliance with time limits, for example fines, dismissal of the appeal or not considering the matter to which the time limit related”;
· “giving the second court a more active role both before and during the hearing of the case in order to regulate its progress, for example by making preparatory enquiries or by encouraging settlements”;
· “improving contacts between the court and lawyers and others involved in litigation, for instance by arranging seminars involving the second court and the bar associations or enabling discussion on how to improve procedures”.
Recommendation R (2001) 9 on alternatives to liti gation between administrative authorities and private parties
This recommendation (No R (2001) 9) suggests the development of alternative means of disputes resolution in the administrative disputes. They should be “either generally permitted or permitted in certain types of cases deemed appropriate, in particular those concerning individual administrative acts, contracts, civil liability, and generally speaking, claims relating to a sum of money”. The measures considered are internal reviews, conciliation, mediation, negotiated settlement and arbitration. In some cases, also simpler and more flexible procedures, could allow a speedier and less expensive resolution. Some of these means “may be used prior to legal proceedings” and become a “prerequisite to the commencement of legal proceedings.”
The recommendation expresses the “need to make greater use of family mediation, a process in which a third party, the mediator, impartial and neutral, assists the parties themselves to negotiate over the issues in dispute and reach their own joint agreements”. Mediation has the potential to reach goals particularly relevant in family disputes, such as to· “improve communication between members of the family;· reduce conflict between parties in dispute;· produce amicable settlements;· provide continuity of personal contacts between parents and children;· lower the social and economic costs of separation and divorce for the parties themselves and states”.
Last but not least, mediation programs should “reduce the length of time otherwise required to settle conflict” in areas in which the timeliness of justice is particularly important.
Recommendation R (99) 19 concerning mediation in penal matters
This recommendation advises to extend the use of mediation procedures to penal matters. The goals are the development of a “flexible, comprehensive, problem-solving, participatory option complementary or alternative to traditional criminal proceedings”. The mediation process should also give to the victims a “stronger voice in dealing with the consequences of their victimisation” and should encourage the “offenders’ sense of responsibility and offering them practical opportunities to make amends”.
The recommendations do not consider the potential effects of mediation programs on the reduction of court workload and on the timelines of procedure. However a successful mediation program, reducing the number of cases brought to courts, could also have positive effects on timelines of proceedings.
The recommendation underlines “the need to make continuous efforts to improve the methods of resolving disputes, while taking into account the special features of each jurisdiction” and consider “the advantages of providing specific rules for mediation” in civil matters. This will allow the parties to “negotiate over the issues in dispute in order to reach an agreement with the assistance of one or more mediators”. As in the previous cases, a successful mediation programs could reduce the caseload of courts with positive effects on timelines of proceedings. Nevertheless the recommendation points out that mediation could also become a way to delay court decisions and advise states to pay attention to this risk.
4) Use of modern technologies
Another set of recommendations deals with the use of “modern technologies”, focussing on the design of information systems (Rec. No R (2001) 2), on the delivery of court and other legal services through the use of new technologies (Re. No R (2001) 3) on the interoperability of information systems (Rec. (2003) 14) and finally on the archiving of electronic documents (Rec. (2003) 15). They are all strategies that can reduce the personnel needs through the automation of judicial operations and the improvement of the delivery and exchange of information through the use of the Internet. In this way, they should improve the efficiency of justice. With stable resources and caseload, this should improve the timeliness of justice. These resolutions recognise that information technology is essential for the efficient functioning of the justice system, especially in the light of the increasing workload of the courts.
These recommendations are quite technical; however some of the assumptions guiding the development of ICT may also be useful for the development and the management of timeframes.
Recommendation R (2001 ) 2 concerning the design and re-design of court systems and legal information systems in a cost-effective manner
This recommendation mentions the positive effects of ICT (information and communication technology) on efficiency produced by “greater celerity in the judicial administrative process and in information retrieval/processing”. The experience of some countries shows that this assumption can be true. However, empirical researches demonstrate that this cannot be taken for granted and that it is critical to find specific ways to use ICT to embed timeframe into justice operation. To make an example, statistical reporting and case scheduling should be ICT based tools designed to support the timeliness of proceedings. The recommendation does not consider this kind of issue. Rather, it deals mainly with the strategies to be followed to design and develop ICT in legal sector and with issues related with the project management.
Recommendation R (2001) 3 on th e delivery of court and other legal services to the citizen through the use of new techno logies
Another way to improve the efficient administration of justice is “to communicate with the courts and other legal organisations (registries, etc.) by means of new technologies”. The recommendation identifies several opportunities to be exploited, among which making “legal information available in electronic form” and “public electronic registers in the legal field available on time to appropriate organisations and individuals”. Another possibility is “establishing electronic channels for the exchange of data and documents between court and the public”. The last point entails the possibility of:
· “initiating proceedings by electronic means”;
· “initiating proceedings by electronic means”;
· “taking further action in the proceedings within an electronic work-flow environment”;
· “obtaining information about the state of the proceedings by having access to a court information system”;
· “obtaining the results of the proceedings in electronic form”;
· “having access to any information pertinent to the effective pursuance of the proceedings (statute law, case law and court procedures)”.
This recommendation recognises that “information technology has become indispensable for efficient functioning of the justice system, especially in the light of the increasing workload of the courts and other justice sector organisations”. These positive effects of ICT over efficiency “requires [also] legal recognition and wide use of electronic data exchanges between different organisations” i.e. the interoperability of information systems.Looking at the functioning of justice from this perspective, it is clear that judicial services are the result of transactions and interactions between different organisations: “the courts, prosecution and other public and private institutions, such as the police, penitentiary systems, public registers, civil status authorities, lawyers, notaries as well as other public and private stakeholders that exchange data and information in the process of the administration of justice”. We think that, as for the development of interoperability, a policy for timeliness of proceeding must involve these “justice sector organisations” and cannot be addressed only to courts, their judges and their staff.
Recommendation R ec. (2003 ) 15 on archiving of electronic documents in the legal sector (Local archive)
This recent recommendation deals with one of the consequences of the deployment of ICT in the legal sector: the growing number of electronic documents and the means to be used for their archiving and preservation. It must, therefore, be interpreted in the light of the Recommendation Rec (2003) 14, but it is self-evident how a proper use of modern means in this field should allow economies, and possibly increase the efficiency of the systems.
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