Strasbourg, 19 September 2005                                                     CEPEJ(2005) 7

                                                                                                                                          (English only)

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

Practical ways of combating delays in the justice system, excessive workloads of judges and case backlogs

Follow-up Seminar

Ljubljana, 27 – 28 September 2005

Reports of the experts

Reducing delays: recent developments in the Netherlands

Mr Pim ALBERS

Senior policy advisor, Strategy Department for

the Administration of Justice

Ministry of Justice of the Netherlands.......................................................................... 3

Backlogs and delays: recent developments in the Czech Republic

Ms Ivana BORZOVÁ

Head of the Department of Civil Supervision

Ministry of Justice of the Czech Republic.................................................................... 14

Practical ways of combating delays in the justice system,

excessive workloads of judges and case backlogs

German Report

Prof. Dr. Burkhard HESS, University of Heidelberg.................................................. 19

Reducing delays: recent developments in the Netherlands

Mr Pim ALBERS

Senior policy advisor, Strategy Department for the Administration of Justice

Ministry of Justice of the Netherlands

            Introduction

In this paper the recent developments in the area of reducing delays and backlogs of cases in the Netherlands are described. In the first part of the article the current situation of the functioning of the judiciary in terms of influx of cases and length of proceedings are presented. Also the measures defined by the Dutch Council for the Judiciary to fight against delays and to improve the functioning of the judiciary will be discussed in the first part (paragraphs two till five). Paragraph six is oriented at the ‘strategic agenda’ (2005 – 2008) of the Council for the Judiciary. This document is used by the judiciary for the development of a mid-term programme of activities and forms a basis for the ‘annual plans’ of the district courts and the courts of appeal. In the last part of the paper examples of reform plans issued by the Ministry of justice are displayed.

2          The judiciary (state of affairs)

One of the central aims of the Dutch Council for the Judiciary in the period 2002-2005 is the reduction of the length of proceedings. However, when the ‘strategic agenda’ (2002 – 2005) of the Council was drafted, the influx of cases rose dramatically. Despite this development the courts were able to handle de increase of cases, but no large reduction of the length of proceedings was realised. For a real reduction, specific ‘sector-programmes’ (for the different areas of law), were drafted and implemented. With the use of this programmatic approach the development, planning and implementation of several projects could be better geared. This should lead to a mutual strengthening of the effects of the different projects and an increase of the productivity in the several departments of the courts.

Influx of cases in 2002, 2003 and 2004 (Annual plan 2004 Council for the Judiciary)
	2002	2003	2004	Growth 2004
				compared with 2003
Municipal court cases (district courts)	762.280	908.100	1.091.130	20%
Civil section of the courts	217.830	231.310	250.370	8%
Administrative law section of the courts	42.730	45.440	48.930	8%
Criminal section of the courts	211.050	228.370	230.080	1%
Immigration law cases	97.880	68.900	58.810	-15%
Tax cases appeal courts	23.880	14.670	15.800	8%
Appeal courts	44.910	52.390	57.470	10%
Total judiciary	1.400.550	1.549.180	1.752.590	13%

When the results of 2003 are compared with the year 2004 we can see that the influx of cases was raised with 13 percent. Only in the area of immigration law cases the number of incoming cases was reduced, compared with the year before. The main cause for the raise of the workload of the courts is related to the extensive influx of ‘small civil cases’ (municipal court cases). See table 1. On the other hand, the total production of the Dutch judiciary increased too. The growth of the production was related to three factors: the increase of ‘simple’ cases (compared with the influx of complex cases), more efficiency in the working methods and an extra investment in personnel capacity.

            Developments in the criminal sections of the courts (facts and measures)

Facts

In the criminal proceedings criminal cases are handled in two ways: the relative simple cases (with a ‘small’ degree of punishment; maximum sentence for imprisonment of one year) are handled by a single judge (the police judge at the district courts) and the severe criminal cases are treated by a panel of three judges (so called ‘multiple chamber cases’).

When the results of the production of the courts in 2004 are reviewed, we can conclude that the length of the single judge criminal cases (and also the cases in the area of juvenile offenders) is drastically reduced. This is not the case for the ‘multiple chamber cases’. The length of the proceedings are reduced by 27 percent for the handling of such cases, however in a situation when there is an appeal, the courts spend more time on the elaboration of the decisions of the judges (that has to be send to the courts of appeal). The length of the court proceedings in criminal cases is defined as the ‘period between the first court session and the moment that the judge(s) make his/her(their) final decision’.

The reduction of the length of the single judge criminal cases can be caused by various factors. For example there may be lesser adjournments of cases. At the moment courts are working with ‘adjournments protocols’, explicitly with the aim to reduce the number of adjournments during a criminal court proceeding.

The increase of the time that has to be spend on the elaboration of the decisions of the judges in a situation when there is an appeal, can be related to the fact that there is a change of working methods within the courts.

Measures

In the area of the criminal law the Council for the Judiciary and the Ministry of Justice has formulated and implemented three measures, to reduce the length of proceedings and to increase the productivity in the courts: (1) the widening of the competence of the single judge in criminal cases, (2) the creation of a national co-ordination centre for ‘Mega-cases’ and (3) the development of a sector programme criminal law.

The widening of the competence of the single judge in criminal cases

In 2003 the competence of the ‘police judge’ was widened. In the recent past the police judge was only competent to treat cases when there is a maximum prison sentence of six months. At the moment the police judge can sentence a criminal offender for a maximum period of one year imprisonment. This development can possibly lead to a shift from cases that are handled by a panel of judges to the police judges. As a result of this more criminal cases can be treated with the same judicial capacity, because a certain group of ‘severe criminal cases’ can now be treated by a single sitting judge instead of a panel of judges.

A National co-ordination Centre for ‘Mega cases’.

At 1 July 2004 a national co-ordination centre at the district court of Rotterdam was opened. This centre is responsible for reviewing all large and complex criminal cases (a ‘Mega case’; for example a case in the area of organised crime or a terrorism case, when there is a need for a substantial amount of personnel capacity (judges and staff) to prepare and to handle such a case). In co-operation with the Presidents of the criminal sections of the courts, this Centre decides at which court (taking into account the workload of the court concerned and the need for specialised judges for example) a certain ‘Mega-case’ must be scheduled. Especially for relatively small district courts this would reduce their vulnerability in a situation when they are confronted with a Mega-case connected with their geographical jurisdiction. Such a case can be transferred to a larger court, which reduces the chance that a small court will be ‘overburdened’ and that the length of the proceedings will be increased in other sections of the courts, due to the need to have extra capacity to handle a mega case.

Sector programme criminal law

The Council for the Judiciary has given an assignment to the national meeting of the Presidents of the criminal sections of the courts to develop a sector programme criminal law. This programme is intended to increase the efficiency and to reduce the length of proceedings. The implementation of the programme has already leaded to the following results:

            All work processes of criminal law procedures in the courts are described. The description forms the basis for the development and implementation of a new computer system (GPS) to assists the courts (implementation is foreseen in the period of 2005 – 2006).

            There is a new (computerised) schedule programme, which can be used by the courts to schedule the court sessions more efficiently.

            The development of an ‘adjournment protocol’. This protocol describes in which situations an adjournment of a criminal proceeding is necessary and acceptable and in which situations this is not the case. The protocol itself aimed to increase the unity of law and also a better foresee ability of the length of a criminal proceeding.

            The development of an agreement between the prosecution services and the judiciary (courts) with respect to the number of cases that are brought before the courts by the public prosecutors and the number handled cases.

            Developments in the civil law sections of the courts (facts and measures)

There a two ways that civil law cases are treated in the courts. The small financial claim cases, law and tenant cases, employment dismissal cases and minor offences (for example non-payment of speed driving fines) are handled by the municipal court section of district courts. The civil law cases with a high financial impact and also the family law cases (divorce cases) are treated by the civil law section of the district courts.

Facts

The length of the civil law cases in the civil law section of the district courts is stable when we compare the figures of 2003 with 2004. In the area of commercial cases with defence the judge’s needs eleven days more to handle these cases. The Council for the judiciary has allocated extra financial means in 2004 to reduce the number of cases that are in stock. In the municipal court section of the courts, as already mentioned in the first part of this paper, the influx of cases was raised in 2004 with 20 percent. Most of the cases are related to financial claims of electricity companies, health insurance companies and telecom companies.

The length of the court proceedings in municipal court cases is stable. This is remarkable, because the municipal court judges where faced in 2004 with a substantial increase of their workload. Only in the area of commercial cases with defence (small commercial cases) there was a rise in the length of proceedings. An increase of complexity, more interviews and more court sessions (for witnesses) leads to a situation where a municipal court judge needs to spend more time on this category of cases.

Measures

In the civil law area there are four measures relevant in the fight against delays, namely: (1) the sector programme civil law, (2) the use of the flying brigade, (3) stimulation of mediation and (4) the introduction of money claim online.

Sector programme civil law

As was the case for the criminal law section, a sector programme civil law was developed and implemented in 2004. As a part of this programme seven different project plans were formulated. For example one of the activities of the project plan ‘Direction’ was the construction of a manual that can be used by the judges and the court staff to check how the (internal) procedures must be arranged after a ‘conclusion with reply’ is finished by the parties. There is also an internal manual for the delivery of evidence by the witnesses in civil procedures. In addition to this, a manual will be developed for the organisation of the research conducted by experts during a civil law procedure. Also the main work processes of the civil law section of the courts are described. Standard models for example for ‘contact of children after a divorce’, information and consultation rights for the parties during a divorce procedure are constructed. The use of these models can lead to a reduction of mistakes. It improves also the transparency for parties and it makes it easier for deputy judges to prepare cases.

The Flying brigade

The flying brigade was introduced to help the courts for reducing their number of cases in stock at the civil law sections and the municipal court sections. The courts are sending their cases to a centrally located unit in the Netherlands. In this unit judges and court staff are preparing draft-decisions. After finalisation of the draft-decisions the documents are send back to the courts. After the introduction of the flying brigade in 2000 nearly 8.000 draft-decisions were made by this unit. The unit itself is composed by 6 judges and 30 court staff employees.

Mediation

In 2000 a court annexed mediation project was launched. The project intends to give more insight in the possibility and also the necessity to have a referral procedure in civil and administrative law proceedings. In 2004 it was possible at six district courts to refer cases to mediators. Two other district courts held in the same year ‘mediation weeks’. In total 700 cases were referred to a mediator in 2004. Since 2000 approximately 3.000 cases were referred to a mediator.

Money claim online

Looking at the positive results in the United Kingdom with the use of electronic means in the area of money claims a comparable system will be introduced in the Dutch courts. Money claim online is a new procedural manner for natural persons, middle- and small companies. The essence of the system is that a creditor can give an assignment to a bailiff to serve a summon and to send this document to the court by means of electronic data interchange (EDI).

            Developments in the administrative law sections (facts and measures)

Facts

Compared with 2003 the influx of cases in 2004 has been raised with 8 percent. The main cause for this was that more social security and civil servant cases were brought before the courts. The influx of immigration law cases was reduced in 2004.

Influx of cases in 2002, 2003 and 2004 section administrative law (Annual plan 2004 Council for the Judiciary)
	2002	2003	2004	Growth 2004
				compared with 2003
Regular administrative law cases	33.770	36.520	39.970	9%
Social security law cases	17.340	18.380	19.570	6%
Civil servant cases	2.320	2.520	3.140	25%
Welfare case/Study finance cases	3.830	4.180	5.630	34%
Other	10.280	11.440	11.630	2%
Summary proceeding	8.960	8.910	8.960	1%
Immigration law cases	97.880	68.900	58.810	-15%
Total	140.600	114.340	107.740	-6%

When we take a look at the figures regarding the length of proceedings in administrative law, for all categories of cases the judges spend lesser time to handle cases. An average administrative law case costs nearly one year (330 days), starting from sending the application to the courts till the final decision of a judge.

Administrative law section (district court: length of proceedings in days 2003 and 2004 (Annual plan 2004 Council for the Judiciary)
	2003	2004	Difference 2004
			compared with 2003
Regular administrative law case	346	330	-5%
Summary proceeding	45	45	0%
Immigration law case	469	435	-7%

Measures

The main measure that has been taken in the area of administrative law within the judiciary is the development of a sector programme administrative law. The main orientation of the programme is connected with increasing of the productivity, a reduction of the length of proceedings and an improvement of the cost-effectiveness (in relation with the introduction of new information national system for the administrative law sections of the courts).

Another measure is the introduction of a manual ‘the use of medical experts in administrative law cases’. In this manual essential information is described, regarding: the Disablement legislation, relevant jurisprudence and the use of medical experts in disputes regarding a disablement case.

            The Strategic Agenda of the Council for the Judiciary 2005 -2008

After the publication of the first strategic agenda in 2002 a second version was published by the Council for the Judiciary in 2005. In this version five new goals for the 2005 – 2008 are issued. These goals are:

            The development of an institutional guarantee of an independent, impartial and integer judiciary (code of conduct);

            Differentiation in the treatment of cases, connected with the introduction of norms and standards in the length of court proceedings;

            Improvement of the unity of law;

            Specialisation of the judiciary by using the principle of concentration;

            Improvement of the transparency of the judiciary.

With respect to the reduction of the delays two goals are relevant to take a closer look at, namely the differentiation in the treatment of cases and the goal related to specialisation by means of concentration.

Differentiation in the treatment of cases

In the current legislation there are various possibilities for starting a court proceeding. The orientation of the Council for the Judiciary is to find a way to improve the efficiency and effectiveness of court proceedings by bringing into harmony of the specific characteristics of a case and the way how this case must be treated. Factors that must be taken into account are: societal implications of a case, the effluvium of the case concerned to other (similar) cases, (financial) implications and interests’ for the parties and the necessity of a conscientious judicial process. These factors will determine the way of proceeding, the costs’ of the procedure and the length. The parties will remain having  freedom (to a certain degree) on the procedural steps that they want to take. However this freedom is limited, due to a greater influence of the judge on the management of the court procedure (a more active role of the civil judge). In 2008 a normative system for the length of court proceedings will be introduced.

In addition to this other initiatives by the Council of the Judiciary will be launched:

            The stimulation of the co-operation between the courts;

            A further implementation of the possibility to refer a case to a mediator;

            The improvement of the measurement of the length of court proceedings;

            The stimulation of changes in the legislation;

            A guarantee of sufficient financial means for reducing the backlog of cases.

Specialisation by means of concentration

Due to a rising complexity of the society (and a changing environment of the judiciary), there is a tendency of specialisation of legal professionals or institutions which uses the services of the courts. As a reaction to this development there is a need within the judiciary to stimulate specialisation for the handling of certain type of cases. At the regional level courts will strengthen their co-operation, whereby for certain type of cases within a region a specialised unit within one of the co-operating courts will be introduced. A growing specialisation in certain areas of law could possibly lead to more efficiency of justice and a reduction of the length of court proceedings for the type of cases where a specialised treatment is necessary.

            Proposals of the Ministry of Justice to increase the efficiency of justice (and the judiciary)

In 2004 the Minister of Justice has send a letter to Parliament in reaction to a report of the Scientific Council of the Government (titled ‘the future of the national legal system’) in which the policy for the area of the judiciary and alternative dispute resolution is described. From the perspective of the current Dutch Cabinet the self-responsibility of the citizens should be stimulated. In practice this means that the dispute resolution should be organised and financed – as far as possible - by the parties themselves. More use should be made of dispute arrangements outside the courts, such as: conciliation boards, mediation and arbitration. With respect to the judicial organisation proposals are drafted to introduce a contemporary judicial system. Measures to realise this goal are: a better use of the court capacity, streamlining of court procedures and a focus on the ‘core-tasks’ of a judge.

A better use of the court capacity

To increase the efficiency of justice, the ministry of justice is preparing (legal) proposals to improve a better use of the court capacity, by means of stimulating co-operation between the courts. As a first part of the measures that has been taken, the ‘Decree on the location policy of courts’ was modified. Until the end of 2006 the Council for the Judiciary will annually review the effects of the change in the location policy. In addition to this, the Law on the Judicial Organisation will be modified, by adding a ‘co-operation article’. By including this Article into the law it will be possible for courts to co-operate with each other at the regional level with respect to the treatment/transfer of cases and conduct of business activities (for example in the area of automatization, finance and personnel policy). The main goal of the co-operation Article is to give the judiciary more possibilities to realise at an aggregate level ‘scale-advantages’ and to create a more efficient use of the current court capacity.

Streamlining of court procedures

As a part of the implementation of the ‘Security programme’ four legal proposals were drafted, with the aim to streamline the criminal court proceedings and to reduce the workload of the judiciary. The first proposal is the Draft legislation regarding a simplified motivation procedure on evidence in a situation when there is a criminal offender which pleads guilty. The second proposal reduces the number of hearings in judge’s chambers by introducing a new legal proposal on the hearing of witnesses. The third legal proposal is the introduction of a change in the preliminary detention phase, to make it easier for a judge to have the central role in a criminal court proceeding. Lastly, the introduction of a legal proposal to search at locations of (possible) criminal offenders during the pre-trial phase by introducing the possibility for the investigating judge to seizure evidence and to use methods of coercion during a seizure process. In addition to these new laws the ministry of justice is also preparing a legal proposal to make it possible to use videoconferencing techniques in the criminal procedure.

At the level of appeal the ministry of justice is also looking at legal and policy proposals to streamline the appeal procedures in criminal law, civil law and administrative law. One of the issues at stake is the necessity to have always a full appeal procedure in a case where the criminal offender does not agree on the height of the sentence. As a result of this the Ministry of justice is preparing a legal proposal to change procedural rules to make it possible during an appeal procedure for appeal judges to work with the decisions of the lower level judges. Next to the proposals in the area of the criminal law, at the moment an international comparative scientific study is conducted to identify ‘best practices’ in the area of efficient appeal procedures and working methods.

The ‘core-tasks’ of a judge

The Dutch Constitution defines that the judge is competent for the resolution of disputes and to trial criminal cases. In addition to this, judges are working at other tasks that are assigned to them by various laws, the so-called ‘non-judicial’ tasks. At the moment there is no information available regarding the size and the different types of ‘non-judicial’ tasks. Currently the Scientific Research and Documentation Centre of the ministry of Justice is conducting a study on ‘non-judicial’ tasks. The results of this study will be used for a possible removal of certain non-judicial tasks to other organisations outside the judiciary, if this is more efficient or effective.

Next to the three measures described in the previous paragraphs, the ministry of justice (in co-operation with the judiciary) is also preparing plans to improve the efficiency in civil law proceedings. One of the concrete examples is the increase of the level of competence for the municipal court section of district courts for civil cases (with a financial claim that does not exceed 10.000 euro) to make it possible for parties to start a court proceeding without a mandatory legal representation. A fundamental change in the civil law code is expected in the near future, as a result of a large scientific research project conducted by a Commission ‘Fundamental redesign of the Civil Code’. Preliminary recommendations of this Commission are: the stimulation of ADR, the introduction of a differentiation in civil proceedings by means of introducing separate collection procedures and small claims procedures, a basic model for the civil procedure (with a fixed structure: one written procedural step followed by a oral elaboration of the dispute), the removal of the separation between a summon proceeding and a petition proceeding, the introduction of a written evidence report by the witnesses (instead of the use of oral meetings for witnesses), a sanction mechanism for parties in case of procedural misuse and a drastic reform of the appeal procedure. 

Literature

            Council for the Judiciary, Annual report 2004, The Hague

            Ministry of Justice, Annual plan 2005 Strategy Department for the Administration of Justice, The Hague

            Council for the Judiciary, Annual plan 2005, The Hague

            Council for the Judiciary, Agenda for the Judiciary 2005 – 2008, The Hague

LAMICIEMODEL 2005 (workload model for judges and staff)
			Minutes per case (judge)			Minutes per case (staff)
			Appeal court	District court	Municipal court section	Appeal court	District court	Municipal court section
I. Civil law cases
Commercial law cases :
101		Decision employment dissmissal case  with defence			303			205
102		Decision commercial case with defence	1.745	807	118	1.201	619	411
103		Decision Article 2 + interview, plea	1.745	1.726	516	1.201	998	605
104		Decision commercial case in district court concerning appeal		966			489
105		Judgement first instance (in absentia)		9	1		98	19
106		Court order commercial petition	577	60	12	1.473	175	26
107		Court order labour case (7:685BW)			47			116
108		Court order rent case			110			161
109		Decision bankruptcy case		309			1.133
199		Completion without decision				5	4	4
Family law cases:
201		Decision divorce case	972	82		1.750	367
202		Court order mental disease cases (admission mental hospital)		77			179
203		Court order on a petition to a child-judge		64			224
204		Decision other family law case	577	99	12	1.499	485	138
299		Other means of competion of a family law case			2	80	61	56
Decision president of a court/civil law general
301		Judgement summary proceeding/session with defence		206	122		787	153
302		Judgement summary proceeding in absentia		13	1		73	56
303		Court order on a petition to the president		13			110
304		Issue of legal deeds and statements					2	11
399		Completion without a decision					12	4
II. Administrative law cases
Administrative law
401		Decision summary proceeding		225			892
402		Decision social security case (single judge case)		387			983
403		Decision civil servant case (single judge case)		531			1.173
404		Decision Welfare case/Study finance case (single judge)		254			959
405		Decision other administrative law cases (single judge)		445			1.183
406		Decision administrative law cases (panel of judges)		971			1.035
499		Other means of completion		69			506
Immigration law cases
501		Completion Asylum old/new		207			582
502		Completion regular		151			510
503		Completion detention case		31			103
504		Completion ac-case		106			252
505		Completion Dublin cases		34			189
III.
Tax cases
601		Decision panel of judges	1.355	1.355		1.068	1.068
602		Decision single judge with defence	250	250		523	523
603		Decision simplified procedure	4	4		129	129
699		Completion without decision				180	180
IV.
Criminal law cases
701		Decision panel of judges with/without interpreters and or witnesses	612	1.023		712	1.270
702		Elaboration decision appeal/cassation (panel of judges)	230	126		842	755
		with/without interpreters and or witnesses
703		Decision police judge with/without interpreters and or witnesses	69	45		241	142
706		Decision minor offence	42	31	8	123	189	22
707		Court order judge’s chamber	24	24		48	47
708		Court order ex art. 12 SV	165			289
709		Completion Mulder case (traffic offence) with defence			12			142
710		Completion Mulder case with use of methods of coercion/or in case of a claim			2			15
799		Completion without decision				116	16	4

Backlogs and delays: recent developments in the Czech Republic

Ms Ivana BORZOVÁ

Head of the Department of Civil Supervision

Ministry of Justice of the Czech Republic

            There is still a problem of backlogs and delays in court proceedings in the Czech Republic, although the number of uncompleted cases fell in 2004 in almost all areas in district and regional courts.  For example in the most important civil category in district courts - C - the number of uncompleted cases went down by 4.416 compared with 2003, 2.418 of these in the category of cases from 3 to 5 years, and the number of cases in the area of judgment execution actions not disposed of by district courts went down by a total of 7.391 and commercial cases in regional courts by 12.242. 

      To illustrate this, I will state that 285.469 category C cases came up before district courts in 2004, courts settled 316.367 cases, and 171.454 cases awaited judgment. This confirms that the trend that has been evident for a number of years that courts are deciding more cases than those coming up before them will continue.

      The length of proceedings will also continue to be affected in the future mainly by objective factors.  This concerns in particular situations when cases cannot be heard because proceedings have been suspended, for instance as a result of the death of one of the parties concerned, when it is necessary to wait for completion of inheritance proceedings.  According to findings of the Ministry of Justice, suspended proceedings account for roughly 40% of the total number of uncompleted cases. The great majority of these are proceedings suspended under the Bankruptcy and Composition Act (Act No. 328/1991 Coll.). Under this Act proceedings on claims relating to assets belonging to a bankrupt’s estate are suspended.  Although the administrator of a bankrupt’s assets is obliged to submit a final report to the court within 18 months of bankruptcy being adjudicated, the court may extend this deadline and suspension in a number of cases lasts for several years.  The causes of the length of bankruptcy proceedings lie in the complexity of these proceedings, when the court often has to work with several hundreds of parties and with a substantial volume of claims. The length of bankruptcy proceedings is also affected by the cooperation of parties with the court and the administrator of the bankrupt party’s assets, the economic behaviour of debtors and, last but not least, the quality and intensity of how the bankruptcy administrator exercises his function. 

      Another fact which affects the length of proceedings is the need for a great deal of substantiation of facts and in particular obtaining opinions of expert witnesses. Expert witnesses are often unable to provide their expert opinion within the stipulated time. A number of measures have been taken in this context; for example, judges have been instructed to reduce an expert´s fee if the expert does not fulfil his/her obligations; judges should inform of such failure the relevant office of the regional court in charge of the expert witness agenda.

      In a range of disputes, the length of proceedings is also affected by the conduct of parties themselves (repeated requests for adjournment of hearings, out-of-court hearings, applications for legal remedies for all court decisions and so on).

            In several courts, the number of backlogs is significantly affected by the large number of cases coming before them and continuing shortage of judges or lack of staff in the past (the number of judges recorded at 1 July 2005 is 2.883 and according to the calculations of the Ministry of Justice there should be 3.059, ie there is a continuing shortage of 176 judges).  This is the case particularly in courts in North Bohemia and South Moravia. Women are predominant in Czech judiciary (1.798 of the total number given above are women), and even though the official lists in certain courts are full, a number of female judges are on maternity leave and in fact there is a lack of judges (there were 137 of these female judges on 1 July 2005).

      Where subjective shortcomings on the part of judges have been ascertained (lack of concentration of proceedings or other inactivity) adequate measures are taken by the President of the Court concerned. These shortcomings are disposed of mainly by means of a personal interview and reprimand of the judge, and in the more serious cases by a proposal to commence disciplinary proceedings against the judge.

      The Presidents of district and regional courts pay permanent attention to uncompleted matters of older case schedules. As an example of supervisory activity we can quote preparation of what are termed file sheets or cards of backlogs on cases where more than 3 years have elapsed since they came before the court.  In these cases, judges are always obliged, after a certain time - as a rule 2 - 3 months, to record steps which they have taken concerning the file.  It is therefore the duty of the President of court to check file sheets together with the files.

      The main responsibility for the smooth progress of court proceedings always lies with Presidents of a court concerned, ie District, Regional, High, Supreme and Supreme Administrative Court.  Their supervisory activity is therefore complemented with subject-area reviews carried out by the Supervision and Complaints Department of the Ministry of Justice. In the civil law cases, the review is currently being carried out in bankruptcy proceedings, and a subject-area review of guardianship cases is being prepared.

      Regarding what can be done by parties to proceedings, inappropriate conduct of court officials or violation of dignity of proceedings, we can refer to Act No. 6/2002 Coll., on courts and judges, to the court administrative authorities if it is held that there have been delays in proceedings. A complaint must be disposed of within 2 months and, if the complaint concerns delays in proceedings, within 1 month of the date of its delivery to the state court administration authority having jurisdiction over dealing with it.

     The table below gives a comparison of the number of complaints (received in years 2002, 2003 and 2004) and their overview:

DISPOSAL OF COMPLAINTS IN THE CR

Comparison of 2002, 2003 and 2004

	2002	2003	2004
Number of complaints received	5,059	5,263	5,665
Number directly disposed of	4,099	4,614	4,767
Complaints examined and disposed of:
against delays in proceedings:	2,899	3,073	3,293
- justified	777	784	755
- partially justified	269	315	256
- unjustified	1,853	1,974	2,282
against inappropriate conduct by court officials:	526	502	482
- justified	44	34	31
- partially justified	33	26	20
- unjustified	449	442	431
against violating the dignity of proceedings:	47	47	13
- justified	6	5	0
- partially justified	6	2	1
- unjustified	35	40	12
other reasons	287	299	390
not proved by courts	117	333	266
Disapproval with disposal of complaints	223	360	323
- justified	14	33	27
- partially justified	26	32	26
- unjustified	183	295	270

      It can be seen from the data above that the total number of complaints submitted and directly disposed of show a rising trend. The rise in numbers can be seen in complaints against delays in proceedings where the complaints are unjustified, whereas the number of justified and partially justified complaints against delays show a downward trend. Complaints against the conduct of court officials are falling slightly, and complaints against dignity of proceedings fell by a full two-thirds in 2004 compared with 2002 and 2003. The fall in disagreement with the way complaints were dealt with is connected with introduction of the provision of a motion to set a time limit for performing a procedural act (S. 174a of Act No. 6/2002 Coll., on courts and judges).

      Under this provision, which was included in the Courts and Judges Act with effect from 1 July 2004, if a party to proceedings considers that its complaint against delays in proceedings has not been dealt with properly by the state court administration authority concerned, it may lodge an application with a court to set a time limit for performing a procedural act. A court at the immediately superior level adjudicates on this application and, if it concludes that the application is justified, sets a time limit for performing the procedural act; the court having jurisdiction to perform is bound by this time limit. 

      Until the end of 2004, there were 130 applications to set a time limit for performing a procedural act; courts issued decisions on 118 of them, but only in 6 cases applications were recognised as justified and time limits were set for performing the procedural act. In 80 cases the applications were dismissed (after dealing with them) and 25 applications were rejected (in 7 cases the court reached a different decision - for example stay of proceedings or referring it to an appropriate court). Although it appears at first sight that most applications were dismissed it can be seen from individual decisions that in many cases (roughly 30%) this was because the activity requested had already been performed. This also proves the fact that this provision makes sense because it leads to speeding up proceedings.

            This year a number of important amendments of legal regulations aimed at speeding up court proceedings were also adopted. 

      One of the causes of proceedings taking a long time is also partial return of cases by a court of appeal (see chart below). One of the latest amendments to the Civil Procedure Code - Act No. 59/2005 Coll., which came into effect on 1 April 2005, attempts to resolve this problem. This is a partial amendment of the Civil Procedure Code, which first and foremost sets out to speed up proceedings by, with certain exceptions, preventing the quashing of first instance courts´ decisions by appeal courts. The amendment does not set out to make comprehensive change of the rules and principles of civil court proceedings. Its aim is to ameliorate at least partially the present unsatisfactory state until a new civil procedural code is adopted which will fully reflect modern trends in procedural law manifesting themselves in stabilised western democracies. The wording of the Civil Procedure Code has not allowed an appeal court to hear evidence to any great extent, which has necessarily led to quashing the contested decisions. Under more recent amendments an obligation is imposed upon an appeal court to hear the evidence to the extent required for a decision on the case and the appeal court will hear this evidence itself. It stipulates clearly that an appeal court will either confirm the decision of the court of first instance, if it is correct in terms of material fact, or change it if it is not correct in terms of material fact; quashing a judgment is subsidiary and may occur only in a situation when the court of first instance has made very serious mistakes.

           

     Another legislative change which should contribute to speeding up proceedings in cases concerning the Company Register is Act No. 216/2005 Coll., which came into effect on 1 July 2005.  Subject-matter review of applications for entry in the Company Register, vaguely formulated time limits and the disputable nature and lack of uniformity in the requirements of Register Courts have created obstacles, which this Act is attempting to eliminate. In essence, subject-matter review is abandoned and the registration principle is introduced, when the Register Court is authorised to review only the formal qualifications of an application for entry in the Company Register. If the requirements of the Act are fulfilled, or if additional required documents are delivered within the due time limit, the court is obliged to make the entry in the Company Register within a period of a maximum of five working days, otherwise the proposed entry is regarded as having been made on the day following expiry of this period. The Act also introduces obligatory use of standard forms for submitting applications for entry in the Company Register and the possibility of submitting applications in electronic form. The Ministry of Justice has also made standard forms available free of charge on its Internet pages.

      There has also been a positive development in the area of out-of-court settlement of disputes.  In an attempt to reduce the number of disputes resolved by courts, the Ministry of Justice is preparing, in cooperation with the Prague Open Society Fund Foundation, a system for introducing mediation as out-of-court settlement of non-criminal disputes.  On the basis of a memorandum executed, a project named “Mediation in non-criminal cases, or the standard is not to go to court” has been started. Three working groups are working on the project, the first of which is focuses on preparing national standards for mediation in non-criminal cases, the second on preparing a system for training mediators and accreditation of training institutions, and the third on preparing legislative changes required for incorporation of mediation into the Czech legal system. At present, outputs of individual working groups are available on the basis of which implementation of a pilot project should begin this Autumn, and the training systems prepared, provision of mediation and cooperation of courts could thus be examined in practice. The aim of the pilot project is to prepare training manuals, to train the first group of mediators and to implement mediation as a means of settling disputes in two selected regions, and to prepare and implement a campaign for specialist personnel (particularly judges and attorneys), but also the lay public. The whole system should thus be brought into operation from 1 January 2007.

Practical ways of combating delays in the justice system, excessive workloads of judges and case backlogs

German Report

Prof. Dr. Burkhard HESS, University of Heidelberg

A. Introduction

The following report explains how German courts and the judicial administration try to overcome delays and case backlogs in judicial proceedings. The first part gives a short overview of the judicial system in Germany (A), the second contains the answers to the questionnaire prepared by the CEPEJ (B), while the concluding remarks address general issues from a comparative and a constitutional perspective (C).

1. The Organisation of the Civil Judiciary in Germany

At present, the German court system is structured as a mixed three- to four-tier system. All lawsuits must be filed in the local or district courts as courts of first instance. Appeals are open to the courts of second instance (district courts and courts of appeal). A second appeal (which is restricted to a legal review of issues of general importance) is heard by the Federal Supreme Civil Court.[1] The German judicial system relies on professional judges. Lay judges are only found in specialised courts (or departments of the courts), such as commercial chambers, patent courts and in the labour courts, which do not, as a matter of principle, form part of the civil judiciary (see Art. 95 of the German Constitution)^[2].

The organisation of the German court system is largely influenced by the federal system. The Federal States (Bundesländer) are responsible for the organisation and the financing of the district and appellate courts as well as for the remuneration of the judges and the other court staff. Only the Supreme Civil Court (as well as the Supreme Courts in fiscal, administrative, social and labour matters) is maintained by the Federation.[3] Therefore, any legal reform which encompasses the organisation of the courts is subject to the approval of the Federal States (in the Bundesrat, 2^nd Chamber of Legislation). This is the main reason why comprehensive reforms of the German judicial system have proved very difficult and protracted.^[4]

All civil courts apply the proceedings of the German Procedural Code of 1877, which was originally inspired by the French “Code de Procédure Civile” of 1806.[5] In 1877, the German Code focussed on encompassing the principles of orality and immediacy, and it gave wide scope to liberal moral concepts.[6] Today, it is largely accepted that the principal responsibility of the judge is to ensure an efficient and fair handling of any case in order to enable the parties to have access to justice and to give effect to their right to be heard (Art. 103 Basic Law, Art. 6 ECHR).[7] In principle, the local and district courts (and the district and the appellate courts in the second instance) apply the same procedural rules. In small claims cases, the local courts can deviate from the procedural rules, structuring the proceedings according to the judge’s discretion (sect. 495a Code of Civil Procedure).[8] The German small claims procedure does not rely on claim forms and information technology is not generally used.[9]

2. Ongoing Reforms of Procedural Laws

Since the last decade, ongoing reforms in the procedural field have become an everyday phenomenon in Germany. In May 2001, an important reform^[10] was enacted which changed the appeal system^[11] and sought to reduce the case overload in the civil courts.[12] Originally, the Federal Ministry of Justice also proposed to change the four-tier structure into a three-tier judicial system (by integrating the district and local courts). This proposal met with strong opposition from the Federal States, which were unwilling to reorganise their court systems by merging existing district and local courts^[13]. Strong opposition also came from the judiciary.^[14] Judges complained that “the judiciary was being dominated by economics, which was unwelcome”^[15]. Lawyers (as well as politicians in small- and medium-sized cities) feared that the integration of local and district courts would diminish the importance of their home towns^[16]. Further, the Federal States presented estimates, according to which the price of such a reform would amount to approximately  €500 million^[17]. As a result, the project was largely dropped and the legislation was not aimed at  structural reform, but concentrated on simplifying the appeal proceedings.^[18]

At present, the German Conference of the Ministers of Justice (Justizministerkonferenz) is preparing a second procedural reform with a wider scope. Its purpose is to simplify the current system[19] and to reduce costs and delays.[20] The cornerstones of the programme (called “Great Reform of the Judiciary”) were published in November 2004.[21] They were immediately largely critized by the legal profession (judges and lawyers) and by academics.[22] However, in July 2005 the Conference of the Ministers decided to continue the project which is now being prepared by several working groups. The most ambitious objective is to reduce the number of the different court branches from 5 to 2 or 3 and to establish a uniform procedural code. In addition, there is special focus on improving the efficiency of the judicial system in general.[23]

3. Statistical Information

In general, the German system performs quite well. The latest statistics for 2004 show that the local courts process more than 50% of all proceedings in a period of 3 months, in the district courts 35% of all cases are processed in a period of 3 months, and an additional 25% in a period of 6 months. However, the system has its price. As statistics show, the ratio of judges to the total population in Germany (82,500,000) is high compared to other European countries. In 2004, there were 687 local courts, 116 district courts and 25 courts of appeal, with an average of 116,000 inhabitants per local court. Within the European Union, Germany has the highest number of judges per head of population, with one judge for every 3,947 inhabitants.[24] On April 20^th, 2004, 20,412 judges were employed in the courts of law (all jurisdictions) under the auspices of the Federal States and 489 were employed in the Federal Supreme Courts.^[25] Judges in the “ordinary courts” deal with all civil issues, including voluntary proceedings (Freiwillige Gerichtsbarkeit) and with all criminal trials.[26] The total number of judges has been constant for years. Therefore, procedural reforms try to alleviate the caseload and to simplify the proceedings in order to reduce the judges’ workload. These reforms are also influenced by recent research about the (average) workload of judges showing that the judiciary is understaffed.[27]

By contrast, the number of lawyers has grown considerably in recent years. In 1983, a total of 44,526 lawyers were admitted in former West Germany. In 1996, 78,810 lawyers were admitted throughout Germany (East and West). In 2000, more than 100,000 lawyers were practising in Germany. The number is still increasing. On June 16^th, 2005, the statistics reveal about 132,569 lawyers. Accordingly, the professional opportunities for young lawyers have been worsening.^[28] Compared with the neighbouring states, especially the Netherlands, German society appears to be much more litigious. In 1990, Germans sued at more than double the rate of the Dutch in civil (including labour) matters. It seems that more lawyers in Germany create more litigation, while the legal tradition in the Netherlands is not as court-oriented as in Germany.^[29].

B. Answers to the Questionnaire of the CEPEJ

1.What is regarded to be a “normal” or “optimal” caseload of the courts and individual judges? Who is determining such workload, under which criteria? In particular, what are the numbers and types of cases that a single judge has to resolve annually and are such cases differentiated by the level of complexity, value in dispute or otherwise? What is regarded to be a “backlog”?

The evaluation of the judicial workload is normally undertaken by the ministries of justice of the Federal States. They are responsible for the administration of the courts, which includes personnel planning. However, due to the constitutional guarantee of judicial independence (article 97 Basic Law), German law does not include any general figures relating to what should be an “ideal trial” nor does it stipulate strict time limits for judges on how to deal with cases efficiently. The judicial administration does not closely supervise the courts or the individual judges (in the sense of a reporting system or general bench marking).

However, in order to facilitate the administration of the judiciary, the ministries of justice of the Federal States developed uniform methods for evaluating the courts’ workload. These methods are primarily used for personnel and staff planning within the judiciary. Since the 1990s, the techniques applied in the administration of the judiciary have been largely influenced by the methods of “new public management”.[30] In this context, modern methods of personnel planning and a better system for evaluating the workload of the judges and the courts have been developed.[31]

The traditional way of measuring the workload of the judges and the court staff’s requirements was the so-called “Pensenschlüssel”. According to this method, a judge in a local  court was considered to handle 570 civil cases per year while a judge in a district court was considered to handle 140 civil cases per year.[32] This system was based on rough estimates which are not consistent with modern forms of personnel planning.[33] It did not distinguish sufficiently the unequal workloads of the judges depending on the different categories of cases.

In the late 1990s, some Federal States entrusted the (former) accounting firm Arthur Andersen with the elaboration of a modern system for the evaluation of the performance of the judiciary. It was supposed to enable the ministries of justice to implement effective personnel planning.[34] The new system, called “Pebbsy”[35], was presented in 2002.[36] It is now being implemented by the  judicial administration in the 16 different Federal States and is being adapted to their respective court structures. The system is based upon much factual research which was conducted in 7 Federal States. When it was set up, about 1,900 judges and prosecutors in more than 40 courts and prosecutors’ offices had to document the number of cases and the time spent to finish the cases .[37] As a result, the study showed the average working time of a judge in several categories.[38] Under the old “Pensen”-system all civil proceedings of the local courts had been treated equally. Based on the study, the Pebbsy system distinguishes the following categories (considering simple, average and difficult cases as a whole):

-            Neighbourhood disputes: average working time: 290 mins. [39]

-            Construction disputes: average working time: 260 mins.

-            Traffic accident: average working time: 220 mins.

-            Rental disputes between landlords and tenants: average working time: 170 mins.

-            Other civil matters: average working time: 150 mins.

           

Based on this categorisation, each Federal State calculates the annual workload of its judicial staff separately. These differences are due to the individual working conditions in the Federal States.[40]

In addition, Pebbsy and the general introduction of information systems in the courts also allow broad data collection and, therefore, a precise evaluation of the efficiency of each court and even of each single judge. As a result, the transparency of the performance of the judiciary (“Erledigungszahlen”) has been largely improved.[41] The data is provided by each single judicial unit and collected and processed in the ministries of justice. In the Federal State Baden-Württemberg, the data is available for the presiding committees of the courts.[42] However, there is a large consensus that  direct control of judges is not allowed, because this control would infringe upon the independence of the judges. Accordingly, the system only serves as a point of reference for the personnel planning of the judiciary. However, it is also used as guidance for allocating the annual caseload within the courts (between the judges, chambers and senates)[43]. At present, there is an ongoing discussion on the application of bench marking techniques within the courts. In some Federal States  bench marking committees have been set up at the local and district court levels.[44] These committees compare the handling of specific proceedings (i.e. assessment of costs) in order to find out best practices. Such techniques are currently applied to the lower-ranking judicial staff, especially to judicial administrative] staff. The general opinion is that a broad application of bench marking in the judiciary would pre-suppose a clear separation of the administration of the judiciary from the ministries of justice.[45] Any supervision of justice should be effected by (independent) judicial councils. In general political discussions, however, these proposals are still met with reluctance[46].

2.What is regarded to be a “normal” or average duration of specific types of court proceedings? Who sets the criteria for desirable duration? What is regarded to be a “delay”?

German law does not contain any definition of an adequate duration of court proceedings[47]. The criteria of the Pebbsy-system are not applied as binding guidelines for the handling of individual cases. However, sec. 26 of the German Law on the Status of Judges (Richtergesetz) provides for a certain supervision of the judges by the presidents of the courts. However, this control is strictly limited by the constitutional guarantee of judicial independence. According to the clear wording of the second paragraph of sec. 26, the supervisory powers include the ability to order the judge to manage his or her cases properly and in due time. According to the case law of the Federal Supreme Court, the president’s presiding powers encompass comparing the performance of different judges in the district, drawing up working plans and requesting specific reports on the pending cases.[48] However, the president may not instruct a judge or stipulate time limits for the performance of specific acts.

In practice[49], judges are obliged to report regularly (ex officio, once a year) about their work.[50] In these reports, the judges must list all cases pending for more than 12 months[51] and explain the reasons for the delay. In addition, the president may demand additional information about the status of pending cases[52]. Finally, judges are regularly evaluated for promotion to positions of leadership within a given court and (more often) for appointment to higher courts.[53] This promotion depends on their experience and their performance in office. Accordingly, there is some “social pressure” on the judges to perform their duties timely and expeditiously.

3.Who is responsible for reducing delays and/or cutting down the backlogs? How can users of the justice system complain about the backlogs?

a) As a matter of principle, every judge is primarily responsible for the swift and efficient handling of the pending case.[54] As explained above, every president of the district (and superior) court is responsible for the general performance of the courts under his or her supervision. If a judge should delay the proceedings considerably, parties may file a petition for administrative review of the judge (Dienstaufsichtbeschwerde)[55].

b) At present, the parties and other users of the judicial system do not have a specific remedy against procedural delay at their disposal. In extraordinary cases, however, they may apply to the superior court (extraordinary complaint)[56]. As a rule, these complaints do not offer much prospect of success, as the appellate courts normally do not interfere in pending proceedings of an inferior court[57]. Only the final judgment may be appealed. As a result, parties apply directly to the constitutional court (by constitutional complaint) in order to overcome excessive delays in pending proceedings.[58] From time to time, such complaints have been successful. The Constitutional Court considers that the effective handling of proceedings forms part of the constitutional guarantee of a fair trial (effective protection by the courts of justice).[59]

c) The current situation may change in the near future. Several weeks ago, the German Federal Ministry of Justice published the preliminary draft of a law[60] which shall introduce a specific “complaint against judicial inactivity”.[61] This draft refers explicitly to articles 6 and 13 of the ECHR and to the case law of the European Court of Human Rights. [62] It provides for a (general) complaint in the case of judicial inactivity (which is not directly defined).[63] The request is submitted to the judge whose behaviour is questioned. The judge may, within a period of 2 weeks, take the necessary procedural steps.[64] Otherwise, the complaint is transferred to the superior court (with an opinion from the inferior court). The superior court shall give its judgment within a period of one month and order appropriate measures.[65] This decision shall not be subject to appeal. Despite some differences in detail, the draft closely follows the model of sec. 91 of the Austrian Act of Courts.[66]

 

4.Is there a particular person or official in courts (court manager, court administrator) or a particular service in court/Ministry of Justice that is responsible for monitoring the duration of individual trials (from commencement to the end)? What office monitors the overall performance of the courts and collects data on delays?

See generally section 2) above. The president of the district court is empowered to supervise the judges of that court and of the local courts in the court’s district[67]. He or she must ensure that cases are dealt with without undue delay. Due to the constitutional requirements, Germany does not have any specific monitoring of pending cases. In practice, judges of the local courts must report to the president of the district court on proceedings pending for more than 12 months. Apart from this (general) supervision, monitoring does not take place in Germany.

5.What measures are being taken to reduce backlogs and/or delays in courts? What measures are of emergency (and temporary) nature, and what measures are of a more durable nature?  In particular, were there efforts to:

a.            transfer cases or judges from some courts to the other;

A transfer of pending cases from a competent court to another jurisdiction is excluded by the constitutional guarantee of the lawful judge (article 101 (1) Basic Law). According to this principle, the competence of the judge must be precisely determined in advance and the allocation of cases must be effected in a precise way (without any discretion of the judiciary). However, academics criticise the strict interpretation of the constitutional guarantee by the Constitutional Court as an unnecessary complication of practical needs.[68]

b.            introduce changes in working hours of courts and/or more “shifts” in individual courts;

According to the dominant opinion, the constitutional guarantee of judicial independence excludes any introduction of working hours for judges without their consent.[69]

c.            employ temporary          judges and/or other officials;

According to section 27 Law on Judges, judges are appointed full time with a life-time tenure. Again, the constitutional guarantee of judicial independence excludes the appointment of temporary judges. Only lay judges are appointed for a specific period of time (as a rule 5 years). Lay judges hear criminal cases, labour and commercial cases and are also found in the administrative and social courts. The deployment of lay judges in the German court system is an exception and must be explicitly prescribed by law. However, the appointment of lay judges is not aimed at combating a shortage of staff within the courts.

d.            stimulate judges and other personnel for more work;

German judges are well paid and enjoy a high social reputation. Consequently, most judges are highly motivated. As a rule, a large majority of the judges works much more than prescribed by the regular working times.

e. eliminate periods of inactivity?

In 1997, the German legislator abolished the so-called “court holidays” (Gerichtsferien) which lasted from 15^th of July to September 15^th. Today, the party may apply for a postponement of the hearing (sec. 227 German Code of Civil Procedure)[70], if the hearing collides with his or her holidays.

6.What are the ways to reduce the negative effects of delays and backlogs (provisional remedies, just satisfaction for extensive duration and similar)?

a) Since 1977, German law provides an accelerated procedure for “uncontested claims”, the so-called Mahnverfahren. In everyday practice, orders for payment (Mahnverfahren) are of utmost importance[71]. These proceedings are open to any creditor who wishes to assert a pecuniary claim of any size. The creditor submits an application for a court order for payment of a debt (gerichtlicher Mahnbescheid) by filing a form at the local court near his or her place of residence. If the form is correctly filled out, the order is granted without any review of the validity of the claim. In most Federal States the proceedings are effected by electronic data processing. If the debtor does not pay within two weeks after the service of the court order, and does not raise any objection, the creditor may apply for a writ of execution to be issued. This writ may be executed against the debtor in the same way as a default judgment (sec. 699, 700 Code of Civil Procedure). In 1996, more than 8.1 million orders for payment were issued by the local courts. According to statistical research, in only a little more than 10% of all cases do the debtors object. If an objection is raised, the proceedings must be continued by the creditor in accordance with the general rules of civil procedure (sec. 696 ZPO). As a result, most civil cases are effected by claim forms on a computerized basis without any intervention of a judge. Recently, the European Commission presented the draft of a Regulation on a European Payment Order which follows the German model.[72]

b) According to sec. 839 (2) of the Civil Code[73], under German law judges enjoy immunity from suit in respect of their conduct of court proceedings (with the exception of criminal offenses). According to the clear wording of the provision, the formal exclusion of liability does not apply to delayed proceedings[74]. However, in practice this provision is not applied. The main reason may be found in the fundamental principle of German Civil Law which strictly limits compensation for non-pecuniary damages. According to sec. 253 of the Civil Code, any compensation for non-pecuniary damages necessitates a clear statutory provision. Such a provision does not exist in the context of sec. 839 (2) Civil Code. As a result, compensation for excessive judicial delays may only be obtained under article 41 ECHR.[75]

c) Specialisation within the judiciary is an additional way to reduce delays and backlogs. From a comparative perspective, as a result of the five different German jurisdictions[76] there is a high degree of specialisation which in practice gives rise to difficult problems of delineation. In addition, the transfer of judges from one jurisdiction to another has proved to be difficult. As a rule, such a transfer can only be made with the consent of the judge. As a result, modern practice favours combining the different jurisdictions, but allowing more specialisation within the courts. 

At present, there is a growing trend of specialisation within the internal structure of the courts. This practice is favoured by the Court Organisation Act (Gerichtsverfassungsgesetz). Apart from where otherwise stipulated by express legal provisions[77], the courts themselves are free to organise their internal structure. This freedom is derived from the constitutional principle of the separation of powers. The distribution of the caseload is regulated by the so called “distribution list” (Geschäftsverteilungsplan) of the court (sec. 21e and 21g GVG).[78] This distribution list is prepared by the presiding committee of the court. It must allocate each case to a judge (or division) previously selected of the court in a very precise way in order to meet the constitutional requirements of a “lawful judge” (art. 101 I 2 Basic Law). 

In practice, the cases are allocated in different ways. The traditional (and more frequent) manner is to transfer all cases to the various judges (or chambers) according to the first letter of the name of the defendant. Some courts (especially appellate courts) distribute the cases based on territoriality (with specific chambers or senates being responsible for reviewing judgments from specific courts). During the last few decades, most courts have changed the method of allocating cases and have introduced a system of distributing some cases according to the subject matter. This change shall enable specialised chambers to deal with complicated matters which require specific experience or even technical knowledge on the part of the bench. Such matters are, in particular, medical malpractice, construction disputes, media disputes, banking matters, professional liability of attorneys, notaries and accountants, commercial disputes, insurance matters, transportation, intellectual property rights and disputes relating to information technology.[79] Specialisation amongst the judges is a powerful tool for the acceleration of judicial proceedings.

C. Concluding Remarks

1. Different ways of combating procedural delays

From a systematic perspective, several ways of combating delays and backlogs can be distinguished. The most promising way seems to be the empowerment of the judges themselves. They must be able to conduct the proceedings efficiently according to the specific circumstances of the case. Under the German Code of Civil Procedure, it is the task of the court to manage the course of the proceedings once they have been initiated. It is up to the court to set dates for hearings and to set and extend time limits for the presentation of the parties’ pleadings and briefs. If the parties do not respect these limits, their submissions may be rejected as delayed.[80] According to section 272 (2) Code of Civil Procedure, the judge may – depending on the circumstances of the case – order a so-called “early hearing” which is intended to facilitate an early discussion of the case with the parties. Alternatively, the judge may select written preparatory proceedings. A so-called “written preparation” may enable the judge to ascertain the factual and legal allegations of the parties and to prepare the oral hearing in an efficient and appropriate way. This flexible approach permits case management of each individual lawsuit.[81] German legislation largely adjusts facilitates  the courts’ capacity and ability to conduct the proceedings in an efficient way. The court is responsible for the summons, the service of writs and for the direction of the oral hearing. It also has a wide discretion with regard to the splitting or joinder of proceedings. Moreover, the court may structure proceedings in such a way that certain questions are decided (e.g. whether the claim has any merit at all) before the amount of the claim is taken into consideration. A judge’s case management is largely based on the judge’s discretion.

Accordingly, German law does not normally prescribe binding time limits for the unfolding of the proceedings. There are some guidelines within the Code of Civil Procedure, which the judge may modify for a proper administration of the case.[82] Recently, the European Commission proposed a Draft of a Regulation Creating a Small Claims Procedure. According to this proposal, the proceedings are structured by binding time limits. This proposal was met by German judges with criticism. They proposed a more flexible approach, giving the judge the power to set time limits according to the circumstances of the individual case.[83] Time limits should be used rather  as guidelines than as binding law.

The second way of combating procedural delays relates to the organisation of the judiciary. As explained above (section B), traditional methods of supervising the judges as well as modern methods (so-called “new public management”) can be used for combating procedural delays. However, German experience shows that the introduction of the new methods (especially IT-based data collection, bench marking and establishing best practices in Civil Procedure) is sometimes met with scepticism by the judicial staff.[84] Finally, powerful incentives for a well functioning judiciary are sufficient remuneration of the judges and well equipped courts (especially with modern information technology). Good remuneration for the judiciary helps attract qualified personnel and facilitates a social reputation for judges, which may be an additional incentive for the proper handling of proceedings.

2. Constitutional demands and limits of judicial efficiency

Due to the case law of the European Court of Human Rights, the reasonable time guarantee of articles 6 and 13 is an inherent part of the public order in Europe. In Germany, the case law of the European Court of Human Rights on the efficiency of justice had more influence than the parallel case law of the German constitutional court.[85] Article 6 of the European Convention of Human Rights is nowadays applied in a two-fold way: Firstly, it imposes on the member states the duty to organise their judiciary and their procedural laws in an efficient way. Secondly, judges must manage their cases in an efficient way. The reduction of lengthy proceedings leads to judicial activism.

However, any external control of the judges’ work[86] is strictly limited by judicial independence. Accordingly, the power of the judicial administration in monitoring the performance of the judges’ work is strictly limited. However, judicial independence is not a subjective right of an individual judge but forms part of the judicial organisation. It must be counter-balanced against the rights of the party to call proceedings against excessive procedural delays. From this perspective, the German attitude towards the sanctioning of judges seems to be too hesitant. Under article 6 of the European Convention of Human Rights, every party has a subjective right that judges also adopt new methods of case management in order to render an efficient decision without undue delays.

[43] Apart from express legal rules, the German courts freely organise their internal structure. This freedom is derived from the constitutional principle of the separation of powers. The distribution of the caseload is regulated by the so called “distribution list” (Geschäftsverteilungsplan) of the court (sec. 21e and 21g GVG). This distribution list is established by the presiding committee of the court. It must allocate any case to a predetermined single judge (or division) of the court in a very precise way in order to meet the constitutional requirements of the “lawful judge” (art. 101 I 2 Basic Law).