Strasbourg, 13 September 2005

CEPEJ(2004)19REV2

European Commission for the Efficiency of Justice (CEPEJ)

A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe

Framework Programme

The measures which are contained in this document are suggestions and do not commit the Member States at this stage. The list of these measures are neither exhaustive nor final.

This Framework Programme will be implemented through concrete modalities to be defined by the CEPEJ, taking into account the observations by Member States, in particular as regards the priorities to be addressed.

1. The CEPEJ (European Commission for the Efficiency of Justice) has decided to address the issue of the length of judicial proceedings, considering this to be a priority concern within the objectives of the Council of Europe relating to Human Rights and Rule of Law. It is also of vital interest for the users of the judicial system. This document aims at defining a fresh approach to the issue and to take stock of the work done until now and present ideas about further work for preparing realistic and serviceable solutions for States. The Introduction recalls the main issues at stake. The first part deals with general principles derived from the case-law of the European Court of Human Rights (ECHR) and the achievements of the Council of Europe as well as guiding principles. The second part recommends Lines of Action, including concrete measures which might be forwarded by the CEPEJ to the Council of Europe's Committee of Ministers.

Introduction

2. It seems necessary for judicial systems to be given a new objective: the processing of each case within an optimum and foreseeable timeframe.

3. We have become accustomed to referring to the concept of “reasonable time” that provided for in Article 6.1 of the European Convention of Human Rights (ECHR). 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.

4. The European Court of Human Rights is at present submerged by applications about undue delay and spends a lot of its time delivering judgments against States for their failure to comply with the “reasonable time” requirement for court proceedings. Excessive duration is a major problem in most member States. Various surveys1 have shown that judicial delay is perceived as the number one problem not just by public opinion as a whole but also by those with direct experience of the courts. This situation does a disservice to all users, whatever their “position” in the judicial system: litigants, the accused, victims, witnesses, members of the jury, etc. (with the exception of those who have an interest in seeing the proceedings lasting a long time). Although both the private sector and the other public services have introduced the idea of time-limits into their customer/user relations over the past few years, the judicial system seems to have steered well clear of this trend, at least publicly. Moreover, the States most affected are founding member States of the Council of Europe. They are not the only ones, however, to suffer from this endemic disease affecting European judicial systems. In a number of States that have joined the Council of Europe over the past few years, the question of judicial delay is a major issue of domestic policy.

5. The scale of the phenomenon is enough to warrant a vigorous reaction. The case-law of the Court in Strasbourg bears witness to the exponential increase in the “delay syndrome”. The Council of Europe is now facing a major challenge: if there is no improvement in this field within the next few years, the Court, submerged in cases based on the “reasonable time” requirement, will not be able to fulfil its role of safeguarding other human rights that are just as fundamental, such as the right to life, to dignity, to freedom of expression, not to suffer torture, to a family life, etc.

6. The ECHR stressed the need – as far as the ECHR was concerned – for setting up national mechanisms to provide adequate redress for violation of excessive delays (Case Kudla against Poland and Scordino against Italy, dec. n°36813/97, EHCR 2003 IV)2 through compensation or by other means. Several States have now introduced special arrangements to meet the Court’s concern. However the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process and provide only one element a posteriori  in the event of violation proven instead of trying to find a solution for the fundamental problem of excessive delays3.

7. The issues at stake are even higher for member States, which are directly responsible for the proper functioning of their judicial systems: beyond a certain critical threshold, too much delay leads to a general crisis of confidence of citizens and economy in justice (as one of the pillars of democracy), and, as a result, in democracy itself.

8. The existence of excessive length of proceedings can imply in particular favourable conditions for the development of corruption within the judiciary. Paradoxically, corruption is used to speed up some proceedings, breaking the equality of cititzens vis-à-vis justice. Furthermore, those who take systematically advantage of this corruption have no interest in having the situation improved.

9. Some speak of the lack of resources. Others speak of a “culture of delay”4 rooted in the mentality of those involved. Bad “governance” of the judiciary, both at local level in individual courts and at national level, has also been blamed. This search for causes is essential, since only a proper understanding of the “factors of delay” will enable them to be remedied. But this is only the first step. The resources dedicated to justice cannot be increased ad infinitum while the demand for justice is potentially unlimited.

10. The importance and the seriousness of the situation have been emphasised by the numerous polls and surveys conducted among those who have been in contact with justice and the public in general.

11. Users must have their say in the matter of time-limits. Here as elsewhere, citizens demand to be treated not as passive spectators but as actors. They want to be involved in the decisions and processes affecting them. And this demand also covers the time dimension of these operations: it is no longer acceptable, in judicial proceedings, for users to be left in a state of absolute uncertainty as to the time it will take to examine their cases and for them to have no possibility of influencing the length of the proceedings.

FiRst PART: Discussion of the causes of delays

1. ECHR case-law and the achievements of the Council of Europe

12. The document will only refer here to the normative framework laid down by the European Court in Strasbourg.

13. Proceedings must not be too long in order to guarantee legal certainty for citizens and the State. Never-ending disputes would jeopardise social continuity. Nor must proceedings be excessively shortened, since parties must, for example, have sufficient time to prepare their cases. Therefore the timeframe in which cases processed must avoid both an expeditious justice, as precipitation leads to decisions which are often unfair and always wrongly understood, and justice which is too slow, as slowness leads to a denial of justice.

14. The length of proceedings is measured from the time when the authorities first have a legal responsibility towards the citizen and ends with the definitive enforcement of the final decision. Reasonable time includes in particular the time dedicated to the drafting of the decision.

15. To determine whether or not the time is reasonable the Court has laid down various criteria: the complexity of the case, the applicant’s conduct, the conduct of the relevant authorities (including the courts), and what is at stake for the applicant. It considers each case individually in the light of these criteria, which explains why the Court’s decisions cannot be used to extrapolate standard times for different categories of case. Nor has the Court undertaken to identify specific causes of delay or suggest solutions. Its exclusive role in each case is to determine whether the time is unreasonable and, if so, whether it is attributable to the State.

16. It was long considered that the quality of justice depended, inter alia, on the distance it was able to create between those dispensing it and those to whom it was dispensed – this distance alone permitting the appearance of impartiality and majesty that it was desired to impart to the role of the court within a trial. Nowadays, this attitude is equated with an inability on the part of the judicial system to become more intelligible and more accessible to the public. On the contrary, it is by bringing justice closer to citizens and making it easier for them to be involved in its functioning that we shall be able to improve its quality. On 2 December 2003, various speakers invited to Strasbourg by the CEPEJ to take part in an exchange of views on the theme “Justice: serving citizens”, addressed this issue of the participation of users, which is fully in line with the CEPEJ's policy. This is also needed in respect of the length of proceedings.

17. The excessive length of judicial proceedings is a central concern of the Council of Europe. Considering it symptomatic of an inefficient judicial system, the European Committee on Legal Co-operation (CDCJ) and its subordinate bodies have elaborated many recommendations adopted by the Committee of Ministers which, under different headings, have proposed measures in this field5. Of particular note are Recommendations R(86)12 concerning measures to prevent and reduce the excessive workload in the courts, R(94)12 on the independence, efficiency and role of judges and R(95)12 on the management of criminal justice.

18. The Conference of European Ministers of Justice held in London in June 2000 adopted a report on “Cost-effective measures to increase the efficiency of justice”, based on the experience of member States. The measures presented there, covering various aspects of the operation of the judicial system, have served as a guide for a number of States in the reforms that they have undertaken over the past few years. The second part of the present document contains those measures which have proved their relevance in reducing the length of proceedings.

19. Following the London Conference the Committee of Ministers decided to establish the CEPEJ in September 2002. The CEPEJ being neither a supervisory nor a monitoring body has the task to address the major problems of the judicial systems, to analyse the present situation and, as appropriate, to offer help to enable member States to attain a pictures of their judicial systems it adopted in December 2003 a Scheme for evaluating judicial systems based on comparative criteria, whose findings will be initially analysed and published in 2004. From its first plenary session in February 2003, the CEPEJ affirmed its intention of responding to users’ concerns.

20. The report prepared for the London Conference underlined the importance of resources, but also noted the increase (varying from country to country) in the number of cases coming before the courts, as well as poor court organisation and procedures that were too complex or too rigid.

21. Recent research carried out in a number of countries (often outside Europe) has confirmed that, in order to reduce the length of proceedings, other factors must be taken into consideration. Mr Fabri and Mr Langbroek drew up the following list, derived from their study of a variety of surveys and research: judicial commitment, leadership and adequate accountability mechanisms; involvement of the different playors in the system; court supervision of case progress; definition of goals and standards; monitoring of cases by an information system; case-management approach; policy against unjustifiable prolongation, such as a firm trial date and a ‘backup judge’ system for trials; individual assignment system; education and training”.

22. The nature of court proceedings (criminal, civil and administrative), management of the courts, and court governance framework are also three important factors.

2. Beware of bogus solutions

23. The fact that judicial delay has emerged as an issue in public debate may be explained by its seriousness, but may also indicate an awareness of the need to tackle this problem. Under media fire, policymakers are obliged to come up with programmes and demonstrate results. In this context it is essential not to give way to the “diktat of urgency” and hastily adopt measures which might have the opposite effects to those intended.

24. This issue has arisen specifically in the judicial field, which is entrusted to professionals who not only have specific “technical” competence but also enjoy safeguards, e.g. the independence of judges. Like medical doctors, judges are on their own when they make their decisions. And, as in medicine, the prospect of a profession working under time pressure, taking no account of the specific nature or circumstances of cases, could only result in a long-term loss of motivation among judges whilst casting serious doubt on the usefulness and quality of their decisions. Professional quality – and this is equally true of other categories of staff – also depends on the trust and autonomy given to individuals in the performance of their duties. Thus any proposal relating to length of judicial proceedings must be drawn up with the active involvement of those concerned and designed in such a way that it is not perceived as an attempt to change courts into “judgment machines”. On the other hand, the specific nature of the judiciary is not an argument for allowing delay to endure. Judges, prosecutors, court clerks and lawyers must remain masters of their own time, while still finding a way of distinguishing between “productive time” and “wasted time”.

25. In a number of States measures have been taken, especially for criminal cases, to speed up the judicial response (e.g. for petty crime). These measures have made it possible to reduce the time between the sanction and the offence, but have had an impact on the court management capacity as regards other categories of more complex cases, for instance economic and financial offences. This reduction in the length of proceedings for certain categories of case must not result in a “dual justice system”: on the one hand, justice dispensed quickly, at the risk of weakening the rights of the defence, and on the other, justice for those who have the material resources to hire the services of the best lawyers and exploit every possible procedural device. Addressing as a matter of priority some categories of cases can be justified (see below). However this must never be the result of a lack of management. The objective of reducing the length of proceedings must result in each case being completed in an optimum time which satisfies at the same time the society, the parties, the victims and the accused persons, etc.

Second part : Elements of an Action Plan for a new approach

1. Principles to be considered

26. Three essential principles must be retained, which must be applied to all the aspects of the judicial system.

First principle: the principle of balance and overall quality

27. Each member State must find a balance between, on the one hand, the resources which can be allocated to justice and the good management of these resources, and, on the other hand, the objectives set for to justice. In this respect, it should be noted that the European Court of Human Rights has always stated that the principle it seeks to uphold reflect its legitimate concern for judicial efficiency.

28. Several member States have set up a «quality-system» within their judicial organisation. Such a system incorporates the issues of appropriate internal organisation of courts, efficient proceedings, judicial quality and the wishes of the users of justice. The main objective is to improve the quality of the judicial system as a whole.

Second principle: the need of having efficient measuring and analysis tools defined by the stakeholders through consensus

29. A number of member States have statistics on the length of judicial proceedings. However, these statistics are always compiled using national rules and criteria, making comparisons difficult. Consequently, the CEPEJ has drafted a “Pilot-Scheme” combining in a single questionnaire a list of over one hundred questions prepared on the basis of a common approach to different aspects of the judicial system. This Scheme includes a chapter related to the length of proceedings. The CEPEJ has selected a few characteristic situations arising in civil, criminal and administrative cases. An analysis of the replies should provide, by the end of 2004, a better understanding of situations in individual States. This Scheme6 is also intended to encourage States to introduce or strengthen statistical systems relating to judicial activity. The necessity of defining harmonised methods for collecting data and developing common indicators should also be underlined.

Third principle: the need to reconcile all the requirements contributing to a fair trial

30. A careful balance should be struck between procedural safeguards, which necessarily entail the existence of lengths that cannot be reduced, and a concern for prompt justice. Here too, the ECHR case-law provides valuable pointers. The Court does not rule out the possibility of these procedural safeguards being differentiated according to certain criteria. However, this differentiation must be applied clearly, transparently and fairly and must be specified from the outset of proceedings, where appropriate, with the agreement of the opposing parties.

2. Overall approach and individual angles

31. A preliminary remark is necessary: this document focuses on the aim of reducing the length of proceedings. It is clear that the backlogs have a key role in this field. The length of proceedings of an overburdened court would increase accordingly. The specialisation of courts, a better allocation of cases between the various levels of courts7, a change in the territorial division of courts, or the use of Alternative Dispute Resolutions8 are elements which can have a positive impact on clearing backlogs, and in particular for overburdened courts. The impact of such measures on timeframes is a real but indirect one. The document focuses attention here on measures having a direct impact on the length of proceedings.

32. An overall approach of the judiciary is necessary. Any action on one aspect has consequences for the others.

33. Judicial systems face multiple and sometimes contradictory requirements. Therefore States must find compromises between their various objectives. There is no miraculous formula nor universal solution as regards the improvement of the functioning of justice. Thus, for instance, the measures taken to reach the (welcome) objective to safeguard access to courts for everybody result in an increase in the backlogs. If, at the same time, the means provided for justice do not increase, such measures result in either an increase in lengths of proceedings or in a decrease in the quality of decisions. The implementation of the three above-mentioned principles as well as an overall approach allow a better definition of comprehensive policies taking into account the effects of the envisaged measures.

34. It is a system in which various elements can be distinguished:

i. The quantity of cases to be processed;
ii. The resources available to the system to process these cases: staff, equipment, courts (and their corollary: budgetary resources and the way in which the courts are organised);
iii. Case processing times;
iv. Quality of case processing (reflected here both by the substantial quality of judgments and the compliance with procedures).

35. Reducing processing times involves acting on the other three elements: the quantity of cases to be processed, the resources available to the system, and the quality of case processing.

36. Two examples can illustrate the difficulty of defining appropriate measures:

i. The statement of reasons fort he decision provided by the judge may be considered a factor that increases the length of proceedings as well as the reverse. Meticulously drafting a decision, weighing up the reasons for it, and making it clear and comprehensible are all operations that take time. Thus some are of the opinion that it is possible to lighten the requirements for providing reasons for a decision. But the opposite argument has also been put forward. A decision with clearly stated reasons allows the parties to accept it more easily. Good decisions at first instance have the effect of reducing appeals.

ii. The value of a pre-trial settlement procedure for reducing the amount of time taken is also disputed. Generally speaking, it is obvious that a successful settlement allows proceedings to be cut short and therefore time-limits to be reduced. But on the other hand, a provision requiring a pre-trial settlement procedure, if such a settlement was not desired by the parties concerned and failed almost as a matter of course, would only add an unnecessary step to the proceedings and consequently extend their length. As Fabri and Langbroek point out, “it is the way in which these special proceedings are used that can make the difference” rather than whether they exist or not.

37. The media often focus their attention to the problems encountered by criminal justice. However main problems regarding the reduction of lengths of proceedings concern civil justice. Contrary to a widespread idea, the smooth operation of civil justice is of the State responsibility, and it is unacceptable to lay the blame for lengthy proceedings on the parties alone.

3. Lines of Action recommended by CEPEJ

a. Measures concerning the institutions at State level

Line of Action 1: acting on resources

38. Justice cannot function without resources: a sufficient number of judges and other judicial and non judicial staff (appropriately trained and properly paid); premises in good repair; appropriate equipment enabling hearings to be held and judgments to be recorded, forwarded, published, etc. Every State is responsible for providing to the players in the judicial system with the necessary resources with which to operate.

39. The shortage of resources available to the courts can sometimes explain their slowness. It is true nevertheless that, in many cases, judicial slowness is explained by the inefficiency of the court rather than by the inadequacy of the resources. Sufficient resources, on budgetary, human and material level, are a necessary condition but non sufficient on their own - for ensuring the smooth functioning of justice and complying with reasonable times in judicial proceedings.

40. Resources must be made available, organised and managed according to action and management programmes designed upon precise objectives. The implementation of these programmes must be regularly monitored as regards the achievement of their objectives.

41. Acting on resources means either increasing them or increasing their efficiency (being understood that these two options are not mutually exclusive). The following proposals address the second aspect.

42. As regards human resources, efficiency means an increase in motivation. An increase in remuneration can have an impact. Generally speaking, all players in the judicial system must be given sufficient remuneration as a counter-part to their contribution.

43. "Court projects" could be encouraged towards case management objectives9. Such a measure is advantageous as it makes it possible to involve the whole court staff.

44. Generally speaking (see the first principle above), an increase of the powers of the court leading teams, in particular as regards the management of financial resources (which must then be linked with an increase in the responsibility and a possibility of sanctioning this responsibility), makes it possible to implement programmes to reduce the length of proceedings.

45. The administrative management of courts is an activity in itself. Whatever the status of the competent persons is (judges or administrators), these persons must have the necessary professional skills. An appropriate training is therefore obviously necessary as well as a clear definition of the respective responsibilities of the various categories concerned.

46. Improving the management of case flows and backlogs would appear to be a general requirement in the majority of Member States.

47. The modernisation of resources (in particular the use of information technologies) makes it possible – within the framework of a reflection which involves all the issues at stake (stakeholder involvement, users’ wishes, compliance with procedures, etc.) – to eliminate waste of time (for example as regards repetitive tasks or forwarding of documents).

Line of Action 2: acting on the quality of legislation

48. For each law, the impact of the envisaged measures on the judicial timeframes and on court activity should be studied, if necessary after having consulted the representatives of the playors of the judicial systems concerned. This assessment should be implemented ex ante, when the law is examined by the Parliament, so that it can be taken into account in the substance of the law, as well as ex post, to adapt, if necessary, the resources allocated to courts.

Line of Action 3: improving the foreseeability of the timeframes

49. One of the most awkward problems for court users is that they are unable to predict when proceedings will end. Bringing an action often means embarking on a process that is expected to be long but whose exact length is impossible to predict. Accordingly, users tend to consider that the impression of a never-ending process applies to all cases10. Users need foreseeable proceedings (from the outset) as much as an optimum time. However it must be noted that a foreseeable time-limit is not as such an acceptable time-limit. Acting towards a better foreseeability of timeframes is therefore additional to the action taken to reduce timeframes.

50. Transparency should be provided through the publication of data related to the length of proceedings for each type of cases, both at national level and at the court level.

51. The CEPEJ could carry on analyses of the reasons for delays and mainly of the remedies to be implemented, on the basis of the case-law regarding Article 6.1 ECHR ("reasonable time"), of the contribution by Member States and of the relevant studies of the Council of Europe.

Line of Action 4: defining and monitoring standards for an optimum timeframe for each type of case

52. For each category of case a standard timeframe could be defined which could be used as a point of reference for those involved, in particular judges and court staff. This standard should be set on the basis not of average current duration but rather on those periods of time which cannot be reduced and the periods of inactivity that could be eliminated. Such standards could then be incorporated into programmes for improving the operation of a court.

53. A monitoring of the respect of this optimum timeframe could be organised. Experience shows that this objective can easily be reached, e.g. by internal reporting procedures.

54. Along the lines of steps taken by some member States, efforts could be made to improve the information and analysis of the actual timeframes within which the courts operate, so that early warning can be given and appropriate taken as soon as a problem arises.

55. Courts should pay special attention to older cases, by developing monitoring mechanisms for such cases, for instance an annual report on cases that have been pending for a given length of time, submitted to hierarchical superiors and included in the annual activity report.

56. Courts should as well make it sure that there is only a limited time between the moment when the decision is given orally and the day the decision is submitted by written to the parties.

Line of Action 5: improving statistical tools and developing information and communication strategies

57. It is necessary that States are provided with appropriate statistical tools, where individual cases are registered (in particular the date of the beginning of the procedure).

58. It is also essential that a statistical follow up by each court on its own cases be developed on the basis of a national system managed by a central statistical department. Indeed, differences between courts as regards statistical systems result in making it impossible to use efficiently the data collected, in particular as concerns the reduction of timeframes.

59. A Guide to the best practices in Europe in the field of improving of the length of judicial proceedings could be elaborated and distributed, along with the replies of Member States to the “Pilot-Scheme for the assessment of judicial systems”, with a distinction being made between the solutions found for penal and civil matters.

60. Civil society (relevant institutions, non governmental organisations, individual citizens) at both national and international could be encouraged to participate in the debate aiming at improving the operation of judicial systems.

61. Research activities and analysis of the various issues at stake as regards reasonable time could be developed, in co-operation with the relevant institutions (in particular university research centres), and, where appropriate, with interested non member States. The organisation of international conferences, the setting up of a network of research centres and universities, the development of publications could in particular be envisaged. The CEPEJ could play an active role in this field. Studies carried out within the Council of Europe from the cases addressed by the ECHR could also be analysed, provided that the relevant rules of confidentiality are respected.

62. Cooperation between the Council of Europe and the European Union could be strengthened in particular as regards measurement and analysis tools.

Line of Action 6: identifying pilot-courts concerning the reduction of length of proceedings

63. An initiative could be taken to promote innovative time-reduction and time-management projects introduced by courts in member States. Each member States could designate courts of reference (linked to the State representative on the CEPEJ). This network of these courts of reference could be regularly brought together and / or questioned by the Council of Europe to present and analyse successful experiences.

b. Measures concerning specifically the procedures

Line of Action 7: allowing adjustment of timeframes

64. The question of time-limits should also be envisaged from another angle, based on the idea that, whatever the results of a time-reduction policy, they will only make themselves felt after a certain period and they will not eliminate the existence of time-limits that cannot be reduced.

65. Consideration should also be given to the various methods of exploiting these time-limits in order to help define best solutions to disputes, for example by using them to implement alternative solutions.

66. The idea of the mandatory provision of information to individuals on the foreseeable timeframe of the case in which they are parties could be introduced.

67. Moreover, it could be possible to consider developing a procedure requiring the relevant court and the opposing parties to agree on a jointly determined time-limit, to which both sides would commit themselves through various provisions. The parties concerned should be granted an appropriate representation while negotiating this timeframe. Such a procedure would develop the responsibility of all the stakeholders in the trial.

68. A range of solutions could be offered (from sophisticated proceedings to simplified proceedings, including, if appropriate, Alternative Dispute Resolutions) enabling the court users to negotiate a reduction of the timeframes of the proceedings against a reduction of the procedural guarantees, both in civil and penal matters, within the limits provided for by the case-law of the Court of Strasbourg11. In this respect, appropriate measures shall be taken so that the persons in question are fully informed of their rights when exercising their choice. Such a solution should be part of a "court's quality improvement project".

Line of Action 8: acting on the number of cases dealt with by the court by ensuring an appropriate use of appeals and other applications12

69. Without prejudice of the right to an effective remedy, appeal options could be limited. The ECHR has confirmed that, subject to certain guarantees, such a limitation is not contrary to the Convention13.

70. Filtering mechanisms could be introduced – as regards the Supreme Court. Here too, such mechanisms should be accompanied by appropriate guarantees.

71. The possibility of imposing sanctions against persons introducing manifestly abusive processes could also be studied.

Line of Action 9: acting on quality of proceedings

72. Quality is defined above as the combination of two elements: compliance with procedures and the substantive quality of judicial decisions. As it is not a question here of addressing matters relating to the quality of the judge's awareness, the following proposals focus on the issue of procedures.

73. As it already exists in several member States, the function of the judge in charge of preparing cases for the hearing (juge de la mise en état), could be created (or strengthened) in civil matters.

74. Sine die adjournments of proceedings should be forbidden, except where the parties give their consent. The point at stake is not to make it mandatory for a new date for the trial to be given, but to define the timeframe of the next step of the procedure, whatever it may be.

75. Consequences in the proceedings should be laid down, including the striking-out of cases, in civil matters, in the event of unjustified absence or delay.

76. Priority should be given to the quality of first instance decisions. In this connection, these decisions should be systematically reasoned, though the reasoning can be limited according to the nature of the case (see above).

77. The service of documents should be organised in an efficient and reliable manner discouraging abuses and attempts to stop the proceedings. Court decisions should be promptly delivered to the parties, especially those issued by higher courts.

Line of Action 10: defining priorities in case management

78. The basic rule is to register all cases and call them in the order in which they arrived. This rule has the fundamental advantage of offering a guarantee of impartiality. The only cases that receive “preferential” treatment (being called before the others and fast-tracked) are those which have been designated as urgent. This situation nevertheless has a major drawback: among all the incoming cases, some, being relatively simple, could be tried rapidly. Others could result in alternative procedures that could be started immediately. Yet others could be withdrawn from the list if the persons bringing them were told how long they would have to wait before their cases were heard. Without challenging neither the need for case assignment, to guarantee the impartiality of judges, nor the principle of lawfulness, it could be possible to draw up processing priorities on the basis of an initial appraisal of the categories of pending cases (the issue is obviously not to determine priorities according to the cases themselves), according to consultative methods and objective criteria.

79. In this field, the responsibility of the bodies in charge of defining criminal policies should not be neglected. In civil matters, court impartiality should not be hampered. However measures ensuring appropriate compliance with optimum timeframes, for instance as regards cases where "time counts", would make it possible to strengthen court efficiency.

Line of Action 11: better organising trials to reduce waiting time, while paying special attention to victims and witnesses

80. In many member States users are called to attend court hearings without being told at what time their cases will be heard. This situation is viewed by the users as a sign of contempt. The courts should organise the hearings in such a way that the uncertainty as to the time when the persons called to courts are actually requested to appear before the judge is reduced as much as possible. Any measures taken should, as a matter of priority, give consideration to victims and witnesses.

81. Similarly courts should be encouraged to do their utmost to reduce or suppress unnecessary instances of excessive length of proceedings. In this regard, any measures which make it possible to compress the various steps of the proceedings should be encouraged.

82. As regards the organisation of hearings, a specific attention should be paid to the most vulnerable categories. The victims of violent offences are concerned in particular14.

83. As far as the execution of decisions is concerned, measures should be taken to improve notably the situation of victims.

Line of Action 12: setting up a procedure to revive a pending case

84. A procedure could be set up allowing a Party urgently to submit a complaint that the authoritiy dealing with the case is too slow, so that appropriate mesaures can, if necessary, be taken.

Line of Action 13: making more flexible the rules on territorial jurisdiction of first instance courts

85. The strict implementation of the rules on territorial jurisdiction can result in an unequal repartition of the burden of work between courts. Then these rules could be made more flexible, provided that the parties agree.

86. Individuals who appeal to a court do not know necessarily the rules of territorial jurisdiction nor the rules for giving a case to a particular court, which might lead them to appeal to a court which is not competent to address the specific case. Such mistakes result in a delay in the opening of the procedure before the relevant court. To avoid such unnecessary delays, the courts could be requested to receive all the appeals and to forward immediately the cases to the relevant court while keeping the parties informed.

c. Measures concerning in particular the stakeholders

Line of Action 14: involving the relevant categories in the administration of the courts

87. It can be noted here that justice concerns everybody: not only judges and prosecutors, but also all the professions which contribute to the elaboration and implementation of court decisions (in particular lawyers, but also bailiffs, court clerks and, in some countries, notaries, etc.) and ultimately the users themselves.

88. All these categories should be involved as appropriate in court administration (non judicial activities). This implies in particular that regular information is given on the functioning of courts and that appropriate fora to exchange and develop consultation with court presidents are set up.

89. In particular, surveys on user satisfaction could be carried out at the level of the courts.

Line of Action 15: developing the training of judges and prosecutors and, more generally, all the professions concerned

90. Improved training has a positive impact on improving efficiency and motivates the players. The interdisciplinary nature of the training should be strengthened.

91. Specific modules concerning the length of proceedings could be introduced or developed in the initial and continuous training programmes for judges and prosecutors, as well as other legal and judicial professions.

Line of Action 16: organising the relationships with lawyers

92. Special attention should be paid to the role of lawyers within the judiciary, in particular as regards the implementation of the measures proposed in this Framework Programme. For instance, in some member States, courts have set up "contracts of objectives" between the court and the Bar concerned on time-limits for submitting conclusions to the court.

Line of Action 17: improving the monitoring of compliance with the time-limits by judicial experts

93. Two measures could be taken to monitor compliance with time-limits in the case of experts' reports:

i. Setting up within the courts a follow up mechanisms for the experts' reports;
ii. Ensuring the publicity as regards the time-limits for delivering
experts' reports.

Line of Action 18: defining the modalities for having bailiffs, clerks/Rechtspfleger, notaries and all other professions involved in justice

94. Bailiffs, clerks/Rechtspfleger and notaries play an essential role in the functioning of justice. Special attention should be paid to the role of these professions as regards the implementation of this Framework Programme.

95. Moreover, numerous other professions contribute to the functioning of justice, which are not legal and judicial professions as such (e.g social workers of psychotherapists). A better involvement of these professions in the functioning of justice could contribute to decrease length of proceedings.

Summary of proposals

1. Lines of Action recommended to the Member States, to be supported by the CEPEJ

at the State level

· acting on resources

All players in the judicial system must be given sufficient remuneration as a counter-part to their contribution.

Developing means to facilitate the development of "court projects" towards case management objectives.

Increasing the powers of the court leading teams, in particular as regards the management of financial resources.

Ensuring that those responsible for the administrative management of courts are provided with appropriate training and defining clearly the respective responsibilities of the various categories concerned.

Improving the management of case flows and backlogs.

Modernising resources, by using in particular the use of information technologies.

· acting on the quality of legislation

For each law, assessing the impact on the judicial timeframes and on court activity.

· strengthening the foreseeability of the timeframes

Publishing data related to the length of proceedings for each type of case.

· defining and monitoring standards for an optimum timeframe for each type of case

Elaborating a standard timeframe to be incorporated into programmes for improving the operation of the courts.

Monitoring compliance with the optimum timeframe.

Developing capacities of information and analysis on the timeframes concretely held by the court.

Making courts aware of the value of paying special attention to older cases.

Making it sure that there is only a limited time between the moment when the decision is given orally and the day the decision is submitted by written to the parties.

· developing information and communication strategies

Providing appropriate statistical tools, where individual cases are registered on the basis of a national system managed by a central statistical department.

Encouraging the participation of civil society in the debate on improving the operation of judicial systems.

Developing research activities and analysis of the various issues at stake as regards reasonable time.

as regards the procedures

· allowing adjustment of timeframes

Developing a procedure requiring the relevant court and the opposing parties to agree on a jointly determined time-limit.

Introducing the idea of the mandatory provision of information to individuals on the foreseeable timeframe of the case in which they are parties.

· acting on the number of cases dealt with by the court by ensuring an appropriate use of appeals and other applications

Limiting the appeal options.

Introducing filtering mechanisms – as regards the Supreme Court.

Studying the possibility of fining persons introducing manifestly abusive appeals.

· acting on quality of proceedings

Creating of strengthening the function of the judge in charge of preparing cases for the hearing (juge de la mise en état) in civil matters.

Prohibiting sine die adjournments of proceedings.

Providing for consequences in the proceedings in the event of unjustified absence or delay.

Giving priority attention to the quality of first instance decisions.

· defining priorities in case management

Drawing up processing priorities on the basis of an initial appraisal of the categories of pending cases.

· better organising trials to reduce waiting time, while paying special attention to victims and witnesses

Organising the hearings in such a way as to reduce uncertainty as regards the time when persons called to the courts are actually requested to appear before the judge.

· setting up a procedure to revive a pending case

Setting up a procedure allowing a Party urgently to submit a complaint that the authoritiy dealing with the case is too slow, so that appropriate mesaures can, if necessary, be taken.

· making more flexible the rules on territorial jurisdiction of first instance courts

Requesting the courts to receive all the appeals and to forward immediately the cases to the relevant court while keeping the parties informed.

concerning the stakeholders

· involving the relevant categories in the administration of the court

Providing regular information on the functioning of courts and setting up appropriate fora to exchange and develop consultation with court presidents.

Conducting surveys on user satisfaction at the level of the courts.

· developing the training of judges, prosecutors and all the professions concerned

Strengthening the interdisciplinary dimension of the training.

Introducing specific modules concerning the lengths of proceedings in the training programmes.

· organising the relationship with lawyers

Paying special attention to the role of lawyers as regards implementation of the measures proposed in the Framework Programme.

· improving the monitoring of compliance with time-limits by judicial experts

Setting up a follow-up mechanism for experts' reports.

Ensuring the publicity as regards the time-limits for delivering experts' reports.

· defining the modalities for having bailiffs, clerks/Rechtspfleger, notaries and all other professions involved in justice in its operation

2. Direct actions to be taken by the CEPEJ

· Carrying on analyses of the reasons for delays and mainly of the remedies to be implemented, on the basis of the case-law regarding Article 6.1 ECHR ("reasonable time"), of the contribution by Member States and of the relevant studies of the Council of Europe.

· Identifying pilot-courts concerning the reduction of length of proceedings and arranging for them to be brought together regularly.

· Elaborating and disseminating a Guide to best practices in Europe in the field of improving the length of judicial proceedings.

· Organising international conferences, setting up of a network of research centres and universities, and producing publications relating to lengths of proceedings.

· Strengthening cooperation between the Council of Europe and the European Union in particular as regards measurement and analysis tools.

***

The CEPEJ:

1. adopts the present Framework Programme,

2. instructs its Working Party to draft proposals in order to implement this Framework Programme, taking into account the observations by Member States as well as the answers given to the Pilot Scheme for the evaluation of judicial systems,

3. agrees to communicate the present Programme to the Committee of Ministers of the Council of Europe.

Appendix

Relevant instruments adopted by the Council of Europe

Resolution (76)5 on legal aid in civil, commercial and administrative matters

Resolution (78)8 on legal aid and advice

Recommendation No R (81)7 on measures facilitating access to justice

Recommendation No R (84)5 on the principle of civil procedure designed to improve the functioning of justice

Recommendation No R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts

Recommendation No R (87) 18 concerning the simplification of criminal justice

Recommendation No R (93) 1 on effective access to the law and to justice for the very poor

Recommendation No R (94) 12 on the independence, efficiency and role of judges

Recommendation No R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases

Recommendation No R (95) 12 on the management of criminal justice

Recommendation No R (98) 1 on family mediation

Recommendation No R (99) 19 concerning mediation in penal matters

Recommendation No R (2000) 19 on the role of public prosecution in the criminal justice system

Recommendation No R (2000) 21 on the freedom of exercise of the profession of lawyer

Recommendation No R (2001) 2 concerning the design and re-design of court systems and legal information systems in a cost-effective manner

Recommendation No R (2001)3 on the delivery of court and other legal services to the citizen through the use of new technologies

Recommendation No R (2001) 9 on alternatives to litigation between administrative authorities and private parties

Recommendation No R (2002) 10 on mediation in civil matters

Recommendation No R(2003)14 on the interoperability of information systems in
the justice sector

Recommendation No R(2003)16 on the execution of administrative and judicial decisions in the field of administrative law

Recommendation No R(2003)17 on enforcement

1 See, for example, La qualité de la justice, Marie-Luce Cavrois, Hubert Dalle, Jean-Paul Jean, La Documentation Française, Paris, 2002, page 30: “for the majority of French citizens, the judicial system functions weakly (66%) and too slowly (73%)”.
2 In the case of Kudla v. Poland, ECHR judgment dated 26 October 2000, the Court considers that “the correct interpretation of Article 13 is that that provisions of the Convention guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6§1 to hear a case within a reasonable time”. This assertion was clearly linked to a very simple fact: “If Article 13 [concerning the right to an effective remedy] is ... to be interpreted as having no application to the right to a hearing within a reasonable time ... , individuals will systematically be forced to refer to the Court in Strasbourg complaints that would otherwise, and in the Court's opinion more appropriately, have to be addressed in the first place within the national legal system. In the long term the effective functioning, on both the national and international level, of the scheme of human rights protection set up by the Convention is liable to be weakened”(Grounds 156 and 155).
3 See the Recommendation Rec(2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies (adopted on 12 May 2004).
4 Hervé Lehman, Justice, une lenteur coupable, Presses Universitaires de France, Paris 2002.
5 A list of relevant Council of Europe resolutions and recommendations concerning the efficiency and fairness of justice is appended to this Position Paper.
6 This appears on the CEPEJ's Web Site (www.coe.int/CEPEJ).
7 See on this point paragraphs 85 and 86 of the Report.
8 In this field, the Council of Europe has adopted several legal instruments which can be referred to (see list of recomendations in Appendix).
9 The paragraph concerns concrete projects, aimed for example to raise the general public awareness, implementation of which does not relate to the internal judicial organisation, which might raise the responsibility of State members.
10 This situation explains perhaps the discrepancy between public opinion and the view of members of the judicial system, when the latter, statistics to hand, maintain that a large proportion of proceedings are completed within acceptable time-limits.
11 The ECHR admissibility decision No. 52868/99, submitted by J-M Kwiatkowska from 30 November 2000: ‘The mentioned guarantees constitute the fundamental principles of the right of fair trial, envisaged in article 6, § 1 and 3d) of the Convention. Neither the letter nor the spirit of this text preclude enjoinment of this right by persons.’ and the ECHR decision from 20 November 1995 British-American Tobacco Company Ltd v. the Netherlands, A331, § 78: These two references as well as other references to the case law of Strasbourg Court appear in the Study of M. Guy Canivet ‘Economie de la justice et procès équitable', JCP – La semaine juridique, Edition Générale – N° 46 – 14 November 2001, page 2085 and following.
12 See the Recommendation No. R (95) 5 of the Committee of Ministers to member states concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases.
13 The ECHR, 17 january 1970, Delcourt v. Belgium: A 11, pages 14-15 §§ 25: ‘Article 6 para. 1 (art. 6-1) of the Convention does not, it is true, compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (art. 6)’ and ECHR, 29 July 1998, Omar v. France: Reports 1998-V, p. 1840, § 34: ‘The Court reiterates that the right to a court, of which the right of access is one aspect, is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved.’ These references are also given in the Study, mentioned in footnote 10.
14 See the Report by CEPEJ(2003)21 ‘The justifiability against the slowness of justice: how to remedy it? The situation of victims of penal infringements’ by Mrs Reeves.

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