Strasbourg, 15 September 2009

    CEPEJ-COOP(2009)1

    EUROPEAN COMMISSION FOR THE EFFICENCY OF JUSTICE
    (CEPEJ)

Assessing the Portuguese policy on procedural flows

and fight against judicial backlogs

Report prepared by

Mr Jacques BÜHLER, Deputy Secretary General of the Federal Court of Switzerland, Member of the CEPEJ

Mr Marco FABRI, Research Institute on Judicial Systems of Bologna, National Research Council of Italy, Scientific expert of the CEPEJ

Mr Adis HODZIC, Head of the Budget and Statistics Department, Secretariat of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina,

Member of the CEPEJ-GT-EVAL

Mr John STACEY, Deputy Head of Civil Law and Justice Division, Access to Justice Directorate, Ministry of Justice, United Kingdom, Vice President of the CEPEJ

Assessing the Portuguese policy on procedural flows and fight against judicial backlogs

A report for the Commission of the Efficiency of Justice of the Council of Europe

                    1. Introduction

The Portuguese Ministry of Justice asked the Commission for the Efficiency of Justice of the Council of Europe (CEPEJ) to assess the recent policies undertaken to improve “procedural flows and judicial backlogs”. This report is mainly based on the documents provided for by the Portuguese Ministry of Justice and a three-day fact finding mission in Lisbon (February 25-27, 2009), in which CEPEJ experts exchanged information with executives of the Ministry of Justice, judges, and lawyers.

This assessment, within the framework mentioned above, will analyse the measures adopted by the Portuguese Ministry of Justice and the results claimed, considering the recommendations and documents that the Council of Europe (COE), in particular CEPEJ, have produced and developed, the experts’ knowledge and the international literature on the issues at stake.

After a brief description of the policies implemented, this report will present a synthesis of the assessment made by the different people interviewed during the fact finding mission, namely executives of the Ministry of Justice and representatives of the lawyers and of the judges. Then the report will briefly analyse the measures undertaken with reference to the data available and kindly submitted by the Portuguese Ministry of Justice. The core of this assessment exercise will be a match between the policies deployed and the Council of Europe and CEPEJ recommendations. The concluding remarks will sum-up the assessment.

                    2. Brief description of the policies undertaken

The Portuguese Ministry of Justice implemented two “Action Plan to Ease the Courts’ Workload”, named PADT I & II, in the last few years. The plans were considered a high priority due to the constant increase in the number of pending cases in the Portuguese courts in the last ten years. In particular, the plans addressed the problem of pending cases in civil jurisdiction, which was considered as the first priority. Actually, data by the Ministry of Justice, General Directorate of Justice Policy, show that, at the 31st of December 2005, 78,7% of the total amount of pending cases were in the civil area, 14,8% in the criminal area, 3,8% labour, 2,7% juvenile/disabled crime.

PADT I was triggered by a resolution of the Council of Ministers in 2005 (resolution n. 100), which dealt with both legal measures to pursue a major reduction in the number of incoming cases to court and measures to increase the number of resolved cases. Generally speaking, the measures focussed on the bulk of cases that flooded the courts, in order to have an immediate decrease in the court caseload.

The policy entailed several measures. Among the most important ones are worth mentioning: the move of cases from the courts to administrative agencies, the increase of the value for pecuniary obligations that can use an electronic filing “fast track” summary procedure, the modification of the procedure for payment orders, the change of the territorial competence for all claims related to the fulfilment of obligations in the attempt to relieve the largest urban courts, the amendment of some parts of the law about motor vehicle insurance to decrease the contentious, the avoidance of civil suits to recovery court fees based on a cost/benefit analysis, the amendment of tax law on uncollectable payments.

PADT II followed a new resolution of the Council of Ministers in 2007 (n. 172). In the attempt to further decrease the courts caseload the resolution pushed for: the establishment of arbitration centres and mediation procedures in matters such as family and labour, the creation of Justice of the Peace courts to deal with cases of limited value, the introduction of some procedural law changes in areas such as heritage, leasing, car accidents.

It is also worth mentioning that some procedural changes were implemented in some pilot courts to test first their effect on a small scale and then deploying them all over the country.

In addition to PADT I & II, in the last years the Portuguese Ministry of Justice has made a significant investment on information and communication technology (ICT), with particular reference to the use of electronic transactions for payment orders and electronic filing of civil cases. This ICT policy, known as “dematerialization of judicial procedures” (CITIUS), will be assessed by another working group of CEPEJ. Therefore, it will not be dealt with in detail in this report, even though it has to be mentioned for the importance that ICT can have on the court caseload and on the timeliness of judicial proceedings. This is particularly true for the cases that are highly repetitive and that do not need the collection of complex evidence.

It is also worth mentioning that in 2003 there was a major change in the civil enforcement procedures, with a part “privatisation” of the service to the so known solicitadores de execução (private bailiff) as an alternative to the court bailiff. This change is not included in the PADT I & II policy, but it has been recognized has an important initiative to speed up the enforcement procedure of mass litigation although comments from the court users would suggest that the fee structure does not provide a sufficient incentive for the bailiff to act promptly.

In 2008 and 2009 some simplification measures were taken in order to improve this “reform”. For instance: the enforcement can now be performed by lawyers and not only by solicitadores de execução; the intervention of the judge is now restricted to the cases where there is actually a conflict; the role of the private bailiffs was reinforced; arbitration is now possible in enforcement.

                    3. Self-Assessment by the Ministry of Justice

The interviews carried out with various executives of the Portuguese Ministry of Justice show that there is a systemic ongoing reform process pursued by the Ministry. This is seen as a complex process, which will have several stages, the first initiatives of this wide strategy to improve the “quality” of judicial administration have been directed to stop the flood of cases that have characterized the Portugal courts up to 2005. The first priority was to “ease” the courts’ caseload. In the ministerial strategy, this would have freed some court resources and increased the number of resolved cases to regain some efficiency. Rationally, in order to do it, the Ministry tackled first the “mass litigation”, with policies that dealt primarily with payment orders, bad cheques, leasing contracts and other cases that bring to court a bulk number of filings. In this reform process, the justice stakeholders (i.e. judges, court personnel, bar associations, corporations) have been constantly consulted for the definition of the policy to be undertaken and the related law amendments. The executives of the Ministry of justice interviewed gave a positive assessment about the measures undertaken so far, in the awareness that the reform process cannot be considered completed and it is “no sport for the short-winded”.

                    4. Assessment by the representatives of lawyers and judges

The Ministry of Justice has organised a meeting with users of the judicial systems. The users were mainly lawyers with “mass litigation”. Generally speaking, they made a positive assessment of the measures undertaken to address the caseload problem. In particular, appreciation was expressed for the involvement in the policy decision making process and for the simplification of the procedures aimed at speeding up the pace of litigation, both at the first instance and at the appeal level.

However, they showed some concern about a few specific issues. For example, they did not positively consider the change related to the territorial jurisdiction for oppositions to payment orders. Before the reform, the competent court was the one located in the judicial district in which the corporation had his headquarter. This circumstance had the effect to concentrate the “mass litigation” in the largest cities (i.e. Lisboa, Oporto). After the reform, the competent court is the one where the defendant lives. From the perspective of the corporations, this entails an increase in the legal costs, due to the fact that cases are now spread out all over the country. In addition, the lawyers reported that in many courts judges are not specialised in mass litigation, as a consequence the procedures are more time consuming and slow.

These concerns expressed by the lawyers may be unfounded but it would be appropriate to review the training/mentoring received by the judges to establish that they are equipped to deal with these cases.

The lawyers also did not appreciate the higher court fee that corporations, in comparison to all the other litigants, have to pay to file cases related to opposition to payment orders. The Ministry of Justice argued that this provision is seen as a disincentive to use the “ordinary court procedures” instead of the summary “fast track” procedure.

Another specific issue singled out by the lawyers, was a new provision that fixed a maximum of six months to file a claim to court to avoid the statute of limitation. This is period of time considered too short to try to settle the case, which pushes the corporations to file the case to court. In addition the time limit prevents the corporations from attempting any form of ADR/mediation.

The representative of judges appreciated the reform efforts undertaken by the Ministry of Justice. It was pointed out the still difficult situation about enforcement actions, which were reformed in 2003 with the establishment of the so known solicitadores (private bailiff). It was also mentioned the lack of resources as the most important factor that negatively affect the courts and their functioning, including the pace of litigation.

                    5. Assessment based on “cold data”

It goes without saying that this report takes for granted that the data provided for by the Ministry of Justice are reliable. However, in this section it is important to emphasise the time constraints in collecting information and writing this report as (relying on) statistics can be misleading when they are misapplied or misunderstood. While numbers appear to be “objective”, their objectivity can be illusory if they are not correctly interpreted.

With these limits, data from the Ministry of Justice show that in 2006, 2007, and 2008 the number of resolved cases was higher than the number of incoming cases, as a consequence the total pending cases before the Portuguese courts have decreased for the first time ever in ten years1.

Figure 1 - Pending cases from 1996 to 20082

As reported by the Portuguese Ministry of Justice “In 2008, for the third consecutive year, the number of completed cases was higher than the number of incoming cases. The positive balance of 41 531 cases justifies the decrease in the pendency of around 2,7% [...] The civil cases represented, in 2008, around 62% of the total of incoming cases and 56% of the total of cases completed at the first instance courts. Nonetheless, the criminal cases were the ones that have most influenced the overall balance with a decrease of around 33,5%. This procedural area represents 23,1% of the total of incoming cases in 2008”3.

It is worth noting that PADT I & II were implemented from 2003 and focussed mainly on civil cases. Therefore, this data analysis focuses on civil cases from 2004 to 2008, and Table 1 shows the data available.

It is worth noting that PADT I & II were implemented in 2003 and 2007 and focussed mainly on civil cases. Therefore, this data analysis focuses on civil cases from 2004 to 2008, and Table 1 shows the data available.

Table 1 – Civil Cases in Portugal from 2004 to 20084

"Total civil"

 

2004

2005

2006

2007

2008

Incoming

 

515904

534142

471963

512583

461007

Resolved

 

422562

426756

491820

540814

441083

Pending

 

1217710

1311486

1254054

1250059

1269983

             

"Declarative action"

         

Incoming

 

127882

114096

99984

102847

102687

Resolved

 

138214

133910

143095

137477

111203

Pending

 

272838

249943

187400

154628

146112

             

"Enforcement action"

         

Incoming

 

312299

339196

284894

307913

254013

Resolved

 

215861

220904

269517

137477

111203

Pending

 

824589

941853

952016

154628

146112

The number of incoming cases has particularly decreased in the civil area in comparison to 2006 (27.958 cases less).

As Table 1 and Figure 2 show the total civil cases pending before the Portuguese courts decreased quite extensively in 2006, in comparison to 2005, but they slightly increased again in 2008. This may be probably due to the significant growth of civil incoming cases in 2007, as better showed in Figure 3.

Figure 2 – Civil Cases (incoming, resolved, pending) from 2004 to 20085

Figure 3 – Incoming Civil Cases from 2004 to 20086

An expected consequence of the increasing number of incoming civil cases in 2007 is that the civil cases resolved in 2008 were less than those resolved in 2006 and in 2007, as better showed in Figure 4. This may reinforce the hypothesis, which should be further tested, according to which when the courts reach their “saturation point”, the resolved cases decreased more than proportionally in comparison to the increase of incoming cases. This would mean that the policies, such as PADT I & II, related to filter the number of incoming cases to avoid to reach the courts’ saturation points have been given a correct high priority and they are fundamental to regain some courts’ efficiency.

Figure 4 – Pending Civil Cases from 2004 to 20087

Figure 5 – Resolved Civil Cases from 2004 to 20088

Figure 6 – Percentage of variation of incoming cases between 2006 and 20079


Figure 7 – Percentage of variation of resolved cases between 2006 and 200710

Data also show a slower percentage in the increase of resolved civil cases in comparison to the decrease percentage of incoming cases between 2006 and 2007.


A further data break down on the civil cases pending in 2007 shows that there has been a remarkable decrease in the number of pending cases in the so called “Declarative Actions” (“ordinary civil cases”) in 2007 and in 2008. On the contrary, there is a slight increase in the number of pending cases related to Enforcement Actions in 2007, which is even higher in 2008. More in detail, data show that in 2007 there has been a consistent decrease (11%) in the number of pending cases related to insurance premiums and payment of court fees. As mentioned in the brief description of the policies implemented, the law about these kinds of cases was changed in order to reduce the number of cases filed in court. Figure 5 and Figure 6 show this case flow.

Figure 8 – Declarative Actions (incoming, resolved, pending) from 2004 to 200811

Figure 9 – Enforcement Actions (incoming, resolved, pending) from 2004 to 200812

Figure 10 and Figure 11 show the difference between incoming and resolved Declarative Actions and Enforcement Action from 2004 and 2008, confirming the hypothesis stated earlier.

Figure 10 – Declarative Actions per year (incoming – resolved)13

Figure 11 – Enforcement actions per year (incoming – resolved)14

At the time of writing, the data available do not show yet a clear trend and a strong relation of the PADT I & II policy on civil cases procedural flows and judicial backlogs. It looks like they had a positive impact on Declarative Actions but it was not the same on the Enforcements Actions.

However, it is noteworthy that PADT I was implemented in 2005 and PADT II in 2007, therefore it will be probably needed to monitor the situation for quite a few years in order to observe their real impact on civil judicial proceedings.

                    6. Assessment based on COE, CEPEJ recommendations, international experiences and literature

Generally speaking, it is possible to identify four macro policy areas to compile the various efforts that have been carried out by European judiciaries to improve the “quality” of their judicial administration and, in particular, to tackle the excessive length of case processing.

The first policy area deals with the governance of the judicial system. In this area there are policies that aim at changing the institutions that govern the judiciary and challenging the structure of authority among the policy actors. Typical examples are the establishment of the council of the judiciary, a reform of the Ministry of Justice, a different way to share authority between the Council and the Ministry, a change in the appropriation policy of the judiciary a different role of the local government in the court organisation. These are policies that challenge in-depth the judicial system and they are usually undertaken to respond to a crisis of the judiciary, or to a significant tension between the judiciary and the policy makers. They tend to have only an indirect impact on the length of procedures.

The second policy area deals with structural changes in the court organization. In this “class” can be placed all the policies that change the number or the functions of judicial offices. A typical example is the establishment of the office of the Justice of the Peace, the unification of courts and the related changes in the courts’ jurisdiction. These policies have an impact on the skeleton of the judicial system, they can affect the court caseload and then the length of case processing.

The third area deals with procedural changes. These are the most traditional ways to address problems that affect the judiciary, in particular those related to case duration. It is believed that changing the rules of procedure will have a direct impact on the workflow and, as a consequence, on the duration of each case.

The fourth area focuses on managerial issues. Under this heading can be placed all the policies that try to improve the functioning of the judiciary through the use of management tools and practices such as: project management, organisational development, performance appraisal, standard definition, information and communication technology, budget incentives, leadership development.

The different categories are not mutually exclusive, some policies can sometimes be placed in more than just one category, and certainly it does not get all the “shades” of the policies implemented. Its intent is to be a useful first map to interpret and then assess the measures undertaken.

At the time of writing, The measures analysed and deployed by the Portuguese Government with PADT I and II, which are the only policies accessed by this exercise, seem to be concentrated in two out of the four policies classification proposed. Actually, they mainly focus on structural and procedural policies.

As briefly described earlier, the Justice of the Peace, and the changes in the territorial jurisdiction for opposition to payment orders can be classified as structural policies. All the other measures can be classified as significant procedural changes that aimed at decreasing and filtering the incoming cases to courts, thanks also to the new arbitration and mediation institutions.

These measures are in line with various recommendations of the Council of Europe, documents of CEPEJ, international experiences and literature on ways to reduce the number of cases filed to court to have an impact in real terms over the court case (over)load. For example, Council of Europe Recommendation (86) 12 concerning measures to prevent and reduce the excessive workload in the courts encourages the reduction of court caseload through the creation of bodies which, outside the judicial system, can solve disputes on small claims and in some specific areas of law, making “arbitration more easily accessible and more effective as a substitute measure to judicial proceedings”.

The Committee of Ministers of the Council of Europe, through its recommendations 98/1 (family matters), 99/19 (criminal matters), 2002/10 (civil matters) strongly support different forms of dispute resolution outside the courts, particularly in family matters, for the sake of children, and in criminal matters to enhance the victim rights in the criminal process.

Also Recommendation (2001) 9 on alternatives to litigation between administrative authorities and private parties suggests the development of alternative means of disputes resolution in the administrative disputes. More in detail they should be “either generally permitted or permitted in certain types of cases deemed appropriate, in particular those concerning individual administrative acts, contracts, civil liability, and generally speaking, claims relating to a sum of money”. The measures considered are internal reviews, conciliation, mediation, negotiated settlement and arbitration. In some cases, also simpler and more flexible procedures, could allow a speedier and less expensive resolution. Some of these means “may be used prior to legal proceedings” and become a “prerequisite to the commencement of legal proceedings”.

The use of mediation was also recalled by Recommendation R (98) 1 on family mediation with the “need to make greater use of family mediation, a process in which a third party, the mediator, impartial and neutral, assists the parties themselves to negotiate over the issues in dispute and reach their own joint agreements”. Mediation has the potential to reach goals particularly relevant in family disputes, such as to “improve communication between members of the family, reduce conflict between parties in dispute, produce amicable settlements, provide continuity of personal contacts between parents and children, lower the social and economic costs of separation and divorce for the parties themselves and states”. Mediation programs should “reduce the length of time otherwise required to settle conflict” in areas in where it is important for justice to be quick and well timed.

Mediation is also recommended in civil matters (R (2002) 10 on mediation in civil matters), which underlines “the need to make continuous efforts to improve the methods of resolving disputes, while taking into account the special features of each jurisdiction” and consider “the advantages of providing specific rules for mediation” in civil matters. A successful mediation programs could reduce the caseload of courts with positive effects on timelines of proceedings. Nevertheless the recommendation points out that mediation could also become a way to delay court decisions and advise states to pay attention to this risk. This may occur when the mediation process is misused in an opportunistic way by one of the party to postpone the judge’s decision.

Some of the he procedural measures took by the Portuguese Ministry of Justice are also consistent with the CEPEJ suggestion to differentiate the management of cases considering, for example, the value, the number of parties and the legal issues involved in a case. Summary procedures have been established to dispose of cases considered to have a low level of complexity, even though it does not seem that courts have implemented some kind of internal differentiated case flow management. These internal rules can be effective because they do fit in the specific organisational context of every court and can be stated in procedural guidelines local contingencies and customs. This entails some discretion of the courts in local rules setting, within a common state-wide procedural framework.

As recommended by CEPEJ (2006/15), a flexible case assignment system will also help the court to better adapt to unforeseen changes in the caseload. This flexibility can also be possible through changes in the courts territorial jurisdiction, but also subject matter and value criteria to pursue a more effective allocation of cases. Flexibility can also help to avoid unreasonable delays caused by transfer of judges. Part of this policy can be found in the Portuguese measure to changes in territorial jurisdiction and in the establishment of the Justices of the Peace.

As seen and described, these recommendations, with some differences, can be found in the Portuguese measures undertook to “ease the court caseload”. They still have to be carefully monitored to see how they will be working in practice, in particular the ones entailed in PADT II, which came into effect in 2007/2008.

It is also worth mentioning that the fact finding mission showed how there is a continuous involvement of the stakeholders in the reform process, which has always been a point of attention fro CEPEJ in order to have an effective management of judicial policies.

However the measures undertaken so far focus on structural and procedural issues, in the successful effort to decrease the court caseload, which is one of the two goals fixed by the Ministry of Justice policy implementation. The other goal is to shorten the length of judicial proceeding and improve the functioning of judicial administration.

It is noteworthy that, according to the information provided by the Portuguese Ministry of Justice, the number of Portuguese cases brought before the European Court of Human Right in violation of art. 6 of the Convention related to “reasonable time” are not existent. However, the Portuguese approach is in line with the CEPEJ Framework Programme which states that “we have become accustomed to referring to the concept of reasonable time as provided for in Article 6.1 of the European Convention of Human Rights. Yet this standard is a lower limit (which draws the border line between the violation and non-violation of the Convention) and should not be considered as an adequate outcome where it is achieved”. Therefore the goal must be the timeliness of judicial proceedings, which means cases are managed and then disposed in due time, without undue delays. On this respect, the work of the Council of Europe, international experiences and literature show that to improve the effectiveness of case processing it is also necessary to develop and implement managerial policies in addition to structural and procedural policies.

Among these managerial policies it is worth mentioning the setting and enforcement of timeframes for judicial proceedings.

Timeframes are inter-organisational and operational tools to set measurable targets and practices for timeliness case processing. The length of judicial proceedings is the result of the interplay between different players (judges, administrative personnel, lawyer, expert witnesses, prosecutors, police etc.), timeframes have to be goals shared and pursued by all of them. The stakeholders’ involvement is necessary for at least three reasons: 1) it helps to build the commitment among all the key players, 2) it creates a proper environment for the development of innovative policies, 3) it points out that the responsibility for timely case processing is not just in the court operations but also includes other players, in primis the lawyers.

On this respect the fact finding mission showed how there is a continuous involvement of the stakeholders in the reform process, so there already are the conditions to develop this good relationship also to develop timeframes.

Timeframes are targets to measure to what extent each court, and more generally the administration of justice, meets the timeliness of case processing, it allows to quantify delays, and to assess if the policies and practices undertaken are functional and consistent to the general objective of timeliness case processing.

Therefore the setting of timeframes is a conditio sine qua non to start measuring and comparing case processing delays, which will be the difference between the actual situation and the expected timeframes, and to assess the policies implemented to reduce the lengths of case processing. From a policy making, as well as from a managerial perspective, having timeframes is a prerequisite for evaluating the results of the efforts made to shorten the length of judicial proceedings.

The first step is the setting of measurable timeframes that should be established at three levels. At the State level as a general framework. At the court level to suit court features and local contingencies. At the judge level to have a real impact on the day-to-day court operations and practices. They should be designed and implemented with the constant active support of the stakeholders (in primis court personnel and lawyers, but also expert witnesses, social workers, police etc.), as the pursuing of timeliness case processing requires a team approach.

Timeframes should be set up allowing for the different kinds of procedure (civil, criminal, administrative, enforcement, etc.) and then, progressively, they may also take into consideration the main procedural stages.

Timeframes can also be established with reference to the “case complexity”, which should be defined by the court with the contribution of the parties. The establishment of these timeframes is related to the so called “multi-track” approach to case management, where each case is assigned to a specific procedural track based on its complexity.

Since stakeholders’ expectations and opinions are fundamental to set, develop, and validate the timeframes, as well as to monitor the public perceptions and trust about courts and the administration of justice. Surveys should be periodically conducted at three different levels (state, court, elementary unit) Also users’ groups, focus groups and other techniques can be used for this purpose.

Timeframes need to be tested and piloted before implementing them all over the country. Pilot courts and single units within the courts will be a valuable source of information for any further advancement.

Setting timeframes is not a once for all event, but it has to be a continuous process built through consensus and shared objectives between the stakeholders. Therefore it is necessary to create an organisational environment to support and enforce timeframes, which will be affected by the institutional setting of the justice system (e.g. structure of the judiciary, role of the chief judge, sensitiveness about judges’ internal independence etc.). Also, other agencies and the lawyers’ associations should support the enforcement, which should also be mentioned in the ethical rules for lawyers and being presented in the judiciary school.

The effective management of cases within the timeframes should be a continuous learning process. A team approach is an asset to support this learning process.

Another managerial measure worth noting is the role of the chief judge in carrying out policies to manage the court and shorten the length of case processing. Leadership and competence of chief judges have always been recognised in international literature, and empirically proved in various judicial administrations, as key issues in implementing policies to fight case processing delays.

Courts should acquire a leading role and a strong commitment in setting timeframes and in carrying out local actions in pursuing them. Commitment and leadership may be encouraged by incentives for the court personnel, leading to an increase in court resources relative to results achieved.

It is also worth mentioning that there should be a distinction and integration of organisational functions between the chief judge and the court manager, if there is one. The head of court and a court manager have different tasks that should be supported by different set of skills and competences. While the head of court should deal mainly with “judicial management”, implementing strategies to guarantee a high “legal quality” of courts decisions, the court manager should be involved with the “management of the court organisation”. This should entail tasks such as planning, project management, and organisation of administrative personnel that are not the responsibility of the chief judge. Finally, since the overall outcome of a court depends heavily on the interplay between judges and administrative staff, it is important to set up a system capable building a shared responsibility between the chief judge and the court administrator for the overall management of the office.

Another CEPEJ suggestion to improve the timeliness of judicial proceeding which may be considered border line between a procedural and managerial policy is the active case management role by judges. Judges are the “third impartial player” in a conflict resolution process. They are the only ones able to set the pace of litigation independent of the parties’ interests. Therefore, they should have a pro-active role in case management in order to guarantee fair and timeliness case processing according to timeframes. It must also be noted that the jurisprudence of the ECHR says that “court inactivity”, “judicial inertia in producing evidence” and the “complete inaction by the judicial authorities” have been causes of violation of the reasonable time clause (CEPEJ 2006/15: para 29, 30, 36).

Related to the active role of judges, there are some case management practices that have been recognised as effective in seeking a timeliness case processing. For example, courts should have a strict policy to minimise adjournments. Numerous adjournments of hearings, either of the court’s own motion or at the parties’ request, and excessive intervals between hearings have been considered causes for unreasonable delay by the ECHR (CEPEJ 2006/15, para 36). Adjournments have to be allowed only if clearly justified, and if a date for the next event has been established. If a court allows many adjournments, it encourages lawyers, not prepared for their cases, to ask for a new adjournment. In this way the judge’s hearing time will be underused.

Early settlements have a strong impact on the workload, therefore they increase the ability of courts to comply with the timeframes. COE has also suggested entrusting judges “with responsibility for seeking a friendly settlement of the dispute”. The Consultative Council of European Judges (CCJE) has recently emphasised the importance of this practice. They recognise the need for an early settlement of disputes and “a proactive and innovative” role of judges. In the evaluation of European judicial systems (edition 2006) 21 member states of the Council of Europe adopt this kind of procedures. Also lawyers should be involved. The pursuit of conciliation should become an ethical duty.

These settlements can be facilitated by arranging early meetings between parties. A case management conference to set a clear schedule of events has been recognised as one of the most effective tools to help settlements, avoid adjournments, concentrate hearings, and (then) maintain timeframes. The decisions taken during the meeting may also be formalised in a “contract”.

Various European judicial administrations also claim that a typical cause of case delays is due to the lack of lawyers, parties and expert witnesses to meet deadlines to present evidence and reports, or it is due to the failure of witnesses to attend hearings, causing repeated adjournments. These situations were not represented as a problem in Portugal during the interviews, however since they have been considered one of the causes of violation of the “reasonable time” clause by the ECHR (CEPEJ 2006/15), a strict policy of incentives and sanctions to support these deadlines can be very effective for the pace of litigation.

Standard and concise format for written judgments, with the help of templates, is recommended to meet the timeframes and to achieve a reasonable length of case. Some experiences in European judiciaries also show that concise judgments help to address the key points and the judge reasoning. However, the time dedicated to writing judgments should be proportionate to the value or issue at stake, a requirement to provide an overly detailed judgment causes delay.

Another relevant managerial policy is related to Forecast and monitoring the caseload to determine the work capacity of a court and a consistent resource allocation. In addition, data on court performance should be made available to public scrutiny to improve court transparency and public trust. It goes without saying that reliable data on court performance also are fundamental to monitor the efficacy of the policies implemented and to make amendments, if needed. CEPEJ has proposed at least three basic but effective indicators of court performance:

Clearance rate15 % = (resolved cases / incoming cases) x 100.

Case turnover ratio16 = Number of resolved cases / number of unresolved cases at the end

Disposition Time17 = 365 / Case Turnover Ratio

On this respect, CEPEJ 2005 Checklist of indicators for the analysis of lengths o proceedings in the justice system offers a comprehensive list of indicators “to help justice systems to collect appropriate information and analyse relevant aspects of the duration of judicial proceedings”.

It was also mentioned that among the measures deployed by the Portuguese Ministry of Justice there has been a large investment on information and communication technology (ICT). More in detail, the ICT investment seems to have been prioritised in the area of civil claims and in particular on payment orders and then on electronic filing of civil cases. This is certainly in line with the recommendations of the Council of Europe. For example, Recommendation R (2001)3 on the delivery of court and other legal services to the citizen through the use of new technologies stresses to establishelectronic channels for the exchange of data and documents between court and the public”. The priority to use ICT in bulk cases has to be applauded and it is in line with other successful international experiences (e.g. The Bulk Centre in England and Wales, e-filing of payment orders and civil suits in Finland, Germany, Austria, Italy).

                    7. Concluding remarks

It should be remembered that this report is mainly based on the documents provided for by the Portuguese Ministry of Justice and on a three-day fact finding mission in Lisbon, in which members of CEPEJ exchanged information with executives of the Ministry of Justice, judges, lawyers and users with mass litigation represented by lawyers.

The Portuguese measures known as “Action Plan to Ease the Courts’ Workload” have been positively assessed by the stakeholders interviewed during the fact-finding mission, they are consistent with the recommendations of the Council of Europe and they are in line with similar policies undertaken by other judicial administrations around Europe to decrease the court incoming cases.

However, data available does not allow for the level of success of the policy implemented to be assessed, as the data needs to be more analytical and some of the measures undertaken need more time to demonstrate their impact. On this respect, it is obvious that the improvement of monitoring and performance appraisals tools can help the evaluation of the policies implemented.

The fundamental first pillar of this ongoing reform process has been to establish arbitration and mediation procedures, to avoid the court jurisdiction for some kind of controversies, to divert cases from courts to administrative agencies and to the Justice of the Peace. For the sake of the citizens, this must imply that these administrative agencies and the Justices of the Peace are effective in dealing with these new cases.

Another pillar has been the change in legislation and in procedural rules. Among the changing in the rules of procedure, within the limit of this assessment mentioned above, some perplexity arises from the six months statute of limitation rule for the filing of “payment orders”, which seems a too short time and it can discourage the settlement of the case before going to court and prevent any attempt at Mediation/ADR. Please note, once again, that this was approved by the Parliament and is not a measure included in any of the PADT.

It is noteworthy that the measures have always been carried out with the active participation of the stakeholders and with a piloting approach which are both highly recommended by CEPEJ.

These measures are in line with various recommendations of the Council of Europe, documents of CEPEJ, international experiences and literature on ways to decrease the filing of cases to court to have an impact in real terms over the court case(over)load. However, they may not be sufficient to decrease significantly the length of case processing since they have mainly focussed on structural and procedural issues.

It is a point of attention that the decrease in the number of civil pending cases in 2006 and 2007 seems to be still quite small in comparison to the amount of pending cases that have been accumulated in the previous years. In addition, this trend is not confirmed in 2008. Therefore, considering the still significant amount of pending cases, it is of paramount importance to take some other urgent measures to immediately decrease the number of pending cases.

For example, the definition of realistic targets to increase the number of definitions of cases that are perceived part of the old backlog (i.e. pending cases must be reduced by X% every year) is a first but fundamental policy to be undertaken by each court and court division to regain some efficiency in a short run.

Then it is strongly suggested that further initiatives are undertaken with a managerial perspective, working on those factors that, according to CEPEJ work and international literature, have a significant impact on judicial backlog, on the timeliness of case processing, and on judicial efficiency in general.

Among them, they have been mentioned the setting and enforcement of timeframes, the active role of judges in case management, court commitment and leadership by the chief judge and the court administrator, methods to monitor court performance, practices to support early settlements and minimising adjournments. Some of them have already been implemented as test bed in the “Experimental Civil Procedure Act. (the Experimental Civil Procedure Act integrates many of the solutions you mention here. For instance, it has mechanisms to minimize adjournments)

It is also worth noting that the various policies implemented so far have involved the stakeholders but they have been taken at the central level. The Council of Europe and CEPEJ recommendations, international experiences and literature suggest developing policies to pursue the timeliness of case processing, through commitment and accountability at the court level too.

It is also important to keep holding a constant quantitative and qualitative evaluation of the measures (e.g. reliable performance measure, surveys, questionnaire) in order to adapt policies and organisational structure to the changing context.

BIBLIOGRAPHY

CEPEJ reference documents

Albers, P. (1999). Modernising the Dutch Courts; New Court Proceedings and the Introduction of a Quality system for the Judiciary. Madrid: Council of Europe Meeting.

Albers, P., Borzova, I., and Goth-Flemmisch, B. (2004). Practical ways for combating delay in justice system, CEPEJ (2004) 5, Prepared at the request of the delegation of Slovenia and Croatia. Strasbourg: CEPEJ.

CEPEJ (2006). Length of court proceedings in the member states of the council of Europe based on the case law of the European court of human rights. Strasbourg (CEPEJ (2006)15).

CEPEJ. (2004). A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe. Framework programme. Strasbourg (CEPEJ (2004) 19).

CEPEJ. (2005). CEPEJ, Medium term activity programme. Strasbourg (CEPEJ (2005) 10).

CEPEJ. (2006). European Judicial Systems. Edition 2006. Strasbourg: Council of Europe Publishing.

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CEPEJ. (2005). Revised scheme for evaluating judicial systems. Strasbourg (CEPEJ (2005) 2).

CEPEJ. (2005). Time management checklist. Strasbourg (CEPEJ (2005) 3).

CEPEJ (2006). Composition of the Network of Pilot-courts Strasbourg (CEPEJ (2005) 3)

CEPEJ (2005). Synthesis of the comments from the member States on the CEPEJ Framework Programme. Strasbourg (CEPEJ-TF-DEL (2005) 1).

CEPEJ (2005). Network of pilot courts, Compendium of responses from the Pilot Courts to the questionnaire on Timeframes of Proceedings. Strasbourg (CEPEJ-TF-DEL (2005) 5).

CEPEJ (2006). Network of pilot courts, Synthesis of the replies on the situation of the timeframes of proceedings (CEPEJ-TF-DEL (2005)4).

CEPEJ (2006). Compendium of “best practices on time management of judicial proceeding. Strasbourg (CEPEJ (2006) 13).

Chemla, D., Hess, B., and Lindgren, A. (2003). Territorial jurisdiction (CEPEJ (2004) 18).

Fabri, M., and Langbroek, P.M. (2003). Delay in judicial proceedings in Europe: a preliminary inquiry (Report on assignment of the Council of Europe, Committee on the Efficiency of Justice) (CEPEJ (2003) 20).

Network of pilot courts (2006). The Pilot court cards. Strasbourg, CEPEJ.

Savvides, L. (2003). Steps introduced by the supreme court of Cyprus for eliminating delays. Strasbourg: (CEPEJ (2003) 24).

CEPEJ (2006). Reducing judicial time in the Nordic countries (CEPEJ (2005) 14).

Thoma-Twaroch, G. (2003). Users of the justice systems vis-à-vis the slowness of justice. How to react? Strasbourg (CEPEJ (2003) 19).

Council of Europe documents and recommendations

Consultative Council of European Judges (CCEJ) Opinion No. 6 (2004) on Fair trial within a reasonable time and judge's role in trials taking into account alternative means of dispute settlement. Strasbourg: Council of Europe.

Steering Committee for Human Rights (CDDH). (2005). Improvement of domestic remedies, follow up of the implementation of the Recommendation Rec. (2004)6, Information received by the Secretariat. 1-59. Strasbourg: Council of Europe.

Resolution (76)5 on legal aid in civil, commercial and administrative matters
Resolution (78)8 on legal aid and advice
Recommendation R (81)7 on measures facilitating access to justice
Recommendation R (84)5 on the principle of civil procedure designed to improve the functioning of justice
Recommendation R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts
Recommendation R (87) 18 concerning the simplification of criminal justice
Recommendation R (93) 1 on effective access to the law and to justice for the very poor
Recommendation R (94) 12 on the independence, efficiency and role of judges
Recommendation R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases
Recommendation R (95) 12 on the management of criminal justice
Recommendation R (98) 1 on family mediation
Recommendation R (99) 19 concerning mediation in penal matters
Recommendation R (2000) 19 on the role of public prosecution in the criminal justice system
Recommendation R (2000) 21 on the freedom of exercise of the profession of lawyer
Recommendation R (2001) 2 concerning the design and re-design of court systems and legal information systems in a cost-effective manner
Recommendation R (2001)3 on the delivery of court and other legal services to the citizen through the use of new technologies
Recommendation R (2001) 9 on alternatives to litigation between administrative authorities and private parties
Recommendation R (2002) 10 on mediation in civil matters
Recommendation Rec. (2003)14 on the interoperability of information systems in the justice sector
Recommendation Rec. (2003)15 on archiving of electronic documents in the legal sector
Recommendation Rec. (2003)16 on the execution of administrative and judicial decisions in the field of administrative law
Recommendation Rec. (2003)17 on enforcement
Recommendation Rec. (2005)12 containing an application form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid (CETS No. 092) and its Additional Protocol (CETS No. 179)

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1 http://www.dgpj.mj.pt/sections/estatisticas-da-justica/destaques/sections/estatisticas-da-justica/destaques/movimento-processual-dos/downloadFile/file/MovimentoProcessual_1996_2007.pdf?nocache=1212656132.48. Visited 16 March 2009.

2 Source: Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, Procedural flow in the first instance courts 1996-2008, 27 May 2009.

3 Ministry of Justice of Portugal, General Directorate for Judicial Policy, Technical Note. Justice Statistics Procedural flow at the first instance courts 1996-2008, May 2009.

4 Data come from the Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, 28 May 2009. “In the civil procedural area types of cases included: declarative action; civil enforcement actions; special actions; injunction proceedings and other cases” (Ministry of Justice of Portugal, General Directorate for Judicial Policy, Technical Note. Justice StatisticsProcedural flow at the first instance courts 1996-2008, May 2009).

5 Data come from the Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, 28 May 2009.

6 Data come from the Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, 28 May 2009.

7 Data come from the Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, 3 June 2009.

8 Data come from the Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, 3 June 2009.

9 Source: Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, Procedural flow in the first instance courts 1996-2007).

10 Source: Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, Procedural flow in the first instance courts 1996-2007).

11 Data come from the Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, 3 June 2009.

12 Data come from the Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, 3 June 2009.

13 Source: Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, Procedural flow in the first instance courts 1996-2007).

14 Source: Ministry of Justice of Portugal, General Directorate for Judicial Policy, DGPJ, Procedural flow in the first instance courts 1996-2007).

15 “A clearance rate above 100 percent indicates the ability of the system to resolve more cases than received”. CEPEJ (2008), Evaluation of judicial systems.

16 “A case turnover ratio and a disposal time indicator provide further insight into how a judicial system manages its flow of cases. Generally, a case turnover ratio and disposal time compare the number of resolved cases during the observed period and the number of unresolved cases at the end of observed period. The ratios measure how quickly the judicial system (or a court) turns over received cases – that is, how long it takes for a type of cases to be resolved”. Ibidem.

17 The disposition time “determines the number of days that cases are outstanding, or remain unresolved in court”. Ibidem.



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