Strasbourg, 22 November 2007

CEPEJ-SATURN(2007)4

European Commission for the Efficiency of Justice (CEPEJ)

Explanatory note

Introduction

One of the most important aspects of a ‘fair trial’ concerns the requirement of courts to treat cases within reasonable time. Many applications received by the European Court of Human Rights are related to length of proceedings. This is also the reason that it is of utmost importance that at a national level and at the level of the individual courts the duration of proceedings i.e. the ‘timeframes’ are measured and that relevant case information is collected. As a part of the evaluation exercise ‘European judicial systems’ (based on the data of the year 2004), member states were invited to provide information on the length of proceedings for four common case categories: litigious divorce cases, dismissal cases, robbery and intentional homicide. It was expected that the majority of countries were able to collect the information on timeframes. However, the reality today is that only a very few countries are able to present information on timeframes for the proceedings concerned.

One of the prerequisites for measuring the timeframes of proceedings is that courts have defined (common) case categories and a method has developed to measure timeframes. In some countries the definition of case categories forms a part of a ‘workload model’ for judges and court staff (for example in the Netherlands, the Nordic countries and Austria). In such a model for each case category that is defined: an estimation is given for the time that is needed to prepare and finalize a case by a judge and the court staff. Ideally speaking, for each case it is possible to define the optimum timeframe. However in practice, the workload of the courts and judges are influenced by various (external and internal) factors, like the influx of cases, the personnel resources, working methods, level of computerization, number of cases in stock, etc. This explains why there is mostly a difference between the ‘optimal timeframes’ (as the theoretical shortest timeframe possible) of judicial proceedings and the real timeframes measured in the courts.

To get a better understanding of timeframes at a European level it is necessary to receive more knowledge of the case-categories that are used in the various courts and the problems in defining and measuring length of proceedings as well as the presentation of ‘best practices’ in this field.

In addition to receive more information on common case categories it in also important to have an overview of problems courts are facing with respect to the registration of case information and monitoring of the performances of courts. That is one of the reasons questions on the evaluation and monitoring of court performances are included as well.

The last past of the questionnaire is focused on delays i.e. the factors which are causing lengthy proceedings and the measures that have been taken to reduce timeframes.

General comments concerning the questions of the Scheme

This note aims to assist the pilot courts and other persons entrusted with replying to the questions of the questionnaire common case categories.

 

a. General remarks

The year of reference for this Scheme is 2006. If 2006 data are not available, please use the most recent figures. In this case, please indicate the year of reference used under the relevant question.

You are invited to send by e-mail the WORD-file Scheme duly completed to the following address: [email protected]

Before sending back your reply, please change the name of the file to the name of your court and the year of reference (2006). For instance: "Arnhem_court2006.doc".

Help desk

Should you have any question as regards this Scheme and the way to answer it, please send an e-mail to Stéphane Leyenberger ([email protected]) or Pim Albers ([email protected])

Comments question by question

Question 1

In the first question basic information is asked about the personnel working in the courts (the judges and the court staff). To understand which types of judges and court staff are available in your court, the following categories are used in the questionnaire:

Professional judges mean those who have been trained and who are paid as such. Please indicate the number of actually filled posts at the date of reference and not the theoretical budgetary posts. The information should be presented in full time equivalent and for permanent posts.

To have an indication of the relative size of the courts we would like to know how many professional judges are working in the courts (absolute numbers). If possible and available additional information might be provided on the number of judges in full time equivalents.

Non-professional judges mean those who sit in courts and whose decisions are binding but who do not belong to the group of professional judges. This category includes lay judges and juges consulaires.

Non-judge (judicial) staff directly assisting a judge with judicial support (assistance during hearings, (judicial) preparation of a case, court recording, judicial assistance in the drafting of the decision of the judge, legal counselling (for example registrars). In this category we included also the ‘Rechtspfleger’. This is an independent organ of jurisdiction according to he tasks that were delegated to him by law. Tasks that are connected with the competencies of the Rechtspfleger are: family and guardianship law, law of succession, law of land register, commercial registers, decisions about granting a nationality, penal cases, execution of penal cases, order to execute prison sentences as replacement or replacement of this punishment by making a welfare job, prosecution at district courts, decisions concerning legal aid, etc.

Administrative staff and technical staff, staff that is not directly involved in the judicial assistance of a judge, but is responsible for administrative and/or technical tasks (such as: the registration of cases in a computer system, the supervision on the payment of court fees, administrative preparation of case files, archiving, court security, cleaning, maintenance of the building, etc.) as well as the management of the court (for example a head of the court secretary, head of the computer department of the court, financial director of a court, HRM manager, etc.).

Question 2

With this open question we would like to know for which cases your court is competent and which case categories (for example certain civil law cases or criminal law cases) are used in your court. If possible give detailed information on the definitions that are use for these case categories.

Question 3

The main aim of this question is to see if in the various courts in Europe a similar categorization of cases is used and if it is possible to define ‘common case categories’ for non-criminal cases (civil, commercial and administrative law cases) and criminal cases. In this question we would like to know which case categories are applicable in your court and (if available) per case category information on the number of pending cases, incoming cases, decisions and the % of pending cases (if it is not possible to provide the exact figures, please give an estimation).

In addition to the list of specific case categories that are presented in the table, we would like to receive information concerning the total number of (incoming, pending and decision) civil law cases, administrative law cases (if applicable) and criminal law cases.

Examples/definitions per case category:

Commercial cases and regular civil claims: example disputes between enterprises/companies regarding a (breach of a) contract, non-delivery of services/goods, bankruptcy cases, etc.

Small-civil claim: example disputes between enterprises/citizens regarding a (breach of a) contract, non-delivery of services or goods, where a the financial claim does not exceed a certain monetary value (which is defined by the law))

Employment dismissal cases with defence: example disputes between an employee and his/her employment regarding the termination of a labour contract and the height of the financial compensation)

Application of interim relief cases: example court procedures of urgent cases, where it is necessary to make an interim decision to prevent non-reparable damages

Land register:  the maintenance, registration and/or modification of  cadastral information and/or information of the ownership of land and/or houses.

Business register: the maintenance, registration and/or modification of data concerning companies in a register (structure, ownership, financial information, etc.)

Enforcement of judicial decisions: example payment orders, confiscation of movable and immovable properties, public sale, etc.

Social welfare/security cases: example disputes between a citizens and the government against a decision concerning the non-acceptance of a social welfare request, the height of the social welfare, specific social arrangements, etc.)

Fiscal/tax cases: example disputes between the citizens and the government concerning the decision on the height of the tax that needs to be paid or the reduction of taxes)

General disputes between the government and private persons: example disputes concerning the rejection of a construction permit do be delivered by a municipality, spatial and infrastructural measures, etc.)

Asylum and immigration law cases: example disputes regarding the refusal to grant asylum to an immigrant, forced return of asylum seekers, etc.)

Litigious divorce cases:  example divorce cases where one of the two spouses do not agree on the basis for the divorce (division of properties and goods, financial compensation, etc).

Custody cases of child/children: example cases concerning the parenthood of child/children, visiting rights, etc.)

Support and maintenance actions cases: example cases concerning the none or late payment of support/maintenances allowances, the height of the financial amount that needs to be paid for support and maintenance, etc.)

Intentional homicide cases: the intentional killing of a person; the figures may includes assault leading to death, euthanasia, assistance with suicide, infanticide.

Assault: inflicting bodily injury on another person with intent; not included: assault leading to death, threats, only causing pain, slapping/punching, sexual assault.

Rape: sexual intercourse with a person against his/her will (per vaginam or other; it may include: violent intra-marital intercourse, sexual intercourse without force with a helpless person, sexual intercourse with force of a minor.

Robbery: stealing from a person with force or threat of force; it includes: mugging, theft immediately followed by violence, but excludes pick pocketing, extortion, blackmail)

Armed robbery: robbery committed by using weapons.

Theft: depriving a person/organization of property without force with the intent to keep it.

Burglary: gaining access to a closed part of a building or other premises by the use of force with the objective to steal goods. Domestic burglary: gaining access to private premises by the use of force with the objective of stealing goods.

Drug offences:  includes:  possession of drugs, cultivation, production, sale, supplying, transportation, importation, exportation and financing of drugs operations).

Money laundering: the process through which criminals give an apparently legitimate origin to proceeds of crime.

Cyber crime: offences against the confidentiality, integrity and availability of computer data and systems; examples: illegal access, misuse of devices, computer related forgery or fraud, content related offences.

Organised crime: a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes in order to obtain directly or indirectly a financial or material benefit.

Traffic offences defence cases: for example cases brought before the courts concerning the refusal of payment of a traffic fine or the height of the fine, including driving under influence cases.

Question 4

In question 4 we want to know what kind of information in the court is registered on the length of proceedings. In the table a separation is made between criminal cases and non-criminal cases (civil cases and/or administrative law cases). For each category we would like to receive information concerning the registration of data on the length of proceedings and what specific information on the length is registered. Does this concern the start and end of procedures? Or do you register also intermediary steps and/or the waiting time (time where nothing happens with the file)? If possible please provide a description of the measurement of the length of proceedings.

Question 5

Various methods of calculation can be used to measure the length of proceedings. For example the average length in days. However there are also other possibilities. For example the median timeframe in days, months or even in years, timeframes in percents, percentage of cases finalised within a certain time period, etc. To gain a better knowledge in the definitions that are used in the various courts in Europe we would like to receive information on which definitions are used in your court to measure the length.

Question 6

If you register data on the length of proceedings we would like to know the level of detail that the data is registered in your court and what kind of information on the length can be found in the court registers. This may vary from presenting information on the average length of proceedings in days for the total number of cases to detailed information on the median length of proceedings, the spread, the percentage cases decided in a given period, etc.

Question 7

In this question we would like to receive (detailed) information on the average length of proceedings in your court  (in days) for the case categories that are listed and/or information about the percentage cases that are decided in a given period (< month, > 1 month and < 6 months, > 6 months and < 1 year, > 1 year and < 2 year, > 2 year and < 3 year and > 3 year).

Question 8

The collection of data on the court performance (incoming cases, pending cases, decisions and length of proceedings) may be less complicated when sophisticated court management information systems are used. However there are also situations imaginable where this is not the case and where the collection of data is problematic. Please indicate the level of complexity to collect data on the court performance that is applicable to your situation.

Question 9

Court performance information can be registered by making use of computerised case (management) information systems. However, practical information on the number of incoming cases, pending cases, decisions, length, etc. might be manually registered in a (paper) written file. Please indicate if your court use a computer application or if the court performance data is registered in manual (non-electronic) registers. 

Question 10

Court performance information can be made - to a different extend - public to various categories of persons or authorities. To receive more insight in the level that court performance information is externally or internally published we would like to know at what level of detail (very detailed or general information) court performance information is available for: judges, court staff, higher courts, the Ministry of Justice, a High Judicial Council, the parliament and the society in general.  

Question 11

The reliability and accuracy of the court performance data that is registered and used in the court might vary, depending on how the data is registered and if there are regular quality checks. In certain countries the quality and the reliability of data is regularly inspected by using information-audits. In this question we would like to know what the margin of error is of the court performance data that is used in your court. In case that court performance data is checked regularly this margin of error may be small, whilst in other situations there may be a higher degree of variation in the reliability of the data registered and used.

Question 12

To reduce delays in the courts one of the measures that can be taken is to monitor separately timeframes of cases with a long duration (according to the norms and standards that are applied in the courts). As a result of this, the management of the courts can identify these specific cases and take appropriate measures. We would like to know if in your court cases with a long duration are monitored.

Question 13

If you monitor cases with a long duration, what is in your court defined as long? In terms of days, months or years. Do you also make a differentiation for acceptable norms that should be applied for specific case categories?

Question 14

In this table we would like to list case categories where you have defined the case categories that exceeds the norms (of acceptable duration) that are applied in your court. For each category of cases presented we would like to know the proportion of cases (in percentage) that exceeds the norms compared with the total number of incoming cases. For example: in severe criminal law cases 20% of all the cases exceed the norms that are used in the courts for a reasonable duration.

Question 15

In this question causes of delays are listed. We would like to know how often these causes contribute to delays in your court proceedings.

Question 16

To have a better knowledge in the main factors that causes delays in court proceedings we invite you to rank the five top causes of delays. Starting with the cause which contributes the most to delays (score 1) to a cause which contributes the least of the five to court delays (score 5).

Question 17

To understand better how similar cases in the various court are treated we present three ‘hypothetical cases’ (a criminal case, a civil case and a dispute between a private person and the government). For the cases that fall under the competence of your court we would like to receive a description of how these ‘hypothetical’ cases will be treated in your court and how many days it will take from the lodging of the case until the final decision and enforcement of the decision.