Strasbourg, 12 May 2011

CEPEJ-SATURN(2011)2

English only

EUROPEAN COMMISSION FOR THE EFFICENCY OF JUSTICE

(CEPEJ)

Steering Group of the SATURN Centre for judicial time management
(CEPEJ-SATURN)

9th meeting

Strasbourg, 19 and 20 May 2011

IMPLEMENTATION OF SATURN TIME MANAGAMENT TOOLS

Synthesizing report from seven test projects

Report prepared by

Jon T. Johnsen

Expert member of the Steering Committee of the SATURN Centre

IMPLEMENTATION OF SATURN TIME MANAGAMENT TOOLS

Synthesizing report from seven test projects

Jon T. Johnsen. Expert member of SATURN

CONTENT

1 SATURN’S IMPLEMENTATION PROGRAM

1.1 Concerns behind SATURN’S implementation testing

1.1.1 Framework. Tasks of SATURN

1.1.2 Why a test program?

1.2 Main ideas

1.3 Methodology subject to testing

1.4 Accomplishment

2 OUTCOMES

2.1 Step 1: Selection of guidelines proposed to the courts for implementation testing (Fifteen list)

2.2 Step 2: Selection of courts subject to testing

2.3 Step 3: Selection of guidelines from the Fifteen list for further examination

2.4 Step 4: Step 4: Selecting implementation projects

2.5 Step 5: Reporting

3 RESULTS -- THREE IMPLEMENTATION PROJECTS

3.1 District court of Prague - Czech Republic

3.2 Queen’s Bench Division of the High Court of Justice and Central London Civil Justice Centre – England (United Kingdom)

3.3 Tbilisi Appeal Court - Georgia

3.4 First Instance Court of Turin - Italy

3.5 First instance court of Nedre Romerike - Norway

3.6 Judicial district of Dorneck-Thierstein - Switzerland

4 SPECIAL STUDY OF MEASURES ADOPTED IN TURIN’S COURT (“STRASBOURG PROGRAMME”) SIMILAR TO THE “SATURN GUIDELINES FOR JUDICIAL TIME MANAGEMENT”

Authored by Giacomo Oberto, expert member of SATURN

4.1 A Short Description of the “Strasbourg Programme” and of the “Decalogue” for Dealing with Civil Cases

4.2 Rules of the “Decalogue” in comparison with “Saturn Guidelines for Judicial Time Management:” the Issue of Active Case Management

4.3 Rules of the “Decalogue” in comparison with “Saturn Guidelines for Judicial Time Management:” How to Adjust Time Management to General and Specific Targets

4.4 Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Timing Agreements with Parties and Lawyers

4.5 Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Co-operation and Monitoring of Other Actors (Experts, Witnesses, etc.)

4.6 Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Suppression of Procedural Abuses

4.7. Reasoning of Court Decisions

5 HOW TO USE THE FINDINGS

5.1 Alternatives

5.2 Awareness of SATURN guidelines

5.3 Courts’ willingness to implement

5.4 Measurement of "within reasonable time"

5.5 Examples of recommendations

5.6 Methodology

5.7 Conclusions

1 SATURN’S IMPLEMENTATION PROGRAMME

1.1 Concerns behind SATURN’s implementation testing

1.1.1 Framework. Tasks of SATURN

As a body of the European Commission of the Efficiency of Justice (CEPEJ), a main purpose of the SATURN Centre (below "SATURN") is to collect information on judicial time use that will help the member states in implementing measures that prevents violations of the “within reasonable time” standard in ECHR article 6. The SATURN Centre shall both itself observe the time use in Europe and develop tools for bettering the members states own monitoring of their timeframes. The SATURN Centre shall also encourage and evaluate the implementation of proper time management tools by the member states. The mandate of the SATURN1 Centre advises the following working methods:

"In order to fulfil its tasks, the Steering group shall in particular:
- collect, process and analyse the relevant information on judicial timeframes in a representative sample of courts in the member states;
- define and improve measuring systems and common indicators on judicial timeframes in all member states and develop appropriate modalities and tools for collecting information through statistical analysis;
- rely on appropriate networks allowing the integration of the works and reflections of the judicial community, in particular on the network of pilot courts within the member states, to exploit innovative projects aimed at reducing and adjusting the timeframes operated by courts in member states."
In its Medium-Term Activity Programme adopted by CEPEJ plenary in December 2009 SATURN was invited to
"...work with the pilot courts to test the concrete implementation of the various tools designed by the CEPEJ (guidelines, checklists), according to a protocol specifically designed with a given court – in full cooperation with the Ministry of Justice where appropriate. The CEPEJ's experts could then identify the relevant provisions in various CEPEJ's documents which could be the subject of such "in court tests".2

The present report analyses the test program conducted by the SATURN experts in 2010-2011.

1.1.2 Why a test program?

The starting point for the implementation project is that CEPEJ-TF-DEL and later the SATURN Centre have developed a range of instruments for time management, adopted by the CEPEJ plenary, to be used by the courts. The most important of them are:

- The Time Management Checklist, adopted in 2005 (CEPEJ(2005)12Rev)
- The study of time management reports in Northern Europe, adopted in 2006 (CEPEJ Study N° 2). It contains a broad collection of time management strategies described in Scandinavian governmental reports. Most of the tools address policy makers and administrators of justice systems, but several of them also address the courts. Part II contains tools developed for time management in criminal cases at the police and prosecution, but most of them might be adoptable by the courts.
- 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 (Calvez Report), adopted in 2006 (CEPEJ Study N° 3). The study analyses the major considerations behind the “within reasonable time” standard in ECHR article 6 and spells out the deadlines that can be extracted from the Court’s judgments.
- Compendium of “best practices” on time management of judicial proceedings, adopted in 2006 (CEPEJ(2006)13). In addition to the courts, the compendium also contains “best practices” for policy makers and administrative authorities in the judicial systems.
- SATURN guidelines for judicial time management, adopted in 2008 (CEPEJ(2008)8). Also the guidelines contain measures both for the courts and for policy makers and administrative authorities. The guidelines contain an appendix 1 on time management statistics – European uniform guidelines for monitoring of judicial timeframes (EUGMONT).

Taken together these documents contain a wide variety of tools that courts can use to improve their time management.3 All jurisdictions that experience delays of some significance and are found in violation of the "within reasonable time"- criterion in ECHR art 6(1) by the ECtHR, will find that several of the SATURN time management tools might be useful if they decide to implement reforms.

SATURN has issued many questionnaires to its pilot courts on their time management. The response rate has been a problem and SATURN has made several attempts at improving them and making them less burdensome for the courts to fill in. However, the judicial systems of the member states vary enormously in structure and organization and level of development. The work of CEPEJ GT EVAL shows clearly that even the development of rather simple common statistics on the judicial systems of the member states faces significant challenges.

The obvious advantage of using a test program as an additional way of mapping the viability and usability of the CEPEJ tools compared to questionnaires are:

All successful implementations of CEPEJ tools in pilot courts will also contribute to the overall goal of SATURN, namely to improve the time management of the courts. They might have model impacts on other courts in the jurisdiction and also on policy makers and judicial administrators. Experiences might also bear on other jurisdictions.

Studying individual and planned implementation processes “live” might produce a richer and more precise picture of the challenges, obstacles and remedies necessary to be overcome if the tools shall work at particular courts than by using questionnaires. Methodologically it is preferable to use thorough, small scale, qualitative methods first and then use the knowledge gathered to design proper statistical studies – for example by using questionnaires.

Since qualitative methods are more meticulous, they also demand more time and resources from the courts involved than answering questionnaires or deliver statistics. However, they also produce another and different kind of insights. It is easier for the pilot courts to see the impacts of their work for CEPEJ. The courts will profit from their efforts immediately if implementation is successful and the tools implemented work as supposed.

1.2 Main ideas

The main ideas behind the implementation test programme4 are:

- to find out why adequate, relevant SATURN tools are not implemented in member states although the need for improvements clearly exists;
- to identify the levels of the judicial systems that need to be involved if the different SATURN tools shall become operative;
- to identify tools that courts could implement on their own, encourage them to do so and study the process of identifying relevant tools and the implementation of them.

SATURN ought to initiate test projects with individual pilot courts on implementing new time management tools and thoroughly report on the process. SATURN might learn from how the implementation process develops and study how the time management tools work. If the implementation of some tools fails, the reasons for the failure also should be mapped. The point is to learn more about the courts' reasons for wanting to implement some tools before others, the obstacles that the courts meet during the implementation process, the outcomes and to what extent the experiences of the single court are transferrable to other courts - both within the same jurisdiction and outside.

SATURN should contact pilot courts about participation or advertise for participants among them. The method is to develop and forward a list of SATURN tools that aim especially at the courts and to invite the court to implement some of them and use them in their work.

SATURN expected the pilot courts to be open to such requests, since the fourth meeting of the pilot courts in Strasbourg invited them in particular:

"... to work as test bed for implementing specific provisions of the SATURN Guidelines on judicial time management (CEPEJ(2008)8) according to a protocol to be proposed by the SATURN Steering Group."5

At the Pilot court meeting in April 2010 several courts expressed a serious interest in the work of CEPEJ and wanted to contribute. They also said that their involvement was hampered because they felt isolated in their work for CEPEJ and felt they lacked attention from SATURN, their judicial administrations and other courts. A model oriented test program organized by SATURN and supported by the national judicial administrations should help in creating more attention to the role of the pilot courts.

The first task for SATURN has been to develop a methodology -- or "a protocol" -- for conducting such implementation studies as suggested by the CEPEJ plenary. A method was drafted before the SATURN meeting in Geneva in April 2010 and discussed there. The method has then been tested through implementation projects conducted by the members of SATURN in pilot courts within their home jurisdictions later in 2010 and the first months of 2011.

The present report summarises the findings of these projects and analyses their implications for the viability of the methodology. Sections 1.3 and 1.4 summarize the methodology used and how the test projects were designed and carried out. Section 2 on outcomes describes how the major steps in the methodology for carrying out implementation test worked, while section 3 summarizes three implementation projects that have been carried out. Section 4 contains a special study of an Italian implementation project that started in 2001 and contains experiences of special significance to future SATURN projects.

It should be kept in mind that the main goal with the present program has been to test the usefulness of a methodology, not primarily to achieve substantive results. Even if the projects appear incomplete in some respects, they provide significant information on the prospects of the methodology.

The second task for SATURN will be to initiate implementation studies on a larger scale according to a revised methodology if the tests described in this report substantiate it. Section 5 analyses the usefulness of the implementation method and contains our recommendations.

1.3 Methodology subject to testing

The methodology subject to testing is spelled out in CEPEJ-SATURN(2010)1 Implementation test of SATURN tools in selected pilot courts.6 (Methodology Report). The major steps in the methodology are:

1) The first step is to select a suitable number of SATURN time management tools for the testing. As mentioned, CEPEJ has produced several documents on tools for better time management in European courts. Together the number of tools developed by CEPEJ is significant. We should start with a selection of tools that the participating courts think well fit for implementation and a number that they think is well manageable. The SATURN guidelines on judicial time management (CEPEJ (2008)8) was chosen.

The SATURN guidelines contain sixty-three different guidelines and several of them have other judicial authorities than the courts as addressees. The number subject to testing was therefore narrowed down to fifteen, all supposed to be implementable from the courts' own autonomy, see CEPEJ-SATURN( 2010)1 p 6-11 for details. None of them seemed to presuppose any active involvement from other judicial authorities, only their consent. Testing would become more controllable and manageable if the court could do all necessary steps by itself.

2) The second step is to select pilot courts for participation. Some essential criteria:

- Enthusiasm. Enthusiasm about the project from the court is paramount. A half hearted attempt at implementing CEPEJ tools will not tell us much about hindrances that exist -- except that the attitude of the court also matters. Participation therefore should be voluntary from the court, not ordered by some national authority.

The best thing is to find courts that are enthusiastic about the project. Asking the court to choose the set of tools it would like to implement, is another way of enhancing its commitment. On the other hand, support and interest from national judicial authorities also matters, see below.

- Seize and caseload. The courts' size and especially their caseloads are features of significance to many time management tools. We should include both large and small courts in the test of most tools.

- Equipment and staffing. Equipment and administrative staff also matters, especially access to ICT – equipment. We might include both well equipped and staffed courts and poorly equipped and staffed ones.

- The model aspects. The model aspect is important. The findings should be applicable as widely as possible. Preferably we should select pilot courts that exemplify the challenges of implementing the CEPEJ tools also for other courts in the same jurisdiction. If implementation is successful in the model court, the probability that adoption by other courts also takes place improves.

- Involvement of policymakers and judicial administrations. SATURN’s mandate presupposes that testing is done “in full cooperation with the Ministry of Justice when appropriate.” The involvement of policy-makers and judicial administrators on the national or state level is of great importance to the model impact. They might help in estimating how well the pilot court exemplifies the challenges and gains by adopting CEPEJ tools in the jurisdiction at large. Involvement also increases the probability that the national judicial authorities will consider introducing tools successfully tested in a pilot court to other courts.

3) The third step is to select the tools subject to further examination in the particular court from the list of fifteen tools in step one. Courts should be free to select one or more tools for implementation from the Fifteen List. A thorough discussion with the court to what extent their practices and routines are in accordance with the fifteen guidelines suggested for the test should be part of the coaching. See the Methodology Report part 6 p 12-14.7

4) The fourth step is to select one or more guidelines from the ones examined during step three for implementation and then study the process and its outcome. This process might last several months or even years. It differ between the pilot courts how demanding a guideline is to implement. A separate dialogue with each pilot court about the selection is important. An individualized implementation plan containing the necessary steps for each tool selected should be developed.

Such voluntariness for the court could help securing that pilot courts choose the tools they think most relevant to have implemented. A voluntary and preferably strong commitment from the pilot courts is important, so the actual number of guidelines selected should be open for negotiation with each court.

5) Reporting is indispensable if SATURN shall better understand what the practical obstacles are to the implementation of the CEPEJ tools. Reporting also is important to other courts and to judicial administrations that might consider similar reforms. It should run parallel to the other steps. Reports should be well structured and preferably follow a common template in all courts. They ought to contain the following seven main elements:

- General description of the court. (Name, type, location, staffing, equipment and infrastructure, constituency, caseload structure, backlog etc.)

- Detailed description of the process of selecting CEPEJ tools for implementation. The reasons both for including and excluding tools should be thoroughly recorded.

- Description of the implementation process. The different steps necessary should be mapped, elucidating questions as: What were the challenges and what went smoothly? To what extent was the implementation successful? What were the reasons behind failures?

- Outcome. To what extent did successful implementations result in actually improvements of the court’s time management?

- Time use. How long did the successful implementations take? Factors that influenced time use ought to be listed and ways to reduce time used on implementation discussed.

- External cooperation. To what extent did the implementation of each tool involve collaboration with central judicial authorities? How did such collaboration work?

- Recommendations. Major findings on factors that influence the implementation and use of CEPEJ time management tools ought to be evaluated for the purpose of possible reforms: How do the implemented tools influence time management? What are the gains? Are the findings applicable to other CEPEJ time management tools? Are they applicable to other courts in the jurisdiction of the pilot court and to courts in other jurisdictions?

Reports might be produced by the court in question, the national CEPEJ member, a SATURN expert or an independent expert hired by CEPEJ or the national judicial administration. The last two solutions are obviously the best to secure the quality of the reporting. If the reporting shall be done for free by someone outside the court, travel distance matters. A SATURN member ought to supervise both planning and selection of tools, the implementation process and the reporting.

1.4 Accomplishment

The Methodology Report was prepared for SATURN's Geneva Meeting in April 2010 and adapted by the experts. As part of the preparation a pilot test of the proposed methodology was carried out with one of the Norwegian pilot courts and a report of the testing was presented to SATURN together with the Methodology Report.8 The test report was meant as an example of how the proposed protocol or methodology might work. Due to time restrictions, the test had to be limited to the three first steps. Time did not permit the establishment of an implementation project at the court and then record its development and outcome.

SATURN decided to carry on with developing the methodology. The experts agreed to put up more tests with pilot courts in their jurisdictions. At SATURN's Strasbourg Meeting in October 2010, draft reports from Czech Republic, England, Georgia, Italy and Switzerland were presented and provisionally discussed together with the Norwegian report. After some comments and suggestions, the reporters have finalized them.

Additionally the experts agreed to discuss and propose implementation projects to the pilot courts and report on them before the SATURN Strasbourg Meeting in May 2011. JOHNSEN was allocated the task of analyzing the test reports and prepare the synthesis of the experiences and findings.

2 OUTCOMES

How did the testing process develop? I will sum up experiences from the six jurisdictions – including Norway – according to the four steps in the methodology and comment on the reporting at the end.

2.1 Step 1: Selection of guidelines proposed to the courts for the implementation testing (Fifteen list)

The first step, namely to select a number of SATURN tools for implementation, had already been done in the Methodology Report (p 6-11, 12-14). Table 1 show the result:

Table 1: Guidelines proposed for the implementation tests

    I. General principles and guidelines

      C. Planning and collection of data

      G 1

      1. The length of judicial proceedings should be planned, both at the general level (planning of average/mean duration of particular types of cases, or average/mean duration of process before certain types of courts), and at the level of concrete proceedings.9

      G 2

      2. The users are entitled to be consulted in the time management of the judicial process and in setting the dates or estimating the timing of all future procedural steps.

    III. Guidelines for authorities responsible for administration of justice

      C Intervention

      G 3

      1. If departures from standards and targets for judicial timeframes are being observed or foreseen, prompt actions should be taken in order to remedy the causes of such departures.

      G 4

      2. Particular attention should be given to the cases where integral duration is such that it may give rise to the finding of the violation of the human right to a trial within reasonable time.10

      G 5

      3. The monitoring should make sure that the periods of inactivity (waiting time) in the judicial proceeding are not excessively long, and wherever such extended periods exist, particular efforts have to be made in order to speed up the proceeding and compensate for the delay.11

    IV. Guidelines for court managers

      A. Collection of information

      G 6

      1. The court managers should collect information on the most important steps in the judicial process. They should keep records regarding the duration between these steps. In respect to the steps monitored, due regard should be given to the Time management Checklist, Indicator Four12.

      G 7

      2. The information collected should be available, to inform the work of court administrators, judges and the central authorities responsible for the administration of justice. In appropriate form, the information should also be made available to the parties and the general public13.

      B. Continuing analysis

      G 8

    1. All information collected should be continually analysed and used for the purposes of monitoring and improvement of performance.

      G 9

    3. The reports on the results of analysis should be produced at regular intervals, at least once a year, with appropriate recommendations.

      C. Established targets

      G 10

      1. In addition to the standards and targets set at the higher level (national, regional), there should be specific targets at the level of individual courts. The court managers should have sufficient authorities and autonomy to actively set or participate in setting of these targets.14

      G 11

      2. The targets should clearly define the objectives and be achievable. They should be published and subject to periodical re-evaluation.

      G 12

      3. The targets may be used in the evaluation of the court performance. If they are not achieved, the concrete steps and actions have to be taken to remedy the situation.

      D. Crisis management

      G 13

      1. In the situations where there is a significant departure from the targets set at the court level, there should be specific means to rapidly and adequately address the cause of the problem.

    V. Guidelines for judges

B. Timing agreement with the parties and lawyers

      G 14

      2. Where possible, the judge should attempt to reach agreement with all participants in the procedure regarding the procedural calendar. For this purpose, he should also be assisted by appropriate court personnel (clerks) and information technology.

      G 15

      3. The deviations from the agreed calendar should be minimal and restricted to justified cases. In principle, the extension of the set time limits should be possible only with the agreement of all parties, or if the interests of justice so require.

The initial limitation of the testing to fifteen guidelines is meant as a practical measure for keeping the volume of the testing down. The idea is to expand testing to more guidelines and other SATURN tools if the method works satisfactorily. It appears, however, that some of the test projects did not limit their choices to the fifteen guidelines proposed in the Methodology Report.

In this report the list of guidelines selected for implementation testing in the Methodology Report is labelled the Fifteen list and each guideline on the list is referred to by G(uideline) and number as shown in table 1 – for example G 14. Guidelines outside the Fifteen list are referred to by G and its reference in SATURN GUIDELINES FOR JUDICIAL TIME MANAGEMENT (CEPEJ(2008)8Rev -- for example G IA1.

2.2 Step 2: Selection of courts subject to testing

The second step is the choice of court for the testing. Pilot courts were used. It was left to each expert to choose the national pilot court and arrange for the practicalities. Each expert also organised the reporting from the instructions in the Methodology Report. Due to the limited resources available both for travel and time use, practicalities became an important concern.

Seven pilot courts from six countries participated, of them two from England. Table 2 gives some basic information about them.

Table 2: Participating pilot courts

Country/Court

Competence

Judges & staff

Caseload

CZECH REPUBLIC

District court of Prague

Civil & criminal

Judges: 44+27 lay judges
Staff 46

Resolved cases / incoming cases:
-Civil 35.454/23.298
-Enforcement: 6.093/6.432
-Family: 190/181

-Criminal 1335/1075

Total 43100/31 000

ENGLAND 1

Queen’s Bench Division of the High Court of Justice (BBD)

ENGLAND 2

Central London Civil Justice Centre (CLCJC)

NA

NA

NA

NA

NA

NA

GEORGIA

Tbilisi Appeal Court

Civil & criminal (?)

Judges 33

Staff 200

NA

ITALY

First Instance Court of Turin

Civil & criminal

Judges: 162 + 30 lay judges

Staff 452

Civil 32 000 Criminal 8 000= 40 000.

Backlog: Civil 24 000+criminal 3 000=27 000. Figures are (approximate)

NORWAY

First instance court of Nedre Romerike

Civil & criminal

Judges 12 + lay judges

Staff 17

Resolved cases / incoming cases:

Civil 343/351 Criminal 1706/1712

Total 2049/2063

SWITZERLAND

Judicial district Dorneck-Thierstein

Civil & criminal

Judges 1,1+lay judges

Staff 7-8

NA

According to the methodology enthusiasm for the project, differentiation in seize and caseload, equipment and staffing are important. The sample does to a reasonable degree fulfil several of the selection criteria:

Pilot courts have already signalled an interest in SATURN’s work by becoming pilot courts, and adhered to the implementation project at the Pilot Court Meeting in April 2010 in Geneva. All courts have wide jurisdictions, covering both civil and criminal cases. Most are first instance courts but the Georgian court is an appellate court. Seize and caseloads show wide dispersion. The Norwegian and Swiss courts are of medium seize with 10-15 judges and less than 20 staff and a caseload of around 2 000. The courts in the Czech Republic and Georgia have 30-50 judges and 50-200 staff. They handle a yearly caseload of 30 000- (?) The largest court is the Italian one with more than 150 judges and a caseload of 40 000 in addition to a backlog of almost 30 000. (English figures are lacking.)

It should be mentioned that the SATURN experts from Georgia and Italy are judges at the pilot courts selected for the test. The English and Swiss experts work in the national court administrations while the Czech expert is employed at the bar association and the Norwegian one at a university and both therefore without any formal role in the administration of their judicial systems.

      2.3 Step 3: Selection of guidelines from the Fifteen list for further examination

The third step in the methodology test was for the court in collaboration with the expert to select a number of guidelines from the Fifteen list for further examination. Courts were free to choose the guidelines they preferred for implementation from the list. It appeared, however, that some courts chose to focus also on other guidelines than the fifteen on the list in table one. As mentioned, the fifteen guidelines were forwarded as suggestions and the interests of the court should have priority.

Table 3 show the guidelines examined by the courts in the process of indentifying guidelines suitable for an implementation project:

Table 3: . Selection of guidelines from the Fifteen list for examination with the pilot courts

Court

Guidelines on the Fifteen list

Other SATURN guidelines

Total

 

Included

Excluded

   

Czech Republic District court of Prague

1-2

3-15

615

8

England

Queen’s Bench Division of the High Court of Justice

1-5, 10-13

6-9,14-15

616

18

England

Central London Civil Justice Centre

1-5, 10-12

6-9, 13-15

917

17

Georgia

Tbilisi Appeal Court

1-15

0

0

15

Italy

First Instance Court of Turin

1-2,14-15

3-13

2418

28

Norway

First instance court of Nedre Romerike

1-15

0

0

15

Switzerland

Judicial district Dorneck-Thierstein

1-15

0

0

15

Guideline 1 and 2 has been subject to examination by all seven courts. Guideline 3, 4, 5, 10,11 and 12 by five courts, G 13, 14 and 15 by four courts and G 6, 7, 8 and 9 by three courts. Additionally around ten guidelines outside the Fifteen list became examined by one to four courts. The coaching exercise therefore concerned close to half of all the guidelines and might be viewed as quite extensive.

The reasons for examining other guidelines than the fifteen proposed cannot be fully explained from the reports. Perhaps some misunderstanding of the Methodology Report has occurred and perhaps also about what was meant with "one tool".

The Italian court obviously found guidelines outside the Fifteen list just as interesting to evaluate because it had experiences with them too. It had already conducted a large project on introducing time management tools similar to the guidelines over a ten year period. This implementation process is still going on, see section 4. Instead of doing another implementation project the SATURN expert preferred to sum up the court’s experiences with adopted tools that are of special relevance to the test project.

2.4 Step 4: Selecting implementation projects

Step four was to identify one or more guidelines for implementation and putting them into practice at the court. Each guidelines selected in step three was thoroughly evaluated to find out how well it was implemented at the court and whether it was suited for an implementation project.

Table 4: Screening for guidelines suitable for implementation projects

Court

Guidelines on the Fifteen list already implemented

Alternative or similar practices

Not fully implemented

Selected for implementation study

Czech Republic District court of Prague

1-2

 

IC3

IC3

England

Queen’s Bench Division of the High Court of Justice

2-5, 10-13

 

1, IB2

None

England

Central London Civil Justice Centre

1-5, 10-12

 

VA2

None

Georgia

Tbilisi Appeal Court

1, 3-5,7-8, 15

13-14

2, 6, 9-12

3, 5

Italy

First Instance Court of Turin

 

1-2, 14-15

 

V Guidelines for judges (All 11 guidelines including G 14-15)

Norway

First instance court of Nedre Romerike

1, 7 - 13, 15

2, 14

3-6

Not attempted

Switzerland

Judicial district Dorneck-Thierstein

1-15

   

None

Column two: “Guidelines on the Fifteen list already implemented” records how many of the guidelines in table one that the court already practiced. Column three on alternative or similar practices show how many of the guidelines in the Fifteen list that are substituted by other tools that produce results similar to the ones intended by the SATURN guidelines. The fourth column shows guidelines not fully implemented at the court. It includes both guidelines from the Fifteen list and guidelines selected for examination outside the list. The fifth and last column shows the guidelines selected for implementation both from and outside the Fifteen list.

The table tells that most courts had implemented most of the guidelines on the Fifteen list. However, this finding does not mean that the implementation had resulted from the work of CEPEJ. Most courts had established their practices and routines due to other, mainly national initiatives. Some courts (Czech Republic, Georgia, Norway) also reported that they had established alternative practices that fulfilled the same functions as the SATURN guidelines (column four). Such practices might well be viewed as alternatives to the guidelines.

The table also shows that at most courts some deficits existed in the implementation of one or more of the guidelines at the Fifteen list or outside it. Only the Swiss court was found to conform fully to the list. The deviances identified vary of course significantly in seriousness.

The findings in column five are further discussed in section 3 and 4.

2.5 Step 5: Reporting

Reports focus on the screening process described in step 1-3. Reporting style varies significantly. The Czech, English and Swiss reports are short with just a few comments to each guideline, while the Georgian, Italian and Norwegian reports are richer on detail. Some special features of some of the reports are mentioned below.

Central London Civil Justice Centre (England – UK). This report was produced by the court itself from the Methodology report without any coaching from the SATURN expert. It mainly describes the present practices at the court with regard to the guidelines selected, and lacks discussions and conclusions on whether the court thinks it satisfies the guideline in question or not, and if it thinks improvements could be made. It might also seem that the court had some problems in grasping what it was expected to produce.

Even if the report has some weaknesses the experiment is of significant interest. The Methodology report suggests that reporting might be done by the court itself, but it also presupposes a dialog about the selection of guidelines for implementation and the implementation process with a CEPEJ representative (p 14-15.

However, if we can develop a methodology that makes it possible for pilot courts themselves to draft viable reports on the implementation projects, it surely would make it easier to carry out implementation testing with a larger number of pilot courts and with other courts as well. It seems from the experiment that with more concise instructions on the methodology, the court might have produced a report in line with the others.

First instance court of Turin (Italy). The first Italian report has a wider focus than proposed in the Methodology report.19 It provides comments on and evaluations of previous and ongoing implementation projects at the court – both with some of the SATURN guidelines and some guidelines older than the CEPEJ ones, but quite similar to them.

Part one offers some very interesting descriptions of and reflections over how time management tools became an issue at the court and why time management tools similar to the ones adopted later on by CEPEJ became implemented at the court from 2001 and how they worked. The description also is an outline of a large implementation project of guidelines similar to the ones in table one and covers all the seven issues suggested for the reporting.

The first part ends with some recommendations and reflections on how to disseminate the time management tools implemented at the Turin court to other courts in Italy and also to courts in other jurisdictions. I think those comments neatly conforms to the last major element – recommendations – suggested in the Methodology report (p 14).

Several of the selected guidelines are commented on simultaneously. Many of them are interconnected and also overlap to some extent. The approach makes it easier to get an over all picture of deficiencies in the court's time management practices that became subject to remedying. On the other hand, the description might be less rich on detail.

The approach obviously has something to offer. It paints a picture over many years of what it means to implement tools similar to the ones in the SATURN guidelines. Section 3.4 and 4 provide further information and analysis.

3 RESULTS – THREE IMPLEMENTATION PROJECTS

Although the findings in table four, column four, reveal a potential for implementation projects in six of the seven courts, only three implementation projects is recorded in column five (Czech Republic, Georgia, Italy). The Czech project falls outside the Fifteen list. The Italian project concerns guidelines both on and outside the list, while the Georgian concerned guidelines at the list only. I will now look further into the outcomes of each of the test projects. More details can be found in the test reports.

3.1 District court of Prague - Czech Republic

The Czech report says that the goals of the judicial system in the Czech Republic seem generally in line with the SATURN guidelines. However, the climate for new projects at the courts is not favourable, due to the economic crisis. Lack of financial resources is a main obstacle for realizing reforms.

No specific project that is within the court’s autonomy to implement has been selected, neither have new pilot courts willing to perform such a project been found. In addition to G 1 and G 2 five guidelines selected for examination outside the Fifteen list also are implemented at the Pilot court.

The court did however propose project a project on better implementation of G 1C3 that presupposed some contributions from the Ministry of Justice: IC3: “The length of judicial proceedings should be monitored through an integral and well-defined system of collection of information. Such a system should be able to promptly provide both the detailed statistical data on the length of proceedings at the general level, and identify individual instances at the origin of excessive and unreasonable length”.

The main aim was to better the implementation of G IB2 and G IB4:

IB2: “It is particularly important and in the public interest that the length of judicial proceedings is not unreasonable. The cases should not last excessively long. They should, under some circumstances, also not be too short, if this would unduly impact the users' right of access to court.”

IB4: “Particular attention should be given to the appropriateness of the total length of proceedings, from the initiation of the proceedings to the final satisfaction of the aims that the users wanted to obtain through judicial process.”

The project plan was to adjust the IT system of the pilot court to make it issue warnings to the judges about files or cases with so called “risky deadlines” that need action – for example that a judgment should be written, that nothing has happened or no action has been recorded for two months or the case is older than two years and in need for special attention. Such files (cases) should be marked with visible colour when judges open their computers. The warnings are supposed to help judges significantly in keeping track of important deadlines. As a start, the court wanted to develop a tool that would warn about cases with a standstill time that exceeded one and then two months.

The project depended on collaboration with the Ministry of Justice being willing to do the necessary adjustments in the national IT system for the courts. The Ministry agreed upon the project and did the necessary adjustments.

The adjusted program will be made available to judges at the pilot court that volunteer to the project. When the project – as expected – reports reductions in the backlogs, the Pilot court will attempt to spread the adjustments to other courts in the Czech Republic.

3.2 Queen’s Bench Division of the High Court of Justice (QBD) and Central London Civil Justice Centre (CLCJC) – England (UK)

The SATURN expert met with QBD as part of the project. CLCJC received the Methodology report and did the test without any further guidance from the SATURN expert. Table 3 still shows that the two English courts made the same selection of guidelines both inside and outside the Fifteen list for further examination.

QBD lacked the necessary IT tools for implementing G 1 which it thought highly desirable, but mentioned that it is in place in other civil courts. Like in the Czech Republic an upgrade according to G 1C3 also was needed for better implementation of G 1B2.

CLCJC reports that all eight guidelines selected from the Fifteen list are in operation. Also the eight guidelines selected outside the list are implemented except for G VA2:

VA2: “Subject to general rules, the judge should be authorized to set appropriate time limits and adjust the time management to the general and specific targets as well as to the particulars of each individual case.”

The court reported that “… listing a case within target cannot always be achieved and this is why our targets are fixed at or around 70%”.

3.3 Tbilisi Appeal Court - Georgia

Concerning G 2, the pilot court as an appellate court did not deem it necessary to meet with the parties when hearings are scheduled. Civil procedural law contains strict time limits for disposing of appeals, which make negotiations with the parties less relevant. No time limits have been stipulated for criminal appeals according to the report, which probably mean that the guideline cannot be regarded as fully implemented. For G 6 almost all data requested in the Time Management Checklist, Indicator Four is collected by the court. Only the time use of expert evidence is not recorded. G 10-13 is not fully implemented because Georgian courts do not set their own targets for time use. Targets only relate to the rather strict deadlines in the law and G 11-13 presuppose targets set by the court itself. When it comes to G 13 however, measures for handling deviances from the statutory deadlines are in place. G 14-15 also are affected by the statutory deadlines. However, parties are involved when adjournments are necessary.

The Georgian court chose G 3 and G 5 for an implementation project although both guidelines were first recorded as implemented. Until recently Georgian procedural law had a two week limit for issuing a motivated judgment. Due to high caseloads, judges had problems with conforming to the limit, but it could be deviated from due to special circumstances. The pilot court managed to keep the deadline when the circumstances did not justify a prolongation and therefore evaluated its practice to be in accordance with the two guidelines. However, recently a new strict statutory deadline of 20-30 days without exceptions was introduced. The new statutory provisions made it necessary for the pilot court to introduce new procedures for producing the motivated or reasoned decisions in civil cases faster than previously. If not, the implementation of G 3 also would become affected. The project studied and report on the implementation of this new deadline.

The court has an IT-system that produces landmarks on the time limits for making decisions on whether to admit the case, for setting the time for the first hearing and on the deadline for issuing judgments. Judges at the court first had to agree upon a common understanding of the new deadlines and how to inform the parties about the announcement of the decision, the deadlines and the consequences of not showing up. Then the court administration developed new electronic forms and allocated one additional assistant to each chamber at the court which is vital to cope with the increased workload.

The report concludes: "Although only 4 months elapsed from the adoption of the new procedure for appeal it is clear that all the staff, especially judicial staff is much more focused and attentive to meet the deadlines. All those efforts mentioned above coupled with the dedication of the court staff shall greatly facilitate to meeting the deadlines and thus, contribute to fast and efficient justice in the interests of court users." (Georgian report II p 3)

The Pilot court is the only court in Georgia at present that has an IT-system sufficient for managing the guidelines at the Fifteen list. We therefore can infer that G IC3 is not well implemented in the other Georgian courts.

3.4 First instance court of Turin - Italy

The Italian report first examines part I in the SATURN guidelines. All of the guidelines in part I are analyzed – not only G1 and G 2 on the Fifteen list. Most of them are grouped together according to the headlines in the guidelines (A. Transparency and foreseeability, B. Optimum length, C. planning and collection of data, D. Flexibility, E. Loyal collaboration of all stakeholders).

The analysis identifies weaknesses under all sections – mainly due to the behaviour and practices of the lawyers that result in unnecessary time use – and argues the need for a general agreement with the bar on a framework about setting priorities in the individual cases. Inflexibility from lawyers and parties when it comes to travelling for court hearings is another issue that increases time use. It is clear from the report that this insufficient implementation of the SATURN guidelines -- especially G IE1 -- is not limited to the pilot court, but constitutes a national problem.

The report also argues that a national IT system for time management is important for implementing the guidelines about planning and collection of data. Findings show that G IC3 is insufficiently implemented also in Italy.

The report then turns to part V – guidelines for judges – and comments on all guidelines in that part – not only G 14 and G 15 on the Fifteen list. Also in this part, the report discusses all guidelines listed under each of the four alphabetic headings simultaneously (A. Active case management, B. timing agreement with the parties and lawyers, C. Cooperation and monitoring of other actors (experts, witnesses etc., D. Suppression of procedural abuses). The report points to several weaknesses like lack of staff (G V B2), that experts (and parties and witnesses) often ask for extensions (G VC), and that judges lack sufficient powers to suppress procedural abuse (G V.D).

The Italian court did not propose any specific guidelines for implementation. An extensive package of reforms called “the Strasbourg Programme” became introduced in 2001 with the purpose of reducing backlogs and speed up the handling of civil cases. The Strasbourg programme contains several time management tools that are similar to the SATURN guidelines. Implementation of the Strasbourg Programme still goes on and the Italian report describes the implementation of those tools instead.

The president of the court issued a list of guidelines and invited the judges to follow them. They dealt with good practices and collaboration with the lawyers. Several guidelines are similar to the SATURN guidelines: “It is worth saying that the “Decalogue”, although conceived some years before the adoption of Saturn Guidelines for Judicial Time Management, addresses in many parts of it issues which we can find in this document of CEPEJ (I am specially referring here to its “Part V – Guidelines for Judges”). Moreover, the very “spirit” of the “Decalogue,” along with many of the proposed solutions, seems to be in full harmony with aims, purposes and approaches of the “Saturn Guidelines,” so that we could even define it as a sort of “Saturn Guidelines” ante litteram.” (Italian Report II p 2)

Because of the similarities, participation as a pilot court has stimulated the implementation of the Strasbourg programme: “The regular answers to SATURN and CEPEJ questionnaires sent by my Court enhanced as well the awareness of many colleagues and members of the staff to cope with issues of timeframes shortening and reducing backlogs.” (Italian Report I p 1)

The Programme almost immediately had significant effects on the backlog of cases more than three years old. In December 2010 the share of cases older than three years was less than four percent of the total pending caseload, which is remarkable in the Italian context.

The report on the Strasbourg programme confirms the usefulness of several of the SATURN guidelines. Some important experiences:

- Reforms in the Italian civil procedure have made it necessary for the judges to

      stipulate a calendar for each step of the proceedings and also stimulate to friendly settlement, which obviously reduces time use.

- The president of the Court regularly issues statistics on the time use for each section
of the court and on the productivity of each judge.
- As suggested in G IC3, a well developed IT system that monitors time use in each

      case and automatically issue warnings to the judge responsible for the case when landmarks are passed, is important. The present system at the Italian court has deficits in this respect. Uniform systems should be introduced nationally and preferably also on the European level, making it possible for European instances like CEPEJ to compare time use all over Europe.

- The guidelines of the court advice the judges to closely monitor the experts’ time use,

      since they often seem unaccustomed to the working schedule of the courts and therefore become bottlenecks.

- Acknowledging the important role of the lawyers in case progress, the court has

      attempted to involve the Bar in counteracting lawyer practises of asking for unnecessary adjournments. Framework agreements with the Bar organisations on time use and deadlines are important to putting up the calendar for each case. Also agreements on replacement of local judges with judges from the court’s main office in cases of absence or vacancies are important.

- A need for more judicial powers for suppressing procedural abuse from lawyers and
parties exists.
- The fee structure of lawyers is not in line with efficient time use and in need of

      revision. For example, they should not allow for payment per document or hearing so that the more documents and adjournments the more the lawyer earns.

- Judges ought to put more emphasis upon developing and applying remedies against

      delaying tactics. Older judges seem to be more lenient with delaying tactics than the younger ones. Specific guidelines against delay issued by the court will help in persuading the older ones to become less lenient.

On the request of SATURN, the Italian expert has made a special study of the implementation of the Strasbourg programme that compares the selected tools from the Strasbourg programme (Turin Court Decalogue) with similar tools in the SATURN guidelines. His analysis focuses on part V “Guidelines for judges” and comprehends G 14 and G 15 from the Fifteen list and in addition all the other nine guidelines outside the list. The analysis is included in extenso in section 4. In addition to the comparisons the report contains comments on the achievements and challenges in the implementation of the Strasbourg programme.

Like the SATURN expert from Georgia, the Italian expert is a judge at the pilot court studied.

3.5 First instance court of Nedre Romerike - Norway

As mentioned previously, the Norwegian implementation report was produced as a pilot exercise when developing the methodology. It shows that most of the guidelines on the Fifteen list had been implemented independent of the SATURN guidelines due to national practices. For G 2 and G 14 national legislation, like in Georgia for civil cases, contains strict time limits for disposal of cases, which make negotiations with the parties in person less relevant. Neither the court nor the lawyers or the parties are allowed to deviate from them. For G 3-6 the national practices seemed somewhat insufficient.

The pilot court expressed an interest in improving its practices concerning G 3, G 4 and G 6 by introducing more landmarks for criminal cases, but thought such a remedy outside the autonomy of the court. It also considered asking the police for more information about time use on the pre trial stage of criminal cases. It also opted for more landmarks concerning G 5 on waiting time. Time did not allow for any follow up of the implementation process in the pilot test report, but a recent check brought forward that the court now has sufficient landmarks on waiting time.20

3.6 Judicial district Dorneck-Thierstein - Switzerland

The Swiss report records that all guidelines on the Fifteen list have been implemented which left no space for an implementation project.

4 SPECIAL STUDY OF MEASURES ADOPTED IN TURIN’S COURT (“STRASBOURG PROGRAMME”) SIMILAR TO THE “SATURN GUIDELINES FOR JUDICIAL TIME MANAGEMENT” (Authored by Giacomo Oberto, expert member of SATURN21)

4.1 A Short Description of the “Strasbourg Programme” and of the “Decalogue” for Dealing with Civil Cases

The “Strasbourg Programme” is the first experiment of case management tested in Italy, aiming at obtaining a significant reduction of judicial backlogs and the acceleration of the treatment of civil cases. The initiative was born in the year 2001 from an idea of the then President of the (First Instance) Court of Turin, Mr. Mario Barbuto (currently President of the local Court of Appeals) and continued during these last ten years first by Mr. Barbuto and since the end of 2009 by the new President, Mr. Luciano Panzani.

The Programme was started first of all through a monitoring activity of the whole backlog. Then the President drafted a circular letter containing several provisions and suggestions for Judges (the so-called “Decalogue”), with the aim of reaching the goal of a relevant shortening of judicial timeframes.

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Starting from the assumption that proceedings lasting for longer than three years could be considered as in violation of the “reasonable time” requirement of Article 6 of the European Convention on Humans Rights, in the light of the case-law of the European Court of Human Rights, the Presidency of the Court of Turin activated since 2001 a periodical census–to be renewed every six months–of all cases pending before said Court. Following this survey, all cases had to be classified according to the period of time they had been lasting (cases pending for longer than one year, for longer than two years, three years, and so on).

According to that first census, ordinary cases lasting for longer than three years in all civil sections of Turin central seat of the Court amounted to 2.354 at the date of April 30, 2001 (52 of them went back to a period of time previous to 1990). At the same time the President announced the diffusion of a “Decalogue” for the quick and targeted treatment of old cases. Document files of cases lasting for longer of three years were also marked with a special tag on their cover, in order to allow Judges to easily recognize them.

Just to give an idea about the success of the initiative I can quote the results of the last edition (the 17th of this kind) of the report, drafted by the President in the framework of the “Strasbourg Programme” in December 2010. According to this last survey, out of 22.268 cases pending before the central seat of the Turin First Instance Court, 21.418 cases were pending for no longer than three years (15.325 for one year, 4.264 for two years, 1.829 for three years), while only 850 for longer than three years.

The “Decalogue,” in the form of circular letter containing several recommendations addressed to all civil judges (for example the prohibition of adjourning hearings, when not specifically justified or allowed by the law) will be described in a more detailed way further on. Its aim is that of trying to ensure a uniform practice in all civil sections of the Court, while strictly respecting autonomy and independence of each and any Judge. This document was also forwarded to the local Bar, on one hand, in order to obtain the endorsement of an institutional body strongly concerned with the course of civil justice, but on the other hand also with the aim to prevent that parties in concerned cases could interpret the new course as a sort of vexation against them, or as an unexpected and episodical initiative of only some Judges.

It is worth saying that the “Decalogue”, although conceived some years before the adoption of Saturn Guidelines for Judicial Time Management, addresses in many parts of it issues which we can find in this document of CEPEJ (I am specially referring here to its “Part V – Guidelines for Judges”). Moreover, the very “spirit” of the “Decalogue,” along with many of the proposed solutions, seems to be in full harmony with aims, purposes and approaches of the “Saturn Guidelines,” so that we could even define it as a sort of “Saturn Guidelines” ante litteram.

As I have already explained in a former report, as far as overall foreseeability of the length of proceedings is concerned, the initiative of the President of regularly spreading general statistical and other data on the length of proceedings, section by section, can very much helpful in this respect. Also the spreading of statistical evidence reporting the “productivity” rate of each and every judge fosters a sort of competition which helps avoiding backlogs of the size which had to be reported in the past.

It is true that, according to what stated by Point B. 3. of “Saturn Guidelines,” “The time management of judicial proceedings, if not determined by the behaviour of the users themselves, should be made in an impartial and objective manner, avoiding significant differences with regard to timing of similar cases.” Problem is that, at least in Italy, a significant role in the case management is played by the lawyers. Therefore it is important to involve Bars in the process of reduction of judicial delays.

Actually it may happen that very similar cases have very different lengths, simply because the lawyers tried to make use in some cases of procedural tactics and “tricks” which may result in a waste of time. Of course it is also up to the judge to be vigilant and to discourage such practices. For instance, it may happen that adjournments are required by lawyers, who assure they are going to settle the case, and they need time to do it. Here it is up to the judge not to be too “generous” and to monitor closely the seriousness of this prospective settlement, as well as the honesty and truthfulness of the intentions of the lawyers and of the parties who are involved in the case.

Having said this, I will submit here some comparative tables, reporting in the left side of them the relevant provisions of the Turin Court “Decalogue” (or at least the sense of them, or a short summary), while putting in the right side the equivalent Articles and Paragraphs of the “Saturn Guidelines.” Chapters of this report will be organized along the lines of the different Articles of “Part V. Guidelines for Judges” of “Saturn Guidelines.” After each and any set of provisions I will also join my commentaries. Let me point out as well that the version of the “Decalogue” which is here taken into account is the very last of it, as approved by the President with his circular letter of 30th December 2008, No. 9. Its correct title is “Prescriptions and Suggestions on Dealing with Civil Cases” and it encompasses at present twenty separate Articles.

4.2 Rules of the “Decalogue” in comparison with “Saturn Guidelines for Judicial Time Management:” the Issue of Active Case Management

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 4)

Judges are invited to constantly make use of Article 175 of the Italian Code of Civil Procedure (C.P.C.), according to which “Judges dealing with civil cases should use all powers aiming at a quicker and loyal carrying out of the proceedings.”

They should as well take into account Art. 127 C.P.C., prescribing that “… Judge directing hearings can take all appropriate actions, prescribing what is needed in order to ensure that cases are dealt with in an orderly and useful way. He/she provides rules for the discussion of cases, setting the points to be debated and closes the discussions, when he/she thinks it appropriate.”

During the first hearing of a case, the Judge should try to convince lawyers not to make use of the law provisions allowing them to get adjournments and deadlines for deposing additional petitions (which slows down the regular course of the proceedings: unfortunately lawyers almost never give up to such a right, accorded to them by Article 183 C.P.C.).

Judges should try to avoid drafting minutes of hearings in too lengthy a way. They should on the contrary just sum up what lawyers are asking.

Final petitions, submitted by lawyers when the judge is about to decide the case, should be as clear and concise as possible.

Judges should as well try not to concentrate too many hearings at the same time, but should fix them at different times of the day, between 9 a.m. and 1 p.m.

Article16)

Judges should make use of the powers of Article 210 C.P.C. (“Order to parties of the case or to third parties to provide evidence”) only when it is clear what are the documents or the objects to be shown, in order to take evidence; it should also be clear that one of the parties of a third person actually have such documents or objects. Interim decisions concerning such aspects should always clearly identify what documents and/or objects should be shown before the judge (all too often lawyers simply ask the Judge for an order to show “all commercial documents” concerning a certain corporation, whereas they should list them one by one: e.g. specifying kind of documents–like invoices, and so on–and also mention the concerned period of time.

20) Conciliation attempt

Judges should often make use of the discretionary power to try to convince parties to friendly settle the case. In this framework he/she will also take note in the minutes of the proposals of both parties, even though the conciliation attempt fails.

Other relevant provisions in this field are those of Articles 10 and 11 (see further, Paragraph No. 6).

A. Active case management

1. The judge should have sufficient powers to actively manage the proceedings.

That “The judge should have sufficient powers to actively manage the proceedings” is self-evident. However, directives and instructions issued by the Head of the Court could help the judges to “find the strength,” taking into account the current state of aggressiveness of Italian lawyers, to play a pro-active role. Of course this should always be done within the frames of procedural rules, which in my country do not, unfortunately, leave wide discretionary powers to the Judge.

In this framework I would particularly point out that the Judge has little or inexistent power to fix a “quick start” of the case, taking into account rules set forth by the Italian Code of Civil Procedure. Actually, according to Article 163-bis, between the day in which summoning act has been served to the defendant and the day of the first hearing before the Judge, at least ninety days must elapse (in case the summon act has been served in a foreign country that period of time is of hundred and fifty days). If one thinks that, at the first hearing, parties have the right to get another adjournment of at least eighty days for “fine-tuning” their petitions and pretensions (and it is enough that just one of them asks for it, without any power for the judge to deny the adjournment) it becomes clear that, after the service of a summoning on a certain day (a day which, among other things, concretely and procedurally marks the official start and beginning of the case), in the “quickest” imaginable solution, the Judge can practically start dealing with the case not sooner than six months after this event. This means that the Judge can start playing a pro-active role only after that (at least!) a good half of the first of the two (or three, according to our Strasbourg Programme) years of the “reasonable timeframe” has already elapsed.

4.3 Rules of the “Decalogue” in comparison with “Saturn Guidelines for Judicial Time Management:” How to Adjust Time Management to General and Specific Targets

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 1)

All civil cases pending for longer than two and half years before the Court should be marked with a particular tag of different colour, according to the fact that they have been pending for:

    a) longer than six years;

    b) between six and two and a half years;

    c) two and an half years.

Judges should give priority to all above mentioned cases.

Article 2)

Judges should ensure to adjudicate cases mentioned in Article 1) according to the following programme:

- for cases of the a) group: no later than … (six months);

- for cases of the b) and c) group: no later than … (one year).

All other cases should be finally adjudicated no later than three years from the day they have started.

A. Active case management

(…)

2. Subject to general rules, the judge should be authorized to set appropriate time limits and adjust the time management to the general and specific targets as well as to the particulars of each individual case.

As far as this point is concerned, let me stress again that rules issued by the Head of the Court should, as it happened in the Turin case, set priorities among different cases, like e.g.: reducing maximum length to no more than three years; giving priority to cases exceeding that deadline or dangerously approaching to it, etc. I understand that rules of the “Saturn Guidelines” are referred to deadlines imposed by the Judge to parties (rather than by President to Judges), but the Italian Code of Civil Procedure leaves little judicial discretion in this field. I would like to underline again that, for example, adjournments on the basis of Article 183 of the Italian Code of Civil Procedure cannot be avoided, if at least one of the parties requires them, even in cases where it is absolutely clear that they are useless and that lawyers just need them in order to “add” such adjournments (as well as the petitions they wrote for each and any of them) on the their final check for the liquidation of their fees and honoraries. However, rules set by the President of the Court about time limits in a framework such as that of the “Strasbourg Programme” can also help the Judge to try to convince parties to avoid unnecessary requests and to try to “adjust their pace,” in order to meet the requirements of a quicker procedure.

4.4 Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Timing Agreements with Parties and Lawyers.

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 6)

Adjournments should never exceed 40/50 days. Judges should ensure that cases lasting for longer than two and a half years get a priority treatment.

B. Timing agreement with the parties and lawyers

1. In the time management of the process, due regard should be given to the interests of the users. They have the right to be involved in the planning of the process at an early stage.

2. Where possible, the judge should attempt to reach agreement with all participants in the procedure regarding the procedural calendar. For this purpose, he should also be assisted by appropriate court personnel (clerks) and information technology.

3. The deviations from the agreed calendar should be minimal and restricted to justified cases. In principle, the extension of the set time limits should be possible only with the agreement of all parties, or if the interests of justice so require.

The issue of timing agreement with the parties and lawyers is now dealt with at a general level by a special provision of our Code of Civil Procedure. Actually recent reforms have brought about the need, for each judge, at the start of each proceedings, to draw a calendar of the process, in which the judge, taking into account lawyers’ opinions, “foresees” and “predicts” when each and any of the steps of the process will take place. Moreover, according to the guidelines issued by the President, each judge has to try to help parties to friendly settle the case. During such hearings judges prospect to the parties the advantages brought about by a settlement, also envisaging what could be the path to be followed by the case (of course no hint should be given on the merit of the case, but the judge can very well say, for instance, that if the case goes on, he/she will need to appoint an expert to answer this or that question, etc.).

Some months ago, when we first tried to concretely implement provisions concerning the calendar of the procedure, we discovered that it was not so easy as it could have appeared at a first glance. It is almost impossible to foresee one or two years in advance what the course of the case will be and to fix a certain day for each and possible procedural event. Therefore I suggested a solution which was concretely adopted by many colleagues, consisting in fixing not exact days, but exact deadlines, such as e.g.: a) deadline for the accomplishment of the hearings for questioning witnesses: no later than 30 June 2011; b) deadline for the accomplishment of an expertise (in case this would show as relevant): no later than 31 December 2011; c) deadline for the last hearing where parties summon their final requests and petitions before the Judge adjudicates the case: no later than 30 June 2012.

As far as above mentioned Point 2. of Saturn Guidelines is concerned, of course I fully agree with the principle that the Judge should also be assisted by appropriate Court personnel (clerks) and information technology. Unfortunately in my Court (as well as in almost any Court of Italy) only the second part of that sentence is true. Staff is absolutely lacking and too often IT is used as a way to have Judges perform (in addition to their regular duties) the tasks of clerks and secretaries.

Let me add on this point that in these very last months, thanks to the initiative of our Court’s President Luciano Panzani an agreement with the local Law Faculty is going to be signed in the next weeks. According to this agreement a certain number of selected and qualified law students and young law graduated will be admitted as trainees in our Court for periods of some months. We will take advantage of this training initiative, on one side, to have a number of young people better trained and prepared to face the very hard competitive examination to become Judge (of course, provided they will; otherwise they will address themselves to the legal profession, however with a much higher degree of awareness about the functioning of the “judicial machinery” and of the real needs of a quicker and more efficient justice). On the other side these people will provide a “helping hand” to the day-to-day work of Judges and clerical staff, helping Judges to draw minutes of hearings, to perform legal research activity, to put in order papers, petitions, acts and documents (very often hundreds of pages!) within each and any file, to single out particular questions and difficulties arising from cases, to fine-tuning the ongoing process of using IT for case management and the electronic management of procedures, to check that orders given by the judge to clerks are properly enforced, that lawyers and/or parties and/or experts have actually been informed about decisions to summon them for a certain hearing, etc.

4.5 Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Co-operation and Monitoring of Other Actors (Experts, Witnesses, etc.)

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 14)

Judges should periodically and systematically check all cases in which they are waiting for an expert to draw and submit an expertise, in order to ensure that deadlines for the submissions of such expertises are met.

Deadlines for the submission of expertises should not exceed 40/50 days. In case of not compliance Judges should replace the expert with another one. Prorogations of such deadlines should be awarded only in exceptional cases and upon motivated requests (e.g. because parties, under the assistance of the expert, are trying to reach a friendly settlement of the dispute).

Judges should always empower experts to try to find an amicable solution of the case.

Among the vast number of experts available, judges should prefer those who have proved to be able to help parties to find a friendly a friendly settlement.

Before appointing an expert, Judges should invite parties to submit suggestions on the questions to be asked.

C. Co-operation and monitoring of other actors (experts, witnesses etc.)

1. All participants in the process have the duty to co-operate with the court in the observance of set targets and time limits.

2. In the process, the judge has right to monitor the observance of time limits by all participants, in particular those invited or engaged by the court, such as witnesses or experts.

3. Adequate and efficient means have to be available against those players that do not fully co-operate in the observance of the set targets and time limits. They may include reduction of fees, striking from the list of experts, fines and other sanctions.

Guidelines issued by Heads of Courts should (as it is the case for the Court of Turin) focus on the need for the judges to closely monitor the respect of deadlines by experts. It happens very often that experts, simply because they have maybe too many assignments (and are not accustomed to workloads and working times of judges…), tend to apply for an adjournment of the deadline originally set by the judge for the delivery of the expertise. Judges should take care that such adjournments are given only when strictly necessary (e.g. because parties are discussing, under the control and with the assistance of the expert, for reaching a friendly settlement of the case). As far as witnesses and parties are concerned, judges should dispose of much more effective powers in order to oblige them to attend the hearing. But, once again, it is up to the Legislators to change current laws.

Actually a little improvement has been brought about by a recent reform, according to which the expert appointed by the judge, before submitting his/her report, has to present it to the parties, who have a deadline to send him/her their remarks. Finally the expert has to submit to the judge his/her expertise, together with the parties’ remarks and his/her final comments on the parties’ remarks. According to this procedure, lawyers will be no longer allowed to ask for further adjournments for commenting the expertise. No further hearing will be necessary, unless the Judge esteems that one or more points of the report need to be more thoroughly explained. So, once the expertise and the remarks have been included in the official file, the Judge can be ready to deliver his/her final decision.

4.6 Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time Management: the Issue of Suppression of Procedural Abuses

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 4)

See above, Para. No. 2.

Articles 5) and 8)

No adjournments will be granted without a specific and acceptable reason. Reasons for the lawyers to ask for an adjournment (e.g.: parties are seriously dealing about a friendly settlement of the case) should be explicitly mentioned in the minutes of the hearing. Such minutes should as well state whether both parties agree on such request. In the hearing following the request lawyers should always clearly refer about the follow-up of the situation which originated the request for an adjournment (e.g. about the results of their attempts to find a friendly settlement of the case).

Article 10)

Judges should ensure that both parties comply with requirements of Article 244 of the Italian Code of Civil Procedure, concerning the way they should submit a request to the Judge for questioning witnesses.

In particular, Judges should avoid to order the questioning of witnesses if:

a) parties did not submit specific questions to be asked;

b) such questions do not concern specific facts, but involve judgements and subjective appreciations (to be possibly deferred to a Court’s expert);

c) the number of witnesses indicated by parties is too high and should be reduced by the judge;

d) questions to be asked to witnesses are irrelevant or can be answered through existing documents.

In case a party wants to hear witnesses about certain documents (e.g. invoices, estimates, etc.) the Judge should first ask the counterpart whether he/she admits that document has been drafted by that prospective witness. Only contested circumstances have to be proved by witnesses: this means that the Judge, whenever possible, will first ask what facts are denied and contested and will order to hear witnesses only on those facts which are contested.

Article 11)

As far as questioning of parties is concerned, judges should always try to convince lawyers not to ask for it, as this kind of procedural activity is always useless. In case lawyers insist on it, judges should avoid to record on minutes all remarks made by parties pro se, as such comments are already enshrined in lawyers’ acts and petitions. Replies should be recorded in the shortest possible way (e.g.: “Yes, it is true;” “No, it is not true.”)

D. Suppression of procedural abuses

1. All attempts to willingly and knowingly delay the proceedings should be discouraged.

2. There should be procedural sanctions for causing delay and vexatious behaviour. These sanctions can be applied either to the parties or their representatives.

3. If a member of a legal profession grossly abuses procedural rights or significantly delays the proceedings, it should be reported to the respective professional organisation for further consequences.

As far as formal questioning of parties is concerned, the Italian law does not extend the statute of witness to parties of a case. This means that parties have the right not to tell the truth. Questioning of parties could theoretically be useful in the only case they admit something against their interest, which actually almost never occurs. Such old rules had a sense in times when citizens were generally illiterate and uneducated and, being before a Judge, could easily be intimidated and admit the truth. Nowadays (especially taking into account the very little degree of respect for Judges, brought about by years and years of attacks and denigration on the Judiciary) no one feels embarrassed openly lying before a Judge, especially when their personal interests are stake.

This explains why I call this kind of remedy “The most useless procedural remedy in the world.” Unfortunately, the interest of lawyers is to stuff procedural dossiers with all possible kind of acts, documents, petitions and activities, because (as I have already explained) for each and any of such things they get fees.

This explains why a serious reform of the Italian civil procedure would inevitably require a deep change in the way legal fees are calculated. I have been many time advocating a system (as the German one, for instance), in which lawyers’ fees are not linked to the number of acts they write, nor to the number of hearings they attend. This would be a very good step forward, but once again this cannot be done by the judges. Critics of this position of mine (lawyers of course) misunderstood this proposal as an attempt to curtail their revenues. This is by no way the case. I am personally persuaded that lawyers’ fees should be much higher than they are nowadays. The issue is not “how much” lawyers get, but “for what purposes” and “in reward for what” they get what they get. So, if they work in a competent and effective way, with the final result to have brought before a Court only the cases that deserve to be brought before a Court, they should earn much more than they actually do.

As I already explained many times, also in this field much greater powers should be advocated for Judges and this issue has to be primarily dealt with by the Legislative Powers. I can personally witness that the vast majority of cases brought before me could be easily resolved without even going to the Court, on the basis of a little bit more good will from the parties and also of a little bit more knowledge of the law by concerned attorneys. The issue deals therefore with the delicate topic of legal training for all the actors of judicial proceedings and first of all for lawyers. A well trained lawyer can understand how risky or useless can be going to the Court for frivolous cases. Once the process has started it is very hard for the Judge to convince parties to find an amicable solution, because parties have already engaged expenses and lawyers know that the longer the proceeding is going to last, the more they will be earning.

Judges, on their part, should be more attentive to the need to find ways to “punish” incorrect behaviours by parties and lawyers. Currently our procedural rules give the judges some powers in this sense. First of all Article 117 of the Italian Code of Civil Procedure allow the Judge to take into account parties’ behaviour in order to adjudicate the case. Let me bring an example on this. It happens some times that a party (or his/her lawyer) does not co-operate with the expert appointed by the judge, not providing information the expert requires, or having the expert fix dates for inspecting a building, or a machine, etc. and then not attending on that occasion. Under such circumstances the Judge can take into account such facts and decide the case against the party who did not co-operate.

A new version of Article 96 of the same Code provides for now that, even without a particular request on this point, the Judge can ex officio sentence the party losing his/her case to pay a sum of money (to be fixed by the Judge) to the other party, when the case or the defences of the losing party are frivolous. Older judges are much more linked to “lenient” practices of the past, but I have very much confidence in new generations of judges, who are much more ready to apply sanctions against disloyal parties and attorneys. Once again, specific guidelines on this topic by the Head of the Court could be of use in persuading “older” judges to take into account, when the case has to be adjudicated, of the behaviour of parties and lawyers.

4.7. Reasoning of Court Decisions

Turin Court “Decalogue”

“Saturn Guidelines for Judicial Time Management –

Part V. Guidelines for Judges”

Article 3).

Judicial decisions have to be reasoned in a concise form, as provided for by Article 132, Second Paragraph, No. 4, of the Italian Code of Civil Procedure and by Article 118, Second Paragraph, of the Provisions for Implementation of the Italian Code of Civil Procedure. Only questions relevant for the decision of the case should be taken into account.

Judges should keep into account that the essence of reasoning is explaining the decision and not displaying erudition.

Judges should always comply with deadlines provided for by the law for deposit their decisions.

- - -

Italian legal tradition adopts a system for the reasoning of judgements which appears to be more suitable to long and detailed “treaties.” The advantage of this system is that lawyers may find in the reasoning answers to the issues and legal questions they raised during the case, as well as reasons and bases for filing an appeal. The disadvantage is that Judges, “frightened” by the need to thoroughly and at length explain reasons for a case, may be tempted to differ the moment of the judgement, thus hoping to persuade parties to abandon their disputes and to find a friendly settlement of the case, what unfortunately may not always happen.

So, one of the “bottlenecks” of Italian civil justice is the timeframe between the moment in which a case has been prepared by acquiring evidence and the moment in which it comes to a decision. This shows that one of the problems possibly causing judicial delays is brought about by the activity of reasoning in written the case.

Luckily a recent reform, affecting the two above-mentioned provisions of our Code of Civil Procedure, obliges nowadays judges to be more concise. But the weight of a tradition dating back centuries is still very strong. Therefore a recommendation like the one enshrined in above-mentioned Article 3) of the “Decalogue” appears to be most welcome.

Training on the drafting of judicial decisions could also be of some effect. An increased use of reference to judicial precedents, available in electronic format could as well be of use, in reproducing passages of former judgements, which the judge could deem applicable to the case he/she is dealing with. Lawyers could be invited to provide an electronic version of their acts, so that relevant passages of their remarks could be used for the reasoning of the judge, when he/she thinks this could be useful. The same is true for protocol of hearings with evidence (witnesses’ depositions, experts’ remarks, etc.).

In this framework a mention should be made also to the effort of reaching a sort of “standardisation” of the most common kinds of interim and provisional decisions. On this topic a working group is active in my Court and will report next month of May in Turin. Let me just add that a uniformisation and a standardisation of (at least) less relevant decisions fits with the European example. Actually a whole array of legal decisions in matters such as taking of evidence in foreign countries, European order for payment procedure, recognition and enforcement of judgments, etc., are taken (and have to be taken!) making use of forms available on the Internet, which are joined as an annex to different EU regulations.

A mention of this kind could as well be inserted in “Saturn Guidelines,” which apparently do not contain provisions of this kind.

5 HOW TO USE THE FINDINGS

5.1 Alternatives

Implementation reports can be used for different purposes. They might be used to better the implementation of SATURN guidelines and other SATURN tools and to improve the understanding of factors that hamper the adoption of them. They might also be used to improve the guidelines themselves. However, the main goal with the test program now is to examine the methodology suggested in the Methodology report to find out if it might be employed on a larger scale by courts and judicial administrations in the member states.

Although the substantive findings of the test program on how the SATURN guidelines function in the six jurisdictions are not the main aim of the testing, the viability of the methodology depends on the insights it produces. It is therefore worthwhile to sum up some general experiences as examples of what the methodology might produce. I focus on some of the findings from step four and the three implementation projects and show how they might be interpreted. I also will exemplify how the findings reveal lacks in the SATURN guidelines and might be used to amend them. Some issues about the methodology are discussed at the end.

5.2 Awareness of SATURN guidelines

Unsurprisingly the test program shows that an efficient implementation of the SATRURN guidelines presupposes that courts and national court administrations:

- learn about the SATURN guidelines – a goal that is far from fulfilment today;

- thoroughly check them against the existing national time management rules and practices;

- have access to sufficient IT resources and enough working capacity available for changing existing practices.

The courts in the test program are all pilot courts and should have received all SATURN time management tools. They also have access to them at the CEPEJ website. Findings still suggest that awareness of the SATURN guidelines varies both between courts and jurisdictions. At present the guidelines are available in English and French only which are the Council of Europe's two official languages. Since the language used in the courts usually is the national language, most face translation challenges.

The Czech report points to the language barrier as a major obstacle and reports a decision to translate all important CEPEJ documents and publish them in a magazine widely read by Czech judges with the purpose of creating "some kind of promotion for the CEPEJ and its ideas". (Czech Report p 3)22

Some jurisdictions have independently established routines that are similar to the SATURN guidelines from considerations on the national level, which seem to be the case for the Swiss and Norwegian courts. In the Italian court, however, the SATURN guidelines are reported as influential.

It seems like a viable assumption that the conscious use of SATURN tools is limited in most jurisdictions just because awareness of them is lacking. The Norwegian court told that it had its attention focused on the national principles and guidelines for time management and did not use the SATURN guidelines in its daily practice. It should be said that the court was new as a pilot court and had not participated in the previous CEPEJ meetings of the pilot courts. (Norwegian Report p 9)

It is also reason to believe that awareness is far poorer for courts that are not pilot courts. Their attention to the SATURN tools mainly will depend on the information measures carried out by national judicial authorities like the ministries of justice and national court administrations and by the pilot courts themselves as we see in the Czech Republic.

It is a finding, however, that the implementation testing we have carried out also is an effective method for making a court aware of the SATURN guidelines and inspire it to check how far they are implemented. In Norway the court reported that the dialogue with the SATURN expert was very helpful in meeting the expectation from CEPEJ and understanding the tasks of a pilot court. The separate discussion of each guideline with some deepening of the ideas behind was extremely useful. (Norwegian report p 9)

From section four we might note that the Italian guidelines with almost no exception are more detailed and concrete than the SATURN version. It might well be read as an example of how the SATURN guidelines can be specified within a given jurisdiction to become operational there. The study also exemplifies how general knowledge that can be gathered from implementation studies is useful to the court itself, other courts within the jurisdiction, the national court administration and also to other jurisdictions struggling with similar problems.

    5.3 Courts’ willingness to implement

Although the testing show that some of the courts seemed unfamiliar with the SATURN guidelines, it is not reported that the courts had problems in understanding them. The impression is reinforced by the answers on the CEPEJ 2009 questionnaire on the readability of the guidelines. All 19 courts that replied to the questionnaire said that all chapters were understandable. None of the special comments related to the readability, but to other aspects of the guidelines. (CEPEJ-SATURN(2009)423

In Georgia and Norway strict statutory limits make G 2 and G 14 superfluous. The two guidelines emphasise party participation in setting the time table for the proceedings and the limits make such agreements superfluous. The main challenge for courts is to plan the case according to the deadlines set in the law. When done, the risk of delay is eliminated in practice. Such practices seem like sensible alternatives to the SATURN guidelines. Except that, no test project has reported that the pilot courts thought the Fifteen list lacked relevance when the guidelines were presented and explained. Generally the courts seemed to perceive them as viable professional tools for time management.

Since all pilot courts except for one identified one or more guideline not fully implemented and also had the autonomy to improve implementation for most of them, it is a bit astonishing that only three implementation projects became recorded. Only the Czech one came by due to the implementation testing and was initiated by the pilot court itself. In Georgia the implementation project was caused from new, legislation with stricter limits for producing judgements than practiced by the court and the Italian project had been running for ten years.

The Swiss court thought the Fifteen list sufficiently implemented. Neither did the Norwegian report uncover any serious deviations, nor did the expert press for any implementation project due to time restrictions. However, England 1 labels the deficits in the local computer system as „unfortunate“ and a change as „highly desirable“. England 2 reports the use of percentage targets of around 70 percent for Guideline VA2. It appears from the report that 100 percent – or no deviation – is desirable but not achievable at the moment. The Italian court also identifies weaknesses in the implementation of several guidelines, but already has an extensive implementation project in place due to the Strasbourg programme. The court did not see any space for additional implementation projects.

It seems that factors as huge workloads and lack of resources significantly limit interest in implementation projects. Even the Czech project was somewhat hampered by the Court President’s crowded schedule. All of the English public sector has recently experienced deep (and unparalleled) cuts that also comprehend allocations to the judicial system. According to the reporter cuts impact on the courts‘ willingness to implement reforms. Insufficient administrative capacity is reported a problem in the Czech Republic, Georgia and Italy. Italy also reports that the introduction of new IT tools sometime is accompanied with an increase in the administrative tasks allocated to the judges. Such problems also limit the space and interest in innovative practises. It might happen that some of the best courts on time management are more interested in the screening steps as a documentation of their standard than carrying out implementation projects for further improvements. Also the less challenging guidelines might be chosen for implementation before the more demanding ones.

The Czech report also describes the climate for reforms as not favourable:

“But in the situation where the new government has - because of the Crises - diminished the salaries of judges (who can not have other income, apart some exceptions, at all) and money for the courts´ spending, there is a very difficult atmosphere to present new projects which mean some new work for judges or the representatives of the courts. There has to be understood that the situation of judges and justice in Czech republic is much different then that of Norway, Sweden or in Switzerland.“

It is therefore not obvious that a SATURN guideline will be implemented by a court although it is free to do so and time management clearly will improve. Implementation also depends on factors like the court’s working situation, resources, reform orientation and general perceptions of appreciation from the national judicial authorities. External stimuli and pressures are important to better implementation of time management tools -- also for guidelines implementable within the court’s autonomy. The Norwegian court wanted to attract attention by being among the best courts when it came to time management, in Georgia new, stricter legislation made the pilot court change its priorities and improve the implementation of the guidelines.

National policy makers and court administrations have a crucial role to play in creating a favourable climate for reform. SATURN’s capacity for creating such a climate on its own is obviously limited.

5.4 Measurement of "within reasonable time"

Guideline 4 is of special importance for preventing violations of the "within reasonable time" criterion in ECHR article 6(1). Complaints concerning such violations constitute a major share of the case load of the European Court of Human Rights and are considered a major factor behind the huge backlogs at the court. G 4 reads:

IIIC2: “Particular attention should be given to the cases where integral duration is such that it may give rise to the finding of the violation of the human right to a trial within reasonable time. "

To what extent does the implementation test program reveal problems in the use of this guideline? The courts in the Czech Republic and Italy did not include G 4 in their testing, while the other five did, see table 3. Only the Norwegian court reports incomplete implementation in of G 4. The court did not monitor the time use at police and prosecution in criminal cases. According to the practice of the European Court of Human Rights the “reasonable time” measurement starts when the investigation focuses on an identified suspect -- when a person is substantially affected by the investigation.24 The court had little information about the time use before the cases arrived at the court and therefore had no incentive to speed up the handling if time use at the investigative stage had been excessively long. (Norwegian Report p 5)

The Norwegian example illustrates challenges when the norms for time reasonable time use presuppose that the handling time at different instances should be added. In criminal cases the "within reasonable time standard" applies on the total time use at the pre trial and trial stage. Similarly, if the case is appealed, the total time use at the first instance and the appeal courts must be added.

It seems that all seven courts in the implementation tests only counted time use when they had responsibility for the cases. Measurement starts when the cases arrive at the court and stop when they are finalized or sent off to another instance. For the criminal cases and also for appeal courts in civil cases (Georgia), such measurements appear incomplete and ways of controlling the combined time use ought to be developed.25 Also G 4 ought to be adjusted and clearly express the necessity of using measuring methods that cover all time use that are relevant to the "within reasonable time" criterion.

5.5 Examples of recommendations

As indicated in 5.1 both the test reports and this synthesizing analysis might be used to develop general recommendations for better implementation of the guidelines. Examples:

Recommendation 1: The time management guidelines of SATURN must be translated and made available to all courts, judicial administrations, ministries of justice, local and national bar associations, public prosecutors and crime units in the police, victims’ organizations and other user organizations and enforcement agencies in all member states. All actors should be encouraged to implement them as far as possible.

Recommendation 2: All national court administrations should do comparative analyses of the SATURN guidelines and the time management tools used by the courts in their jurisdictions, identify SATURN guidelines that are not well implemented and develop efficient strategies on how to implement them.

Recommendation 3: States should implement G IC3 by establishing national, uniform IT systems at the courts that allow for monitoring of all time use and deadlines relevant for the implementation of the SATURN guidelines. Preferably the systems should be uniform in some respects also on the European level, making it possible for European instances like CEPEJ to compare time use all over Europe.

Recommendation 4: Framework agreements with the Bar organisations on time use and deadlines should be made in all jurisdictions where modification of the lawyers’ conduct is important to putting up proper calendars for each case. SATURN should amend its guidelines part I E accordingly.

Recommendation 5: National court administrations and bar organizations should analyse whether the existing fee structure of lawyers is in line with efficient time use or are in need of revision. For example, they should not allow for payment per document or hearing so that the more documents and adjournments in a case, the more the lawyer earns. Necessary adjustments should be made so that swift handling by the lawyers is rewarded.

Recommendation 6: Time management issues ought to become part of law school training and/or training of judges. Practice at the courts should be part of the training.

Recommendation 7: The reasoning of judgements should be concise in form and limited to the essential issues. The purpose should be to explaining the decision. Only questions relevant for the decision of the case should be taken into account.

Recommendation 8: Standard electronic templates for judicial decision making should be developed and employed by the courts, national court administrations and at the European level. More use should be made of summary proceedings.

Since the implementation of the SATURN tools vary between the member states, the importance of such recommendations also will vary. Implementation projects will tell how pressing the realization of each recommendation is in the different jurisdictions.

Implementation testing might also be used to improve SATURN time management tools. Some examples:

Recommendation 9: SATURN should analyse the use of strict statutory deadlines for time use in the courts as an alternative or addition to party agreements on case progress, develop model provisions for incorporation in national legislation on civil and criminal procedure and recommend them to the member states for implementation.

Recommendation 10: The SATURN guidelines should advise on the use of standard electronic templates for judicial decision making at the courts, and propose ways of developing such templates for national court administrations and also at the European level.

Recommendation 11: Guideline IIIC2 on integral duration should be revised and clearly express when measuring the combined duration at the pre trial, first instance and appellate stages should be measured to avoid violations of the human right to trial within reasonable time.

Recommendation 12: Part IE in the guidelines should advise on framework agreements with the Bar organisations on time use and deadlines in all jurisdictions where the lawyers' attitudes are important to putting up proper calendars for the cases.

5.6 Methodology

An important consideration behind the design of the Methodology report was to discuss different methods of implementation testing and to argue in general the usefulness of doing implementation projects. Such concerns made the description of the method less definite and also less focused on the practical issues. We can read the result from the diversity of approaches in the test program both to the process of selecting guidelines for implementation and to the reporting. Although diversity often produces a broader picture, it also makes comparison more difficult. For future projects he methodology might be simplified and shaped more like a manual with emphasis on the practical issues.

In principle almost all courts in all member states ought to examine their present time measurement practices and start implementing SATURN guidelines that are not yet in place. Additionally, the time management tools selected for the test program only constitute a share of all the tools produced by CEPEJ. Several of them have other target groups than the courts. They might aim at court users and professional actors in the courts as the lawyers or the police and prosecution, national court administrations, ministries of justice, politicians in the field of justice and at the public at large. As suggested in the Methodology report, implementation projects might be set up also for those addressees.

If implementation projects are established on a larger scale, resources become a challenge. As SATURN experts we obviously cannot do more extensive testing than we already have done, and our six projects only relate to twelve percent of the member states. More implementation projects presuppose more involvement from the member states. They ought to set up task forces that can do the necessary testing and reporting according to the national circumstances and tradition. If the ambition of developing SATURN into a European observatory shall be fulfilled, states also ought to report about their projects and CEPEJ will need more analytical capacity.

More implementation testing raises further methodological issues. An extensive implementation program will be facilitated if the courts in each jurisdiction – after some initial projects -- receive a “do-it-yourself kit” or handbook that they can use on their own and report back to the national task force. The experiences with England 2 might be helpful in developing the necessary tools. Implementation testing with other judicial authorities than the courts also means new methodology challenges.

Reporting in the test program varies a lot and ought to become better structured. As described in section 2.5 some test reports are short and to the point while others are richer on detail and reflections. Especially the implementation report on of the “Strasbourg programme” included in section 4 contains a rich collection of both of challenges, reflections and practical methods for combating unreasonable delay. At the test stage broad reporting with details and reflections are important. If several projects are carried out in each jurisdiction’ a shorter format might be preferable.

5.7 Conclusions

If we look at the goals of the test projects described at the start of the report, the results can be summed up as follows:

The test program has uncovered a concrete potential for better implementation of several guidelines and have shown the method's effectiveness as an instrument for detecting insufficient time management practices and produced insights in the factors that hamper their implementation. Findings can be used for producing general recommendations to courts, national court administrations and ministries of justice on how to improve their time management systems from how the existing system actually works. They also are useful in improving the SATURN guidelines.

Although the program did not result in many implementation projects, the results show that the method can provide findings of significant importance to the work of SATURN. The testing carried out will improve the time management at the Czech court, and the improvements hopefully will spread to other Czech courts.

Further implementation projects will multiply the gains. We believe that similar projects in other jurisdictions that experience severe delay problems will produce comparable results and that more projects ought to be induced in the member states. They should not be limited to pilot courts. Any court that is willing to do implementation projects ought to be encouraged.

1 CEPEJ (2010)9

2 CEPEJ(2009)4

3 Labelled "the SATURN toolbox" in this document.

4 Also labeled “coaching exercises” in the discussions.

5 CEPEJ-SATURN (2009)6 Appendix III

6 Authored by Jon T. Johnsen, expert member of SATURN

7 The test report from the Norwegian pilot court CEPEJ (2010) 3 part 3 p 3-8 exemplifies the selection method under step three.

8 Jon T. Johnsen Pilot test of a protocol for the implementation of CEPEJ SATURN tools. CEPEJ-SATURN 2010(3).

9 The guideline refers both to the courts and other judicial authorities. I have highlighted the part of the guideline that I suppose pilot courts to be able to implement independently.

10 See CEPEJ Studies No. 3: “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”.

11 The duty to pay special attention to the periods of inactivity that can be attributed to the courts and other state authorities also arises out of the case-law of the European Court of Human Rights in relation to Art. 6 of the European Human Rights Convention.

12 Time management Checklist (CEPEJ (2005)12Rev).

13 For instance on the court's web site.

14 The guideline refers both to the courts and other judicial authorities. I have highlighted the part of the guideline that I suppose pilot courts to be able to implement independently.

15 I A, I C 3, I D, II A-D, III A-B, V C

16 IB2, IC3, IIID1-2, VA1-2

17 IB1-4, IC3, IIID1-2, VA1-2

18 Comments on all guidelines under I General principles and guidelines and V Guidelines for judges. Some are joint comments.

19 The second one is included in section 4.

20 E-mail from the court of April 29.2011.

21 Dated February 2011

22 The guidelines have now become available in Czech. (Information from the Czech expert in SATURN Ms Jana WURSTOWA 19.05.2011).

23 Steering group of the SATURN Centre for judicial time management (CEPEJ-SATURN) Questionnaire 2009 SATURN. Evaluation of the CEPEJ guidelines for judicial time management.

24 See CEPEJ Studies No. 3: “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”. (Calvez report)

25 Marco Velicogna (IRSIG-CNR) ”Study on Council of Europe Member States Appeal and Supreme Courts’ Lengths of Proceedings” (CEPEJ-SATURN(2011)3 now provides important information on the combined time use at the first instance and appellate level in European jurisdictions.



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