2002cm88






    |

    Ministers’ Deputies
    CM Documents

    CM(2002)88 11 June 2002

    ——————————————

    804 Meeting, 11 July 2002
    10 Legal questions


    10.2 European Committee on legal co-operation (CDCJ) -

    c.
    Draft Resolution Res (2002)… authorising the setting up of the enlarged partial agreement establishing the European Commission for the Efficiency of Justice (CEPEJ)
    d. Draft Resolution Res (2002)… establishing the European Commission for the Efficiency of Justice (CEPEJ)
    ——————————————

    c. Resolution Res (2002)…

    authorising the setting up of an enlarged partial agreement establishing the European Commission for the Efficiency of Justice (CEPEJ)

    (adopted by the Committee of Ministers on….. 2002,
    at the…meeting of the Ministers’ Deputies)

    The Committee of Ministers of the Council of Europe,

    In the light of Statutory Resolution (93) 28 on partial and enlarged agreements, as well as of Resolution (96) 36 establishing the criteria for partial and enlarged agreements of the Council of Europe,

    Takes note of the draft resolution establishing the European Commission for the efficiency of justice (CEPEJ), approved by the European Committee on Legal Co-operation (CDCJ) on 31 May 2002 in co-operation with the European Committee on Crime Problems (CDPC), as it appears in document CM(2002)88;

    Authorises the adoption of the resolution establishing the CEPEJ in the form of an enlarged partial agreement;

    Invites member states to notify to the Secretary General their intention to participate in the adoption of the agreement establishing the CEPEJ, it being understood that this agreement will be considered as having been adopted on the first day following the date on which the Secretary General receives the fifteenth notification from a member state of its wish to participate in it;

    Invites non-member states having participated in the elaboration of the agreement establishing the CEPEJ, to notify to the Secretary General their wish to participate in it;

    Expresses the wish that the member states of the Council of Europe, non-member states having participated in the elaboration of the agreement establishing the CEPEJ, as well as the European Community, will participate in the agreement establishing the CEPEJ in the near future;

    Agrees that the CEPEJ is established for an initial period of three years; and

    Agrees to review the functioning of the CEPEJ by the end of the initial period of three years.

    d. Resolution Res (2002)…

    establishing the European Commission for the Efficiency of Justice (CEPEJ)

    (adopted on ……2002)

    The representatives on the Committee of Ministers of ………………….

    Recognising that the rule of law on which European democracies rest cannot be ensured without fair, efficient and accessible judicial systems;

    Acknowledging also that the rule of law principle can be a reality only if citizens can uphold their legal rights and challenge unlawful acts;

    Underlining the need to improve inter-state co-operation by, inter alia, analysing the results achieved by the different judicial systems, facilitating the implementation of the international legal instruments concerning efficiency and fairness of justice and defining concrete means to improve the functioning of the judicial systems in Europe;

    Stressing the need for enhanced communication amongst all those principally concerned with the functioning of justice;

    Conscious of the need to make full use of all appropriate information and communication technologies to facilitate access to justice, improve the efficiency and the functioning of the judicial system, reduce the costs of justice and extend the service available to the public;

    Bearing in mind the requirements of the European Convention on Human Rights, and in particular its Articles 5, 6, 13 and 14, as well as the relevant provisions of its protocols, the case law of the European Court of Human Rights and the relevant international legal instruments drawn up within the Council of Europe in the area of the efficiency and fairness of justice and the necessity of their proper implementation;

    Having regard also to the decisions of the Committee of Ministers concerning the monitoring procedure regarding questions relating to the functioning of the judicial system;

    Having regard to the resolutions of the 20th, 22nd, 23rd and 24th Conferences of European Ministers of Justice (Budapest 1996, Chişinău 1999, London 2000, and Moscow 2001 respectively);

    Having regard to the report on cost-effective measures taken by states to increase the efficiency of justice, prepared by the European Committee on Legal Co-operation (CDCJ) in consultation with the European Committee on Crime Problems (CDPC);

    Recalling the results achieved during the multilateral and bilateral legal co-operation activities carried out by the Council of Europe and its member states and convinced of the need for these results to be properly followed up through concrete legislative or other proposals aiming at improving the functioning of the judicial system;

    Taking into account the work carried out by the various bodies of the Council of Europe in the field of the protection and promotion of human rights and the rule of law as regards the proper and efficient functioning of justice, in particular the work of the CDCJ, the CDPC, the Steering Committee on Human Rights (CDDH) and the Consultative Council of European Judges (CCJE);

    Taking into account in particular the following principles:

    I. Access to justice and proper and efficient functioning of courts

    1. Access to justice

    i. Access to justice shall be guaranteed in all cases concerning the determination of civil rights and obligations or of any criminal charges; legal advice and assistance shall be available when the interests of justice so require.

    ii. To this end, the provisions contained in the relevant Council of Europe international legal instruments referred in Appendix II should, inter alia, be taken into account.

    2. Efficiency of judicial proceedings

    i. All necessary measures shall be taken to comply with Article 6 of the European Convention on Human Rights by affording judicial proceedings within a reasonable time, whilst complying with the other guarantees of a fair trial. Consistent with that, steps should be taken to avoid undue delays in judicial proceedings and to reduce their cost.

    ii. Efficiency of justice shall be guaranteed and, in order to do so, the provisions contained in the relevant Council of Europe international legal instruments referred to in Appendix II should, inter alia, be taken into account.

    iii. Provisional, protective or any other urgent measures obtained by simple and rapid procedures should be available in order to provide interim solutions, which, although not final, ensure the effective protection of the rights of the parties or of third persons, as well as the efficiency of judicial proceedings.

    3. Execution of court decisions

    i. All judicial decisions shall be executed in an effective manner and within a reasonable time-limit.

    ii. Bailiffs, where they exist, or any other execution agents, shall carry out their work according to the law, fairly, impartially, efficiently and transparently.

    II. The status and role of the legal professionals

    1. Judges

    i. All necessary measures shall be taken to respect, protect and promote the independence and impartiality of judges and, at the same time, to ensure their efficiency and competence.

    ii. To this end, the provisions contained in the relevant Recommendation referred to in Appendix II should, inter alia, be taken into account.

    2. Public prosecutors

    i. All necessary measures shall be taken to protect and promote the status and role of public prosecutors and, at the same time, to ensure their efficiency and competence, in order to enable them to perform their professional duties and responsibilities without unjustified interference.

    ii. To this end, the provisions contained in the relevant Recommendation referred to in Appendix II should, inter alia, be taken into account.

    3. Lawyers

    i. All necessary measures shall be taken to allow the freedom of exercise of the profession of lawyer and, at the same time, to ensure lawyers’ competence and responsible conduct in judicial proceedings.

    ii. To this end, the provisions contained in the relevant Recommendation referred to in Appendix II should, inter alia, be taken into account.

    4. Training

    i. Initial and on-going training is a right and a duty of all those involved in the judicial service and is an essential requirement for justice to fulfil its functions.

    ii. Initial and on-going training of legal professionals shall be guaranteed, in particular by taking into account the relevant Council of Europe international legal instruments referred to in Appendix II.

    III. Administration of justice and management of courts

    i. The proper administration of justice and the effective management of courts is an essential condition for the proper functioning of the judicial system and requires, amongst others, adequate budgetary appropriations. Consideration should be given in this respect to the report on cost-effective measures taken by states to increase the efficiency of justice presented by the CDCJ and the CDPC to the 23rd Conference of European Ministers of Justice (London, 2000).

    ii. In order to improve the administration of justice and the management of courts, the provisions contained in the relevant Council of Europe international legal instruments referred to in Appendix II should, inter alia, be taken into account.

    IV. Use of information and communication technologies

    i. The use of information and communication technologies shall be promoted in order to strengthen the efficiency of justice, in particular in order to facilitate access to justice, speed up court proceedings, improve the training of legal professionals, as well as the administration of justice and management of courts.

    ii. To this end, the provisions contained in the relevant Council of Europe international legal instruments referred in Appendix II should, inter alia, be taken into account.

    Having regard to Resolution (2002)….. adopted by the Committee of Ministers on …..2002, on the occasion of its …… Session at ministerial level, authorising the adoption of the present agreement;

    Hereby,

    Resolve to establish the European Commission for the Efficiency of Justice (CEPEJ) by means of this enlarged partial agreement, governed by the statute contained in Appendix I hereto. The CEPEJ will work in close co-operation and co-ordination with the CDCJ;

    Express the wish that the member states of the Council of Europe, non-member states having participated in the elaboration of the agreement establishing the CEPEJ, as well as the European Community, become members of the CEPEJ in the near future.

    Appendix I

    Draft Statute of the European Commission for the Efficiency of Justice (CEPEJ)

    Article 1 - Aims

    The aim of the European Commission for the Efficiency of Justice (hereinafter referred to as “the CEPEJ”) is (a) to improve the efficiency and the functioning of the justice system of participating states, with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) to enable a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice.

    Article 2 – Functions

    1. Without prejudice to the competence of other bodies of the Council of Europe and taking into account the work they have already carried out on the subject, the CEPEJ shall encourage and enable participating States to co-operate with each other and with participating international institutions concerning specific themes. It has the task:

    a. to examine the results achieved by the different judicial systems in the light of the principles referred to in the preamble to this resolution by using, amongst other things, common statistical criteria and means of evaluation;

    b. to define problems and areas for possible improvements and to exchange views on the functioning of the judicial systems;

    c. to identify concrete ways to improve the measuring and functioning of the judicial systems of its members, having regard to their specific needs;

    d. to provide assistance to one or more members, at their request, including assistance in complying with the standards of the Council of Europe;

    e. to suggest, if appropriate, areas in which the relevant steering committees of the Council of Europe, in particular the European Committee on Legal Co-operation (CDCJ), may, if they consider it necessary, draft new international legal instruments or amendments to existing ones, for adoption by the Committee of Ministers.

    2. The CEPEJ is not a supervisory or monitoring body.

    Article 3 – Working methods

    The CEPEJ shall fulfil its tasks by:

    a. identifying and developing indicators, collecting and analysing quantitative and qualitative data, and defining measures and means of evaluation;

    b. drawing up reports, statistics, best practice surveys, guidelines, action plans, opinions and general comments;

    c. establishing links with research institutes and documentation and study centres;

    d. inviting to participate in its work, on a case-by-case basis, any qualified person, specialist or non-governmental organisation active in its field of competence and capable of helping it in the fulfilment of its objectives, and holding hearings;

    e. creating networks of professionals involved in the justice area.

    Article 4 – Procedure

    1. The CEPEJ may carry out the functions referred to in Article 2, paragraph 1, sub-paragraphs a, b, c and e on its own initiative.

    2. The CEPEJ may carry out the functions referred to in Article 2, paragraph 1, sub-paragraph d, at the request of one or more members.

    3. The CEPEJ shall supply opinions upon request, submitted through the statutory committee referred to in Article 11 below, by the Parliamentary Assembly of the Council of Europe, the European Court of Human Rights, the appropriate Committees of the Council of Europe, in particular the European Committee on Legal Co-operation (CDCJ), the European Committee on Crime Problems (CDPC), the Steering Committee on Human Rights (CDDH) and the Consultative Council of European Judges (CCJE) and the Secretary General.

    4. Steering committees of the Council of Europe, in particular the CDCJ, the CDPC and the CDDH, may, through and with the consent of the statutory committee referred to in Article 11 below, request the CEPEJ to prepare specific action plans, best practice surveys or guidelines.

    5. Any non-member state of the CEPEJ, as well as any international institution, may benefit from the activities of the CEPEJ by making a request to the statutory committee, with a view to obtaining its consent.

    Article 5 – Procedure to enable States to join the CEPEJ

    1. Any member state of the Council of Europe, other than those mentioned in Resolution Res (2002)… establishing the CEPEJ, may join the CEPEJ at any time by a declaration addressed to the Secretary General of the Council of Europe.

    2. Any non-member state having participated in the elaboration of this enlarged partial agreement may join the CEPEJ at any time, by a declaration addressed to the Secretary General of the Council of Europe.

    3. The Committee of Ministers, in its composition restricted to the members of the enlarged partial agreement, following consultation with the non-member states already participating, may invite non-member states, other than those covered by paragraph 2 above to join the CEPEJ. The non-member state which has accepted such an invitation shall notify the Secretary General of its intention to join the CEPEJ.

    Article 6 – Procedure to enable the European Community to join the CEPEJ

    The European Community may join the CEPEJ. The modalities of its membership shall be determined in agreement with the Committee of Ministers.

    Article 7 – Composition of the CEPEJ
    1. The CEPEJ is composed of experts who are best able to contribute to its aims and functions, and who have in particular an in-depth knowledge of the administration, functioning and efficiency of civil, criminal and/or administrative justice.
    2. Each member of the enlarged partial agreement appoints an expert to the CEPEJ. The travel and subsistence expenses of this expert, as well as of the president of the CEPEJ, are covered by the budget of the enlarged partial agreement. Each member of the enlarged partial agreement may appoint additional experts at its own expense.
    3. The presidents of the Parliamentary Assembly and of the European Court of Human Rights, as well as the chairs of the relevant steering committees of the Council of Europe, in particular the CDCJ, or their representatives may participate in the work of the CEPEJ.
    Article 8 – Observers and participation of the European Community

    1. Any non-member State of the CEPEJ may become an observer to the CEPEJ for its initial period of three years.

    2. The participation of the European Community in the CEPEJ as a non-member shall be governed by the arrangement between the Council of Europe and the European Community concluded on 15 June 1987, as amended by the exchange of letters between the Secretary General of the Council of Europe and the President of the European Commission of 5 November 1996.

    3. States with Observer status with the Council of Europe may become observers to the CEPEJ at the invitation of the Committee of Ministers.

    4. Any other international institution may, subject to the consent of the statutory committee, become an observer to the CEPEJ.

    5. The modalities by which observers may participate in the work of the CEPEJ shall be determined by the latter, in accordance with this statute, in its rules of procedure.

    Article 9 – Operation of the CEPEJ

    1. The CEPEJ draws up its own rules of procedure. Any state or the European Community, when becoming a member of the CEPEJ, are deemed to have accepted the statute and the rules of procedures.

    2. The CEPEJ’s seat shall be in Strasbourg.

    3. The CEPEJ:

    a. holds at least one plenary meeting a year;

    b. may decide to set up working parties and to organise ad hoc meetings, whenever necessary; and

    c. decides on the publicity to be given to its activities, taking into account in particular the possibilities offered by new information technologies.
    .
    4. The CEPEJ is assisted by a secretariat provided by the Secretary General of the Council of Europe.

    5. Members of the CEPEJ shall have the right to vote. Each of them shall be entitled to cast one vote. However, unless otherwise decided by the statutory committee, a member which has failed to pay, within a period of one year from the date when the payment became due, all or a substantial part of its compulsory contribution to the budget of the partial agreement for a period of one year, shall no longer take part in the decision-making process.

    6. Procedural decisions shall be taken by a majority of the votes cast. All other decisions of the CEPEJ shall be taken when two-thirds of the votes are cast and represent the majority of the members of the CEPEJ entitled to vote.

    7. The CEPEJ shall approve its draft annual programme of activities and submit, in conformity with the Financial Regulations of the Council of Europe, proposals to the Secretary General of the Council of Europe relating to the elaboration of the draft annual budget. In the light of these proposals, the Secretary General will then prepare the final budget proposals for submission to the statutory committee.

    8. The CEPEJ shall approve its annual activity report, including its annual accounts, prior to its submission to the statutory committee and to the Committee of Ministers.

    9. The CEPEJ shall publish every year its annual activity report, including its annual accounts, once approved by the relevant bodies pursuant to Article 11 below.

    Article 10 - The CEPEJ financial resources

    1. The budget of the CEPEJ is financed through the annual compulsory contributions of its members.

    2. The CEPEJ may receive additional voluntary contributions from its members.

    3. The CEPEJ may also receive other voluntary contributions from interested institutions.
    4. The CEPEJ assets are acquired and held on behalf of the Council of Europe and benefit as such from the privileges and immunities applicable to the Council of Europe’s assets under existing agreements.
    5. The Financial Regulations of the Council of Europe shall apply, mutatis mutandis, to the adoption and management of the budget of the Enlarged Partial Agreement.

    Article 11 - Statutory committee

    1. The CEPEJ shall have a statutory committee, composed of the representatives on the Committee of Ministers of the member states of the Council of Europe which are also members of the CEPEJ and of representatives specifically designated to that effect by the other members of the CEPEJ.

    2. The statutory committee shall determine every year the members' compulsory contributions to the CEPEJ. The scale according to which the contributions of non-members of the Council of Europe are calculated shall be decided in agreement with the latter; as a general rule, that scale shall conform to the criteria for the determination of the scale of contributions to the general budget of the Council of Europe.

    3. The statutory committee shall adopt every year the CEPEJ’s budget on expenditure relating to the implementation of the programme of activities and common secretariat expenditure.

    4. The statutory committee shall approve every year the CEPEJ’s annual accounts which shall be drawn up by the Secretary General of the Council of Europe in accordance with the Financial Regulations of the Council of Europe and submitted to the statutory committee accompanied by the report of the board of auditors. In order to discharge the Secretary General from responsibility for the management of the financial year in question, the statutory committee shall transmit to the Committee of Ministers the annual accounts, together with its approval or any comments, and the report drawn up by the board of auditors.

    5. The Statutory Committee shall carry out also the functions referred to in Articles 4, 8, 9, 12 and 13.

    Article 12 - Amendments

    1. The statutory committee may adopt amendments to this statute, to Appendix II and to the principles contained in the preamble to this resolution, by the majority foreseen at Article 20.d of the Statute of the Council of Europe, after consulting the CEPEJ.

    2. The CEPEJ may propose amendments to this statute, to Appendix II and to the principles contained in the preamble to this resolution, to the statutory committee, which decides by the above-mentioned majority.

    Article 13 - Withdrawal

    1. Any member may withdraw from the CEPEJ by means of a declaration addressed to the Secretary General of the Council of Europe.

    2. The Secretary General shall acknowledge receipt of the declaration and inform the member concerned that it will be submitted to the Statutory Committee.

    3. By analogy with Article 7 of the Statute of the Council of Europe, the withdrawal shall take effect:

    - at the end of the financial year in which it is notified, if the notification is given during the first nine months of that financial year;

    - at the end of the next financial year, if the notification is given in the last three months of the financial year.

    4. In accordance with Article 18 of the Financial Regulations of the Council of Europe, the statutory committee shall examine the financial consequences of the withdrawal and make the appropriate arrangements.

    5. The Secretary General shall immediately inform the member concerned of the consequences for it of its withdrawal and keep the statutory committee informed of the outcome.

    Appendix II

    Non-exhaustive list of relevant Council of Europe recommendations 1

    · Access to justice and proper and efficient functioning of courts

    - Access to justice

    - Resolution (76) 5 on legal aid in civil, commercial and administrative matters;
    - Resolution (78) 8 on legal aid and advice;
    - Recommendation No. R (81) 7 on measures facilitating access to justice;
    - Recommendation No. R (93)1 on effective access to the law and to justice for the very poor,
    - Recommendation No. R (98) 1 on family mediation;
    - Recommendation No. R (99) 19 concerning mediation in penal matters;
    - Recommendation Rec (2001)9 on alternatives to litigation between administrative authorities and private parties.

    - Efficiency of judicial proceedings

    - Recommendation No. R (84) 5 on the principles of civil procedure designed to improve the functioning of justice;
    - Recommendation No. R(86)12 concerning measures to prevent and reduce the excessive workload of courts;
    - Recommendation No. R (87) 8 concerning the simplification of criminal justice;
    - Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases.

    · The status and role of the legal professionals

    - Judges

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

    - Public prosecutors

    - Recommendation Rec (2000)19 on the role of public prosecution in the criminal justice system

    - Lawyers

    - Recommendation Rec(2000)21 on the freedom of exercise of the profession of lawyer

    - Training

    - Recommendation No. R (94) 12 on the independence, efficiency and role of judges;
    - Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system;
    - Recommendation Rec(2000)21 on the freedom of exercise of the profession of lawyer.

    · Administration of justice and management of courts

    - Recommendation No. R (87) 18 on the simplification of criminal justice;
    - Recommendation No. R (95) 12 on the management of criminal justice;
    - Recommendation Rec(2001)2 concerning the design and re-design of court systems and legal information systems in a cost effective manner;
    - Recommendation Rec(2001)3 on the delivery of court and other legal services to the citizen through the use of new technologies.

    · Use of information and communication technologies

    - Recommendation Rec(2001)2 concerning the design and re-design of court systems and legal information systems in a cost effective manner;
    - Recommendation Rec(2001)3 on the delivery of court and other legal services to the citizen through the use of new technologies.

Note 1 See www.legal.coe.int . For a list of treaties of the Council of Europe, see http://conventions.coe.int


 Top

 

  Related Documents
 
   Meetings
 
   Other documents
 
   External links