FOREWORD

1. The CCJE-GT prepared for the attention of the CCJE:

a. the draft opinion on fair trial within a reasonable time and the role of judges in proceedings, taking into account alternative means of dispute settlement (see part IV and Appendix V below);

b. the draft programme of the 2^nd European Conference of Judges (see part VI and Appendix VII below).

c. the draft questionnaire for the preparation of an opinion on “Justice and Society” (see part VIII below).

2. Delegations are invited to send the Secretariat the information specified in part II below by 10 November 2004.

Secretariat memorandum

prepared by

Directorate General I – Legal Affairs

CONTENTS

Page

Foreword........................................................................................................................ 1

I. Items submitted to the CCJE............................................................................. 4

II. Information to be sent to the Secretariat............................................................ 4

III. Introduction........................................................................................................ 5

IV. Draft opinion on fair trial within a reasonable time and the role of judges in proceedings, taking into account alternative means of dispute settlement................................................ 5

V. Case management – working session with the Italian Judicial Service Commission 6

VI. 2^nd European Conference of Judges................................................................... 8

VII. Report for the Committee of Ministers on proposals for the revision of earlier opinions of the CCJE 9

VIII. Preparation of the draft opinion on the theme “Justice and Society”.............. 10

IX. Other business

a. Hearing with the Committee of Ministers.................................................. 10

b. Co-operation with other Council of Europe bodies................................... 11

i. Relations with the Group of Specialists on Judicial Standards

(CJ-S-JU).................................................................................................... 11

ii Relations with the European Commission for the Efficiency of Justice

(CEPEJ)………………………………………….........................……..... 11

X. Dates of CCJE-GT meetings in 2005............................................................... 11

List of Appendices:

APPENDIX I List of participants (6^th and 7^th meetings)................................. 12

APPENDIX II Agenda of the 6^th meeting........................................................ 14

APPENDIX III Agenda of the 7^th meeting........................................................ 22

APPENDIX IV Revised specific terms of reference of the CCJE for 2004 - 2005

APPENDIX V Draft opinion on fair trial within a reasonable time and the role of judges in proceedings, taking into account alternative means of dispute settlement.... 25

APPENDIX VI Programme of the working session with the Italian Judicial Service Commission (12 July 2004) ........................................................................................ 57

APPENDIX VII Draft programme of the 2^nd European Conference of Judges.. 58

APPENDIX VIII Hearing granted to the Chair of the CCJE at the 880^th meeting of the Ministers Deputies of the Council of Europe – address delivered by Mr Alain LACABARATS 64

I. ITEMS SUBMITTED TO THE CCJE

1. The Consultative Council of European Judges (CCJE) is invited:

a. to adopt, subject to any amendment which it may wish to make, the draft opinion on fair trial within a reasonable time and the role of judges in proceedings, taking into account alternative means of dispute settlement (see part IV and Appendix V below);

b. to take note of the CCJE-GT’s exchange of views with members of the Italian Judicial Service Commission and Italian magistrates on case management, held during a joint working session which took place on 12 July 2004 (see part V below);

c. to take note of the adoption of the CCJE’s revised specific terms of reference for 2004-2005 by the Committee of Ministers at its 876^th meeting (17 March 2004), as reproduced in Appendix IV to this report;

d. to take note of the Proceedings of the 1^st European Conference of Judges held in Strasbourg on 24 and 25 November 2003 on the theme “The early settlement of disputes and the role of judges” (see doc. CONF/JUGES (2003) PROCEEDINGS);

e. to take note of the CCJE Chair’s hearing with the Committee of Ministers, and of his talks with the European Commission for the Efficiency of Justice (CEPEJ) (see part IX below);

f. to comment on the draft programme of the 2^nd European Conference of Judges (see part VI and Appendix VII below);

g. to comment on the draft questionnaire for the preparation of the opinion on the theme “Justice and Society” (see part VIII below);

h. to give their opinion on the granting of observer status with the CCJE to the CEPEJ (see part IX below);

i. to take note of this report in its entirety.

II. INFORMATION TO BE SENT TO THE SECRETARIAT

2. Delegations are invited to send the Secretariat (by e-mail: [email protected]) the following information:

a. their comments on the draft opinion on fair trial within a reasonable time and the role of judges in proceedings, taking into account alternative means of dispute settlement. Delegations wishing to make comments are invited to send them, if possible, by 10 November 2004 (see part IV and Appendix V below);

b. their comments on the draft programme of the 2^nd European Conference of Judges on the theme “Justice and the media”. Delegations wishing to make comments are invited to send them, if possible, by 10 November 2004 (see part VI and Appendix VII below);

c. their comments on the draft questionnaire drawn up with a view to preparing an opinion on the theme “Justice and Society”. Delegations wishing to make comments are invited to send them, if possible, by 10 November 2004 (see part VIII below);

d. national language versions of the Opinions adopted by the CCJE. Delegations of States not having French or English as their official languages are invited to send the versions of these Opinions translated into national languages, if possible by 10 November 2004. Delegations will be invited at the CCJE meeting to inform it of the measures taken to publicise the Opinions in their countries (see part VII below).

III. INTRODUCTION

3. The Working Party of the Consultative Council of European Judges (CCJE-GT) held its sixth meeting from 5 to 7 April 2004 at the Council of Europe headquarters in Strasbourg and its seventh meeting from 12 to 14 July 2004 at the headquarters of the Italian Judicial Service Commission in Rome, with Mr Raffaele SABATO (Italy) in the chair.

4. The Chair of the CCJE expressed sincere thanks, on his own behalf and on behalf of the Working Party, to the Italian Judicial Service Commission (CSM) and Mr Raffaele SABATO, member of the CCJE in respect of Italy and Chair of the CCJE-GT, for inviting the CCJE-GT to meet in Rome and for the excellent organisation of the meeting. He also thanked the Italian authorities for the invitation to attend a Judicial Service Commission working session on case management (see part V of this report).

5. The Chair of the 6^th Committee of the CSM[1], Mr Luigi BERLINGUER, said a word of welcome to the CCJE-GT delegations.

6. The participants in the two meetings are listed in Appendix I to this report.

7. The CCJE-GT examined and adopted the agendas as set out in Appendices II and III to this report.

IV. DRAFT OPINION ON FAIR TRIAL WITHIN A REASONABLE TIME AND THE ROLE OF JUDGES IN PROCEEDINGS, TAKING INTO ACCOUNT ALTERNATIVE MEANS OF DISPUTE SETTLEMENT

8. In accordance with the CCJE’s decision (see CCJE (2003) 43, part VII.a.i), the Chair of the CCJE had drawn up the preliminary observations and a questionnaire on the theme “case management, judges’ role in the proceedings, and the use of alternative dispute settlement methods” (doc. CCJE (2004) 1). Twenty-nine delegations had sent in their replies to the questionnaire (one reply was not in a Council of Europe official language).

9. On the basis of their consideration of the preliminary observations and of the questionnaire, the CCJE-GT delegations at their sixth meeting prepared the explanatory memorandum on fair trial within a reasonable time and judges’ role in the proceedings, containing indications for the specialists as to the issues which their reports should explore. The CCJE-GT considered that the opinion should focus on judges’ role in proceedings in general and on the use of alternative dispute settlement in particular (see doc. CCJE-GT (2004)2).

10. The explanatory memorandum and the replies to the questionnaire had been transmitted to the CCJE’s specialists, Mr Carlos GOMEZ, President of the Civil Chamber of the Court of Appeal of the Balearic Islands (Spain), responsible for drawing up a report from the civil law standpoint, and Mr Justice PITCHERS, Royal Court of Justice (United Kingdom), responsible for drawing up a report from the criminal law standpoint.

11. The CCJE-GT thanked its specialists for having prepared the reports on the basis of the replies to the questionnaire (see doc. CCJE-GT (2004) 4 and doc. CCJE-GT (2004) 5) and thought that the reports constituted a very sound basis for discussions.

12. The CCJE-GT decided to form a drafting group to prepare, ahead of its seventh meeting, a preliminary draft opinion based on the replies to the questionnaire submitted by the members of the CCJE, and on the reports produced by the specialists. Mr Alain LACABARATS (France), Mr Raffaele SABATO (Italy) and The Right Honourable Lord Justice MANCE (United Kingdom) were elected to the drafting group.

13. At their seventh meeting the CCJE-GT considered the preliminary draft opinion prepared by the drafting group and instructed it to make changes in the light of the discussions and the specialists’ comments.

14. The draft opinion, as revised by the drafting group, formatted by the Secretariat and approved by the CCJE-GT after consultation by e-mail, is set out in Appendix V to this report.

V. CASE MANAGEMENT – WORKING SESSION WITH THE ITALIAN JUDICIAL SERVICE COMMISSION

15. The Italian Judicial Service Commission - Consiglio Superiore della Magistratura (CSM) had signified a desire to invite the CCJE-GT to hold its meeting in Rome in order to facilitate sharing of experience between the CCJE-GT’s and its own members. It had suggested staging a debate on case management.

16. The CCJE-GT regarded this proposal to involve the CCJE directly in national debate on feasible improvements in the administration of justice as altogether consistent with the CCJE’s terms of reference which included the task of “providing practical assistance to enable States to comply with Council of Europe standards concerning judges”. The topic of the debate proposed by the CSM moreover corresponded to the subject examined by the CCJE in 2004 (see part IV above).

17. Accordingly, on 12 July 2004, coinciding with its meeting, the CCJE-GT held a half-day joint working session with the Italian magistrates and the members of the 6^th Committee of the CSM during which the situation of Italian justice with regard to case management was reviewed with the aim of registering the opinions held in the matter by the CCJE-GT delegations.

18. The Chair of the 6^th Committee, Mr Luigi BERLINGUER, and the Vice-Chair, Mr Francesco LO VOI, opened the working session which brought together some fifty persons representing the judicial and academic professions and demonstrated a significant interest on Italian authorities’ part in improving the administration of justice, as well as their readiness to undertake reforms that could increase the efficiency of the courts.

19. At the invitation of the CSM, Mr LACABARATS presented the summary application procedure in French law, and The Right Honourable Lord Justice MANCE presented active court management of cases under the Woolf reforms and according to the rules of civil procedure for England and Wales.

20. In the discussion which arose from the various presentations, and during the round table which occupied the latter half of the meeting, the participants adverted to the relevant problems of the Italian judicial system which were to blame for the delay in dealing with cases, civil-law cases especially. It was a question both of the current procedural solutions and of the attitudes taken by those administering justice, which affected day-to-day court practice. In order to remedy this state of affairs, the participants identified a number of requisite measures, in particular framing a clear and coherent management policy for courts, suitable distribution of the case-load, creation of judicial bureaux to relieve judges of the duties that could be discharged by their assistants (trainee judges), standing arrangements for the delivery of training in case management, geographical redistribution of courts, reorganisation of hearings (reasonable number of cases, realistic time limits), reduction in the number of hearings per specific case, wider use of information technologies, more frequent recourse to mediation, and State provision of the resources needed for effective administration of justice.

21. Certain questions, the Italian experts felt, remained open, as for example whether the courts’ administration should be entrusted to management specialists or rather to judges, considering that a court was not an ordinary enterprise, or whether it was advisable to adopt fiscal disincentives to appeal.

22. The CCJE-GT delegations, like the Italian participants, highly appreciated the exchange of views and saw its outcomes as a significant contribution the substance of the opinion in preparation.

23. The programme of the working session with the CSM appears in Appendix VI to this report.

24. The CCJE-GT took note of the meeting outside the working session which the CCJE Chair, Vice-Chair, former Chair and Secretary had had with the Vice-President of the CSM, Mr Virginio ROGNONI, who had expressed his great satisfaction that the CCJE-GT meeting was being held in Rome, confirmed the Italian CSM’s interest in the CCJE’s activities, and stressed the importance of the CCJE for the consolidation of independent justice in Europe.

25. It also noted that during the same conversation Mr Luigi BERLINGUER, Chair of the Italian CSM’s 6^th Committee and President of the recently created network “Rete europea dei Consigli di giustizia'' of the European Union, had expressed the wish to meet the CCJE in order to present the goals of the network and lay down the procedures for future co-operation between the two agencies. The CCJE-GT considered that the President of the network could be invited to the next meeting of the CCJE to be held from 22 to 24 November 2004 in Strasbourg.

26. The Secretariat was instructed to send the President of the network the opinions adopted by the CCJE.

VI. 2^nd EUROPEAN CONFERENCE OF JUDGES

27. The CCJE-GT considered that the experience of the 1^st European Conference of Judges held in Strasbourg on 24 and 25 November 2003 on the theme “The early settlement of disputes and the role of judges” was of proven significance both for the CCJE’s work and for the judiciary as a whole. It therefore welcomed the plan to hold a second Conference in 2005 in Poland and thought that information on the event should be widely circulated, particularly via the Internet, to give everyone interested adequate time to make the necessary arrangements to attend. It hoped that the Council of Europe would take steps to ensure the widest possible participation in the Conference proceedings.

28. The CCJE-GT stressed that the theme set for the Conference – relations between justice and the media – called for participation not only by judges but also by media representatives. It was considered advisable for the latter to be associated in the capacity of rapporteurs in order to prompt a constructive dialogue on the theme, one of vital interest to both sides, it being understood that the Conference would be open to all those professionally concerned with the subject.

29. Some CCJE-GT delegations suggested inviting a social sciences expert who would deal with the topic relating to the image of justice in society. It was further proposed to invite as rapporteurs Umberto ECO, Lord Ralf DAHRENDORF (a United Kingdom sociologist and political analyst), Simon JENKINS (The Times), Raymond DEPARDON (producer of the documentary “10^e chambre, instants d’audience”, France), Jean-Marie COULON (First Honorary President of the Paris Court of Appeal), and Professor Costa ANDRADE (Portugal).

30. During discussion of the Conference programme, the delegations emphasised that the selected theme invited debate on the necessary balance between the fundamental rights to information and privacy on the one hand and to the presumption of innocence on the other hand. In a modern-day society, judges were often exposed to criticism and attempts to influence their judgments particularly through the information disseminated by the media. The Conference should assist in determining this balance between the different interests involved, in order to secure the right to a fair hearing stipulated by the European Convention on Human Rights.

31. At their seventh meeting, the CCJE-GT delegations considered the draft programme prepared by the Secretariat according to their instructions (see doc. CCJE-GT (2004) 6). They instructed the Secretariat to amend the draft programme in the light of discussions. The revised draft programme of the 2^nd European Conference of Judges is set out in Appendix VII to this report.

32. The CCJE delegations were invited to send the Secretariat, should they so desire, their comments on the draft programme, if possible by 10 November 2004.

33. The CCJE-GT noted that the 2^nd European Conference of Judges would take place, subject to the budget available, in Krakow (Poland) on 25 and 26 April 2005, during the Polish Chairmanship of the Committee of Ministers of the Council of Europe.

VII. REPORT FOR THE COMMITTEE OF MINISTERS ON PROPOSALS FOR REVISION OF EARLIER OPINIONS OF THE CCJE

34. Under its terms of reference, the CCJE had the task in 2004 and 2005 of “preparing, for the attention of the Committee of Ministers, a report containing detailed proposals on the revision of the CCJE's previous opinions. If necessary, this report will include relevant draft texts for updating the opinions”.

35. The CCJE-GT observed that the opinions of the CCJE were known in the member states in their current form, and that any alteration made to their content could give rise to confusion. At the same time, the observable developments in thinking about the role and status of judges would justify a more in-depth approach to certain aspects already considered in the existing opinions. The CCJE-GT accordingly decided to analyse the opinions and to fill any gaps which might be discovered by adopting supplementary opinions.

36. After an exchange of views on the content of the report, the CCJE-GT formed a drafting group to prepare a draft report for the CCJE’s meeting in November 2004. Mr LACABARATS, The Right Honourable Lord Justice MANCE and Mr REISSNER were elected to the drafting group. The activity would be pursued by the Working Party in 2005 and the draft final report would be submitted to the CCJE for its meeting in 2005.

37. In addition, the CCJE-GT delegations agreed as to the expediency of establishing a procedure to monitor the application of the opinions in member states. They wished to encourage the CCJE to publicise the opinions in the member countries and ensure their wide distribution in the national language. They decided in this connection to invite the delegations of states whose official languages were not French or English to send the Secretariat national language versions of the opinions and to inform the CCJE at its next meeting of the measures taken to publicise the opinions in their countries. The Secretariat would publish these language versions on the Council of Europe website.

38. The CCJE-GT noted that the Secretariat had transmitted Opinion N° 4 (2003) on initial and in-service training for judges to the members of the Lisbon Network to ensure wide dissemination of the text in the sector responsible for training members of the judiciary. It was highly satisfied with the numerous reactions passed back to the Secretariat, confirming the utility of the Opinion.

VIII. PREPARATION OF THE DRAFT OPINION ON THE THEME “JUSTICE AND SOCIETY”

39. The CCJE-GT delegations held an exchange of views on the procedure for drawing up the Opinion on the theme “Justice and Society” which the CCJE was to prepare, in compliance with its terms of reference, in 2005.

40. The CCJE-GT noted that in accordance with the CCJE's decision (see doc. CCJE (2003) 43, part VII. A. ii), the following questions were to be considered when drawing up the opinion:

- the educational role of the courts in a democracy, relations with the public, including relations with the media (see Part V b of the global action plan for judges in Europe – doc. CCJE (2001) 24);

- relations with all those involved in court proceedings (see Part V c of the action plan);

- accessibility, simplification and clarity of the language used by the courts in proceedings and decisions (see Part V d of the action plan).

41. It thought that the 2^nd European Conference of Judges, whose theme was closely linked to that of the opinion (see part VI above), would form a major contribution to its activities..

42. The draft opinion would be drawn up by the Working Party on the basis of the conference conclusions, replies to the questionnaire and a specialist’s report, by the drafting group set up for the purpose. Early in September 2004 the Chairmanship of the CCJE would prepare a draft questionnaire to be sent by e-mail to the Working Party for comment and then submitted to the CCJE at its meeting in November 2004 for approval.

43. The CCJE-GT delegations were invited to send any comments regarding the content of the draft questionnaire to the Secretariat ([email protected]) if possible by 10 November 2004.

IX. OTHER BUSINESS

a) Hearing with the Committee of Ministers

44. The CCJE-GT noted with satisfaction that Mr Alain LACABARATS, Chair of the CCJE, had been invited by the Ministers' Deputies to present the CCJE's work in 2003 and its future activities at their 876th meeting (7 April 2004). The Chair of the CCJE would report back on the hearing to delegations at the meeting in November 2004. The text of the statement to the Ministers’ Deputies is contained in Appendix VIII to this report.

b) Co-operation with other Council of Europe bodies

i. Relations with the Group of Specialists on Judicial Standards (CJ-S-JU)

45. In reply to the question put by the CCJE-GT delegations concerning the work of the Group of Specialists on Judicial Standards (CJ-S-JU) set up by the Committee of Ministers in 2003 (851st meeting) to follow up CCJE opinions at intergovernmental level, the Secretariat explained that the Group had not held any meetings for budgetary reasons. Furthermore, the Bureau of the European Committee on Legal Co-operation (CDCJ) had expressed the opinion that the CJ-S-JU could meet following the CCJE's adoption of the Opinion on fair trial within a reasonable time and the role of judges (see doc. CDCJ-BU (2003) 10, part II, paragraphs 30 – 33).

ii. Relations with the European Commission for the Efficiency of Justice (CEPEJ)

46. The CCJE-GT confirmed its belief that coordination was necessary between the activities of the CCJE and the European Commission for the Efficiency of Justice (CEPEJ) (see doc. CCJE (2003) 43, part IX. b). It noted that some of the topics appearing in the work programme of the CEPEJ (set up by the Committee of Ministers in 2003) were contained in the framework global action plan for judges in Europe (adopted by the Committee of Ministers in February 2001) and had already been covered by CCJE opinions, such as the one on training for judges.

47. The CCJE-GT noted with satisfaction that the Chair of the CCJE was invited to hold an exchange of views with the Bureau of the CEPEJ at its meeting on 20 October 2004 in Strasbourg. The Chair would report on the encounter to the CCJE delegations at the meeting in November 2004.

48. In order to make rational use of the two bodies’ energies, the CCJE-GT suggested granting the CEPEJ observer status with the CCJE, on a mutual basis, and invited the CCJE to rule on the proposal at its next meeting in November 2004.

X. DATES OF THE CCJE-GT’s MEETINGS IN 2005

49. The CCJE-GT would set the dates for its next meetings (in the spring and the second half of 2005) at the CCJE’s next meeting (22-24 November 2004).

APPENDIX I

LIST OF PARTICIPANTS OF THE 6^th and 7^th MEETINGS

LISTE DES PARTICIPANTS DES 6^ème et 7^ème REUNIONS

AUSTRIA / AUTRICHE

Mr Gerhard REISSNER,[2]^,[3] Bezirksgericht Floridsdorf, VIENNA

CROATIA / CROATIE

Mr Duro SESSA², Municipal Court in ZAGREB

CZECH REPUBLIC / REPUBLIQUE TCHEQUE

Mr Robert FREMR², High Court in PRAGUE

FINLAND / FINLANDE

Mr Gustav BYGGLIN^1,2,3, Supreme Court, HELSINKI

FRANCE

M. Alain LACABARATS^2,3, Cour de Cassation, PARIS (Chairman of the CCJE / Président du CCJE)

GERMANY / ALLEMAGNE

Mr Otto MALLMANN^2,3, Federal Administrative Court, LEIPZIG

ITALY / ITALIE

Mr Raffaele SABATO^2,3, Tribunal de NAPLES, (Chairman of the CCJE-GT / Président du CCJE-GT)

MALTA / MALTE

Mr Joseph D. CAMILLERI^2,3, Court of Appeal and Constitutional Court, VALLETTA

NETHERlANDS / PAYS-BAS

Mrs Will TONKENS GERKEMA^2,3, District Court of Amsterdam, THE HAGUE

PORTUGAL

Mr Orlando AFONSO³, Cour d’Appel d’EVORA

SLOVENIA / SLOVENIE

Mr Aleš ZALAR^2,3, LJUBLJANA District Court

UNITED KINGDOM / ROYAUME-UNI

Sir Jonathan MANCE2^,3, Royal Courts of Justice, LONDON

SPECIALIST / SPECIALISTE

Mr Carlos GOMEZ-MARTINEZ³, Court of Appeal of PALMA DE MALLORCA, Spain

Mr Justice PITCHERS³, Royal Court of Justice, LONDON, United Kingdom

COUNCIL OF EUROPE’S SECRETARIAT /

SECRETARIAT DU CONSEIL DE L’EUROPE

Mr Alexey KOJEMIAKOV^2,3, Head of the Department of Private Law, Directorate General I – Legal Affairs / Chef du Service du droit privé, Direction Générale I – Affaires Juridiques, Mme Danuta WIŚNIEWSKA-CAZALS^2,3, Administrative Officer, Secretary of the CCJE, / Administratrice, Secrétaire du CCJE, Mme Marie-Luce DAVIES^2,3, Secretary / Secrétaire

INTERPRETERS / INTERPRETES

Mme Corinne McGEORGE, Mlle Isabelle MARCHINI, Mme Julia TANNER

(6^th meeting / 6^ème reunion)

Mme Caroline CURTA-DI-GIULIO, Mme Chantal FAYOLLE (7^th meeting / 7^ème réunion)

APPENDIX II

AGENDA OF THE 6^th MEETING (Strasbourg, 5-7 April 2004)

ORDRE DU JOUR DE LA 6^ème REUNION (Strasbourg, 5-7 avril 2004))

1. Opening of the meeting / Ouverture de la réunion

2. Adoption of the agenda / Adoption de l’ordre du jour

3. Information by the Secretariat / Informations par le Secrétariat

4. Preparation, on the basis of preliminary remarks and the answers to the questionnaire, of an explanatory document on fair trial within a reasonable time and the role of judges in proceedings, taking into account alternative means of dispute settlement, in order to prepare a draft opinion on this topic / Elaboration, sur la base des observations préliminaires et sur la base des réponses au questionnaire, d’un document explicatif sur le procès équitable dans un délai raisonnable et le rôle des juges dans le procès, en prenant en considération les modes alternatifs de règlement des litiges, en vue de l’élaboration du projet d’avis sur ce thème

Working document / Document de travail

Preliminary remarks and questionnaire on management of cases, judges’ role in the proceedings and the use of alternative dispute settlement methods / Observations preliminaires et questionnaire relatifs à la gestion des affaires, le rôle des juges dans le procès et l’usage des modes alternatifs de règlement des litiges

CCJE (2004)1

Answers to the questionnaire submitted by national delegations / Réponses au questionnaire soumises par les délégations nationales :

France

CCJE (2004)2

French only/français seulement

Cyprus/Chypre

CCJE (2004)3

English only/anglais seulement

Switzerland/Suisse

CCJE (2004)4

French only/français seulement

Estonia/Estonie

CCJE (2004)5

English only/anglais seulement

Roumanie/Romania

CCJE (2004)6

English only/anglais seulement

Malta/Malte

CCJE (2004)7

English only/anglais seulement

Royaume-Uni/United Kingdom

CCJE (2004)8

English only/anglais seulement

Norway/Norvège

CCJE (2004)9

English only/anglais seulement

Slovenia/Slovénie

CCJE (2004)10

English only/anglais seulement

Luxembourg

CCJE (2004)11

French only/français seulement

Croatia/Croatie

CCJE (2004)12

English only/anglais seulement

Italy/Italie

CCJE (2004)13

English only/anglais seulement

Lithuania/Lituanie

CCJE (2004)14

English only/anglais seulement

Denmark/Danemark

CCJE (2004)15

English only/anglais seulement

Ireland/Irlande

CCJE (2004)16

English only/anglais seulement

Background document / Document de référence

Report of the 4^th meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 24-28 November 2003) / Rapport de la 4^ème réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 24-28 novembre 2003)

CCJE (2003) 43

Appendix/Annexe V

5. Election of the drafting group to prepare a preliminary draft opinion on fair trial within a reasonnable time and the role of judges in proceedings, taking into account alternative means of dispute settlement / Election du groupe de rédaction chargé d’élaborer un avant-projet d’avis sur le procès équitable dans un délai raisonnable et le rôle des juges dans le procès, en prenant en considération les modes alternatifs de règlement des litiges

6. Exchange of views on preparations for the 2^nd European Conference of Judges/Echange de vues sur les travaux préparatoires à la 2^ème Conférence européenne des juges

Background document / Document de référence

CCJE (2003) 43

Proceedings of the 1^st European Conference of Judges « Early settlement of disputes and the role of judges » (Strasbourg, 24-25 November 2003) / Actes de la 1^ère Conférence européenne des juges “Le règlement précoce des litiges et le rôle des juges » (Strasbourg, 24-25 novembre 2003)

CONF/JUGES (2003) PROCEEDINGS

7. Exchange of views on the preparation for the attention of the Committee of Ministers of a report setting out detailed proposals for the revision of earlier Opinions of the CCJE / Echange de vues sur l’élaboration d’un rapport à l’attention du Comité des Ministres contenant des propositions détaillées pour la révision des Avis antérieurs du CCJE

Background document / Document de référence

CCJE (2003) 43

point 53 and/et Appendix/Annexe VI, 4.c

8. Exchange of views on arrangements for preparing an opinion on “Justice and society” / Echange de vues sur les modalités d’élaboration de l’Avis sur le thème “Justice et société”

Background document / Document de référence

CCJE (2003) 43

9. Any other business / Divers

APPENDIX III

AGENDA OF THE 7^th MEETING (Rome, 12-14 juillet 2004) /

ORDRE DU JOUR DE LA 7^ème REUNION (Rome, 12-14 July 2004)

1. Opening of the meeting / Ouverture de la réunion

2. Adoption of the agenda / Adoption de l’ordre du jour

3. Information by the Secretariat / Informations par le Secrétariat

4. Preparation - on the basis of the explanatory document prepared by the CCJE-GT, reports prepared by specialists and a preliminary draft opinion prepared by the drafting group - of the draft opinion on fair trial within a reasonable time and judges’ role in trials, taking acount of alternative dispute resolution methods / Elaboration, sur la base d’un document explicatif préparé par le CCJE-GT, des rapports préparés par les spécialistes et d’un avant-projet d’avis préparé par le groupe de rédaction, d’un projet d’avis sur le procès équitable dans un délai raisonnable et le rôle des juges dans le procès, en prenant en considération les modes alternatifs de règlement des litiges

Working document / Document de travail

Preliminary draft opinion on fair trial within a reasonable time and judges’ role in trials, taking account of alternative dispute resolution methods / Avant-projet d’avis sur le procès équitable dans un délai raisonnable et le rôle des juges dans le procès, en prenant en considération les modes alternatifs de règlement des litiges

CCJE-GT (2004) 3

Background documents / Documents de référence

Report prepared by Mr Carlos GOMEZ, Court of Appeal of the Balearic Islands (Spain) / Rapport établi par M. Carlos GOMEZ, Cour d’appel des Baléares (Espagne)

CCJE-GT (2004) 4

Report prepared by Mr Justice PITCHERS, Royal Courts of Justice (United Kingdom) / Rapport établi par Mr Justice PITCHERS, Royal Courts of Justice (Royaume-Uni)

CCJE-GT (2004) 5

Explanatory Memorandum on fair trial within a reasonable time and judges’ role in trials / Note explicative sur le procès équitable dans un délai raisonnable et le rôle des juges dans le procès

CCJE-GT (2004) 2

CCJE-GT (2004) 1

CCJE (2004)1

Answers to the questionnaire submitted by national delegations / Réponses au questionnaire soumises par les délégations nationales :

France

CCJE (2004)2

French only/français seulement

Cyprus/Chypre

CCJE (2004)3

English only/anglais seulement

Switzerland/Suisse

CCJE (2004)4

French only/français seulement

Estonia/Estonie

CCJE (2004)5

English only/anglais seulement

Romania/Roumanie

CCJE (2004)6

English only/anglais seulement

Malta/Malte

CCJE (2004)7

English only/anglais seulement

United Kingdom/Royaume-Uni

CCJE (2004)8

English only/anglais seulement

Norway/Norvège

CCJE (2004)9

English only/anglais seulement

Slovenia/Slovénie

CCJE (2004)10

English only/anglais seulement

Luxembourg

CCJE (2004)11

French only/français seulement

Croatia/Croatie

CCJE (2004)12

English only/anglais seulement

Italy/Italie

CCJE (2004)13

English only/anglais seulement

Lithuania/Lituanie

CCJE (2004)14

English only/anglais seulement

Denmark/Danemark

CCJE (2004)15

English only/anglais seulement

Ireland/Irlande

CCJE (2004)16

English only/anglais seulement

Finland/Finlande

CCJE (2004)17

English only/anglais seulement

Austria/Autriche

CCJE (2004)18

English only/anglais seulement

Belgium/Belgique

CCJE (2004)19

English only/anglais seulement

Andorra/Andorre

CCJE (2004)21

English only/anglais seulement

Bulgaria/Bulgarie

CCJE (2004)22

English only/anglais seulement

Czech Republic/République Tchèque

CCJE (2004)23

English only/anglais seulement

Germany/Allemagne

CCJE (2004)24

English only/anglais seulement

Iceland/Islande

CCJE (2004)25

English only/anglais seulement

Poland/Pologne

CCJE (2004)26

English only/anglais seulement

Sweden/Suède

CCJE (2004)27

English only/anglais seulement

Japan/Japon

CCJE (2004)28

English only/anglais seulement

Portugal

CCJE (2004)29

English only/anglais seulement

Netherlands/Pays-Bas

CCJE (2004)30

English only/anglais seulement

Spain/Spain

CCJE (2004)31

Spanish only/espagnol seulement

Background document / Document de référence

CCJE (2003) 43

Appendix/Annexe V

5. Working session with the High Council of Justice of Italy on case management¹ / Session de travail avec le Conseil supérieur de la magistrature de l’Italie sur la gestion des affaires[4]

Background document / Document de référence

Programme of the working session / Programme de la session de travail

CCJE-GT (2004) 8

6. Exchange of views on preparation for the 2^nd European Conference of Judges/Echange de vues sur les travaux préparatoires à la 2^ème Conférence européenne des juges

Working document / Document de travail

Notes on the 2^nd European Conference of Judges / Notes sur la 2ème Conférence européenne des juges

CCJE-GT (2004) 6

Background document / Document de référence

Recommendation Rec (2003) 13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings and its explanatory memorandum / Recommandation Rec (2003) 13 du Comité des Ministres aux Etats membres sur la diffusion d’informations par les médias en relation avec les procédures pénales et son exposé des motifs

CCJE-GT (2004) 9

Declaration of the Committee of Ministers on the provision of information through the media in relation to criminal proceedings / Déclaration du Comité des Ministres sur la diffusion d’informations par les médias en relation avec les procédures pénales

CCJE-GT (2004) 9

Texts adopted by the Committee of Ministers of the Council of Europe and Declarations adopted by the Ministerial European Conferences in relation with Recommendation Rec (2003) 13 / Textes adoptés par le Comité des Ministres du Conseil de l’Europe et Déclarations adoptées par les Conférences ministérielles européennes apparentés à la Recommandation Rec (2003) 13

CCJE-GT (2004) 7

Recommendation Rec (2002) 2 of the Committee of Ministers to member states on access to official documents and its explanatory memorandum / Recommandation Rec (2002) 2 du Comité des Ministres aux Etats membres sur l’accès aux documents publics et son exposé des motifs

CCJE-GT (2004) 10

CCJE (2003) 43

7. Exchange of views on the content of a report for the attention of the Committee of Ministers setting out detailed proposals for the revision of earlier Opinions of the CCJE / Echange de vues sur le contenu d’un rapport à l’attention du Comité des Ministres sur des propositions détaillées pour la révision des Avis antérieurs du CCJE

Background documents / Documents de référence

Opinions adopted by the CCJE in 2001-2003 / Avis adoptés par le CCJE en 2001-2003

CCJE OP N° 1 (2001)

CCJE OP N° 2 (2001)

CCJE OP N° 3 (2002)

CCJE OP N° 4 (2003)

CCJE OP N° 5 (2003)

CCJE (2003) 43

point 53 and/et Appendix/Annexe VI, 4.c

8. Election of the drafting group to prepare a preliminary draft report on proposals for the revision of earlier Opinions of the CCJE / Election du groupe de rédaction chargé d’élaborer un avant-projet de rapport sur des propositions pour la révision des Avis antérieurs du CCJE

9. Exchange of views on arrangements for preparing an opinion on “Justice and Society” / Echange de vues sur les modalités d’élaboration de l’Avis sur le thème “Justice et société”

Background document / Document de référence

CCJE (2003) 43

10. Any other business / Divers

APPENDIX IV

REVISED SPECIFIC TERMS OF REFERENCE OF THE CCJE

FOR 2004 AND 2005

as approved by the Committee of Ministers at its 876^th Meeting

(on 17 March 2003)

LEGAL CO-OPERATION

1. Name of Committee:

Consultative Council of European Judges (CCJE)

2. Type of Committee:

Consultative body

3. Source of terms of reference:

Committee of Ministers

4. Terms of reference:

Pursuant to:

- main recommendation No. 23 in the Wise Persons’ report concerning the reinforcement of direct co-operation with national judicial institutions,

- the conclusions and the follow-up action agreed by the Committee of Ministers in 2000 on the respect of commitments of member States concerning the functioning of the judicial system,

- Resolution No. 1 on measures to reinforce the independence and impartiality of judges in Europe adopted by the European Ministers of Justice at the end of their 22nd Conference in 2000, in particular concerning a global action plan to strengthen the role of judges and the setting up within the Council of Europe of a consultative group composed of judges to assist in the implementation of the priorities identified in this plan and to advise the Steering Committees on whether and how to update the Council of Europe’s legal instruments,

- the framework global action plan for judges in Europe adopted by the Committee of Ministers in 2000,

the CCJE has the task of contributing in 2004 and 2005 to the implementation of the framework global action plan for judges in Europe, in particular by:

a. adopting an opinion in 2004 for the attention of the Committee of Ministers on fair trial within a reasonable time and judges’ role in trials, taking account of alternative dispute resolution methods;

In this connection, the CCJE will consider the following points which appear in the framework global action plan for judges in Europe:

- case management (see Part II e of the action plan),

- judges’ role in trials (see Part III C a of the action plan),

- the use of alternative dispute resolution methods;

This work will be carried out on the basis of replies by delegations to a questionnaire, the results of the European Conference of Judges (Strasbourg, 24-25 November 2003), reports prepared by two specialists, one for civil proceedings and one for criminal proceedings, and a draft opinion prepared by the Secretariat and revised by the Working Party of the CCJE in 2004;

b. adopting an opinion in 2005 for the attention of the Committee of Ministers on justice and society;

In this connection, the CCJE will consider the following points which appear in the framework global action plan for judges in Europe:

- the educational role of the courts in a democracy, relations with the public, including with the media (see Part V b of the action plan),

- relations with all those involved in court proceedings (see Part V c of the action plan),

- accessibility, simplification and clarity of the language used by the courts in proceedings and decisions (see Part V d of the action plan);

This work will be carried out on the basis of replies by delegations to a questionnaire, a report prepared by a specialist and a draft opinion prepared by the Secretariat and revised by the Working Party of the CCJE in 2005,

c. preparing, for the attention of the Committee of Ministers, a report containing detailed proposals on the revision of the CCJE’s previous opinions. If necessary, this report will include relevant draft texts for updating the opinions. This work will be carried out by a working party in 2004 and in 2005 and will be finalised by the CCJE;

d. providing practical assistance to enable States to comply with Council of Europe standards concerning judges (eg Best Practice Survey);

e. preparing texts or opinions at the request of the Committee of Ministers or other bodies of the Council of Europe;

f. encouraging partnerships in the judicial field involving courts, judges and judges’ associations.

5. Membership of the committee:

a. All member states may be represented on the CCJE. Members should be chosen in contact, where such authorities exist, with the national authorities responsible for ensuring the independence and impartiality of judges and with the national administration responsible for managing the judiciary, from among serving judges having a thorough knowledge of questions relating to the functioning of the judicial system combined with utmost personal integrity.

The Council of Europe will cover travel and subsistence expenses for one representative per state.

b. The European Commission and the General Secretariat of the Council of the European Union may take part in the work of the CCJE, but without the right to vote or to reimbursement of expenses.

c. The following Council of Europe observers may send a representative to meetings of the CCJE but without the right to vote or to reimbursement of expenses:

- Holy See,

- United States of America,

- Canada,

- Japan,

- Mexico.

d. The following observers with the CCJE may attend the meetings of the CCJE, without the right to vote or defrayal of expenses:

- the European Association of Judges,

- the association “Magistrats européens pour la démocratie et les libertés” (MEDEL),

- the Association of European Administrative Judges.

6. Structures and working methods:

The CCJE is an advisory body of the Committee of Ministers which prepares opinions for that Committee on general questions concerning the independence, impartiality and competence of judges. To this end, the Consultative Council works in co-operation, in particular, with the European Committee on Legal Co-operation (CDCJ) and its Group of Specialists on Judicial Standards (CJ‑S‑JU), the European Committee on Crime Problems (CDPC) and also, depending on the subjects dealt with, other committees or bodies.

To discharge its terms of reference, the Consultative Council may set up working parties and organise hearings. It may also make use of scientific specialists.

7. Duration:

These terms of reference expire on 31 December 2005.

APPENDIX V

DRAFT OPINION ON FAIR TRIAL WITHIN A REASONABLE TIME AND THE ROLE OF JUDGES IN PROCEEDINGS, TAKING INTO ACCOUNT ALTERNATIVE MEANS OF DISPUTE SETTLEMENT

INTRODUCTION

1. Over the years, management of proceedings by the courts in Europe has been evolving towards fuller consideration of the interests of Court users. Practitioners have directed attention to ways of meeting the public’s expectations that all who seek justice should not only have readier access to the courts but also benefit from enhanced effectiveness of the procedures applied and more reliable guarantees that rulings delivered will be enforced.

2. The essential instrument of this evolution is the European Convention on Human Rights (ECHR), the case‑law of the Court being consulted in order to interpret and apply its provisions.

3. Article 6 of the ECHR in particular has generated of a fund of procedural law common to the different European states and brought into being general principles which, above and beyond the wealth and diversity of the national systems, are intended to secure the right of access to a court, the right to obtain a decision at the end of a fair and equitable procedure, and the right to obtain enforcement of any judgment delivered.

4. The right to a fair trial is tending to become a true substantive right for the citizens of Europe, one whose enforcement is ensured by the European Court of Human Rights (the Court) and subsequently the domestic courts, for example by compensating litigants whose cases are not tried within a reasonable time.

5. For a number of years the Council of Europe has shown a constant concern to improve the public’s access to justice, as reflected in its various Resolutions and Recommendations on legal aid, the simplification of procedures, reducing the costs of proceedings, the use of new technologies, reducing the courts’ workload and alternative means of settling disputes.

6. The Court itself ensures that governments abide by the provisions of Article 6 of the ECHR, for example by reminding them that any person wishing to bring legal proceedings must have access to a court, and that no state interference with this prerogative, whether in fact or in law, is permissible.

7. The Consultative Council of European Judges (CCJE) has given thought to how judges might participate in this effort to guarantee access to rapid and effective settlement of disputes.

8. It recalls that the 1st European Conference of Judges on “early settlement of disputes and the role of judges”, held at the Council of Europe on 24 and 25 November 2003, revealed that no matter how interesting and useful alternative measures such as mediation or conciliation may be, confidence in the judicial institution remains an essential feature of democratic societies.

9. It is therefore important that, when dealing with the justice system, citizens should know that they are dealing with an efficient institution.

10. In this context, this opinion revolves around (A) the questions of access to justice (B) the quality of the justice system and its assessment, quantitative statistical data, monitoring procedures (C) the courts’ workload and case management and (D) alternative dispute resolution with the emphasis on the judge’s role in the implementation of the principles laid down in the ECHR and the case-law of the Court.

A. ACCESS TO JUSTICE

11. Public access to justice presupposes delivery of suitable information on the functioning of the judicial system.

12. The CCJE considers that all moves to provide the public with such information are to be encouraged.

13. The public should in particular be made aware of the nature of proceedings which may be brought, their possible duration, their cost and the risks involved in case of wrongful use of legal channels. Information should also be provided concerning alternative means of settling disputes which may be offered to parties.

14. This general information to the public can be supplemented by more precise information concerning in particular some of the landmark decisions delivered by the courts and how long it takes for cases to be dealt with in the various courts.

15. Information on the functioning of the judicial system can originate from various sources, such as the Justice Department (publication of information booklets, websites, etc.), the welfare services and the public legal advice services organised by lawyers’ associations as well as other sources.

16. The courts themselves should participate in disseminating the information, particularly when they have public relations services. Amongst the relevant ways of disseminating information are the Internet sites run by certain courts.

17. The CCJE recommends the development of school education programmes including a description of the judicial system and offering visits to courts. It also perceives a need to publish citizens’ guides enabling potential litigants to gain a better grasp of the functioning of the judicial institutions, while also informing them of their procedural rights before the courts. Lastly, it recommends the general use of computer technology in order to provide members of the public with the same type of information on the functioning of the courts, the means of access to justice, the principal decisions delivered, and the statistical results of the courts.

18. The CCJE positively encourages the adoption of a simplified and standardised format for the legal documents needed to initiate and proceed with court actions. The recommended simplification is particularly advisable for minor litigation, for disputes involving consumers, and for cases in which the determination of the points of law and of fact raises virtually no difficulties (settlement of debts). It further recommends developing the technology whereby litigants may obtain, via computer facilities, the necessary documents for bringing an action before a court and either they or their representatives may be put directly in touch with the courts. The CCJE also recommends that litigants be fully informed, even before proceedings are instituted, as to the nature and the amount of the costs they will have to bear, and that they be given a sufficiently exact indication of the foreseeable duration of the proceedings up to the judgment.

19. The CCJE considers that the judicial system should not obstruct access to justice through excessive costs. One must nonetheless guard against having the remuneration of lawyers and court officers fixed in such a way as to encourage needless procedural steps. Provision should also be made, pursuant to Recommendation No R (84) 5[5] (principle 2-1 in the appendix), for sanctioning abuse of court procedure.

20. In certain States, the intervention of a lawyer during the proceedings is not necessary. Other States draw distinctions according to the magnitude of the financial interests and the type of dispute or proceedings. The right for a litigant to plead his or her case before a court either personally or through the representative of his or her choice appears particularly suited to oral proceedings, litigation of minor financial importance, and cases involving consumers.

21. Nonetheless, even in cases where there is no need to engage a lawyer at the outset, the CCJE considers that there should be povision enabling the judge, as an exceptional measure, to order the intervention of counsel if the case presents particular problems. In that event, representation by a lawyer should have the support of an effective legal aid system.

22. Resolution (78) 8[6] states in paragraph 1 of the appendix that “no one should be prevented by economic obstacles from pursuing or defending his rights (…)”.

23. A legal aid system should be organised by the State to enable everyone to enjoy access to justice. Such aid should cover not only court costs but also legal advice as to the wisdom or the necessity of bringing an action. It should not be reserved for the neediest persons but should also be available, at least in part, to those whose average income does not enable them to bear the cost of an action unaided.

24. This system of partial legal aid allows the number of beneficiaries to be increased while preserving a certain balance between the authorities’ obligation to facilitate access to justice, and individual responsibility. The CCJE considers that the judge should be able to take part in decisions concerning the grant of aid. If the authority required to rule on an application for legal aid is obliged to refuse it where the contemplated action appears manifestly inadmissible or ill-founded, it is indispensable, should action be brought by a litigant who has been refused aid, that the judge involved in the relevant decision should refrain from trying the case, for the sake of compliance with the duty of objective impartiality according to Article 6 of the ECHR.

25. The CCJE considers that legal aid ought to be state-financed and covered by a special budget so that the corresponding expenses are not charged to the operating budget of the courts.

26. Legal aid is not the sole means of assisting access to justice. Other methods which can be used for this purpose include:

- agreements on conditional fees providing that a party need only pay its counsel’s fees if the action is successful, these fees can be higher than normal fees;

- fixed expenses in order to limit the sum claimable by the winning party, irrespective of the fees it has paid its lawyers;

- insurance for court costs, covering a party’s own court costs and/or any sum payable to the other party where the case is lost.

27. The CCJE is not in the position to discuss in details, in the present opinion, the above arrangements or other financial means to assist access to justice. The CCJE limits itself to observing that:

(i) the conditional fees arrangement may indeed encourage abusive application to the courts and cause an unwarranted increase in counsel’s fees[7]

(ii) the fixed expenses arrangement has the drawback of leaving part of the court costs unpaid, and this raises the issue of equality of arms and fairness of proceedings.

28. The CCJE recommends consequently:

i. States should provide dissemination of suitable information on the functioning of the judicial system (nature of proceedings available; duration of proceedings in the average and in the various courts; costs and risks involved in case of wrongful use of legal channels; alternative means of settling disputes offered to parties; landmark decisions delivered by the courts - see paragraphs 12-15 above)

ii. In particular:

- citizens’ guides should be made available;

- courts themselves should participate in disseminating the information;

- school education programmes should include a description of the judicial system and should offer visits to courts (see paragraphs 16-17 above)

iii. Simplified and standardised formats for the legal documents needed to initiate and proceed with court actions should be adopted, at least for some sectors of litigation (see paragraph 18 above).

iv. Technology should be developed whereby litigants may, via computer facilities:

- obtain the necessary documents for bringing an action before a court;

- be put directly in touch with the courts;

- obtain full information, even before proceedings are instituted, as to the nature and the amount of the costs they will have to bear, and exact indication of the foreseeable duration of the proceedings up to the judgment (see paragraph 18 above).

v. The remuneration of lawyers and court officers should be fixed in such a way as not to encourage needless procedural steps (see paragraph 19 above).

vi. Provision should be made, pursuant to Recommendation No R (84) 5 (principle 2-1 in the appendix), for sanctioning abuse of court procedure (see paragraph 19 above).

vii. States should guarantee the right for a litigant to plead his or her case before a court either personally or through the representative of his or her choice, particularly when oral proceedings, litigation of minor financial importance, and consumers' cases are involved; there should be, however, provision enabling the judge, as an exceptional measure, to order the intervention of counsel if the case presents particular problems (see paragraphs 20-21 above).

viii. A legal aid system should be organised by the State to enable everyone to enjoy access to justice, covering not only court costs but also legal advice as to the wisdom or the necessity of bringing an action; it should not be reserved for the neediest persons but should also be available, at least in part, to those whose average income does not enable them to bear the cost of an action unaided; the judge should be able to take part in decisions concerning the grant of aid but, if this involves consideration of the merits of the case, he or she should then personally refrain from trying the case (see paragraphs 22-24 above).

ix. Legal aid ought to be state-financed and covered by a special budget, so that the corresponding expenses are not charged to the operating budget of the courts (see paragraph 25 above).

x. Special attention should be paid to the drawbacks of other methods to assist access to justice; in particular, the conditional fees arrangement may encourage abusive application to the courts and cause an unwarranted increase in counsel’s fees; the fixed expenses arrangement has the drawback of leaving part of the court costs unpaid, and this raises the issue of equality of arms and fairness of proceedings (see paragraphs 26-27 above).

B. QUALITY OF THE JUSTICE SYSTEM AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES

29. The provision of justice involves not only the work of judges and other legal professionals; it encompasses a number of activities performed within judicial institutions by governmental agents and private citizens; its operation heavily relies on judicial infra-structures (buildings, equipment, support staff, etc). Therefore, quality of the justice system depends at the same time on the performance of infra-structures, which may be measured with criteria similar to those employed for other public services, and on the performance of legal professionals (judges, but also lawyers, prosecutors and clerks); even today it is possible to measure the work of such professionals against the benchmarks of law and of judicial or professional practice and deontology.

30. However, since the growing dimensions of the demand for justice in most countries are faced with limitations of the budget for the justice system, theory and practice suggest the possibility to assess the quality of judicial activity, with reference also to social and economic efficiency, through criteria that are sometimes similar to those employed for other public services.

31. The CCJE notes that a number of problems arise when applying to justice assessment criteria that do not take into account its specificities. Although similar considerations may apply to the activities of other legal professionals, the CCJE discussed the implications of such an approach to judicial activity.

32. The CCJE considers, first of all, that the evaluation of "quality" of the justice system, i.e. of the performance of the court system as a whole or of each individual court or local group of courts, should not be confused with the evaluation of the professional ability of every single judge. Professional evaluation of judges, especially when aiming at decisions influencing their status or career, is a task that has other purposes and should be performed on the basis of objective criteria with all guarantees for judicial independence (see Opinion No. 1 (2001) of the CCJE, especially paragraph 45).

33. The practice of some countries shows an overlap which the CCJE deems inappropriate, between quality assessment of justice and professional evaluation of a judge. This overlap is reflected in the way in which statistics are collected. In some countries statistics are kept for each individual judge, in the others the figures are for each court. All are likely to keep records of the number of cases dealt with, but the former system attaches that figure to individuals. Systems which assess judges statistically typically include a figure for the percentage of successful appeals.

34. Some countries consider the percentage of the decisions reversed on appeal as an indicator. An objective evaluation of the quality of judicial decisions may be one of the elements relevant for the professional assessment of a single judge, (but even in this context one should take into account the principle of judicial internal independence and the fact that reversal of decisions must be accepted as a normal outcome of appeal procedures, without any fault on the part of the first judge). However, the use of reversal rates as the only or the basic indicator to assess the quality of the justice system seems inappropriate to the CCJE. Among several aspects that could be discussed with reference to this problem, the CCJE underlines that it is a feature of the justice system based on "procedures", that the quality of the outcome of a single case depends heavily on the quality of the previous procedural steps (initiated by the police, public prosecution, private lawyers or parties), so that evaluation of judicial performance is impossible without evaluation of each single procedural context.

35. The same considerations apply to other systems in which some assessment, through systems different from the observation of the reversal rate, is possible as to a single decision taken by a judge.

36. In some countries, assessment of quality of justice is done through collection of indicators measuring the performance of the court: how long it takes to deal with cases, how great the backlog is, how large the support staff is, the quantity and quality of infra-structures (with special reference to buildings and information technology), etc.

37. This approach is in principle acceptable, as it tends to evaluate "performance" of justice in a wider sense. However, the better approach would be to evaluate justice in its even wider context, i.e. in the interactions of justice with other variables (judges and lawyers, justice and police, case law and legislation, etc.), as most malfunctions of the justice system derive from lack of coordination between several actors. The CCJE considers that it is also crucial to underline the interaction between the quality of justice and the presence of adequate infra-structures and support personnel.

38. Even if modern information technology allows very sophisticated data to be collected, the difficulty remains as to what variables should be measured and how and by whom the results should be interpreted.

39. As to data to be collected, no generally accepted criteria exist at this moment. This is due to the fact that administration of justice differs greatly from the purely administrative tasks that are typical of other public services, where measurement through indicators has developed and may be effective. For example, the fact that one court takes longer on average than another to deal with a case or has a greater backlog of cases may or may not mean that this court is less efficient.

40. Whatever may be the developments in this field, the CCJE considers that "quality" of justice should not be understood as a synonym for mere "productivity" of the judicial system; a qualitative approach should address rather the ability of the system to match the demand of justice in conformity with the general goals of the legal system, of which speed of procedures is only one element.

41. The CCJE recommends that, as it is impossible at the moment to rely upon widely accepted criteria, quality indicators should at least be chosen by wide consensus among legal professionals, it being advisable that the independent body for the self-governing of the judiciary play a central role in the choice and the collection of "quality" data, in the design of the data collection procedure, in the evaluation of results, in its dissemination as feed-back to the individual actors on a confidential basis, as well as to the general public; such involvement may reconcile the need for a quality evaluation to be carried out with the need for indicators and evaluators to be respectful of judicial independence.

42. Usually statistical data are collected by courts and sent to a central authority that may be the Supreme Court, the High Council for the Judiciary, the Ministry of Justice or the National Court Administration. In daily data collection court registrars may play an important role. In some cases private agencies have participated in the identification of quality indicators and in the design of a quality control system.

43. The publication of statistical data concerning pending and past cases in each court, available in some States, is a further step towards transparency of the situation of workloads. Appropriate forms should be studied for the release of even reserved information to researchers and to the judiciary (feed-back), in order to allow improvements of the system.

44. The centralised authority that gathers the data only sometimes performs a constant monitoring process. This monitoring does not always have, however, a direct and immediate impact on the organisation of the courts or allocation of human and material resources.

45. The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that flexible procedures allow a ready adjustment of the organisation of courts to changes in the caseloads.[8] In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring be identified in the independent body mentioned in paragraphs 37 and 45 of its Opinion no. 1 (2001); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.

46. Smooth co-operation should take place among all actors as to interpretation and dissemination of data.

47. The CCJE therefore considers:

Quality of the justice system depends at the same time on the performance of infra-structures, which may be measured with criteria similar to those employed for other public services, and on the performance of legal professionals (judges, but also lawyers, prosecutors and clerks), whose work may be only measured against the benchmarks of law and of judicial or professional practice and deontology; consequently, a number of problems arise when applying to justice assessment criteria that do not take into account its specificities; it is nonetheless necessary to assess the quality of judicial activity, with reference also to social and economic efficiency, through criteria that are sometimes similar to those employed for other public services (see paragraphs 29-31 above).

The performance of the court system as a whole or of each individual court or local group of courts should not be confused with the evaluation of the professional ability of every single judge, which has other purposes. Similar considerations may apply to the activities of other legal professionals involved in the functioning of the court system (see paragraphs 31-32 above).

The overlap between quality assessment of justice and professional evaluation of a judge should also be avoided when designing judicial statistics; in particular, the use of reversal rates as the only or the basic indicator to assess the quality of the justice system is inappropriate; the same consideration applies to other systems in which some assessment, through systems different from the observation of the reversal rate, is possible as to a single decision taken by a judge (see paragraphs 33-35 above).

Although no generally accepted criteria exist at this moment as to data to be collected, the goal of data collection should consist in the evaluating justice in its wider context, i.e. in the interactions of justice with other variables (judges and lawyers, justice and police, case law and legislation, etc.), as most malfunctions of the justice system derive from lack of coordination between several actors; it is also crucial to underline, in the data collection procedures, the interaction between the quality of justice and the presence of adequate infra-structures and support personnel (for example, the fact that one court takes longer on average than another to deal with a case or has a greater backlog of cases may or may not mean that this court is less efficient); furthermore, "quality" of justice should not be understood as a synonym for mere "productivity" of the judicial system; a qualitative approach should address rather the ability of the system to match the demand of justice in conformity with the general goals of the legal system, of which speed of procedures is only one element (see paragraphs 36-40 above).
Quality indicators should be chosen by wide consensus among legal professionals (see paragraph 41 above).

Data collection and monitoring should be performed on a regular basis, and flexible procedures should allow a ready adjustment of the organisation of courts to changes in the caseloads (see paragraphs 44-46 above).

In order to reconcile the realisation of this need with the guarantees of independence of the judiciary, the independent body mentioned in paragraphs 37 and 45 of the CCJE's Opinion no. 1 (2001) should be competent for the choice and the collection of "quality" data, the design of the data collection procedure, the evaluation of results, its dissemination as feed-back, as well as the monitoring and follow-up procedures. The States should, in any case, assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice (see paragraphs 41-46 above).

C. CASE-LOAD AND CASE MANAGEMENT

48. This section covers measures that may reduce the work-load of courts as well as measures to assist the handling of cases coming to court. The CCJE takes these subjects together[9] because both are of importance to the performance by courts of their duty to provide a fair trial within a reasonable time and ther eis a certain overlap.

49. Measures reducing the work-load of courts included measures which have that object alone and measures that have an independent value. Recommendation R (86) 12 identifies measures applying to varying extents to criminal and civil courts[10]. Recommendations R (87) 18[11] and R (95) 12[12] deal specifically with criminal cases. As examples, measures such as the removal of non-judicial tasks or ensuring a balanced work-load aim directly at ensuring an appropriate work-load. Consensual settlement (whether by the parties alone or through mediation[13]) has an independent worth, reflecting the values of freedom of choice and agreement, compared with a court-imposed solution. Decriminalisation of minor offences may take place to reduce work-load, or it may reflect a conclusion that it is preferable that certain types of offenders (e.g. youths) should be dealt with outside the formal criminal justice system. Clarity about motives may assist to identify the merits of particular proposals.

50. The CCJE starts with miscellaneous topics where the criminal and civil positions can be taken together or compared.

(a) Court administration

51. The CCJE has identified two basic models of court management[14]. In one, the judges play little or no direct role in the management of the courts. They can devote more of their time to judging, rather than take up time on non-judicial tasks for which they may not be suited by training or inclination. Although the courts could not run properly without the judges at least being consulted about administrative matters, decisions about managing budgets, employing staff and court buildings and facilities are in the hands of the administrators. Since, whatever system is employed, the money to run it must come from central government, this system helps to keep judges separate from the political pressures that follow from having to meet performance targets.

52. A disadvantage is that it is judges who must deliver the primary objective of the court system, the efficient and just disposal of cases, but in this model, they have little control over the environment in which they are trying to meet this objective.

53. In the second basic system, the senior judge in a court effectively manages it as well. He or she will have at least some discretion over the spending of the budget, the hiring and firing of staff and the court building and its contents. The advantages and disadvantages are a mirror image of the first: judges are taken away from their primary role and made to undertake tasks for which their background may not have prepared them. They are more likely to find themselves in dispute with central government. On the other hand, they have real control over the means of delivering justice in their courts and have a greater influence over policy in allocating resources.

54. Many countries have systems which fall somewhere between the two extremes. What can be said to be recognised as being increasingly important is that judges should be consulted and have the opportunity to have a say in basic decisions about the shape of modern justice and the priorities involved. The CCJE underlines the need for this.

(b) Fluctuation in workloads

55. The workload of particular courts will increase or decrease over time. Demographic changes and, in the criminal sphere, changes in criminal patterns will drive this. These may be temporary. For example, a court near a border may have a dramatic increase in cases concerning illegal immigration or a court near an airport an increase in drug importation.

56. In some jurisdictions, judges and/or cases may be transferred relatively easily between courts, at least on a temporary basis. The CCJE regards such flexibility as generally desirable, in countries whose constitutional arrangements so permit. It recognises of course that it must be exercised with due regard for practical problems of access to justice. Those involved in cases and the public generally are entitled to expect that cases will be normally be handled on a relatively local and convenient basis.

57. In other jurisdictions, the judge assigned is fixed from the outset, transfers of judges require their consent and transfers of cases are possible, if at all, only with the consent of the parties. There may however be mechanisms within any court, whereby, e.g., an elected praesidium of judges may decide to transfer cases from an overloaded judge to another judge within the same court.

58. If there are permanent changes in workload, corresponding changes in court size will be needed, especially in the latter category of jurisdictions. Purely economic considerations (pointing towards closure of a local court) may here clash with the parties’ and public’s entitlement to relatively local and accessible justice. The CCJE encourages countries to study and develop appropriate criteria to enable these considerations to be taken into account and balanced, ensuring that, while adopting to the evolution of the workload, the changes to the courts’ methods are not conceived as a way of harming the independence of judges.

59. In criminal cases, Recommendation No. R (87) 18, paragraph D.2 states that a single judge should be used “wherever the seriousness of the offence allows”. But, in serious cases involving the liberty of the subject, the collegiality of fact-finding provided by a panel of three or more, whether lay or professional, is an important safeguard against decisions influenced by one person’s prejudices or idiosyncratic views. In practice, less serious cases are usually decided by one judge and more serious cases by a panel, although the dividing line differs considerably between countries.

60. In civil cases, the general practice in common law countries is that first instance judges (being experienced practitioners appointed relatively late in their professional career) sit singly. In other jurisdictions having a career judiciary (and in countries such as France, where Tribunaux de Commerce consist of laymen), panels are still used at first instance, although there seems to be a trend towards greater use of single judges.

61. The use of panels can compensate for lack of experience on the part of individual members. It assists to ensure consistency of quality and to impart experience to younger judges. It may be difficult to abandon this system where a young judge or lay person would otherwise be the sole member of a first instance tribunal.

62. The CCJE considers that countries should encourage training and career development to make full use of single judges to hear first instance cases, wherever this can be achieved commensurately with the experience and capabilities of the judges available and the nature of the proceedings in question.

(d) Extra-judicial activity

63. The CCJE endorses the view that the non-judicial activities listed in the Appendix to Recommendation No. R (86) 12[15] should normally be assigned to non-judicial officers. But there are other activities that may distract or detract from the performance of judicial duties, including activities in relation to court administration, where adequate assistance is not provided or funded (see point (a) above) and activity as private arbitrators where judges are free to accept appointment as such.

64. Criticism is often also levelled at time spent by judges working on commissions and similar bodies. There is a point of view that “a judge should be judging” and other activity is a waste of a valuable resource.

65. The CCJE does not consider that too much should be made of this point. If the commission is examining an aspect relevant to judicial work and the judge can add value to the work of that body, the time spent in such work cannot be regarded as wasted. Further, a judge will be a better judge for having the broader view that can be gained by working with professionals from other disciplines and on subjects that are related to but fall outside his normal work.

66. On the other hand, there are risks in judges becoming involved in enquiries established for political reasons, involving judgments on non-legal matters which may lie outside their direct experience. Judges should consider carefully whether it is sensible for them to lend their skills and reputations to enquiries of this nature[16].

(e) Legal representation and the funding of legal costs

67. In criminal cases, it is right that legal aid or free legal representation should be available without evaluation of the merits of the defendant’s position. The problem seems to lie in the great differences between the nature and seriousness of the cases for which such aid or representation is made available in different countries. But in civil cases there is concern that methods of funding litigation may encourage ill-founded or excessive litigation, and this is not confined to legal expenses insurance[17]. In any legal system, there is a tendency for work to gravitate to areas where fees are available. Suitable control systems need to be introduced for evaluating the merits of claims in advance and eliminating from eligibility for legal aid claims where the merits and/or sum in issue do not appear to justify the likely expense[18].

I. CRIMINAL COURTS

68. The CCJE turns next to subjects of specifically criminal relevance: It is at the outset important to remember two obvious but fundamental differences between criminal and civil proceedings:

(i) Civil proceedings almost always involve two private parties. The public has a general interest in the proper disposal of civil litigation but it has no interest in the outcome of a particular case. In criminal proceedings, the public has a real interest in the proper disposal of each case.

(ii) Procedural delay or irregularity can be sanctioned in civil proceedings by orders for costs or, as a last resort, striking the action out. In criminal proceedings, the prosecution may be sanctioned in monetary terms[19] or in an extreme situation by dismissing the prosecution. It is much more difficult to sanction a defendant for delay or irregularity, although in some countries a defence lawyer may be ordered to pay wasted costs. The defendant himself usually lacks means to meet costs orders. And the ultimate sanction of dismissal of his case is not available. The court cannot say that he has forfeited his right to a trial because he has not complied with some procedural requirement.

69. Against this background, the CCJE examines certain specific problems.

(a) Discretionary prosecution

70. Recommendation No. R (87) 18 endorses the principle of discretionary prosecution “wherever historical development and the constitution of member states allow”, and states that, “otherwise, measures having the same purpose should be devised”. In the latter countries, the duties of independent public prosecutors (ministère public) may require cases to be brought before a court, and, if anyone has the power to suspend prosecution, it may only be a judge.

71. The Recommendation states that any decision not to prosecute should be “founded in law” (paragraph I.2), “exercised on some general basis, such as the public interest” (paragraphI.4) and only take place “if the prosecuting authority has adequate evidence of guilt” (paragraph I.2). The CCJE interprets the third condition as meaning no more than that, unless the prosecuting authority has adequate evidence of guilt, the question of discretionary prosecution cannot sensibly arise. But, where adequate evidence has not (yet) been obtained, the CCJE considers that it should be open to an investigating authority to decide that the seriousness and other circumstances of the offence, of the suspected offender and of the victim do not justify further efforts to obtain further evidence.

72. The Recommendation further states that a decision not to pursue, or to discontinue, criminal proceedings may be accompanied by a warning or admonition or be made subject to compliance with conditions (requiring in this latter case the alleged offender’s consent); that it should not be treated as a conviction or affect the offender’s record, unless he has admitted the offence; and that it should leave unaffected the victim’s right to seek reparation. In practice, the majority of (but very far from all) countries have some degree of discretion. One distinction is between those systems where cases may only be discontinued with conditions such as compensation to the victim and those where there exists a discretion to discontinue proceedings where it is deemed not to be in the public interest to continue them.

73. Three basic structures presently appear in Europe.

(i) The prosecuting authority has neither the power to drop a case nor to impose conditions/sanctions upon an offender if the evidence justifies prosecution. It merely has the function of preparing a case for court.

(ii) The prosecuting authority has the power to decide whether or not to prosecute (i.e. to drop a case completely) even though there is sufficient evidence to prosecute.

(iii) The prosecuting authority has both the power to decide whether or not to prosecute and also the possibility of dropping the case with conditions or a fine imposed on the offender with his consent as an alternative to the case going to court. Within this broad category, there are considerable differences as to the prosecutorial power. In some countries a full range of conditions including counselling and community service may be imposed. In others, the only condition is payment of a sum of money.

74. The CCJE encourages further studies in individual states which do not presently have any system of or equivalent to discretionary prosecution so as to give effect to Recommendation No. R (87) 18. In particular, in view of the fact that courts must have a role in verifying compliance of prosecutorial activities with Art. 6 of the ECHR, the CCJE recommends that any decision to drop a case taken by the prosecuting authority be subject to judicial review, at least in the case that the victim (who should be informed by the prosecution) so requests, and that the judge be empowered to order further investigations and/or the bringing of the case before the court.

(b) Simplified procedures

75. All member states appear to have some forms of simplified procedure, e.g. for administrative breaches and less serious crime, although the nature and extent of such procedures vary greatly. The impact of articles 5 and 6 of the ECHR must be considered when introducing and providing for such procedures always allowing for the possibility of an appeal before the judge.

76. Recommendation No. R (87) 18 recommends this in principle. Its terms contemplate an early plea of guilty entered in court at an early stage of the proceedings, which is the common law model. However, few countries have a formal system of this nature. It - and more particularly what may go with it, plea bargaining and a reduced sentence for a plea of guilty - are anathema to many non-common law systems. However, a number of countries have a system of attenuated proceedings where guilt is admitted. This functions in a similar way to a formal plea to the extent of allowing less evidence to be called and the case to proceed more swiftly.

77. The CCJE identifies, in any formal system for pleading guilty, advantages (perceived by common law systems) and possible dangers, as follows:

(i) Guilty pleas

78. If a defendant can be invited and is able to give a formal indication before a judge that he admits his guilt at an early stage in proceedings, a great deal of time and money will be saved. If this takes place in a formal setting, safeguards for a defendant can be built in. A confession made to the police may have been improperly obtained. A guilty plea is an acknowledgement that it was not. Lawyers must however have a professional obligation to confirm with the defendant that he really admits the necessary legal elements of the offence.

(ii) Plea bargaining

79. This encompasses two different things: charge bargaining and sentence bargaining.

80. Charge bargaining involves an agreement with the prosecution, whether formal or informal, that the prosecution will not proceed with one or more charges if the defendant admits others (e.g. involving a less serious offence). Such a procedure will not normally involve the judge at all, although there may be provision for judicial approval to be required. The argument in favour is that, if a defendant is willing to admit nine out of ten alleged burglaries, it cannot be in the interests of efficient justice that there should always have be a full trial of the tenth charge simply because there is enough evidence to go to trial on it.

81. Sentence bargaining also occurs in a number of countries. But the common law has recognised that there are great dangers in allowing this to involve the judge. The danger is that a defendant may fell under pressure to plead guilty to an offence which he does not really admit in order to get a more lenient sentence from the judge who will be sentencing him.

(iii) Sentence discount

82. This is a different concept, which does not depend upon any bargain with anyone, whether prosecution or judge. The concept (accepted in common law countries) is that a defendant who pleads guilty should normally receive a more lenient sentence than if he had not done so – the earlier the plea the greater the discount[20].

83. Some may recoil from this idea. They would argue that what the defendant has done, he has done and that any offence deserves a certain punishment, once proved, whether it is admitted or not. The argument that a plea of guilty shows remorse is, in most cases, illusory. In some cases, a principled social answer is possible for those systems where trials are largely oral. If the main witness is vulnerable (particularly children and victims of sexual assault), the oral hearing may constitute a further form of victimisation. In such cases, by his plea avoiding the need for a hearing, a defendant has lessened or avoided harm which his actions would otherwise have caused.

84. Outside this minority of cases, such an answer is not valid. If a man is charged with a series of burglaries because of fingerprint or scientific evidence, the only witnesses he has saved from giving evidence are professionals, well used to giving evidence. The reason for encouraging pleas of guilty by a discount then is the pragmatic advantages that guilty pleas bring in (i) ensuring the conviction of offenders, who know that they are guilty, but who would otherwise have no incentive not to insist on a trial in the hope that the evidence or witnesses against them might not persuade a jury or judge and (ii) shortening cases (and avoiding delay to other trials, even in cases where a conviction would anyway have resulted from a full trial. These are real pragmatic benefits for society as a whole.

85. But it is clear that, if sentence discounts are to be permitted, certain safeguards must be in place. Care must be taken by the lawyers and the judges to ensure that the pleas of guilty are voluntary and represent real admissions of guilt. Judges should not mention or be involved in any discussions between lawyers and the defendant regarding the possibility of such a discount. Judges should have the power not to approve of any plea, which it appears may not be truthful or in the public interest.

86. The CCJE doubts whether it would be realistic to recommend immediate implementation of a system of sentence discount for a guilty plea in all member states. But the CCJE recommends all countries to consider whether such a system might not bring benefits to their criminal justice process.

II. CIVIL COURTS

87. Recommendation No. R (84) 5 identified eight “principles of civil procedure designed to improve the functioning of civil justice”. This was a far-sighted early Recommendation, but still in practice often unimplemented. The CCJE considers that it would, if implemented generally, offer a real guarantee of compliance with states’ duty under article 6 of the ECHR to ensure “a fair and public hearing within a reasonable time” in civil proceedings.

88. The eight principles set out core elements of the case management powers which the CCJE considers that judges should have and exercise from the commencement to the conclusion of all civil (including administrative) proceedings in order to ensure compliance with article 6. The CCJE will therefore summarise and comment on these Principles in a little detail.

89. Principle 1 of the Recommendation suggests a limit in proceedings of “not more than two hearings”, one preliminary and the second for evidence, arguments and, if possible, judgment, with no adjournments allowed “except when new facts appear and in other exceptional and important circumstances” and sanctions on parties, witnesses and experts failing to comply with court time-limits or non-attendance.

90. The CCJE views this principle as a general template. Some systems take evidence over a number of hearings. Others handle very large litigation which could not possibly be conducted within the constraints of one preliminary and one final hearing. The most important point is that judges should from the outset control the timetable and duration of proceedings, setting firm dates and having (and being willing wherever appropriate to exercise) power to refuse adjournments, even against the wishes of both parties.

91. Under principle 2, judges should have power to control abuse of procedure, by sanctions on a party or lawyers.

92. Principle 3 reflects the essence of modern case management:

“The court should (…) play an active role in ensuring the rapid progress of the proceedings, while respecting the rights of the parties, including the right to equal treatment. In particular, it should have proprio motu powers to order the parties to provide such clarifications as are necessary; to order the parties to appear in person; to raise questions of law; to call for evidence, at least in those cases where there are interests other than those of the parties at stake; to control the taking of evidence; to exclude witnesses whose possible testimony would be irrelevant to the case; to limit the number of witnesses on a particular fact where such a number would be excessive (…).”

93. Principle 4 supplements this, by providing that the court should, except in cases expressly prescribed by law, be able to decide whether to use written or oral proceedings.

94. Principle 5 addresses what is, in the CCJE’s view, a vital aspect of efficient case management: the need to crystallise the parties’ claims and the nature of their evidence at the earliest possible stage – and to exclude the admission of new facts on appeal, unless they were (or, the CCJE would suggest, could not reasonably have been) known at first instance or there was some other special reason.

95. In some countries, the rules or culture governing litigation allow parties to correct and supplement their cases and evidence almost without restriction – even at an appellate level (see further below). The CCJE considers that this is no longer acceptable, and that the time has come to re-examine such rules and change such culture. Parties are entitled to “a fair …hearing within a reasonable time” of their claim or defence, not to indefinite opportunities to present further and different cases - and especially not so by way of a second instance hearing on appeal.

96. Principle 8 identifies some aspects of case management, including special procedures for (a) urgent cases, (b) undisputed cases, liquidated claims and small claims, (c) specific types of case. Among these are, it states:

“simplified methods of commencing litigation; no hearing or the convening of only one hearing, or (…) of a preliminary preparatory hearing; exclusively written or oral proceedings (…); prohibition or restriction of certain exceptions and defences; more flexible rules of evidence’ no adjournments or only brief adjournments; the appointment of a court expert (…); an active role for the court in conducting the case and in calling for and taking evidence.”

97. Principle 9 emphasises the need for “the most modern technical means [to] be made available to the judicial authorities”. The CCJE endorses and underlines the relationship between efficient technology and judges’ ability to keep track of and control the litigation on their or their courts’ dockets.

98. The general rationale of all these principles is that civil litigation threatens to become complex and lengthy to the point where it is not possible to comply with the requirements of article 6 (1) of the ECHR either in any particular case(s) or in any other cases, the speedy and efficient conduct of which is indirectly affected by the time and resources occupied by the former case(s).

99. States have to provide adequate - but not infinite - resources and funding for civil as well as criminal litigation[21]. Because neither the state nor parties have infinite resources, courts must control litigation, in the interests both of individual litigants and litigants in other cases.

100. Individual cases need to be conducted “proportionately”, meaning both in a manner that enables the parties thereto to obtain justice at a cost commensurate with the issues involved and the amounts at stake, and in a manner that enables other litigants to obtain their fair share of the court’s time for their disputes.

101. In short, parties are entitled to an appropriate share of the court’s time and attention, but in deciding what is appropriate it is the judge’s duty to take into account the burden on and needs of others, including the state which is itself funding the court system and other parties who wish to use it.

102. Different countries have differing levels of implementation of the principles in Recommendation No. R (84) 5. The general direction of legal reforms of civil procedure instituted over recent years has been in this direction. Judges have been given greater power on the “formal conduct” of civil proceedings, though not over their substantive progress – they cannot, for example, take steps to introduce into a case factual evidence that the parties have not adduced. However, in some member states it is still not the judge’s role to decide whether the procedure should be oral or written, or when to resort a summary judgment or to set time limits, because these matters are fixed by law. The CCJE considers that these restrictions to the powers of control and impetus of the judge on the progress of the procedure are not compatible with efficiency of justice.

103. The CCJE will now consider certain procedures which have been adopted or suggested in this area:

(a) Pre-action protocols

104. Pre-action protocols (developed in the United Kingdom) prescribe steps which should be taken before proceedings are even commenced. They are formulated by co-operation between representatives of those interested on both sides of certain familiar types of dispute (personal injury or medical negligence or construction industry insurers, lawyers and interested bodies). Their purpose is to achieve early identification of the issues, by exchange of information and evidence, which may enable parties to avoid litigation and reach a settlement. If settlement cannot be reached they ensure that parties are in a much better position to respond to timetables imposed once proceedings are issued. The court may sanction failure to follow a pre-action protocol.

(b) Pre-action information

105. This is a feature of litigation which enables a court, before litigation is begun, to order disclosure of documents by a person likely to be a party to such proceedings, where this is desirable, amongst other reasons, to enable that person to know whether the facts justify proceedings at all, or to enable him to take better informed steps to resolve the dispute amicably without proceedings.

106. It is important that these should be available, where required, at an early stage, including in some cases before notification of the issue of proceedings to a defendant, or their purpose may be defeated.

107. A wide range of protective measures is available. Three main groups can be identified:

(i) measures aiming to secure enforcement, e.g. seizure or a “freezing” injunction;

(ii) measures intended to settle the situation provisionally (for instance, in family matters); and

(iii) measures anticipating the final judgment.

108. In many countries, the claimant has to present an appearance of right (fumus bonis iuris) and he must normally show a risk that, without such measures, any final judgment obtained could not be enforced (periculum in mora). The measure can be ordered without hearing the other party (ex parte) but, after making such an order, the defendant has a right to be heard, when the measure can be either confirmed or revoked and other countries.

109. Injunctive relief is also widely available in other situations in member states (sometimes only if the claim has a documentary basis), in order to settle provisionally some aspect(s) of the dispute. Common law countries have also developed the tool of the “Anton Piller” order, whereby the court can order a search for documents or other evidence in the defendant’s possession or control, which might otherwise be destroyed or concealed. Mésures d’instruction in futurum can fulfil a similar function in France and other countries.

(d) Commencement of proceedings

110. Most member states have provided certain simplified (including electronic) methods of commencing litigation. But differences between the traditional methods of commencing proceedings make it difficult to compare the different methods of simplification. For example, in some countries, proceedings have always been begun by steps taken in court, whereas in others the plaintiff has had to notify the claim to the defendant before going to court. In the latter states, the simplification may simply consist in allowing proceedings to be begun without this step being taken.

(e) Identification of the parties’ cases

111. The CCJE has already underlined the importance of this in its discussion (above) of Principle 5 of Recommendation No. R (85) 5. It is central to good case management that each party in civil proceedings should have to be as explicit as possible as soon as possible regarding its case – and that changes or additions to a party’s case should not be made as of right, but should require the judge’s permission, which should only be given or withheld having regard to the stage which the proceedings have reached and the effect on their conduct as well as on other parties.

(f) Summary proceedings

112. There are major differences in terminology in this area. Not all states understand the concept of summary, simplified and accelerated procedures in the same sense. Some only speak of procedures as summary when their outcome does not have the force of “res judicata”, and refer to simplified procedures when certain steps have been eliminated or made easy, and to accelerated procedures when time limits have been abbreviated compared with ordinary proceedings. These features can of course coincide, so that a procedure can, at the same time, be summary, simplified and accelerated.

113. Common law jurisdictions in contrast use the word “summary” to cover simplified and accelerated procedures leading to a final (res judicata) decision, although they also have procedures for provisional judgments, e.g. procedures whereby the court may, if provisionally satisfied that a defendant will be liable in debt or damages, order an “interim” payment of not more than a “reasonable proportion” of the liability to be paid to the claimant. If at a trial the claimant then fails to prove his case, the claimant must repay the interim payment, with interest.

114. Two civil law procedures are of particular importance: i) the order for payment (“Mahnverfahren”, “injonction de payer”); ii) the “référé” or, in the Netherlands, “kort geding”:

(i) The order for payment (or “Mahnverfahren”) is a procedure especially suited to uncontested monetary debts. At a claimant’s request, the court issues an order to pay without having heard the other party. In some countries a documentary basis is required for issuing the order, in other countries it is sufficient with the statement done by the claimant. If the defendant remains passive during the delay established by the law, the order becomes enforceable like an ordinary judgement. If the defendant objects, the plaintiff has to start a normal procedure if he wants to recover his debt. It is the debtor’s silence that transforms the initial order of payment into a judicial and enforceable decision that has the force of “res judicata”. In some countries a court clerk is in charge of the procedure. It is a written procedure, which permits computerized treatment (already in operation in some countries). Many cases are determined by this procedure.

(ii) The procedure of “référé” or “kort geding” enables a judge to decide any question after hearing the parties on the basis of the sometimes limited evidence that they are able to put before the court within a short time-limit. A decision is then rendered either immediately after the hearing or within a very short time. This is directly enforceable but the judgment does not have the force of “res judiciata”. A party is free to commence a procedure on the merits, but if none is initiated, the “référé” judgment will determine the rights and obligations of the parties. Thus, the procedure on the merits will often never take place. Because of the importance of the “référé”, an experienced judge (often the president of the court) is normally in charge of this kind of procedure. The “référé” procedure in practice also assists to alleviate a court’s workload, and to avoid the delays inherent in some states in ordinary civil proceedings.

(g) Interlocutory judgments

115. The power to “direct a separate trial of any issue” can have real importance. To take an example, matters fundamental to jurisdiction should, in the CCJE’s view, be resolved by a separate judgment at the outset of proceedings. This avoids the need for unnecessary, costly and time-consuming argument and investigation on the merits. But in some countries there exists no procedure for giving interlocutory judgments, and in others any interlocutory judgment can only be appealed after the first instance court has gone into and determined the rest of the case.

116. The CCJE recognises that care is necessary in the selection and definition of issues suitable to be dealt with by interlocutory judgment. There is a risk that time, effort and costs may be spent on an interlocutory issue (or on an appeal in an interlocutory issue), when it would be speedier and simpler to resolve the rest of the case. With that caveat, the CCJE recommends that the procedure for giving interlocutory judgments should be available, and that appeals in respect of interlocutory judgments should normally be permissible.

117. The remedies for avoiding delays due to such appeals should consist in either a requirement to obtain the permission of the court of first instance or appeal for any immediate appeal and/or a speedy appellate system.

(h) Evidence and documentation

118. Most states have flexible rules of evidence. In protective and summary procedures, the judgment will not necessarily be based on full evidence. In protective measures, the claimant need only present an appearance of his right (“prima facie” evidence) in civil law countries, or need normally only show an arguable case on the facts in common law countries.

119. There are important differences in relation to disclosure of documentation between common law and civil law countries. In the former each party must voluntarily make disclosure of relevant documents (that is documents on which he relies in support of his contentions or which materially affect his case or support the other party’s case). The requirement to disclose unfavourable as well as favourable documents often proves a considerable incentive to settlement - either before or after disclosure has had to be made. It is also a considerable aid to fact-finding, at trial.

120. However, this procedure does rely on the honesty of legal advisers in advising their clients regarding production of documents, and it also involves legal and other costs in searching for and producing documents. It may be said therefore to be particularly suitable for larger or more complex cases.

121. In many other countries (especially civil law systems) a party can only gain access to a document under his opponent’s control and upon which the latter does not intend to rely, by applying for an order that the particular document be made available. This implies that the party seeking the order has to know previously the existence of the document and has to identify it, which is not always easy.

(i) General case management powers

122. These are important at every stage of civil proceedings, to enable cases to be managed appropriately and proportionately. Judges should be able to exercise them by giving directions on paper, without the parties necessarily having any right to an oral hearing. They should be exercisable as contemplated by Recommendation No. R. (84) 5 both in relation to pre-trial preparation and in relation to any trial.

(j) Incentives in respect of costs and interest

[123. English law has introduced provisions for offers to settle and payments into court, which can have severe financial consequences for a party failing at trial to better the other side’s previous offer. A claimant may offer to accept, or a defendant may offer to pay, less than the full claim. (In the case of a money claim, the defendant must also follow up his offer, by paying the money into court.) If a claimant gets more than he offered to accept, or a defendant is ordered to pay less than he offered to pay, then, save in the case of small claims, adverse consequences may follow in costs, and also, for a defendant, in interest].

124. There does not appear to be any comparable system of financial incentives in other European countries. But in some countries, where lawyers’ fees are regulated by statute, the legislature, in order to provide an incentive for lawyers to encourage settlement, has raised the statutory settlement fees for lawyers to 150% of the normal full fee. The English provisions can also be indirectly beneficial to the claimant’s lawyers (in increasing the costs they recover), and so involve a similar incentive.

(k) Enforcement

125. There are at present differences in attitude to enforcement of first instance judgments. In common law jurisdictions, the general rule is that such judgments are automatically enforceable, unless the court for good reason orders a stay. Good reason could include any unlikelihood of recovering monies paid, if the judgment were later set aside on a successful appeal. In civil law countries, in contrast, the position is sometimes regulated by law, sometimes left to the judge to decide. The judge may then grant provisional enforcement of the judgment, especially if there is a danger that, during the delay involved in any appeal, a situation might occur or be brought about by the losing party whereby the judgment would never be honoured. Normally, however, the winning party would then be required to provide security for any damage that might occur as a result of the enforcement if the judgment was reversed on appeal. It can be said to be usual in the case of money judgments for the judgment to be made enforceable by law or by the judge unless the debtor puts up security.

126. The CCJE considers that, to ensure the efficiency of justice, all countries should have procedures for provisional enforcement, which should normally be ordered, subject to satisfactory protection being made available to the losing party against the event of a successful appeal.

(l) Appeals

127. The different appellate systems divide into two broad groups: (a) appeals limited to revision on matters of law and the assessment of evidence, with no possibility on appeal of fresh new evidence or of a decision on any point not raised before the first instance judge; and (b) appeals in which such limitations do not exist and the court can hear new evidence and take into account new points raised in the proceedings before the appellate court.

128. There are intermediate systems, which in some cases or at some instances permit what is described as the “ordinary remedy” of an unlimited appeal, but in other cases or at other instances (e.g. in a court of cassation or Supreme Court) only permit the “extra-ordinary remedy” of a “review” on limited basis and in specific circumstances.

129. The difference between (a) and (b) is sometimes explained as being that in the former group an appeal is viewed primarily as a technique for ensuring uniformity in the application of legal principles (ius constitutionis), whereas in the latter group it is viewed as a procedural right, the main function of which is to give a party another opportunity (ius litigationis). That raises the question whether it is necessary or desirable that a party should have such a procedural right at any level, even a second instance level.

130. The CCJE has, in considering Principle 5 of Recommendation R. (84) 5 (above), pointed out that nothing in article 6 of the ECHR requires it: a party is entitled to “a fair … trial” - not to two or more fair trials.

131. Although conscious of the weight of tradition in some countries favouring an unlimited right to (in effect) relitigate issues on appeal to a second instance, the CCJE wishes to indicate its disapproval in principle of this approach. There ought to be limitations on a party’s right to adduce fresh evidence or to raise fresh points of law. An appeal ought not to be or to be regarded as an unlimited opportunity to make corrections in respect of matters of fact or law which a party could and should have put before a first instance judge. This undermines the role of the first instance judge, and has the potential to make irrelevant any case management by a first instance judge.

132. In the CCJE’s view, it also tends to frustrate the legitimate expectations of the other party to the litigation, and to increase the length, cost and strain of litigation.

133. The CCJE notes, however, that even in countries accepting a ius litigationis, mechanisms (e.g. the power to declare hopeless appeals to be “manifestly ill-founded”) have been developed which constitute a partial safety valve, reducing to some extent the over-loading of the appellate system.

The CCJE therefore recommends that controls on unmeritorious appeal be introduced, either by provision of a leave to appeal to be granted by a court or by an equivalent mechanism that ensures that the speedy disposition of meritorious appeals is not impaired.

134. The CCJE recommends consequently:

General

i. The recommendations in Recommendation No. R (87) 18 regarding reduction in the workload of courts should be implemented.

ii. States should provide adequate resources for criminal and civil courts, and judges should (even where they have no direct administrative role) be consulted and have a say in basic decisions about the shape of modern justice and the priorities involved (see paragraphs 51-54 above).

iii. Judges should encourage consensual settlement (whether by the parties alone or through mediation) since it has an independent worth, reflecting the values of freedom of choice and agreement, compared with a court-imposed solution (see paragraph 49 and section D below).

iv. It is generally desirable, in countries whose consititutional arrangemertns so permit, that ther should be some flexibility enabling judges and/or cases to be transferred relatively easily betweeen, court, at least on a temporary basis and subject to their consent, to cater for fluctuations in workload. Regard should always be had, when considering court closiures, to the right of citizens to have convenient accerss to their courts (see paragraph 55-58 above).

v. A single judge should be used to determine guilt or innocence “wherever the seriousness of the offence allows”, but it underlines the importance, in serious cases involving the liberty of the individual, of the collegiality of fact-finding provided by a panel of three or more, whether lay or professional. The CCJE also considers that countries should encourage training and career development to make full use of single judges to hear first instance cases, wherever this can be achieved commensurately with the experience and capabilities of the judges available and the nature of the proceedings (see paragraphs 59-62 above).

vi. The non-judicial activities listed in Recommendation No. R (86) 12 should be assigned to officers other than judges, and attention should be given to the risks inherent when judges are permitted to undertake other private work, which might impact on their public duties. Judges should not be discouraged from serving on relevant commissions and other out-of-court bodies but should exercise particular caution before accepting appointment in cases where essentially non-legal judgments are involved (see paragraphs 63-66 above).

vii. In criminal cases, legal aid or free legal representation should be available without evaluation of the merits of the defendant’s position. The CCJE recommends further study of the differences between the nature and seriousness of the cases for which such aid or representation is available in different countries. In civil cases suitable control systems need to be introduced for evaluating the merits of claims in advance (see paragraph 67 above).

viii. In respect of all aspects of case management, comparative study of other states’ experience offers valuable insights into specific procedural measures that may be introduced, a number of which are discussed in more detials in the text above.

Criminal cases

ix. Further studies ought to be encouraged in individual states which do not presently have any system of or equivalent to discretionary prosecution so as to give effect to Recommendation No. R (87) 18 (see paragraphs 70-75 above).

x. All countries should consider whether a system of sentence discount for a guilty plea might not bring benefits to their criminal justice. Any such plea must be in court and be taken by a judge. Lawyers should have a professional obligation to ensure that the plea of guilty is entered voluntarily and with the intention to admit each of the elements of the offence charged (see paragraphs 76-86 above).

Civil cases

xi. To comply with their duties under article 6 of the ECHR to ensure “a fair and public hearing within a reasonable time”, states must provide adequate resources and courts must conduct individual cases in a manner which is fair and proportionate as between the particular parties and takes into account the interests of other litigants and the public generally; that means conducting such litigation in a manner that enables the parties thereto to obtain justice at a cost commendsurate with the issues involved, the amounts at stake and (without prejudice to the state’s duty to provide appropriate resources) the court’s own resources and that enables other litigants to obtain their fair share of the court’s time for their own disputes (see paragraphs 99-100 above).

xii. The key to conducting litigation proportionately is active case management by judges, the core principles of which are stated in Recommendation No. R (84) 5. The most important point is that judges should from the outset and throughout legal proceedings control the timetable and duration of proceedings, setting firm dates and having power to refuse adjournments, even against the parties’ wishes (see paragraphs 87-98 above).

xiii. Parties should be required to define and commit themselves to their cases and evidence at an early stage, and judges should have power, both at first instance and on any appeal, to exclude amendments and/or new material after that stage (see paragraphs 118-121 above).

xiv. States should introduce (a) effective protective measures, (b) summary, simplified and/or abbreviated procedures and (c) procedures for early determination of preliminary issues (including jurisdictional issues) and for the speedy resolution of any appeal in respect of such preliminary issues (see paragraphs 107-127 above).

xv. Court judgments should be immediately enforceable, notwithstanding any appeal, subject to provision of security where appropriate to protect the losing party in the event of a successful appeal (see paragraphs 125-126 above).

xvi. Countries should give consideration to the possibility of introducing into their systems controls on unmeritorious appeals, in order to ensure that the speedy disposition of meritorious appeals is not impaired (see paragraph 133 above).

D. ALTERNATIVE DISPUTE RESOLUTION (ADR)

135. The Council of Europe has produced several instruments concerning alternative dispute resolution methods (ADR).[22] Being aware of the many positive effects of ADR, among which is its potential to lead to speedy settlement of disputes, the CCJE proposed that ADR be one of the items to be dealt with at the 1^st European Conference of Judges, within the larger framework of "case management".[23]

136. The 1^st European Conference of Judges demonstrated the importance of ADR in the early settlement of disputes.[24] It is apparent that while ADR must not be regarded as a perfect way of alleviating the courts’ excess workload, it is definitely useful and effective because it places the accent on an agreement between the parties, which is always preferable to an imposed judgement.

137. In the future the CCJE may engage in specific consideration of ADR. At present, within the scope of an opinion concerned with the reasonable duration of trials and the role of judges in the trial, the CCJE considers it necessary to encourage the development of ADR schemes, which are particularly suited to certain types of litigation, and to increase public awareness of their existence, the way they operate and their cost.

138. Since ADR and the justice system share similar objectives, it is essential that legal aid should be available for ADR as it is for standard court proceedings. However, both legal aid resources as well as any other public expenditures to support ADR should make use of a special budget, so that the corresponding expenses are not charged to the operating budget of the courts (see paragraph ... above).

139. The discussions held within the CCJE focused specifically on the scope of mediation, on the role of the judge in mediation during court proceedings, on confidentiality of mediation operations, on the possibility that courts supervise training/accreditation in mediation and judges act as mediators and on the necessity of a judicial confirmation of the mediation agreement between the parties. Separate considerations were made, when relevant, for criminal law matters, on one hand, and civil law (and administrative law) matters, on the other hand.

140. As for the scope of ADR, the relevant Council of Europe recommendations show that it is not confined to civil proceedings. The scope of mediation in criminal matters raises specific questions, on which the CCJE's discussions concentrated.

141. Unlike ADR in civil matters, criminal mediation is not useful to alleviate the current workload of the court system, although it may have a preventative effect in respect of future crimes.

142. Recommendation No. R (99) 19 concentrates solely on "mediation" between offender and victim. However, although there is a need for further research, the CCJE considers that nowadays the wider debate concerns the broader concept of "restorative justice", i.e. procedures allowing diversion from the normal criminal process before it starts (soon after arrest), after it has started as part of the sentencing process or even during the execution of punishment.

Restorative justice provides an opportunity for victims, offenders and sometimes representatives of the community to communicate, indirectly or directly, if necessary through a facilitator, about an offence (usually a minor offence concerning property or offences by young offenders) and how to repair the harm caused. This can lead to the offender making reparation - either to the victim, if the victim wishes, or to the wider community, for example by repairing property, cleaning premises, etc.

143. Therefore the scope of restorative justice in criminal matters is not as wide as ADR in civil matters; society may set ‘boundaries of permission’ outside which it would not support the resolution of a criminal case other than by the normal court process. In contrast with civil cases, the community will also often be a proper participant in the process of restorative justice. Reconnecting offenders with the community they have harmed, including through repair of some of the damage they have caused, and involving the community in creating solutions to crime in their area, is at the heart of much restorative justice.

144. In a number of respects schemes for restorative justice require more careful implementation than ADR in civil disputes, as bringing victims and offenders into contact is a much more sensitive process than bringing two parties to a civil dispute together; its success depends in part on a cultural change for criminal justice practitioners used to the normal trial and punishment model of justice.

145. The CCJE discussed the role of the judge in mediation decisions considering first of all that recourse to mediation, in civil and administrative proceedings, may be chosen on the parties' initiative or, alternatively, the judge may be allowed to recommend that the parties appear before a mediator, with their refusal to do so sometimes being relevant to costs.

146. The second system has the advantage of having parties, who are in principle reluctant to seek an agreement, initiate a discussion; in practice, this step can in itself prove decisive in breaking the deadlock in a contentious situation.

147. In any case, the parties should also be allowed to refuse recourse to mediation; such a refusal should not infringe the party's right to have his/her case decided.

148. As for the role of the judge in criminal mediation, it is evident that, if a criminal case is diverted from the normal prosecution process before proceedings have been started, the judge will usually have no role. If the case is diverted to restorative justice after it has started, it will require an order of a judge so diverting it. There are also differences relating to the adoption, in the several countries, of the principles of discretionary or mandatory prosecution.

149. In view of the fact that within the restorative justice system obligations are imposed on the offender and restrictions may apply in the victim's interest, the CCJE considers that it may be good practice to give to all restorative justice arrangements (or, if appropriate, those that are more than mere warnings with no legal relevance) the formality of judicial approval. This will allow control of the offences that might give rise to restorative justice and of the conditions governing respect for the right to a fair trial and other provisions of the ECHR.

150. Must mediation operations be confidential? The CCJE’s discussions show that this question must be answered in the affirmative regarding civil and administrative disputes. Seeking an agreement means, in general, that the parties must be able to talk to the mediator in confidence about possible proposals for settlement, without it being possible for this information to be divulged.

151. However, it would be useful to specify whether confidentiality should be absolute or whether it may be lifted by agreement between the parties. Also, one should ask whether the documents used during mediation may be produced in court if mediation has failed.

152. As the mediation procedure is based on agreement, it would seem possible to the CCJE to lift confidentiality in the event of an agreement between the parties; on the other hand, without such agreement it is inappropriate for the judge to take account of documents revealing one party’s attitudes or the proposals made by the mediator for settling the dispute. It is open to question whether and how far the judge may (as permitted in some jurisdictions) consider refusal to access mediation or to accept a friendly settlement when making orders relating to trial expenses or costs.

153. As for confidentiality in ADR in cirminal matters, the CCJE considers that, since the offender must be encouraged to speak frankly during the restorative justice process, confidentiality should also apply to this type of ADR. This poses the problem, especially in those systems where prosecution is obligatory, of what should be the consequences of admission of other offences on the part of the offender or of persons who are not participating in the mediation process.[25] The principles of the rule of law and of fair trial probably suggest that the offender should be warned, before initiating the mediation, that investigations may be initiated concerning offences that are different from those which lead to mediation.

154. Both in criminal and civil-administrative matters, the CCJE emphasises the need that ADR schemes be closely associated with the court system, since mediators should possess relevant skills and qualifications, as well as the necessary impartiality and independence for such a public service.

155. Therefore the CCJE emphasises the importance of training in mediation.

156. Recourse to mediators or mediation institutions outside the judicial system is an appropriate arrangement, [provided that the judicial institution can supervise the competence of these mediators or private institutions as well as the arrangements for their intervention and their cost]. The CCJE considers that appropriate legal provisions or court practice should confer the judge the power to direct the parties to appear before a judicially appointed mediator

157. The CCJE considers it possible for judges to act as mediators themselves. This allows judicial know-how to be placed at the disposal of the public. It is nevertheless essential to preserve their impartiality in particular by providing that they will perform this task in disputes other than those they are required to hear and decide. [The CCJE considers that a similar measure be taken within those systems that already provide for the duty of the judge to attempt conciliation of the parties to a case].

158. Judicial supervision of appointment of mediators is only one of the elements of a system designed to prevent dangers connected with privatisation of dispute resolution (and possible restrictions of substantial and procedural rights of the parties) that may result from a wide recourse to ADR. [The CCJE considers that it is also essential that courts control the mediation proceedings and their outcome].

159. It emerged from the CCJE's discussions that in some circumstances the parties may be granted the right to settle a dispute by an agreement which is not subject to confirmation by the judge. However, such confirmation might prove essential in certain cases, particularly where enforcement measures have to be considered.

160. At least in this case the judge must enjoy substantial supervisory powers, particularly concerning respect for equality between the parties, the reality of their consent to the measures provided for by the agreement and respect for the law and for public policy. As for specific aspects concerning criminal mediation, the CCJE may recall here the considerations in paragraph 149 above.

161. The CCJE consequently considers:

i. It is necessary to encourage the development of ADR schemes and to increase public awareness of their existence, the way they operate and their cost (see paragraph 137 above).

ii. Legal aid should be available for ADR as it is for standard court proceedings; both legal aid resources as well as any other public expenditures to support ADR should make use of a special budget, so that the corresponding expenses are not charged to the operating budget of the courts (see paragraph 138 above).

iii. Although, unlike ADR in civil matters, criminal mediation is not useful to alleviate the current workload of the court system, it may have a preventative effect in respect of future crimes; since Recommendation No. R (99) 19 concentrates solely on "mediation" between offender and victim, there is a need for further research on the broader concept of "restorative justice", i.e. procedures allowing diversion from the normal criminal process before it starts (soon after arrest), after it has started as part of the sentencing process or even during the execution of punishment; since schemes for restorative justice require more careful implementation than ADR in civil disputes, as bringing victims and offenders into contact is a much more sensitive process than bringing two parties to a civil dispute together, the success of such schemes depends in part on a cultural change for criminal justice practitioners used to the normal trial and punishment model of justice (see paragraphs 141-144 above).

iv. Recourse to mediation, in civil and administrative proceedings, may be chosen on the parties' initiative or, alternatively, the judge should be allowed to recommend it; the parties should be allowed to refuse recourse to mediation; such a refusal should not infringe the party's right to have his/her case decided (see paragraphs 145-147 above).

v. In criminal mediation, if a criminal case is diverted from the normal prosecution process after it has started, it should require an order of a judge; all restorative justice arrangements (or, if appropriate, those that are more than mere warnings with no legal relevance) should have the formality of judicial approval (see paragraphs 148-149 above).

vi. Mediation operations in civil and administrative disputes should be confidential; confidentiality may be lifted in the event of an agreement between the parties; it is open to question whether and how far the judge may consider refusal to access mediation or to accept a friendly settlement when making orders relating to trial expenses or costs (see paragraphs 150-152 above).

vii. Confidentiality should also apply to ADR in criminal matters; especially in those countries where prosecution is obligatory, the offender should however be warned, before initiating the mediation, that investigations may be initiated concerning offences that are different from those which lead to mediation (see paragraph 153 above).

viii. Both in criminal and civil-administrative matters, ADR schemes should be closely associated with the court system; appropriate legal provisions or court practice should confer the judge the power to direct the parties to appear before a judicially appointed, trained mediator, who may prove possession of relevant skills and qualifications, as well as of the necessary impartiality and independence for such a public service (see paragraphs 154-156 and 158 above).

ix. Judges may act as mediators themselves, since this allows judicial know-how to be placed at the disposal of the public; it is nevertheless essential to preserve their impartiality in particular by providing that they will perform this task in disputes other than those they are required to hear and decide (see paragraph 157 above).

x. ADR settlement agreements should be subject to confirmation by the judge, particularly where enforcement measures have to be considered; in this case the judge must enjoy substantial supervisory powers, particularly concerning respect for equality between the parties, the reality of their consent to the measures provided for by the agreement and respect for the law and for public policy; as for specific aspects concerning criminal mediation, further guarantees should apply (see paragraphs 158-160 above).

APPENDIX VI

PROGRAMME OF THE WORKING SESSION WITH THE

JUDICIAL SERVICE COMMISSION OF ITALY

MONDAY, 12 JULY 2004

15:00 Presentation of the work

- Mr Luigi Berlinguer, Professor, President of the 6^th Commission

- Mr Francesco Lo Voi, Judge, Vice-President of the 6^th Commission and rapporteur

15:20 Welcome by Mr Raffaele Sabato, Judge, Court of Naples

15:30 The early settlements of disputes: the urgent procedure in French law

- Mr Alain Lacabarats, Président de chambre, Court of Appeal of Paris, Chairman of the CCJE

15:.50 The organisation of a judge’s work

- Mr Claudio Viazzi, Judge, President of Section, Court of Genova

16:10 Active case management by the court in the Woolf reforms and in the CPR for England and Wales

- The Right Honourable Lord Justice Mance, Judge, Court of Appeal of England and Wales, Former Chairman of the CCJE

16:30 Procedural instruments to accelerate the civil disputes’ resolution in the Italian system

- Mr Fabio Massimo Gallo, Judge, President of the Labour Section, Court of Rome

16:50 Case Management in criminal cases – perspectives and limits

- Mr Vittorio Fanchiotti, Professor of criminal procedure, Law Faculty of the Genova University

17:15 Coffee/tea break

17:30 Round Table (with the intervention of the members of the CSM and other participants)

18:30 Conclusions

- Mr Luigi Scotti, Judge, President of the Court of Rome

19:30 End of the work

APPENDIX VII

NOTES ON THE 2^ND EUROPEAN CONFERENCE OF JUDGES

I. Introduction

The 2^nd European Conference of Judges will be held on 25 and 26 April 2005 in Krakow (Poland) during the Polish Chairmanship of the Committee of Ministers of the Council of Europe. It is being organised by the Council of Europe at the instigation of the Consultative Council of European Judges (CCJE)[26], in collaboration with the Polish National Council of Justice and with the assistance of the Polish Ministry of Justice. The Conference will be on the theme of “Justice and the media”.

It is associated with the implementation of the framework global action plan for judges in Europe, adopted by the Committee of Ministers of the Council of Europe at its 740^th meeting (7 February 2001). The aim of the framework plan is to strengthen the role of judges in Europe and to provide the Committee of Ministers with information on important questions of concern to judges in the member states.

The Conference is open to judges and all persons professional concerned with its topic, namely media representatives, parliamentarians, representatives of international organisations interested, and experts in the matters discussed.

II. Presentation of the Conference

1. Aims of the Conference

The Conference is intended to help strengthen the principles of rule of law and enhance protection of human rights by identifying approaches which States can apply in order to strike a balance in the relationship between justice and the media.

It also seeks to furnish information which the CCJE will bear in mind when it draws up its Opinion on the theme: “Justice and Society” in 2005 in accordance with its specific terms of reference.

Thus the Conference should come up with answers to a series of questions, so as to arrive at principles for reconciling protection of the right of expression and the right to knowledge with the rights to a fair hearing, to protection of privacy, reputation and human dignity, and to the presumption of innocence. Should the right to knowledge be limited by the secrecy of judicial investigation? Is a reform of justice necessary in order to ensure the transparency of information? How can one contrive to strike a proper balance between public freedoms and citizens’ rights having regard to the requirements of the European Convention on Human Rights and given that the citizens claiming the right to be informed are equally desirous of guarantees for protection of their privacy?

Themes to be developed during the Conference

A. Publicity of justice

The increasing societal demand to be informed concerning the foundations of judicial decisions is a phenomenon linked with the growth of citizens’ democratic awareness. It behoves the courts to take account of this by displaying openness, with due care to preserve the impartiality of the decisions delivered in accordance with the requirements of the European Convention on Human Rights.

i. Publicity of hearings and media access: the right to a fair trial

Under this theme, participants will discuss the fundamental question of how to reconcile the right to freedom of expression and information with the right to a fair trial. Reference will be made especially to the case-law of the European Court of Human Rights. Information on the application in the member states of Recommendation Rec (2003) 13 on the provision of information through the media in relation to criminal proceedings would be a useful asset to the debate.

ii. The right of access to information and the judge’s obligation of discretion

Under this theme, participants will examine the question of access to information and journalists’ access to hearings and to court files having regard to the regulatory devices which exist in member states in this area. They will look into ways of securing the transparency of judicial proceedings which is necessary in a democratic society.

Article 10 of the European Convention on Human Rights secures to the public the right to receive information of public interest. As the media perform a particularly important role in the delivery of information to the public, they should be able to disseminate information on the activities of the courts. To fulfil this function, should the media have unlimited access to court files? At which stage of the proceedings should information on their progress be public? Should the introduction of the televised press into court rooms be authorised? If so, which rules should govern the conditions of circulation of recordings in order to avert risks of manipulation?

If the media are admitted to public hearings and deliveries of judgments, which arrangements should the courts make to fulfil the requirements of Article 10, while upholding the safeguards of Article 6 ECHR? What should be the role of the judge’s statutory duty of discretion in this context?

iii. The judge and the media – the journalist in court: the image of justice in society

A free, critical press and a transparent, independent judicial system are both guardians of rule of law. And although these two pillars of democracy have differing functions, justice suffers from the negative image which the media create for it.

Under this theme, participants will discuss the effects of media exposure of justice on its perception in society.

iv. Round table: towards a balanced relationship between justice and the media

Under this theme, participants will discuss possible avenues to be established for improving relations between judges and journalists. They will describe good practices in this respect in their countries. Clarity of the grounds stated for judgments, training and the role of a court spokesperson and of the judicial service commission will receive specific mention in the debate.

B. Protection of individuals

Confronted with growing media intervention, the courts are compelled to take care of the necessary balance between freedom of information and respect for privacy or the presumption of innocence. Participants will analyse the means available to justice for protecting individuals in this context.

i. Protection of human dignity and freedom of expression

In the light of national case-law, participants will seek answers to questions that arise in connection with defamation proceedings, for instance: Does the level of protection of the right to respect for privacy and human dignity depend on the individual’s social status? How can we ascertain individuals’ threshold of sensitivity to criticisms or attacks by the press?

ii. Freedom of the media and protection of private and family life

Under this theme, reference will be made especially to the case-law of the European Court of Human Rights and to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108).

iii. Protection of personality rights and liability of journalists for release of inaccurate information

Participants will look into the statutory foundation of journalists’ liability for release of incorrect information about an individual (criminal or civil liability?). Where a journalist, acting with full professional diligence and rectitude, releases an inaccurate piece of information, can he/she be guilty of violating personality rights? Is the journalist’s action then contrary to law? In the light of the case-law of the European Court of Human Rights, what is the journalist’s liability for the release of inaccurate information, depending whether it relates to the facts or to his/her opinions? How does the law governing the press regulate liability in these cases? Is it possible to demand publication, and if so subject to what time limits, of a rectification of inaccurate information?

iv. The role of precautionary and compensatory measures in cases concerning protection of privacy

Recourse to precautionary measures (before publication of the text at issue) and compensatory measures (after publication of the text) is a way of protecting privacy. Participants will share their experience regarding the application of these measures. They will look into the role performed by these measures and, in particular, consider the question whether these measures can be regarded as preventive censorship in cases concerning protection of privacy.

v. Panel discussion: working together to protect human rights and fundamental freedoms more effectively

In order to discover the reasons for the misunderstandings, or even mistrust or hostility between judges and journalists, and to offer a meeting-point where each side would be able, without dishonouring its own special characteristics, to acknowledge the other side’s logic, a panel discussion will provide an opportunity for the discussion group made up of representatives of the two professions to express mutual expectations and criticisms.

3. Working methods

The Conference proceedings will be conducted in plenary sessions.

The first day will focus on the publicity of justice. Three themes discussed through this day will be introduced by the rapporteurs and followed by general debate. Proceedings will concentrate on comparison of national regulations and practices concerning journalists’ access to judicial information, and its presentation to the public, as well on the difficulties encountered by judges and journalists in their day-to-day relations.

This part of the proceedings will be followed by a round table during which all participants will be invited to present good practices established in their countries in order to foster understanding between judges and journalists with the aim of supplying the public with accurate information.

The second day will focus on protection of individuals. Its activities are intended to stimulate exchange of ideas between the rapporteurs and the participants about the basic questions of a linkage between the values protected by the Convention.

Four themes will be introduced by rapporteurs and followed by general debate. The case-law of the European Court of Human Rights and national legislation and practice will provide the basis for discussion.

This will be followed by a panel discussion in which judges and journalists will take part.

After the close of the proceedings and the presentation of a consolidated report, the participants will adopt the Conference conclusions.

Persons wishing secure an opportunity to contribute to the discussions are invited to enter their names on the list of speakers by sending an e-mail to the following address: [email protected] by 20 April 2005. It will of course be possible to speak impromptu within the limits of the timetabling of the debate. Oral statements should not exceed 5 minutes.

In order to give the discussions the requisite substantive basis, the organisers wish to produce a consolidated document founded on the national reports, containing relevant information on the themes set out in the programme, with particular attention to the following questions:

- the application of Recommendation Rec (2003) 13 on the provision of information through the media in relation to criminal proceedings,

- the application of Recommendation Rec (2002) 2 on access to official documents;

- national legislation on access to information, journalists’ access to hearings and court files, the statutory foundation of journalists’ liability,

- relevant national case-law on freedom of expression, protection of privacy and human dignity,

- best national practice for the enhancement of relations between justice and the media.

Participants are accordingly invited to prepare written statements of approximately four pages, the main points of which they can present orally, if so desired, during the proceedings. The statements, in English or French, should be sent before 1 March 2005 by e-mail to the Secretariat of the Consultative Council of European Judges (CCJE) at the following address: [email protected].

Participants are also invited to identify the problems and work out proposed solutions to be adopted for achieving balance in relations between justice and the media.

The principal problems brought up in the debate will be duly reflected in the consolidated report and taken into consideration for the formulation of the Conference conclusions.

The working languages will be English, French and Polish.

III. Draft programme of the Conference

Monday 25 April 2005

9:30 Opening sitting

Publicity of justice

10:30 Publicity of hearings and media access: the right to a fair trial

Debate

11:30 Break

12:00 The right of access to information and the judge’s duty of discretion

Debate

13:00 Lunch

14:30 The judge and the media – the journalist in court: image of justice in society

Debate

15:.30 Round table: towards a balanced relationship between justice and the media

Debate

17:30 End of the first day’s proceedings

Tuesday 26 April 2005

Protection of individuals

9:30 Protection of human dignity and freedom of expression

Debate

10:30 Freedom of the media and protection of private and family life

Debate

11:30 Break

12:00 Protection of personality rights and journalists’ liability for release of inaccurate information

Debate

13:00 Lunch

14:30 The role of precautionary and compensatory measures in cases concerning the protection of privacy

Debate

15:30 Panel discussion with debate: working together to safeguard human rights and fundamental freedoms more effectively

16:30 Break

16:45 Summing-up of the proceedings and conclusions

17:30 Closure of the meeting

APPENDIX VIII

HEARING FOR THE CHAIR OF THE CCJE AT THE 876^th MEETING OF THE MINISTERS’ DEPUTIES OF THE COUNCIL OF EUROPE

(Strasbourg, 7 April 2004)

ADDRESS

Delivered by Mr Alain LACABARATS

Mr Chairman, Your Excellencies, honoured Representatives,

In his speech on 10 July 2003 at the 848^th meeting of the Ministers’ Deputies of the Council of Europe, Sir Jonathan MANCE presented to you the work already completed by the Consultative Council of European Judges (CCJE) from its foundation up to the end of 2000. It covers such varied subjects as the independence, irremovability, ethics and responsibility of judges and the question of court funding arrangements.

Despite their seeming diversity, these various topics all tie up with the necessary conditions for proper functioning of judicial systems according to procedures that comply with the demands of democratic societies.

Having been elected to the Chairmanship of the CCJE for the year 2004 after serving as its Vice-Chair from the outset, it behoves me to strive to carry on the outstanding work of leadership and activation performed by Sir Jonathan MANCE at the head of our Council, to help promote judicial systems meeting the expectations of persons involved with justice.

Sir Jonathan‘s distinguished merits are a valuable inspiration for me in carrying on this task, in which he most fortunately continues to take part as a member of the Council and its Working Party.

I also wish to greet the election to the office of Vice-Chairman of Mr Raffaele SABATO, judge at the Naples district court, who for 4 years has made a very active and informed contribution to the work of the CCJE.

The year 2003 was highly rewarding for the CCJE.

The year was marked first of all by a major project on the training of judges in Europe, carried out with the help of an expert, Ms Rosa JANSEN, Vice-President of the Utrecht court (Netherlands).

In its report to your Committee dated 15 December 2003, the CCJE. stressed that for judges training is both a right and a duty, a guarantee of their competence, independence and impartiality. It is thus a prerequisite if society is to place its trust in justice.

In this perspective, the CCJE has emphasised the importance of initial training, whatever the method of recruiting judges, and of in-service training, rendered indispensable not only by changes in the law, technology and the knowledge required to perform judicial duties, but also by the possibility which members of the judiciary are afforded in many countries to take up new responsibilities with a change of post.

As to the content of training, while thorough knowledge of the law is plainly natural and indispensable, training programmes should also take into consideration the fact that judges are obliged to have an extensive grounding in multiple disciplines bearing witness to the complexity of life in society.

Finally, this training must allow judges to be made highly receptive to ethics and sense of responsibility.

The CCJE also emphasised the public interest which attaches to training, in that State authorities are under an obligation to provide judges with the necessary means for their training.

It took the view that training should be placed under the overall responsibility of the judiciary and in practice conducted by special establishments enjoying an independent status that enables them to define the training programmes on their own initiative, in consultation with the judges.

The colloquies organised as part of the Council of Europe co-operation programmes to consolidate the rule of law in April 2003 by the Portuguese Judicial Service Commission in Evora (Portugal ) and by the Romanian Institute of the Magistracy in Bucharest in November 2003 on judges’ training issues were fitting occasions to demonstrate, above and beyond the diversity of national models, the common resolve to promote judges’ professional competence as the essential factor that underpins the credibility and legitimacy of judicial systems.

The CCJE participated in these activities under conditions that enabled it not only to deepen its enquiry but also to convey information to its audience concerning the courses of action which it deems crucial to the quality of the service delivered by justice.

- The CCJE took note of the report entitled “Judicial independence: law and practice of appointments to the European Court of Human Rights” produced in May 2003 by the International Centre for the Legal Protection of Human Rights (“INTERIGHTS”). In its Opinion No. 5(2003), the CCJE welcomed the conclusions of the report which it endorsed, with the observation that the decisions of international tribunals have a growing influence on the practice of national courts and it is essential that the guarantees of independence and impartiality specified in its Opinion No. 1(2004) should also apply to judges of the international courts in order to maintain the citizens’ confidence in justice.

- The CCJE took an active part in the organisation by the Council of Europe on 24 and 25 November 2003 of an international conference of judges on early settlement of disputes and alternative dispute resolution methods, anticipating the work which it is to conduct in 2004.

The participants welcomed this Council of Europe initiative aimed at discovering means for more speedy and effective dispute resolution, whether by streamlined procedures suiting the requirements of litigants, or by alternatives methods for determining litigation.

On behalf of the CCJE I wish to thank the Committee of Ministers for having provided the necessary resources for holding this conference.

I also stress that the European Commission contributed financially to the conference; this betokens the Commission’s interest in Council of Europe work in the sphere of justice.

The CCJE moreover wishes to express its satisfaction and wholehearted approval following the Polish proposal to hold the next European Conference of Judges in that State during the year 2005.

This conference will be devoted to the theme of “Justice and the media” and will thus have a direct link with the CCJE’s terms of reference for 2005, since our Council has instructions to give an opinion on the educational role of the courts, relations with all those involved in court proceedings and the media, accessibility, and clarity of court parlance.

The year 2004 promises to be just as important for the CCJE, whose terms of reference specify that it is to formulate an opinion, further to the conference in November 2003, on the management of the cases before the courts.

The opinion will need to be adopted at the end of 2004, the preparatory work being conducted on the basis of the delegates’ replies to a questionnaire jointly drawn up by the Chair and Vice-Chair of the CCJE, which will also have the assistance of specialists to be designated by the Council of Europe.

The question to be addressed in 2004 is particularly sensitive since it arises in a context where for some years, under the influence of the European Convention on Human Rights, attention has focused on catering more adequately for the interests of persons before the courts, in order to fulfil the requirements of fair trial and handling of cases within reasonable time.

Backed by the substantial body of work already published by the Council of Europe, spanning more than 20 years, the CCJE will endeavour to deliver a full opinion and to set out its suggestions on a wide range of subjects germane to its terms of reference, notably methods for managing court proceedings, the respective roles of judges and other justice officials in this management, the place of alternative dispute resolution methods, the handling of litigation, the management of civil law cases, the use of simplified and accelerated procedures, the judge’s role in the preparation of the proceedings, the question of execution of judgments, the place of remedies and ways to avert dilatory use of them, the management of criminal cases, analysis of the multiple simplified forms for dealing with such cases, and the place of the judge in this type of action, particularly in relation to the prosecution.

With such a breadth of subject-matter the judicial models are many and varied, and often highly complex. It is not our purpose to determine whether there is a model globally superior to the rest; this would in any case prove impossible.

The CCJE, on the other hand, regards this profusion of models as an exceptionally rich source of material which it intends, as always, to turn to account in an effort to arrive at a number of guidelines and common principles capable of justifying the respect and confidence which the judicial authorities of each State should inspire in the citizens and the public authorities.

[1] Committee on judicial reform and administration of justice

[2] Was present at the 6^th meeting of the CCJE-GT (Strasbourg, 5-7 April 2004 /

Etait présent à la 6ème réunion du CCJE-GT (Strasbourg, 5-7 avril 2004.

[3] Was present at the 7^th meeting of the CCJE-GT (Rome, 12-14 July 2004 /

Etait présent à la 7ème réunion du CCJE-GT (Rome, 12-14 juillet 2004.

[4] Monday, 12 July 2004, 3.00 pm – 7.00 pm / Lundi, 12 juillet 2004, 15h00 - 19h00

[5] Recommendation N° R (84) 5 on the principles of civil procedure deisgned to imporve the function of justice

[6] Resolution (78) 8 on legal aid and advice

[7] See also footnote N°14 below

[8] See part C, lett. b

[9] The issues of case-load and case management were dealt with within the framework of the 1^st European Conference of Judges (see paragraph 8 above)

[10] Recommendation No R (86) 12 concerning measures to prevent and reduce the excessive work-load in teh courts. It covers:

(a) conciliation (or, to use the more curent term, “mediation”) procedures, including lawyers’ duty to promotesuch;

(b) other extra-judicial dispute resolutiuon procedures, including arbitration (and, although not expressly mentioned, ombudsmen);

(d) the removal from judges of non-judicial tasks;

(e) trial at first instance by single judges (as opposed to panels);

(f) revierwing the competence of courts, to ensure a balanced distribution of workload;

(g) evaluating the impact of legal (expenses) insurance, to see whether it encourages the filing of ill-founded claims

Recommendation No. R (94) 12 reminded states that their duty to provide proper working conditions for judges included “taking appropriate steps to assign non-judicial tasks to other persons” in conformity with the ealier Recommendation.

[11] Recommendation No. R (87) 18 concerning the simplication of criminal justice.

[12] The Recommendation No. R (95) 12 on the management of cirminal justice contains a variety of recommendaitons to address the increase in the number of complexity of cases, unwarranted delays, budgetary constraints and increased exoectatuibs from public and staff, under the headings of (I) Setting of objectives, (II) Management of work-load, (III) Management of infrastructure, (IV) Management of human resources and (V) Management of information and communication.

[13] See section D of htis Opinion.

[14] Cf its Opinion No. 2 (2001) on the Funding and Management of Courts, pagraphs 12-13.

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

[16] The CCJE refers to its Opinion No. 3 (2002), where it considered judicial ethics.

[17] As to which see point (g) in footnote 1 above. [?]

[18]A similar problem arises in respect of agreements (now permitted in the United Kingdom) for conditional fees – that is agreements whereby lawyers’ fees are not to be paid by the claimant instructing the lawyer unless the claim succeeds, but are then payable by the losing defendant together with an uplift of up to 100% which goes to the benefit of the winning claimant’s lawyers. Such agreements can be used by an impecunious claimant to vex defendants and force them to settle, since (i) the claimant and his lawyers have no incentive to agree a reasonable fee - on the contrary; and (ii) unless the claimant takes out legal expenses insurance, the defendant if he wins is unlikely to recover any costs from the losing claimant. The English courts have recently taken firmer control to limit the fees that can be agreed under such agreements and the conditions on which they can be made.

[19]One should consider if this is compatible with the public nature of the Prosecutor's Office in many countries.

[20] Generally up to one-third of the length of the sentence that would otherwise be passed.

[21] Cf CCJE Opinion No. 2 (2001).

¹⁸The Council of Europe has produced the following Recommendations relating to alternative dispute resolution:

- Recommendation No R (98) 1 on family mediation;

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

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

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

[23] The topic of case management, which also includes recourse to ADR methods, is dealt with separately in praragraphs… above.

[24]The Conference mainly concentrated on ADR in civil matters.

[25]Paragraph 14 of Appendix to Recommendation No. R (99) 19 only states that "Participation in mediation should not be used as evidence of admission of guilt in subsequent legal proceedings".

[26] The Consultative Council of European Judges (CCJE) is the advisory body to the Committee of Ministers of the Council of Europe, responsible for preparing opinions for submission to it on questions of general concern relating to the independence, impartiality and competence of judges.

FOREWORD

1. The CCJE-GT prepared for the attention of the CCJE:

b. the draft programme of the 2nd European Conference of Judges (see part VI and Appendix VII below).

2. Delegations are invited to send the Secretariat the information specified in part II below by 10 November 2004.

Secretariat memorandum

II. INFORMATION TO BE SENT TO THE SECRETARIAT

III. INTRODUCTION

VIII. PREPARATION OF THE DRAFT OPINION ON THE THEME “JUSTICE AND SOCIETY”

LIST OF PARTICIPANTS OF THE 6th and 7th MEETINGS

LISTE DES PARTICIPANTS DES 6ème et 7ème REUNIONS

M. Alain LACABARATS2,3, Cour de Cassation, PARIS (Chairman of the CCJE / Président du CCJE)

Mr Raffaele SABATO2,3, Tribunal de NAPLES, (Chairman of the CCJE-GT / Président du CCJE-GT)

MALTA / MALTE

Sir Jonathan MANCE2,3, Royal Courts of Justice, LONDON

SPECIALIST / SPECIALISTE

COUNCIL OF EUROPE’S SECRETARIAT /

SECRETARIAT DU CONSEIL DE L’EUROPE

APPENDIX II

AGENDA OF THE 6th MEETING (Strasbourg, 5-7 April 2004)

CCJE (2004)2

CCJE (2004)3

CCJE (2004)4

CCJE (2004)5

CCJE (2004)6

CCJE (2004)7

CCJE (2004)8

CCJE (2004)9

CCJE (2004)10

CCJE (2004)11

CCJE (2004)12

CCJE (2004)13

CCJE (2004)14

CCJE (2004)15

CCJE (2004)16

CCJE (2003) 43

Appendix/Annexe V

CCJE (2003) 43

CONF/JUGES (2003) PROCEEDINGS

CCJE (2003) 43

CCJE (2003) 43

AGENDA OF THE 7th MEETING (Rome, 12-14 juillet 2004) /

CCJE-GT (2004) 3

CCJE-GT (2004) 2

CCJE (2004)2

CCJE (2004)3

CCJE (2004)4

CCJE (2004)5

CCJE (2004)6

CCJE (2004)7

CCJE (2004)8

CCJE (2004)9

CCJE (2004)10

CCJE (2004)11

CCJE (2004)12

CCJE (2004)13

CCJE (2004)14

CCJE (2004)15

CCJE (2004)16

CCJE (2004)17

CCJE (2004)18

CCJE (2004)19

CCJE (2004)21

CCJE (2004)22

CCJE (2004)23

CCJE (2004)24

CCJE (2004)25

CCJE (2004)26

CCJE (2004)27

CCJE (2004)28

CCJE (2004)29

CCJE (2004)30

CCJE (2004)31

CCJE (2003) 43

Appendix/Annexe V

CCJE-GT (2004) 8

CCJE-GT (2004) 6

CCJE-GT (2004) 9

CCJE-GT (2004) 9

CCJE-GT (2004) 7

CCJE-GT (2004) 10

b. the draft programme of the 2^nd European Conference of Judges (see part VI and Appendix VII below).

LIST OF PARTICIPANTS OF THE 6^th and 7^th MEETINGS

LISTE DES PARTICIPANTS DES 6^ème et 7^ème REUNIONS

M. Alain LACABARATS^2,3, Cour de Cassation, PARIS (Chairman of the CCJE / Président du CCJE)

Mr Raffaele SABATO^2,3, Tribunal de NAPLES, (Chairman of the CCJE-GT / Président du CCJE-GT)

Sir Jonathan MANCE2^,3, Royal Courts of Justice, LONDON

AGENDA OF THE 6^th MEETING (Strasbourg, 5-7 April 2004)

AGENDA OF THE 7^th MEETING (Rome, 12-14 juillet 2004) /

HEARING FOR THE CHAIR OF THE CCJE AT THE 876^th MEETING OF THE MINISTERS’ DEPUTIES OF THE COUNCIL OF EUROPE