CM(2001)121 European Committee on Legal Co-operation (CDCJ)


Ministers' Deputies
CM Documents

CM(2001)121 (Restricted) 3 August 2001
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762 Meeting, 5 September 2001
10 Legal questions

10.3 European Committee on Legal Co-operation (CDCJ)

Abridged Report of the 75th meeting[1]

(49th meeting as a Steering Committee)

Strasbourg, 30 May – 1 June 2001

 

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LIST OF ITEMS DISCUSSED AND DECISIONS TAKEN

 

1.         The European Committee on legal co-operation (CDCJ) met in Strasbourg from 30 May to 1 June 2001. The agenda appears in Appendix I. 

 

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

 

2.         The CDCJ invited the Committee of Ministers:

 

a.         to adopt the text of the draft Recommendation on alternatives to litigation between administrative authorities and private parties and authorise the publication of its draft explanatory memorandum (see item 5 of the agenda and Addendum I to CM(2001)121);

 

b.         to adopt the text of the draft Recommendation on the protection of personal data collected and processed for insurance purposes and authorise the publication of its draft explanatory memorandum (see item 7 of the agenda and Addendum II to CM(2001)121 (to be published later)[2]

 

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION

 

3.         The CDCJ forwarded its submissions to the Evaluation Group to examine possible means of guaranteeing the effectiveness of the European Court of Human Rights (see item 9.a of the agenda and Appendix II).

 

4.         The CDCJ invited the Committee of Ministers to note the priority nature of the activities of the CDCJ and the need to ensure the availability of sufficient resources to enable it to carry out as rapidly as possible its programme of activities (see item 10 of the agenda).

 

5.         The CDCJ considered:

 

a.         the work carried out under its authority and took a number of decisions concerning certain activities (see items 6.a and 8 of the agenda);

 

b.         the preparation of the 24th Conference of European Ministers of Justice (Moscow, 4 and 5 October 2001) on the implementation of judicial decisions in conformity with European standards (see item 8.a of the agenda); 

 

__________

The detailed report of the meeting (document CDCJ(2001)20) may be obtained from the Directorate General of Legal Affairs.

 

c.         the draft Recommendation on common rules against corruption in the funding of political parties and electoral campaigns and requested its Bureau to prepare an opinion on the draft Recommendation for the attention of the Multidisciplinary Group on Corruption (GMC) (see item 9.a of the agenda).

 

6.         The CDCJ took note of:

 

a.         information concerning other legal work carried out within the Council of Europe (see item 14.a of the agenda);

 

b.         information concerning the work being carried out by the European Union and the International Commission on civil status (CIEC) on matters of interest to the CDCJ (see item 14.b of the agenda).

 

7.         The CDCJ decided to hold its next meeting during the week beginning 3 December 2001 (see items 17 and 18 of the agenda).

 

8.         Finally the CDCJ invited the Committee of Ministers to take note of this report as a whole. 

 


APPENDIX I 

 

AGENDA

 

 

1.         Opening of the meeting

 

2.         Adoption of the agenda

 

3.         Statement by the Secretariat

 

4.         Decisions of the Committee of Ministers concerning the CDCJ

 

5.         Approval of the draft Recommendation on alternatives to litigation between administrative authorities and private parties and its draft explanatory memorandum (cf. Addendum I to CM(2001)121)

 

6.         State of work of committees of the CDCJ and work of Convention Committees of direct interest to the CDCJ

 

7.         Approval of the draft Recommendation on the protection of personal data collected and processed for insurance purposes and its draft explanatory memorandum (cf. Addendum II to CM(2001)121, to be published later)

 

8.         Conferences and Colloquies in the legal field

 

9.         Opinions

 

10.       Proposals for activities for 2002 and 2003

 

11.       Classification of Council of Europe documents

 

12.       Appointments

 

13.       Convention or Recommendation for consideration by the CDCJ at its Autumn meeting in 2002

 

14.       Legal work carried out outside the CDCJ

 

15.       Tasks to be given to the Bureau of the CDCJ

 

16.       Adoption of the report of the CDCJ

 

17.       Agenda of the 76th meeting of the CDCJ

 

18.       Calendar of future meetings

 

 

APPENDIX II

 

SUBMISSIONS OF THE CDCJ

FOR THE ATTENTION OF THE EVALUATION GROUP

 

 

 

 

1.         The CDCJ met on 30 May - 1 June 2001 and considered, among other things, the request by the Chair of the Evaluation Group for comments on means of guaranteeing the continued effectiveness of the Court.  The CDCJ welcomed this opportunity and was grateful for the extension of the deadline which enabled this important question to be considered at the plenary meeting. 

 

2.         Preliminary submissions were forwarded by the Bureau of the CDCJ in April 2001.  The CDCJ endorsed those submissions but thought it might assist if these were elaborated somewhat.  Further time for reflection has also allowed additional suggestions to be raised.

 

3.         The CDCJ agreed fully with the premises set out in the letter from the Chair of the Evaluation Group that action to increase productivity and reduce the backlog of cases must not reduce the rights guaranteed by the Convention, must enable the Court to dispose of cases within a reasonable time, and must maintain the quality and integrity of the Court's case-law.

 

4.         The CDCJ noted that some possible solutions would require amendment to the European Convention on Human Rights (ECHR) and would in all probability take some time to agree.  Other procedural innovations, on the other hand, could be introduced relatively speedily.  The emphasis ought, therefore, to be on those measures which could be put in place quickly, although reforms to the Convention should not be discounted.

 

5.         Equally, as the guardian of European human rights it is essential that the Court itself is seen to respect the basic principles of the Convention and the standards adopted by the Council of Europe. Notable among these are the requirement provided for by Article 6, paragraph 1, of the ECHR, of a fair trial within a reasonable time by an independent and impartial tribunal. Also significant is Recommendation No. R (94)12 on the independence, efficiency and role of judges. As to the latter, the Evaluation Group might take the opportunity to remind Member States of the importance of their responsibilities in this respect.

 

6.         Finally, the CDCJ recognises that, in the framework of the discussions on the future of the European Court of Human Rights, “there are apparently two contradictory objectives relating to the Convention's control system – which must be reconciled: ie the need for the Court to concentrate primarily on cases raising new and/or serious issues while on the other maintaining the right of individuals to seek redress before the Court, the latter being the distinctive and unique achievement of the Convention system” (see CDDH-GDR(2001)5). While the CDCJ is aware of these approaches, it is not in a position today to take a stand on these - eminently political - questions.

 

7.         The CDCJ considered that there were three areas for action: reduction in the number of applications, the filter stage, and procedure before the Court.

 

(A)       Reduction in the number of applications 

 

8.         One way of improving the efficiency of the Court is to reduce the number of cases that come before it by improving compliance by states with the European Convention on Human Rights. This is important for the respect of the principle of subsidiarity, which is at the basis of the control machinery established by the Convention. The CDCJ and other committees within the Council of Europe dealing with legal co-operation and human rights are all active in this field.  Effective implementation of the judgments of the European Court of Human Rights is also essential in order to prevent repeated applications concerning the same types of problems.  Improved efficiency of justice and domestic human rights protection is an aim which all Council of Europe member states share and the CDCJ underlined the value of this work.

 

(B)       The filter stage

 

9.         The CDCJ noted that a very high percentage of applications submitted to the Court were declared inadmissible.  A very considerable amount of time is spent by Registry staff in dealing with such cases before they are submitted to a Committee of three judges which may decide to reject them unanimously.

 

10.       The CDCJ understands that many applicants do not have the benefit of legal advice and therefore do not understand how to make their applications.  The CDCJ understands, however, that it is considered necessary to reduce to a minimum the provision of legal advice offered by the Registry to potential applicants because of the need for Registry lawyers to deal with the cases expeditiously.  The CDCJ considered that an important contribution to the efficient throughput of cases could be made by helping ensure that applications are in good order, and by drawing applicants' attention to irreparable defects, such as applications being out of time or failing to raise points under the Convention.  To that end applicants ought to be able to obtain basic technical information in their own language.  Ideally this should be available in the applicant's own country. 

 

11.       Various other procedural or administrative innovations might assist.  The CDCJ particularly noted the need for incentives to encourage the parties to reach friendly settlements in particular for “clone cases” before a decision is taken on the admissibility (for example, payments into court, refusal of which would carry the risk of losing costs incurred after that point).  These could be introduced as part of the practice and procedure of the Court, without any need for amendments to the Convention.

 

12.       The CDCJ also noted the value of effective case management.  The CDCJ welcomed the Evaluation Group's intention to consult experts with experience of management of large judicial bodies. 

 

13.       In addition to identifying more quickly cases which are likely to be found inadmissible, part of the function of case management would be to identify cases which could benefit from other possible procedural innovations (see paragraph 17 below).  A feature of case management, particularly in complex cases, might also be directions hearings during which the main issues in a case could be identified.  Such hearings should make the best possible use of available technology including video conference facilities.

 

14.       The CDCJ considers that adequate and up to date Information Technology systems are an essential tool for a modern court; these can include sophisticated case tracking systems.  The Evaluation Group may wish to investigate whether this aspect of the Court's present infrastructure is adequate.  Electronic methods of transmitting applications, pleadings, notes and documents could be made available, and some documents might be translated electronically. However, computerised translation is still developing.  Whilst it could be very useful for the purposes of understanding the “gist” of a simple document, it is not yet available for all European languages and is not yet suitable for complex documents.

 

15.       The CDCJ is aware of the fact that the bottleneck is located in the pre-trial stage, i.e. before that cases are brought before the three judges. However, the CDCJ did not favour the introduction of a non-judicial “filter” for rejecting inadmissible cases.  Access to elected judges is an essential feature of the Convention system.  Moreover, the CDCJ understands that the procedure in the Committee of three judges which sits to consider declaring cases inadmissible works efficiently, and there would appear to be little advantage in changing it by, for example, reducing the number of judges.

 

(C)       Procedure before the Court 

 

16.       The CDCJ noted that only a small proportion of applications is declared admissible, so in numerical terms innovations to the procedure are of lesser importance than improvements at the filter stage.  Nevertheless various procedural changes could deliver benefits.

 

17.       Among those possible changes are grouping together cases which raise similar points, use of fast-track procedures in simple cases, for example length of proceedings cases, and the introduction of an expedited procedure for urgent cases.

 

18.       It might be useful to consider the possibility of making better use of judges' time.

 

19.       The Court could consider preparing shorter judgments in “clone cases”, and using model judgments in certain types of cases.  The latter might include simple cases.  The Court's preparation might be assisted by requiring lawyers representing the parties to prepare short summaries of the documents (“skeleton arguments”).

 

20.       The CDCJ understands that the procedure for assessing damages can be cumbersome and slow.  Although the final decision as to amount of damages must remain one for the Court, it may be possible for the assessment to be carried out by a member of the Secretariat or Registry who would advise the Court.

 

Final observations

 

21.       The CDCJ stands ready to provide any further assistance if the Evaluation Group would find it useful.  The CDCJ nominated Mr E. DESCH (Germany, Chair of the Committee of Experts on Efficiency of Justice) as the point of contact with, as his substitute, Mr E. KILBY (United Kingdom, Vice-Chair of the CDCJ), or alternatively Mr M. HAŤAPKA (Slovak Republic, Chair of the CDCJ).



[1]  The list of participants can be obtained from the General Directorate of Legal Affairs (DGI).

[2]  This draft Recommendation will be submitted to the Deputies with a view to its adoption, at a later stage.



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