Judicial Reform in the EU
In 2011 the ENCJ adopted the Vilnius Declaration which lists a set of recommendations for the judiciaries of Europe on how to respond to the actual challenges and opportunities they are facing due to the new economic landscape. The recommendations call for the development of long term policies that include necessary reforms of the judiciary. Courts should improve their efficiency, alternative dispute resolution should be promoted, and the judiciary should develop stronger relations with civil society to reinforce public confidence and gain support for the necessary reforms. Councils for the Judiciary should take the lead in the reform process involving judges and courts.
The Vilnius Declaration was the starting point for a mult-annual ENCJ project on Judicial Reform that aimed to further contribute to the strengthening of ENCJ’s capacity in providing solutions for a sustainable judicial reform process. Judicial reform should have as its objective the improvement of the quality of justice and the efficiency ad effectivity of the judiciary, while strengthening and protecting the independence of the judiciary, accompanied by measures to make more effective its responsibility and accountability. Another aim should be to bring justice closer to the citizens. To this end, access to justice, including in cross border judicial proceedings, has to be facilitated.
The ENCJ report on Judicial Reform which was adopted in Dublin in 2012 does not attempt to solve system problems in individual Member States, but it presents to the Member States the ENCJ view on judiciary reform and best practices in facing the challenges for the judiciary.
At the General Assembly in Dublin 2012, the Councils for the Judiciary decided to further develop the report with a second part (Part 2). This section, Part 2, of the report on Judicial Reform in Europe (2012 – 2013) builds on recommendations 18 and 19 as agreed at the General Assembly in 2012 .To develop Part 2 representatives from Judicial Councils from states across Europe met to focus in more detail on a number of the areas considered in Part 1. Part 2 seeks to identify more clearly the role that the Judiciary and Judicial Councils can play in the whole process. That process embraces proposals for, planning, implementation, monitoring and evaluating the effectiveness of those reforms within justice systems in order to provide justice delivery as evidenced through the Judicial Scoreboard of the European Commission.
The main recommendations of the 2011/2012 report (Part 1) are the following:
On the content of reform:
Rationalization and (re)organization of courts, public prosecution offices and administration :
1) Concentration of courts and administration must be motivated by the need to provide high quality justice and more effectively use available resources.
2) Judiciaries should evaluate carefully whether net cost savings can be reached by concentrating courts, and must take into account that it could be many years before the desired savings can be effectively achieved.
3) Concentration of courts should be accompanied by increased utilization of the ICT (information and communication technologies) to reduce the frequency of necessary visits by parties in person to the courts. Also, ICT should be used to increase the visibility of court proceedings
Reduction of the number of cases:
4) All reforming programmes, including reduction of case loads and increases of court fees, must leave access to justice, as guaranteed by art. 6 ECHR, intact. Measures aimed at discouraging unmeritorious cases are useful, providing such measures do not impede meritorious cases going to court.
5) If court fees are increased, the financial circumstances of the parties have to take into consideration, either by differentiating tariffs or by legal aid.
6) Regulating access to appeal should preferably be done by the judiciary, taking the merits of cases into account, and not by mechanical legal rules.
Simplification of judicial proceedings, improvement of case management and introduction of new technologies:
7) Simplification of judicial proceedings, improvement of case management and introduction of new technologies offer the chance to modernize the administration of justice, thereby improving access to justice, quality of justice as well as efficiency. All judiciaries need to adopt innovative programs to reach these goals
8) As these innovations require the modernization of procedural law and these programs require the close cooperation of all stakeholders especially judicial organizations, lawyers and government agencies responsible for the relevant legislation. Judges and prosecutors should proactively engage in developing and implementing new procedures, processes and technologies within the judiciary.
Financing of the judicial system:
As to reduction of salaries:
9) The remuneration of judges and magistrates must remain commensurate with their professional responsibility and high public duty.
10) The remuneration of judges and prosecutors should be constitutionally guaranteed in law, so as to preserve judicial independence and impartiality. All discussions and negotiations on remuneration should involve the judiciary.
As to improving the funding system:
11) The funding system of the judiciary should reflect its needs to be able to manage its caseload properly. Only in this way can timely justice be guaranteed.
12) While it is recognized that funding based on output requires the measurement of output and processing times (workload measurement), such measurement systems need to remain simple and the outcome should be used with caution to safeguard judicial independence. For instance, workload measurement norms should not be applied mechanically to individual cases.
13) To ensure and strengthen the separation of powers, the judiciary should be closely involved at all stages in the budgetary process and should be responsible for the financial management of the courts individually and as a whole, within the budgets allocated to them.
Court management and optimization of the workload of courts and public prosecution offices:
14) Redistribution of tasks within courts to allow judges to concentrate on their core judicial tasks is an important goal in itself, apart from the cost savings that may be reached this way. To be effective, judges must be provided with all necessary support. They must be able to rely on their staff and this requires highly qualified staff.
15) While maintaining a transparent mechanism, the allocation of cases to courts and judges should be made more flexible in order to utilize the deployment of judges better.
16) Reduction in overheads is desirable, but must be carefully balanced with increasing needs to have adequate information about caseload and processing time.
On the process of reform:
17) It is essential that the judiciary, judicial councils and in particular judges and prosecutors be involved at each stage of development and implementation of reform plans. This is to ensure the independence of the judiciary, that reforms are effective and instill confidence.
18) The judiciary, under the lead of Judiciary councils, where these exist, should develop sensible proposals for effective reform. The goal of reform should be improvement of the overall excellence of justice. More effective administration results in improvements in timeliness and quality of delivery.
19) It is recommended that such proposals for reform are informed by the general directions outlined in this report. In particular, the combined simplification of procedures, stricter case management and digitalization offer a perspective for judicial excellence.
The 2012/2013 report (part 2) focuses on 5 areas.
i. improving ease of access to justice;
ii. maintaining and improving high quality justice delivery;
iii. ensuring consistency of judgements and timeliness;
iv. providing an effective service to public;
v. protecting judicial independence
SUMMARY OF THE 2012/2013 GUIDELINES
Proactive Role of Judges and Councils
The Judiciary should always be involved at all stages of any reform process, whether directly or through appropriate consultation.
The Judiciary should be engaged with the creation of success criteria and Key Performance Indicators to evaluate effective reform.
The Judiciary and Judicial Councils have a vital pro-active role to play in whole reform process.
Judicial Education and Training
Judicial Councils should develop education programmes to instil an understanding of the role the Judiciary and Judicial Councils have in the reform process.
Appropriate and pertinent training should be provided for the Judiciary, to allow judges to become fully engaged with the reform process.
Principles of Reform
All developments must be driven by the principles of justice outlined in Paragraph 28 of Part 2 of this report and not by financial considerations.
All reforms should follow the SMARTER principle.
RATIONALISATION AND RE-ORGANISATION
Access to Justice
Where access to justice may be adversely affected by concentrating courts, consideration should be given to whether the timescale for savings justifies concentrating courts.
In any jurisdiction where judicial/court reform is proposed, involving redrawing the judicial/court map, there should be a set of principles for provision of access to justice to guide the approach to reform.
Any such set of principles should have regard to the general desirability of local delivery of justice and take account of factors such as population distribution, geographical considerations, public transport provision and the availability of court ICT systems.
Attention should be given not only to the availability of ICT systems, but how the arrangements for their use are to operate. There should be judicial involvement in determining appropriate procedures and criteria for the use of ICT.
Any proposed programme of rationalization and reorganisation of courts and public prosecutors’ offices should include appropriate consultation with the Judiciary (where such proposals have originated from the government, not than the Judiciary), other stakeholders and citizens.
A reform programme with proposals for rationalisation and reorganisation should include a specified process of evaluation and review and such evaluation and review should be carried out.
Quality of justice/service to the public
If specialisation can ensure that high quality justice is provided, measures must be in place to ensure that the Judiciary involved have the necessary level of expertise, experience and training.
To ensure that high quality justice is provided by specialisation there must be adequate expert judicial resources and support resources.
Any process of introducing specialisation should include consideration of any potential loss of flexibility that may result, and whether the benefits outweigh the disadvantages. Consultation may be necessary in this connection.
There should be court user groups to include Judiciary and all other relevant stakeholders. Such groups should meet regularly to examine relevant data and propose developments.
IMPROVED ADMINISTRATION AND OPTIMIZATION OF WORKLOADS
Appropriate analysis of backlogs should be carried out in different parts of the country or the court system to identify the need to redistribute work and to assist any such redistribution or to identify other solutions.
The Judiciary should be involved in the process of analysis, redistribution or identifying other solutions.
Where there is a lack of essential information about processing time and backlogs of cases, this should be addressed - in particular by the use of IT. In assessing the benefits of investment in IT regard should be had to the value of business information collection and analysis to improve the efficient and cost effective planning and management of court business.
CASE MANAGEMENT, SIMPLIFICATION AND DIGITALIZATION
Every Judiciary should set up a structure on how to establish methodologies for case management, including the associated standards for the (average) duration of cases, for specific categories of cases/jurisdictions. These structures should be guided by the judges and should allow for discussion with stake holders such as lawyers.
The methodologies for case management need to establish a balance between the importance of case and the attention the case is given in terms of procedural steps allowed.
In the methodologies an important place should be given to pre-trial conferences to establish the proper method to resolve the case and to sort out differences of opinion about procedure.
The case load of judges and support staff should allow for sufficient time for proper case management. It should be carefully considered whether judges can delegate some administrative aspects of case management to support staff.
Case management requires a change of attitude and culture of many judges, which needs to be promoted by training and/or other tools to disseminate knowledge.
Simplification of Procedures
The feasible reduction of the number of procedural steps depends very much on the legal system of each country. A common and crucial element is that all information/evidence must be presented at the start of the trial: parties must know the case they have to meet and must be able to prepare for it.
A detailed analysis of procedures and associated work processes should be undertaken to remove outdated elements.
Courts should set limits to the length of written and oral presentations of lawyers and self-representing citizens, and require them also to start by setting out the structure of their arguments. Also, the size of verdicts should be regulated.
IT & digitalisation
Digital access to justice is becoming an integral part of access to justice as fundamental right, and its expansion should be a top priority for the judiciaries.
It is an inevitable trend to digitally record court hearings in order to secure the evidence and to make that evidence available, for instance, in appeal; courts should implement such systems as soon as feasible.
Most budget systems of judiciaries cannot easily accommodate the levels of capital investment IT-applications such as digital recording require; this issue should be specifically addressed. Cost-benefit analysis is needed to underpin investment decisions.
Judiciaries should learn from on-line dispute resolution mechanisms and applications that are currently available on the internet.
Filters for Appeals
The law should state that decision on meritorious cases is a judicial decision based solely on the merits of the case.
Filters should be defined to reduce the unnecessary use of court time on unmeritorious cases so allowing more timely access to justice for those who have a meritorious appeal.
Filters should be defined to provide criteria by which the Judiciary can evaluate the merits of the appeal in each case and exercise judicial discretion in the final decision.
Procedures should be in place to avoid repetition and a re-hearing of the first instance trial and to require applications for appeal to focus on the outstanding issues.
Number of Appeal Judges
To limit the number of appeal judges is not recommended, as more effective measures are available to reduce the burden of appeals and court time.
Using and restricting paper presentations and use of IT
Decisions on meritorious cases should normally and primarily be taken through a paper exercise rather than any court hearing.
The appeal procedure could be simplified by setting limits to the length of written and oral presentations of parties.
ALTERNATIVE DISPUTE RESOLUTION
Effectiveness of Alternative dispute resolution
There should be available procedures for mediation and other ADR in every country decided through consultation with relevant stakeholders.
Relevant data should be collected and analysed to show if ADR reduces case load.
For successful mediation process it is important to provide a legal aid to those most in need or to provide state funded mediation.
To promote the use of mediation information and explanatory materials on mediation should be provided.
Effective customer satisfaction surveys should be conducted.
There needs to be a public engagement programme to educate the public generally on the value of mediation.
Compulsory or Not?
ADR should be a voluntary process.
Judges may encourage parties to undertake mediation but should not be able to insist.
Who should decide on mediation?
Mediation should be conducted by appropriately trained and accredited mediators.
There should be appropriate procedures for mediation in all relevant courts.
The use of mediation techniques by judges within the procedure can be recommended, as this helps to make procedures less formal.
Pre-action protocols and active judicial case management will allow the court to encourage parties to consider alternatives to litigation.
Mediation and internal review by government agencies
Judicial Councils should advise governments to try resolving certain administrative conflicts through the use of active communication, mediation procedures and independent review.