Chair
of the “CEPEJ SATURN Centre for Judicial Time Management”
Turin
Court
Secretary
General of International Association of Judges
Judicial
Time Management –
Tools
Developed by CEPEJ SATURN Centre
to
Prevent Violations of Article 6 of ECHR
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Table Of Contents: 1. Introduction. The Waking Up of the Awareness on Case
Management in Europe. – 2. The CEPEJ SATURN Centre for Judicial Time
Management: Terms of Reference and Composition. – 3. Main Tools
Adopted by the CEPEJ SATURN Centre for Judicial Time Management: The “Saturn
Guidelines for Judicial Time Management”. – 4. Main Tools Adopted by the CEPEJ SATURN Centre for
Judicial Time Management: The Implementation Guide “Towards European
timeframes for Judicial Proceedings”. – 5. Other Tools and Main Studies on Judicial Time
Management. – 6. On-going Works
within the CEPEJ SATURN Centre for Judicial Time Management. New Approaches
and Tools on Case Management in Europe: Case Weighting. – 7. On-going Works
within the CEPEJ SATURN Centre for Judicial Time Management. New Approaches
and Tools on Case Management in Europe: Dashboards for Court Management. |
1. Introduction.
The Waking Up of the Awareness on Case Management in Europe.
The setting up at
the end of the year 2002,
within the Council of Europe, of the European Commission for the Efficiency of
Justice (Commission Europenne pour
l’efficacité de la justice – CEPEJ: http://www.coe.int/t/dghl/cooperation/cepej/presentation/cepej_en.asp)
marks the dawn of a new era, characterised by the waking up of the awareness about the need for efficiency and case management in our
continent.
Objectives of the CEPEJ, which is made up of
representatives of the 47 member states of the Council of Europe, are the
following missions:
• to propose to the States
pragmatic solutions as regards judicial organisation, taking fully into account court users,
• to enable a
better implementation
of the Council of Europe’s
standards in the justice field,
• to contribute
toward relieving
the case-load of
the European Court of
Human Rights by providing states with effective solutions to prevent violations of the right
to a fair trial within a reasonable time (Article 6 of the European Convention of Human
Rights).
Among the main activities of the
CEPEJ we may mention the development of concrete measures and tools aimed at policy makers and
judicial practitioners in order to:
• analyse the functioning
of judicial systems and orientate public policies of justice: the CEPEJ has set
up a continuous evaluation
process of the functioning of judicial systems in all the European
states, on a comparative
basis. This unique process in Europe enables, through the collection of
quantitative and qualitative data, to have a detailed photography of the
functioning of justice and to measure its evolution. This tool for in-depth
analysis enables to orientate public policies of justice.
• have a better
knowledge of judicial
timeframes and optimize
judicial time management:
CEPEJ has been developing practical tools aimed at professionals for a better
knowledge and improvement of the situation of judicial timeframes and time
management in courts in the European States, as well as concrete tools aimed at
professionals (Compendium of best practices, Judicial time management
Checklist).
• promote the quality
of the public service of justice: beyond the efficiency of judicial
systems, the CEPEJ aims to identify the elements which constitute the quality
of the service provided to users in order to improve it and aims to develop
innovative measures (Checklist
for promoting the quality of justice and the courts, Handbook for conducting satisfaction surveys
aimed at court users, European
ethical Charter on the use of Artificial Intelligence in judicial
systems and their environment).
• promote the use of mediation through member
States, conducting studies on the impact of the Committee of Ministers’
Recommendations concerning family mediation, mediation in criminal matters,
alternatives to litigation between administrative authorities and private
parties and mediation in civil matters, as well as drawing up guidelines in these areas
as well as specific measures to ensure effective implementation of these
recommendations.
• support
member states in their reforms of court organisation: the CEPEJ is entrusted with
giving targeted cooperation
to the states which request it in the framework of their institutional and
legislative reforms and for organising their justice system.
• get the users closer to their justice system:
the CEPEJ is at the initiative, together with the European Commission in
Brussels, of the European
Day of Justice. It has been celebrated each year on 25 October and
enables the public, through various events organised by judicial institutions
in the European states, to get better acquainted with their justice system and
its functioning. Within the framework of this Day, a European Prize: “The
Crystal Scales of Justice” has been created in 2005, aimed at
highlighting innovative and effective practices carried out within courts to
improve the functioning of justice.
• creating and
maintaining a network
of pilot courts from European States to: a) support its activities
through a better understanding of the day to day functioning of courts and b)
to highlight best practices which could be presented to policy makers in
European States in order to improve the efficiency of judicial systems.
Therefore, the Network is:
o
a forum of information: Pilot courts are privileged addressees of the information
on the work and achievements of the CEPEJ and are invited to disseminate this
information within their national networks. Within the Network, Pilot courts
communicate and cooperate.
o
a forum of reflection: The Network is consulted on the various issues
addressed by the CEPEJ.
o
a forum of implementation: some Pilot courts can be proposed to trial at
local level some specific measures proposed by the CEPEJ.
2. The CEPEJ SATURN
Centre for Judicial Time Management: Terms of Reference and Composition.
The CEPEJ SATURN (Study and
Analysis of judicial Time Use Research Network) Centre has been set up in 2007 by CEPEJ as a Centre
for judicial time management. According to its terms of reference the
SATURN Centre is instructed to collect information necessary for the knowledge of judicial timeframes
in the member States and detailed enough to enable member states to implement
policies aiming to prevent violations of the right for a fair trial within a
reasonable time protected by Article 6 of the European Convention on Human
Rights.
The Centre is aimed
to become progressively a genuine European observatory of judicial timeframes,
by analysing the situation of existing timeframes in the member States
(timeframes per types of cases, waiting times in the proceedings, etc.),
providing them knowledge and analytical tools of judicial timeframes of
proceedings. It is also in charge of the promotion and assessment of the
Guidelines for judicial time management.
The Centre is managed through a
Steering group, established in accordance with article 7.2.b of Appendix
1 to Resolution
Res(2002)12, under the authority of the CEPEJ. The Steering group works in
particular for collecting, processing and analysing the relevant information on
judicial timeframes in a representative sample of courts in the member states by
relying on the network of pilot courts. Thus, it must define and improve
measuring systems and common indicators on judicial timeframes in all member
states and develop appropriate modalities and tools for collecting information
through statistical analysis. (Further information on CEPEJ-SATURN available
here: https://www.coe.int/en/web/cepej/cepej-work/saturn-centre-for-judicial-time-management).
According to its Terms of reference, in
order to implement the “Strategic plan for the
SATURN Centre” (CEPEJ-SATURN(2011)5), the Steering group shall in
particular:
·
periodically collect data on procedural times in
member States at national and regional level, for all types of proceedings (civil, criminal and
administrative) and for all
courts (first instance, appeal and supreme courts);
·
verify the completeness
and quality of the data
collected in order to make improvements;
·
analyse the data collected and
collate them with the principles relating to procedural times derived from the
case law of the European Court of Human Rights;
·
define
guidelines and standards
relating to procedural
times:
o
for all state organs concerned with justice:
legislators, bodies vested with the administration of justice, court managers,
judges, prosecutors, police officers;
o
for all types of proceedings (civil, criminal and
administrative);
o
for all courts (first instance, appeal and supreme
courts);
·
disseminate in member States
the guidelines, the
standards and the results of analysis of
the data collected;
·
promote the use of judicial time management tools,
particularly those developed by the SATURN Centre, in all member States to
enable them to make their own analysis of the situation regarding judicial
timeframes in their courts and apply their own remedies to any excessive
procedural delays;
·
undertake within the member States most concerned by
questions of procedural delays, and with their agreement, targeted actions to
improve their situation (preventive or proactive measures) by implementing
judicial time management tools in those countries;
·
rely on
appropriate networks allowing the integration in the work and considerations of the judicial
community, in particular on the network of pilot courts within the member
States, to draw on innovative projects aimed at reducing and adjusting the
timeframes operated by courts in member States;
·
organise and implement the court coaching programme
(on a volunteer basis) for the effective use of the CEPEJ’s tools and
guidelines, on the basis of the relevant SATURN Handbook (CEPEJ-SATURN
(2011)9).
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Current
Composition of
the SATURN Steering Group: |
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Among the main
activities done and tools adopted by the CEPEJ SATURN Centre we can mention
first of all the “Saturn guidelines for judicial time management” (see:
https://rm.coe.int/cepej-2018-20-e-cepej-saturn-guidelines-time-management-3rd-revision/16808ff3ee),
whose main aim is to reduce the length of judicial proceedings.
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Particularly
relevant are the guidelines enshrined in the part (II) dedicated to legislators
and policy makers, such as the following:
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II. C. Substantive law 1. Legislation
should be clear, simple, in plain language and not too difficult to
implement. Changes in substantive law should be well prepared. 2. When enacting
new legislation, the government should always study its impact on the volume of new cases and avoid rules and regulations
that may generate backlogs and delays. 3. Both the users
and the judicial bodies should be informed in advance about changes in
legislation, so that they can implement them in a timely and efficient way. II. D. Procedure 1. The rules of
judicial procedures should enable compliance with optimum timeframes. Rules
that unnecessarily delay the proceedings or provide for overly complex
procedures should be eliminated or amended. 2. The rules of
judicial procedure should take into account the applicable Recommendations of the Council of Europe,
in particular the Recommendations: R (81)7 on
measures facilitating access to justice, R (84)5 on the
principle of civil procedure designed to improve the functioning of justice, R (86)12
concerning measures to prevent
and reduce the excessive workload in the courts, R (87)18
concerning the simplification of criminal justice, R (95)5
concerning the introduction and improvement of the functioning of appeal
systems and procedures in civil and commercial cases, R (95)12 on the
management of criminal justice, R (2001)3 on the
delivery of court and other legal services to the citizen through the use of
new technologies. 3. In drafting or amending the procedural
rules, due regard
should be had to the opinion
of those who will apply
these procedures. 4. The procedure
in the first instance should promote expedition, while at the same time affording to users
their right to a fair and public hearing. 5. Use of
accelerated proceedings should be encouraged, where appropriate. 6. In appropriate
cases, the appeal
options may be limited. In certain cases (e.g. small claims) the
appeal may be excluded, or a leave to appeal may be requested. Manifestly ill-founded appeals
may be declared inadmissible or rejected in a summary way. 7. The recourse to the highest instances should be limited to the cases that deserve their
attention and review. |
As for the
guidelines addressed to judges,
they are enshrined in part
V, as follows:
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V. A. Active case management 1. The judge should have sufficient powers to manage the
proceedings actively. 2. Subject to general rules,
the judge should be authorised to set appropriate time limits and adjust time management to the
general and specific targets as well as to the particulars of each individual
case. 3. Standard electronic templates
for the drafting of judicial decisions and judicial decision support software
should be developed and used by judges and court staff. V. B. Timing agreement with
the parties and lawyers 1. In the time management of
the process, due consideration should be given to the interests of the users.
They have the right to be involved in the planning of the process at an early
stage. 2. Where possible, the judge
should attempt to reach agreement with all participants in the procedure
regarding the procedural calendar. For this purpose, he should also be
assisted by appropriate court personnel (clerks) and information technology. 3. The deviations from the
agreed calendar should be minimal and restricted to justified cases. In
principle, the extension of the set time limits should be possible only with
the agreement of all parties, or if the interests of justice so require. V. C. Co-operation and
monitoring of other actors (experts, witnesses
etc.) 1. All participants in the
process have the duty to co-operate with the court in the observance of set
targets and time limits. 2. In the process, the judge
has the right to monitor
the observance of time limits by all participants, in particular, but not
restricted to, those invited or engaged by the court, such as witnesses or
experts. V. D. Suppression of procedural
abuses 1. All attempts to willingly
and knowingly delay proceedings should be discouraged. 2. There should be
procedural sanctions for causing delay and vexatious behaviour. These sanctions can be applied
either to the parties or their representatives. 3. If a member of a legal profession grossly abuses
procedural rights or significantly delays the proceedings, it should be
reported to the respective professional organisation for such sanctions as
may be appropriate. V. E. The reasoning of judgments 1. The reasoning of all
judgments should be concise
in form and limited
to those issues
requiring to be addressed.
The purpose should be to explain the decision. Only questions relevant to the
decision of the case should be taken into account. 2. It should be possible for judges, in
appropriate cases, to
give an oral judgement with a written decision. |
The above-mentioned Guidelines are complemented by a
gathering of comments and (good) examples of implementation of the document.
This text is called Comments and implementation
examples of the SATURN guidelines. The document is structured around
15 out of the whole
collection of guidelines, which is to say, the guidelines which have been
thought to be most
relevant.
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Another relevant tool
created and adopted by the CEPEJ SATURN Centre is the Implementation guide “Towards
European timeframes for judicial proceedings”.
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The guide intends timeframes as one of the tools available for the
attainment of the goal
set in Article 6 of the European Convention
on Human Rights, according to which “everyone is entitled to a fair and public
hearing within a reasonable time”. Timeframes can be considered operational tools, because they are concrete
targets to measure to what extent each court, and more generally the
administration of justice, pursue the timeliness of case processing, and then
the principle of fair trial within a reasonable time stated by the European
Convention on Human Rights.
The setting of
Timeframes is a fundamental
step to start measuring and comparing case processing performance and defining conceptually
better the “Backlog”,
which is the number or
percentage of pending cases that do not accomplish the set or planned timeframe.
Timeframes should
be set not only for the three
major areas (civil,
criminal, administrative), but they
should progressively be set also
for the different “Case categories” dealt
with by the court. Timeframes should be tailored to each case category (e.g. family matters, bankruptcy,
labour etc.), and local circumstances, depending on procedural issues, resource
available, and legal environment. However, a European indication is a fundamental lighthouse to develop
Timeframes at the national and local levels, and to start building a shared
vision of common expectations across Europe.
The Timeframes
proposed in our guide are the result of a process
which was carried out in the following steps:
·
analysis of the literature on judicial timeframes;
·
b) case law of the European Courts of Human Rights;
·
c) data collection and analysis of two surveys
submitted to both National Correspondents and Pilot Courts of the CEPEJ;
·
d) discussion of the proposed Timeframes during the
2014, 2015, 2016 meetings of the CEPEJ Pilot Courts and the CEPEJ plenary
meeting in December 2015 and June 2016.
The result of this
process are the proposed four
sets of timeframes (A, B, C, D), which take
into consideration the large variety of situations in the member States.
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Based on the data
available, we are aware that some countries will not be able to meet the
Timeframes proposed, while some others will probably be able to do even better.
These four Timeframes may be used as a basic reference. Each country or court is invited to establish its own Timeframes for each court
and case category. The same or different Timeframes should be applied also for each instance of the
whole judicial process (first, appeal, Supreme Court instance). For example,
Timeframe D can be realistic and set for first instance courts, at least as a
starting point, while Timeframe A can be used in Supreme Courts.
As for the
objectives, we believe that these Timeframes are a pragmatic compromise of very different situations
and contexts of the various member States. They should be seen as objectives to be progressively reached step by step by
all the member States, also in the light of the need to promote justice
services and a similar length of judicial proceedings quite similar across
Europe. This entails that
the overall objective for all the Council of Europe member States should be to
reach Timeframe A for all the proceedings, with a progressive approaching, for
example through Timeframe B and C.
We may add that in
the last year the CEPEJ SATURN Centre has made an effort in order to single out
some particular case categories, such as:
·
Intellectual Property,
·
Medical Malpractice and
·
Car Accidents Lawsuits.
The Centre activated
the Network of Pilot Courts of the CEPEJ through a questionnaire in order to
get data and information on compliance with the above-mentioned timeframes
according to the different categories of cases. Several European Pilot Courts
participated in the survey and the final results were discussed during the
meeting of the Pilot Courts Network held in Barcelona on 4th
October, 2019.
5. Other Tools and Main Studies on Judicial
Time Management.
Among the other tools
elaborated by the CEPEJ SATURN Centre we may mention the Guide
for implementing the SATURN management tools in courts.
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Among the most
relevant studies
that have already been done by impulse and under the control of the CEPEJ
SATURN Centre we may mention the following:
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6. On-going Works within the
CEPEJ SATURN Centre for Judicial Time Management. New Approaches and Tools on Case Management in Europe: Case Weighting.
The CEPEJ SATURN
Centre is currently studying an array of new tools and systems to deal with contemporary
challenges in the field of case management. These sectors represent the new challenges
of case management in Europe.
In this framework I
would like to mention in particular the issue of Case Weighting, whose main aim is that of allowing
allows a Court (or a Court system as a whole) to assess the complexity of the
cases they have to deal with. The Steering Group is therefore working (with the
help of two scientific experts) on a document, whose main features are:
·
Awareness of the fact that,
in a nutshell, two different kinds of approaches are possible:
o the approach on the time
implying a breakdown of the trial stages and
o the approach made of points
based on criteria of complexity of the case.
·
Experience acquired
through:
o a study visits to
Israel (thanks
to Israeli Supreme Court and to Israeli representative, Dr Gali Aviv), which studied and
implemented a remarkable time-based
method,
o discussions within the meeting of the Pilot Courts (in Barcelona on the 4th
October, 2019),
o an ad hoc meeting
planned for 2020 in Paris with representatives of the most relevant European national
experiences in this field.
·
Results acquired through a questionnaire spread
among CEPEJ national
correspondents
·
Work is going on with the help of two scientific experts: Prof. Marco Fabri (Italy) and Prof.
Shanee Benkin (Israel), on the basis of the following scheme:
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Time-based system |
Point-based system |
Mixed system |
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Measurement of working time (ex.: Israel) |
Estimation of working time (ex.: Germany, Austria) |
Total number of points
for various case-related factors such as: ·
number of files ·
number of pending cases ·
time required to examine a
case ·
number of parties ·
number of hearings ·
need of one or more expertises ·
number of pretensions in a case, ·
number of lawyers’ submissions in a case, ·
need to hear witnesses (and number of them), etc. |
Time + other case-related indicators |
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·
Getting CCEJ somehow involved in
the project.
·
The CEPEJ-SATURN also considered and approved the draft table of contents and the draft list of
objectives of the future
tool as drawn up by the two experts.
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7. On-going Works within the
CEPEJ SATURN Centre for Judicial Time Management. New Approaches and Tools on Case Management in Europe: Dashboards for Court Management.
In these last years and months, the
works of the CEPEJ SATURN Centre have been going on also on other important
aspects of judicial activity. We might here mention:
· the work about the elaboration of tools,
guidelines
(possibly a handbook)
and IT instruments
for the Management of judicial time regulations
for criminal cases, according
to EcvHR articles 5 and 6;
· a reflection about a document on the Role of the parties and the practitioners in preventing delays
in court proceedings (with the involvement of CCBE);
·
the development of
co-operation activities and Court-coaching programmes in Albania, Kosovo, Malta and Slovakia;
·
the elaboration of a contribution in the
updating of Recommendation Rec(86)12 concerning measures to prevent and reduce the excessive
workload in the courts;
·
the co-ordination of the
works of the Network of the Pilot courts of the CEPEJ.
·
(For an updating of the information concerning the
activities of CEPEJ-SATURN see: https://www.iaj-uim.org/iuw/wp-content/uploads/2019/06/Oberto_Presentation_for_ECHR_oral.pdf).
A special mention has to be made about the subject of Dashboards for court management. Here the CEPEJ SATURN Centre started its works on
the basis of a first draft document, which contained the following template
dashboard:
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Actually, the CEPEJ SATURN Centre instructed the CEPEJ Secretariat to continue
collecting information on existing dashboards. On the basis of the analysis of
several European experiences the CEPEJ-SATURN’s work on court management
dashboards is to produce a common template that would be made available to all
European courts, containing guidelines on the data, tables, graphics and
indicators that could be included in a dashboard template (on the number of
cases per judge or the duration of cases, for example in the light of the
discussions held at the Pilot courts meeting), along with a number of examples.
According to the recipient of the dashboards, the shape and the content
of the table / graphics could evolve:
·
For court managers –
monthly and yearly indicators, to measure efficiency of the court and allocate
means could be relevant.
·
At national / federal
level, other economic and social indicators could be crossed with the
efficiency of the courts: e.g., evolution of demography, unemployment, etc.
·
To promote widely the
activity of the judiciary, specific graphics / tables could be built and
published on internet (see for example CEPEJ-STAT).
Additional
information (in English) on the current debate on issues of case management (in
Italy and Europe) is available here:
·
G. Oberto,
Study on Measures Adopted in Turin’s
Court (“Strasbourg Programme”) along the Lines of “Saturn Guidelines for
Judicial Time Management”, https://www.giacomooberto.com/study_on_Strasbourg_Programme.htm.
·
F. Contiki
(ed.), Handle with Care: assessing and
designing methods for evaluation and development of the quality of justice,
IRSIG-CNR. Bologna, 2017,
https://www.lut.fi/web/en/school-of-engineering-science/research/projects/handle-with-care.
·
E. Silvestri,
Notes on Case Management in Italy,
https://ssrn.com/abstract=3158105
or http://dx.doi.org/10.2139/ssrn.3158105.
·
D. C. Steelman
& M. Fabri, Can an Italian Court Use the American Approach
to Delay Reduction?
https://www.tandfonline.com/doi/abs/10.1080/0098261X.2008.10767868.
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L. Verzelloni,
Reduction of Backlog: The Experience of
the Strasbourg Programme and the Census of Italian Civil System,
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G. Esposito,
S. Lanau, S. Pompe, Judicial System Reform in Italy—A Key to Growth,
https://www.imf.org/external/pubs/ft/wp/2014/wp1432.pdf
·
Imf, Italy, selected figures,