Giacomo Oberto

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

 

 

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).

 

 

Current Composition of the SATURN Steering Group:

 

Shane BENKIN, Scientific Expert, Researcher, University of Tel Aviv (Israel)

 

 

 

 

3. Main Tools Adopted by the CEPEJ SATURN Centre for Judicial Time Management: The “Saturn Guidelines for Judicial Time Management”.

 

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.

 

Particularly relevant are the guidelines enshrined in the part (II) dedicated to legislators and policy makers, such as the following:

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:

 

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.

 

 

 

4. Main Tools Adopted by the CEPEJ SATURN Centre for Judicial Time Management: The Implementation Guide “Towards European timeframes for Judicial Proceedings.

 

Another relevant tool created and adopted by the CEPEJ SATURN Centre is the Implementation guide “Towards European timeframes for judicial proceedings.

 

 

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 differentCase 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.

 

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.

 

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:

·      Length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Right, by Ms Françoise Calvez and Nicolas Regis, Judges (France) 3rd edition by Nicolas Regis - Cepej Studies No. 27.

 

·      Study on Council of Europe Member States on Appeal and Supreme CourtsLengths of Proceedings (Report prepared by Marco Velicogna) IRSIG-CNR and CEPEJ expert - CEPEJ Studies No. 17.

 

 

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:

 

1

2

3

Time-based system

Point-based system

Mixed system

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

 

 

·      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.

 

  • Case weighting objectives
  • Case weighting is a system which assesses the complexity of different case types by means of a point based or a time-based approach.
  • The objectives of a case weighting systems can be different and not all of them may be pursued in every country. Among these objectives, there are the following:
    • Assessment of the number of judges needed to manage the caseload at the national and local level
    • Balanced/Equitable distribution of the cases among court divisions and then single judges
    • Evidence based allocation of judges in the various courts or within a court in the different divisions
    • Empirical based analysis of judges’ efforts to manage cases
    • Meaningful comparative data analysis among courts or different divisions within the court
    • Planning resource needs (i.e. buildings, ICT infrastructures, budgets, etc.) and their distribution
  • The development of case weighting systems can also be the basis for further analysis and actions such as:
    • Identify critical issues in the court procedures
    • Identify judges’ good practices to manage cases
    • Planning specific programs for the reduction of the length of the proceedings

 

 

 

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:

 

 

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.

·      L. Verzelloni, Reduction of Backlog: The Experience of the Strasbourg Programme and the Census of Italian Civil System,  

https://www.encj.eu/images/stories/pdf/workinggroups/Timeliness/verzelloni-reduction_of_backlog-the_experience_of_the_strasbourg_program_and_the_cebsu_of_italian_civil_justice_system.pdf

·      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,

https://books.google.it/books?id=9p21BAAAQBAJ&pg=PA15&lpg=PA15&dq=italy+justice+%22case+management%22+backlog&source=bl&ots=Im5HplnZoi&sig=LQtubGNFCyLhOXVO3NZ2iE36hWo&hl=it&sa=X&ved=0ahUKEwjrxJuZmcnbAhVHGsAKHa9RDa8Q6AEIbDAJ#v=onepage&q=italy%20justice%20%22case%20management%22%20backlog&f=false

 

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