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Best practices on the prevention of the unreasonable length of proceedings: experiences of the CEPEJ

Dr. Pim Albers
Special advisor of the CEPEJ Council of Europe
pim.albers@coe.int

1 Introduction

In this article an overview will be given of various studies that have been conducted by the CEPEJ (the European Commission for the Efficiency of Justice) of the Council of Europe on the management of judicial time.

The CEPEJ was created in 2002 as the result of a conference of ministers of justice (London) held on the topic of the functioning of justice and the problems in the area of delays in judicial proceedings. The main task of this Commission is to “examine the results achieved by the different judicial systems in the light of the principles [access to justice and efficient court proceedings, the status and role of legal professionals, administration of justice and management of courts, use of information and communication technologies] referred to in the preamble to Resolution 2002(12) by using, amongst other things, common statistical criteria and means of evaluation”.1 In addition to this task the Commission is involved in assistance to Member States in situations where there is an information request, as well as in the drafting of new relevant Recommendations (or modifications of current ones) in the area of administration of justice.

One of the main points of reference for the work of the CEPEJ concerns article 6 of the European Convention on Human Rights. This article reads as followed: “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” This article is the general guideline for the European Court of Human Rights, located in Strasbourg France, for applications that are connected with length of proceedings in national jurisdictions of the Member States of the Council of Europe.

For the evaluation part of the work of the Commission specific expert groups have been created (CEPEJ-GT-EVAL)2. These groups were responsible for the creation of a methodology to identify the composition and functioning of the various judicial systems in Europe and the drafting of two reports in this field. The reports give a description of the legal actors involved in judicial proceedings (prosecutors, judges, staff, lawyers, enforcement agents, mediators, notaries, citizens and other court users) and the operation of courts and public prosecution agencies of the 47 member states of the Council of Europe. On the ‘delays-part’ of the CEPEJ another expert group was created in 2002 (CEPEJ-GT2). This expert group was responsible to explore the problems on court delays and long duration of judicial proceedings.

The need for the creation of CEPEJ-GT2 lies in the fact that in Europe, but also outside the region, there exist the general perception that the length of courts proceedings, especially in the area of civil law, are too long and that specific measures needs to be taken to reduce the time that is needed to finalise a judicial decision. However, when we are looking at the facts, nobody knows how long the average lengths of proceedings are in the various countries, since not much information has been collected on length of proceedings and timeframes.

The study of Langbroek and Fabri on timeframes (2003)

In 2003 CEPEJ-GT2 invited two experts to conduct a study on factors that determine reasonable time and to identify factors that are related to delays in judicial proceedings.

The reasonable time requirement concerns the guarantee of anybody going to court that a final decision in a case will be given within a reasonable time. The idea is that citizens are entitled to legal certainty. However, the researchers concluded that in practice the Court is not providing any certainty because the concept of what constitutes a reasonable time, depends on external boundaries of applicability of the ‘reasonable time’ clause and on case-related criteria concerning the reasonableness of the actual time that passed during proceedings.

Regarding the external boundaries they noted that reasonable time is dependent on the various areas of law (criminal, civil and administrative law) and that national systems are required to deliver judicial decisions according to the norms that are derived from the Court of Human Rights.

The term of the reasonable time starts when authorities start to have a legal responsibility towards the citizen. Normally, in civil proceedings this is the case when the citizen or its lawyer files proceedings at a court (see Fabri and Langbroek, CEPEJ 2003(20)revE). But in criminal proceedings the starting point does not have to be the formal indictment of the suspect. As soon as the burden of being a suspect actually is being imposed on a citizen, and it may reasonably be expected that the citizen knows s/he is a suspect, e.g. because his/her house was searched by the police, the term starts. The term of reasonable time ends, according to the researchers, when a final decision has been delivered by a (Supreme) court or in a situation where a decision has been delivered by an appeal courts, after the court of cassation referred a case to give a final decision. They added to this notion that in civil cases, the enforcement or execution of decision should be taken into account when we are discussion the principle of reasonable time. Finally, also case related criteria, such as the complexity of a case, the conduct of the application (co-operative or non co-operative), the conduct of the authorities and the specific interest of a party, are of importance in determining reasonable timeframes.

In their search for determining factors that may reduce the length of proceedings i.e. delays in court proceedings, the researchers concluded that the following factors are of importance in reducing delays in court proceedings:

The researchers concluded in their report that in addition to the factors mentioned in other studies on delays, new research should be promoted, especially by looking at:

The information of the Study of Langbroek and Fabry was the basis for the development of a framework programme of the CEPEJ on ‘optimum and foreseeable timeframes’ (CEPEJ (2004)19REV2E). This document started with the notion that a new goal is necessary for the courts in Europe, namely: that all the court cases are processed in optimum and foreseeable timeframes’. This document re-iterates the fact that the European Court of Human Rights has stated in many case law decisions that it is the responsibility of the national jurisdiction to take adequate measures to reduce the length of proceedings. It also reminds the readers that the existence of excessive length of proceedings can lead to corruption in the judiciary (where parties have to pay for shorter court proceedings). Delays in court proceedings, may be connected with a lack of financial resources, but in can also be influenced by a negative culture within a court organization or ‘bad’ governance of courts too.

The main aim of the Framework programme is to develop a direction i.e. action plan that can be used by the various countries as a source of reference for drafting measures on reducing court delays. According to the Framework programme three principles have to be taken into account when measures are implemented in the area of reducing delays:

With these three principles in our minds 18 lines of actions were developed, which may contribute to shorter court proceedings. In text box no. 1 these lines of actions are summarized. Some of these actions are oriented at sufficient resources for the courts, and the quality of the legislation, the use of monitoring systems and statistical tools (including common case categories), whilst others are aiming at improvements of the legal proceedings (for example: improving the foreseeability of timeframes, the quality of proceedings, procedures for reviving cases, etc.) or the application of (inter) organisational measures (identification of pilot courts, better organization of trials, improving the relationships with lawyers, etc.).

One of the first lines of actions that have been implemented by the CEPEJ was the introduction of a network of pilot courts. This network held its first meeting in April 2006 in Bucharest. Each Member State of the Council of Europe has nominated a national court, which is implementing (innovative) measures to reduce the length of court proceedings. All these national courts are members of the network of pilot courts. The main aim of the network is to exchange information on ‘best practices’ regarding the implementation of specific measures to reduce timeframes. The network is also used as a consulting body for various issues addressed by the CEPEJ. For example the network has been involved in drafting opinions on studies regarding the ‘time management in the courts’, mediation, the evaluation of judicial systems at a European level and the ‘draft compendium of best practices on time management of judicial proceedings.

Text box 1 Lines of actions Framework programme (CEPEJ (2004)19REV2E)

Taskforce on Delays (TF-DEL)
Between 2005 and 2006, the Task Force on delays in judicial proceedings (CEPEJ-TF-DEL) has carried out several studies in order to learn more about the concrete situation of timeframes in Member States and it has elaborated tools for public decision makers and legal experts to improve judicial time management. One of these studies was the ‘compendium of best practices on time management of judicial proceedings’ (CEPEJ (2006) 13.
The general principle of the Compendium was build around the notion that was introduced by the Framework programme, namely the principle of working into the direction from ‘reasonable timeframes’ (as defined in Article 6 of the European Convention on Human Rights) to ‘optimum timeframes’ (see figure 1).

Figure 1 − From reasonable time to "optimum" timeframes

The researchers responsible for the drafting of the compendium used a bottom-up approach. This means that policies and practices of the day-to-day operation of courts have been identified through the analysis of relevant documents. This information was classified in five groups of policies:

1. Setting realistic and measurable timeframes,
2. Enforcing the timeframe,
3. Monitoring and dissemination of data,
4. Procedural and case management policies and practices,
5. Caseload and workload policies.

Within these five policies, a list of practices has been singled out as reported by the network of pilot courts, Recommendations or other documents of the Council of Europe and the literature based on empirical research is used as well.
Just to give a general impression what is in the compendium for each policy an example will be given.
1 Setting realistic and measurable timeframes
Timeframes are seen by the researchers as tools for achieving timeliness proceedings. They can be set at a national level, a court level or at the level of the individual judge. For example the Rovaniemi Court of Appeal of Finland has agreed that all the cases should be solved within one year. With respect to the timeframes the researchers stated that a differentiation must be made between the different procedures (civil law, criminal law and administrative law), the complexity of cases and that within the timeframes information should be collected for the different steps to be carried out as a part of the judicial proceedings. An example of setting timeframes that is connected with the level of complexity of a case is from the UK (England and Wales (Manchester)). 80% of small claims should be disposed in 15 weeks, 85% of cases assigned to a so called fast track procedure should be disposed in 30 weeks, and 85% of case assigned to the so called multi track procedure should be disposed of in 50 weeks. In Ireland (Dublin Commercial Court) all aspects of cases in the Commercial Court are monitored and time periods calculated in respect of various stages within each case on an ongoing basis. Timeframes for criminal law proceedings and civil law proceedings are set for example in Norway: 100% of civil cases should be disposed in six months, 100% of criminal cases in three months.
2 Enforcing the timeframe
It is clear that when timeframes are set (as a target to be reached by the courts) that they are enforced too. For example interventions by the manager, the chief judge or the Court of Appeal should be considered when certain timeframes are not met. In Austria the judges of the Court of Linz receive a summary including the numbers of all the pending cases classified by duration (i.e. more than 1, 2 or 3 years). The heads of courts undertake consistent activities with this information such as balancing the caseload or commencing disciplinary proceedings. In (some regional parts of) Germany there is (Stuttgart Regional Court of Appeal) a system of inspections (‘Nachschau’) through which the upper judges visit periodically the lower courts to control all cases pending longer than a certain period.
3 Monitoring and dissemination of data
The researcher underlined the need of monitoring and dissemination of data regarding timeframes and length of proceedings. They suggested that a constant monitoring of pending cases is a key element for the setting and the development of timeframes. This is something more than the “traditional” court statistics. Quantitative data has to be finalised to create useful reports to monitor and highlight the length of proceedings. One of the examples shown is the attention for the monitoring of ‘stand still time’ or queuing time. For example in Lithuania (Regional Administrative Court Vilnius) − inactive cases for more than three months are brought to the attention of the head of court. In addition to his they stress the need for information available for court staff, citizens regarding the length of proceedings and court performance. For example in Denmark (Esbjerg District Court) − court statistics are used internally by the court’s manager for evaluation and monitoring of the time of processing each case and the court’s productivity. In Finland (Regional Administrative court of Turku) a yearbook of justice statistics and an annual report on the performance of the courts is published. Court annual reports containing statistics of pending times of different types of cases are published on the Internet.

4 Procedural case management policies

One of the other important elements for reducing delays is connected with case management policies. This can be the introduction of case processing rules and standards for example for complex cases as well as for simple cases, a limitation of the number of hearings, an active case management role by the judges, a strict policy to minimise adjournments, the stimulation of an early meeting between parties, the use of standard templates for certain judicial decision, the use of audio and video technology in court proceedings and the use of ICT in case management. Examples of the use of video conferencing technology, templates and ICT for case management can be derived from the courts of: Italy, Austria and Norway. In Norway (Frostating Lagmannsrett Court of Appeal) there have been efforts to compress the length judgments. A general judgment can run to 10-12 typed pages. If it is more than 14, then it is too long. The experience is that judgments are improved if they are shortened: it is clearer to see the key points, how the arguments were presented, and how the judge reasoned his conclusion. The format of the judgment is standard: a line indicating the legal theme of the case, a brief account of the background for the case, a summary report on the procedural history, the parties’ arguments and claims. Then the court presents its own deliberations with assessments and positions, and finally the court’s conclusion. In Italy videoconferencing technology is used in criminal proceedings. The so-called ‘ideo’ technologies are especially applied in criminal proceedings dealing with organised crime. In this way, it is possible to avoid the transfer of inmates from prisons to court facilities with a reduction of cost and hearing times. Case management systems can be found in Austria where the Linz District Court uses Electronic legal communication to file cases electronically, and to exchange data between the courts and the parties.

5 Caseload and workload policies

Another element in the fight against delays is related to caseload and workload policies. This can vary from the monitoring of the workload of the courts and judges to the stimulation of alternative dispute resolution outside the courts, the filtering of cases, the use of a flexible case assignment system, the extension of tasks to be carried out by court staff, the limitation of extra judicial activities of judges and the stimulation of a one-sitting judge instead of a panel of judges. Examples of caseload and workload policies are: France (flexible case assignment system – the judges operating next to the court president (mostly heads of a department within a court) or the general prosecutor of the court of appeal can be called to temporarily replace their colleagues in case of disease, maternity leave, annual leave, training courses and also in a situation to reinforce the personnel capacity in a court in order to ensure the treatment of a case within a reasonable time (Art 3-1 of the Statute of the Judiciary), Hungary (limitation of extrajudicial activities of judges – as the result of a reform of the judiciary they are not allowed to engage in other professional (paid) functions (for example as an arbitrator). This is arranged according to the Law LXII of 1997 and Italy (stimulation of a one-sitting judge Italy – in the framework of the trial court unification policy that took place in 1999, the legislator expanded the jurisdiction of the single judge in civil cases (whilst reduced the one of panel of three judges). As a consequence, the courts of general jurisdiction normally sit with a single judge with few exceptions for cases in which the law still requires a panel of three judges.

In figure 1 an example is given how the information is presented in the Compendium.

The Draft Compendium must be seen as a ‘living’ document in which new practical experiences derived from the courts regarding the reduction of length of proceedings will be inserted to the list of other ‘best practices’. Of course, a major source of information will be the network of pilot-courts.

The second study of the Taskforce on Delays is of a different nature. This study – the length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Rights - is not looking at practical solutions, but is focusing on causes for delays and norms on length of proceedings that can be derived from the case-law of the Human Rights court.

Figure 1 Example of the Draft Compendium


In this report on length of court proceedings (Calvez report) a description is given for the criteria that will be taken into account by the European Court of Human Rights to determine if a case is a violation of article 6 of the Convention or not:
- Complexity of the case (complex cases need longer time to be completed, but complexity as such is not always sufficient to justify the length of proceedings);

- The applicant’s conduct (this is the only criterion that led the Court to conclude that Art. 6. was not violated even if the length of proceedings was manifestly excessive)
- The conduct of the competent authorities (if the authorities have taken prompt and appropriate remedial action to manage the temporary unpredictable overload of the courts, the longer processing time of some cases may be justified)
- What is at stake for the applicant (some cases need to be expedited ; such “priority cases” include:

In addition to individual criteria, the Court also makes an overall assessment of the circumstances of the case. It may establish that ‘reasonable time’ is exceeded, if in such a global assessment, the Court finds that total time is excessive, or if it finds long periods of inactivity by competent authorities.

In the report also an overview is given for the main causes for delays (in general, but also for criminal and civil proceedings). In general the main causes for delays in court proceedings are related to: the territorial distribution of court jurisdiction, transfer of judges, insufficient number of judges, systematic use of multi-member tribunals (benches), backlog of cases, complete inactivity by judicial authorities, systematic shortcomings in procedural rules, failure to summon parties or witnesses, unlawful summons, late entry into force of legislation, disputes about the jurisdiction between administrative and judicial authorities, late transmission of the case file to the appeal court, delays imputable to barristers, solicitors, local and other authorities, judicial inertia in conduct of the case, involvement of expert witnesses, frequent adjournment of hearings, excessive intervals between hearings and excessive delays before the hearing. More specific for civil proceedings delays are related to a failure to use the courts’ discretionary power and the absence or inadequacy of rules of civil procedures. Causes for delays in criminal proceedings are: structural problems relating to organisation of prosecution service, decisions to join or not to join criminal cases, failure of witnesses to attend hearings and the dependence of civil proceedings on the outcome of criminal proceedings.

With respect to the general norms and standards that the Court is using for proceedings that has been handled within reasonable time it is concluded that:

§ The total duration of up to two years in normal (non-complex) cases is generally regarded as reasonable. When proceedings have lasted more than two years, the Court examines the case closely to determine whether the national authorities have shown due diligence in the process;
§ In priority cases, the court may depart from the general approach, and find violation even if the case lasted less than two years;
§ In complex cases, the Court may allow longer time, but pays special attention to periods of inactivity which are clearly excessive. The longer time allowed is however rarely more than five years and almost never more than eight years of total duration;
§ The only cases in which the Court did not find violation in spite of manifestly excessive duration of proceedings were the cases in which the applicant’s behaviour had contributed to the delay.

In the report a description can also be found per case category for which length of proceeding the court will decide that it is a violation and where this is not the case.

Violation of the reasonable time (Art. 6) - summary

Type of case

Issues

Length

Decision

Criminal cases

Diverse

More than 5 y.

Violation

Civil cases

Priority cases

More than 2 y. (min: 1y10m)

Violation

Civil cases

Complex cases

More than 8 y.

Violation

Administrative

Priority

More than 2 y.

Violation

Administrative

Regular, complex

More than 5 y.

Violation

Non-violation of the reasonable time (Art. 6) - examples

Type of case

Issues

Length

Decision

Criminal cases

Normal cases

3y6m (total in 3 instances); 4y3m (total in 3 levels. + investigation)

No violation

Criminal cases

Complex

8y5m (investigation and 3 levels)

No violation

Civil cases

Simple cases

1y10m in first instance; 1y8m on appeal; 1y9m Court of Cassation

No violation

Civil cases

Priority cases (labour)

1y7m in first instance (labour); 1y9m on appeal; 1y9m Court of Cassation

No violation

The third study of TF-DEL was a time management research in Northern European Countries (Denmark, Sweden, Norway and Finland) CEPEJ (2006)14E. In the first part of the report a review of proposals and policies are described aiming at reducing timeframes in courts. It describes the use and setting of timeframes in the Nordic countries with a special attention to priority cases. Also a typology of deadlines is given as well as ‘time management strategies’ (such as: court leadership, promotion of mediation, the need for a preparatory meeting and the setting of a date and time of the main hearing at an early stage).
The second part of the report describes a Norwegian project on swifter criminal justice. As a part of this study a separation is made between action time and standstill time and made an in depth study of them. Action time is the time spent when someone works on the case. Standstill time is the time when nothing happens. The researcher reported that the average action time i.e. the report of the crime to the prosecutorial decision varied between two and five days both between police districts and crime areas, whilst the standstill time varied between 43 and 309 days. Action time only constituted a minor part of the total processing time. The standstill time counted for more than 90 percent of the total processing time! The second part of the report concluded with measures to reduce the processing time, especially by focusing on measures for reducing the standstill time.

Time management checklist

In addition to the three reports on timeframes and length of proceedings the Taskforce on Delays has also produced a ‘time management checklist’ (CEPEJ (2005)12RevE. The checklist is intended to give help to member states to enable justice systems to collect appropriate information and analyze relevant aspects of the duration of judicial proceedings. Its purpose is to reduce undue delays, ensure effectiveness of the proceedings and provide necessary transparency and foreseeability to the users of the justice systems.

The time management checklist is based on five ‘time management indicators’:

The first indicator underlines the need that it is not sufficient to collect information on the length of proceedings on sub-steps of the proceedings, but it is necessary to generate data from the first application of a case until the highest court (i.e. the integral length of proceedings). The second indicator is stressing the need to define standards for optimum timeframes as well as for foreseeable timeframes. The third indicator shows the importance of a typology of cases which can be brought into connection with the time needed to finalise a case (a workload model). Another indicator of the checklist concerns the ability to monitor the course of the proceedings. It is recommended that the timing of most important and typical stages (“stages in proceedings”) are recorded and analysed. The last indicator is related to the means to diagnose delays and to mitigate them. Courts should have a system to monitor cases with an excessive length and a warning system which enables them to take proper action.

The role of ICT (information and communication technology) in the management of judicial time and workload models

In many documents that have been produced by the CEPEJ on the topic of length of proceedings and timeframes it is clear that one of the tools to manage timeframes and to reduce length of proceedings is the use of computer technology. Technology may reduce length of proceedings by introducing electronic exchange of information between parties and the courts (see for example the electronic communication project of the Swiss Courts) or a more efficient scheduling and assignment of cases (Slovak Republic court system) or through a better monitoring of court cases (see examples of court applications of American courts).

Another element that has been discussed, for example in the time management checklist is the need for common case categories and an estimation per case category of the time that is needed for a judge and court staff to finalise a decision. In the Netherlands as well as in certain other countries workload model has been developed. In these models information can be found for the average time that a judge and the court staff must spend to finalise a case. In table 1 an example is given for certain cases that have been included in the Dutch ‘Lamicie’ workload model.

Table 1 (Part) of the Lamicie workload model.

LAMICIEMODEL 2005
(workload model for judges and staff)

 

 
 
 

   

Minutes per case (judge)

Minutes per case (staff)

 

 

Appeal court

District court

Municipal court section

Appeal court

District court

Municipal court section

 

 

 

 

 

 

 

 

I. Civil law cases

 

 

 

 

 

 

Commercial law cases :

 

 

 

 

 

 

 

Decision employment dissmissal case with defence

 

 

303

 

 

205

 

Decision commercial case with defence

1.745

807

118

1.201

619

411

 

Decision Article 2 + interview, plea

1.745

1.726

516

1.201

998

605

 

Decision commercial case in district court concerning appeal

 

966

 

 

489

 

 

Judgement first instance (in absentia)

 

9

1

 

98

19

 

Court order commercial petition

577

60

12

1.473

175

26

 

Court order labour case (7:685BW)

 

 

47

 

 

116

 

Court order rent case

 

 

110

 

 

161

 

Decision bankruptcy case

 

309

 

 

1.133

 

 

Completion without decision

 

 

 

5

4

4

SATURN (Centre for judicial time management)

In 2007 the SATURN Centre was ‘launched’. This centre work on the following issues:

a. Analyse the situation of existing timeframes in the member States (timeframes per types of cases, waiting times in the proceedings, etc.);
b. Provide to the member States knowledge and analytical tools of judicial timeframes of proceedings;
c. Provide guidelines with a view to possible reforms aiming to foresee the judicial timeframes (see: CEPEJ(2007)1_en).

At the first meeting of the working group of SATURN the general working principles has been chosen. One of the first activities that was carried out by SATURN is the drafting of a questionnaire on common case categories, the availability of information on length of proceedings and timeframes and (possible) definitions that are used in the various courts to measure length of proceedings. Currently this questionnaire is send to the member of the network of pilot courts. It is foreseen that during the year 2008 on the basis of the replies of the questionnaire a report can be drafted, which give more insight in the subject of case categories and the methods that can be used to measure the length of proceedings and to reduce court delays.

Final remarks

As can be seen from the overview that has been given, the CEPEJ is strongly involved in the topic of management of judicial time, length of proceedings and timeframes. In principle by generating information and relevant documents on the topic, but also by providing practical tools (such as the Time Management Checklist) which can be used by the individual courts to reduce delays in judicial proceedings and to increase the efficiency of justice. However, it must be noted that the issue of judicial time and time management is not the only orientation of the CEPEJ. To keep the balance between ‘efficiency’ and ‘quality’ in the courts, another working group is addressing the topic of ‘quality for the judiciary’. Further information can be found at the website of the CEPEJ (www.coe.int/cepej), where all the relevant documents on the functioning of justice and judicial systems can be found.

Reference documents

.

1 Article 2 Resolution 2002(12) Establishing the European Commission for the Efficiency of Justice (CEPEJ).

2 In the first years of the CEPEJ this group was called CEPEJ-GT1.