Strasbourg, 24 September 2012
Steering Group of the SATURN Centre for judicial time management (CEPEJ-SATURN)
Gozo (Malta), 26 and 28 September 2012
FOR JUDICIAL TIME MANAGEMENT
COMMENTS AND IMPLEMENTATION EXAMPLES
Report prepared by
Jon T. Johnsen
Directorate General I – Human Rights and Rule of Law
According to the Meeting Report from the 11th meeting in Strasbourg 23 and 24 February 2012, I
1) proposed to draft some proposals for amending the Guidelines and the Checklist ( Para 20) and
2) was entrusted the task of preparing some examples of commentaries that explain the text in the SATURN Guidelines (Para 24).
My proposals and examples are drawn from my work with the implementation project; see “IMPLEMENTATION OF SATURN TIME MANAGEMENT TOOLS. Synthesizing report from seven test projects.” CEPEJ-SATURN (2011) 2 chapter 5. (Synthesizing Report) They are provisional and only meant for further considerations and discussions by SATURN.
2 Possible changes in the guidelines1
In chapter 5.5, the Synthesizing Report forwards twelve recommendations from the pilot exercise as examples of remedies that could be developed from the testing. SATURN discussed the relevance of those recommendations as part of the approval of the report. Several of them might be suitable as amendments to the guidelines. They are listed below without any discussion, because I suppose a further process is necessary before SATURN makes any final decision about forwarding amendments.
Recommendation 1: The time management guidelines of SATURN must be translated and made available to all courts, judicial administrations, ministries of justice, local and national bar associations, public prosecutors and crime units in the police, victims’ organizations and other user organizations and enforcement agencies in all member states. All actors should be encouraged to implement them as far as possible.
Recommendation 1 could be added to the guidelines section III on authorities responsible for administration of justice either under letter D Accountability or under a separate letter E on availability
Recommendation 2: All national court administrations should do comparative analyses of the SATURN guidelines and the time management tools used by the courts in their jurisdictions, identify SATURN guidelines that are not well implemented and develop efficient strategies on how to implement them.
Recommendation 2 could be added to the guidelines section III on authorities responsible for administration of justice under letter A Division of labour.
Recommendation 4: Framework agreements with the Bar organisations on time use and deadlines should be made in all jurisdictions where modification of the lawyers’ conduct is important to putting up proper calendars for each case. (SATURN should amend its guidelines part I E accordingly.)
As suggested, recommendation 4 could be added to section I E.
Recommendation 7: The reasoning of judgements should be concise in form and limited to the essential issues. The purpose should be to explaining the decision. Only questions relevant for the decision of the case should be taken into account.
Recommendation 7 might be added to section V Guidelines for judges under a separate letter E.
Recommendation 8: Standard electronic templates for judicial decision making should be developed and employed by the courts, national court administrations and at the European level. More use should be made of summary proceedings.
Recommendation 8 might be added to Section II D, for instance after Guideline II D 4.
I also recall recommendation 9:
SATURN should analyse the use of strict statutory deadlines for time use in the courts as an alternative or addition to party agreements on case progress, develop model provisions for incorporation in national legislation on civil and criminal procedure and recommend them to the member states for implementation.
Recommendation 9 presupposes further work before a guideline might be formulated. I also have used this recommendation as basis for commentary example no 2 below.
3 Examples of commentaries to the guidelines
I have drafted four examples of comments to the existing guidelines. The first one is extensive, the other three short. I do not think that all guidelines need comments. Some are self explaining. I do think, however, that more guidelines than the four examples might profit from clarifying comments.
Example 1 Guideline 4 (IIIC2)
Particular attention should be given to the cases where integral duration is such that it may give rise to the finding of the violation of the human right to a trial within reasonable time.
Comment: Guideline 4 is of special importance for preventing violations of the "within reasonable time" criterion in ECHR article 6 (1). Complaints concerning such violations constitute a major share of the case load of the European Court of Human Rights and are considered a major factor behind the huge backlogs at the court.
According to the case law of the Court, the evaluation of alleged violations of “reasonable time” depends on a complex analysis, which is discretionary in character. All courts therefore ought to possess a thorough understanding of the case law of the court on timeliness. SATURN recommends the Calvez study available at the CEPEJ website.2 The study thoroughly identifies the criteria used, and also suggests some fixed time limits that, if exceeded, will make the case vulnerable of violating the “reasonable time” criterion.
When a case is appealed, the time use at the first instance and the appeal courts must be added. Also time use on the enforcement stage should be included. In criminal cases the standard applies on the combined time use at the pre trial and trial stage. Measurement starts when the investigation focuses on an identified suspect meaning when a person is substantially affected by the investigation.
Statistics that mainly focus on average time use do not necessarily reveal exceptional long duration in atypical cases. Cases must be measured individually.
In most courts measurement starts when cases arrive at the court and stops when they are finalized or sent off to another instance. For appeal cases and first instance criminal cases such measurements appear incomplete and ways of controlling the combined time use ought to be developed.
Appellate and institutions of enforcement courts should possess information about time use at previous stages. Information about the duration of criminal cases until the arrival at the first instance court also must be available and might for instance be gathered from the police or prosecution. Courts and enforcement institutions might then speed up their handling of cases that have progressed slowly at previous stages and prevent unintended violations due to incomplete information about total time use.
Example 2: Guideline 2 (IC2)
The users are entitled to be consulted in the time management of the judicial process and in setting the dates or estimating the timing of all future procedural steps.
Comment: Some states view timeliness as a public good and have legislated strict statutory deadlines on time use in the courts. They give little leeway for agreements on time management in the individual case. When such deadlines exist, the court’s main task is to see to that they are adhered to by the parties.
Example 3: IC3 (outside the fifteen list)
The length of judicial proceedings should be monitored through an integral and well-defined system of collection of information. Such a system should be able to promptly provide both the detailed statistical data on the length of proceedings at the general level, and identify individual instances at the origin of excessive and unreasonable length.
Comment: States should implement G IC3 by establishing national, uniform IT systems at the courts that allow for monitoring of all time use and deadlines relevant for the implementation of the SATURN guidelines. Preferably the systems should be uniform in some respects also on the European level, making it possible for European instances like CEPEJ to compare time use all over Europe. CEPEJ is in the progress of developing European standards for time measurement.
Example 4: IIIC 1 (outside the fifteen list)
If departures from standards and targets for judicial timeframes are being observed or foreseen, prompt actions should be taken in order to remedy the causes of such departures.
Comment: National court administrations and bar organizations should analyse whether the existing fee structure of lawyers is in line with efficient time use or are in need of revision. For example, they should not allow for payment per document or hearing so that the more documents and adjournments in a case, the more the lawyer earns. Necessary adjustments should be made so that swift handling by the lawyers is rewarded.
More material that might be useful as comments can be gathered from the Synthesizing Report section 4 on the Strasbourg Programme and from the recommendations in section 5.5.
1 Synthesizing Report section 5.5
2 See CEPEJ Studies No. 3: “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”. An update of the study is under preparation by SATURN.