The European Commission for the Efficiency of Justice

How was the European Commission for the Efficiency of Justice (CEPEJ) born? by Eberhard DESCH, former President of the CEPEJ

For several decades now, the Council of Europe has been strongly committed to setting up a legal framework to give states a real legal basis to establish a judicial system which would not only be of a high standard, fair and efficient, but also fast and cost effective. This legal framework would be crucial to certain countries that have, since 1989, done away with their old judicial system. It would also be useful to all the 47 member States of the Council of Europe, for whom the efficiency of a judicial system is of primary importance.

The European Court of Human Rights, and in particular Article 6 of the Convention and its case-law on the right to a fair trail, sanction states who do not respect fundamental principles, such as the speed of judicial procedures, an independent and impartial court, a judicial system accessible to all, or the transparency of debates.

All these standards and case-law constitute a unique corpus juris in Europe, a source of inspiration of the way in which judicial systems should function.

In order to reach an efficient and high standard of justice, it is nevertheless not sufficient to set out norms and to implement procedures, however good and effective they are. It is also vital to take into account the real needs of the ordinary citizen and to satisfy his/her thirst for justice on a daily basis. A trust relationship must be established: on the one hand, trust for the individual during a trial, when he/she is faced with a judge and alongside his/her lawyer; on the other hand, mutual trust between states, as it is vital for states, while respecting their legal cultures and differing judicial procedures, to have the assurance that, together, their judicial systems respect the fundamental principles which form the acquis of the Council of Europe. One knows how important this trust is to create a sound basis for the economy and development of a state. Furthermore, the development of trade and industry depends on the trust in equity and on access to the legal system of a country aiming to attract investments.

With this in mind, as early as 1997, the Heads of States and Governments meeting in Strasbourg for their 2nd Summit, reaffirmed the need to give priority to the topic of the functioning of the judicial system, as an essential part of a state guaranteeing the respect for Human Rights. The Committee of Ministers set up a monitoring procedure on the functioning of the judicial system, which highlighted the various stakes in this area in the various member States. This monitoring proved itself to be useful, but not very encouraging when it came to the good functioning of the judicial system.

1. The London Conference of the Ministers of Justice

During its 23rd London Conference of Ministers of Justice in 2000, the ministers committed themselves to a grand scale programme to improve the functioning and the efficiency of justice in Europe. With Resolution Nr. 1 “Delivering Justice in the 21st Century”, the ministers invited the Committee of Ministers:
“ to instruct the European Committee on Legal Co-operation (CDCJ), in consultation with the European Committee on Crime Problems (CDPC), to prepare an appropriate legal instrument or instruments aimed at promoting efficiency of justice throughout Europe by:
a. defining and developing the principles to be applied in the field of justice, in the light of Article 6 of the European Convention on Human Rights and the Resolutions and Recommendations of the Committee of Ministers concerning the functioning of justice; and
b. elaborating a mechanism to enable States:
(i) to examine the results achieved by the different legal systems in the light of those principles by using, amongst other things, common statistical criteria and means of evaluation,
(ii) to implement the international legal instruments concerning efficiency and fairness of justice,
(iii) having regard to the specific needs of the country concerned, to identify concrete ways to improve the functioning of their judicial systems;

2. The elaboration of an instrument to serve as a framework to the CEPEJ

On this basis, terms of reference were entrusted to the Committee of Experts on the Efficiency of Justice (CJ-EJ).

They would have to reflect the political aspirations set out in Resolution Nr. 3 “General Approach and Means of achieving Effective Enforcement of Judicial Decisions”, adopted during the 24th Conference of the European Ministers of Justice, which was held on 4-5 October 2001 in Moscow (Russian Federation).

The task of the Committee of Experts on the Efficiency of Justice (CJ-EJ) was thus to establish a specific mechanism, bearing in mind the success the Venice Commission has as regards constitutional matters. The participants from the member States of the Council of Europe, pioneers in the implementation of the CEPEJ, were: Vladimiro Zagrebelsky (Italy, who left the Committee after having been elected judge at the Court of Human Rights in Strasbourg), Barbara Göth (Austria), Prof. Alan Uzelac (Croatia), Loukis Savvides (Cyprus), Sonia Djemni Wagner (France), Martin McDonald (Ireland), Loreta Raulinaityte (Lithuania), Pim Albers (the Netherlands), Ingmar Nestor Nilsen (Norway), Graça Fonseca (Portugal), Frank Schürmann (Switzerland), Richard Mortimer (United Kingdom, vice-president of the CJ-EJ) and myself, as president, as well as José Alegre for the European Commission. The name of European Commission for the Efficiency of Justice (CEPEJ) was put forward for this mechanism, and discussed during the plenary meeting of the CJ-EJ in Bayonne (France), which took place from 27 February to 1 March 2002. At this stage, a proposal was put forward to establish an enlarged partial agreement, in order to allow the participation, on an equal footing, of member states of the Council of Europe, non member states and international organisations.

The main characteristics of the CEPEJ are described as such:

    a. Mutual assistance on a voluntary basis, to improve the practical ”functioning” of justice in member states. This means that the states themselves would be able to collaborate to improve the areas of their judicial system which need it (for example: legal aid, civil proceedings, ADR, etc.) and to offer their best practices and technical competencies to other members in areas of justice in which they are particularly efficient. The key to success of this system is the willingness of states: if a country becomes a member of the CEPEJ, it can only want to progress in certain areas dealing with the functioning of justice and/or to offer its competencies in other areas.
    b. A tailor-made approach: the added value brought by the creation of this body would be that the Council of Europe would allow states, in a very concrete manner, to improve the functioning and increase the efficiency of their judicial systems, thanks to a country-by-country (or region-by-region) and topic-by-topic approach. The CEPEJ would be the essential exchange point allowing states to collaborate with a view to reforming, when and where they wish, a section or the whole of their judicial system in the light of their own needs.
    c. Establishing standards for after-sale service: the CEPEJ represents a new stage in co-operation in judicial matters for which, once the principles and regulations have been established in most of the areas dealing with the functioning of justice (access to justice, ADR, organisation and administration of justice, etc.), an adapted and efficient after-sale service was necessary.
    d. However, the creators of the CEPEJ recognised that, in certain cases, the existing legal instruments were out of date, and that it might be necessary, in the future to come up with new texts. That was why the CEPEJ would have the opportunity to propose that the relevant bodies revise the current international legal instruments or draft new instruments.
    e. Follow-up of the Monitoring of the Committee of Ministers on the functioning of the judicial system: the Committee of Ministers particularly wished that the information ensuing from its monitoring procedures in the framework of negotiations aiming at establishing the CEPEJ would be taken into account.
    f. Participation of the European Community: it was hoped that the European Community would actively participate in the work. This would not only be in keeping with the recommendations of the European Council of Tampere in 1999 to increase co-operation between the European Union and the Council of Europe, but also with the increasing use of the European Community in dealing with questions of judicial co-operation in civil matters.

3. The role of the European Committee on Legal Cooperation (CDCJ)

The CDCJ, at its 77th meeting (March 2001), after having discussed the preparatory texts, set out the work and the place of the CEPEJ within the Council of Europe and adopted the draft resolutions by 33 votes “for”, 5 “blank” votes and 0 votes “against”. Some delegations who voted “blank” specified that, in order to implicate all the member States of the Council of Europe in questions relating to the functioning of justice, it might be necessary, in future, in particular when elaborating draft instruments, to set up specific working groups.

    4. The adoption by the Committee of Ministers

The adoption by the Committee of Ministers was planned for 11 July 2002. The Secretary General of the Council of Europe, Walter Schwimmer, then proposed to follow another path. He praised the availability and ability of the CDCJ to make new proposals and to bring innovative replies to new needs. Nevertheless, he believed that for an organisation which has the notion of the Rule of Law as one of its pillars, the efficiency of justice was a question far too important to be dealt with by the limited circle of a partial agreement. This is the reason why he took the initiative to submit to the Committee of Ministers a draft resolution establishing the CEPEJ as a plenary committee with its own statute. This would allow all the member States to participate in the CEPEJ and to benefit from its work, from the start, taking effect on 1 January 2003. With this in mind, the CEPEJ would be financed from an ordinary budget.

On this basis, the CEPEJ was finally established, as an inter-governmental co-operation body, by Resolution (2002)12 of the Committee of Ministers on 18 September 2002 during the 808th meeting of the Ministers’ Delegates. The CEPEJ was thus in the exceptional situation in the Council of Europe of being an inter-governmental committee with its own statute.

    5. Starting work

The CEPEJ held its 1st plenary meeting at the Council of Europe in Strasbourg from 5 to 7 February 2003. The meeting was chaired by André Potocki (France), elected Vice-président of the CEPEJ – with myself elected asPresident, but absent as I had to attend, exceptionally, another meeting in New York. Alan Uzelac (Croatia) and Pim Albers (Netherlands) were elected as members of the Bureau. The meeting was opened by Guy de Vel, Director General of Legal Affairs of the Council of Europe. The CEPEJ, in which, according to the statute, the Council of the European Union and the European Commission can participate, also allowed the Hague Conference on Private International Law as observer. During its second meeting, the World Bank, the European Union of Court Clerks (EUR), the International Union of Judicial Officers (UIHJ), European Association of Judges and the Council of the Bars and Law Societies of the European Union (CCBE) were also granted observer status, followed, over the next few years, by the European Federation of Administrative Judges, the European Judges for Democracy and Liberties (MEDEL), the European Judicial Training Network (EJTN), the European Network of Councils for the Judiciary (ENCJ) and the American Bar Association – Rule of Law Initiative (ABA-RoLI).

Made up at the beginning of 45 member States (they are 47 today) as well as a certain number of observers, the CEPEJ is a unique forum for sharing experiences and best practices, and for identifying concrete means for improving the functioning of their judicial systems. It is indeed vital for this new Commission to be able to receive the testimonies and the help of those working at the heart of the judicial system, in particular judges, prosecutors, court clerks or lawyers.

The CEPEJ thus began its work in 2003, by first establishing its plan of action, methods and working tools so that they could be best adapted to the crucial role of its primary target: putting into action the instruments of the Council of Europe in the field of efficiency of justice aimed at public decision-makers, legal professionals and ordinary users of the judicial system.

Following the decision of the Committee of Ministers of 5 June 2003 (842th meeting of the Ministers’ Delegates) to establish a European Day for Civil Justice, to be held every year during the last week of October, the CEPEJ set out an organizational chart for this Day, in co-operation with the European Union.

6. Perspectives for the future

As certain discussions within the CDCJ had shown, the course taken by the CEPEJ has not been an easy one. Some thought that the best working method, for those member states who wished to benefit from it, would be to have targeted co-operation activities in small groups. In my opinion, the CEPEJ should become a modern and innovative committee within the Council of Europe: the Council had established numerous standards, but a mechanism to better implement them was missing. Hence the CEPEJ! Equipped with many Recommendations from the Council of Europe mentioned in its Statute, the CEPEJ must look for the best ways of implementing these principles, and to give advice to the Committee of Ministers and member states to achieve this, whatever the legislative part or systems organisation.

The CEPEJ has developed in various directions. The path of multilateral co-operation has been very successful. Developing from a very vague idea set out in its initial Statute: to “examine the results achieved by the different judicial systems in the light of the principles, by using, amongst other things, common statistical criteria and means of evaluation", the CEPEJ has established a real evaluation procedure of European judicial systems. The reports on judicial systems in Europe are now regularly used as a source of information and reflexion by the judicial political and scientific research.

One aspect of the great wealth of the CEPEJ is also its networks. The CEPEJ is anchored in the judicial practice through its pilots-courts, with whom much can still be developed, since immediate contact with the practitioner in the field brings certain unusual questions to light. The CEPEJ is thus creating a tightly-knit web of lawyers specialised in various areas, such as the organisation of justice, to which the professional organisations who have observer status considerably contribute, ensuring the respect of various interests at stake, including those of the users of justice.

From the start, the CEPEJ has been trying to find answers to the challenges posed by the constraints of judicial timeframes and, more recently, by the development of the concept of the quality of justice. This work, apart from the evaluation of the functioning of justice, is of particular interest to other institutions and organisations, especially to the European Union. One can only hope that the Memorandum of Understanding, recently signed by the Council of Europe and the European Union, will be the tool to continue a fruitful co-operation, repeatedly wished for by the Vice-president of the European Commission, Franco Frattini.

Thanks to the great expertise of its members and to its excellent Secretariat, the CEPEJ could, up until now, do useful work for the member States. I am convinced that, in the future, it will continue to find pragmatic solutions to the pressing problems posed by the development of justice in member States.