23rd Conference of European Ministers of Justice
8-9 June 2000, London (United Kingdom)
Report by the Secretary General of the Council of Europe
1. The 23rd Conference of European Ministers of Justice was held in London on 8 and 9 June 2000 at the invitation of the British Government. The agenda, list of participants and Resolutions adopted are set out in Appendices I-III to this report.
2. The Bureaux of the European Committee on Legal Co-operation (CDCJ) and the European Committee on Crime Problems (CDPC), as well as the Senior Officials, held their preparatory meetings on the eve of the Conference.
3. The Lord Chancellor was elected Chair of the Conference. The Ministers of Justice of Moldova and the Russian Federation were elected Vice-Chairs.
4. The theme of the Conference was "Delivering Justice in the 21st Century".
The debates were organised along the following subthemes:
- ways of avoiding delay;
- modernising the court;
- modern ways of delivering legal advice.
5. The main report was submitted by the Lord Chancellor, and a number of Ministers submitted a memorandum; the list of documents appears in Appendix IV.
6. In his opening speech, the Deputy Secretary General said that efficiency and fairness of justice are crucial elements for the life of a State based on the rule of law. While more serious in certain countries than others, complexity, length and cost of judicial proceedings are common problems throughout Europe.
The Council of Europe could facilitate international co-operation to help States obtain appropriate technological equipment and expertise.
7. On the occasion of the Conference, several Ministers signed or ratified a number of Council of Europe Treaties in the legal field; details are provided in Appendix V to this report.
8. The Ministers expressed their gratitude to the British authorities for hosting the Conference, and for their cordial hospitality.
9. The Ministers took note of the invitation by the Minister of Justice of the Russian Federation to hold the 24th Conference of European Ministers of Justice in Moscow in 2001, and of his proposal for a theme "Implementation of judicial decisions in conformity with European standards".
Main report by the Lord Chancellor
10. In addition to the obligation imposed by Article 6 of the European Convention on Human Rights to provide to everyone "a fair and public hearing within a reasonable time", States start reacting to the view of the litigant as a consumer, who expects a service responsive to his needs. Alternative dispute resolution methods are often preferable to justice in the traditional sense. Possible measures to improve efficiency must also be examined from the point of view of cost-effectiveness.
11. The problem of delays can and must be seriously addressed, examining at the same time the results expected and the means envisaged. Changes in court practises should be brought about, but this must be done in a clear legal framework, in order to avoid disparity of treatment.
12. Receiving appropriate legal advice at an early stage of a possible dispute may avoid the need for formal litigation, or shorten its duration. Obstacles to obtaining legal advice are its cost and inaccessibility, and ignorance by the citizens of the facilities available. The report describes the British experience.
13. Modernising the court by the use of new technology has a very real potential to improve access to justice and the efficiency of the courts. Since a functioning judicial system is a requirement of a democratic country, efforts should be made at international level to provide assistance to States which do not yet have the means and the expertise to acquire modern technology.
Summary of the discussions
Ways of avoiding delay
During the discussions concerning ways of avoiding delay, the following points were made by participants:
a. citizens expect their rights to be protected effectively without undue delay as slow justice is no justice;
b. many delays occur in the courts of member States owing, in particular, to inappropriate procedures and the growing number, complexity and backlog of cases;
c. a distinction should be made between access to justice and access to court proceedings as not all cases need to be resolved by the courts - extra judicial methods of dispute resolution can reduce the volume of cases before the courts and provide citizens with more appropriate means of settling disputes;
d. parties should be encouraged, at an early stage, to reach an agreement and, whenever appropriate, alternative procedures, such as mediation, should be considered;
e. judges should adopt efficient working methods, should not remain passive and should manage their cases and monitor proceedings effectively;
f. appropriate procedures to reduce the length of cases should be used (eg small claims procedures, decriminalisation, summary procedures, use of a single judge, fast track procedures, striking out claims where there is no real cause of action, sanctions when deadlines are not met, pre-trial filters, timetables for proceedings, restrictions on appeals, improved co-operation between the different agencies dealing with questions concerning justice, proper enforcement procedures);
g. in order to promote commercial interests States need to ensure that cases can be completed quickly;
h. information technologies play an important role in reducing delay and full use should be made of such technologies.
Modernising the courts
During the discussions concerning modernising the courts the participants noted:
a. the importance of adopting customer led policies when carrying out reforms to the courts;
b. the success of information technologies in speeding up both the administration of the courts and court proceedings;
c. the opportunities given by the use of new technologies to reorganise the legal system in order to take account of these technologies;
d. the necessity for States to develop an overall strategy for the introduction of information technologies in the courts which, if necessary, could be carried out on a step by step basis;
e. the use of information technologies had reduced the cost of litigation for both the customer and the State and brought justice closer to the customer;
f. new technologies, which have been used with success, included:
. video links (recordings of evidence or court proceedings, video conferences eg. in cases concerning minors or victims of sexual abuse, to avoid the unnecessary transfer of prisoners, where persons live far from the courts);
. data base or internet (eg laws, regulations, case law, access to court registers, electronic digital signatures, commercial registers, land registers, criminal records, pending criminal proceedings, court judgments, electronic transactions management systems).
g. although the new technologies provided the courts with essential assistance, many different types of procedures would still have to be retained to take account of different needs;
h. all persons dealing with justice should receive specific training in information technologies and data protection requirements and judges and lawyers would adopt different working methods owing to their improved access to information;
i. court buildings, their infrastructure and court procedures would have to be adapted to take account of new technologies;
j. the interest of certain European States in receiving used computers from donor States.
During the Conference, the Ministers attended a demonstration of modern technologies in the Courtroom of the future.
Modern ways of delivering legal advice
During the discussions concerning modern ways of delivering legal advice, the participants underlined, inter alia, the following points:
a. legal aid, advice and assistance as a condition for the protection and promotion of Human Rights;
b. the need for citizens to be informed as to their rights and to be able to enforce them in practice;
c. the need to make a distinction between legal advice and assistance outside court proceedings, on the one hand, and legal representation in court proceedings, on the other;
d. the possbility for legal advice to be provided not only by lawyers, but also by other professionals, provided that the quality of the service is ensured;
e. the setting up of web sites to provide legal information and advice;
f. the relevance of the « no win, no fees » system (especially in certain cases) to facilitate access to justice;
g. the need to encourage the use of Alternative Dispute Resolution proceedings;
h. legal aid irrespective of the nationality of litigants;
i. in order to reduce costs, the possiblity of setting up a system based on fixed fees;
j. private insurance to cover the costs of legal aid, advice and assistance as a means to reduce costs;
k. the setting up of a Europe-wide legal aid procedure which would take into account, inter alia, the economic situation of litigants and their chances of success;
l. in the triangle « State funder – clients – lawyers », there is a need to strike a balance between the importance of ensuring the quality and the crediblity of the legal advice and assistance provided, with the costs of the system as a whole;
m. the need to bring justice closer to citizens and, in this context, the possiblity of setting up law clinics run by law students to provide initial legal advice and assistance;
n. the extention of legal aid to litigants wishing to refer a case to the European Court of Human Rights.
Moreover, information was given on the various systems existing in States to provide legal aid, advice and assistance to persons in need. Among others, the following systems were mentioned:
1) merit tests and assessment of the chances of success by a government agency and free choice of a lawyer;
2) issue of a license to persons entitled to provide legal aid;
3) designation of a legal aid lawyer by the Bar Association combined with the obligation of any lawyer on the list to provide legal aid;
4) setting up of non-governmental bodies subsidised, in whole or in part, through public funds.
The Deputy Secretary General wishes to pay tribute to the British authorities and thank them for the excellent organisation of the Conference and for the warm welcome extended to the participants.