The European Commission for the Efficiency of Justice


Strasbourg, 7 December 2016

CEPEJ(2016)5

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
(CEPEJ)

Towards European Timeframes
for Judicial Proceedings

Implementation Guide

Towards European Timeframes for Judicial Proceedings
Implementation Guide

Document adopted by the CEPEJ on 7 December 2016, on the basis of a preparatory work by the Steering group of the SATURN Centre, relying on the work by Marco FABRI, Scientific Expert (Italy)

TABLE OF CONTENTS

1. Introduction 3
1.1. Method used to elaborate the Timeframes 4

1.2. Main objectives and development perspectives 4

1.3. Application field 4

2. Description of the Timeframes 5

3. Methodology to implement the Timeframes 7
3.1. Step 1: Diagnosis of the current situation 7

3.2. Step 2: Setting and implementing Timeframes 8

3.3. Step 3: Monitoring 8

Annex : Excel spreadsheet to be downloaded from CEPEJ Website

1. Introduction

As it is known, article 6 of the European Convention on Human Rights states that “everyone is entitled to a fair and public hearing within a reasonable time”.

This objective has to be pursued through the development of tools, policies, procedures, and actions by the decision makers, the court personnel, the lawyers, and the collaboration of the stakeholders.

Timeframes are one of these tools. Timeframes are not the panacea for decreasing the length of judicial proceedings, but they have been proven as a useful tool to assess the court functioning and policies, and then to improve the pace of litigation.

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 theBacklog”, which is the number or percentage of pending cases that do not accomplish the set or planned timeframe.

Please note that in this work the following terms have this meaning:

Workload − it is the whole work that a court, or a judges, deals with. It is the sum of all the activities carried out by a court or by a judge (e.g. caseload, management duties, any other activity that is part of the work of the court or of the judge).

Caseload − it is the number of cases that a court, or a judge, has to deal with. It is usually the sum of pending cases plus incoming cases in a certain time.

Pending cases − it is the number of cases that still have to be dealt with by a court, or by a judge, in a certain time (e.g. Pending cases by January 1).

Timeframe – it is a period of time within which a certain number or percentage of cases have to be resolved, taking into consideration the age of the pending cases. Timeframes are a managerial tool, which can be set by central authorities (e.g. Judicial Council, Supreme Court, Ministry of Justice, Parliament) and/or by courts. Timeframes should not be confused with procedural deadline or time limits, which refer to single cases. Procedural deadline or time limits are usually established by the procedural law and entail that an action must occur in a specific time or there will be legal consequences.

Backlog – it is the number or percentage of pending cases not resolved within an established Timeframe. For example, if the Timeframe has been set at 24 months for all the civil proceedings, the Backlog is the number of pending cases that are older than 24 months.

Timeframes should be set not only for the three major areas (civil, criminal, administrative), but they should progressively be set for the different “Case 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.

It is important to underline that quantitative indicators and targets are just photos of the functioning of courts and of the desirable goals to be reached. Adequate courts’ resources, effective policies, good procedural rules and practice, commitment, and concrete actions are needed to reach these goals.

In addition, the length of judicial proceedings is just one of what can be defined a “trilogy” of goals for judicial systems, whose functioning should be: fair, affordable, and in reasonable time.

1.1. Method used to elaborate the Timeframes

The Timeframes proposed here are the result of a process which was carried out in the following steps: a) 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 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.

1.2. Main objectives and development perspectives

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 .

However, the Timeframes proposed should be considered as a particular example of European lighthouse for member States, which should then adopt their own Timeframes at the national, district, and court level, based on the different contexts.

It has also to be underlined that the proposed Timeframes are management tools, which deal with the aggregated caseload of a court or of a judicial system.

Therefore, they are not supposed to be considered whatsoever as a safeguard to avoid a conviction of the European Court of Human Rights.

The reasonable time clause stated by article 6 is applicable in the context of individual cases. The European Court of Human Rights (ECHR) is the institution having ultimate authority to assess if a case has violated article 6 of the European Convention on Human Rights.

This first set of Timeframes is intended to be applied to the three large “families” of cases (civil, criminal and administrative). In the future, it is envisaged that Timeframes for different case categories within these large families would be formulated.

1.3. Application field

At this stage, the Timeframes here proposed do not consider the enforcement procedure, due to its complexity and diversity in the different countries. However, it should be appreciated that the case law of the ECHR includes the enforcement phase in the assessment of the excessive length of judicial proceedings.

Likewise, the Timeframes which deal with criminal cases do not take into consideration the investigative or “pre-court” phase, but are confined to the processing of the case when it is filed to court. However, it should be understood that the case law of the ECHR includes the investigative phase in the assessment of the length of judicial proceedings.

Therefore, for these Timeframes, the starting date of each case should be the day in which the case has been filed in court, while cases can be defined as disposed of or resolved when the court has taken a “final decision”, which means that the case is terminated.

In civil cases, we proposed to exclude in the counting all non-contentious (non-litigious) matters (e.g. “payment or injunctive orders”, guardianship etc.), which usually follow a particular procedure with very different disposition times. We are aware that this distinction is not always clear in the various member States. It is left to member States as to whether or not to adopt this distinction.
2. Description of the Timeframes

Each Timeframe takes into consideration the case complexity, as suggested by the jurisprudence of the European Court of Human Rights.

Priority cases” are supposed to be disposed as quickly as possible. Please refer to the jurisprudence of the European Court of Human Rights, which has identified such “priority cases”.

Normal cases” are usually the bulk of cases dealt with by the court. For the sake of simplicity, at this stage, the counting of the percentage of Priority cases has been included in the “Normal cases”. It goes without saying that each Member State or court can set its own specific Timeframe for these cases.

Courts also have to deal with very “complex cases” that may require some extra time. For this reason, there is a 5%-10% Buffer only for very complex cases that are not supposed to be included in the Timeframes, which therefore address 90-95% of the court caseload. However, the cases within this Buffer zone should receive very special attention with a view to to being brought within the Timeframe as soon as possible.

The decision to set the Buffer at 5% or 10% is left to each Member State or court, taking into consideration the percentage of very complex cases that they have to deal with.

As mentioned, it is open to courts to apply different Timeframes for different case categories. For example, a court could be able to apply Timeframe A to civil proceedings and Timeframes B for criminal proceedings, and then Timeframe A for family matters, but Timeframe C for bankruptcy cases.

Timeframes are flexible tools that have to be customized in each specific context.

The proposed timeframes are indicative and have no prescriptive force. They are mainly proposing a tool, which may be useful to States in order to enable them to set targets to improve the length of judicial proceedings. Timeframes need to be accepted and adapted to the national judicial context.

TIMEFRAME A

Timeframe A for civil contentious cases and administrative cases

90% or 95% of all civil contentious cases and administrative cases should be disposed in 18 months from the date of their filing.

Buffer
5% or 10% of very complex pending civil and administrative cases could be older than 18 months from the date of their filing.

Timeframe A for criminal cases

90% or 95% of all criminal cases should be disposed in 12 months from the date of their filing.

Buffer
5% or 10% of very complex pending criminal cases could be older than 12 months from the date of their filing.

TIMEFRAME B

Timeframe B for civil contentious cases and administrative cases

90% or 95% of all civil contentious cases and administrative cases should be disposed in 24 months from the date of their filing.

Buffer
5% or 10% of very complex pending civil contentious cases or administrative could be older than 24 months from the date of their filing.

Timeframe B for criminal cases

90% or 95% of all criminal cases should be disposed in 18 months from the date of their filing.

Buffer
5% or 10% of very complex pending criminal cases could be older than 18 months from the date of their filing.

TIMEFRAME C

Timeframe C for civil contentious cases and administrative cases

90% or 95% of all civil contentious cases and administrative cases should be disposed in 30 months from the date of their filing.

Buffer
5% or 10% of very complex pending civil contentious cases and Administrative cases could be older than 30 months from the date of their filing.

Timeframe C for criminal cases

90% or 95% of all criminal cases should be disposed in 24 months from the date of their filing.

Buffer
5% or 10% of very complex pending criminal cases could be older than 24 months from the date of their filing.

TIMEFRAME D

Timeframe D for civil contentious cases and administrative cases

90% or 95% of all civil contentious cases and administrative cases should be disposed in 36 months from the date of their filing.

Buffer
5% or 10% of very complex pending civil contentious cases and Administrative cases could be older than 36 months from the date of their filing.

Timeframe D for criminal cases

90% or 95% of all criminal cases should be disposed in 30 months from the date of their filing.

Buffer
5% or 10% of very complex pending criminal cases could be older than 30 months from the date of their filing.

TIMEFRAMES SUMMARY TABLE

3. Methodology to implement the Timeframes

What follows is a brief description of the concrete process needed to implement the Timeframes within a court.

There are three main steps: 1) Diagnosis of the current situation, 2) Set Timeframes for the court 3) Monitoring the Timeframes.

Then based on the Monitoring, the court can set a different Timeframe for the future (e.g. the year ahead), trying to constantly improving towards Timeframe A for all its cases.

1.1. Step 1: Diagnosis of the current situation

First the court has to know its own situation regarding the procedure lengths for the different types of cases (civil, administrative, and criminal) and, if possible, for the different case categories that are most representative of the court caseload (e.g. family, labour, contracts, torts etc.).

This diagnosis should be done for at least the last 3 (or even better 5) years to have a quite clear picture of the court caseflow.

The example below deals with civil cases, but similar tables should be filled in for administrative and criminal cases, and then for specific case categories within these large groups.

Age of pending cases at a certain date

         

Civil litigious cases pending at [DATE]

Pending cases

0-12
months

13-18
months

19-24
months

25-30
months

31-36
months

Over
36 months

Total pending

500

350

100

90

20

10

1070

Percentage

47

33

9

8

2

1

100

               
               

Case category ………

Pending cases

0-12
months

13-18
months

19-24
months

25-30
months

31-36
months

Over
36 months

Total pending

250

80

20

30

10

0

390

Percentage

64

21

5

8

3

0

100

               

1.2. Step 2: Setting and implementing Timeframes

When the court knows its own age of the pending cases for the types of cases (civil, administrative, and criminal), and possibly further data about specific case categories, it is possible to choose a Timeframe to be realistically pursued for the year ahead.

The court Timeframes may not always be immediately in accordance with the targets set by the law or the higher judicial authorities (higher court, high council of justice, etc.). In this case, Timeframes are intermediary steps to reach the more demanding Timeframes above mentioned or legal requirements on duration of proceedings.

More specific Timeframes for case category can be set, if the court is able to have data on specific case categories.

    1.3. Step 3: Monitoring

At least at the end of each year, the court should complete the table below to monitor whether or not the Timeframes are achieved. It would be very useful to monitor the situation not only at the end of the year but as often as possible, preferably every three months. In this way it would be possible to detect problems earlier and to take measures (see in particular SATURN guidelines on judicial time management) to achieve the Timeframes.

The Table “Age of pending cases at a certain date” should be filled in only in the “Pending cases” row.

Percentages and the Backlog, which is the percentage of pending cases that are not resolved within the Timeframe, is automatically calculated by the attached spreadsheet.

A negative number identifies the percentage of cases the disposal times of which are better than the Timeframes set by the court. This may help to set a better Timeframe for the year ahead.

If there is a Backlog, policies and actions should be undertaken to avoid it, or at least to decrease it.

The following example shows how the Timeframes and the Backlog work. We have matched the data with the four proposed Timeframes.

Age of pending cases at a certain date

           

Civil litigious cases pending at [DATE]

Pending cases

0-12
months

13-18
months

19-24
months

25-30
months

31-36
months

Over
36 months

Total pending

500

400

20

50

30

0

1000

Percentage

50

40

2

5

3

0

100

 

 

 

 

 

 

 

 

Timeframe A

 

 

Backlog (Buffer 5%)

 

Monitoring

 

 

5

 

Timeframe A

 

 

Backlog (Buffer 10%)

 

Monitoring

 

 

0

 

 

 

 

 

 

 

 

 

Timeframe B

 

 

 

Backlog (Buffer 5%)

 

Monitoring

 

 

 

3

 

Timeframe B

 

 

 

Backlog (Buffer 10%)

 

Monitoring

 

 

 

-2

 

 

 

 

 

 

 

 

 

Timeframe C

 

 

 

 

Backlog (Buffer 5%)

 

Monitoring

 

 

 

 

-2

 

Timeframe C

 

 

 

 

Backlog (Buffer 10%)

 

Montioring

 

 

 

 

-7

 

 

 

 

 

 

 

 

 

Timeframe D

 

 

 

 

 

Backlog (Buffer 5%)

 

Monitoring

 

 

 

 

 

-5

 

Timeframe D

 

 

 

 

 

Backlog (Buffer 10%)

 

Monitoring

 

 

 

 

 

-10

 

 

 

 

 

 

 

 

 

As the Table shows:

Timeframe A is achieved if the Buffer zone (complex cases) was set at 10%, if the Buffer was set at 5% there is a Backlog of 5% of cases. Please note that the percentage of cases in the Buffer zone are still pending, and even though the Timeframe has been achieved they have to be dealt with as soon as possible.

Timeframe B is achieved, with 2% of cases that do better than the Timeframe with the Buffer at 10%. If the Buffer was set at 5%, there is Backlog of 3%, which means that 8% of cases are older than 24 moths.

Timeframe C is achieved with both Buffers. With the Buffer at 5%, 2% of cases do better than the Timeframe. With the Buffer at 10%, 7% of cases do better than the timeframe, but it should not forgot that still 3% of case are older than 30 months. .

Timeframe D is achieved with both Buffers, and there are not cases older than 36 months, indeed the monitoring with the Buffer set at 5% is - 5% and - 10% with the Buffer set at 10% of cases.

This Table is supposed to be used for the different case categories, to monitor the Timeframes and then setting consistent and feasible targets for the period ahead.

Based on this monitoring process the court should adjust its Timeframes at least once a year, possibly moving towards Timeframe A, putting in place policies and actions to pursue the reasonable time clause stated by article 6 of the Convention without jeopardize the quality of the decision making process.

_____________________________

Appendix: Template of Excel spreadsheet to be completed (Table Data Entry Timeframes) for the concrete use of the calculation sheets