Jusletter IT

Before the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe was founded in 2002, a working group focused on optimization of use of IT in court-systems. Austria, considered as a pioneer in use of IT in judiciary, was represented by Dr. Martin Schneider then. This group and its members formed one of the nucleus» of expertise and ideas later organized in CEPEJ.

The aim of the CEPEJ of the Council of Europe is the improvement of the efficiency and functioning of justice in the member states, and the development of the implementation of the instruments adopted by the Council of Europe to this end.

Therefore CEPEJ is working on standardized methods to analyse and «measure» judicial systems, develops tools and provides a network of judicial professionals.

Beyond that its statute explicitly claims: The use of information and communication technologies shall be promoted in order to strengthen the efficiency of justice, in particular in order to facilitate access to justice, speed up court proceedings, improve the training of legal professionals, as well as the administration of justice and management of courts.

The following article briefly introduces the body itself as well as its activity on evaluation of the use of IT in European judicial systems.¹

The CEPEJ was established on 18 September 2002 with Resolution Res(2002)12 of the Committee of Ministers of the Council of Europe.

The creation of the CEPEJ demonstrates the will of the Council of Europe to promote the rule of law and fundamental rights in Europe, on the basis of the European Convention on Human Rights (ECHR), and especially its Articles 5 (Right to liberty and security), 6 (Right to a fair trial), 13 (Right to an effective remedy), 14 (Prohibition of discrimination). Driven by the substantial number of cases at the European Court of Human Rights (ECtHR) dealing with overly long proceedings in front of courts in European states, the Council of Europe has initiated a reflection on efficiency of justice and adopted Recommendations which contain ways to ensure both its fairness and efficiency.

The establishment of CEPEJ, which is part of the Directorate General of Human Rights and Rule of Law, demonstrates the intention of the Council of Europe not only to elaborate international legal instruments but also to promote precise knowledge of the judicial systems in Europe and of the different existing tools. This enables CEPEJ to identify any difficulties and facilitate their solution.

CEPEJ has, among other duties, the task of continuing the on-going reflection about the potential offered by new information technologies (IT) to improve the efficiency of justice. The functioning of the CEPEJ is governed by its Statute.

The aim of the CEPEJ is the improvement of the efficiency and functioning of justice in the member States, and the development of the implementation of the instruments adopted by the Council of Europe to this end.

In order to carry out these different tasks, CEPEJ prepares benchmarks, collects and analyses data, defines instruments of measure and means of evaluation, adopts documents (reports, advices, guidelines, action plans, etc.), develops contacts with qualified personalities, non-governmental organisations, research institutes and information centres, organises hearings and promotes networks of legal professionals.

Its tasks are

• to analyse the results of the judicial systems;
• to identify their difficulties;
• to define concrete ways to improve the evaluation of their results and functioning;
• to provide assistance at request; and
• to propose to the competent instances of the Council of Europe the fields where it would be desirable to elaborate a new legal instrument.

In the Action Plan adopted at their 3rd Summit (Warsaw, 16–17 May 2005), the heads of state and governments decided to develop the evaluation and assistance functions of CEPEJ in order to help member states to deliver justice fairly and rapidly. They also invited the Council of Europe to strengthen cooperation with the European Union in the legal field, including cooperation with the CEPEJ.

CEPEJ is composed of experts from all the 47 member states of the Council of Europe and is assisted by a Secretariat. Observers may be admitted to its work. The European Union also participates in its work. Each member state is represented by a national member.

The Statute of CEPEJ emphasizes the comparison of judicial systems and the exchange of knowledge on their functioning. The scope of this comparison is broader than «just» efficiency in a narrow sense: It also emphasizes the quality and the effectiveness of justice.

In order to fulfill these tasks, CEPEJ has undertaken a regular process for evaluating judicial systems of the Council of Europe’s member states. Its Working Group on the evaluation of judicial systems (CEPEJ-GT-EVAL) is in charge of the management of this process. To facilitate the process of collecting and processing judicial data, an online electronic version of the evaluation scheme has been created. Each national correspondent can thus accede to a secure webpage to register and to submit the relevant replies to the Secretariat of CEPEJ.

The 2012 edition of the report is based on figures from 2010 concerning 46 states and has been published on 20 September 2012, at the conference of the Ministers of Justice Conference of member states in Vienna (Austria).

The integral version of the report and all the figures provided for by individual member states have been made available on the CEPEJ website.

National replies also contain descriptions of legal systems and explanations that contribute greatly to the understanding of the figures provided. They are therefore a useful complement to the report, although because of the need to be concise and consistent, it was not possible to include all this information in the report itself. Thus, a genuine database on the judicial systems of the Council of Europe’s member states is easily accessible to all citizens, policy makers, law practitioners, academicians and researchers.

The aims of the report are:

• to provide a public policy tool for policy makers, legal professionals and researchers that will assist them in conducting judicial reforms;
• to give a detailed picture of the situation of the European judicial systems. Comparative tables, figures and the comments help to understand the day-to-day functioning of courts, underline the main trends in judicial systems and identify any problems with a view to improving the quality, fairness and efficiency of the public service of justices;
• to provide a sound tool for enhancing mutual knowledge of judicial systems and strengthening mutual confidence between legal professionals; and
• to define a set of key quantitative and qualitative data to be regularly collected and equally processed in all member states, bringing out shared indicators of the quality and efficiency of court activities in the Council of Europe member states and highlighting organizational reforms, practices and innovations, which enable improvement of the service provided to court users.

It should be noted that the purpose is not to rank the best judicial systems in Europe (which would be scientifically impossible), but to enable comparisons among comparable member states.

In its evaluation report edition of 2012, based on figures from 2010 concerning 46 states and published on 20th September 2012 at the conference of the Ministers of Justice in Vienna (Austria), the following current situation regarding ICT in the courts and justice-systems has been described:

The use of information and communication technologies (ICT), ranging from end user applications such as smart phones, personal computers, tablet PCs, to information infrastructures, such as internet and the derived services, are taken more and more for granted. Introduced as a tool to improve performance, ICT is proving to be more than a technical element, changing the relations between individuals and between individuals and organisations, both in the private and the public sector.

It is no surprise, therefore, that the CEPEJ evaluation exercises have shown since 2004 with factual data that ICT is playing a growing role within the justice administration and the justice service provision. Examples range from the support of case and file management, to the use by judges of templates to support the formulation of judicial decisions, on-line access to law and jurisprudence databases, availability of web services, use of electronic filing, and exchange of electronic legal documents. ICT can be used to enhance efficiency, but also «to facilitate the user’s access to the courts and to reinforce the safeguards laid down in Article 6 ECHR: access to justice, impartiality, independence of the judge, fairness and reasonable duration of proceedings».³

However, as many empirical examples show, this endeavour is more complex than expected. This is because the nature of ICT and its action is not just technical, but also organisational and (especially in judiciaries), normative. In order to perform a technology must not just be technically functional, but also normatively performative and institutionally sound⁴ (i.e. it «should not compromise the human and symbolic faces of justice»⁵). The data collection and analysis conducted by CEPEJ on the one hand allows taking stock of the efforts and changes that are taking place across Europe, and on the other hand support the sharing of positive and less positive experiences in order to allow judiciaries to learn from one another.

For the analysis of the installation of computer facilities within the European courts, three areas have been distinguished:

Computer facilities used for the direct assistance of judges and court clerks: one of the «basic» applications concerns word processing/office facilities where a judge or staff member can draft his/her decisions or the preparation of a court case in an «electronic file». In the field of legal research, various tools and applications, from CD-ROMs to Intranet and Internet software, make it possible for a judge to gain access to statute law, appeal decisions, rules, court working methods, etc. Office applications, together with tools for jurisprudence, can be combined with facilities in the field of «standard-decisions» models or templates that can be used by judges to reduce their workload when drafting a judgment. Other computer facilities used for the direct assistance of judges and court clerks are electronic databases of jurisprudence, e-mail facilities and internet connections.

Systems for the registration and management of cases: traditional court docket books and other registers are replaced by computerised databases with court records. These systems are not limited to registration of case information, but they introduce functionalities in the area of the management of cases. Fields of applications are: the generation of information concerning the performance of courts, financial management of courts and non-judicial case management support systems (for case tracking, case planning and document management).

Electronic communication and information exchange between the courts and their environment: regarding court users one of the most common tools is a court website providing different information on the court activities (e.g. the follow-up of cases online) and organisation. Typically, it will offer downloadable forms or enable a claim to be submitted electronically. There also exists electronic registers such as business registers and land registers. Text-messaging can keep parties informed of the position of their case in the court list. Regarding technology in the courtroom, this includes a range of hardware and software made available to assist the parties in presenting their case to the court, including for instance video conferencing, electronic evidence presentation software, overhead projectors, scanning and bar-coding devices, digital audio technology and real-time transcription.

CEPEJ presents the use of different computer facilities for the three areas mentioned based on a point system and. Issues relating to the implementation of tools for audio and video recording in judicial proceedings or detailed information about other means of electronic communication have not been submitted to member states. However, CEPEJ mentions that Ireland and Slovenia are the pioneers in these fields.

There are 4 states or entities which have a 100% implantation of computer facilities in all the sectors listed in the questionnaire: Austria, Estonia, Malta and Portugal. 3 states (Greece, San Marino, and Andorra) reported a relatively low level of computerisation compared to other states or entities.

Generally speaking, the use of ICT in courts is constantly increasing in Europe. In some cases changes may not be measured anymore on a quantitative level, for example when hardware and software are being renewed. Many states or entities reported recent, on-going or planned reforms and ICT innovation projects (Bosnia and Herzegovina, Bulgaria, Greece, Portugal, Serbia, «the former Yugoslav Republic of Macedonia»; see also chapter 17 focusing on judicial reforms in the field of Information technologies). The matter that remains the least developed in Europe is communication between courts and the parties.

Albania: in January 2010, the implementation of IT for court administration and case management was finalised. The introduction of the «Integrated Case Management Information System» (CCMIS/ICMIS) was financed by the European Community. The CCMIS/ICMIS project started in 2007. This new system includes case registration, lottery assignment of cases to judges, statistics, webpage etc. CCMIS/ICMIS will replace the existing Ark IT system, which is active in some courts for the moment and which facilitates the day to day work for all courts and court users.

Azerbaijan: the Government has invested consistently to further computerise the courts and, in particular, to complete the e-justice system, electronic case and documents systems, and to establish an e-network amongst courts.

Germany: preparations are currently being made for the introduction of electronic justice and electronic files. A schedule has already been drawn up.

Hungary: court registration proceedings and final settlement, company registration (change registration) is an electronic process operated by the court for business/ company registrations.

Ireland: electronic submission of small claims is a function allocated to the offices serving a single jurisdiction, namely the district court, and is available nationwide (more than 50% of court office locations).

Montenegro: is currently working on establishing a web portal for the judiciary that will allow the publishing of statements, decisions, case law and information to all courts.

Norway: the courts do not have a major role when it comes to registers. The Brønnøysund Register Centre is a government body controlled by the Ministry of Trade and Industry, and consists of several different national computerised registers.

Russian Federation: electronic submission of claims is only available in the commercial courts and case files in electronic form are used by judges and court clerks only in such courts.

Slovenia: all the registers kept by the court are in electronic form – the court register (for companies) (SRg) and the land register (eZK). An ICT application, the «Legal Enforcement Procedure for Money Claims» (CoVL) allows e-filing in cases for the enforcement of authentic documents. Paper filings (which are a minority) are converted to electronic form. The system also includes automatic checking and processing of enforcement proposals, IT supported decision-making and central printing, enveloping and dispatching services. The procedure is centralised: a Central department has been set up in the local court in Ljubljana to relieve other Slovenian courts. As a consequence of the new system, the work, previously done by around 350 court employees and judges in 44 courts, now involves just 4 judges and 62 support personnel.⁶

Spain: courts are implementing electronic submission of claims. With its strategic plan for modernising the justice system 2009–2012, Spain is developing a secure document exchange system (Lexnet) that facilitates communications between the courts and several legal actors (prosecutors, solicitors, court clerks, etc.). Approx. 22000 users currently access it. Furthermore, a judicial interoperability platform (EJIS) has been set up to allow court networking and real time data exchange on particular matters or persons. The implementation of both facilities is part of a new system, whose aim is to achieve a flexible and efficient justice system.

Sweden: beside the commercial tools, the Swedish national courts administration has recently developed a knowledge management system that can be used by courts. The knowledge management system is currently in use in a small number of courts. The aim, however, is to achieve a general adoption of the system in the courts. There are a number of different electronic register systems used by the courts, none of which are maintained by the national courts administration. As far as other electronic communication facilities are concerned, an increasing number of courts are using a service for sending text messages to cell phones. The number of courts using this service is expected to rise. In criminal cases, the judgment is transferred electronically to the police authority, which is administering the criminal records and to the Swedish national council for crime prevention. The courts have access to the national database of addresses managed by the national tax agency. Since some years there is an on-going project concerning information management in the justice system. The government authorities throughout the justice system chain are working extensively to reduce the amount of paperwork and change over to providing information electronically. Case management – from police report to enforcement of judgment – can then be more efficient and of higher quality. These efforts also contribute to new knowledge that can be used in fighting crime and improving the possibilities of providing good service to the public.

Level of availability of computer equipment for direct assistance to judges and/or court clerks

The level of IT to directly assist judges and non-judge staff is relatively high. The majority of states or entities (31) scores high (19 to 20 points) in having computer equipment. 9 states scored 17 to 18 points. 5 states scored 15 to 16 points, though data should be read with care for Andorra, Cyprus and Sweden due to a missing answer and on maximum values for all other replies. Finally, Montenegro scored 14, San Marino 12 and Greece scored 10.

A great majority of the states or entities (apart from those who have 100% of equipment = 20 points) stated that the main problem is the lack (or insufficiency) of electronic files at the disposal of judges and court clerks, scoring an average (taking into account only the countries who responded) of 2.9 points against an average of 3.8 for electronic database of jurisprudence and 3.9 for the other three categories.

Availability of computer equipment for the communication between the court and the parties

Given the greater complexity of the task in a technological, organisational and normative perspective, it can normally be noted that scores concerning computer equipment for facilitating the communication between the parties and the courts are lower than those of computer facilities used for the direct assistance of judges and court clerks and of systems for the registration and management of cases.

Nevertheless, the trend is encouraging. A good level of computer facilities for communication can also be found in one third of the states or entities. However, it must be kept in mind that this indicator does not assess the performance of such systems. Austria, Czech Republic, Estonia, Finland, Malta, Portugal⁷ have particularly high scores. Italy is now finally succeeding in deploying its on-line trial infrastructure⁸ and in France the e-Barreau system⁹ that allows data and document exchange between lawyers and courts, is now operative.

In some cases, instead of addressing the complexity of enabling electronic communications between all competent courts and court users, it has been decided to create «state wide electronic jurisdictions» centralising specific, simple but quantitatively conspicuous procedures such as those for the enforcement of authentic documents and creating ad-hoc units for dealing with them ( Slovenia, UK-England and Wales). This has helped reducing the organisational and technological complexity of the implementation of the systems in a large number of courts and developing specialised competences and skills.

As observed before, most of the states or entities have achieved high or acceptable results and can provide the court users with a range of developed facilities. Insufficient funding might explain the delays of other states in developing e-justice systems (Greece).

The next step, which is now being attempted by a consortium of Ministries of Justice (or their representative) of 15 European states¹⁰ is the development of an information infrastructure to support cross-border electronic access of citizens and businesses to legal means in Europe, as well as to improve the interoperability between legal authorities of different countries and improve cross-border judicial cooperation. The electronic services which have so far been selected and which will be piloted are: European Payment Order, European Small Claim procedure, European Arrest Warrant (EAW), and the secure cross-border exchange of sensitive data¹¹.

The use of video-conferencing is increasing in European judiciaries, to speed up procedures and reduce costs in non-criminal cases, to interview parties, experts and witnesses, but also when particular conditions of security or privacy arise in criminal cases, in order to allow victims and witnesses (especially victims of violent crimes, children and witnesses who are otherwise vulnerable), accused/convicted persons who are in custody, to safely attend hearings or be interviewed from safe locations.

Use of videoconferencing in criminal cases

Italy: videoconferencing is mainly used in criminal proceedings in order to question detainees subjected to special security measures so that they do not need to be taken from the prison to another location. Videoconferencing as more effective means of communication and for other uses other than in criminal proceedings is presently under testing.

Latvia: courts are being facilitated with videoconferencing equipment within the Latvian-Swiss cooperation programme project «Court modernization in Latvia» that started in 2009 and it is planned to fully conclude it in 2012, when every court and prison in Latvia is going to be facilitated with videoconferencing equipment. In 2010 courts and prisons were not equipped with the videoconference equipment. Currently, the legal framework for videoconferencing is provided only in the Criminal Procedure Law: (Article 140).

In almost 80% of the states or legal entities, video-conferencing is used in criminal cases. The video- conference technology offers judges and prosecutors the possibility to question people summoned to a court that is nearest to their domicile and equipped with a video-conference system (Austria) or accused/convicted persons who are in custody and benefit from specially equipped rooms in detention (France, Italy, Netherlands¹² for specific cases). Child victims and witnesses of violent crime are increasingly questioned in specially equipped questioning rooms (Azerbaijan, Germany). In other cases, questioning of undercover investigators can be carried out in a secret location in criminal proceedings by disguising the voice and face (Azerbaijan, Germany) or police officers may present evidence from their police station (UK-England and Wales).

Use of the videoconferencing in other than criminal cases

Video-conferencing is less widely used in other than criminal cases, with less than 60% of the states or entities actively using it. Interesting experiences are being made in the field of cross border judicial proceedings (Austria, Azerbaijan, Czech Republic, and Germany) or when a witness lives outside the country (Azerbaijan, Portugal).

Specific legislation on the conditions for using videoconferencing

While nowadays video-conferencing is becoming more and more available to the general public through the use of PCs, webcams and more or less freely downloadable software applications, the use of video-conferencing in a context such as that of the courts require the introduction of norms to define the range of applications of the new tools and govern their use. Specific legislation is needed in order to allow the use of video-conference technologies during judicial proceedings.

Between the scopes of video-conferencing legislation is ensuring the respect of fair trial as they are some differences, which are not always obvious differences, from that of a traditional trial (i.e. the direct visual control of the judge for the accused/convicted person in order to assess if he/she is under coercion by someone not visible on the teleconference screen; storing and availability of recordings; etc.). Technical and procedural requirements are directed to guarantee this. In Spain, for example, the law requires to ensure that there is a two-way simultaneous transmission of the image and sound, as well as visual, auditory and verbal interaction between the persons who are in the different geographical locations, and that it is possible at all times for each party to question and counter the other party’s evidence, guaranteeing the right to a fair trial.

In some countries, though, there is no specific legislation on the conditions of using video-conferencing in judicial proceedings and the decision on the modalities of using of video-conference is left to the single judge (UK-England and Wales). In Belgium where such legislation is not yet available, video-conference is used only in pilot courts in civil cases; all parties must have given their consent.

In the field of video-conferencing too, sharing of experiences between European states has a topical role, as shown by the example of the Latvian-Swiss cooperation project «Court modernisation in Latvia», which aims at providing a legal framework and video-conferencing facilities to every court and prison in Latvia.

The ENCJ¹³, the European Network of Councils of the Judiciary, described the overall impact of IT on the performance of the Judiciary in its «Project Judicial Reform II 2012–2013», p. 19 ff.^14, approved by their General Assembly, Sofia, 7 June 2013:

Most judiciaries agree that substantial cost savings have been achieved or are within reach, but quantitative assessments are generally not available. The impact on performance will also depend on the degree of integration of the applications that are in use.

Turkey provides a good example of integration. There, the National Judiciary Informatics System which is used by all courts and other related organisations has the following functions: attorneys can file lawsuits and examine case files and the parties in a case can follow the proceedings in the case and get access to the files and get informed by SMS. An integrated system is much more cost-effective than a fragmented system. In the Netherlands an attempt has been made to estimate the cost savings that can still be achieved by fully digitalizing the Judiciary. While IT-systems were introduced thirty years ago, still many administrative tasks involve manual paper work. The potential cost savings for the courts would be in the order of 5% of the total budget, and the savings for parties and their legal representation would be a multiple of that. This is an ex-ante estimation, and it remains to be seen whether these cost savings will materialize.

In its guidelines, ENCJ faces the recent trends and tasks of near future to follow:

• Digital access to justice is becoming an integral part of access to justice as fundamental right, and its expansion should be a top priority for the judiciaries.
• It is an inevitable trend to digitally record court hearings in order to secure the evidence and to make that evidence available, for instance, in appeal; courts should implement such systems as soon as feasible.
• Most budget systems of judiciaries cannot easily accommodate the levels of capital investment IT-applications such as digital recording require; this issue should be specifically addressed. Cost benefit analysis is needed to underpin investment decisions.
• Judiciaries should learn from on-line dispute resolution mechanisms and applications that are currently available on the internet.¹⁵

What is evident: There is a lot to do left, even for the pioneers!

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Georg Stawa, Leiter der Abteilung für Projekte, Strategie und Innovation in der Präsidialsektion im Bundesministerium für Justiz und Vizepräsident der Europäischen Kommission für die Effizienz der Justiz des Europarates (CEPEJ).