Abstract
The efforts to harmonise civil procedure in Europe have to take seriously the fact that procedural rules depend on the procedural structures that implement them. This chapter presents, on the basis of the CEPEJ evaluation, the divergences of procedural structures regarding three core organisational structures: courts, judges and lawyers. After showing the drastic differences of these structures, a change of perspective is proposed. Instead of focusing on harmonisation of rules and structures, focus should be shifted to issues important for the users of the justice system: the results of judicial activities, in the first place the effectiveness and quality of legal protection. However, the current pool of information in this respect is insufficient. Pointing to on-going efforts of the CEPEJ to stimulate the uniform collection of data about judicial timeframes and the quality of court work, the author draws conclusions regarding the desirable direction of future harmonisation efforts.
Professor of Procedural Law, University of Zagreb (Croatia)
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- 1.
In the famous speech delivered on 9 September 1946 at the University of Zurich, Switzerland.
- 2.
See, e.g., Storme 1994.
- 3.
Cf. Storme 1994.
- 4.
Trocker 2005, 35.
- 5.
Tampere Conclusions, Towards a Union of Freedom, Security and Justice: The Tampere Milestones, at 5 (Presidency Conclusions of the European Council held in Tampere on 15 and 16 October 1999).
- 6.
Cf. Freudenthal 2010, 10–14.
- 7.
As an illustration, just the list of legislative instruments (‘acquis’) of the EU Directorate for Justice, Liberty and Security (DG JLS) dated October 2009 stretches over 58 pages. See http://ec.europa.eu/home-affairs/doc_centre/intro/docs/jha_acquis_1009_en.pdf (last consulted in May 2011).
- 8.
- 9.
- 10.
From Resolution No. 1 ‘Delivering justice in the 21st century’ of the 23rd Conference of European Ministers of Justice, 8–9 June 2000, London.
- 11.
Council of Europe Resolution, Res. (2002) 12 of 18 September 2002 establishing the CEPEJ, Art. 1 (Aims).
- 12.
Ibidem, Art. 2(1).
- 13.
CEPEJ 2005, 29.
- 14.
So, e.g., Pim Albers pointed out in his preparatory study produced for the CEPEJ that ‘[t]he counting of the numbers of courts seems “at first glance” to be simple. However, for this indicator there are also various options to define what a court is. Courts can be defined as “a meeting room” in an office to settle a dispute between parties or on the other hand as a fully equipped office with a court staff and a court administration. In the first situation the court operates as a sub office from the main court office,’ Albers 2003, 4.
- 15.
EJS 2005, 32.
- 16.
EJS 2005, 32–33.
- 17.
CEPEJ 2008, 318.
- 18.
Out of which 2,249 are general jurisdiction first instance courts. See CEPEJ report Spain, 2004, 7 (available at http://www.coe.int/cepej; (last consulted in May 2011).
- 19.
CEPEJ report the Netherlands, 2004, 8 (available at http://www.coe.int/cepej; (last consulted in May 2011).
- 20.
In 2002, Turkey was the second European State according to the total number of courts per inhabitant. This was, however, partly due to the existence of a large number of land registration courts (848); separate categories of ‘enforcement courts’ (civil and criminal) are also a part of the official judicial landscape. See CEPEJ report Turkey, 2002, 6 (available at http://www.coe.int/cepej; (last consulted in May 2011).
- 21.
EJS 2008, 77, Figure 23. The information relates to the courts in the meaning of ‘administrative structures.’.
- 22.
Compare, e.g., the Netherlands with 0.3 court locations per 100,000 inhabitants to Turkey with 7.9. See EJS 2008, 78.
- 23.
CEPEJ 2010, 84.
- 24.
The prospects for such rapprochement of procedural structures are ambiguous. On the one hand, the example of the United Kingdom—which has in the past decade reformed some of its peculiar judicial structures which existed for centuries (introducing, inter alia, bodies such as the Supreme Court and the Ministry of Justice), making them much more similar to structures on the European Continent—shows that reduction of structural differences is possible. However, the CEPEJ reports also indicate that reforms in Europe do not go in a uniform direction: the number of countries that have reduced the number of courts is not very different from the number of those that have increased them; the situation is the same with respect to the increase and reduction in the number of specialised courts. See EJS 2008, 72–73.
- 25.
Again, another indication may be the small number of violations of Art. 6 of the ECHR established in respect to those countries before the ECHR.
- 26.
Switzerland is among the countries with the highest density of the court network, with 6 courts (geographic locations) per 100,000 inhabitants, but also one of the countries with the highest expenses of the justice system—see EJS 2010, 86 (courts) and 21 (public budget allocated to courts). In spite of high expenses, there is also a feeling that Swiss civil procedure should gain in efficiency—see on this account Domej 2009, 75–88.
- 27.
The CEPEJ held discussions on the topic: ‘Does the size of the court matter?’ at the SATURN meeting with the members of the Network of Pilot Courts held in Geneva on 13 April 2010. Although no strong conclusions could be drawn from the reports presented at that event, it was shown that the size of the court may definitely have an impact on productivity (Dutch research indicated, e.g., that courts smaller or larger than 300 FTEs (Full Time Equivalents) are less productive).
- 28.
EJS 2010, 89.
- 29.
Ibidem.
- 30.
Although some questions were asked about the ‘first instance courts competent for debt collection in small claims,’ the distinction between the courts handling cases of lower or higher social importance has not been separately defined. Rather, it seems that the lowest courts (such as Justices of the Peace) were added to the category of specialised courts if this was the self-understanding of the reporting country. In other systems in which two types of courts (lower and higher) dealing with ‘smaller’ or ‘bigger’ matters were both understood to belong to general jurisdiction courts, they were reported differently. Another problem with the CEPEJ scheme may be in the fact that the litigious handling of small cases was not clearly distinguished from the non-litigious collection of small monetary debts.
- 31.
As argued in procedural doctrine of the former Yugoslavia, the principle de minimis non curat praetor should be treated with caution, since ‘there are no “small” and “big” matters in civil adjudication.’ Triva and Dika 2004, 822. Accordingly, in the practice of civil procedure there are barely any differences in the style and length of litigation between cases of marginal social importance, and those in which significant social and economic issues are at stake.
- 32.
So Lord Woolf, defining the principle of proportionality as one of the most essential elements of the ‘Overriding Objective’ embodied in Part 1 of the Civil Procedure Rules 1998.
- 33.
Reproduced from EJS 2010, 21 (Figure 2.4).
- 34.
EJS 2010, 26 (data for 2008). At the same time, Greece had a total annual court budget of about €32 and the Netherlands of about €89 per inhabitant.
- 35.
EJS 2010, 25–26.
- 36.
- 37.
Albers 2003, 3.
- 38.
Recommendation No. R. (94) 12 on the independence, efficiency and the role of judges of the Council of Europe, at 1.
- 39.
EJS 2008, 108.
- 40.
Albers 2003, 3.
- 41.
EJS 2008, 108.
- 42.
EJS 2002, 33.
- 43.
Denmark, England & Wales, Finland, France, Italy, Norway, Portugal, Scotland, Sweden and Switzerland. In Finland and Sweden these judges were not paid, in all other countries they were compensated on the basis of their activity.
- 44.
The intention to count the full time equivalents of employed judges, rather than counting ‘heads,’ also revealed another issue—the fact that in some countries a significant number of judges are not working in the courts for various reasons, e.g. secondment to ministries of justice. Some countries also reported that illness or maternity leave results in differences between the number of fully employed judges and those who actually work in the courts.
- 45.
EJS 2002, 33.
- 46.
EJS 2010, 121.
- 47.
See EJS 2010, ibidem, Table 7.4.
- 48.
Yet, in some countries they may be paid on an occasional basis.
- 49.
EJS 2010, 122.
- 50.
Ibidem. The CEPEJ has not included under non-professional judges the category of jurors—citizens sitting in a jury—which also exists in some European countries.
- 51.
The diplomatically correct commentary in the CEPEJ report noted that ‘generally speaking, an imbalance can be noticed between Western and Eastern European States or entities, there being more judges in Eastern Europe.’ The explanation that a pre-eminent role is in some systems given to lay judges could, however, not cover more than a few countries, and even then only partly. See EJS 2010, 120.
- 52.
Data taken from EJS 2010, 117–118, sorted from highest to lowest figures; the smallest States (Andorra, Lichtenstein, Monaco, San Marino and Luxembourg) are excluded for reasons of incomparability.
- 53.
EJS 2010, sorted data from Figure 9.5, 143.
- 54.
EJS 2010, 144. The authors swiftly added a disclaimer, asserting that the CEPEJ report ‘is not the place for a sociological analysis.’
- 55.
EJS 2010, sorted data from Figure 9.6, 144.
- 56.
EJS 2010, 145.
- 57.
Ibidem.
- 58.
Cf. EJS 2010, at 3.2, 52, Table 3.3.
- 59.
One of such obvious examples from the law of successor countries of the former Yugoslavia concerns ‘litigious’ divorce proceedings, since even the divorce proceedings initiated by the mutual agreement of the spouses are counted as ‘litigation’ (parnica). See, e.g., Croatian Family law (Obiteljski zakon), Official Gazette 116/03, Art. 280(2).
- 60.
See European Small Claims Procedure, Regulation No. 861/2007 establishing a European Small Claims Procedure, OJ 2007, L 199/1, Art. 2(1).
- 61.
See supra n. 26 and the text above it.
- 62.
Cf. Austrian Report for the Evaluation Scheme 2010 (available at http://www.coe.int/cepej; (last consulted in May 2011), 16–17.
- 63.
- 64.
F. is for Faceless. On the concept of the ‘bureaucratic’ judiciary see Uzelac 1993, 515–550.
- 65.
Cf., e.g., Merryman’s anthological description of civil law judges as ‘a kind of expert clerk’ and ‘a civil servant who performs important but essentially uncreative functions.’ Merryman 1985, 36–37.
- 66.
This leads us to suspect the appropriateness of the otherwise tempting suggestion that setting minimum standards of protection and leaving the harmonisation to judge-made law is a good and flexible way to proceed. But see Eliantonio 2009, available at http://www.ejcl.org/133/art133-4.pdf (last consulted in May 2011).
- 67.
Recommendation Rec. (2000) 21 of the Council of Europe on the freedom of exercise of the profession of lawyer.
- 68.
Comments of the Swedish national reporter, EJS 2010, 238.
- 69.
See EJS 2010, 245–246. We are sticking here to cursory comments of the national reporters—it is certain that a more detailed and studious comparison of procedural regimes would reveal many other differences.
- 70.
See EJS 2010, 243–244.
- 71.
EJS 2010, 246–247. For 2008, 14 States (30 per cent) indicated that lawyers’ fees are regulated by law, 10 States (21.7 per cent) reported various types of regulation by bar association(s) (orientation standards, codes of conduct, indicative guidelines, local suggested draft agreements, binding regulation), and 37 States (78.7 per cent) asserted the possibility of freely negotiated agreements. Due to different standards for different types of cases (e.g. for criminal cases, legal aid cases, et cetera) these self-assessments should be considered with care because there might be important differences even within the categories of States that provided the same answers.
- 72.
Data taken from EJS 2010, 239, Figure 12.2. The smallest States (Andorra, Lichtenstein, Monaco, San Marino and Luxembourg) are excluded for reasons of incomparability. Also excluded are the data for the UK, where the discrepancy between the number of lawyers (barristers) and legal advisors (solicitors) is very significant (UK-Scotland—5.4 without and 203.6 with legal advisors; UK-Northern Ireland—35.1 without and 173.8 with legal advisors; UK-England & Wales—282.3 with legal advisors, about ten times less without them).
- 73.
I am grateful to Pim Albers for pointing to this conclusion and for submitting illustrations which support it.
- 74.
Average annual variation between 2004 and 2008, see EJS 2010, 241 (Figure 12.4).
- 75.
An example of differences that are far above a one-to-one hundred ratio may be the amount available for legal aid in different European countries, which ranges from €7 to €3,742 per case. EJS 2010, 289.
- 76.
EJS 2010, Chapter 16, 279–287.
- 77.
EJS 2010, 289.
- 78.
A survey of such efforts in Croatia, Bosnia and Herzegovina, Serbia, Slovenia, Macedonia, Kosovo and Montenegro was presented recently at the Regional Conference ‘Reorganisation of Court Network in Montenegro’ held in Budva on 15–17 November 2010.
- 79.
Tampere milestones, cit supra n. 5.
- 80.
On the concept of the quality of the courts and the Judiciary and the work of the CEPEJ Working Group on Quality, see Albers 2009, 57–74.
- 81.
The CEPEJ has worked since its creation on the issues related to the timeframes of proceedings, first within the Task Force for Judicial Timeframes (TF-DEL), and then, since 2007, within the work of the Centre for Judicial Time Management (SATURN Centre—Study and Analysis of Judicial Time Use Research Network). See in more detail at http://www.coe.int/cepej (last consulted in May 2011).
- 82.
CEPEJ, Time Management Checklist, Checklist of indicators for the analysis of the length of proceedings in the justice system, adopted by the CEPEJ at its 6th plenary meeting (7–9 December 2005), document CEPEJ (2005) 12 REV.
- 83.
Cf. CEPEJ Handbook for conducting satisfaction surveys aimed at court users in Council of Europe Member States, adopted by CEPEJ at its 15th plenary meeting (Strasbourg, 9–10 September 2010), CEPEJ 2010, 1.
- 84.
The latest development in this respect concerns the collaboration of CEPEJ and the Lisbon Network (set up in 1995 within the Council of Europe and consisting of different judicial training bodies in Europe). The Lisbon network will be entrusted with the testing of the CEPEJ satisfaction surveys for court users. It remains to be seen how adequate the bodies competent for judicial training will be in fulfilling this task.
- 85.
The fact that the data regarding the timeframes of proceedings are incomplete was consistently noted in all EJS reports, including the latest edition, where the readers were warned again ‘considering the limited number of responding States… to interpret the data… with care.’ EJS 2010, 167.
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Uzelac, A. (2012). Harmonised Civil Procedure in a World of Structural Divergences? Lessons Learned from the CEPEJ Evaluations. In: Kramer, X., Rhee, C. (eds) Civil Litigation in a Globalising World. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-817-0_9
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