Report from the sub-group consisted of the following members:
Karin Winter, Austria
Marion Jaffré, France
Claus Lernhart, Germany
Danias Panagiotis, Greece
Maria Laura Maddalena, Italy
Willem Brouwer, Netherlands
Pedro Marchau Marques, Portugal
Annika Sandström, Sweden, chair person
The group concentrated its discussions on finding such solutions for delays that are compatible with fundamental rights. The members of the group were not totally united in all conclusions – some saw risks for tensions with fundamental rights more often than others. This report is not resulting in a formal statement but is giving an account of the interesting and fruitful discussions within the group. There must also be stressed that the time given did not allow a survey of all possible topics, only a selection.
Obviously an intensive case management is very important in order to minimise delays in courts. The subject for the discussions though were measures that could not be taken immediately by the judges themselves.
Not „controversial“ solutions from the aspect of risk for tensions with fundamental rights:
Adequate support staff, that is legal assistants to help judges with research, preparations of drafts, being responsible for correspondence with the parties, etc., will make it possible for the judge to concentrate on giving judgements.
The use of modern technology in courts such as legal research on the Internet, letting parties use e-mail, having documents sent by e-mail, hearing witnesses by video conference and thus not being forced to travel, telephone conferences – all as long this does not interfere with article 6 and the right to be heard in person.
The quality of law: Minimize the risk for contradictory judgements (and unnecessary appeals) with a clear legislation. Maybe let judges have comments on the technical (not political) solutions at the stage of preparation of legislation (this goes for EC law as well) provided the separation of powers is maintained.
The quality of the administration: If the decisions of the administration are well written, well motivated and understandable, and the party has had the opportunity to put forward facts already before the administrative body this would minimize unnecessary appeals to the courts.
The method of simplified judgements, that is, very short decisions in some cases. This is a method used in the Netherlands and in Italy. The important thing is to give a motivated reason for the judgement – the description of facts could be shortened.
More controversial solutions (within this working group)
Reducing the number of oral hearings (but not contrary to art. 6) would be efficient in order to fasten procedures but it is a sensitive issue: In some countries the public is suspicious towards the courts and would claim their right to be heard in person.
An alternative is to look for „alternative means of solving cases“. In some countries cases are solved through preliminary hearings in front of a reporting judge which often leads to a amicable settlement. Some countries use „mediation“ which some members in the group look upon with suspicion when it regards administrative cases. Germany, Netherlands and Portugal have tried this with good results.
More single judges than judging in panels or chambers: Here the members of the subgroup were divided. Some stressed the risk for pressure towards a single judge and the risk for lower quality when the cases were not discussed among the members of a chamber. The group stressed the importance of creating criterias for when a case is suitable for being handled by a single judge: It would be possible to have a definition of simple cases and thus sort them out to single judges.
Leave to appeal – or „filter“ between 1st and 2nd and 2nd and 3rd instances. Some members were very reluctant to create a filter and saw a risk for yet another hindrance of access to justice (in combination with high court fees, the necessity of lawyers, paper- work exercise, etc.) Other members saw the necessity of sorting out unfounded, unmeritorious cases and cases of typically minor importance in order to eliminate the burden of upper levels and to fasten procedures.