26 April 2019, Council of Europe, Strasbourg: end of talks on updating Recommendation R(86)12

On 16 September 1986, the Council of Europe’s Committee of Ministers adopted Recommendation R(86)12 on certain measures aimed at preventing and reducing excessive workload in the courts. This instrument mentioned the German and Austrian Rechtspfleger as a good practice and provided a list of non-judicial tasks from which judges could be released. Thanks to this instrument, the situation has improved. Nevertheless, the judicial systems have evolved, working methods have changed, the economical and political situation has worsened.

In this context, the EUR believes in the need for a new instrument proposing new measures that could prevent and reduce the still excessive workload in court.

On 12 December 2014, following a proposal by the EUR, the European Commission for the Efficiency of Justice (CEPEJ) recommended to the European Committee for Legal Cooperation (CDCJ) to consider updating Recommendation R(86)12 with the support of CEPEJ work, of the Consultative Council of European Judges (CCJE) and on the experience of the EUR. CEPEJ argued that the Recommendation has been very useful in the allocation of tasks between judges and non-judge staff and that it is even more useful in the current crisis situation. CEPEJ believed it necessary to re-examine the examples of tasks to take into account the reforms implemented in the Member States as well as modern techniques of case and human resources management. They also argued that it would be interesting to distinguish between tasks that have been fully entrusted to non-judge staff and tasks that have been delegated and remain under the judge’s responsibility.

On 18 November 2016, the CDCJ decided to carry on an activity on the role of non-judge staff but did not consider it a priority.

On 21 Mars 2017 Vivien Whyte and Jean-Jacques Kuster met with Mr Boillat, Director General of Human Rights and Rule of Law who expressed his wish that the updating process be carried on rapidly.

In November 2017, the CDCJ asked the CEPEJ to provide them with information on the implementation of Recommendation R(86)12 in Council of Europe Member States. In order to fulfill this request, the CEPEJ asked the EUR to conduct a survey amongst its Member Organisations. The EUR proceeded with the survey, which revealed that in seven out of the eight countries that replied there had been transfers of tasks from judges to other professions. In the majority of cases, these tasks were transferred to non-judge staff of the courts. The survey also revealed that Member States transferred tasks that had not been foreseen by Recommendation R(86)12, such as the issuance of extracts or certificates for the implementation of European judicial cooperation instruments or tasks relating to the enforcement of court decisions. The results of this survey were endorsed by the CEPEJ Plenary Meeting of 4 December 2018 and forwarded to the CDCJ.

Nevertheless, at its meeting of March 2019, the CDCJ decided not to make this item a priority.

On 26 April 2019, Vivien Whyte and Jean-Jacques Kuster met with Mr Christophe Poirel, Director of Human Rights, Mr Simon Tonnelli, Secretary of the CDCJ and Ms Hanne Juncker, head of the department of justice and legal co-operation. It appeared during the meeting that the CDCJ still stands by the principle that it is good practice to transfer nonjudicial tasks from judges to other professions. However, since the principle still stands and since the list of tasks included in the Recommendation is not limitative, they do not find it necessary to update the instrument.

The Council of Europe is open however to discussing the respective roles of all the professions in the justice system, for example during a conference. In addition, the EUR was informed that the Consultative Council of European Judges will be working this year on an opinion on the relationship between Judges and Court Clerks. The EUR will be auditioned in June on this issue.After the meeting, Vivien Whyte and Jean-Jacques Kuster met with Dr. jur Thomas Markert, Secretary of the Venice Commission, to discuss possible future cooperation on issues that would benefit from the expert opinion of Rechtspfleger and similar professions.