Access to data as the condicio sine qua non of access to justice: the European e-justice. Strategy. Matia Vannoni 1

Transcription

1 Access to data as the condicio sine qua non of access to justice: the European e-justice by Strategy by Matia Vannoni 1 1 Matia Vannoni is a student of the Master s Degree in International and European Studies of the School of International Studies at the University of Trento. He obtained a Bachelor s Degree in Society, Politics and European Institutions at the same University in He has attended courses at EIPA, Maastricht and collaborated with the Jean Monnet Centre of Excellence at University of Trento. ISSN number : Creative Commons Licence: Feel free to distribute this article. You must give the original author and Effectius credit and may not use this work for commercial purposes.

2 Effectius This article starts by providing a general overview of the concept of access to justice and its historical development, which, in the last decades, has led to a broad conception of this topic comprising both a substantive and a procedural element. Emphasis will be devoted to the latter assuming that access to data represents a fundamental element of access to justice. This article concludes by posing the new European e-justice Strategy within this theoretical framework. THE CONCEPT OF ACCESS TO JUSTICE AND ITS HISTORICAL DEVELOPMENT Access to justice has come predominantly to the fore in the last decades, becoming indeed, the leitmotiv of the recent wave of judicial reforms all over the world. Such a concept is usually associated with human rights: access to justice is a basic human right as well as an indispensable means to combat poverty, prevent and resolve conflicts (UNDP, 2004:3). Access to justice refers to the right of an individual to seek (both substantially and procedurally) an unbiased remedy within the judicial system. In their path-making work, Cappelletti and Grant (1978) identify three main stages of the historical development of the contemporary legal doctrine related to this topic. The concept of access to justice gained relevance both in the agenda of policy-makers and in law studies in the 1960s, namely the so called welfare state era. Its first conception was inextricably related to the obligation of the state to provide justice as a public good to citizens. Indeed, the focus was on the disadvantaged parts of society, which, for a variety of reasons, such as the socio-economic conditions or the level of literacy, were not able to access justice. The second wave moved the focus on the procedural side of the topic and more attention was devoted to the effective implementation of class action (Jolowicz, 2000). This approach built on the impetus of social movements that swept across Western Europe and the United States and was aimed at guaranteeing access to justice to collective entities rather than individuals. Such an impetus faded away with the neoliberal doctrine of the 1980s/1990s, namely the [2]

3 Access to data as the condicio sine qua non of access to justice: the European e-justice Portal Washington consensus. 2 Indeed, judicial systems started to be assessed according to typical public policy analysis indicators: the economic rationale was brought in. Accordingly, social costs and resource constraints became the main benchmarks to evaluate judicial systems (Cappelletti and Grant, 1978). As emphasised by the European Commission for the Efficiency of Justice (CEPEJ): Access to justice should enable society to deliver a maximum number of decisions at reasonable cost to the taxpayer, with quality a prime requirement (CEPEJ, 2008 p.13; emphasis added). This period was characterised by massive procedural and substantive reforms of the judicial systems of states. Among the former noteworthy reforms are the introduction of alternative dispute resolution (ADR) mechanisms, such as arbitration, collective divorce etc. and e-justice initiatives, such as online legislation databases. Conversely, substantive access to justice endeavours refer to changes to law bodies in order to make them more accessible to stakeholders (i.e. up to date terminology, consistent and clear rules etc.). This shift stretched the scope of the concept of access to justice, of which Figure 1 illustrates the main elements. Figure 1 Source: UNDP, The Washington consensus is the neoliberal doctrine widespread in the 1980s/1990s among practitioners of the IFIs. It is based on a man-made conception of development, i.e. bad governance and maladministration were perceived as the main causes of underdevelopment, aloof from any historical considerations, for instance. Bad governance (i.e. an overwhelming role of the state) was perceived as the main cause of hindrance to free market, which was seen as the silver bullet solution. Noteworthy is the fact that the introduction of conditionality into development assistance was a direct consequence of this doctrine. For a detailed discussion see Woods, 2006; Arts and Dickson, [3]

4 Effectius ACCESS TO JUSTICE AS LEGAL AWARENESS Access to justice perceived as the access to understandable data, played a pivotal role in the aforementioned third stage (Rickard-Clarke, 2011). Needless to say, the premise was straightforward: the access to understandable rules (i.e. the legal awareness in Figure 1) was conceived as the condicio sine qua non for access to justice. This element entails both a procedural and a substantive side. Indeed, on the one hand, the capacity-building part consists of the creation of instruments (usually related to ICT) in order to improve the actual accessibility of data. On the other hand, rules have been revised, harmonised and categorised in order to be more understandable to stakeholders, especially to nonpractitioners. Under this light, in the last decades several reforms have been carried out both at the national and the supra-national level. THE NEW WAVE OF REFORMS The National Level For obvious reasons, in the common law world, more attention has been devoted to the substantive element of access to justice, namely to give consistency and to consolidate the body of laws. For instance, in 2010 a Courts Bill 3 was proposed in the United Kingdom (UK) and, if approved, it will modernise a great amount of acts (Rickard-Clarke, 2011). Nevertheless, also on the procedural side some steps have been taken in order to supply stakeholders with a more intuitive and effective database than a classic official journal. In the UK, the online Legislation Database 4 has been functioning for many years, while in Australia any State and Territory has an online registry 5 freely accessible. The same is true also for Hong Kong 6 (in a bilingual version) and Canada 7 (Rickard-Clarke, 2011). 3 Consolidation and Reform of the Courts Acts (LRC ) (Queensland) (Ontario) [4]

5 Access to data as the condicio sine qua non of access to justice: the European e-justice Portal The civil law world, in its part, has been very active in improving the quality of access to justice: roughly any Continental European state has established an online and up to date legislation database both/either at national and/or sub-national level 8. The Supra-national Level Both governmental and non-governmental (NGOs) international organisations (IOs) have played a crucial role in diffusing the aforementioned comprehensive conception of access to justice, which has become a fundamental part of the UNDP mandate, for instance, with special attention given to legal awareness 9. Nevertheless, all the IOs coping with the Third World and development assistance 10 have emphasised a conception of access to justice akin to the one typical of the first wave identified by Cappelletti and Grant (1978) (for obvious reasons 11 ). Indeed, the conditionality applied by the World Bank (WB) to its programmes of development assistance entails also marked reforms imposed to the recipient country s judicial system with respect to access to justice (Woods, 2006; Arts and Dickson, 2004). Furthermore, several NGOs have been proactive in promoting mechanisms for the improvement of access to justice (Iriye, 2002): many projects have been carried out by the Avocats Sans Frontières in this regard 12 (Low, 2007). Attempts to cope with this issue at a regional level with an inward-looking approach are rather rare, despite various initiatives launched by the UNDP, which perceives the regional approach as the best way to confront and exchange best practices in this field. Noteworthy are the Asia-Pacific Rights and Justice Initiative, of which the objective is to create a community of practices on access to justice (UNDP, 2009) and the Regional Bureaux of Latin America and the Caribbean, which encourages studies on this topic with the aim of diffusing knowledge among the region (UNDP, 2004). However, the most comprehensive attempt hereto, may be considered the European Union (EU) one. 8 (France) (Italy) (Spain) 9 Figure 1 illustrates the elements of the definition of access to justice as perceived by the UNDP 10 E.g. the International Financial Institutions (IFIs), namely the World Bank (WB) and the International Monetary Fund (IMF), and the UNDP. 11 The reason being that in advanced judicial systems the doctrine of access to justice has been able to develop across the three stages, whereas in primitive systems access to justice as a human right is still of great concern. 12 Noteworthy is the Providing Access to Justice Legal Awareness at the Grassroots Level project in Timor Leste. [5]

6 Effectius The Eu Since its creation the EU has been at the forefront of promoting access to justice, both at the substantive and the procedural level. For what concerns the former, European legislators and the European Court of Justice (ECJ) have actively promoted the harmonisation (or, at least, the coordination) of rules in several fields in order to provide citizens with a coherent and understandable body of laws. The cases of harmonisation promoted by the EU are of crucial importance for improving access to justice, though it is worth focusing on the procedural part for it is of more interest for the objective of this article, namely an appraisal of the European e-justice Strategy. Since its very beginning the EU has been equipped with a website comprising an up to date legislation database termed Eur-lex 13 (which substituted the previous version, i.e. Celex), which goes far beyond a simple online official journal. Indeed, advanced research tools are available to search for results within a database of documents (e.g. treaties, legislative acts, preparatory works, case studies etc.) with texts dating back to It is updated on an annual basis and it is available in the 23 official EU languages. As the deepening of the European integration continued, also the (procedural) approach to access to justice enlarged its scope. After judicial cooperation in civil matters was communitarised by the Amsterdam Treaty 14, ICT technologies have been bolstered by the use of hard law in order to effectively implement them: Member States (MSs) and national courts are legally bound to supply information via the Internet 15. In this line, two novelties are mention-worthy (Storskrubb, 2008): the European Judicial Training Network (EJTN) and the European Judicial Network (EJN) 16. The former was set up in 2000 by a Belgian law as an informal network of national judicial training agencies with the mandate of spreading data and benchmarking/exchanging practices through its website 17. The EJN facilitates cooperation in criminal matters 18 by pooling together national authorities in charge of international judicial cooperation and by diffusing information through its website Signed in 1997 and entered into force in Article 9 of Directive (EC) No 52/ Decision (EC) No 470/2001 (OJ L 174, 27 June 2001, p. 25) 17 Consult 18 Cooperation in criminal matters was communitarised by the Treaty of Lisbon, which entered into force at the end of [6]

7 Access to data as the condicio sine qua non of access to justice: the European e-justice Portal THE EUROPEAN E-JUSTICE STRATEGY A path-breaking step is the Multi-Annual European e-justice Action Plan The Commission gave the impetus to such a comprehensive e-reform by issuing the 2008 Communication 21 urging for a European strategy for e-justice. Such a preparatory work, strongly supported by the European Parliament (EP), gives priority to the operational side of access to justice by emphasising the prominent role ICT should play: e-justice became the leitmotiv of the Community approach to access to justice. Its primary objective is conceived by the Commission as to help justice to be administered more effectively throughout Europe, for the benefit of citizens. The first hallmark of priority projects should be that they help legal professionals to work more effectively and citizens to obtain justice more easily. They must also contribute to the implementation of existing European instruments in the field of justice and, potentially, involve all or a large majority of Member States (CEC, 2008 p.3). This Communication envisages some novelties, among which the most challenging and innovative one is the European e-justice Portal, which is to play a three-fold task. First of all, the portal will provide access to relevant information to European citizens regarding: victims rights and in general, citizens rights in criminal proceedings; and guidelines to initiate and manage proceedings in another MS. Indeed, the e-justice portal since its inception was conceived as a judicial tourist guide for EU citizens in another MS. Secondly, the European e-justice Portal will be at the centre of a network consisting of the already functioning legislation databases, such as Eur-lex, SCADPlus etc. Last but not least, in the long run such a portal will become an e-justice tool in the proper sense, envisioning not only consultation of data, but also more complex functionalities and services Notice 2009/c75/01, Multi-annual European E-justice Action Plan , 31 march Towards a European e-justice Strategy Brussels, COM(2008)329 final 22 An outlook of the three functions the European e-justice Portal will carry out may be appreciated in fig. 2. [7]

8 Effectius Figure 2 Source: CEC, 2008 The European Council at the end of 2009 endorsed the vision of the Commission and the Council gave it consistency with the Multi-Annual European e-justice Action Plan Accordingly, on 16 July 2010 the portal was officially launched aiming at providing judicial support to 22 language speaking stakeholders with its pages of contents (EUROPA Press Release, 2010) 23. This was only the first step towards that complex and interactive portal envisioned by the Commission: the completion is foreseen by Nonetheless, this portal already supplies citizens, judicial practitioners and businesses with helpful and practical information. Not only may citizens deepen their knowledge on other MSs judicial system, but they are also supplied with information on facts related to real-life events which may occur in another MS: how to find a specific practitioner, how to use ADR mechanisms etc. Practitioners have the opportunity to access legislation databases and to create a sort of judicial community using this platform. On their part, businesses are able to consult insolvency and property registers in other MSs (EUROPA Press Release, 2010; CEC, 2009). Since the beginning of 2011 the European e- Justice Portal made facts about defendants rights available: now a citizen is able to know 23 To consult it : 24 For a detailed plan of action until 2013 consult: re01.en10.pdf. [8]

9 Access to data as the condicio sine qua non of access to justice: the European e-justice Portal road traffic offences fees in other MSs (EUROPA Press Release, 2010). In the future, it will also be also possible to pay fees issued in another MS via an online transfer mechanism hosted by such a portal. CONCLUDING REMARKS As foreshown, the historical development of the contemporary legal doctrine related to access to justice has been characterised by three main stages: from a strictly human rights approach through one related to collective rights to a more comprehensive one. The latter comprises both a substantive element, namely efforts to render data understandable and consistent, and a procedural one, namely efforts to improve the actual accessibility of data. It has been enshrined in the wave of reforms undergone by the advanced legal systems in the last two decades: both common law and civil law systems have embraced such a broad conception of access to justice. The importance of legal awareness as the necessary condition for access to justice has been emphasised. Indeed, the access to understandable rules is an essential precondition for the search for a remedy. In this line several reforms have been undertaken both at the national and the supranational level with the EU as the main regional actor involved in this process. In fact, the European e- Justice Strategy represents the most innovative and comprehensive attempt to tackle this issue at a regional level. The accessible and interactive e-justice Portal is its crown jewel. Access to justice initiatives have historically been undertaken at the national level, being judicial systems still strongly embedded in the national context. Accordingly, despite the excitement of novel and more international initiatives, decision-makers and practitioners should not underestimate the role of national judicial systems, where a lot of efforts are still required. Approaches broader in scope cannot function without being bolstered by the national level. Indeed, the principle of subsidiarity should also be taken into consideration in this field. The necessity to balance a wide range of action and proximity to stakeholders should likewise be transposed in this field. Having said that, a regional approach towards this topic is considered by many actors (e.g. UNDP 2004;2009) a necessary additional layer for a variety of reasons. First of all, judicial systems create (negative or positive) externalities on neighbouring states just like economies do. Accordingly, since a state s judicial system may affect another state s [9]

10 Effectius citizens it is reasonable that he/she has the right to access data related to the aforementioned judicial system. Furthermore, international e-justice initiatives may prove to be an indispensable platform where practitioners spread ideas and good practices concerning the challenges they face. Last but not least, deep political integration and thus the capacity to use hard law to support such projects is not a necessary condition. Even though it is unquestionable that the EU has the capability to implement more complex and binding projects, the portal itself does not need to build on political or judicial integration. Rather, the establishment of any e-justice initiative at international level may spill over into other judicial practices thus triggering or enhancing judicial integration within a region. Matia Vannoni Published as part of the Effectius Newsletter, Issue 15, (2011) [10]

11 Access to data as the condicio sine qua non of access to justice: the European e-justice Portal References Arts, K. and Dickson, A EU development cooperation: from model to symbol, Manchester: Manchester University Press. Cappelletti, M. and Bryant G Access to Justice: The Worldwide Movement to Make Rights Effective a General Report. In M. Cappelletti and B. Garth, eds. A World Survey, Milan: Guiffre Editore. Cepej, Access to Justice in Europe. [Online] Available at: < [Accessed 22 September 2011]. EUROPA Press Release, European e-justice internet portal offers quick answers to citizens legal questions [press release, 16 July 2010, Available at: < [Accessed 18 September 2011]. Iriye, A Global Community: the Role of International Organizations in the Making of the Contemporary World, Ewing: University of California Press. Jolowicz, J.A Protection of Diffuse, Fragmented and Collective Interests. In On Civil Procedure, Cambridge: Cambridge University Press. Low, Evaluation of the Providing Access to Justice Legal Awareness at the Grassroots Level Project Timor Leste For Avocats Sans Frontières Brussels. [Online] Available at: siteresources.worldbank.org/intjusforpoor/resources/ EvaluationLegalAwarenessGrassrootsLevel.pdf [Accessed 19 September 2011]. Rickard-Clarke, P Access to Justice: Accessibility. Legal Information Management, 11 (2011), pp Storskrubb, Civil Procedure and EU Law A Policy Area Uncovered, Oxford: Oxford University Press. UNDP, Access to Justice: Practice Note. [Online] Available at: < [Accessed 21 September 2011]. UNDP, Access to Justice as Enabling Framework for Legal Empowerment. [Online] Available at: < %20Document%20Library/Access%20to%20Justice%20as%20an%20Enabling %20Framework.pdf> [Accessed 19 September 2011]. [11]

12 Effectius Woods, N The globalizers: the IMF, the World Bank, and Their Borrowers, Ithaca: Cornell University Press. Legislative acts, communications etc. COM(2008)329 final, Towards a European e-justice Strategy, 3 May Notice 2009/c75/01, Multi-annual European E-justice Action Plan , 31 march [12]