TYPICAL CHALLENGE 1:DELAY IN SERVICE DELIVERY BY JUSTICE SECTOR INSTITUTIONS

Justice Sector Reform 101 Training Course – November 11, 2010

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THIS SESSION WILL CONSIDER…

What is meant by case delay The institutional context of delay Setting standards of acceptable delay Why delay is important issue for justice

sector development How to detect and measure delay The causes of delay and possible

solutions

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WHAT IS DELAY?

• Delay means…something that takes too long to happen….. but what is considered too long for some, may be acceptable for others

• In dispute resolution there is often at least one side with an interest in maximizing delay (often all parties)

• Time is an absolute measure, but delay implies an unacceptable time – an arbitrary thing unless some kind of standard or consensus view is adopted

• A standard sense of unacceptable delay will vary across systems, even within so-called highly developed systems (e.g. USA, Western Europe)

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WHY IS DELAY IMPORTANT?• Delay beyond an acceptable standard

undermines the usefulness of justice sector agencies to those who might need them

• It creates inequality in access to justice– those with deepest pockets most able to tolerate delay

• It creates incentives for disputants to by-pass delay, via private alternatives, including corruption

• Chronic delay can convert justice providers into impeders of justice – institutional blockers of dispute resolution

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INSTITUTIONAL CONTEXT OF DELAY

Justice sector agencies typically do casework – i.e. they process disputes or claims of all types, case by case

And it is not just courts, but also others Prosecutors, private attorneys, legal aid agencies, anti-

corruption agencies, pension offices, government registries Court disputation casework typically entails very

divergent types of casework categories e.g. major crime, minor infringements, contract disputes, civil

compensation claims, family & inheritance disputes, land disputes

The notion of delay is a common factor in assessing casework effectiveness, no matter what kind of case - but the general case type category affects what may be considered to be a standard of unacceptable delay

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DEFINING DELAY – SETTING STANDARDS• In defining acceptable delay, the challenge is to set a standard

of delay that those concerned consider … acceptable. It is not science, but it does require some specificity.

• Standards can rightly vary according to the type of court … here are some variables that may apply in deciding on a standard:

• Courts: first instance courts, first appeal courts, further appeal courts, procedural challenges, constitutional challenges

• Case Type Categories: major crime, minor infringements, contracts disputes, civil compensation claims, family & inheritance disputes, land disputes

• Starting Points: moving from chronic delay to better standards of delay by incremental improvements from an existing norm to something better

• An adopted standard needs to be a guideline, not mandatory, and it will be useless unless adherence to it is actually measured and published.

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SAMPLE OF A DELAY STANDARD

Timeliness standard for case disposal in Australian courts (at any point in time)

Superior and Intermediate courts

No more than 10% of active cases are to exceed 12 months of age; and

no more than 0% of active cases are to exceed 24 months of age

Basic or first instance courts

No more than 10% of active cases are to exceed 6 months of age; and

no more than 0% of active cases are to exceed 12 months of age

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WHERE DOES DELAY HAPPEN? It can happen in many places, impeding the overall flow of casework processing

in any kind of justice agency…. especially in courts

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WHO MEASURES DELAY IN COURTS?

For most countries, hardly anyone does it routinely More often courts will measure volumes of cases affected by

delay without measuring the degree of delay that affects them – commonly called “backlogs”

Most courts in the developing world will measure the number of backlogged case if they measure anything at all

Ironically, courts that measure the volume of their backlogged cases will usually count all cases that are active, rather than those that are older than an acceptable standard – this is because those systems seldom adopt an acceptable standard – thus overstating true numbers of backlogged cases.

Backlog does not mean active cases, but only those cases that are older than an acceptable standard of case delay

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BASIC MEASURES OF CASE DELAY

Measuring case delay is sometimes called “aging the caseload”, the process of defining the age profile of a collection of cases

Two types of caseload aging At regular points in time for cases that are still active –

aging active caseload monthly, quarterly or at year end – i.e. the age of active or pending cases

At the point in time each case is closed (finalized) i.e. the age of finalized or disposed or closed cases

Case delay is evaluated by aging cases and comparing the results against standards of acceptable delay

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THE VALUE OF AGING ACTIVE CASES

Complaints about very large backlogs in courts are sometimes explained by the presence of a troublesome bubble of intransigent cases that courts avoid processing (or are prevented from processing).

By comparing the age profile of active cases with the age profile of finalized cases, the presence of intransigent cases can be revealed – e.g. when finalized cases are younger than active cases.

Sometimes the age profile of active cases reveals them to be younger than finalized cases – which can suggest that backlog counts include too many cases that are not backlogged.

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THE VALUE OF AGING FINALIZED CASES If a court system takes years to process a case,

then any improvements will take years before the beneficial impacts are likely to be measured.

Interventions aimed at speeding up case processing will therefore be difficult to measure if they are applied to cases that are already old.

By only measuring backlogs (even the age of backlogged cases), the impact of improvements may not be discernable unless comparisons are made against the age of finalized cases.

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DESCRIBING DELAY IN AVERAGES

Courts that lack computerized systems can age cases by comparing dates, usually the date a case is commenced with the date measured (for active cases) or the date the case is finalized.

Sometimes delay is represented as an average or, more appropriately, a median. Thus when the delay of a sample of many hundreds of cases is calculated, the median might be, say, 3 years (a common median in many court systems) - meaning that half the cases are older and half younger than 3 years.

Medians of case age are powerful indicators, even in poorly measured systems, but they are crude:

They may include cases that are not delayed, such as those that may be only a month or two old

They may include all types of cases in a system, even when there is a diverse range of case types (e.g. major crime mixed with small civil claims)

They may include double counted cases (e.g. when procedural appeals are counted or when multiple charges in criminal cases are counted as separate cases).

But remember, often a simple median age of all cases in a system is enough to constitute a baseline for a justice sector project – it is possible to compare it with a later measure taken after a case delay reduction program is implemented. Sometimes case delay is so out of control that this simple measure is enough to justify a case for a reform program.

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DESCRIBING DELAY IN RANGES OF AGE

Example of a timeliness standard – 90% of cases should be disposed within 12 months of case filing and the remaining 10% of cases should be disposed within 24 months of filing.

Based on these figures, only 354 cases (19%) are less that 12 months old. 737 cases (40%) are between 12 months and 24 months old when the timeliness standards permits only 186 cases (10%). Out of a total of 1,862 active cases, the backlog is distinguished from normal active caseload by subtracting from the total, those cases that are still within the standard, i.e. 1,862 – 354 – 186 = 1,322 cases. Thus, the backlog constitutes 71% of the active caseload.

Age of active cases – general civil cases as at 31 December 2010

No. %

121 6% < 3 mths

233 13% ≥ 6 mths < 12 mths

299 16% ≥ 12 mths < 18 mths

438 24% ≥ 18 mths < 24 mths

599 32% ≥ 24 mths < 36 mths

157 8% ≥ 36 mths < 48 mths

15 1% ≥ 48 mths

1,862100

%

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SAMPLE: AGE PROFILE OF ACTIVE CASES

Ages of pending cases in district courts (based on year of registration) – Survey of District Courts in Nepal 2009

Number of cases in the sample

Percentage of all pending cases in the sample

Up to 1 year old 24,420 31%

Between 1 and 2 years old 23,564 30%

Between 2 years and 3 years old 22,439 29%

Over 3 years old 7,884 10%

Total 78,307 100%

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OTHER MEASURES OF DELAY FACTORS

Measurements are needed to evaluate the effects of delay reduction programs (and other phenomena) in terms of both volumes AND time. This can be achieved by taking these kinds of measures: Aging active and finalized cases (as

discussed) Case clearance rates Judicial productivity ratio Adjournment rates 16

Clearance rates: Cases finalized divided by new cases registered over a given period, and represented either as a number or a percentage.

Example: Where, in a given year, a court registers 1000 new cases and disposes of 1100, the case clearance rate is 1100 ÷ 1000 = 1.1 (or 1.1 x 100 = 110%).

Judicial productivity ratio*: Cases disposed over a year, or other defined period, divided by the number of judges who were actually available to dispose of them i.e. an average of cases finalized per judge or court

Adjournment rates: For the cases disposed over a month, year or other specified period, the median number of times a disposed case was scheduled for a hearing over the life of that case.

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PRACTICAL MEASURES OF CAUSES OF DELAY

Routine court statistics – many courts will count new case registrations monthly (possibly annual counts of active cases), but often little else

Court caseload census – asking court secretaries to count cases as a one-off exercise

Case file studies – examination of a sampling of court files to extract numerical information – e.g. age, case type

Daily transaction survey – analysis of what occurs in a courtroom in terms of the processes of case disposal – e.g. ratio of disposed to adjourned cases per court day

User survey – questionnaire or survey taken of visitors to a courthouse or other agency

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A COURT CASE SCHEDULE SURVEY

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COURT TIME CAN BE WASTED

Reasons for Wasted Court Time – Listing Survey in Cebu, the Philippines in 2007 – four courts surveyed over two weeks

Reason for adjourningRTC cases

Attempting compromise 14Lawyer(s) not present 34Witness(es) not present 39Plaintiff/ defendant/ accused not present 7Lawyer not ready 4Material not ready 20File not available 0Process not served/ received back 4Matter with appellate court 0

Miscellaneous application filed (supervening) 0Listing error 7Judge not available 14Matter not reached 20Sine die (adjourned to no fixed date) 2Other 8TOTAL 173

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COURT USER SURVEYS1. Are you male or female?

a. male

b. female

1. What is your age?

a. under 20 years

b. between 21 and 40 years

c. between 41 and 60 years

d. 61 years and over

1. What is your employment status?

a. employee of another

b. self-employed

c. farmer

d. unemployed

e. household work

f. other

1. How far is the court from your residence?

a. Over 50kms

b. Between 30 and 50 kms

c. Between 10 and 30 kms

d. Under 10 kms

2. Do you believe the distance you need to travel to court affects your chances of seeking justice?

a. yes

b. no

1. In what capacity are you visiting the court today?

a. accused person

b. plaintiff

c. defendant

d. witness

e. to pay bail or other payment

f. spectator only

g. lawyer or waris – OFFER LAWYER SURVEY FORM & STOP THIS SURVEY

h. assisting a lawyer

i. delivering a document/ or message

j. other

1. What is the type of case that brings you to court today? (if more than one, the main case)

a. criminal

b. family or inheritance

c. land

d. civil contract or claim

e. traffic

f. religious

g. other

h. no specific case – GO TO Q.

2. Is there a lawyer representing in your case?

a. yes

b. no

c. not applicable to me

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REPORTING CASE DISPOSALS

Manner of disposal Cases disposed

%

Contested cases disposed by contested adjudication

900 56%

Uncontested cases 300 19%Cases settled after trial began 87 5%Cases settled before trial began:

- at mediation 80 5%- at arbitration 43 3%- other 150 9%

Cases closed by default of all parties (lapsed cases)

33 2%

Cases transferred to other courts 2 <1%Totals 1,595 100%

Civil and criminal cases disposed – end of year report

Contested cases disposed by verdict or default judgment

1,200

Cases settled 360Civil case files closed by default of all parties 33Civil case files transferred to other courts 2Total disposed civil cases 1,595Enforcement-only files closed (85)Criminal case files disposed by judgment 500Criminal case files disposed by withdrawal of all charges

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Criminal case files transferred to other courts 10Total disposed criminal cases 522

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SAMPLE: JUDICIAL PRODUCTIVITYCourt Pending

Cases at year's end

Proportion of national

caseload – new cases

New cases registered in

the year

Finalised in the year

Clearance rate

(finalised/ new cases)

Average finalised per judge

Supreme Court 13,476 25% 5,088 5,608 110% 267

Courts of Appeal

7,803 18% 10,539 8,620 82% 90

District Courts 30,819 57% 32,902 29,404 89% 218

Other Courts/ Tribunals

2,174 * 850 1,186 140%

Totals 54,272 100% 49,379 44,818 91% 252

Source: Annual Report. Supreme Court of Nepal, 2064/65 (to July 2008)

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SAMPLE: JUDGE TO STAFF RATIO

Court Level (number of court locations)

Number of Judges

Judicial Vacancies

Judge vacancy rate

Judges per court station (average)

Number of Court Staff

Judge to staff ratio

Supreme Court (1) 21 0 0% 21 326 1:16

Courts of Appeal (16) 96 22 23% 6 795 1:8

District Courts (75) 135 2 1% 2 2,591 1:19

Totals 252 24 10% 3 3,712 1:15

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WHAT CAUSES DELAY?

• In the absence of evidence, our sense of the causes of delay usually begins with (and may be limited by) what the client judiciary believes to be a cause (or what the analyst believes to be the unstated causes)

• Measurement of delay and numbers of cases processed or awaiting processing can reality check these kinds of assertions as to the causes of delay, including:

• Too many cases each year for the number of judges• Massive backlogs a court is unable to clear• Underproductive staff (e.g. absenteeism, overstaffing, poor supervision)• Process inefficiencies (superfluous steps that facilitate delay)• Overly complex mandatory procedures (e.g. court rules, judicial directions)• Dilatory legal profession – left unchecked by weak judicial control• Low level corruption in court registries• High level corruption among judges and prosecutors• Lack of transparency of court document processing and publication of court

decisions• Commonly a mixture of multiple causes

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A SUGGESTED STARTING POINT FOR ADDRESSING CASE PROCESSING DELAY AS A DEVELOPMENT ISSUE

Analyze the nature of delay to identify what kind of cases are most affected

Attempt to diagnose why those kinds of cases are affected

Apply interventions that are likely to deal most directly with those causes

Consider the risk of applying general remedies that may have no impact on the specific problems

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SO… WHAT CAN DONORS DO TO HELP SOLVE THE PROBLEMS OF CASE PROCESSING DELAYS IN JUSTICE AGENCIES?

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POSSIBLE GENERAL “INTERVENTIONS” TO ADDRESS CASE DELAY Reform the procedural laws to speed up hearings Reform court rules for modern systems of case

management Improve the personal effectiveness of judges & court

staff through training Give court personnel better tools to work with, such

as computer networks and databases Give judges better technology to use in the

courtroom Build better facilities for courts – refurbish offices

and courtrooms Budgetary reform for courts – increase funds

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