Should Procedural Legislation Regulate the Length of Judicial Proceedings? Evaluating European Practices and Experiences in Judicial Time Management

Evaluating European Practices and Experiences in Judicial Time Management

Resumo

Comparative research shows that many countries experience the problem of slow and ineffective civil litigation. When duration of court proceedings becomes a political issue, governments must act. While several reform strategies are possible, not every one of them is equally appropriate. In this paper, it will be shown that the simplest response – to fix procedural timeframes by procedural legislation – is usually the least effective, although it is still popular among legislators seeking a quick and easy fixing of the problem. The first part of this paper explains why this is the case, analyzing challenges that the policies of fixing judicial timeframes by procedural legislation are faced with. The analysis follows the emerging European standards regarding procedural timeframes as defined by ‘soft’ sources of law: by case law of the ECtHR on human right to a trial within reasonable time, by the work of the CEPEJ and by recently adopted model European civil procedural legislation. On the other hand, experiences of various countries demonstrate that different ways to deal with the slowness of civil justice exist that are subtler and more complex, but better adjusted to the needs and more promising in the end result. Among such experiences, in the second part of this paper the practice in some European countries is presented. The approach to procedural timeframes in Germany, the Netherlands, Italy and Croatia show a variety of more or less successful means of judicial time management that can serve as examples of what (not) to do.