How Europe’s experience can help reform Ukraine’s judicial map

The author of the “Justice delayed is justice denied” phrase is unknown. However, it is often used by the ECHR, and is the basis of the efforts to optimize the judicial map.

You have a certain territory and there must be justice on this territory. Justice directly relies on the operation of judicial institutions, and proximity to a court directly impacts people’s perception of access to justice.

Ukraine’s Strategy for the Development of Judiciary and Constitutional Justice for 2021-2023 envisages an audit of the local court system and a review of the network of local courts, taking into account administrative-territorial reforms and economic feasibility.

International experience shows that also other criteria should be considered.

The most common practice in the territorial placement of courts is synchronization with the administrative-territorial system, where there should be a local court in each regional centre. However, this approach has significant drawbacks, as regions are constantly changing, and migration processes impact the workload of judicial institutions, leading to longer case processing times at certain courts. This ultimately results in an ineffective judicial system.

By its nature, the question of the territorial placement of courts is also an economic issue and a question of balance among various factors, such as:

• access to justice in terms of citizens’ proximity to courts;
• the minimum size of a court to ensure the existence of various powers and functions;
• cost reduction, as state resources are limited and should not be wasted;
• maximizing the quality of services provided.

Notably, the rapid development of transportation and telecommunications has changed the approach to the organization of courts.

A court is no longer an isolated and independent unit, but a part of a network that aims to provide optimal services to citizens. Furthermore, the location of courts is important in the contexts of coordination of actions between courts, other public services, prosecutor’s offices, legal aid centres, private companies, and citizens.

In terms of optimization of the judicial map, the fundamental choice remains between consolidation (merging several courts into one) and proximity.

Consolidation requires the specialization of judges for the optimal distribution of caseload. If proximity is chosen, the courts will need to cover several forms of judicial proceedings at once.

Consolidation is favoured by economic factors, the possibility of specialization of judges, ease of administration, and audit. On the other hand, proximity is supported by political arguments and established tradition.

Both models can provide compromise solutions, such as establishment of regional branches and development of the IT infrastructure for effective judicial process.

At times, the reform of the judicial map becomes a requirement of international partners. For example, this was one of the requirements for Portugal as part of an agreement with international institutions (the European Commission, the ECB, and the IMF) that provided loans to the country after the economic and financial crisis that began in 2008. Ultimately, Portugal was forced to introduce strict budgetary measures that affected almost all areas of governance, and one of the components of cost reduction was the reform of the territorial placement of courts.

Some countries have independently made decisions to reorganize their judicial maps not only to optimize costs but also to balance the workload on the courts. Denmark, Norway, and the Netherlands are reducing the number of courts to improve the quality of justice without necessarily expecting cost savings from these changes.

In other countries like Portugal, Greece, Austria, and Ireland, in addition to improving the quality of justice, the reform also aimed at cost reduction through closure of underutilized or neglected courts and transferring cases to neighbouring courts. Poland and Turkey are working to consolidate several small courts under a single umbrella to reduce management costs and overall expenses.

Any optimization starts with the establishment of the current state of affairs. Therefore, in addition to cost optimization, two internal factors are crucial for optimizing the judicial map: internal population migration as a result of economic development and changes in the dynamics of cases in different areas of legal practice (an increase in cases involving family and administrative law).

In the Netherlands, with the growth of cities, an asymmetry formed where some cities with a population of over 100,000 had no courts, while others had several. The same asymmetry was observed in France, where courts covered areas with populations ranging from 10,000 to 900,000, and a first-instance court in one region served a population 69 times larger than in another region.

In Croatia, for example, the number of courts turned out to be too high for the country’s population. This is actually a typical situation for small countries, where most citizens visit a court only a couple of times in their lives or none at all.

In the case of consolidation, not just one, but a combination of factors need to be considered as well as their priority. For instance, the experience of France shows that if you only consider cost savings, court consolidation won’t solve the issue of court caseload and might even worsen the situation. Court consolidation through absorbing smaller ones won’t affect the caseload per judge ratio but may make the process longer for the parties involved due to increased distances.

The assumption that large courts are more effective may be erroneous and requires additional modelling.

An empirical study conducted by the Danish National Audit Office (Rigsrevisionen) using the Data Envelopment Analysis (DEA) method based on data from 1992-1998 showed that neither the court’s size nor its geographical location had an impact on its effectiveness. Furthermore, smaller courts had better case processing times.

The experience of Europe in reforming courts by territorial placement is embodied in the recommendations of the CEPEJ (European Commission for the Efficiency of Justice), a body of the Council of Europe. These recommendations provide universal guidance on optimizing the court map and emphasize the indicators that should be considered when making decisions.

For example, the proximity of a penitentiary institution should be a significant factor since, for reasons of security and economic efficiency, it is convenient to reduce distances for the transportation of detainees who are defendants in the judicial process.

Let’s consider some examples. For its judicial reform, Greece chose the following criteria:

• The size of each court.
• The number of new and pending cases in each court.
• The ability to have a continuous presence of judges at the court.
• Population density in the judicial areas.
• Geographic characteristics and the level of entrepreneurship in these areas.
• The presence and condition of buildings, the level of transportation, and IT infrastructure development.
• The potential for alternative dispute resolution in these areas.
• The presence of legal aid institutions.
• The ability to recruit support staff for the courts.

Portugal planned its court reform in somewhat different conditions, focusing on combating ineffective courts and conditions for their closure. The country’s criteria included the following:

• Courts handling fewer than 250 cases per year must be closed.
• Distance criteria: If a court of first instance considers a small number of cases and is located within an hour from another court that could handle the case, it should be closed.
• Property and court building quality: If the property is rented, or the equipment is old, it should be closed. However, if the property belongs to the Ministry of Justice and is in good condition, the court should remain open.
• Demographic trends: If the 2011 census data indicates that an area is depopulated, the courts in that region should be closed.

Notably, the analysis of the consequences of Portugal’s reform showed that this approach did not yield the expected results, instead leading to some issues with access to justice. The blame for the failure, however, is not on the chosen criteria, but on the fact that the leading party decided that the political will would be enough to implement the reform. However, it turned out that without consulting with stakeholders and analytical calculations, this approach only deepens the problem, instead of resolving it.

This is where the value of international experience in optimizing territorial distribution of courts lies for Ukraine. We have internal factors, as the time it takes to process cases and the workload on the system do not correspond to the costs of maintaining the system, not to mention the social demand, which shows dissatisfaction with the accessibility of justice.

However, the experience of Portugal clearly shows that the reform of the judicial map solely by means of political will may face resistance and lack of support.

Various combinations of criteria guided by CEPEJ recommendations can be chosen for the reform. However, a balance should be maintained between political considerations and analytical decisions. It is also important that these criteria are chosen through consultations with stakeholders, otherwise even the most precise criteria will remain theoretical and won’t have any real-world impact.

Author: Mykhailo Koltsov, expert at Tomorrow’s Lawyer NGO,
Senior Data Consultant with the Digital Development Global Practice at the World Bank Group

eurointegration.com.ua