Law: Slow justice is no kind of justice

Big changes are planned for the European Court of Justice. It's overstretched and under pressure.
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The Independent Culture
LAST MONTH, a series of new proposals for the future of the European Court of Justice [ECJ] was put to a gathering of European justice ministers meeting in Brussels. What they heard were plans for the biggest shake- up in the court's history since its foundation in 1952. These included the introduction of filtering systems and fast-track procedures, as well as raising the more extreme possibility of establishing mini-ECJs in each member state.

The 33-page report argued that national courts of the ECJ sited in each member state would have the advantage of operating in the language of that country - which would help to reduce the delay caused by the huge translation costs. They would also be "closer" than the European Court of Justice to the national legal system in which the cases were referred.

The mounting costs and delay in hearing more and more Community cases has placed enormous pressure on the ECJ. This has not been helped by some countries, notably Italy, Holland and Greece, bringing "barmy" cases that have not been properly prepared. This, says Nicholas Green QC, chairman of the Bar European Group, has led senior ECJ judges to conclude that it would be better for member states to hear more of their own cases. One of the court's proposals for immediate change is a "clarification" procedure whereby the ECJ can ask the domestic court to make it clearer what it is asking.

In a stark warning about the court's future ability to deal with its ever-increasing caseload, ECJ president, Gil Carlos Rodrguez Iglesias, said that "recent institutional developments risk further worsening the current state of the community system of law."

Mr Rodrguez Iglesias, the court's most senior judge, identified an existing backlog of cases as well as imminent changes that would stimulate future litigation. These included the third stage of the European Monetary Union and the enlargement of the community to a number of former eastern bloc countries. He said there was already a "dangerous trend towards a structural imbalance between the volume of incoming cases and the capacity of the institution to deal with them." In 1990 there were just 145 cases before the ECJ - last year that number had risen to more than 1,000. There is a two-year delay for cases to come before the ECJ after referral from a domestic court. These figures are expected to worsen in the next three years as the court is asked to tackle problems relating to judicial and police co-operation across member states and more freedom of movement cases as refugees flood in from the Balkans crisis. The report claims the extra caseload "might well seriously jeopardise the proper accomplishment of its task as a court of last instance." Mr Rodrguez Iglesias adds: "The court would then no longer be able to concentrate on its main functions, which are to guarantee respect for the distribution of powers between the Community and its member states." Such a failure, argues the report, would "undermine the rule of law."

The situation is not helped by an ever-increasing administrative burden caused by the need to translate every key document into every language of the community. This necessity is based on every member state's right to be made aware of every case that comes before the court. Mr Rodrguez Iglesias says the problem is exacerbated by a lack of resources for the court's translation service, which he describes as already in "crisis". And he even warns: "That might cause the functioning of the institution to break down."

The ECJ proposes immediate remedial action by introducing a fast- track system for hearing cases and implementing case-filtering procedures. However, decentralisation and other more radical suggestions are likely to run into political obstacles. Lawyers in England and Wales predict the immediate costs would make the idea of a London-based court running in tandem with the domestic appeal courts prohibitive. Nicholas Green believes that while there is a growing interest in a decentralisation policy, it would require a new building and more judges. He said an Edinburgh- and London-based ECJ might also cause as many problems as it solved as litigants would be encouraged to refer their cases to local courts in the belief that the court was more in touch with the issues. Alternatively, increasing the number of judges sitting in the ECJ would bring its own political problems. Currently, each member state has one judge. "There would be howls of discrimination from the other countries if we or Germany had two judges and they did not," said Mr Green.

The report provides much food for thought and is being digested throughout the Community. For Britain's part, the Home Office and the Lord Chancellor's Department is looking at all the possibilities. The cost of any decentralisation programme and a greater uptake in EC-related legislation makes the siting of the ECJ in this country a political hot potato. Giving nothing away, a spokeswoman for the Home Office said: "We are always interested in new ideas."