Typical Challenge 1: Delay in Service Delivery by Justice Sector Institutions

1. Justice Sector Reform 101 Training Course – November 11, 2010 Typical Challenge 1:Delay in Service Delivery by Justice Sector Institutions

2. 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 This Session will consider…

3. 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) What is delay?

4. 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 Why is Delay Important?

5. 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 Institutional context of delay

6. 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. Defining delay – setting standards

7. Sample of a delay standard

8. It can happen in many places, impeding the overall flow of casework processing in any kind of justice agency…. especially in courts Where does delay happen?

9. 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 Who measures delay in courts?

10. 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 Basic measures of case delay

11. 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. The value of aging active cases

12. 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. The value of aging finalized cases

13. 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. Describing delay in averages

14. 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.

15. Sample: age profile of active cases

16. 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 Other measures of delay factors

17. 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.

18. 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 Practical measures of causes of delay

19. A court case schedule survey

20. Court time can be wasted

21. Court user surveys

22. Reporting case disposals

23. Sample: judicial productivity

24. Sample: judge to staff ratio

25. 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 What Causes Delay?

26. 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 A suggested starting point for addressing case processing delay as a development issue

27. So… what can donors do to help solve the problems of case processing delays in justice agencies?

28. 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 Possible general “interventions” to address case delay