Dutch help for the Greek civil justice system?

Eddy Bauw

The statement made during the Euro Summit on Greece on the 12^th of July following 17 hours of meetings included one measure which has received less attention than the other (serious) demands made against Greece to qualify for new loans (Euro Summit Statement Brussels, 12 July 2015 (SN 4070/15)). One of the measures that Greece must take is:

“the adoption of the Code of Civil Procedure, which is a major overhaul of procedures and arrangements for the civil justice system and can significantly accelerate the judicial process and reduce costs”.

At first sight it seems remarkable that a reform of the procedure in civil courts has been given such a prominent place between the imposed cuts and economic reforms, especially in light of the hectic discussion during that memorable Sunday evening. What is the connection between this measure and the Greek debt problems? Does this not prove the ultimate European interference by also prescribing Greece a civil procedural law?

On closer examination the measure fits into the growing international awareness of the link between economic activity and a well-functioning (civil) judicial procedure. For a longer period of time it has, in a broader sense, been recognized that a good legal infrastructure (legislation, judicial procedure and law enforcement) is indispensable for an organized society in which the economy can flourish. The fact that in the foreign policy of Western countries, including the Netherlands, in recent years focus has been placed on the development of the legal system in developing countries testifies to this. But also in more developed countries the economy can be inhibited by a less than optimally functioning legal system. Within the legal system the quality and speed of the civil justice system largely determines the trust of traders – and thus also potential foreign investors –, that everyone (including the government) shall comply with agreements and rules and that, if it is not the case, an effective legal remedy exists. The independence, impartiality and quality of the judge, the speed and effectiveness of the procedure and the reliability of the execution are therefore important factors for economic growth. For these reasons the The Global Competitiveness Index, a yearly international ranking of countries in terms of competitiveness and market position by the World Economic Forum, includes elements which monitor the quality of the civil procedure: ‘protection of (intellectual) property rights’, ‘judicial independence’ and ‘efficiency of legal framework in settling disputes’. The statement of 12 July can be understood in this light.

The statement demands that the reform of the civil procedural law receives support from the Greek parliament before the 22nd of July and that seems quite unrealistic as this kind of reform is usually the result of a process covering many years. It can be explained by the fact that since November 2014 there has been a bill in the Greek parliament with the aim of accelerating civil proceedings. However, as against any reform, the resistance was fierce, both on the part of the legal profession and the judges’ association. So fierce that the lawyers went on strike for two weeks to prevent the adoption of the bill. The result was an impasse which the Euro Summit statement aims to break. And correctly so, because the situation in Greece when it comes to the civil procedure is fairly dramatic.

Studies from 2011 show that the processing times of civil (and administrative) proceedings in Greece are very long according to European standards. From a random sample – reliable figures on processing times are not available – it appeared that in 65 percent of the cases no – final – verdict was made after five years and in 20 percent not even after ten years. The sample included outliers with cases which ran for 26 and even 33 years.  While the reduction of backlogs is a condition for the acceleration, the backlogs of Greek courts are only increasing. Despite the long duration of procedures the influx of new cases continues to increase, apparently related to the fact that an economic crisis simply leads to more (civil) litigation (E. Bauw, F. van Dijk and F. van Tulder, Recessie en rechtspraak, Economisch Statistische Berichten 24 juli 2009, 468-471). The high rate of appeal further contributes to this. The costs of appeal are relatively low and experience shows that judgements are often not upheld on appeal, because the higher court ‘thinks otherwise’, which obviously has a magnetic effect. To complete the chaos, it appears that 40 percent of the cases which are tried by the highest civil court (the ‘Areios Pagos’) must be redone due to purely formal grounds (procedural flaws). Quite a few cases will be rotated several times between judges at various levels before finally coming to a final substantive judgement.

In this state of affairs it is not surprising that Greece has received many judgements by the European Court of Human Rights (ECHR) for the violation of the requirement inherent in article 6 of the European Convention of Human Right (ECHR) that a trial must take place within a reasonable time. Since the establishment of the ECHR in 1959 Greece belongs to the ‘repeat players’, with 834 cases over the period of 1959 to 2015, with only 34 cases not containing a violation (European Court of Human Rights, Annual Report 2014, p. 176). More than half of the judgements (475) concerned the length of the proceedings. That little improvement was observed in recent years can be demonstrated by the figures from 2014. The Annual Report of the ECHR indicates that, of the EU Member States, in 2014 after Romania, Greece received most judgements against (51), in which again half of the violations concerned the length of the proceedings (26). The poor score on timeliness of the civil procedures in Greece is reaffirmed by the Rule of Law Index 2015 of the World Justice Project. On the component of ‘civil justice’ the country did not even score so poorly, namely a 35^th place in the total of 102 countries, one spot above Italy. But when it concerns ‘no unreasonable delay’ the score is truly dramatic: 0.19 on a scale that goes to 1.0. One might say: a 2-.

Here a nice task for the Netherlands may be found. When it concerns civil procedure our country holds a prominent first place in the Rule of Law Index 2015. And yet there is still no satisfaction in the component of speed (where a score of 7,6 is reached). The standards on the duration of procedures which the courts have set for themselves to complete 70 percent of the commercial adversarial cases within one year and 90 percent within two years are, according to the strategic agenda of the Dutch Judiciary for 2015-2018 (Agenda van de Rechtspraak 2015-2018), not ambitious enough and need to be tightened to keep up with the increasing pace of society. In 2018 court cases should take 40 percent less time than in 2013. The most important means of achieving this is a radical alteration in the procedural law for all three judicial bodies, set out in a number of legislative proposals, of which the Second Chamber approved the two most important proposals in June of this year (Kamerstukken II 2014/15, 34 059, nrs. 1-3 en Kamerstukken II 2014/15, 34 138, nrs. 1-3). The characteristics of this legislation are: simplification of the procedural law, shortening and stricter enforcement of deadlines, firmer control by the court and complete digitalization of the exchange of documents and the files. It is thus clear that it is not ‘just’ another legislative operation, but a complete reorganization of the civil (and to a lesser extent administrative) judiciary over the course of a number of years. Under the heading ‘quality and innovation’ the Judiciary has created a program in which over the period of 2013-2020 an investment of nearly €200 million is involved. The societal – and economic – benefits of the reduction in procedure duration that will be achieved is estimated at €225 million a year ( See the appendix to the year plan of the Judiciary for 2015). Whether everything will work out as planned, so that in a few years time we will find a duration of a half year for civil cases normal, remains to be seen, but it is clear that the Netherlands is leading internationally both in performance as well as in ambition.

If we imagine a similar – naturally, adapted to the circumstances – operation in Greece, a proportionally much greater social and economic benefits should be envisaged in this country. But this cannot be achieved by simply modifying the procedural law, such as the Euro Summit statement prescribes. Without a proper implementation program there will be little effect, especially now that the sentiments on the reform appear to be negative among lawyers and judges. This requires what is called in military terms ‘boots on the ground’ and the Dutch experience makes our judges perfectly suited for such a mission. Is it not a tempting image to fly Dutch judges to the Greek sun to ensure the blessings of our civil procedure there?