As everywhere in society, also to the judiciary the internet has brought a revolution. Apart from the growing possibilities for on-line proceedings, by offering the opportunity to publish vast quantities of court decisions on-line, the judiciary can increase its visibility and transparency substantially. Over the last decades, governments and judicial authorities have developed different views on the extent to which and how these opportunities for on-line publication should be utilized. This report contains an extensive comparative research on the on-line publication of court decisions in Europe. It focusses on three main themes - policy and practices with regard to on-line publication, data protection and Open Data - and two accessory topics: citation practice and the implementation of the European Case Law Identifier. Although some EU Member States are obviously more advanced than others, we withstood the temptation to make any ranking: not only are there substantial differences between (types of) courts within one Member State, the weighing of the many aspects involved would be very subjective and distract the attention from the many improvements that are still possible everywhere. The wide variety of policies and practices is maybe one of the most important conclusions of this report. In this summary, we will give a short overview of the nature and extent of this variety. First of all, there are substantial differences as to the existence of legal or policy frameworks regarding the on-line publication of court decisions. Some countries have extensive legislation, prescribing the publication of decisions within specific categories. Other countries have a judicial policy guideline, while some have no legal/policy framework at all. Although in general there seems to be a relationship between the existence of a legal framework and the number of decisions published, this is not a law of the Medes and Persians. And while a lenient publication policy might be assumed to be conducive for judicial transparency, the availability of vast repositories might be hampering easy access to those decisions that reflect important legal developments. Large collections need ease of access, and also in this regard differences can be witnessed. Some countries have one portal where all case law can be searched, others have many different websites; search possibilities range from absent to rather sophisticated. Since court decisions often contain details about the most sensitive events in people's lives, data protection is one the most pressing issues with regard to the on-line publication of court decisions. Many Member States have a policy of anonymising all decisions before they are published, but some jurisdictions have a less stringent policy, and anonymise only on request or in specific types of cases. Differences can be observed also regarding the way in which anonymisation is done: some courts use (real or fake) initials, others replace the anonymised elements by meaningful labels or by fake data. While published court decisions are important base materials for legal professionals, academic researchers, journalists and private companies in the legal information market, Open Data - the idea that public data should be freely available to everyone to (re-)use as they wish - has not gained a strong foothold yet within European judiciaries. In most countries technical facilities to ease harvesting the published decisions are absent, and the formats in which the documents are published do not allow easy processing by computers. Since legal citations within and between court decisions and other legal sources are of the utmost importance for organizing legal knowledge, such references should be well-structured - and hence computer readable. Legal citation guides do not exist in most countries, although many jurisdictions do have a persistent practice. The European Case Law Identifier (ECLI) could play an important role in improving the European legal information architecture; it is being implemented in a growing number of jurisdictions. After an introductory section, the five themes (publication, data protection, Open Data, legal citation and ECLI) are discussed in separate sections. Section 7 contains reports for all 28 EU Member States as well as for three European courts: the Court of Justice of the European Union, the European Court of Human Rights and the Boards of Appeal of the European Patent Organization. Section 8 contains the conclusions and a set of 25 recommendations.
Online Publication of court Decisions in the EU: Report of the policy group of the Project BO-ECLI
2017
Abstract
As everywhere in society, also to the judiciary the internet has brought a revolution. Apart from the growing possibilities for on-line proceedings, by offering the opportunity to publish vast quantities of court decisions on-line, the judiciary can increase its visibility and transparency substantially. Over the last decades, governments and judicial authorities have developed different views on the extent to which and how these opportunities for on-line publication should be utilized. This report contains an extensive comparative research on the on-line publication of court decisions in Europe. It focusses on three main themes - policy and practices with regard to on-line publication, data protection and Open Data - and two accessory topics: citation practice and the implementation of the European Case Law Identifier. Although some EU Member States are obviously more advanced than others, we withstood the temptation to make any ranking: not only are there substantial differences between (types of) courts within one Member State, the weighing of the many aspects involved would be very subjective and distract the attention from the many improvements that are still possible everywhere. The wide variety of policies and practices is maybe one of the most important conclusions of this report. In this summary, we will give a short overview of the nature and extent of this variety. First of all, there are substantial differences as to the existence of legal or policy frameworks regarding the on-line publication of court decisions. Some countries have extensive legislation, prescribing the publication of decisions within specific categories. Other countries have a judicial policy guideline, while some have no legal/policy framework at all. Although in general there seems to be a relationship between the existence of a legal framework and the number of decisions published, this is not a law of the Medes and Persians. And while a lenient publication policy might be assumed to be conducive for judicial transparency, the availability of vast repositories might be hampering easy access to those decisions that reflect important legal developments. Large collections need ease of access, and also in this regard differences can be witnessed. Some countries have one portal where all case law can be searched, others have many different websites; search possibilities range from absent to rather sophisticated. Since court decisions often contain details about the most sensitive events in people's lives, data protection is one the most pressing issues with regard to the on-line publication of court decisions. Many Member States have a policy of anonymising all decisions before they are published, but some jurisdictions have a less stringent policy, and anonymise only on request or in specific types of cases. Differences can be observed also regarding the way in which anonymisation is done: some courts use (real or fake) initials, others replace the anonymised elements by meaningful labels or by fake data. While published court decisions are important base materials for legal professionals, academic researchers, journalists and private companies in the legal information market, Open Data - the idea that public data should be freely available to everyone to (re-)use as they wish - has not gained a strong foothold yet within European judiciaries. In most countries technical facilities to ease harvesting the published decisions are absent, and the formats in which the documents are published do not allow easy processing by computers. Since legal citations within and between court decisions and other legal sources are of the utmost importance for organizing legal knowledge, such references should be well-structured - and hence computer readable. Legal citation guides do not exist in most countries, although many jurisdictions do have a persistent practice. The European Case Law Identifier (ECLI) could play an important role in improving the European legal information architecture; it is being implemented in a growing number of jurisdictions. After an introductory section, the five themes (publication, data protection, Open Data, legal citation and ECLI) are discussed in separate sections. Section 7 contains reports for all 28 EU Member States as well as for three European courts: the Court of Justice of the European Union, the European Court of Human Rights and the Boards of Appeal of the European Patent Organization. Section 8 contains the conclusions and a set of 25 recommendations.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
