On November 2nd 2015, the Council of Europe passed a draft resolution called ‘Access to Justice and the Internet: Potential and Challenges’. It highlights the challenges of clogged courts and emphasises the need to safeguard the right to a fair trial and the right to an effective remedy, arising from Article 6 and 13 of the European Convention on Human Rights, respectively. In this regard, it recognises the barriers to the use of ODR and ICT, such as technical issues, inequalities in individuals’ access to online resources, privacy issues and problems regarding enforcement of decision. The Report calls upon the Council of Europe Member States to raise public awareness of ODR and ICT as well as making it available to citizens as an ADR mechanism, whilst safeguarding Article 6 and 13 of the ECHR, by developing common minimum standards and fair and transparent proceedings.
A large number of unresolved and pending cases before the European Court of Human Rights relate to violations of the ECHR Article 6, as individuals experience an excessive length of domestic judicial proceedings. 69 cases claiming a domestic violation of Article 6 because of violations of the “reasonable time” requirement were as such filed between January and July 2015. Right to a fair trial:
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusations against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court
Complaints are also mention the high expenditure of time but also of money. Several Member States have thus made significant efforts to reform their court processes to include ICT, ADR and ODR to respond to this development. The European Court of Human Rights first established that Article 6(1) not only confers on individuals the right to a fair trial in proceedings already pending against them, but also a right to access the courts to commence an action, in the case of Golder v the UK 1975.
Since then, the Court has in several cases found Article 6 to be breached on grounds of inability to afford legal counsel, excessive length of process or similar conditions making individuals unable to access justice. The Consultative Council of European Judges’ (CCJE) Magna Carta of Judges, stresses the importance of “swift, efficient and affordable dispute resolution”. As such, in the EU in 2013, Directive 2013/11/EU was adopted on alternative dispute resolution for consumer disputes (‘ADR Directive’) and Regulation 524/2013 on online dispute resolution for consumer disputes (‘ODR Regulation’). The latter obliges all traders in the EU to have a clearly indicated link directing their customers to the European Comission’s Small Claims ODR Platform that was launched this January.
These issues and examples of ODR will be highlighted at the ODR2016 conference, involving judges, technological experts and stakeholders, potentially solving the biggest judicial problem in Europe to date.