Introduction

Public access to court decisions helps to build trust in the courts and foster a healthy democracy and investment climate. Investors are particularly keen to see how commercial rights are protected in practice. A transparent court system enhances confidence and assists with the development of consistency. The common law jurisdictions typically abide by a system of court precedents whereby practitioners are able to rely on previous judgments to give an indication of how disputes will be resolved and the thinking behind such decisions.

Historically there is established best practice in many legal systems that once court proceedings have concluded court decisions are routinely published. This approach gives confidence to investors and citizens as it assists the establishment of a framework for transparency. This article discusses the findings of the 2015 EBRD Assessment of access to court decisions, which analysed the accessibility of court decisions in 25 transition economies. The assessment, although demonstrating how some countries have established good practices in this area, also highlighted where significant improvements are required.

About the assessment

In the course of conducting the EBRD’s Judicial Decisions Assessment, 2010,1 local experts in many countries encountered serious difficulties in obtaining access to court decisions, even in countries where the law explicitly mandates free public access to decisions. This prompted the EBRD’s Legal Transition Team (LTT) to include in some of its technical assistance work components seeking to improve access to judicial decisions. As part of the Commercial Law Judicial Capacity Project in Tajikistan (see Focus Article 4), a report is being prepared on how best to introduce a national database of judicial decisions. In Mongolia, LTT is working with the Supreme Court and Council of Courts to expand and improve the “searchability” of the existing decisions database. It is considered that such efforts would be facilitated by the existence of comparative data and an index on ease of access to court decisions. The focus would be on commercial decisions, although in most of the countries subject to this assessment little distinction is made between the accessibility of decisions in particular areas of law. This is very often reflected in the expertise of the judges who sit in the courts (also see the EBRD Judicial Decisions Assessment, 2010).

The questionnaire was a relatively simple one, designed to encourage respondents to complete it very quickly. It was comprised of 24 questions and divided into five main dimensions:

1. public right of access to judicial decisions
2. reporting and publication requirements and practices in relation to judicial decisions
3. limitations on the right of access to past judicial decisions
4. online databases and user-friendly databases
5. general questions.

    

92 Respondents were approached from 27 countries.

Responses were received from the following 26 jurisdictions - Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Egypt, FYR Macedonia, Georgia, Jordan, Kazakhstan, Kosovo, Kyrgyz Republic, Moldova, Mongolia, Montenegro, Morocco, Romania, Russia, Serbia, Tajikistan, Tunisia, Turkey, Ukraine and Uzbekistan

- No responses were received from Turkmenistan -

The countries were assessed on the respondents’ replies (consisting of yes/no answers with additional comments and a numerical value required for the responses in dimension 5).

To the EBRD’s knowledge, there is no other standalone index of the accessibility of court decisions, although this question is considered as a component of some other periodic studies, such as the Judicial Reform Index of the American Bar Association.2 Accordingly, an LTT assessment in this area should prove to be of interest to governments and other actors involved in the reform of the justice sector in the region. Publicly available and easy-to-access judicial decisions clearly enhance transparency and lead to more predictable and sound decision-making. They also promote academic and professional discussion of and reflection on judicial decision-making, not only bringing this into the public domain but also improving on the quality of judicial decisions.

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Box 1: Regions for the purposes of the EBRD assessment on accessibility of court decisions

(I) South-eastern Europe and Turkey – 11 jurisdictions (Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, FYR Macedonia, Kosovo, Montenegro, Romania, Serbia and Turkey

(ii) Caucasus and Central Asia – eight jurisdictions (Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyz Republic, Mongolia, Tajikistan and Uzbekistan)

Iiii) Eastern Europe – four jurisdictions (Belarus, Moldova, Russia and Ukraine)

(iv) Southern and eastern Mediterranean, SEMED region – four jurisdictions (Egypt, Jordan, Morocco and Tunisia).

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The applicability of international standards

When assessing the framework and function of a legal system it is important to benchmark best practice against international standards; these serve to rate the status quo, quantify any improvements over time, and assess the measures that remain to be taken. With specific reference to the publication of court judgments and decisions there are three recognised international standards, emanating from different organisations:

(i) Council of Europe; Recommendation Rec(2001)3E on the delivery of court and other legal services to the citizen through the use of new technologies3

This recommendation is a reflection of the importance of the availability and use of technology to the system of justice. The recommendation establishes an important link between democracy and the ability of technology to improve democratic participation:

“Considering that access of the citizens of Europe to laws, regulations and case law of their own and other European states and to administrative and judicial information should be facilitated through the use of modern information technology in the interest of democratic participation.”

This link between democracy and the implementation of technology is an important one as it provides impetus to court systems in the region to harness technology to make improvements in order for those court decisions to be made easily accessible and available to a wide audience. Section 3 of the appendix to the recommendation goes on to state the following points:

Section 4 of the appendix to the recommendation also sets out which categories of legal information should be made available:

Some observers have stated that this last part of section 4 does not go far enough, as all court decisions, not just “important court decisions” should be reported. This is clearly a very high benchmark to set and attain, considering the challenges that some countries face in reforming their judicial systems.

(ii) The ABA Judicial Reform Index (JRI)4 in use since 2001

Factor 24: Publication of Judicial Decisions: “judicial decisions are generally a matter of public record, and significant appellate decisions are published and open to academic and public scrutiny.”

The JRI clearly sets out a requirement for publication of decisions. However it is open to interpretation; it does not specify where and how court decisions should be published and also, similarly to the Council of Europe recommendation, it only specifies “significant appellate decisions”. However, it states that judicial decisions should be publicly accessible and this is a strong indication of the requirement to publish these decisions, even without specifically setting out the mechanism for doing this. The JRI therefore appears to set the criteria for publication at a reasonably attainable level, especially when one considers that the appellate courts are where the higher levels of standards and resources will be focused.

(iii) Kiev Recommendations

A more recent benchmark is the OSCE Kiev Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia (the Kiev Recommendations).5

Part III, Section 32:

The proposals in the Kiev Recommendations are more detailed than those of the Council of Europe and the ABA, specifically directing that websites are the preferred platform for publication. This is perhaps indicative of the fact that the Kiev Recommendations were adopted more recently (in June 2010); in an era where there is an assumption that web-based dissemination of information is the default option. The direction in Part III, section 32 of the Kiev Recommendations can be specifically applied to dimension (iv) of the assessment: “Online databases and user-friendly databases”.

We analyse the five dimensions of the assessment, with general observations being made and specific examples of jurisdictions demonstrating good practices and poor examples of providing access to court decisions, both in law and in practice.

I.Public right of access to judicial decisions

This dimension was the starting point of the assessment, in other words, does the public have the right of access, this is not simply a yes or no answer because the main consideration is whether this is expressed within the legal framework, with the additional question of whether that right can be exercised in practice.

Of the 27 countries Tajikistan snd Cyprus are the only jurisdictions where this right was not expressed in law, and, in the case of Tajikistan, neither is there any immediate evidence of this being undertaken in practice. Otherwise for the other countries surveyed the responses have been relatively consistent: of the nine countries of south-eastern Europe (SEE) the right is expressed via a mixture of the constitution or primary and secondary legislation. However on closer analysis in four countries (Albania, Bulgaria, Kosovo and Romania) this right is enshrined within the constitution in addition to primary, secondary and other legislation, this is not necessarily an indication of a more mature legal framework.

In the other five countries; Bosnia and Herzegovina (known hereafter as Bosnia), Croatia, FYR Macedonia, Montenegro and Serbia, the right is only expressed within primary legislation; this could be an indication of the legal models adopted by these countries as opposed to any definitive approach to concepts of access to judicial decisions. In fact in Bosnia, during the EBRD’s 2010 judicial decision assessment the panel conducting the assessment found the worst example in the SEE region relating to access to court decisions to be Bosnia. Over the course of four months the team of local experts could not officially obtain access to the courts’ files in order to select a representative sample of decisions in certain areas of commercial law. The team members’ official requests were simply ignored by the court officers. This example is unfortunately not unique. Accordingly, a general conclusion can be made that in this jurisdiction the principle of publicity of court hearing, although declared in secondary legislation (the Code of Civil Procedure), in reality does not exist in practice.

An example of where the situation has improved, at least in principle, is FYR Macedonia: at the end of 2010 the Macedonian Parliament approved the Law on Management of the Court Files, which entered into force in 2011. According to this law, the court officers are obliged to publish all decisions on the official website of the respective court. It does remain to be seen whether this obligation is exercised regularly in practice.

The results seen in the seven countries of the Caucasus and Central Asia, minus Tajikistan (Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyz Republic, Mongolia and Uzbekistan) demonstrate that the practice of the right of access could be evidenced in all jurisdictions, however decisions were found to be accessible in the higher courts, not the lower or specialist courts, therefore more work needs to be done in order to publish decisions in these courts. In Armenia judicial decisions of the Constitutional Court are published in the official journal. Article 68 of the Judicial Code states that judicial decisions should be published on the government’s official website.

In the four countries of eastern Europe, (Belarus, Moldova, Russia and Ukraine) there is differing practice across the legal frameworks: in Belarus the decisions of the Constitutional Court are routinely published in the newspapers and on that institution’s website. A member of the public can obtain a copy of the court’s decision only with the judge’s permission if such a decision affects his/her legal interests or for academic purposes. This is quite an onerous process and is a somewhat restrictive approach to take, in reality it can be seen as a bar to public access.

In the countries of the SEMED region (Egypt, Jordan, Morocco and Tunisia) there is a general lack of transparency, however in Egypt the following was noted: in general, higher court judgments are published; however, government officials show some resistance to providing copies of judicial decisions, especially the decisions of lower courts. As a promising development, the government established an online service to provide judicial decisions to citizens in exchange for certain fees. In Tunisia only parties to the case can obtain copies of decisions. In Morocco there is no systematic routine to publish court decisions; in addition there is no legal requirement to publish court decisions.

II.Reporting and publication requirements and practices in relation to judicial decisions

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Box 2: This dimension was made up of the following eight questions:

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In the following 22 countries there is a requirement to at least publish decisions in writing (that is: in journals or periodicals) at the constitutional and appellate level – (Albania, Armenia, Azerbaijan, Belarus, Bosnia, Bulgaria, Croatia, Egypt, FYR Macedonia, Georgia, Jordan, Kazakhstan, Kosovo, Kyrgyz Republic, Moldova, Mongolia, Montenegro, Romania, Russia, Serbia, Turkey and Ukraine), while in the following four countries there is no requirement to publish decisions, even at the appellate level: (Cyprus, Morocco, Tajikistan and Tunisia). This does at first glance demonstrate a good level of transparency in the majority of countries, that is: they do at least have the requirement to publish decisions in writing. However, this requirement is really only a measure of what they are required to do and does not consider what they actually publish (or not) in practice. On further investigation it becomes clear that a number of countries (Bulgaria, Kosovo, Russia, Serbia and Ukraine) only publish summaries of their decisions or in fact publish selected (in other words: not all) decisions, this is therefore an inconsistent approach and will of course lead to some uncertainty about what category of decisions, in whole or in part are actually published. The scope of dissemination of decisions in periodicals is not widespread; these periodicals (that is: official gazettes) are not easily accessible to the general public. Ultimately the decisions are published for the benefit of those within the legal sector (practising lawyers, academics and court staff); in some instances journalists have also found it difficult to obtain them. Indeed, in one of the jurisdictions the assessment respondents noted that their application to receive a copy of a decision was rejected by the court. I\t should be noted that in the case of Cyprus, even though the publication of decisions is not expressed in law, the practice is fairly positive, for example cases are published at all court levels from the Constitutional Court to the lower courts, and decisions a searchable by a number of criteria. The only noted problem for accessibility is that decisions are not published in English (in either online or paper format), therefore translations need to be sought, however this is also common in several jurisdictions.

The practice of publishing court decisions is also hampered by delays and missing decisions in a number of countries: four countries in the CCA region (Armenia, Georgia, Kazakhstan and Mongolia) experienced delays; in Georgia delays were noted when requesting extra documents. In SEE (Albania, Bulgaria, Cyprus, FYR Macedonia, Kosovo, Montenegro, Romania, Serbia and Turkey) delays were noted, particularly in FYR Macedonia and Serbia, however this is in line with the delays endemic throughout the lifecycle of the judicial systems in this region. The experience is also reflected in data from the EBRD/World Bank Business Environment and Enterprise Performance Survey,6 where only 11 per cent of Serbian respondents considered that the court system was sufficiently quick. In FYR Macedonia however the speed of justice in the country was faster than in a number of other countries in SEE region, although many courts still suffer from a backlog and certain types of cases tend to make up a significant percentage of court lists. Steps have been taken recently to fix these problems, such as a fast-track process for simple matters (that is: debt collection).

In addition there are a number of commercial legal information vendors operating in some countries (see Table 2). While these are useful for commercial organisations (that is: law firms, banks and others operating in the commercial sector) they are not particularly instrumental as a measure of public access to information, as they are commercial databases and a licence has to be purchased in order for access to be granted. The payment of a fee will of course preclude most members of the public from using them.

III. Limitations on the right of access to past judicial decisions

Alongside granting access to judicial decisions, the next important question to consider is the extent and restrictions placed on such access, particularly in the context of the right to privacy. In order to properly examine this area of the assessment five factors need to be considered (see box below). These factors are based on elements identified during the course of the assessment and do not necessarily exist in each jurisdiction.

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Box 3: Considerations relating to limitations on the right of access to judicial decisions

1. Categories of limitations on access to general jurisdiction court decisions

2. Grounds for keeping certain judicial decisions confidential

3. Redacting the text of published decisions

4. Other limitations on access to judicial decisions

Source: EBRD Assessment of accesibility of court decisions, 2015.

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a.Categories of limitations on access to general jurisdiction court decisions

Many south-eastern Europe countries, as well as Turkey, tend to limit the personal scope of access to judicial decisions of courts of general jurisdiction in their legal frameworks. Most commonly, access is limited to parties to the case (for example, in Bulgaria, Croatia, Serbia and Turkey), persons whose rights are affected by the decision (for example, in Albania,7 Bosnia, Bulgaria, Croatia, Serbia and Turkey) and judges or court employees (for example, in Bosnia, Serbia and Turkey) and legal practitioners (for example, Bulgaria).8

Notably, such limitations may be incorporated in either primary or secondary legislation. For example, in Bulgaria relevant provisions are incorporated in the Judiciary System Act, whereas in Albania the restrictions are imposed by the instruction of the Data Protection Commissioner.

In most countries in the Caucasus and Central Asia (CCA) region courts have the discretion to limit access to their decisions, and a direct relationship between closed court deliberations and access to court decisions is particularly strong. For example, in Armenia limitations can be introduced by courts in cases of closed trials. In Mongolia, decisions in “closed” trials are either not published or published to a limited extent. In Kazakhstan, access is limited to parties to the case; however the general public may access the decisions through the Supreme Court’s database.

However, in Georgia, the conclusions of a court decision must always be made available to anyone interested. This is clearly a broader interpretation of this standard and as such Georgia can be regarded as reaching a higher level of accessibility for court decisions than most other countries in the region.

In eastern Europe, limitations on access to judicial decisions are either incorporated into legislative provisions or exist in practice without legislative basis. In Belarus and Russia, courts have the discretion to limit access to judicial decisions. While no legislatively incorporated restrictions on access to judicial decisions appear to exist in other eastern European countries (Ukraine and Moldova), practical impediments persist. In Ukraine, judges and court practitioners experience no difficulties in accessing the decisions; the same cannot be said for the general public. Most SEMED countries (Egypt, Jordan and Morocco) do not appear to incorporate any personal scope limitations on access to judicial decisions in the national legal systems. In Tunisia, however, access to court decisions seems to be limited to the parties to the case.

b.Grounds for keeping certain judicial decisions confidential

Most countries in this region restrict access to cases that deal with matters such as national security, domestic violence or cases related to minors. This is fairly common practice and is seen in most jurisdictions. Matters related to national security are restricted, for example, in Bulgaria, Kosovo and Montenegro. Access to decisions relating to minors is restricted in, among others, Bosnia, Croatia, Kosovo, Montenegro, Romania and Serbia. Matters involving victims of sexual offences are often restricted in Bosnia, whereas in Montenegro and Serbia these include cases of family violence. The matters above may be regulated either by a separate legal instrument (for example, access to information law) or a multitude of pieces of legislation. For example, in Albania, these matters are broadly governed by the Law on the Right to Information,9 which states that the right to information may be restricted in case the information available would harm the right to privacy, commercial secrets, copyright, patents, as well as national security, prevention, investigation and prosecution of criminal offences and other matters, including parity of parties in judicial proceedings and the normal flow of judicial proceedings. There is, however, a caveat of greater public interest under which this may be made available. In the case of multiple legal acts, for example, the substantive norm may be incorporated in one legal instrument, whereas the definition it is referring to is contained in a separate piece of legislation.

In the CCA region, non-availability of a published decision is generally caused by the closed nature of the trial, as well as the matters deliberated falling into the “secret” category (for example, state, commercial, professional, personal, and so on). In Georgia, Kazakhstan, Mongolia and the Kyrgyz Republic, courts may order certain court hearings to be closed (for example, in cases involving state secrets or personal privacy matters), which would result in the non-publication of the decision. Decisions in cases related to state secrets are not published in, for example, Azerbaijan, Georgia, the Kyrgyz Republic, Mongolia and Tajikistan.

In Belarus, constitutional court decisions containing state secrets or other information protected by law are conducted in closed sessions. Decisions of courts of general jurisdiction are not published if they contain information about the private life of the parties, dignity or business reputation, the interests of minors, state secrets and other information protected by law. Notably, the parties may request the court not to publish the decision. In Ukraine, decisions in classified cases are generally not published. It would appear in these two examples that the court and possibly the executive have some discretion in imposing these labels on cases in order to ensure that such cases are not reported.

Decisions in cases related to minors and national security are generally kept confidential in SEMED region countries. In Tunisia, decisions in cases related to state secrets and national security decisions are restricted, whereas in Jordan decisions in family cases are not made public. In Morocco, decisions in serious criminal cases and/or cases involving minors are restricted. No requirement of such kind appears to exist in Egypt.

c.Redacting the text of published decisions

In many countries in south-eastern Europe, court decisions are anonymised before being published, that is, all personal information about the parties or related persons is either deleted or reduced to the extent where it is impossible to identify the relevant person (for example, their names are initialised). In Croatia, for example, before publishing decisions online, any information that could reveal the identity of the parties, their representatives or private companies is replaced or deleted.10 In Turkey, the names of the parties are concealed. In Romania, personal data such as name, surname, date and place of birth, personal identification number and occupation is anonymised before general jurisdiction court decision publication.

The legal framework of Albania incorporates different requirements for levels of information disclosure depending on the type of case being published. As such, in the published criminal and civil decisions the names and last names of the parties, third parties, witnesses and experts called in the trial are inserted using initials or encrypted, and in the reasoning of the decision, the publication of personal data which prejudices the privacy of the parties at trial (for example, address, telephone number, and so on) is prohibited. In civil decisions related to commercial matters, personal details of the parties/shareholders are either initialised or encrypted, while the publication of percentage of the stocks/shares possessed by the parties, bank account numbers, monetary amounts (values) and trade secrets is prohibited. In all cases where the parties at trial are minors, publication of personal details and of other identifiable (personal) data, or of the data related to third parties, from which the identity of the minor can be revealed, even though indirectly, is prohibited.

In contrast in Bosnia and Serbia, the text of published judicial decisions is not redacted. This is, however, not necessarily an indication of a more transparent system.

In most countries in the CCA region, no editing of court decisions takes place. For example, when published, decisions remain intact in Armenia, Kazakhstan, the Kyrgyz Republic and Tajikistan. This of course does not have to indicate that it is an inherently open or transparent system, the percentage of reported cases might be low enough for this not to be a significant factor, and, as opposed to a process of redacting texts the court may decide to either withhold publication or just not record or publish the decision at all.

However, in certain jurisdictions editing does take place. For example, the names of the parties (both individuals and legal entities) in general jurisdiction courts decisions are edited in Azerbaijan. In Georgia, decisions of courts of general jurisdiction are usually redacted to have the names of private parties removed, and certain parts of decisions themselves may be removed. As for the constitutional court decisions, the law unambiguously states that decisions of the constitutional court must be published in full. Most eastern European countries edit court decisions before having them published. For example, in Belarus, the texts of courts of general jurisdiction decisions do not contain the names of the parties, name(s) of the judge(s), or the names of other persons and entities taking part in the court proceedings (although constitutional court decisions are not edited). In Russia, personal data is also removed from publicly available decisions (for example, names). In Ukraine, general jurisdiction courts decisions are also edited.

In the majority of SEMED countries (Morocco, Tunisia, Jordan) decisions of general jurisdiction courts are not edited. No editing takes place in Egypt, either, however in some instances, particularly in the case of private databases, the names of the parties are removed where there are national security or privacy concerns.

d.Other limitations on access to judicial decisions – a special body assisting with gaining access to judicial decisions

In most south-eastern Europe countries there are no special bodies or services that assist with providing access to judicial decisions. None exist in Bosnia, Bulgaria, Cyprus, FYR Macedonia, Kosovo, Montenegro, or Serbia.

Other countries have these in the form of a special department in the court. For example, in Croatia, every court (including the constitutional court) has an information officer/clerk that provides assistance with judicial decisions made by such a court. On the national level, a special commissioner appointed by the Croatian Parliament is charged with controlling compliance with accessibility requirements, acting as an appeals body and performing other related duties.

In many countries in the CCA region there are no other limitations on access to court decisions (for example, there are none in Armenia, Azerbaijan, Kazakhstan, Mongolia and Tajikistan).

While there is no service providing assistance of this kind in Georgia, Georgian legislation stipulates that every public institution is obliged to designate a public servant who is responsible for ensuring the availability of public information. In Moldova, provisions of the national data protection legislation may limit access to general jurisdiction courts’ decisions.

No special body or service assisting with access to court decisions exists in either Moldova or Ukraine. In Belarus, however, there is a National Center of Legal Information of the Republic of Belarus,11 charged with collecting and maintaining legal information databases (including, among others, electronic databases).

In Egypt, there exists a secretariat of respective courts (both for the constitutional court and general jurisdiction courts decisions) and in general, any person can obtain a copy of any verdict after paying certain fees, the payment of a fee may in itself, dependent on the level of the fee, be seen as an impediment to access (although there appear to be certain practical impediments). In addition, the government has launched several online services, including those offering any judicial decisions for a fee (mainly lower courts verdicts),12 offering cassation verdicts for free13 and offering Supreme Constitutional Court’s verdicts for free.14

IV. Online databases and user-friendly databases

The issue of the availability of online databases and particularly the availability of user-friendly databases is crucial to the whole debate about the accessibility of court decisions. In order for a country to effectively demonstrate how open it is to public scrutiny it should ensure that it makes public information accessible to a wide audience. With the advent of information and communication technology (ICT) systems the easiest way to publish this information quickly and to the widest audience possible is to publish court decisions in an online database or on a website (in accordance with the Kiev standards, see above), preferably without any associated charges (so as to ensure ease of public access) and to routinely update the database with all relevant court decisions. Once the technology is available to the central government, government agencies, companies and entrepreneurs then one should see a proliferation in the availability of information via the internet, including the publishing of court decisions. Where this does not happen it is often caused by a number of factors, all necessarily interrelated: entrenchment of practices; lack of resources; poor training and coordination. For many countries in the region the court system is chronically under-funded and under-resourced, this invariably means that whatever money is available is not being focused on publishing court decisions, this is self-explanatory. Indeed where all of these three factors exist together within one court system the possibility for stagnation is very high, even with intervention from international agencies and NGOs.

Table 1 (see Annex) sets out the range of websites available in each country, in addition to some commentary about the scope of decisions made available by each website.

As has already been stated in Morocco there is no systematic publication of court decisions. A recent legal assessment conducted by the EBRD in 2013 stated:15

In order to try to improve the slow pace of reform, the Moroccan government in 2013 launched a new ICT digital court project across its entire judicial system, starting with a pilot project at the Court of Cassation in Rabat. The aim of the project is to improve court proceedings as it will allow court staff quick and easy access to court records. The Ministry of Justice has said that the experiment covers areas such as electronic legal document archives, management systems, remote forensic evaluations and online case files shared in real time through in-court notebook computers. This was quite an extensive and advanced undertaking; the pilot will be extended to all chambers of the court within the five-year project cycle, and the court’s strategic plan for 2013-17 refers to “digital courts using new technologies to facilitate procedures, unify judicial interpretations and increase the quality of decisions.” This modernisation programme is clearly urgently required to improve transparency in the court system.

In Montenegro the court system provides for publishing at the constitutional, Supreme Court and commercial court levels (one of the few jurisdictions in the region to make an active distinction between courts of general and commercial scope). While the constitutional court only has decisions dating back to 2012 both the supreme and commercial courts have their decisions sufficiently indexed to allow searching within a number of criteria – case type, department, year, decision type and content.

V. Ease of access by parties to the case and the general public, and major issues preventing adequate access to decisions

This dimension of the assessment allowed the respondents to give a numerical rating for the ease of access by: (i) parties to the case and (ii) the ease of access by the general public to a case (see charts 1 and 2). This section of the assessment bore out some interesting results. In seven countries (Albania, Egypt, FYR Macedonia, Kazakhstan, Kyrgyz Republic, Russia and Ukraine) there was very little (if at all) difference between ease of access for parties to the case and members of the public. However even within these jurisdictions it was recognised that problems with access did persist, the most common comments being a lack of prompt publication of decisions and the inefficiency of court employees when dealing with requests for access and other questions. Some of the aforementioned countries showing the biggest disparity between parties and public access have already featured as poor performers in other parts of the assessment (that is, Bosnia, Serbia and Uzbekistan), and it is clearly not surprising that they would also appear here.

One of the best performers in this section attained a high score for both public and parties access to decisions: Montenegro is currently negotiating EU accession and has preliminarily closed some chapters of the acquis, it is seen as something of a problem-free accession state (at least in comparison to FYR Macedonia and Serbia) as it does not have any major political challenges to overcome before accession. In fact Montenegro opened negotiations on Chapter 23 – Judiciary and fundamental rights, in December 2013. It was noted during these negotiations that: “While the efficiency of courts has overall increased, efforts to further enhance the efficiency of the judiciary should continue”.

By contrast, Serbia’s progress report17 noted that while some progress has been made in reforming the judiciary some “key legislation” has still to be adopted, including reform of the constitution in order to improve judicial practice, education and efficiency. In fact the report concluded that “limited progress was made in the area of the judiciary and fundamental rights.”

Chart 1: Ease of access by parties and general public to court decisions in transition countries

Source: EBRD Assessment of Court Decisions, 2015. Key: Rating 10= easy; 1= difficult.

The regional comparison (see chart 2) demonstrates that the most notable disparity exists in the SEMED region between ease of access for parties and members of the public. However a note of caution: all countries in this particular region demonstrated a fairly high rating for ease of access of parties, in this case it is not that ease of access for the public is very high, in comparison to other regions (that is, Caucasus and Central Asia) access for parties is also quite low, hence the smaller disparity between the two indicators.

Chart 2: Ease of access by parties and general public to court decisions: regional comparisons

Source: EBRD Assessment of Availability of Court Decisions, 2015. Key: Rating 10= easy; 1= difficult.

In addition the respondents were able to select one major issue that prevents adequate access to court decisions: inadequate legal framework; inefficiency of relevant court employees; availability of only fee-based access systems; lack of prompt publication; “other” (unspecified factors). Insofar as responses, three were paramount: the inefficiency of relevant court employees was cited as an impediment by respondents in eight jurisdictions (Bosnia, Egypt, Georgia, Kosovo, Kyrgyz Republic, Moldova, Mongolia and Tunisia). To address these problems a training programme is required for court employees, both from a technical and policy/cultural perspective, in order to understand the requirement to gain access to information and also to provide staff with the resources and capacity to deal with and answer enquiries. An inadequate legal framework was cited as an impediment by respondents in five jurisdictions (Jordan, Montenegro, Tajikistan, Turkey and Uzbekistan), and lack of prompt publication (of court decisions) was cited as an impediment by respondents in 10 jurisdictions (Azerbaijan, Croatia, Cyprus, FYR Macedonia, Georgia, Kazakhstan, Kyrgyz Republic, Morocco, Romania and Russia). These results all point to some serious inadequacies in the court systems overall, clearly these will all contribute to the poor level of access to court decisions, some factors having more of an impact than others.

In some of the countries assessed the court systems have either recently or are currently undergoing reform programmes (Belarus, Georgia, Kazakhstan, Kyrgyz Republic, Morocco, Romania and Turkey) with reforms being proposed in Egypt and Tunisia. Some programmes are focusing on ICT developments, with others focusing on administration and training. In Romania the Legal Information Institute has undertaken an ambitious project to make all decisions of general jurisdiction publicly available by the end of 2015. With that country’s problems of corruption affecting its investment climate this is a positive step in improving transparency.

Conclusion

Each of the jurisdictions analysed in this article have demonstrated a somewhat inconsistent approach to the publication of court decisions. Undoubtedly some have adopted systems and mechanisms to improve the dissemination and publication of judgments, but none are comprehensive in their approach. However, this should be placed in context, as the framework for access to public information is steadily improving in transition countries.

It can generally be said that there is some publication of court decisions in higher courts (that is, constitutional, supreme/appellate level), and very little publication of decisions in the middle tier or lower-ranking courts, especially in the commercial sector. It is clear therefore that the greater the degree of transparency (borne out by publishing judicial decisions) the more favourable this will be for the investment climate and investor confidence.

While most of these jurisdictions have not, as yet, adopted a consistent approach to allow access to court decisions, most of them have made improvements, albeit minor in some cases and more apparent in others. Undoubtedly the continuous monitoring and commentary of NGOs and international organisations plus internal pressure from within countries by their own citizens and agencies involved in the development of democracy and transparency will have a positive effect on the pace and scope of these developments.

Table 1: EBRD assessment on accessibility of court decisions: sources of court decisions made publicly available (online) in writing