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Court Decisions on the Internet:
Development of a Legal Framework in Europe
MARC VAN OPIJNEN[*]
In most European countries with a civil law tradition, the dissemination of (important) court decisions had been a monopoly of commercial legal publishers for decades. As in many other societal areas the internet changed everything: courts started to publish decisions themselves, thereby not only disrupting the legal information market, but also contributing significantly to the visibility of the judiciary and the transparency of justice.
While the pioneering started in a vacuum, a legal framework now is gradually evolving. In this paper the four most important—and intertwined —aspects of this legal framework will be reviewed. The first question is to what extent there is any legal obligation to publish decisions on the internet. To this end in Part 1 the evolving case law of the European Court of Human Rights (ECHR) on the public pronouncement of the judgment will be evaluated, as well as practice and legal framework regarding the publication of decisions from European courts and the legal frameworks at the national level, paying specific attention to the problem of selection. The overarching problem of data protection is discussed in Part 2 and the rapid developments with regard to Open Data are the subject of Part 3. To increase the usability of all these data published, standardisation of identifiers and metadata is of crucial importance. This will be discussed in Part 4, with a special focus on the European Case Law Identifier. Some conclusions will be drawn in Part 5.
For the legitimacy of the judiciary it is of crucial importance that everybody can see how justice is done. Therefore, art 6, para 1 of the European Convention on Human Rights and Fundamental Freedoms reads:
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.
So, while access to the hearing may be restricted, the judgment itself always has to be pronounced in public – for the scrutiny of justice and to prevent secret trials. Comparable provisions can be found in national constitutions throughout Europe, but of course the question arises what exactly is meant by this ‘public pronouncement of judgment.’
The European Court of Human Rights has developed an interesting doctrine on this topic, which has to be outlined in some detail to comprehend how internet databases fit in. In 1983 the Court formulated its basic rule in the often-cited judgment in Pretto v Italy (‘Pretto’):[1]
Many member States of the Council of Europe have a long-standing tradition of recourse to other means, besides reading out aloud, for making public the decisions of all or some of their courts, and especially of their courts of cassation, for example deposit in a registry accessible to the public. The authors of the Convention cannot have overlooked that fact. ... The Court therefore does not feel bound to adopt a literal interpretation. It considers that in each case the form of publicity to be given to the ‘judgment’ under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 para. 1.[2]
Making decisions available in a publicly available register as a way of public pronouncement was sanctioned by the Court in the Pretto itself, and in Sutter v Switzerland[3] the Court sanctioned a practice whereby interested outsiders have to establish an interest to consult or obtain a copy from full text judgments from such a register and whereby only a selection of (important) decisions is published. In their dissenting opinion Cremona, Ganshof van der Meersch, Walsh and MacDonald JJ argued that ‘[p]ublic knowledge of court decisions cannot be secured by confining that knowledge to a limited class of persons,’ and the Court receded from Sutter in its decision in Szücs v Austria[4] of 1997, establishing a violation of art 6 by Austria on making access to the full texts in the court registry dependent upon leave granted at the discretion of the courts.[5]
To meet the requirements of art 6, not only the individual judgment has to be assessed. In Axen v Germany[6] the absence of a public hearing, as well as a public pronouncement of the decision of a court of highest instance rejecting an appeal on formal grounds, was no breach of art 6 since:
[T]he object pursued by Article 6 para. 1 ... – namely, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial – was achieved during the course of the proceedings taken as a whole.[7]
While in Axen the requirements were met by a preceding court, in Lamanna v Austria[8] it was ruled that the full public pronouncement can also be done in appeal, even if the final decision is rendered many years later.[9]
The Biryukov v Russia[10] decision of 2008 is consistent with previous jurisprudence. In this case only the operative part had been pronounced in public, the full-text was only available to the parties and not to the public, and there was no preceding decision in which the full text was publicly pronounced: the European Court of Human Rights concluded to a violation of art 6. The situation in Welke v Poland[11] was comparable, but was sanctioned by the Court because of a legislative provision allowing both hearings and pronouncement of the court’s reasoning to be held in camera because otherwise state secrets would be revealed. Keeping a judgment completely from the public for reasons of state security—even if it concerns terrorist activities—is not allowed.[12]
It should be stressed that while the European Court of Human Rights considers public access to a register to be a sufficient means for public pronouncement, it does not oblige to keep such a register, leaving aside the question whether such a register should be accessible via the internet. Also, the Court does not make an explicit distinction between the judgment in the act of pronouncement (establishing a valid judicial decision) and the judgment as a document that can be consulted after it has been pronounced. Not only do they differ in an ontological sense, one can easily argue that the (long-term) availability of decisions in an internet repository enhances the possibilities for public scrutiny.
An obligation to publish (all) rendered judgments on a website cannot be read in art 6 itself, nor in the case law of the Court. Since such an obligation would entail major legal, technical, societal and financial consequences it would arguably require an explicit decision by the state parties to the European convention. On the other hand, the question whether publication of a judgment on an internet site is to be regarded as public pronouncement is not answered explicitly yet, but in Nikolova v Bulgaria,[13] the Court seems to hold that view by listing this possibility on an equal level as other recognised ways of public pronouncement:
[T]he judgments given were not delivered in public and were not available at the registry of the court or on its Internet site, nor could the first applicant herself obtain a copy.[14]
Publishing a judgment on the internet as a method of public pronouncement has been suggested already by the late president of the Dutch Supreme Court in 1999.[15] Although it might be a very efficient method, data protection issues—to be discussed below—create an insurmountable barrier to turning this idea into practice.
Although implicitly, the technological ease with which court decisions can be published on the internet also played a role in Ramsahai v the Netherlands.[16] The case was about a citizen who died by a police bullet. After investigations the public prosecutor decided to drop charges against the police officer concerned. Having an established interest the family of Ramsahai contested this decision in a special complaints procedure before the Court of Appeal. The order of this Court (confirming the Prosecutor’s decision) was not pronounced in public. The European Court of Human Rights considered art 6 of the Convention not to be applicable, because it is confined to civil and criminal proceedings and does not cover such administrative procedures. Still though, with a reference to Finucane v United Kingdom,[17] it ruled:
Where it is decided that a person vested with public authority at whose hands a human being has died should not face criminal proceedings, Article 2 [for example, ‘right to life’] requires the decision to be open to public scrutiny ... .[18]
However, on appeal this decision was overthrown by the Grand Chamber:
The applicants were allowed full access to the investigation file and were enabled to participate effectively in the Court of Appeal’s hearing; they were provided with a reasoned decision. ... In addition, given that the applicants were not prevented from making the decision public themselves, the Court takes the view that the requirement of publicity was satisfied to an extent sufficient to obviate the danger of any improper cover-up by the Netherlands authorities.[19]
If applied to art 6 as well, this decision would contradict all previous jurisprudence. It would mean that as long as a party to a case has acquired a full copy of the judgment, the judge would be dismissed from his obligation of public pronouncement, since in these modern times (nearly) anybody has the opportunity to make a judgment ‘public.’ Although decided on a very specific type of proceeding, the reasoning of the European Court of Human Rights is startling; to ensure the scrutiny of justice ‘[a]n obligation to make the decision public cannot be placed on the applicants.’[20]
Meanwhile, at the national level many Member States of the Council of Europe have adopted legislation that obliges (all or a selection of) court decisions to be published on the internet, although nowhere as a way of publicly pronouncing judgment. These national practices will be reviewed in Part 2.3, after having discussed the publication of decisions of the European Court of Human Rights itself and other judicial decisions of European relevance.
As established by art 44 para 3 of the European Convention ‘judgments’ of the European Court of Human Rights are to be published. The Convention has no comparable provision for ‘decisions’ (declaring an application inadmissible), but such an obligation was introduced in 2002 by Resolution of the Committee of Ministers,[21] in which it was also decided that publication had to be effectuated via an internet database.
Apart from the publication of its case law by the European Court of Human Rights itself, the 47 member states of the Council of Europe themselves have to publish the most relevant case law of the Court, alongside the text of the European Convention; a 2002 recommendation of the Committee of Ministers asks the member states to:
[E]nsure that judgments and decisions which constitute relevant case-law developments, or which require special implementation measures on their part as respondent states, are rapidly and widely published ... in their entirety or at least in the form of substantial summaries or excerpts ... in the language(s) of the country ... in, where appropriate, the Internet sites.[22]
The number of member states complying with this recommendation is rather limited; the European Court of Human Rights recently took responsibility itself by actively disseminating (non-authorised) translations of its most relevant judgments.
Within the European Union, the legal framework regarding the publication of the decisions of the Court of Justice of the EU (‘CJEU’) is more complicated and less explicit on publication on the internet.[23] All decisions though are published on the website of the CJEU itself,[24] as well as on the EUR-Lex website.[25]
Especially of interest in the EU is the legal framework regarding the cross-border accessibility of EU-related case law. Since EU law is (partially) applicable within the member states, the national judge has to implement and interpret it. Already in 1982 the CJEU ruled in Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [26] that national judges, when deciding cases in which specific questions of European law are raised, have an obligation to consult not only national and CJEU jurisprudence, but also decisions of other member states’ courts. This obligation to consult the case law of European colleagues implies a joint obligation to make national case law accessible, as was reinforced by a resolution of the European Parliament in 2008.[27] There have been various initiatives by European judiciary networks and EU funded programmes to live up to this obligation.[28]
An even more explicit obligation to publish case law of European relevance via the internet can be found in art 3 para 1 of the Second Protocol to the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters[29] and related instruments: member states are obliged to send to the European Commission all decisions from the highest courts and relevant decisions from lower courts concerning the Convention, while the Commission has to publish those decisions in a public database. With the Publications Office taking over responsibility from the Commission, this JURE-database is now integrated in EUR-Lex.[30]
A comparable obligation to send judicial decisions of legal interest to the Commission can be found in art 15 para 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the Implementation of the Rules on Competition Laid Down in Arts 81 and 82 of the Treaty,[31] but this provision is not accompanied by an obligation for the Commission to disseminate these decisions.[32]
Two objectives are served by publishing court decisions on the internet. The first is to serve the rule of law, encompassing for example, the scrutability of the judiciary and the equitable application of the law. The second objective is to inform the public—lawyers and laymen alike—about the continuous development of the law.
Theoretically the first goal requires all case law to be published—which might converge with using the internet as a method of public pronouncement[33]—the second goal is best served by publication of a limited number of cases, because, in the wording of the still only international legal instrument on this topic, The Selection, Processing, Presentation, and Archiving of Court Decisions in Legal Information Retrieval Systems:[34] ‘[S]election should ensure ... that the accumulation of useless information is avoided.’[35]
This Recommendation tries to give guidance on the question of which court decisions should be selected. One of the most important distinctions it makes is between ‘negative’ and ‘positive’ selection criteria. Negative criteria are—at least—to be applied on the highest courts: all of their decisions should be published, except:
[I]f the grounds on which they are based are stated according to a standard formula of formula clause ... [or] if they concern questions of evidence which are in agreement with existing case-law.[36]
Positive criteria are to be applied to the decisions of lower courts. These decisions should be published if they possibly are of interest for the development of law, but at the same time the selection ‘must be generally representative,’[37] a criterion quite hard to make operational.
Most European countries nowadays apply the negative criterion for their highest courts. In some countries this is based on explicit legislation. For example, in Austria both negative and positive criteria have a legal basis: the Minister of Justice is obliged to develop an internet database in which all decisions of the Supreme Court have to be published, unless they are declared ill-founded without extensive motivation.[38] The database should also contain the for the Supreme Court most important decisions of other courts,[39] which have to be published: ‘In as far as they are of general interest, exceeding the individual case.’[40]
Also in France all highest courts’ decisions have to be published, while from the lower courts those decisions should be published: ‘[w]hich are to be selected on criteria suitable for the jurisdiction in question.’[41] In Spain those decisions from lower courts have to be published: ‘[o]f which relevance and academic interest justify publication.’[42]
In some countries it is completely left to the judiciary to make a selection, in some others more detailed rules are formulated, for example, in Belgium.[43] But even then these criteria are often formulated in a very general wording, leaving—too—much room for debate and interpretation, for example:
[D]ecisions in which completely new arguments are brought forward’ ... [or] decisions in which a legal term is explained, in other words, in which a legal rule is being formulated or changed.[44]
The absence of more detailed guidelines can easily be used as an excuse for a very limited selection.
In the Netherlands, a generous selection of decisions from district and appellate courts has been a policy goal of the judiciary portal website from its start in 1999. It now contains a balanced mix: 169,000 decisions from the four highest courts, 72,000 courts of appeal judgments and 139,000 cases from district courts.[45] In the Netherlands there is no legislation on the internet publication of judicial decisions, but the selection criteria—fully redrafted in 2012—are quite elaborated.[46] Apart from legal importance, also societal impact is an important selection criterion and by grouping negative, positive, objective and subjective criteria as well as by putting emphasis on operational wordings, these criteria give clear guidance to judges and offer transparency to the public. After some introductory provisions art 3 states the negative selection criterion for all (four) highest courts and specialised chambers of three other courts. For district and appellate courts arts 4–6 define positive criteria, starting in art 4 with the most objective ones. Some of those are of a procedural nature— for example, decisions starting or following a preliminary reference proceeding at the CJEU or decisions within the framework of the 2007 Lugano Convention[47] —other objective criteria are of a more substantive nature: for example, criminal cases in which the accused is sentenced to at least four years’ imprisonment (regardless of the crime) or cases in which someone is prosecuted for murder, manslaughter or a related crime (regardless of the decision). Article 5 contains positive criteria of a more subjective nature: cases that have attracted media attention, decisions that are published or reviewed in legal periodicals or are of particular relevance for special interest groups, will affect the interests of natural or legal persons not involved in the case itself, or can be expected to be influential on legal doctrine. Finally, art 6 determines that decisions not specifically meeting one of the positive criteria listed should nevertheless be published as much as possible, as long as they do not merely consist of standard formula.
There are also a substantial number of European countries though where negative criteria are also applied to lower courts, because scrutability of the judiciary seems to have been the most determining motive in drafting legislation on the publication of judicial decisions. In Bulgaria publication of all judicial decisions is imposed by art 64 para 1 of the Закон за съдебната власт [Judiciary System Act],[48] and in the Former Yugoslav Republic of Macedonia art 10 of the Court Case Management Act[49] stipulates that every decision has to be published on the internet within two days after it has been rendered. Obstructing the case law database to function as a collective memory of legal development, para 4 prescribes that decisions have to be removed from the repository after five years.[50] In Lithuania art 39 of the Lithuanian Court Act[51] requires publication of all decisions, with the exception of a few categories.[52] In Estonia the Public Information Act[53] lays down the basic principle that all decisions have to be published, but the, hierarchically higher, procedural laws allow exceptions; family cases are hardly published,[54] but most other civil as well as criminal cases are, although in sensitive cases it is allowed to confine publication to the operative part.[55] Also in Russia[56] the full texts of court decisions are to be published on the internet, with an exception for cases relating to state security and personal and family cases.
Publishing all—or most—decisions on the internet might be counter-productive though. It is illusory to propound that the judiciary can be effectively monitored by just putting hundreds of thousands of anonymised, untagged and unstructured decisions online. In addition, publishing these enormous volumes means that the second function of case law publication is also endangered: the law-shaping voice of the judge in potentially landmark decisions is muted by a tsunami of legally irrelevant cases.
As a consequence, if it is considered essential for reasons of judicial transparency to stick to the negative criteria also for the lower courts, some kind of a tagging mechanism is absolutely required to meet also the second objective of case law publication.
The European Court of Human Rights has developed a workable solution. As prescribed by the Committee of Ministers,[57] the Court publishes all of its decisions and judgments, but uses a classification scheme with four importance levels. The highest category contains all decisions which have been published (since 1998) in the Case Reports, the other three are labelled (from low to high importance): 3, 2, 1. To give an indication of the distribution of decisions over these categories, from the highest to the lowest level: 3%, 4%, 11%, 82%.[58]
At the European Court of Human Rights the adjudication of cases to these categories is done manually. With their limited number of cases this is doable, but for a court system with a yearly production of hundreds of thousands of decisions it is not. Smart algorithms might come to the rescue. Citation analysis is the most obvious method, since authority can be established by counting the number of incoming citations.[59] Notwithstanding its usability this method fails on decisions recently rendered or if one wants to discriminate between decisions that have not been cited in other decisions (as is the case with many decisions from lower courts). Hence additional variables have to be taken into account; the Model for Automated Rating of Case law (MARC)[60] uses for example, outgoing citations (to legislation as well as to case law), selection for publication on a judiciary website or in commercial periodicals, incoming citations from magazine articles and treatises, type of court and length of the decision. It turns out that data which are only available on the date of pronouncement or shortly afterwards offer reliable predictors for future citations.
At the turn of the century there was debate on the balance between the need for transparency and scrutiny—as expressed in art 6 of the European Convention—and the protection of privacy as laid down in art 8 of Convention. Protagonists of full and unselected publication held that personal data in judgments ‘[c]an be necessary for the exercise of public scrutiny,’[61] and therefore should not be rendered anonymous. One argument was drawn from the fact that the European Court of Human Rights itself did not anonymise its judgments; at that time rule 47 para 3 of the Rules of Court read:
Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The President of the Chamber may authorise anonymity in exceptional and duly justified cases.[62]
However, art 8 won the debate gloriously. Nowadays in (nearly) all European continental law countries court decisions are anonymised before publication, and in many countries this anonymisation is regulated in the same statutory provisions that prescribe the (massive or selected) publication. Which data exactly have to be anonymised is sometimes outlined in great detail, more often it is left to the discretion of the courts. Even if more precise anonymisation instructions are drafted, they are hardly published,[63] and clear rules on how to object to the way a document is anonymised are often lacking.[64] In most countries the names of professionals involved are not rendered anonymous; an exception can be found in Russia, where names of lawyers and even of the hearing judges have to be anonymised.[65] A remarkable provision is to be found in Estonia, stating that in criminal cases the name of the convict is not to be anonymised. To avoid confusion with namesakes the personal identification number has to be included.[66]
Also the European Court of Human Rights itself followed the evolving state practice: in 2008 it changed the cited provision of the Rules of Court, of which the last sentence now reads: ‘The President of the Chamber may authorise anonymity or grant it of his or her own motion.’[67]
Also the CJEU changed its rules of procedure. With regard to the preliminary rulings proceedings art 104 of the former Rules of Procedure[68] stated explicitly that the original (hence non-anonymised) version of the national judgment had to be communicated to the various stakeholders. In the new Rules of Procedure,[69] in force since 1 January 2013, a specific art (95), titled ‘Anonymity’ has been introduced. It reads:
1. Where anonymity has been granted by the referring court or tribunal, the Court shall respect that anonymity in the proceedings pending before it.
2. At the request of the referring court or tribunal, at the duly reasoned request of a party to the main proceedings or of its own motion, the Court may also, if it considers it necessary, render anonymous one or more persons or entities concerned by the case.
In general, one may conclude that with a growing awareness of the risks of data mining and the enactment of the EU General Data Protection Regulation,[70] the debate on easing anonymisation rules has silenced.
At the global level the re-usability of public data has been recognised as a stimulus for economic growth and governmental transparency. Soft law instruments are gradually shaping a legal framework, like the G8 Open Data Charter[71] and, focussed on legal data, the Guiding principles of the Hague Conference on Private International Law.[72]
The more firm legal framework within the EU is governed by Directive 2003/98/EC on the re-use of public sector information (‘PSI directive’)[73] as amended by Directive 2013/37/EU.[74] For the re-usability of case law documents this amendment, that had to be transposed into national legislation by all member states on 18 July 2015, entails two important changes. First, governmental institutions (judiciaries included) do not have a choice anymore whether to make public documents available for re-use; they now have an obligation, though without prejudice to for example, data protection rules. The delicate balance between re-usability versus data protection has been discussed by, inter alia, the European Data Protection Supervisor[75] and the Article 29 Data Protection Working Party, which formulated ‘purpose limitation’ as a leading principle:
The mere fact that personal data are publicly available for a specific purpose does not mean that such personal data are open for re-use for any other purpose.[76]
One could argue very well that if court decisions are not rendered anonymous before publishing them on the web (like in many common law countries)[77] and additional measures have been taken to protect the interests of named litigants—for example, by the use of the Robots Exclusion Protocol[78]—purpose limitation might be a valid reason for not making these documents available for reuse, notwithstanding the possible breach of data protection rules by maintaining such databases in the first place. In any case, purpose limitation should and cannot be used as an argument against making available for reuse any public case law database that is already fully anonymised.
The second important amendment of the PSI Directive regards the technical usability of the data. The original text of art 5 para 1 read:
Public sector bodies shall make their documents available in any pre-existing format or language, through electronic means where possible and appropriate.
After the amendment it reads:
Public sector bodies shall make their documents available in any pre-existing format or language, and, where possible and appropriate, in open and machine-readable format together with their metadata. Both the format and the metadata should, in so far as possible, comply with formal open standards.
More specific guidelines are published by the European Commission,[79] recommending, inter alia, the highest possible level of granularity, publication at a stable location, publishing in formats like XML, JSON and RDF, using rich metadata (for example, Dublin Core), controlled vocabularies and APIs as well as proper documentation. Apart from these general instructions, equally applicable to all types of public data, guidance for improving reusability of case law documents can be found in the Council Conclusions on the European Case Law Identifier, which will be discussed in Part 5 below.
There are substantial differences across Europe regarding the extent to which case law repositories are actually available for reuse. In the Netherlands for example, all published decisions have been available for unlicensed reuse in XML-format, via FTP since 2004 and via a RESTful web service since 2013, but in many other countries re-users are confined to screen scraping and in some other even legal restrictions apply – being at odds with the PSI Directive.
An interesting court case on this topic can be found in Germany where LexXpress GmbH, a legal publisher, wanted to have equal access to the XML formatted judgments of the Constitutional Court (Bundesverfassungsgericht), as well as to the accompanying metadata, which were till then exclusively sent to Juris GmbH, a company in which the state holds a majority stake. These metadata—like head notes, summaries and references—are written by the staff of the Constitutional Court. While LexXpress held that, based on the (by then unamended) PSI directive and the way it was transposed into national German law, it was equally entitled to the information as Juris GmbH; the defendant (the State) held that the metadata were copyright protected. In its decision of 3 November 2011 the Administrative court in Karlsruhe ruled for the defendant,[80] but that decision was radically overthrown by the Appellate Administrative Court (Verwaltungsgerichtshof, ‘VGH’) Baden-Württemberg.[81] The VGH ruled that not only court decisions themselves are free from copyright, but also the metadata concerned, since they are produced by court staff. Hence, the exception for copyrighted material, made in the national legislation implementing the PSI directive was not applicable. Also, the argument of the Constitutional Court that the State had a specific interest in an exclusive contract with Juris GmbH was waved aside by the VGH. The final decision had to come from the Federal High Administrative Court (Bundesverwaltungsgericht, ‘BVerwG’). Because the BVerwG also has an exclusive contract with Juris GmbH, a motion to recuse was filed against all judges of the BVerwG, which was dismissed (an unappealable decision of the BVerwG itself).[82] Disappointingly from a legal perspective a decision on the merits will not be rendered, since the case has been withdrawn in 2015 after reaching a friendly settlement. The launch of the website ‘Court decisions on the internet’ (Rechtsprechung im Internet)[83] on which the decisions of the Constitutional Court and the other Supreme Courts can be searched and downloaded seems to have played a major role in reaching this settlement.[84]
One of the reasons for the only moderate success of some of the initiatives for improving access to EU related national case law[85] was the lack of proper identifiers and common metadata. To provide for standardisation the EU Council of Ministers in December 2010 established the Council conclusions on ECLI.[86] The ECLI framework consists of five core components.[87]
The first component is the identifier itself, which can be assigned to every court decision rendered by a European or Member State’s court. The fixed format of five elements—ECLI:{country code}:{court code}:{year of decision}:{unique code}—makes this identifier easily recognised and read by lawyers and computers alike, while at the same leaving room for flexibility in national implementation.
Currently ECLI has been introduced by – and made available in public case law repositories of—the CJEU,[88] the European Court of Human Rights, the Boards of Appeal of the European Patent Office (EPO), all courts in the Netherlands, Spain and Austria, and a growing number of courts in Germany, France, Slovenia, the Czech Republic, Slovakia, Finland and Greece.[89] In Romania, Italy, Cyprus, Belgium, Latvia, Estonia, Bulgaria, Denmark and Croatia the implementation of ECLI is work in progress.
The second component of the ECLI framework is a unified set of mandatory and optional metadata, based on the Dublin Core metadata standard. Thirdly, Member State implementation should be guided by a national ECLI co-ordinator, which is, inter alia, responsible for documenting the national technical specifications on the ECLI pages of the European e-justice portal, the fourth component of the ECLI framework.[90]
Finally, the Council’s conclusions assign the Commission with the task to develop the ECLI Search Engine on the European e-justice portal (‘ESE-EEJP’), giving access to possibly all European and national court decisions having an ECLI. One of the advantages would be that one can discover easily whether for example, summaries in other languages are available for a specific judgment. The ESE-EEJP went live on 4 May 2016,[91] and contains nearly four million decisions from the CJEU, the EPO, Spain, the Netherlands, Czech Republic, Slovenia, Finland, Germany, France as well as from the JuriFast database[92] of the Association of Councils of State and Supreme Administrative Jurisdictions of the European Union.[93]
To even further improve case law accessibility at the European level, in October 2015 ‘Building on ECLI’ has started, a project with sixteen partners from ten EU Member States.[94] A first goal is to (further) implement ECLI in Belgium, Croatia, Greece, Estonia, Germany, Czech Republic, Italy and the Netherlands, and to connect their case law repositories to the ESE-EEJP. A second goal is to improve the accessibility of published case law, inter alia within the ESE-EEJP, by creating computer readable—and hence searchable—legal references within judicial decisions. Thirdly, a 2.0 version of the ECLI standard is to be developed, which should be aligned with other evolving semantic web standards. A fourth objective is to have EU wide policy guidelines on the publication of case law, specifically addressing the issues of selection criteria, data protection and Open Data. Last but not least, the fifth objective is to promote the use of ECLI for interoperability in (legal) IT applications and for case law citations in all legal and academic writings.
It is a positive development that the publication of court decisions is viewed as an essential ingredient of modern judicial transparency. Although some European countries are more advanced—quantitatively or qualitatively—than others, the trend is irreversible. The gradual development of a legal framework—as outlined in this paper—is encouraging for the (wide variety of) end-users, although more common ground would be welcome.
Because transparency or re-usability should never take precedence over the primary function of the judicial decision—often dealing with the most intimate and embarrassing details of the private lives of citizens[95]—data protection should be a cornerstone of any legal framework. For that reason publication on the internet can and should never be accepted as a means of official public pronouncement; if anonymised, the scrutiny of justice would be at stake, if not anonymised the interests of litigants would be violated. And although the jurisprudence of the European Court of Human Rights does not set alarm bells ringing yet, some of its recent judgments are worrisome: will the Court really accept internet publication as a means of public pronouncement, and if yes, how does that relate to art 8 of the Convention? Will the Court persevere in its opinion that the responsibility for openness of a governmental institution can be waived by the argument that relevant information can nowadays be made public by anybody?
The amended PSI Directive is very much welcomed by re-users of case law databases. Many improvements can be expected in the coming years, although two issues require attention. First, also with respect to reuse data protection should be the guiding principle, especially for those countries not yet having a very strict regime regarding anonymisation of court decisions. To have the best of both worlds, more drastic anonymisation should be preferred over limitations of reuse.
A second issue regards the problem of information overload. Data scientists and academics with a hard-core vision on judicial transparency make us believe there is no problem with just making everything available. By doing so—as experienced in many countries having such rigorous policies—the interests of average users—legal professionals looking for relevant cases and interested citizens alike—are disregarded completely. Without any policies assuring that the qualitative accessibility of the information holds pace with the quantitative growth of the repositories the net balance will be negative.
[*] Mr. dr. M van Opijnen is adviser legal infomatics at the Publications Office of the Netherlands (UBR|KOOP). This article is partly based on his PhD thesis On and In the Web. How the Accessibility of Case Law can be Improved (Op en in het web. Hoe de toegankelijkheid van rechterlijke uitspraken kan worden verbeterd), University of Amsterdam, Boom Juridische Uitgevers, 2014). The text was concluded in September 2016.
[1] (European Court of Human Rights, ECLI:CE:ECHR:1983:1208JUD000798477, 8 December 1983).
[2] Ibid [26]. Because the European Case Law Identifier (ECLI), discussed below (in Part 4), is intended as a neutral citation and suffices to find judgments online, case references in this article deviate from the Australian Guide to Legal Citation.
[3] (European Court of Human Rights, ECLI:CE:ECHR:1984:0222JUD000820978, 22 February 1984) (‘Sutter’).
[4] (European Court of Human Rights, ECLI:CE:ECHR:1997:1124JUD002060292, 24 November 1997).
[5] Moser v Austria (European Court of Human Rights, ECLI:CE:ECHR:2006:0921JUD001264302, 21 September 2006) led to a comparable conclusion.
[6] (European Court of Human Rights, ECLI:CE:ECHR:1983:1208JUD000827378, 8 December 1983) (‘Axen’).
[7] Ibid [32].
[8] (European Court of Human Rights, ECLI:CE:ECHR:2001:0710JUD002892395, 10 July 2001).
[9] Cf Shmushkovych v Ukraine (European Court of Human Rights, ECLI:CE:ECHR:2013:1114JUD000327610, 14 November 2013).
[10] (European Court of Human Rights, ECLI:CE:ECHR:2008:0117JUD001481002, 17 January 2008) confirmed in Malmberg v Russia (European Court of Human Rights, ECLI:CE:ECHR:2015:0115JUD002304505, 15 January 2015).
[11] (European Court of Human Rights, ECLI:CE:ECHR:2011:0301JUD001592405, 1 March 2011).
[12] Raza v Bulgaria (European Court of Human Rights, ECLI:CE:ECHR:2010:0211JUD003146508, 11 February 2010) [53]; Fazliyski v Bulgaria (European Court of Human Rights, ECLI:CE:ECHR:2013:0416JUD004090805, 16 April 2013) [69]; Nikolova v Bulgaria (European Court of Human Rights, ECLI:CE:ECHR:2013:1217JUD002068804, 17 December 2013) [85].
[13] (European Court of Human Rights, ECLI:CE:ECHR:2013:1217JUD002068804, 17 December 2013).
[14] Ibid [84].
[15] S Martens, ‘With Rechtspraak.nl the Judiciary is in a Better Position to Comply with the International Obligation Regarding the Public Pronouncement of Court Decisions’ (Met Rechtspraak.nl kan de rechterlijke macht beter voldoen aan internationale verplichting tot openbaarmaking vonissen) (2002) 1 Trema 1, also discussed in W Davids and W Thomassen, 'Publication of Judgments on the Internet' in S Breitenmoser, B Ehrenzeller and M Sassoli (eds), Human Rights, Democracy and the Rule of Law, Liber amicorum Luzius Wildhaber (Baden-Baden, Nomos, 2007) 1185.
[16] (European Court of Human Rights, ECLI:CE:ECHR:2005:1110JUD005239199, 10 November 2005) and (European Court of Human Rights, ECLI:CE:ECHR:2007:0515JUD005239199, 15 May 2007).
[17] (European Court of Human Rights, ECLI:CE:ECHR:2003:0701JUD002917895, 1 July 2003).
[18] Ramsahai v the Netherlands (European Court of Human Rights, ECLI:CE:ECHR:2005:1110JUD005239199, 10 November 2005) [422].
[19] Ramsahai v the Netherlands (European Court of Human Rights, ECLI:CE:ECHR:2007:0515JUD005239199, 15 May 2007) [354] (emphasis added).
[20] Jointly partly dissenting opinion of Jočienė and Popović to the Grand Chamber decision, 9.
[21] Council of Europe Committee of Ministers, Resolution Res(2002)58 On the publication and dissemination of the case-law of the European Court of Human Rights.
[22] Council of Europe Committee of Ministers, On the publication and dissemination in the member states of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights (Recommendation R(2002)13, ii).
[23] For an overview see Presentation of the European Court Reports (2016) Court of Justice of the European Union <http://curia.europa.eu/jcms/jcms/P_106308/en/> .
[24] See Info Curia – Case-law of the Court of Justice: Search Form (2016) Court of Justice of the European Union <http://curia.europa.eu/juris/recherche.jsf?language=en> .
[25] See Access to European Law (2016) EUR-Lex <http://eurlex.europa.eu> .
[26] (European Court of Justice, ECLI:EU:C:1982:335, 6 October 1982).
[27] European Parliament, The Role of the National Judge in the European Judicial System (2007/2027(INI), CELEX:52008IP0352, 9 July 2008). In deviation of the Australian Guide to Legal Citation most EU materials are (additionally) cited with their CELEX number, since this is currently the most reliable method to find documents on the EUR-Lex website (above n 21).
[28] For an overview: M van Opijnen, ‘Finding Case Law on a European Scale Current Practice and Future Work’, in E Francesconi, G Sartor and D Tiscornia (eds), Legal Knowledge and Information Systems JURIX 2008: The Twenty-First Annual Conference (IOS Press, 2008) 43. The project ‘EU-cases’ can be added, EUCases (2016) EUCases <http://www.eucases.eu> .
[29] [2007] OJ L 339/3 (‘Lugano Convention’).
[30] See JURE – Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters (2016) EUR-Lex <http://eur-lex.europa.eu/collection/n-law/jure.html> .
[31] [2003] OJ L 1/1, CELEX: 32003R0001.
[32] Although the (limited) database is online:
Application of Competition Rules by National Courts – Article 15(2) (2016) European Commission: Competition <http://ec.europa.eu/competition/elojade/antitrust/nationalcourts> .
[33] Davids and Thomassen, above n 15.
[34] Committee of Ministers of the Council of Europe, ‘The Selection, Processing, Presentation, and Archiving of Court Decisions in Legal Information Retrieval Systems’ (Recommendation No R(95)11, 11 September 1995).
[35] Ibid introductory text to para II of app II.
[36] Ibid s 5 of para II of app II.
[37] Ibid s 2-2 of para III of app II.
[38] Bundesgesetz über den Obersten Gerichtshof 1968 [Supreme Court of Justice Act] (Austria) 28 August 1968, ss 15, 15a.
[39] Bundesgesetz über den Obersten Gerichtshof 1968 [Supreme Court of Justice Act] (Austria) 28 August 1968, ss 14–1, 15–2.
[40] Gerichtsorganisationsgesetz 1896 [Organization of the Courts Act] (Austria) 27 November 1896, s 48a.
[41] Décret n° 2002-1064 du 7 août 2002 relatif au service public de la diffusion du droit par l'internet [Decree 2002-1064 on the Public Service of Dissemination of Law via the Internet] (France) 7 August 2002.
[42] ‘Cuya trascendencia e interés doctrinal justifique su difusión’ [Of which relevance and academic interest justify publication]. See Acuerdo de 7 de mayo de 1997, del Pleno del Consejo General del Poder Judicial, por el que se aprueba el Reglamento 1/1997, del Centro de Documentación Judicial, art 8.
[43] See Selectieregels voor de rechtspraak opgenomen in de externe gegevensbank voor de rechtspraak [Selection Rules for Case Law in the External Database of the Judiciary] (Belgium), 5 October 2007, NUMAC 2007009841. See also H van Bossuyt and B de Groote, ‘Free Access to Law and Judicial Decisions: Solutions and Challenges from a Belgian Viewpoint’, in G Peruginelli and M Ragona (eds), Law via the Internet. Free Access, Quality of Information, Effectiveness of Rights (Florence, 30/31-10-2008) (European Press Academic Publishing, 2008) 371.
[44] Selection Rules, above n 43.
[45] De Rechtspraak, Zoeken in uitspraken <http://uitspraken.rechtspraak.nl> .
[46] Raad voor de rechtspraak/ [Council for the Judiciary], /Besluit selectiecriteria uitsprakendatabank Rechtspraak.nl 2012 /[Decision on Selection Criteria case law database Rechtspraak.nl 2012] (Netherlands), 2012, Rechtspraak.nl <https://www.rechtspraak.nl/Uitspraken-en-nieuws/Uitspraken/Paginas/Selectiecriteria.aspx>
[47] Lugano Convention [2007] OJ L 339/3.
[48] Закон за съдебната власт [Judiciary System Act 2007] (Bulgaria).
[49] Закон за управување со движењето на предметите во судовите [Court Case Management Act] (Former Yugoslav Republic of Macedonia).
[50] In criminal cases other terms apply.
[51] Lietuvos Respublikos teismų įstatymo [The Republic of Lithuania Court Act] (Lithuania).
[52] With more detailed provisions in a decision of the Council for the Judiciary (Nacionalinė teismų administracija). See Teismų tarybos 2005 m. rugsėjo 9 d. nutarimu Nr. 13P-378” Change to: “/Nutarimas dėl teismų sprendimų, nuosprendžių, nutarimų ir nutarčių skelbimo internete tvarkos patvirtinimo/ [Ruling on publication of judgments, sentences and orders on the Internet] (Lithuania)
[53] Avaliku teabe seadus [Public Information Act] (Estonia).
[54] Due to the discretionary powers given to the judge based on Tsiviilkohtumenetluse seadustik [Code of Civil Procedure] (Estonia), art 462.
[55] Kriminaalmenetluse seadustik [Code of Criminal Procedure] (Estonia) art 408–1.
[56] Federal Law No. 262-FZ of 22 December 2008 on the Provision of Access to Information on the Activities of Courts in the Russian Federation (Russia) art 15.
[57] Committee of Ministers of the Council of Europe, ‘The Publication and Dissemination of the Case-law of the European Court of Human Rights’ (Resolution Res(2002)58, 18 December 2002).
[58] As of September 2016. Until June 2012 there were three levels (high, medium and low importance) with then a distribution of 7%, 11% and 82%. As can be learned from comparing the two distributions the Case Reports documents have been in category 1 before.
[59] See, eg, A Mowbray, P Chung, and G Greenleaf, ‘Free-access Case Law Enhancements for Australian Law’, in G Peruginelli and M Ragona (eds), Law via the Internet. Free Access, Quality of Information, Effectiveness of Rights (Florence, 30/31-10-2008) (European Press Academic Publishing, 2009) 285–98; J H Fowler and S Jeon, ‘The Authority of Supreme Court precedent’ (2008) 30 Social Networks 16.
[60] M van Opijnen, ‘A Model for Automated Rating of Case Law’ (Paper presented at Fourteenth International Conference on Articifial Intelligence and Law, Rome, 13 June 2013) 140.
[61] Davids and Thomassen, above n 15, 1194.
[62] Registry of the European Court of Human Rights, Rules of Court (July 2006) <http://www.echr.coe.int/Documents/Library_2006_RoC_ENG.pdf> .
[63] The very detailed anonymization rules in the Netherlands are an exception. See de Rechtspraak, Anonimiseringsrichtlijnen <http://rechtspraak.nl/Uitspraken-en-Registers/Uitspraken/Anonimiseringsrichtlijnen/Pages/default.aspx> .
[64] In Belgium, Wet tot oprichting van het informatiesysteem Phenix [Act on the Development of the Phenix Information System 2005] (Belgium), art 9 imposes the drafting of a Royal Decree regarding both anonymisation guidelines and a complaints procedure, but it has not been drafted yet.
[65] Federal Law No. 262-FZ of 22 December 2008 on the Provision of Access to Information on the Activities of Courts in the Russian Federation (Russia), art 15 para 3.
[66] Kriminaalmenetluse seadustik [Code of Criminal Procedure] (Estonia) art 408.
[67] Registry of the European Court of Human Rights, Rules of Court (14 November 2016) <http://www.echr.coe.int/Documents/Rules_Court_ENG.pdf> .
[68] Rules of Procedure of the Court of Justice of the European Communities of 19 June 1991 [1991] OJ L 176/7, CELEX:31991Q0704(02).
[69] Rules of Procedure of the Court of Justice [2012] OJ C 337/1, CELEX:32012Q1106(01).
[70] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L 119/1, CELEX:32016R0679.
[71] Cabinet Office, UK Government, G8 Open Data Charter and Technical Annex (18 June 2013) <http://www.gov.uk/government/publications/open-data-charter/g8-open-data-charter-and-technical-annex> .
[72] Permanent Bureau, Hague Conference on Private International Law, Accessing the Content of Foreign Law and the Need for the Development of a Global Instrument in this Area a Possible Way Ahead, Preliminary Document No 11 A (March 2009) <http://www.hcch.net/upload/wop/genaff_pd11a2009e.pdf> .
[73] [2003] OJ L 345/90, CELEX:32003L0098.
[74] [2013] OJ L 175/1, CELEX:32013L0037.
[75] European Data Protection Supervisor, Opinion on the 'Open-Data Package' of the European Commission including a Proposal for a Directive amending Directive 2003/98/EC on Re-use of Public Sector Information (PSI), a Communication on Open Data and Commission Decision 2011/833/EU on the Reuse of Commission Documents [2012] OJ C 335, CELEX:52012XX1101(04).
[76] Article 29 Data Protection Working Party, Open Data and Public Sector Iinformation ('PSI') Reuse, Opinion 06/2013 (5 June 2013)
[77] See, eg, Apata, R v Secretary of State for the Home Department [2016] EWVA Civ 802.
[78] According to this protocol a small text file (‘robots.txt’) is placed on a webserver, specifying which web crawlers are allowed to index which data. Although the protocol is generally observed, it can be ignored easily.
[79] European Commission, Guidelines on recommended standard licences, datasets and charging for the reuse of documents [2014] OJ C 240/1, CELEX:52014XC0724(01).
[80] Verwaltungsgericht Karlsruhe, 3 K 2289/09, 2 March 2011.
[81] Verwaltungsgerichtshof Baden-Württemberg, 10 S 281/12, 7 May 2013.
[82] (Bundesverwaltungsgericht, ECLI:DE:BVerwG:2014:290114B7C13.13.0, 29 January 2014).
[83] Bundesministerium der Justiz und für Verbraucherschutz, Rechtsprechung im Internet <http://www.rechtsprechung-im-internet.de> .
[84] T Podolski, ‘Juris: Lexxpress gegen BVerfG: Sieg über mächtige Gegner’, Legal Tribune (online), 10 February 2015 <http://www.lto.de/persistent/a_id/16771/> .
[86] Council of the European Union, Council Conclusions Inviting the Introduction of the European Case Law Identifier (ECLI) and a Minimum Set of Uniform Metadata for Case Law [2011] OJ C 127/1, CELEX:52011XG0429(01).
[87] See also M van Opijnen, ‘European Case Law Identifier: indispensable asset for legal information retrieval’ in M A Biasiotti and S Faro (eds), From Information to Knowledge. Online Access to Legal Information: Methodologies, Trends and Perspectives (IOS Press, 2011) 91.
[88] The ECLI of the CJEU is available at the Court’s website as well as on EUR-Lex.
[89] M van Opijnen and A Ivantchev, ‘Implementation of ECLI State of Play’ in A Rotolo (ed), Legal Knowledge and Information Systems JURIX 2015: The Twenty-Eighth Annual Conference, Braga, 10/11-12-2015 (IOS Press, 2015) 165.
[90] European Justice, European Case Law Identifier (4 May 2016) <https://e-justice.europa.eu/content_european_case_law_identifier_ecli-175-en.do>.
[91] European Justice, ECLI Search Engine (4 May 2016) <https://e-justice.europa.eu/content_ecli_search_engine-430-en.do>.
[92] Association of the Councils of the State and Supreme Administrative Jurisdictions of the European Union i.n.pa., Home Page <http://www.aca-europe.eu/index.php/en/jurifast-en> .
[93] J C van Haersolte, ‘A Wheel Within a Wheel: the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union’ (2010) 3 Review of European Administrative Law 1, 131.
[94] Building on ECLI, Building on ECLI <http://www.bo-ecli.eu> , the project is co-funded by the Justice Programme of the European Union (2014–2020).
[95] See, eg, P A Winn, ‘Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information’ (2004) 99 Washington Law Review 307; I Currie, ‘Problems of Privacy in Online Court Materials’ in G Peruginelli and M Ragona (eds), Law via the Internet. Free Access, Quality of Information, Effectiveness of Rights, Florence, 30/31-10-2008 (European Press Academic Publishing, 2008) 73.
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