Publish lower court decisions online (CZ0030)

What is the public problem that the commitment will address? This is an ongoing commitment, which was included in the Fourth Action Plan as point 4.2.2, which responds to the fact that the availability of lower court decisions is not at a high level in the Czech Republic. Neither the public nor the courts have access to the database of court decisions. By publishing all court decisions in the necessary anonymized form, their uniformity will be strengthened and the transparency of court decisions increased. Only the three highest courts currently publish their decisions. Lower courts will start publishing their final decisions in a new database. In addition to the efficiency of the new database, emphasis will be placed on maintaining the security of the processed information.

What is the commitment? Further support for the publication (access) of the wording of final substantive decisions of high, regional, and district courts in electronic form (online). Increasing the number of categories of published decisions. Evaluation of the set process.

How will the commitment contribute to solving the public problem? The publication of lower court decisions will strengthen and promote access to justice and increase the transparency of judicial decision-making. Although there is no system of precedents in the Czech Republic, the publication of court decisions will strengthen the principle of predictability of court decisions and legitimate expectations.

Why is this commitment relevant to OGP values? The publication of lower court decisions has a clear link to the value of access to information, as information on the content of court decisions is published and its availability is improved since court decisions are published online without further obstacles. The commitment also has an indirect relationship to the value of accountability, as the public has the opportunity to compare similar decisions in similar cases before different courts and with different judges. The commitment is also linked to the value of technology and innovation, as the publication of court decisions required the development of a special application for anonymization of data, which will need to be further innovated and developed based on an evaluation of its functioning. Page 10 (of 24)

Additional information  Commitment budget: The commitment requires unspecified budgetary costs for the staff who perform the publication of decisions and for the development of an information system for anonymization and publication of decisions online. The development and maintenance of the system for five years is estimated at approximately 2–3 million CZK.  Link to other government programmes: o Digitální Česko – Implementation plans o The Ministry Strategy for the Development of e-Justice for 2016 to 2020 (the goal will also be included in the follow-up strategies for the following years)

Milestone activity with a verifiable deliverable Start date: End date: Evaluation of the functioning of publication of decisions (in agenda C) 1 January 2021 1 December 2021 Selection of other categories of decisions 1 December 2021 31 March 2022 Publication of other categories of decisions 1 January 2021 31 December 2022

Action Plan Review

Commitment 1: Publication of lower court documents

Commitment #1: Publication of lower court decisions

(Ministry of Justice)

For a complete description of the commitment see commitment #1 in the action plan.

Context and objectives

This commitment, to publish the final decisions of lower courts, continues and builds on the same activities from Commitment 4.2.2 in the previous action plan which had only limited implementation. [1]

Under the previous action plan, the Ministry of Justice developed and tested the anonymisation software for lower (district) courts to use, and since December 2020 started to publish final district court decisions on civil law issues. [2] The commitment in this action plan seeks to evaluate the functioning of the process to anonymise and publish court decisions so far, and then expand the publication of different categories of court decisions beyond civil law issues.

Currently, the Constitutional Court, Supreme Administrative Court and Supreme Court publish anonymised decisions on their specific online databases which are publicly accessible. Under the last action plan, district courts were also due to start publishing anonymised decisions, but this was not completed within the implementation period. There are 86 district courts in the Czech Republic.

A recent EU report acknowledged that efficiency in court proceedings differs from region to region in the country, and that proceedings of administrative cases in particular remain lengthy. [3] However, this commitment is directly linked to the Departmental eJustice Development Strategy for 2016-2020, which includes a specific target on providing information on court decisions. [4]

Looking at notable issues in the judiciary more broadly, accusations in recent years of some politically-connected or senior political figures interfering in court decisions and trying to influence judges have caught public attention relating to the independence and functioning of the institution. [5]

Although the government proposed the continuation of this reform during the development of this action plan, the publication of court decisions is also widely supported by civil society groups. [6]

Potential for results: Substantial

This commitment has the potential to deliver substantial results in making lower court decisions transparent and available to the public. Civil society groups agreed that there could be substantial results in terms of transparency, but noted the slow pace of the reforms up until now. [7]

At the time of writing this report (March 2021), the Ministry of Justice database contains more than 22,000 decisions from lower and regional courts. [8] The Ministry expects to have 200,000 decisions published in the database even without expanding to new categories of decisions beyond civil law. [9] This would mark an expansion of easily accessible information into the public domain on lower court decisions. The EU 2020 Justice Scoreboard scores the Czech Republic 6.5/9 for the level of online public access to published judgements (for all courts), because they are only partially available online. [10] Increased access to district court decisions would increase this score by the end of the action plan implementation period.

However, the types (‘agenda’) of cases that would be published has a large bearing on the potential for results. According to an official in the Ministry of Justice, in 2019, the civil agenda formed 70-71 per cent of the Czech judiciary’s workload, the criminal agenda 25 per cent and the administrative agenda 4-5 per cent. [11] Therefore, the planned expansion into other areas beyond the civil agenda needs to include cases related to the criminal agenda and administrative agenda. A Ministry of Justice representative explained that the criteria for which categories to prioritise is still open, although one possible avenue could be those cases which have added value for the public or which include substantive reasoning (as opposed to decisions such as payment orders in the civil agenda). [12]

Ensuring online access to decisions also helps citizens understand the application of the law and can contribute to consistency in decisions across courts. The government argues that access to information will strengthen the principle of predictability and expectations from court decisions. [13] Non-government stakeholders have said that implementation could improve the independence of the judiciary and the quality of decisions in labour law and private law disputes. [14] The independence of the Czech courts is perceived as ‘fairly or very good’ by 56 per cent of the general public – an overall increase in recent years. [15]

Opportunities, challenges and recommendations during implementation

Representatives from the Ministry of Justice acknowledged that implementation of this commitment has had some resistance from courts themselves due to the additional bureaucracy needed to publish anonymised judgements, as well as from technical barriers due to older hardware and software used in some courts. [16]

Each of the 86 district courts faces different obstacles and barriers in terms of administrative capacities or software. The Ministry will need to support all district courts to use the new anonymisation software and do a manual check of decisions before publishing them online. This support may need to take the form of increased funding for human resources, training and/or provision of hardware and software, depending on the needs of each district court.

As the Czech courts begin the process of publishing new court cases beyond civil law cases, there is an opportunity to engage the public, media and civil society in establishing which agendas should be prioritised for publishing because of their added value to the public. Civil society has identified cases from the criminal agenda in general, as key types of cases to publish. [17] This could make implementation achieve more impactful results by publishing the kinds of information that key stakeholders (such as the media) are interested in.

Other countries have implemented similar mechanisms for public court decisions. In the OGP context, the Czech Republic could learn from implementation of similar activities in Slovakia, where, for example, raising awareness inside the administration of courts could have further improved implementation. [18]

Results Report

Commitment 1. Publication of Lower Court Decisions

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Substantial

● Completion: Complete

● Did it open government? Major

Commitment 1. Justice Transparency

Ministry of Justice

Context and Objectives

The commitment on judicial transparency, graded as promising in the Action Plan Review, aimed to increase transparency of judicial decision-making and access to justice through the publication of the judicial decisions of district, regional, and high courts in an online database. The implementing authority also sought to increase the number of categories of published decisions and evaluate the publication process. The commitment was directly linked to the Departmental eJustice Development Strategy for 2016–2020. [1] Before the reform, only decisions of the three highest courts in the country were published online; decisions of lower courts were not publicly accessible. The government proposed the continuation of this reform following the previous action plan. [2] The publication of court decisions was supported by civil society as a new step toward greater transparency of judicial decision-making. [3]

The promised reform was seen as an opportunity to deliver substantial results in making judicial decisions transparent and available to the public. However, the CSOs pointed to the slow pace of the reform in the past as a barrier, and the Ministry of Justice mentioned technical barriers as potential obstacles to the reform on a larger scale. [4]

Did It Open Government? Major

The results achieved during the implementation period were a step forward for government openness in judicial transparency but remained limited in scope. The number of published decisions of the district, regional, and high courts increased beyond expectations. At the adoption of the Action Plan Review in March 2021, the Ministry of Justice expected to reach 200,000 published decisions by the end of the implementation period. This indicator was met in the course of 2022 (more than 270,000 decisions in August 2022) [5] and by the time of this writing (March 2023), the number of published decisions of the district, regional, and high courts surpassed 350,000, mostly from the civil agenda. [6]

The major boost for the commitment was anchoring, in the Act on Courts and Judges, a legal obligation of the district, regional, and high courts to publish their decisions. [7] The ministerial decree designates the types of cases that courts are obligated to publish in the database run by the Ministry of Justice. [8] The database is supported by a customized anonymization application that has been implemented at the courts and has been running in a pilot stage. [9] The combination of the new legal obligation and the technical possibilities of anonymization has kicked off the publication process of court decisions that has long been criticized as slow [10] by the expert public. A representative from civil society raised a concern that the rules around anonymization leave room for diverse techniques to be used at the discretion of individual courts. [11] The decision of the Ministry of Justice to limit the scope of the publication obligation to court decisions in civil matters and crimes of bribery has further limited the impact of the commitment. [12]

Despite a significant number of published decisions, the reform has so far had only a moderate impact on the indicators measuring judicial transparency and public perception of judicial independence. The EU Justice Scoreboard indicator of online access to published decisions has moved up only slightly—from 6.5/9 in 2000 to 6.9/9 in 2021. [13] The indicator reflects the percentage of civil/commercial, administrative, and criminal cases that are made available to the public. The level of perceived judicial independence by the general population in the Czech Republic has remained almost unchanged in the past two years. In 2022, 57 percent of the general population perceived Czech courts as “fairly or very good” compared to 56 percent in 2020. [14]

As of 1 July 2022, the district, regional, and high courts are obliged to publish selected final decisions in the publicly available database managed by the Ministry of Justice. This legislative step has sent a clear signal to the courts and removed any doubts about the direction of the reform. The development of the customized anonymization application and adherence to technical and training support for courts in publishing decisions have also contributed to the success of the reform. However, the courts have not received dedicated budgetary and personal support to perform their new functions, and technical constraints persist. According to government officials, anonymization is still in the piloting stage and is happening in two steps: (1) the decision is anonymized by the application and (2) the decision is reviewed by court personnel. Public officials acknowledge that technical and budgetary constraints limit the types and number of decisions that can be made public. [15]

The reform is evaluated positively by academia and civil society provided that the Ministry continues its efforts to extend the database to more types of court decisions. [16] The features CSOs value are the increased transparency of judicial decisions, the number of newly published decisions, and the quality and searchability of the new database. Still, civil society respondents suggest a more ambitious approach and the publication of more types of judicial decisions. [17] Compared to 350,000 published civil cases, only 65 cases in the criminal agenda were published. Engagement with the expert public could also be improved, considering that the adoption of the ministerial decree specifying the types of decisions to be published was not accompanied by a meaningful public debate involving courts, CSOs, academia, media, or other interested stakeholders. [18] Further, civil society noted that the decision to anonymize authorities and entities set up by the state in the same way private individuals are anonymized was constraining. It also found that excluding decisions adopted in summary procedures [19] from publication was constraining. An expert from academia has alerted the public to the existence of parallel databases of published court decisions that are both run by the Ministry of Justice. [20] One database contains court decisions with jurisprudential value, while the new database contains all decisions of district, regional, and high courts in selected agendas. In addition, the highest courts and administrative courts manage their own court-decision databases, and none of these databases are interconnected. [21] The Supreme Audit Office has recently criticized the Ministry for slow progress in the computerization of the judiciary, ineffective use of information systems in the department, and uncoordinated management of the 2016–2020 eJustice strategy. [22]

Despite the limited scope available to the public regarding civil agenda and decisions related to crimes of bribery, the progress in the publication of court judgments in the past two years is substantial. Over 350,000 court decisions are currently publicly available, and the public can benefit from a new, well-functioning judicial database. In the last 12 months (since April 2023), the database has received 50,000 visitors. [23] Companies specializing in providing services to legal professionals have already approached the Ministry of Justice with a request to cooperate in sharing the data from the database. [24]

Looking Ahead

The commitment to publish lower court decisions has been on the Czech OGP agenda since the fourth action plan (2018–2020). In the previous action plan, preparatory work was done in terms of technical solutions for the anonymization of court decisions and the management of the database, but the commitment was not implemented due to persisting technical challenges. [25] The commitment has not been carried forward under the upcoming 2022–2024 action plan despite room for further developments. However, the Ministry of Justice plans to continue strengthening the judicial transparency and publication of lower courts’ decisions outside the OGP framework. [26]

In the currently reviewed action plan, developments are promising for a more substantial reform in judicial transparency, provided the reform is supported by budgetary and capacity reinforcements. The overall goal of judicial transparency is to publish all court decisions in a quality, accessible, searchable form and establish an automated and effective anonymization mechanism to minimize administrative burden for courts. The Ministry of Justice should address technical challenges (e.g., modernizing courts’ technical equipment, developing software solutions for automating the anonymization and publication of court decisions, and ensuring that anonymization is carried out uniformly across all courts) and proceed more efficiently in using information systems in the judiciary. [27]