The “Legislation” dataset doesn’t include case law. And yet that’s an important aspect of the law, especially in common law countries,
Moreover, court judgments are owned by private entities in a lot of countries. For instance in the UK (that ranks 1st in the legislation dataset): “an important part of English law is entirely owned by a private charity, the Incorporated Council of Law Reporting” ( A Wikipedia of English law – Open Knowledge Foundation blog ).
“Greater access to court files for third persons is not only recommended, it is necessary in view of the above mentioned problems ranging from some inconveniences to infringements of procedural rights, acknowledged as a fundamental human rights (i.e. right to fair trial and equality of arms).”
“Certain aspects of (in)accessibility of Court files cause serious legal problems, and may, arguably, even violate internationally recognised fundamental human rights, such as equality of arms.”
“It can be argued that, in a case where one party has access to a certain document to which she also refers, but to which the adversary party does not have access, the right to a fair trial is violated.”
The European Court of Human Rights also found that there’s a violation of the article 6 (fair trial) when “the full texts of their judgments openly available to the public in their registries”: Werner v. Austria, Szucs v. Austria, Sunday Times v. United Kingdom 1979.
At the international level, the Article 14 of the International Covenant on Civil and Political Rights states that: “any judgment rendered in a criminal case or in a suit at law shall be made public”.
How could we improve access to court documents? Would it be possible to create a new dataset or to include it as a new criterion of the “Legislation” one?
Having it here in the forum helps to the Index team to learn about the topic, and maybe even consider it to the next Index. Do notice, that the Index is limited in the new datasets it can add every year, so we can’t guarantee we can add it this year.
I think that all, or most of, court decisions are already available in Open Data in Bulgaria, Lithuania, Estonia. And maybe also Belgium, Spain, Romania, and Austria. (On the other hand in France, decisions from the supreme courts are available, but for the appeal courts and lower juridictions, only 1% ara available. The other 99% are sold by the courts to private publishers).
For instance, the UK is among the worst in the EU (page 20), whereas case-law is especially important in a common law country. On the other hand, the UK ranks pretty well in the “National Laws” category: http://global.survey.okfn.org/dataset/law
The EU study includes a questionnaire (on page 154) that could be reused to assess openness of non-European countries.
One year after, I still think access to case-law should be included in the Open Data Index, for instance as a new category with “National Laws” and “Draft Legislation”, and this EU study may help because it provides a great analytic framework to evaluate the open data policy regarding court decisions.
What do you think? How could we add case-law to the 2017 Index?
“Given the significance of case law in the UK’s common law legal system, the inaccessibility of judgments for entrepreneurial reuse seriously inhibits the development of a competitive legal education technology sector in the UK.”
