MACEDONIA, HOST OF THE FIRST INTERNATIONAL CONFERENCE OF THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES - COUNCIL OF EUROPE;
1-4, June, Skopje and Ohrid
‘‘The Role of Judges in Enforcement of Court Decisions – Criminal, Civil and Administrative ‘‘
Judge Aneta Arnaudovska
Within the framework of the Macedonian Chairmanship of the Council of Europe, the Republic of Macedonia hosted its first international conference of Justices in the Supreme Courts of member states of the Council of Europe – members of the working group of the Consultative Council of European Judges (CCJE). The Conference, which took place from 1st to 4th June, 2010, was held at a very significant time when the Republic of Macedonia is taking steps for major reforms of the judiciary. The hosts of this exceptionally important conference were: the Ministry of Justice of the Republic of Macedonia, the Supreme Court of the Republic of Macedonia, the Judicial Council of the Republic of Macedonia and the Academy for Training of Judges and Public Prosecutors, thus expressing the significant role that the Ministry of Justice and judicial institutions in the Republic of Macedonia play in the process of Euro-integration and establishing an independent and efficient judiciary accessible to all. This conference was preceded by previous work of the working group involved in the drafting of Opinion no.13 dealing with “The Role of Judes in the Enforcement of Judical Decisions - Criminal, Civil and Administrative. The same topic was also the subject matter of this Conference, focusing not so much on the enforcement procedure, as much as on the role of judges in the enforcement procedure, the relationship with other actors involved in the process and their role in advancing and protecting human rights, as well as international enforcement of the decisions.
This important international event was attended by judges from European member states of the Council of Europe and the European Union (EU), coming from legal systems with their own legal tradition and culture. In a range of judgments, the European Court of Human Rights (ECtHR) has emphasized the great importance of enforcement. In fact, the lack of enforcement or delay thereof means lack of administration of justice, thus obliging states to implement relevant mechanisms and protect human rights by creating an effective, efficient and economical system of enforcement of judicial decisions. The program was conceived as a combination of presentations of domestic and foreign presenters in a given field, which shed light on how all this is transposed into the national legislation and practice in various legal systems of the member states of the Council of Europe.
Notwithstanding the different legal systems, especially in terms of the main division between continental and common law countries, where the esteemed guests from the CCJE come from, and the further division of enforcement systems into public, private and mixed, Opinion no.13 and the Conference did not have as a goal to support one unified and perfect system; rather, the goal was to sent the message that regardless of the specific nature that stems from differing legal history, tradition and culture, these systems should function in accordance with the fundamental standards incorporated in the Council of Europe and reflected in the Court’s practice. In this context, the Conference combined presentation of domestic and guest presenters, i.e. members of the working group of the CCJE, in different fields of enforcement, and presented the comparative experiences of Slovenia, Germany ad Portugal as continental law countries, and Ireland as a Commonwealth country.
The enforcement of court decisions is an essential element of running a State based on the rule of law. Article 6 of the European Convention of Human Rights deals with the enforcement procedure in greater detail. The procedure does not end with the judgement, it is essential that this judgment be efficiently enforced.
In one of its key judgments, Hornesby vs. Greece: 1997, The Court decided that enforcement is an integral part of the fundamental human right to a fair trial within a reasonable time, in line with Article 6 of the Convention. From then on, the Court continues to reaffirm the viewpoint that the state has a duty to ensure that all citizens who receive a final and binding court judgment have the right to enforcement, and that it is illusive to speak about the right of citizens to have access to the courts without it. Enforcement of decisions, more precisely the enforcement of the judgments from Strasbourg, is a serious challenge that creates problems on a national and international level. In terms of legal instruments that foster the efficiency and equity of justice, enforcement is on the top of the list of priorities. The recommendations are issued a view of assisting member states by providing guidelines for creating such a system. As a result of these recommendations, significant developments have taken place in the Court’s practice regarding the definition of violations of the enforcement procedure, which have been included as violation of Article 6 of the ECHR. International legal frameworks and legal instruments have been created to enable states to set up and foster an enforcement system that is efficient, effective and economical. The system of enforcement of court decisions and other judicial or non-judicial enforceable title undertakes all necessary measures to be a part of the equitable, efficient and accessible judicial system.
It is an obligation of the state to introduce standards that will ensure access to information regarding the procedure, its dissemination to the executive bodies on the whole territory of the sate, clear and understandable for the parties in dispute legislation that covers the procedure, access to all bodies that are included in the procedure (police, experts, child protection services), information to the parties about costs, the consequences of taking or failure to take certain actions, etc. Furthermore, national legislation must ensure a clear definition of an enforceable title, making sure it is clear, understandable and enforceable, without room for erroneous interpretation by agents about their status, rights and obligations, costs of enforcement; it has to ensure an effective access to justice, with a time frame for enforcement that is reasonable yet clear and precise depending on the case; it should provide for disciplinary actions and obligations for establishing European standards of quality and criteria for assessment of the efficiency of the enforcement procedures and supervision.
International documents require of states to define and regulate enforcement with clear legal norms that will clearly define the competencies of the bodies responsible for enforcement. The rights and the obligations of the parties and third parties should be given in detail in order to ensure legal security and transparency; they should make the process predictable and accessible to the parties, provide for mechanisms for preventing the abuse of the enforcement process, and reduce delays only to those cases stipulated by law, when it is also subject to judicial control. It is necessary to strike a balance with the rights of the parties, having in mind the safeguards provided for in Articles 3, 6 и 8 of the ECHR, in particular the protection of private and family life. When the rights of children are at stake in the enforcement procedure, the best interest of the children must be taken into consideration, in line with national and international legislation. Transparency is important, as well as balancing data protection and international cooperation in the enforcement of foreign judgments.
Of the international documents adopted by the Council of Europe, the most important ones that have been translated into Macedonian and are posted on the web page of the Academy (www.jpacademy.gov.mk) are the following:
The key recommendations that regulate enforcement of decision of civil and administrative cases are:
• Recommendation Rec(2003)16 of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law;
• Recommendation Rec(2003)17 of the Committee of Ministers to member states on enforcement;
• Guidelines of the European Commission for the Efficiency at the Council of Europe (CEPEJ) for a better implementation of the existing Council of Europe Recommendations
The most important international documents related to enforcement in the criminal field are:
• Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
• European Convention on Extradition and its Protocols from 1975 and 1978;
• European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders;
• European Convention on International Validity of Criminal Judgments
• Convention on the Transfer of Sentenced Persons and its Additional Protocol from 1997;
• Recommendation Rec(2006)2 of the Committee of Ministers to member states
on the European Prison Rules
The following referent documents that are very important for this subject matter can be found on the web page of the CCJE (www.coe.int/ccje) in the English and French language:
• The Interlaken Declaration at High Level Conference on the Future of the European Court of Human Rights;
• Report European Judicial Systems (2009 Edition), Chapter 13;
• Enforcement of Court decisions in Europe (CEPEJ Studies No.8);
• 3rd Annual Report 2009 on the supervision of the enforcement of judgments of the European Court of Human Rights.
Other referent materials include Recommendation (2003) 14 on the interoperability of information systems in the justice sector and Recommendation (2003)15 of the Committee of Ministers to member states on archiving of electronic documents in the legal sector, in view of the importance of computer technology for improving the efficiency of the enforcement process and relevant instruments for case studies.
The acknowledgement that enforcement of decisions is a serious challenge that creates problems on a national and international level is reflected also in the enforcement of judgments of the ECtHR – and this is confirmed by the case law of the court. The above listed recommendations have been adopted with a view of helping member states gain guidelines for creating an efficient system, as a result of which there has been substantial developments in the court practice regarding the definition of violation of the enforcement procedure, which are included as violation of Article 6 of ECHR. International legal frameworks are being established, and instruments that will enable states to create and foster an enforcement system that is efficient, effective and economical.
Several judgments of the ECtHR that are very relevant for enforcement:
Hornsby vs. Greece judgment of 19 March 1997, no. 18357/91
The Hornsbies were British citizens, who filed a request before the authorities of the island of Rhodes, where they lived, for opening a foreign language school. The administrative education authorities rejected them three times in the course of 1988, under the explanation that such a license cannot be issued to foreign nationals. Ultimately, the Administrative Court reached a judgment, and found that in accordance with the European Court of Justice, citizens of an EU member state can not be denied such a request. Up until 1992, the applicant filed an application seeking damages. The Court found that the refusal of the administrative authorities to enforce the decision of the Supreme Administrative Court is a violation of Article 6 of the ECHR, on the count that the administrative bodies unlawfully failed to enforce a final judgment. The national legal system must ensure that decisions do not remain unenforced to the detriment of one party. If Article 6 is interpreted restrictively, only as the right to access to court, and not administrative bodies, as was the case of the defense, then the procedure would lead to situations which are incompatible with the rule of law. Administrative bodies are an element of the state and their interest has to be aligned with the need of proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose.
This judgment launched a dynamic chapter of case law, by transferring the concept of the right to a court to administrative procedures.
Burdov vs. Russia no. 2 – judgment of 15 January, 2004 no. 33509/04
The applicant took part in emergency operations at the site of the Chernobyl nuclear plant and as a result, the applicant was to be awarded compensation. Five judgments were delivered, all with a different period of enforcement. The Court found that the delays in the failure of enforcement of three of the domestic judgments, passed in a period from one to three years, represents a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, about the protection of possessions. It also found a violation of Article 13 on the count of lack of effective domestic remedies, either preventive or compensatory regarding the failure to enforce or delayed enforcement of the decisions taken against states. The Court decided that in accordance with Article 44 of the ECHR, the state must deliver an effective legal remedy that will ensure adequate and sufficient compensation due to failure to enforce or delaying the enforcement of domestic judgments. In this case, the Court applied the pilot judgement procedure, due to large number of cases of this kind in Russia and the urgent need of the citizens to ensure themselves against failure of enforcement with an effective and fast legal remedy.
Akashev vs. Russia no. 30616/05
The applicant was awarded a debenture, which was not enforced immediately, but after some time during which the case was sent from one body to another. The Court held that the person who was awarded a judgment delivered against the state cannot be expected to file for a special enforcement procedure. In such a case, the state must undertake all necessary measures to enforce the decision, and if one body is not competent, the decision must be sent to the competent organ. This is a complex case, with possible overlap of enforcement and uncertainly about which body is in fact responsible for its enforcement. Although the period for the enforcement was only one year, the Court decided that by failure to undertake the initiative to act on the decision during this period of time, the State violated Article 6 and Article 1 of Protocol 1.
Papon v. France (Judgment of July 25, 2002, No. 54210/00);
At the moment of the delivery of the judgment, Papon was in custody in Paris. In a judgment of 2 April, 1998, the Court pronounced him guilty for aiding and abetting the unlawful arrest and false imprisonment of Jews who had been deported to Auschwitz in convoys in July, August and October 1942 and January 1944, offences that constituted crimes against humanity. Mr. Papon was sentenced to ten years imprisonment and was stripped of his civil, civil and family rights for ten years. On 3 April, the applicant appealed on points of law against that judgment, and on 17 September 1999 he applied to be exempted from the obligation to surrender to custody before the hearing in the Court of Cassation, but his application was refused. That obligation was laid down at the time in Article 583 of the Code of Criminal Procedure, which stated that convicted persons who had not been granted such an exemption and failed to surrender to custody forfeited their right to appeal on points of law. Having been refused an exemption, Mr. Papon did not surrender to custody and fled to Switzerland. The Swiss authorities ordered him to leave the country. On 21 October 1999 the Criminal Division of the Court of Cassation declared that the applicant had forfeited his right to appeal on points of law against the Assize Court’s judgment of 2 April, 1998. Relying on Article 6 Para. 1, the applicant complained that he had not access to the Court of Cassation, since he had forfeited the right on points of law. He further submitted that, as a result of his forfeiture of that right, he had been deprived of the right to appeal in criminal matters, as guaranteed by Article 2 of Protocol No.7 to the Convention. Relying on its past cases and noting that the importance of the review carried out by the Court of Cassation in criminal matters, especially for those sentenced to long-term imprisonment, found that the forfeiture of the right of appeal on points of law was a particularly seven sanction affecting the right of access to court guaranteed by Article 6 of the Convention. Respect for the presumption of innocence, combined with the suspensive effect of the appeal on points of law, militated against obliging a defendant at liberty to surrender to custody, however short a time his incarceration might last. Furthermore, the possibility of requesting an exemption from the obligation to surrender to custody did not, in the Court’s opinion, cure the disproportionality of the sanction. The Court also determined that the authorities had other means at their disposal whereby they could take a convicted person into custody, whether before or after the appeals on the points of law were heard.
Lastly, the Court stated that, while it was fully aware of the extremely serious nature of the offences of which the applicant was accused, the fact that he had been prosecuted and convicted on charges of aiding and abetting crimes against humanity did not deprive him of the protection of his convention rights and freedoms.
In conclusion, regards being had to all the circumstances of the case, the applicant had suffered an excessive restriction of this right of access to a court, and therefore of his right to a fair trial. The Court pointed out that it had already had occasion to rule that the French system in force at the material time had, in principle, been compatible with Article 2 of Protocol No. 7 to the Convention. It therefore, concluded that there had been no violation of that provision. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 29,192.68 Euros for costs and expenses and dismissed the remainder of his claim for just satisfaction.
The presentations of the presenters at the conference: Vladimir Babunski, Justice at the Supreme Court of Republic of Macedonia; Rahilka Sojkovska, Judge at the Administrative Court; г-а Angleina Popovska, President of the Unit for Enforcement of Criminal Sanction in Basic Court Skopje 1; Antonio Kostanov, Enforcement Agent and President of the Chamber of Enforcement Agents of the Republic of Macedonia; Orlando Afonso, Justice of the Supreme Court of Portugal and President of the Consultative Council of European Judges; Dr. Otto Mallmann, Presiding Justice at the Federal Administrative Court of Germany; Nina Beteto, Justice in the Supreme Court of the Republic of Slovenia and a member of the working group of the CCJE and John MacMenamin, Justice in the High Court in Dublin. The other presentations, as well as part of the presented judgments, due to volume or form of power point presentation, can be assessed on the web page of the Academy - www.jpacademy.gov.mk at the following link http://www.jpacademy.gov.mk/inn.aspx?id=42.