International Conference “The Constitutional Court: between Negative Legislator and Positive Activism” - 50th Anniversary of the Constitutional Justice in Bosnia and Herzegovina

Sarajevo, 28 March 2014

Dear Chairperson, honourable judges, excellences, ladies and gentlemen,

I have been invited to intervene briefly on a thought-provoking topic:
“The constitutional court: between negative legislator and “positive activist”.

My intention is obviously not to be exhaustive. I will restrain myself to some general observations and to some questions related to the execution of judgments of the Strasbourg Court.

Genuine democracy rests on the division of power – the division between legislative, executive and judicial powers. Each branch must respect the limits of its specific competence, without interfering with the competence of the others.

Of particular interest for the present topic is the limitation on the competence of judges to ensure that there is no government of judges.

Whilst we all agree that there should be no such government, the matter is not so easy in practice. When applying the law, judges must necessarily also engage in an interpretation of the law. In particular when it comes to issues of constitutionality and issues relating to human rights, experience clearly suggests that judges must enjoy a certain margin of manoeuvre. This position is also clearly expressed in the case-law of the European Court .  It is also shared by the Venice Commission as notably evidenced in the 2006 Opinion on the Protection of Human Rights in Emergency Situations  and the 2010 Report on Counter-terrorism Measures and Human Rights . Dynamic interpretations evidently make the distinction between legislative and interpretative activity even more difficult. 

Courts in Europe will thus, through the reasoning of their judgments, frequently also provide more or less express guidance for the legislator. Guidance may take many forms. One of them is the setting of time limits. For example, in the wake of the Informationsverein Lentia case  concering the ORF’s broadcasting monopoly in Austria, the Austrian Constitutional Court set, for example, a time limit of one year for the adoption of new Constitution and Convention conform regulations. Further guidance may be provided as to the effects of the Court’s findings . In the wake of the Karlheinz Schmidt case  a discrimination was established as only men were subject to the obligation to serve as firemen or pay a financial contribution instead. In response hereto the German Constitutional Court found that a mere declaration of incompatibility (Unvereinbarerklärung) in respect of the impugned regulations, in order to provide the legislator with an opportunity to amend them, was excluded on account of the nature of the constitutional breaches found. The unconstitutionality of the impugned provisions instead rendered these null and void (Nichtigerklärung)  .

The position of the European Court of Human Rights has been largely the same. Over the years many judgments have contained guidance for legislators. Among early cases you will remember the Marckx case   from 1979 in which the European Court gave important indications as the temporal scope of its judgment. Today, such indications are frequent – a telling illustration being the pilot judgments. The practice of the Constitutional Court of Bosnia and Herzegovina is also full of similar examples. I can simply refer to the cases I mentioned in my opening statement earlier today – all of them contained indications as to the general measures required.

Some constitutional courts have gone even further and adopted what the Italian doctrine calls “additive interpretation”, filling gaps in the legislation. Under the European Convention on Human Rights, such interpretations, in particular, by constitutional courts, have solved a number of intricate problems under the Convention and ensured individual redress to applicants. Among many examples, I would like to cite some illustrative ones relating to the reopening of unfair criminal proceedings.

The problem of absence of adequate legislative provisions was thus raised already in some of the very early cases before the Court.  In the Barberà, Messegué and Jabardo case  from 1988  the question of redress was successfully solved through the proactive action of the Spanish Constitutional Court.  In response to the applicants’ amparo request, the Constitutional Court provided important guidance as to the interpretation of the relevant law, allowing the Supreme Court to reopen the unfair criminal proceedings at issue notwithstanding the absence of any provision providing for a right to such a reopening .

More recently, similar issues were raised in respect of Italy as a result of the Italian parliament’s inability to adopt legislation providing for the reopening of criminal proceedings found unfair under the Convention, notwithstanding numerous draft laws and private bills and despite several Committee of Ministers decisions highlighting the need for such legislation. As a result, the Italian Constitutional Court in a judgment of 2011  declared the deficient legal provision unconstitutional, whilst making at the same time what the Italians call an « additive interpretation » of the situation. This means providing in the judgment of the Constitutional Court guidance to the domestic courts as to how to provide redress in the absence of adequate legislative provisions. It is particularly noteworthy that the Italian Constitutional Court clearly stated that « when confronted with a violation of the Convention which cannot be resolved through interpretation, especially where it relates to fundamental rights – the Court is in any event required to provide a remedy ».

Also the Albanian Constitutional Court has recently taken similar positions in the context of the Caka  group of cases in order to ensure that redress be provided applicants in the absence of adequate legislation .

In view of their well circumscribed aim, these cases have given rise to little criticism. They are rather mentioned as examples of truly “positive judicial activism”. I could of course refer to other examples from Russian, Turkish or Slovenian Constitutional Courts.

Let me end my brief intervention with some examples of problems relating directly to the situation in Bosnia and Herzegovina which are presently before the Committee of Ministers of the Council of Europe in the framework of its supervision of the execution of the European Court’s judgments.

One example relates to the important problem of interpretation in cases of contradiction between different legislative or constitutional enactments. Such a problem is today at the heart of the famous Sejdić and Finci case . Faced with the political establishment’s inability to come to grips with this contradiction you may have noted that the Committee of Ministers earlier this month put considerable emphasis on the fact that the rights and freedoms set forth in the Convention shall, under the Constitution of Bosnia and Herzegovina, apply directly and have priority over all other laws. It added that Bosnia and Herzegovina has an unconditional obligation under the Convention to abide by the judgment of the European Court .

In the light hereof the Committee called upon the authorities to rapidly provide clear and detailed information on the content and the timing of the actions they intend to undertake, within the State institutions, in order to execute the judgment in time before the next State-wide elections .

Another example relates to the problem of balancing the different Convention rights which may be concerned when providing individual redress. Reopening of civil proceedings may for example be impossible because of the right to legal security of good faith third parties .

Bosnia and Herzegovina is confronted with a situation of this kind in the Maktouf and Damjanović case   which concerns the right of all criminals, also war criminals, to see the most lenient criminal law applied when sentences are fixed. However, following the quashing by the Constitutional Court of the judgments of the appellate composition of the State Court, cases have been and are being re-examined by the appellate composition of the State Court in order to reconsider the sentencing issue . In this context questions have been raised regarding the continued detention of war criminals awaiting a new final judgment. The problem, as perceived from Strasbourg, has been that the new proceedings must also respect the rights of victims and their families under Articles 2 and 3 of the European Convention to have effective investigations capable of leading to the effective punishment of the guilty. The information received regarding the release of a number of war criminals led the Committee of Ministers to ask in December 2013 for information on the issue of detention pending new decisions by the State Court. The Committee stressed in this context the importance for the domestic authorities to take all necessary measures to secure, wherever required, the continued detention of those convicted awaiting new examination .

Ladies and Gentlemen,

I have sought to cover very rapidly a very extensive ground, chartered in considerable detail by many precedents from Constitutional Courts and by the work of many learned scholars. I nevertheless hope that my brief observations will be helpful when we continue our discussions. I thank you for your attention.