Speeches and Op-eds
Conference “Binding Effect of the Judicial Decisions”
Excellencies, ladies and gentlemen,
It is a pleasure to be with you today for the opening of this Conference.
Throughout my time as Secretary General at the Council of Europe I have seen again and again the vital importance of effective, efficient and impartial national justice systems.
Where these are absent, certainties disappear, corruption thrives and order breaks down.
That’s why a core part of our mandate is to ensure that every individual in each of our member states has access to an independent judicial system that they can trust, that delivers quality decisions within a reasonable time – and whose judgments are, crucially, enforced.
The binding effect of a judicial decision is not only a fundamental, democratic element of the rule of law, but also a human right.
The very concept of an independent tribunal set out in Article 6 of the European Convention on Human Rights implies the power of that tribunal to adopt a binding decision.
One that is not subject to any change, approval or ratification by a non-judicial authority.
And the right to an effective remedy, guaranteed by the European Convention, also depends on the enforcement of those judicial decisions.
Let’s be clear.
The right to a fair trial and the rule of law in general are devoid of any substance if judicial decisions are not executed.
So when that execution is delayed, justice is left hanging.
In Europe today, this is a large-scale problem –
One that in turn puts a significant weight on the shoulders of the European Court of Human Rights.
According to the latest figures from the CEPEJ, enforcement is unsatisfactory in 25 of our 47 member states.
Today, 27 countries have non-enforcement complaints being considered by the Strasbourg Court.
And the total number of applications concerning these complaints sits at over 15,000.
This makes non-enforcement of national court decisions the second most frequently invoked grounds for applications submitted to the Court.
There are ways to tackle this –
For example, clarifying the legal framework of enforcement procedures and the duties and responsibilities of the parties.
And ensuring the existence of effective remedies, whether compensatory or acceleratory.
It is also important that member states have both the mechanisms and the finance in place to guarantee the enforcement of national judicial decisions against the state itself.
The Council of Europe has adopted enforcement recommendations and Guidelines through which to implement these recommendations.
And through the work of our different bodies, we are strengthening our engagement with our member states so that they are better placed to meet high standards.
This of course extends to the implementation of the European Convention on Human Rights and the execution of the European Court of Human Rights’ judgments.
Member states must be responsive to established violations, and implement the judgments made by the Court.
This is fundamental, not only for the respect of individual human rights, but also for the credibility of the Convention system and for democratic security and stability in our continent.
On that score, the numbers actually tell a good story.
Our 2016 report on the Supervision of the Execution of Judgements and Decisions of the European Court of Human Rights showed that in the vast majority of cases, those judgments are implemented.
In recent years Europe has grappled with profound change and challenge: the economic crisis, immigration, the fight against terrorism.
Yet every day, in our member states, measures are being taken to ensure that the Court’s rulings are respected in these areas and more.
Major reforms are enacted, including in sensitive areas, such as asylum procedures, the detention of migrants, conditions of detention, control of secret surveillance measures, and parental rights.
Recommendations, opinions and the Council’s experience of good practice are followed.
And individual applicants get redress in whatever form is required.
Take for example the Torreggiani case, concerning prison overcrowding in Italy.
The authorities have adopted major reforms to solve this long-standing issue.
Alternative sentencing, more efficient procedures, and innovative systems to monitor the living space of each detainee.
These are just some of the successful methods deployed in the on-going effort to address this problem.
However, there is no room for complacency.
We recognise that there are still a small number of judgments where enforcement remains a problem.
This can be for a number of reasons:
The complexity of implementation, procedural conflict over how to do it and, rarely, outright refusal to implement – which is of course unacceptable.
Today there remain people languishing in European prisons despite the fact that our highest court has said that their arrest and detention were arbitrary.
And it is essential to shine a light on such cases, to give them the focus that they merit.
Tackling them often requires a combination of pressure, persuasion and support.
Pressure through decisions and resolutions from the Committee of Ministers, which is responsible for supervising the execution of the European Court’s judgments.
Persuasion through dialogue, often at the highest level.
And support from our institutions, sharing their expertise, and building the confidence to progress.
But besides problematic enforcement, the system faces an additional threat.
Today, we see regular attempts by member states to weaken human rights laws and institutions.
There have been suggestions that the European Court of Human Rights’ binding judgements should be downgraded to advisory opinions.
There have been referendums proposed on whether international treaties – in particular the Convention - should have binding effect in nation states.
And there have been constitutional amendments aimed at giving national courts the power to over-rule a European Court of Human Rights judgment.
We need to be clear about the implications of such proposals and mindful of the need to uphold the rule of law in protection of our universal human rights.
Where they are under threat, we cannot give up – instead, we must double down.
The European Convention and the European Court were designed in the aftermath of war to prevent arbitrariness and tyranny.
This requires political resolve and robust institutions.
Where there is the former, the Council of Europe works with member states to deliver the latter.
So, excellencies, ladies and gentlemen, this Conference will address questions and issues of burning relevance today –
At both the national and international levels.
I wish you every success and look forward to hearing your thoughts.
22 December 2017
Letter to the President of Romania, Klaus Iohannis