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ECHR Judicial Seminar 2018 – The Authority of the Judiciary

Strasbourg , 

As delivered

 

President, Members of the Court, distinguished guests,

 

May I begin by thanking the President of the European Court of Human Rights and the chair of the organising committee, Judge Paul Lemmens, for inviting me here to speak this afternoon.

Rarely are non-lawyers invited to address this annual seminar.

But this year’s topic – the authority of the judiciary – is pertinent in part because of winds that are blowing through Europe and beyond.

Winds that are not confined to the court system, but which do impact directly and indirectly on its function.

Let’s be clear from the outset about the nature of judicial authority relating to the European Convention and the European Court of Human Rights.

The Council of Europe and the European Convention were the consequence of a post-War consensus that absolute sovereignty and unbridle nationalism constituted a threat to peace.

A new system of checks and balances was required to defuse conflict, rebuild trust and impose restraints both within and between nation states.

The Universal Declaration of Human Rights, made concrete by the European Convention on Human Rights, was part of that response.

It articulated the rights to which every individual in every member state is entitled.

And the Convention itself was established as a “constitutional instrument of European public order”.

It created a shared legal space guaranteeing respect for common fundamental rights and liberties.

And it is underpinned by the Council of Europe and its instruments and, crucially, the judgments issued by the European Court of Human Rights.

Here is the basis for the Convention system we protect: moral authority, legal authority and institutional authority too.

For the Council of Europe’s forty seven member states, the Convention is the law and they must obey the judicial authorities that uphold it.

But those authorities are of course multi-layered.

As the Brussels Declaration reminds us, implementing the Convention is our “shared responsibility”.

Beyond this, the Convention system is a shared realisation, built and nurtured by all its member states and their judiciaries.

National judiciaries are the “natural judge of the Convention” and the first port of call for remedy when its terms appear to have been breached.

The European Court of Human Rights then makes judgments when applicants bring cases using their right of individual petition.

And national authorities including judiciaries are then responsible again with regard to the full and rapid execution of those judgments.

This is the law, and it must not be subverted.

Nonetheless we see today attempts to do just that.

In some of our member states there have been legislative amendments aimed at giving national courts the power to over-rule judgments by the Strasbourg Court.

Similar amendments are pending before other Parliaments.

Let me say simply and clearly: this is the wrong path.

The Vienna Convention on the Law of Treaties is crystal clear.

A state “may not invoke the provisions of its internal laws as justification for its failure to perform a treaty”.

Yes, there is margin of manoeuver on the ways to execute a judgment.

But where a national constitutional court finds a contradiction between the conclusions of the European Court and domestic law, a solution must be found that confirms the Convention’s primacy. This is fundamental for the whole system.

And yet we live in a political environment where these basic rules are being tested.

In some of our member states, people are voting in greater numbers for populist politicians:

Politicians who claim exclusive moral authority to enact the “will of the people” – which they feel at liberty to define.

This us-versus-them polemic delegitimizes opposition, threatens pluralism and undermines our essential institutions.

And it is this impact on institutions that will be at the heart of my annual report this year, which will be published in a just a few weeks’ time.

It is part of today’s political game in many member states to challenge the authority of the judiciary at both the domestic level and the international level too.

We even see public campaigns with the same intention.

And it is precisely because international institutions operate outside national control that they are particularly exposed to these simplistic and misleading arguments.

This includes the European Court of Human Rights.

We cannot and do not tolerate this situation.

Courts and their decisions must be respected by all.

This is why the Council of Europe gives the highest priority to safeguarding the authority of the judiciary.

It is a vital and independent branch of state power in a healthy democracy.

And I would like to pay tribute to the work that you, distinguished judges from national Courts and the European Court alike, carry out.

What then must be done?

What can the Council of Europe, the European Court of Human Rights and the judiciary at member state level do to meet our shared responsibility in defending judicial authority?

The overall aim must be to demonstrate legitimacy.

Because those who seek to discredit judicial authority often do so on the basis that judges are not directly elected.

This leaves them vulnerable to the charge that they are undemocratic and unaccountable.

Of course the judiciary is not designed to be political.

Even if its decisions can by nature have an impact on public life.

So it is understandable that judges are in general unelected.

Certainly, the ballot box should not be seen as the only route to their legitimacy.

Rather, this comes from ensuring that the judiciary is independent, convincing and respected – and the Council of Europe is working with our member states to achieve just that.

Firstly, on independence:

We support our member states’ efforts to achieve a genuine separation of powers.

To that end the Council of Europe has issued comprehensive sets of guidelines, recommendations and opinions – from the Consultative Council of European Judges, the Consultative Council of European Prosecutors and the Venice Commission – including its Rule of Law Checklist.

These are based on the European Court’s case law and European constitutional heritage.

And we use them in our work with member states on co-operation activities.

These include individual action plans by countries and the overall 2016-2021 Action Plan on Judicial Independence and Impartiality.

Over the most recent months we have experienced national authorities adopting laws that pose problems for judicial independence.

Laws that allow political influence over appointments or disciplinary procedures, or weaken the security of judges’ tenure.

I have been swift to raise these at the highest levels.

Just as the Venice Commission and the CCJE have produced expert opinions on short timescales to help our member states to meet our rule of law standards.

But of course we rely on member states engaging positively in this process.

They must be willing to work with us, recognise the issues, and take the steps required for remedy.

That is the way to avoid these problems reaching you here in the European Court, and it is the way to ensure the high standards of judicial independence that people have a right to expect.

Our judiciaries must also be convincing, operating in a way that is efficient, coherent and high quality.

An efficient justice system is one that delivers in a way that is fair, reliable and timely.

The Council of Europe’s decision fifteen years ago to establish the European Commission for the Efficiency of Justice – CEPEJ – is testament to our commitment here.

It not only analyses the efficiency of judicial systems but offers member states the expertise and support required to address shortcomings too.

Similarly, our HELP Programme builds judicial capacity, strengthens the reasoning of judgments and promotes the harmonisation of case law.

It is the only European network of national training institutions for judges, prosecutors and lawyers across our forty seven member states.

Over recent years the Court has also taken ambitious measures in this spirit.

Procedures have been streamlined and the number of applications pending has been drastically reduced.

The Court has also become better and clearer in its communications.

This is true with regard to national authorities, including judiciaries within the superior courts network.

But it also applies to communications with other international courts, such as the European Court of Justice.

And on that note may I say that I am glad that its President, Mr Lenaerts, is with us today and will be speaking tonight on the occasion of the opening of the judicial year.

But to be convincing, judiciaries also have to meet demonstrably the highest standards of integrity and ethical conduct.

Here too, the Council of Europe is seeking to be as supportive as possible.

Over the last months, our Group of States Against Corruption – GRECO used its fourth evaluation round to address the prevention of corruption of members of parliament, judges and prosecutors.

And in 2018, the Consultative Council of European Judges will adopt an opinion on judicial integrity and corruption–taking into account GRECO’s fourth evaluation findings.

But equally important for judicial legitimacy and authority is the need for judges’ decisions to be respected.

Because judgments mean nothing unless they are enforced.

And this remains a problem in Europe today.

CEPEJ tells us that enforcement is unsatisfactory in 25 of our 47 member states.

And over the years thousands of applications have been lodged to the European Court on grounds of non-enforcement.

There are ways for member states to address this.

They can clarify the legal framework of enforcement procedures and the duties and responsibilities of the parties.

They can ensure the existence of effective remedies, whether compensatory or acceleratory.

And they can put in place the mechanisms and finance to guarantee the enforcement of national judicial decisions against the state itself.

The Council of Europe has adopted enforcement recommendations and guidelines to help member states adapt to these practices.

And our various bodies are working with them more closely than ever to ease implementation.

Because these issues are complex, intergovernmental co-operation and experience-sharing can make the difference in finding solutions.

The execution of judgments is also crucial to the European Convention.

Evidently, as an international institution, the Strasbourg Court relies on enforcement of its decisions at member state level.

And if member states are unresponsive to established violations – if they do not implement the Court’s judgment – the credibility of the Convention system suffers.

On this score there is a good news story to tell.

Our last report on the Supervision of the Execution of Judgments 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 wrestled with a range of challenges: the financial crisis, unprecedented immigration, and terrorist attacks.

Nonetheless, we have seen member states enacting reforms relating to the most sensitive of issues:

Asylum procedures, migrant detention, detention conditions, surveillance, parental rights and so on.

And they have done so in order to implement judgments from the Court for the benefit of the people.

Nonetheless, we must acknowledge that in a small number of judgments enforcement remains a problem.

This can be down to the complexity of implementation or procedural conflict over how it should be done.

On these cases, the Council of Europe can help.

But occasionally, there is outright refusal to comply with the Court’s judgments.

And this is simply unacceptable.

In Europe today there are still examples of people in prison despite a judgment from our highest court that their arrest and detention was motivated by politics.

Resolution requires a mixed approach.

Pressure can be applied through the decisions and resolutions of the Committee of Ministers, which supervises the execution of the Court’s judgments.

Persuasion may be possible through dialogue at the highest level.

And support from our institutions, supporting member states to take difficult but just decisions, is an additional tool available to the Council of Europe.

Again I want to emphasise that these cases are few in number.

But they must be addressed.

Because any non-compliance undermines the system.

And those who want to see that happen are swift to make examples of failure.

Ladies and gentlemen, all of us here today want to see judicial authority defended and strengthened at the member state and European level.

We recognise that in a period of political uncertainty there exists a paradox.

Our laws, courts and institutions become subject to populist attack, at a time when their resilience and strength is most needed.

Not to serve themselves, but to protect the rights of each and every individual under their jurisdiction.

Now is such a time in Europe.

And what we must do together is ensure that our judiciaries meet the highest possible standards.

That they are independent, convincing and respected.

So that they are better prepared than ever to withstand any efforts to undermine public trust or strip back their capacity to act.

The Council of Europe will work with our member states to help them achieve this.

But I also look forward to hearing new ideas from this seminar about how you believe that we should respond to this challenge together.

I wish you every success.