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First Petersburg International Legal Forum

Saint Petersburg , 

Speech by Mr Thorbjørn Jagland
Secretary General of the Council of Europe
"The Vertical of Justice"
First Petersburg International Legal Forum
20-21 May 2011

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Mr President,
Ministers / Excellencies,
Ladies and Gentlemen,

For over 60 years, the Council of Europe has been striving to build a Europe founded on values. After two devastating world wars in less than three decades, political leaders understood that there would be no genuine reconciliation, no unity and no lasting peace without democracy, human rights and the rule of law. This is why the Council of Europe was created in 1949.

A unique and comprehensive system for protecting and promoting human rights was set up within the Council of Europe. A full range of tools exists - legal instruments, monitoring mechanisms, assistance programmes, awareness-raising tools and fora for debate and collective responses.

Taking into account the nature of this distinguished Forum, I would like to start with the concept of common legal standards, as one of our major achievements.

Indeed, throughout the years and with the help of all our member states we have created something unprecedented in Europe – a common legal space based on the principles of democracy and human rights.

Our common legal space is the term used to describe the arsenal of Council of Europe conventions and, more generally, the legal standards collectively defined and agreed within our Organisation. It is the legal dimension of our common values which binds us together.
 

At the heart of this legal space is, of course, the European Convention on Human Rights, with the European Court of Human Rights which serves as its ultimate guardian. This is a unique regional mechanism set up to implement the Universal Declaration of Human Rights, with an influence on domestic legal systems which is unprecedented in history.

Parties to the European Convention on Human Rights undertake to secure for everyone within their jurisdiction a number of civil and political rights and freedoms. Subsequent protocols have extended the initial list of rights, and the case-law of the European Court have reinforced and developed these rights, demonstrating the dynamic and evolving nature of the system.

The agreement of sovereign states to allow a supra-national court to review a judgment of the domestic judiciary, and be bound by its findings, represented an historic and unique step in international law. It puts into practice the theory of the fundamental nature of human rights, placing rights firmly above the laws and practice of a state. It also signifies a democratic belief that certain fundamental rights and freedoms of the individual are not subordinated to narrow political interests.

The EU accession to the Convention, which is currently being negotiated, will bring together - under the same system of legally-binding standards and under the same Court - all major powers in Europe and the European Union. This will be a new historic achievement.

Mr President,
Ministers / Excellencies,
Ladies and Gentlemen,

Of course, numerous legal issues arise in the Convention's day-to-day relations with 47 domestic legal systems. Each country has its own concerns – and the Russian Federation is no exception.

Today's Forum provides an excellent opportunity to discuss these concerns and, even more importantly, how to respond to them.

This year, we celebrated the 15th anniversary of Russia's accession to the Council of Europe. Over these 15 years the European Court of Human Rights has become an important legal factor in the Russian legal system. But our relationship is continuing to develop and there is much more still to be done.

Our common imperative today is to reform the Court in Strasbourg. The backlog of the Court continues to grow although Protocol 14, which entered into force a year ago thanks to its final ratification by the Russian Federation, has started to produce some results. However, further efforts are necessary.

The reform of the Court is very much an integral part of the overall reform of the Council of Europe, which I initiated when I became Secretary General one and a half years ago. We should never forget that the whole Convention system will break down if the Court is not able to do its job. At the same time, the Court is dependent on the Council of Europe monitoring and assistance programmes, as the number of applications to the Court can only be effectively reduced through better remedies at national level. That is why I, in the context of the reform, am directing more of our resources to assisting member countries to adapt their laws and judicial systems to the Convention.

The key word defining the Convention's relation to the domestic legal systems is subsidiarity. Today, this principle is more crucial than ever. The basic notion behind this principle is that the Convention mechanism is not there to resolve issues in the first instance, nor to impose a particular choice of means when it comes to remedying a particular human rights problem in a member state.

Quite the contrary, the Convention heavily relies on the domestic systems' capacities to tackle these issues rapidly and effectively at their source, with due respect being given to the particularities of the national law. In other words, national remedies and domestic solutions is the key to resolving the current problems of the Court.

Likewise, any country's record in Strasbourg is not based on the total number of the violations of the Convention in the country, but on the number of those violations that failed to be effectively remedied through the domestic legal system. This is exactly the key point on which the relations between Russia and the Convention system need to be revisited.

As I see it from my general perspective, these relations are presently challenged in two fundamental ways:

First and foremost, even a quick look at the Court's judgments and the still-pending applications, discloses the failure to remedy relatively few but persistent structural problems, which are behind a very large number of repetitive applications to the Court.

Our Russian colleagues know them well and it is not necessary to go into detail here. Some of them continue to be unresolved, but some of them have been tackled in an effective manner.

Let me take just one example of latter, namely the Court's first pilot judgment concerning Russia related to the non-compliance with decisions of Russian courts by the executive bodies. Before the pilot case two years ago, the Strasbourg Court was compelled to continue adjudication of hundreds of such cases for years, acting virtually as a ‘court of first instance'. This situation prevailed for far too long, notwithstanding the requirement of subsidiarity and the overwhelming recognition of the problem by all domestic authorities. Fortunately, we now have the necessary political will and inter-ministerial co-ordination, and an effective domestic remedy for such cases has been introduced.

The package of laws signed last year by President Medvedev aiming at providing adequate compensation to victims of unreasonably lengthy judicial and enforcement proceedings, was indeed an important step forward. I had the opportunity to pay tribute to you, Mr President, when we met in December 2009, for your personal commitment in this regard, which ultimately guaranteed its success. I would recall that the reform was also the result of intensive co-operation between Russia and the Council of Europe. Such assistance and co-operation is exactly the main purpose of our Organisation - its ‘raison d'être'.

I would like to encourage all Russian authorities to build upon this successful reform and to establish, without further delay, effective domestic remedies against other frequent violations found by the Court with respect to Russia.

This reflection on domestic remedies brings me to the second major issue, namely the role of Russia's courts of highest instance in the effective protection of the rights guaranteed under the Convention.

A large part of cases which are before the Strasbourg Court are appeals to decisions taken by the regional courts of some 80 federal entities of the Russian Federation. Most often, there is no review undertaken by the Supreme Court. Moreover, the Constitutional Court has a limited jurisdiction and cannot systematically review compliance with the Convention. As a result, regional courts most often deliver final national decisions which are later challenged in Strasbourg by Russian citizens.

A final national decision in a huge country like Russia should necessarily be delivered by a supreme national judicial instance at the federal level, be it a Supreme Court or the Constitutional Court. The domestic judicial procedure in Russia should therefore be arranged accordingly. In a way, using political terms well known in the Russian political vocabulary, a 'vertical' has not yet been achieved in the Russian judicial system. And this is really needed.

I would strongly recommend the competent Russian authorities to give priority to this issue, and to ensure that judicial review by the Supreme Court becomes, in all cases, an effective domestic remedy guaranteeing both legal certainty and quality of justice. This will also help solving the backlog problem of the Court in Strasbourg.

Mr President,
Ministers / Excellencies,
Ladies and Gentlemen,

Let me conclude with a more general comment.

The Forum's mission is to promote ideas related to modernising the law in the context of the changes currently taking place in our societies. This includes challenges related to the importance to improve co-operation between legal systems, and to adopt common approaches to legal development within a globalised framework.

I understand you will discuss different questions related to the modernisation of the Russian legal system in the light of the European legal standards, but also as regards the adaptation of European legal norms to help meet new challenges our societies are facing.

This is important. Because societies are changing rapidly. So are peoples' attitudes. And we have to adapt laws and standards. A good example is the new Council of Europe Convention on preventing and combating violence against women and domestic violence.

To end up where I started, the war in Europe happened because there was a total breakdown of human rights and rule of law under the Nazi regime.

And let me be absolutely clear on one final point, there will be no enduring peace in Europe - and no unity - without the full respect of our common values based on the European Convention of Human Rights.

Good luck with your deliberations and thank you for your attention.