Concluding remarks by Christos Giakoumopoulos
High-Level Conference within the framework of the Czech Chairmanship of the Committee of Ministers on “Binding Effect of the Judicial Decisions”
20-21 June 2017, Brno
Presidents of Supreme and Constitutional Courts,
We have nearly come to the end of our programme and on behalf of the Secretary General of the Council of Europe, I would like to make some brief concluding remarks. I would like to thank most sincerely the host of this prestigious event, the Czech Republic, currently chairing the Council of Europe’s Committee of Ministers, and in particular the Supreme Court of the Czech Republic, for taking the initiative to hold this timely conference. I would also like to congratulate the President of the Supreme Court, Chief Justice Pavel Šámal, for the outstanding organisation of this well-attended high-level event and to express our warm thanks to his team, headed by the Director of the Office of the President, Mr Aleš Pavel, for the efficient and professional manner in which they have organised the conference. We are also most grateful to all the keynote speakers, panellists and moderators for their valuable and thought-provoking contributions.
Since the opening yesterday morning, we have grappled with many important and delicate points related to our main topic - the binding effect of judicial decisions and their enforcement as one of the pillars for the rule of law in a genuine democracy. The rule of law encompasses different inter-related aspects with a bearing on the exercise of power and the relationship between the individual and the state. For our purposes here, it is worth highlighting the concepts of legality and legal certainty and how respect for the binding effect of judicial decisions furthers those concepts which are fundamental for our democratic societies.
Interventions have underlined and confirmed that the rule of law requires the timely enforcement of judicial decisions. Judicial independence and the right to a fair trial are in vain if those decisions are not enforced. And enforcement has been shown to be essential to ensure the trust of the public in the authority of the judiciary and for upholding its legitimacy.
I believe participants have endorsed what the Secretary General of the Council of Europe emphasised in his welcoming remarks – that all the substantive rights of the European Convention on Human Rights depend on the enforcement of judicial decisions, and that this is the final tool for protecting and for restoring violated rights and freedoms. This applies equally to the rights and freedoms enshrined in member States’ Constitutions and in the Charter of Fundamental Rights of the European Union.
Participants have shared examples of successful reform efforts carried out at national level with the aim of strengthening the enforcement of judicial decisions. In addition, we have heard and understood some of the challenges that may be encountered when undertaking such reforms. Judges, courts, be they national or international, need to understand those challenges. And we heard how judges perceive these challenges and how they address (or try to address) them when construing their judgments.
Respect for the judgments of the European Court of Human Rights is a key element of the Convention, and I am glad to note how unanimously participants of the conference have expressed their support for this. The fundamental principle underpinning the functioning of the system remains that of a collective responsibility, to be pursued through collaborative efforts and also through dialogue between national and international courts, dialogue between Supreme and lower courts, dialogue between international courts. Equally important is the principle of subsidiarity. And both these notions – dialogue and subsidiarity - are in fact reflected in Protocols 15 and 16 to the European Convention of Human Rights. These Protocols are indeed essential tools for the indispensable common understanding leading to timely and full execution of the judgments of the European Court.
We have taken note of the observation by President Raimondi as regards the variation in complexity when it comes to the execution of the Strasbourg judgments. Full execution of certain decisions will require legislative changes or changes in judicial practice, steps that are not always easy to achieve. As has been mentioned, some positive results and tendencies in this field were identified in the most recent 10th Annual Report of the Committee of Ministers on the Supervision of the Execution of Judgments and Decisions of the European Court. These encouraging results must be pursued and developed further.
However, we have also heard that “pockets of resistance” remain in certain cases, even though small in number, but still leaving us concerned. Speakers have referred to situations where creative action by member States was needed – or is still needed - in line with the commitments made in the context of the Interlaken process, and most recently at the Brussels Conference in 2015.
The role of national highest instance courts in this process cannot be overestimated. Such courts ensure consistency and coherence in the judicial practice, balancing judicial independence with the need for legal certainty. This is a delicate exercise, based again on dialogue, as we heard this morning. They also ensure a harmonised legal space for human rights and fundamental freedoms. And this is again based on interaction, on dialogue. We had ample examples of delicate illustrations of such dialogue based on notions of res judicata, res interpretata and erga omnes effect.
The Council of Europe’s Consultative Council of European Judges, the CCJE, is working on its Opinion No. 20 on the role of courts with respect to the uniform application of the law. They will emphasise that equal and uniform application of the law ensures the generality of the law, equality before the law and legal certainty. The CCJE has previously adopted an Opinion - No. 13 - on the role of judges in the enforcement of judicial decisions. And the European Commission for the Efficiency of Justice, the CEPEJ, has adopted Guidelines for a better implementation of the Committee of Minister's recommendation on the enforcement of court judgments, focusing on the concrete preparation of enforcement and the actual enforcement procedure.
We are immensely grateful to the President Lenaerts of the Court of Justice of the European Union for his presence here and for his insightful speech. Even though the mandates of the Court of Justice of the European Union and of the European Court of Human Rights are quite different, the experience of the Court of Justice - the progress as well as the challenges - is important for us from the perspective of learning lessons as regards the execution of the judgments of the European Court of Human Rights. It is essential to note how the dialogue with national courts is perceived and pursued and how this contributes to securing the binding effect of judgments and their smooth execution. Dialogue and common understanding are indeed instrumental to achieve what President Lenaerts called “acceptance”.
Ladies and gentlemen,
We have had ample confirmation during the discussions here of the principle that judgments have binding effect and must be executed. One might wonder then, if this is a generalised view, why we still observe problems at the national level and as regards the Strasbourg court’s decisions or even as regards domestic courts’ judgments. I recall in this respect that non-execution of domestic court judgments is presently the second most important litigation field in the European Court of Human Rights. Arthur Dyevre showed that in order for national authorities to engage positively with the European Union law there needs to be a positive attitude of national courts and also a positive attitude of what he called “the audience”; and that the whole process is influenced by the economic and political environment. I dare say that this is precisely the challenge and the risk we face: It is indeed difficult for this “audience” to adopt a European law – or international law - friendly position when, for instance, a prominent political figure declares he feels physically seek about a judgment; it is equally difficult for this “audience” to trust the judiciary when judges are portrayed as “enemies of the people” because of a judgment they have issued. It is from this perspective that the binding effect and the full and timely execution of a judgment are challenged. And this actually occurs from time to time irrespective of whether the decision at stake is a decision of a European or of a national court.
The question has thus to be asked who might have an interest in judgments not being executed, or in such execution being delayed, and why.
The short-term gain of non-execution might be of a financial nature, perhaps social, or in some cases political. The problem is of course that the gain, whatever its nature, is indeed a short-term one, while the long-term consequences are very serious.
As Plutarch said, “The main strength of Justice is that it makes Force unnecessary”. We have ample examples in history, since Plutarch, showing that where Justice fails, Force takes a leading role, and we know where this leads.
Protracted non-execution poses a risk to the credibility and stability of the machinery of the rule of law and could ultimately undermine the key values that we need in place to preserve our democracies. In short, we must be in no doubt about the crucial importance of respect for the binding nature of judicial decisions, although of course in gatherings such as the present conference we can still discuss in depth the various aspects of this binding nature.
Thank you once again on behalf of the Council of Europe for your presence and contributions here. Enforcement of judicial decisions, and in particular the execution of judgments of the European Court of Human Rights, will remain at the top of the agenda of the Council of Europe and we look forward to pursuing our activities in this important field with you, in all the different fora where we have the privilege of working with our member States and with other international organisations and stakeholders active and knowledgeable in this field.
Thank you for your attention!