Conference on “Application of the European Convention on Human rights at the national level and the role of national judges”

Baku, 24-25 October 2014

President of the Supreme Court of Azerbaijan,
President of the European Court of Human Rights,
Excellencies,
Ladies and Gentlemen,

Given that my speech comes at the end of this conference, I will limit myself to sharing with you several observations with regard to the themes touched upon yesterday and today. As such, this is by no means to be considered an exhaustive summary of our discussions and even less so formal conclusions of the conference.

The conference primarily focused on three issues of the highest importance: the first, actions which should be taken at the national level in anticipation of violations, prior to appearing before the Court, in full compliance with the principle of subsidiarity which underlies the entire system of the European Convention on Human Rights (ECHR); the second issue concerned actions which should be dealt with after the Court has given its consideration, namely how to ensure the full execution of judgments and, finally, the third issue dealt with the dialogue between judges in Strasbourg and national judges, an action which, in the system of the ECHR, in some form permeates the entire process.

(1) ANTICIPATION OF VIOLATIONS

This conference has, quite rightly, highlighted the importance of appropriate parliamentary procedures in ensuring the conformity of draft bills with the ECHR. Even more so, it has emphasised the need for an independent and effective judicial power equipped with courts which guarantee the effective enjoyment by individuals of their conventional and constitutional rights and freedoms.

In fact, without an independent judiciary, human rights themselves would remain obsolete, even if the Constitution and national laws were in perfect harmony with the requirements of the ECHR. The experience of the Council of Europe leaves no doubt in this regard. The Convention demands above all an authentic emancipation of the judiciary, which is obliged to act as a genuine power with its own nuanced outlook on the relationship between the interests of the State and individual freedoms so as to ensure that any limitation of the latter is provided for by the law and proportionate to the legitimate aim pursued. It is in this manner that the Convention is called upon to protect individuals from authoritarian excess, which may still occur today and result in endangering the democratic security of Europe, also known as “deep security”.

This leads me to recall at the outset the “fundamentals” of judicial functions with regard to the requirements of the ECHR:

• Above all, the judge must be independent at the institutional level. The recent judgment of Volkov against Ukraine once again reminds us of this in the context of Article 6;
• The judge must be impartial, with complete respect for the rights of victims as well as those of the accused;
• Their decisions must be taken in full respect of the presumption of innocence, on a legal basis and exclusively in light of evidence submitted during a fair trial;
• Finally, the judge’s decisions must respect the principle of proportionality: any interference with a right or freedom must be necessary in a democratic society, in other words, in response to a pressing social need. The maximum penalty provided for by law need not be imposed in every case!

The Strasbourg Court reminds us regularly of the requirement of proportionality, particularly through findings of violations on account of excessive use of criminal proceedings. In reality, such judgments principally address the judiciary, which must position itself as an independent and impartial arbitrator between the individual and the authorities, rather than as an unconditional defender of the latter. If national judges do not fully assume this role, if they are corrupt, if justice is unfair, slow, inefficient or incompetent, genuine threats endanger the well-being of society. As was recently demonstrated, even in the medium term, the survival of democracy and the rule of law is at stake!

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Our conference has also stressed the importance of the actual status of the ECHR in national law. The formal incorporation of the ECHR into national law is not, in itself, decisive; it remains necessary for this incorporation to take place in an adequate and efficient manner, allowing its direct application by national judges. In this context, it would be desirable that the courts ensure the erga omnes effect to the Court’s judgments or, in other words, follow by anticipation the judgments that do not concern their own country, thus conferring the binding force not only to the Court’s judgment in a given case (res judicata), but also to its interpretation of the Convention on a specific point (res interpretata). In this context, the question was also raised about the primacy of international law over divergent national law in instances of open conflict between conventional obligations and those arising from domestic law.

In this regard, supreme courts, while respecting the means provided for by their differing legal traditions, play an essential role in guiding of lower courts.

It is true that, ideally, it would fall upon the judge at first instance to apply the ECHR, as interpreted by the Court. Experience has shown that in practice, however, judges at first instance hesitate to leave the beaten path, preferring to allow higher courts to lead the way. In this regard, our discussions have highlighted that supreme and constitutional courts in several of our States have in a general manner risen to the challenge and that their actions have already resulted in “normalising” the enforcement of the Convention requirements by all lower courts starting from the first instance.

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These initial observations lead me to the subject of professional training of judges in line with the Convention and that of their access to the jurisprudence of the Court, two issues which are of paramount importance. It is this training which allows judges not only to assimilate the techniques and methods necessary for the effective understanding and application of the Convention and the Court’s case-law, but also to acquire the capacity for free reasoning, without which they will never be truly independent.

As was also noted throughout our Conference, the Council of Europe provides targeted training programmes for judges, including our flagship, known as the HELP programme. Today, it is a unique, pan-European legal education programme which aims to truly integrate the Convention into the national legal education system. The training programme positions itself at the forefront with regard to both the anticipation of violations and the execution of judgments, another significant subject which has been examined at our Conference.

(2) EXECUTION OF JUDGMENTS OF THE COURT

National judges also play a key role in the execution of judgments of the Court. This presupposes full compliance with the principle of subsidiarity and shared responsibility.

In fact, the execution of judgments represents quite a specific aspect of the implementation of the Convention. Once the Court will have clearly set forth a finding of violation in its judgment, the national authorities will be under a specific and unconditional obligation to remedy the violation under the supervision of other States within the Committee of Ministers of the Council of Europe. Article 46(2) of the ECHR is the expression of this collective responsibility for the respect of rights and freedoms guaranteed by the ECHR. In this regard, two core aspects have been discussed:

First of all, an aspect concerning the restitutio in integrum following judgments by the Court: the obligation to erase the consequences of violations for the applicant.

The fact remains that there are still situations where the applicant encounters problems in obtaining redress. This being so, experience shows that numerous jurisdictions have succeeded in finding pragmatic solutions.

A full execution often requires the adoption of reforms which allow for the prevention of new similar violations.

In this regard, the importance of rapid and efficient dissemination of the Court’s judgments translated into national languages was underlined. Access to the Court’s case-law is indeed essential. Experience equally shows that such dissemination often allows for the resolution of problems identified by way of a simple adaption of the courts’ practices, thus avoiding the need for legislative intervention. Numerous examples have been provided in this regard.

Finally, it must be emphasised that judicial action must often be supported and complemented by the work of other authorities. Indeed, if it is true that the execution of judgments is sometimes delayed by the absence of political will, there is also another problem of a technical nature, that of the lack of coordination between different relevant authorities on the national level, including national parliaments. This issue deserves further scrutiny and new ways to facilitate this coordination should be found.

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(3) DIALOGUE BETWEEN JUDGES WITHIN THE SYSTEM OF THE ECHR

The third session was devoted to dialogue between judges: how to achieve, by both judicial and non-judicial means, the strengthening of communication between judges of national supreme courts and the Strasbourg Court? In this context, what is the potential of Protocol No. 16 of the ECHR? Finally, can an independent organ, such as the European Commission for Democracy through Law (the Venice Commission), contribute to the dialogue between judges?

How to enhance communication by jurisdictional and non-jurisdictional means?

We currently have many tools at our disposal to make this judicial dialogue more concrete. The following should be noted, in particular: the importance of visits to Strasbourg by judges from supreme courts, including their participation in hearings of the Grand Chamber; regional cooperation, in the form of on-site visits and a permanent interaction, cooperation programmes involving judges. Lastly, conferences such as the present one reinforce this dialogue. You can testify to this yourselves!

It was noted that Protocol No. 16 – the protocol of dialogue – has the potential to strengthen the interpretive effect of the Convention erga omnes. It is true that there are differing opinions on the potential of this Protocol. That said, in my view the opinion of the Strasbourg Court could prove valuable, for example, with regard to addressing potential systemic problems, challenges posed by new information and communication technologies, or in the area of bioethics. National judges may particularly appreciate that the Court, in advance, provides them with a European perspective on these new issues which may involve serious interference with the rights and freedoms of individuals.

The dialogue between the different actors of the Convention includes the Venice Commission, the opinions of whom largely incorporate the jurisprudence of the Court and thus promote its integration into national laws and constitutions. The Court also cites the opinions of the Venice Commission, which can act as amicus curiae in specific cases. Moreover, the Venice Commission provides a platform for regular exchange, both at the European and at the global level, thus facilitating the cross-fertilisation between legal and judicial systems.

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ASSISTANCE PROVIDED TO MEMBER STATES

My final observations will relate to cooperation activities of the Council of Europe conducted to improve the implementation of the Convention and Court judgments in member States. In addition to the HELP programme, which was presented to you yesterday morning, numerous bilateral and regional programmes offer our States targeted support so as to overcome challenges arising under the Convention.

The question which presents itself more and more often is not if States should undertake a particular action to honour their commitments, but how States should proceed to achieve the best possible result.

It is interesting to note that cooperation often arises in the context of the execution of the judgments of the European Court of Human Rights, particularly when structural reforms are needed.

In this way, the Directorate General of Human Rights and the Rule of Law provides support to member States when these States initiate legislative reforms concerning, in particular, the judicial system and the functioning of civil, criminal and administrative justice. It is important to emphasise that our support does not stop with the adoption of a law in conformity with the ECHR. We must in addition ensure that the law is implemented in the spirit of it, otherwise the reform risks amounting to little more than an empty gesture.

Apart from the reinforcement of the capacity of legal professionals, we also work with our member States so as to ensure that the right to a trial within a reasonable time is effectively guaranteed by way of projects designed to improve the efficiency and quality of judicial systems.

I can only encourage our member States to join forces with the Council of Europe in their reforms and I would like to seize this opportunity to invite Azerbaijan to benefit from the projects which will soon be implemented. We look forward to our future cooperation. This will be a unique opportunity to examine the implementation of legislation on the freedom of assembly and the judiciary, in addition to other steps intended to empower judges, prosecutors and lawyers to fully exercise their role in the implementation the State’s commitments under the Convention. We are, of course, at the complete disposal of our member States to assist them in such endeavours.

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Mr. President of the Supreme Court of Azerbaijan,

I would like to warmly congratulate you, once again, for having taken the initiative to organise, in the framework of Azerbaijan’s Chairmanship of the Committee of Ministers of the Council of Europe, here, in Baku, a conference on a subject of the highest importance: the role of the national judge in the implementation of the ECHR.

On my own behalf and on behalf of all the participants, I thank you for your warm welcome and your generous hospitality. I would like to thank your entire team for the perfect organisation of this event.

I also thank the moderators, the keynote speakers, and all the participants, as well as the interpreters. I am pleased that this conference resulted in genuine dialogue.

I wish you all an excellent end to your stay in Baku and a safe journey back home.

Thank you for your kind attention.