Conference on Appeal and Individual Application to the Constitutional Court

Istanbul, 1 June 2017

Esteemed and honourable judges and prosecutors,

Ladies and gentlemen,

Good morning,

I am very pleased to participate in this panel on case law harmonisation, which is an essential aspect of human rights and the administration of justice, as well as a key objective of the work of the Council of Europe. The Human Rights National Implementation Division that I am heading is at the forefront in supporting the judiciaries of the CoE member states to develop a coherent body of case law. The ultimate objective is to reinforce the subsidiary character of the Convention through the effective functioning of national remedies so that the Convention is primarily implemented in CoE member states themselves, without the need to turn to the European Court of Human Rights (the Strasbourg Court).

I will say few words about what we mean when we speak about case law harmonisation. Then, I will give a brief overview of the harmonisation tools that have been developed in the framework of cooperation projects implemented by the CoE. Finally, I will illustrate how the introduction of the individual application before the Constitutional Court of Turkey has been a significant step in achieving harmonisation in Turkey.

Harmonisation of case law aims at ensuring effective and qualitative justice in an equitable and coherent manner, based on a common understanding of national law and international standards.

Indeed, inconsistent interpretation of legal instruments adversely affects their implementation, resulting in numerous complaints being brought before the courts, on both the domestic and international levels. Discrepancies in domestic case law are detrimental to legal certainty, which is particularly important in criminal law. Differing interpretations given by different courts, or worse, the same court, in similar cases, create confusion for parties and diminish the confidence that society places in the judicial system. Inconsistent interpretation also creates space for abuse.

The lack of a harmonised body of case law at the national level has been the source of a significant number of applications brought to the Strasbourg Court, which held that profound and long-lasting divergence may constitute a violation to the right to a fair trial.

Whichever judicial body is responsible for the pursuit of domestic case law harmonisation, it is clear that a balance requires to be struck between judicial discretion in interpretation of domestic and international law and the need to ensure that this interpretation is consistent.

Our projects aim to support national judiciaries to adopt approaches to the pursuit of harmonised case law that are suitable to their national legal system and traditions.  Let me give you few examples.

In Bosnia and Herzegovina, “harmonisation panels” were created, composed of representatives of the judiciary of the Federation of Bosnia and Herzegovina, Republika Srpska, the Brčko district and the Court of Bosnia and Herzegovina and acting under the authority of the High Judicial and Prosecutorial Council (HJPC). The panels drew a series of recommendations on what measures ought to be taken in order to render judicial practice throughout the country more coherent in civil, administrative and criminal fields. Recent developments testify to the relevance of this initiative:  the Constitutional Court of Bosnia and Herzegovina has already referred to the panels’ conclusions in five of its judgments, and some recommendations triggered amendments in the criminal codes of the countries’ subnational entities (the Federation of Bosnia and Herzegovina and Brčko district) to ensure greater consistency in sentencing.

In Serbia, when courts of appeal were established in 20…, the way they interpreted national law and the Convention judicial was totally incoherent and even contradictory. The reason was simple: lack of dialogue. Also, the Supreme Court of cassation was not sufficiently equipped to provide guidance to lower courts. Under a project financed by Norway, the CoE supported the organisation of regular meetings between the courts of Belgrade, Nis, Novi Sad and Kragujevac that led solving inconsistency issues. The project also supported the adoption by the Supreme Cassation Court of an action plan aimed precisely at harmonization of judicial practice. A concrete result is that in its judgment Cupara v. Serbia, the Strasbourg Court found no violation of Article 6 because national legislation in Serbia, reformed with the support of the Council of Europe, provided for “machinery capable for overcoming… inconsistencies [in judicial practice], namely referring to the action plan aimed at ensuring the general harmonisation of case law throughout the Serbian judicial system adopted by the Supreme Court of Cassation in April 2014.” In parallel to this dialogue between courts, court practice departments were created, which role is to provide regular updates to judges on the case law developments that occur in Strasbourg.

Similarly, in Georgia, a project funded by the EU contributed to the strengthening of the analytical department of the Supreme Court. Moreover, “Bench&Bar” meetings were initiated to develop a more consistent practice on specific legal issues, bringing judges, prosecutors and lawyers around the same table.  

The adoption of internal guidelines of the Chief Prosecutor’s Office and the High Council of Justice, taking into account Council of Europe recommendations, and providing guidance on how to disclose judgments without violating the right to privacy is also an example worth mentioning.

The appointment of a Jurisconsult in the courts, with specific responsibility for ensuring the consistency of case law, following the model of the Strasbourg Court is increasingly envisaged in a number of CoE member states. Such a position of course can only complement the availability of modern databases where case law can be easily searched. Other approaches to the pursuit of harmonisation include advisory opinions issued by high courts.

Of course, a key prerequisite for a judge to have a coherent interpretation of national and Strasbourg case law is to be equipped with the knowledge and skills to do so. I will not elaborate further on this question now but will just mention the CoE’s European Programme for Human Rights Education for Legal Professionals, better known as HELP, which aim is to ensure that high-quality training is provided throughout Europe and for that purpose, supports national training institutions, such as judicial academies and Bar Associations with its methodology and tools. HELP is the only Pan-European training network that provides tailor-made courses, adapted to the target group and the national legal system of each country.

In order  to respond to member States' increasing interest in the CoE's activities supporting the harmonisation of case law as a process contributing to more effective adjudication of numerous issues arising under the European Convention on Human Rights, we will organize a conference that will be held in September. This event will take stock of positive experiences and explore the ways in which member States could further cooperate in this area within the Council of Europe. The main issues that will be discussed with be: consistency of the case law as a prerequisite to legal certainty; the identification of human rights issues; and good practices in CoE member states, with a presentation of successful tools, mechanisms, and approaches. In parallel, the Consultative Council of European Judges (CCJE) is also preparing an opinion on consistency of national case law that should be adopted in early 2018.

Now, let me turn to the cooperation between the CoE and Turkey on the more general issue on implementation of Convention requirements at the national level. Since the constitutional amendments of 2010, The CoE has been working closely with the Turkish Constitutional Court on the establishment, and support of, the individual application mechanism. The importance of individual application mechanisms to constitutional courts is clear; indeed, this importance has been repeatedly reaffirmed by the Strasbourg Court. The right to an effective remedy reflects the fundamental role of the national judiciary, including, but not limited to the judiciary of the superior courts, as bearing the primary responsibility for ensuring effective implementation of the Convention at national level. The machinery of complaint to the Strasbourg Court is thus subsidiary to national systems’ safeguarding of human rights, as is reflected under Article 13 and under Article 35 § 1 of the Convention. One characteristic of the individual application mechanism that significantly contributes to its value is its capacity to bring greater coherence to domestic case law.  

In recent years, as part of the EU/CoE project "Supporting the Individual Application to the Constitutional Court in Turkey", the CoE has coordinated a series of activities to support the individual application mechanism. In all of our efforts, we have sought to ensure open and constant dialogue between national and CoE institutions, in the knowledge that we share a common goal of more effective protection of fundamental rights throughout the European continent, including in Turkey. The main aim of the Project has been to strengthen the capacity of Turkish judges, and other legal professionals in relation to the individual application mechanism. It is notable that much of the rights-related work before the Constitutional Court concerns the criminal judiciary. As part of the Project’s focus on this area, a Case Law Forum was held, attended by many of Turkey’s most senior judges, including ten members of the Constitutional Court. Its principal purpose was to provide a space in which participants could share and discuss judgments of the Turkish Superior Courts in which the case law of the Strasbourg Court in relation to fair trial rights had been applied, with a view to ensuring coherent case law amongst the supreme judicial authorities.

In addition, as part of the Project’s efforts to ensure a better understanding amongst legal professionals of the Constitutional Court’s approach in individual applications raising issues relating to rights and the criminal law, it has produced a book consisting of selected individual judgments of the Constitutional Court. The book covers not only judgments on procedural protections provided by Article 6 – the right to a fair trial – but also judgments related to other rights which are relevant in the criminal field. 

The work of our Project has adapted to reflect the challenges posed by the change in circumstances following the attempted coup d'état of July 2016. There has been a significant increase in the number of applications to the Constitutional Court. Many of these applications relate primarily to the state of emergency, and concern people who are currently held in detention. Inevitably, therefore, the jurisprudence of the Strasbourg Court shall require to be applied. Our project has bolstered its support to the Constitutional Court in light of the situation in which the Court now finds itself. It is important that in the recent Zihni and Mercan cases, the Strasbourg Court held that the current situation in Turkey did not dispense the applicants from the requirement to exhaust domestic remedies, holding that the arguments submitted, at least at that point in time, were not such as to cast doubt on the effectiveness of the remedies, especially that of an individual application to the Constitutional Court (Mercan v. Turkey, application no. 56511/16; and Zihni v. Turkey (application no. 59061/16). As a consequence, applicants shall generally continue to require seeking remedy under the individual application mechanism in the Constitutional Court before the Strasbourg Court can consider their claims of violations of the Convention.  It is therefore of essential importance that the Constitutional Court is able to coherently and correctly apply the Strasbourg jurisprudence.

In conclusion, I can only confirm that the CoE is committed to working alongside the Constitutional Court to ensure consistency in application of the case law.

The other two panelists will now be able to give you more concrete examples of specific issues that arise in the criminal process in the absence of a harmonised judicial practice.

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