Uresničevanje sodb Evropskega sodišča za človekove pravice v slovenskem pravnem redu

V tretji letošnji številki Pravosodnega biltena je izšel moj prispevek o “Uresničevanju sodb Evropskega sodišča za človekove pravice v slovenskem pravnem redu” (str. 35-50). Povzetek je na voljo spodaj. Vabljeni k branju !

Evropsko sodišče za človekove pravice (evropsko sodišče) je osrednji evropski varuh človekovih pravic in temeljnih svoboščin, kamor se lahko posamezniki obrnejo, če države in njihovi pravni redi ne morejo oziroma ne želijo učinkovito zavarovati njihovih pravic. Ko Evropsko sodišče za človekove pravice poda sodbo zoper državo pogodbenico Evropske konvencije o človekovih pravicah (evropska konvencija), jo mora ta izvršiti v domačem pravnem redu. Pričujoči prispevek v zvezi s tem obravnava uresničevanje evropske konvencije in sodb evropskega sodišča v slovenskem pravnem redu. Namen prispevka je pojasniti značilnosti sodb evropskega sodišča in jasno poudariti obveznosti vseh vej državne oblasti, da izvršujejo sodbe evropskega sodišča zoper Slovenijo in uresničujejo njegove sodbe tudi v drugih primerih. Evropska konvencija je del slovenskega pravnega reda in zato neposredno zavezujoča za slovenska sodišča.


The Future of the Rule of Law and Democracy in Europe

The conference on “The Future of the Rule of Law and Democracy in Europe” took place on 14 December 2018 at the Faculty of Government and European Studies of Nova Univerza in Ljubljana, Slovenia. The keynote speech on the rule of law was delivered by Martins Mits, judge at the European Court of Human Rights.


The European Court of Human Rights, and Slovenia

The European Court of Human Rights recently published statistics for 2014, specifying a number of violations by Article and State. The Russian Federation, Turkey and Romania top the statistics for number of the Court’s judgements, followed by Greece, Hungary, Italy, Ukraine and more and less surprisingly also Slovenia. The ranking is similar when examining only judgements where the Court found at least one violation of the European Convention. It is not necessary to emphasise that Slovenia is by far the smallest country among the above and therefore carries the title of “champion” of the number of ECtHR judgements per inhabitant. For example, with a population that is 23 times bigger Spain has only received 6 judgements, 4 of which found violations.

The annual report for 2013 shows that by the end of that year the European Court had found a violation of at least one Article of the European Convention on the Protection of Human Rights and Fundamental Freedoms in 275 cases against Slovenia. If we add the figures from 2014 to this, when the ECtHR found violations in 29 cases, the ECtHR has thus far found that since 1994 Slovenia has violated the European Convention in 304 cases. Again, this puts the country on top of the list of judgements finding violations by the number of inhabitants. Most judgements relate to violations of the prohibition on inhumane and degrading treatment, the right to a fair trial within a reasonable period of time, and the right to an effective remedy. It therefore seems that the situation regarding the protection and realisation of human rights in Slovenia is not improving but, on the contrary, generally becoming worse. It seems that in the past year its position has further cemented. These statistics are more than alarming and call for careful and serious consideration. They have reached the level of seriousness that state institutions in Slovenia can no longer just sweep them under the rug if they wish to be seen as caring about improving the human rights situation in the country.

Why is the number of European Court judgements finding such violations so high in Slovenia in particular, why has the protection of human rights there not improved, and why has it even deteriorated over the past year? Problems cannot be solely ascribed to a lack of knowledge of the European Convention and the case law of the European Court of Human Rights, but are most likely also due to a lack of awareness about the seriousness of the problem. This absence of serious treatment of such systematic and global problems arises from all branches of power in Slovenia, especially the judiciary, as well as from the authorities, which should work for the better protection of human rights in Slovenia.

Neglect of this general and systematic problem is therefore reflected in the institutional malnutrition of government bodies that represent Slovenia in front of the European Court of Human Rights, and in the absence of institutions that should be responsible for implementing the European Convention and for enforcing European Court of Human Rights judgements. A few years ago Croatia, which is also facing many difficulties, although to a smaller extent than in Slovenia, established a special office representative of the Republic of Croatia to the European Court of Human Rights, which not only represents the country but is also responsible for enforcing the European court’s judgements against Croatia in the Croatian legal system. If nothing else, this institution highlights the commitment of the Croatian state with respect to the European Convention and the implementation of the ECtHR’s judgements.

Ignorance, indifference, unequal treatment and hypocrisy are often difficulties frustrating the effective protection of human rights in Slovenia. These problems are certainly not insurmountable. The holders of judicial office should be properly educated in order to gain insights into the jurisprudence of the European Court of Human Rights. Of course, problems may arise if individuals are reluctant to learn about the European court’s case law and apply it in their subsequent work or they receive signals from their superiors that such a reference is undesirable. The administrative part of the executive branch of government could have done more to disseminate the Convention and the other documents in the field of human rights protection.

What is more, the Slovenian legal order faces massive problems in the execution of judgements of the European Court of Human Rights. Unfortunately, no institution effectively coordinates (with the exception of payment of just satisfaction) the execution of judgements so that the majority, apart from some of that court’s most notorious judgements, remain unexecuted. General and individual measures have not been taken and put in force in the majority of cases. Moreover, among both the lay and professional public, an erroneous view has emerged that that a judgement of the European Court only generates international legal obligations and that the Slovenian legal system does not need to comply with them.

The more than 300 judgements since the beginning of Slovenia’s ratification of the European Convention clearly show that the Slovenian legal system and Slovenian society in general have failed to carry out systematic and all general and individual measures to ensure the effective protection of human rights. Tip-toeing away from these problems is no longer possible since that only leads to maintenance of the catastrophic status quo, creates new problems and exacerbates the already poor record of human rights protection. The 1,700 complaints before the European Court still pending against Slovenia illustrate the latter. Slovenia has already paid several million euros in compensation to complainants who have succeeded before the European Court. State institutions in Slovenia need to start with real work in order to eliminate violations and reduce the number of complaints and judgements to finally achieve the effective protection of human rights.

Đurić et al v. Bosnia and Herzegovina

FullSizeRender (3)The European Court of Human Rights has on 20 January 2015 delivered yet another judgment against Bosnia and Herzegovina in the case of Đurić and others v. Bosnia and Herzegovina (nos. 79867/12, 79873/12, 80027/12, 8020/12 and 115/13, 20 January 2015) concerning non-execution of final judgments awarding compensation to war victims under the terms of the War Damage Act 2005 of “Republika Srpska” (Serbian federal part of Bosnia and Herzegovina). The applicants maintained that judgments should be enforced without unreasonable delay of several years. Several applicants have waited already ten and more years for judgments to be enforced. The Court, accordingly, found that Bosnia and Herzegovina violated Article 6 and Article 1 of Protocol No. 1 to ECHR. It noted in para. 30 that:

By the end of 2005 when the War Damage Act 2005 was introduced some 9,000 judgments became final (see paragraph 13 above). While a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights is inherent in the whole of the Convention, the consequence of the respondent State’s action in delaying for another 20 years the enforcement of these judgments is to impose an individual and excessive burden on the creditors concerned.

This judgment is first in the line of many to follow as apparently there are at moment more then 400 hundred similar cases pending before the Court. In short, there is no political consensus nor financial resources available in Republika Srpbska for execution of those final judgments. What is more, situation is not different at the federal level where the Law on the Rights of Victims of Torture and Civilian War Victims still has not been adopted. Bosnia and Herzegovina has been for many years located in an unenviable position. It is located somewhere on a rocky ledge between stability and slip into the abyss that could plunge her back into the past of systematic human rights violations, rising unemployment and poverty. A country that is divided into two federal parts is held together only by the international community, through the High Representative of the Organization for Security and Cooperation in Europe. It seems that way out of this seemingly hopeless situation is at first glance not on the horizon. The future of Bosnia and Herzegovina is therefore largely depended on her integration within European Union that would eventually erase boundaries between different ethnics groups. Equally important is to ensure the continued effective prosecution of the perpetrators of the most serious crimes and provide victims with adequate compensation. If such measures will not be implemented, the future will not be very bright.

ECHR in Croatia and Slovenia

Akademski forum_dec2014_SI-HR-1-2Jean Monnet Academic Forum took place last week at the Graduate School of Government and European Studies at Brdo pri Kranju on the topic of implementation of the European  Convention for the Protection of Human Rights and Fundamental Freedoms in Slovenia and Croatia (with Goranka Lalić Novak and Vedran Đulabić as guests). The Forum was convened within the bilateral Slovenian-Croatian research project on the implementation of the ECHR in the Croatian and Slovenian legal order in terms of both procedural and substantive human rights. Both countries have faced difficulties in implementing ECHR and executing Court’s judgments. The bilateral project investigates if and how Croatian and Slovenian administrative and judicial authorities apply the ECHR. It identifies if the Croatian and Slovenian Constitutional Courts in their decisions apply and refer to the European Convention and the European Court of Human Rights. This research project focuses also on the question of what added value the ECHR provides for the constitutional protection of human rights and fundamental freedoms in the Croatian and Slovenian legal order.

Jean Monnet Forum on ECHR in Croatia and Slovenia

Jean Monnet Academic Forum on the implementation of the European Convention for the Protection of Human Rights and Fundamental Freedom in Croatia and Slovenia will take place on Monday, 8 December 2014, at the Graduate School of Government and European Studies, Brdo pri Kranju, Slovenia. More details are available here. Welcome!

Turkey and the European Court of Human Rights

Ergun Özbudun and Füsun Türkmen have last November published an excellent article in Human Rights Quarterly on “Impact of the ECtHR Rulings on Turkey’s Democratization: An Evaluation”. Here is the abstract:

Turkey has long retained the record of individual applications before the European Court of Human Rights (ECtHR). On the other hand, the ECtHR has been playing a crucial role in the democratization of this country, as most of its rulings were followed by substantial reforms. This, however, cannot conceal a dichotomy: although the reforms reflect the political will of the government, the decisions rendered by national courts often indicate the opposite, hampering the democratization process and leaving the country with a judiciary impasse. The reasons and consequences of this phenomenon are analyzed in this essay.

This article is a well-worth read. One may note that similar studies are need in the respect of several other member states of the Council of Europe.

Kurić and others v Slovenia

The European Court of Human Rights has on 12 March 2014 ordered Slovenia to pay a total of 250.199,42 € of pecuniary damages to 6 applicants in the case of Kurić and others v Slovenia (26828/06). As for the execution of judgment, the Court noted that :

it will be for the Committee of Ministers to evaluate the general measures adopted by the Republic of Slovenia and their implementation as far as the supervision of the execution of the Court’s principal judgment is concerned. The Court has consistently ruled that it does not have jurisdiction to verify, by reference to Article 46, whether a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments unless Article 46 § 4 of the Convention, as it stands since the entry into force of Protocol No. 14, applies..

143.  Lastly, as to the Court’s docket, although at the time of the adoption of the principal judgment only a few similar applications lodged by “erased” persons were pending before the Court, the Grand Chamber emphasised that, in the context of systemic, structural or similar violations, the potential inflow of future cases was also an important consideration in terms of preventing the accumulation of repetitive cases and decided that the examination of other similar applications should be adjourned pending the adoption of the remedial measures at issue (see paragraph 9 above and 415 of the principal judgment).

144.  In this connection, the Grand Chamber notes that there are currently some sixty-five cases lodged by “erased” persons pending before the Court, involving more than 1,000 applicants. Swift implementation of the Kurić and Others judgment is therefore of the utmost importance (see, mutatis mutandis, Greens and M.T., cited above, § 111).

It will be therefore upon the Committee of Ministers of the Council of Europe to examine whether Slovenia has adopted appropriate general measures and adequately executed this judgment.