The 2015 EU Justice Scoreboard

The European Commission has recently published the 2015 EU Justice Scoreboard. The Scoreboard provides information on quality, independence and efficiency of judiciaries in all EU Member States. The Commission notes in conclusion that :

The 2015 EU Justice Scoreboard reflects the efforts undertaken by Member States to render their national justice systems more effective. It shows certain improvements but at the same time reveals that reaping the benefit of justice reforms takes time. Commitment and determination are therefore indispensable to achieve more effective justice.

A short factsheet is available here.

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.

Jean Monnet Forum on fair trial guarantees in Slovenia

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Interesting discussion on fair trial guarantees in Slovenia took place on 25 November 2014 at the Jean Monnet Academic Forum of the Graduate School of Government and European Studies in Kranj with two excellent lawyers : Marko Šorli, judge at the Supreme Court of the Republic of Slovenia, and Ivan Kukar, attorney at law.

Motoc and Zobec discussing systemic problems of judiciary from a judge’s perspective

e8dcebfd55c9d5d7bbfc0a0f8263a6f3_MJudge Iulia Motoc of the European Court of Human Rights and Jan Zobec of the Constitutional Court of the Republic of Slovenia discussing systemic problems of judiciary from a judge’s perspective at the Conference on Crisis of Rule of Law and Democracy in Europe. Photo courtesy of demokracija.si.

Pitfalls of the National Processes for Selecting Judges for the European Court of Human Rights

N.B. This post was first published at Verfassungsblog.

The position of a judge at the European Court of Human Rights is one of the most sought-after functions in the European judicial space. The persuasiveness, quality and legitimacy of judicial decisions often depend on the individuals who occupy judicial positions. Respective interest groups therefore often attempt to shape the processes for selecting judges at either the national or international levels. The process of nominating and electing judges to the European Court of Human Rights is therefore essential to ensure the appearance of their perceived and actual independence and impartiality. The national nomination processes of judges to the European Court of Human Rights is therefore in most Central and Eastern European countries highly prestigious and thus often politicised and riddled with several obstacles.

The first paragraph of Article 21 of the European Convention on Human Rights and Fundamental Freedoms provides that “the judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. National criteria vary from state to state and may ask the candidates to demonstrate “professional reputation of the field of human rights and fundamental freedoms” and “high moral character, impartiality and integrity.” However, such legal concepts are quite open to subjective interpretation. In this way, it seems best to also assess a candidate’s competence based on their ex ante work. This is in line with the Parliamentary Assembly of the Council of Europe’s Resolution 1726 (2010) which requires “that national selection procedures must be rigorous, fair and transparent in order to enhance the quality, efficacy and authority of the Court” (para. 7).

Article 22 of the European Convention on Human Rights and Fundamental Freedoms provides that “the judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party”. However, once candidates pass through a national nomination stage they face of number of other checks. Thus, before the vote candidates must undergo a series of interviews before the Subcommittee on the Election of Judges to the European Court of Human Rights of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly. Such a rigorous selection procedure should ensure that only the best candidates are elected due to their experience and expertise in the field. In the first round of voting, the candidate who received the majority of votes in the Parliamentary Assembly will be elected. If no candidate receives the majority, in the second round a relative majority is sufficient (see the Information Document of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, paragraph 13).

However, even though the selection process in the Council of Europe is quite rigorous and strict, it does not fully exclude the possibility of day-to-day politics interfering with the national selection process. The Council of Europe does not have much influence on the national selection procedures. Consider, for instance, the ongoing national nomination process for three candidates for a judge on behalf of Slovenia. The mandate of the incumbent judge at the European Court of Human Rights on behalf of Slovenia expires on 31 October 2015. Therefore, in spring this year the Ministry of Justice of the Republic of Slovenia started a selection procedure for the nomination of three candidates to the Parliamentary Assembly of the Council of Europe by publishing a call for applications. Seven candidates applied, namely six men and one woman. The Judicial Council of the Republic of Slovenia prepared a ranking of the candidates and proposed that the President of Slovenia sends the names of the three highest ranking candidates to the Slovenian National Assembly, which had to vote on that list in order for it to be sent to the Parliamentary Assembly of the Council of Europe. (However, the list was not welcomed by human rights experts in Slovenia as no candidate with ECHR expertise applied). Therefore, at the end of August the President of Republic of Slovenia refused to send the list of the three highest ranking candidates to the National Assembly and requested that the Ministry of Justice repeat the call for applications. It is not entirely clear why the President rejected the list approved by the Judicial Council, but it appears that he was not impressed by the candidates’ merits. Surprisingly, at this point of time the Ministry of Justice does not plan to repeat the call for application. However, this may change because just a few days ago a new government assumed office. This situation is not unusual in national selection procedures as the position of ECtHR judge is a highly prestigious function. However, the particularities of the national selection often remain hidden from the public eye.

The Council of Europe does not have much possibility to monitor the objectivity and transparency of national selection procedures. However, it can reject a national list of proposed candidates. For instance, last June the Parliamentary Assembly rejected a list of candidates for a judge on behalf of the Slovak Republic and requested the state to submit a new list of candidates (n.b. a new judge on behalf of the Slovak Republic has still not been elected even though the incumbent’s mandate expired on 31 October 2013). Similarly, the Council of Europe rejected Turkey’s first list of candidates in 2007. Further, in April 2012 Human Rights Watch noted as regards a proposed Russian judge that “are some problems with the constitution of the commission empowered to select candidates« and that the commission »did not include any representatives from civil society organisations or the office of the Ombudsman«. All in all, the 2008 PACE Report accordingly notes that national nomination procedures are “still unsatisfactory«. Therefore, the Committee of Ministers now also offers advice to the Member States through an advisory panel of experts on national selection procedures.

Arguably, the Central and Eastern European countries may be more prone to unfairness in their national selection procedures because their judiciaries have often remained closed, self-sufficient and formalist. More reasons can be found in excessive formalisms, post-communist judicial cultures, a lack of self-criticism of judicial structures and a lack of independent media in most Central and Eastern European states, and all of them may have influenced the national selection procedures of judges to the ECtHR. In those countries, the merits of the candidates may only play side role in the nomination process and where the nomination of candidates to the European Court of Human Rights comes down to brutal daily politics and attacks on the candidates in the media. However, the reasons for the problem-ridden nomination process can be located in the remnants of the former totalitarian regime, creating excessively formal legislative and judicial cultures, which may be open to various political influences. Therefore, those states need to improve the fairness, transparency and independence of their national selection procedures.

The procedure for selecting judges to the European Court of Human Rights is important since the people who interpret and develop the text of the articles of the European Convention are the judges of the ECtHR. The judges flesh out the content of the ECHR as a ‘living process’ in judgments and in separate concurring and dissenting opinions. The ECHR is a normative document for the protection of human rights with maximum legal value and force, but it is also a political document that contains a number of unsettled legal concepts. Such legal concepts can be interpreted by people – judges –  who decide in concrete cases with different levels of knowledge and experience.

It is crucial that the selection procedures for judges of the European Court of Human Rights take place in an open, fair, rigorous and transparent manner on the basis of a careful assessment of the candidates’ professional references. The selection commissions should demonstrate perceived as well as genuine independence. European judges, like other judges of the highest courts, reflect their personality, beliefs and values through their decisions and separate opinions. However, once judges are elected their work will be assessed on the reasoning and persuasiveness of the arguments found in their judgments and decisions.

Programme of the conference “Crisis of Rule of Law and Democracy in Europe”

We have previously posted about conference on “Crisis of Rule of Law and Democracy in Europe” to take place this Thursday and Friday at Brdo pri Kranju, Slovenia. Here is now its full programme :

Day 1: Thursday, Sept 25, 2014
17:00 – 19:00
Welcome Address
Matej Avbelj
Damir Črnčec
Keynote Address
by Kimmo Nuotio: “Setting the Scene – the Patria Case: Criminal Justice in the Political
System”
Discussant: Matej Avbelj
19:30 Dinner for the participants
Day 2: Friday, Sept 26
Crises of the Rule of Law and Democracy in a Comparative Perspective: Vestiges of the
Past, Vices of the Present, Prospects for the Future
Panel 1: Fighting the Vestiges of the Past in the Present
9:00 – 11:00
Anna-Bettina Kaiser (Germany)
Daniel Smilov (Bulgaria)
Uladzislau Belavusau (Belarus)
Discussant: Vojko Strahovnik
11:00 Coffee Break
Panel 2: Challenges of the Present for the Future
11:15 – 13:15
Paul Blokker (Italy)
Eszter Bodnar (Hungary)
Goran Selanec (Croatia)

Discussant: Katarina Vatovec

Lunch Break 13:30 – 14:30
Panel 3: Specificities of the Slovenian Situation
14:30 – 16:30
Jernej Letnar Černič
Damjan Možina
Marko Novak
Discussant: Miha Movrin
16:30 Coffee Break
17:00 – 19:00
Round-table Discussion: Systemic Problems of Judiciary from a Judge’s Perspective
Iulia Motoc (Judge, European Court of Human Rights)
Marko Šorli (Judge, Supreme Court of Slovenia)
Jan Zobec (Judge, Constitutional Court of Republic of Slovenia)
Chair: Matej Avbelj

Former Strasbourg judge wins landmark dismissal case

The European Court of Human Rights has recently delivered judgment in the case of Baka v Hungary (20261/12) concerning the dismissal of the former President of the Supreme Court of Hungary, András Baka, who held between 1991 and 2007 the post of the Hungarian judge at the European Court of Human Rights. Baka complained that he was prevented from challenging the termination of his position as the Supreme Court justice before his mandate expired. Baka was during his term very critical of the incumbent Hungarian government. His position as the President of the Supreme Court was terminated due to the structural and institutional changes within the highest level of Hungarian judiciary.  Baka was later elected for a judge of the new Kúria, the successor of the former Supreme Court of Hungary. Even though this case should not be read and interpreted without the reference to the recent developments in Hungarian public space and the remnants of post-communist legacy, it nevertheless offers some insights as to the nature and scope of freedom of expression of judges at the highest national courts. In this way the Court held that :

100.  … it was not only the applicant’s right but also his duty as President of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary, after having gathered and summarised the opinions of different courts. The applicant also used his prerogative to challenge some of the legislation concerned before the Constitutional Court and the possibility to express his opinion directly before Parliament during the relevant parliamentary debate. There is no evidence to conclude that the views expressed by the applicant went beyond mere criticism from a strictly professional perspective, or that they contained gratuitous personal attacks or insults.

The Court therefore confirmed that also judges enjoy freedom of expression, which is, however, not unlimited. Freedom of expression is a human right which protects the important democratic values of pluralism, free thinking, tolerance and broadmindedness. The European Court of Human Rights has stated that freedom of expression “is a prerequisite for the functioning of democracy” (Özgür Gündem v. Turkey, no. 23144/93, 16.3.2000, para. 43). The maturity of a society can be judged by the level of its culture, speech and dialogue. Freedom of expression, of course, is not an all-encompassing right that would protect even the most extreme forms of expression in a democratic society. The Court therefore found :

78.  … that there has been a violation of the applicant’s right of access to a tribunal competent to examine the premature termination of his mandate as President of the Supreme Court, as guaranteed by Article 6 § 1 of the Convention.

The Court found also held that Hungary violated applicants’sfreedom of expression. More specifically, it noted:

101. The applicant’s term of office as President of the Supreme Court was terminated three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election… The Court reiterates that the fear of sanction has a “chilling effect” on the exercise of freedom of expression and in particular risks discouraging judges from making critical remarks about public institutions or policies, for fear of losing their judicial office …This effect, which works to the detriment of society as a whole, is also a factor that concerns the proportionality of, and thus the justification for, the sanction imposed on the applicant.”

This case confirms that freedom of expression enjoys broad protection. What is more, freedom of expression is very much dependent on the notion of democracy so that courts must address dilemmas of freedom of expression hand in hand with protection of pluralism in a given society. Therefore, harsh political statements and contributions will not be a priori excluded from the scope of protection of freedom of expression.

N.B. Is Mr Baka the first former Strasbourg judge to win a case before ECtHR ?