‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Sunday, 20 July 2014

Role of courts in ensuring compliance with the ECHR and with the case law of the ECtHR

Forum on implementation of  the European Convention on Human Rights in Georgia - Tbilisi, Georgia - 18 July, 2014
by Marc de Werd, judge in the Amsterdam Court of Appeal in The Netherlands

I am very honoured to have been given the chance to address you during this conference. I am a judge in the Amsterdam Court of Appeal and as such I had the pleasure to meet  fellow-judges here in Tbilisi.  

I have been asked to talk today about the Role of the Courts in Georgia in ensuring compliance with the European Convention on human rights. This is a very broad subject. And there are of of course different ways how compliance with the Convention can be reached.

Today I will focus on the process of judging as such. I would like to make some remarks that I think are relevant for the situation in Georgia. I will discuss three conditions that are in my view critical for national judges to fulfil their duties under the Convention: 
  1. There is the notion that the ECHR is a living document that needs to be interpreted and developed by judges when this is necessary because of changing views and needs in society; 
  2. The development of Convention law presupposes a legal culture in which national judges feel free to interpret their national laws – if necessary - in accordance with the Convention; and 
  3. The judges’s duty of interpreting national legislation in accordance with the Convention leads sometimes to tensions with Parliament and the Executive. This is almost inevitable as we can see in all member states that are party to the Convention. Therefore it is of critical importance that judges are independent. Not only versus political bodies but also within their own organization.
Living instrument

In Georgia you have set major steps to reach the human rights level that is needed under the Convention. I have been explained that in 1997 your legislation has been brought in conformity with the Convention. However the point that I would like to make today is that compliance with the Human Rights Treaty goes beyond making good legislation. 

Since the early 1980’s The European Court of Human Rights in its judgments refers to the Convention as a living instrument or ‘living document’ or ‘living constitution’. With ‘living instrument’ or ‘document’ or ‘consitution’ the Court means that the body of Convention law is much bigger than only the text of the treaty. 

This living instrument" doctrine is one of the best known principles of Strasbourg case-law. It expresses the principle that the Convention is interpreted in the light of present day conditions, and that it evolves through the interpretation of the Court. 

In 2007 the former president of The European Court of Human Rights mr. Luzius Wildhaber wrote “the Convention is indeed a dynamic and a living instrument. It has shown a capacity to evolve in the light of social and technological developments that its drafters, however farsighted, could never have imagined in 1950. The Convention has shown that it is capable of growing with society ; and in this respect its formulations have proved their worth over five decades. It has remained a live and modern instrument.”

This principle of dynamic interpretation has received its most frequent expression in relation to Article 8 of the Convention. This is hardly surprising not only because of the breadth of the interests covered by Article 8, that is private and family life, correspondence and home, but also because it is precisely those interests which are most likely to be affected by changes in society. Article 8 has proved to be the most elastic provision. Thus it has embraced such matters as the taking of children into care, nuisance caused by a waste treatment plant, planning issues, aircraft noise, minority’ rights, corporal punishment in schools, access to confidential documents relating to an applicant’s past in the care of the public authorities, the choice of a child’s first name, application of immigration rules, disclosure of medical records and I could go on and on ; the list is a long one. It follows that Convention law is much broader than the text of the Convention that counts only 59 paragraphs. The Convention itself is only the tip of the iceberg.

Practical consequences

As the Convention is not a rigid but a flexible text there are 2 important consequences for national law:
  1. It is impossible to create legislation that is 100 percent in compliance with the ECHR because the case law from the Court in Strasbourg is constantly moving; and 
  2. National judges are obliged not only to take into account the text of the Convention but also the case law of the Strasbourg Court. Most of the Convention law is developed by judges. First by the judges in Strasbourg but also also on the national level by national judges in the 47 member states that are party to the Convention.
This is quite a challenge. In my country, the Netherlands, as in many other European countries judges find it quite difficult to keep up with the endless stream of judgments from the Strasbourg court. Also in the Netherlands judges were not used to the Anglo-American development of the law through case law from the courts.

Georgian judges and lawyers envisage big problems with the access to the case law of the ECtHR. Most judgments of the Court are written in English. And many of my Georgian colleagues do not speak nor read the English language.

In the database of the Court – that is accessible on the internet – you will find more than 80.000 judgments. However not more than 600 of these cases have been translated in the Georgian language. And the majority of these translations are not full text translations but short summaries of the judgments. It is impossible to understand Convention law when you have no access to the case law from Strasbourg in a language that you understand. This is a serious problem for compliance with the Convention in Georgia
The interpretation of case law

Of course access to the judgments of the ECtHR is only a first step.  A second very important step is how to interpret and apply the general principles that the ECtHR sets forward in its judgments.

Traditionally Georgian legal culture is very legalistic. This was also the case in The Netherlands for a long time. Our legal system is not based on case law. However in the field of human rights that are protected by the Convention this is exactly what the ECtHR asks from judges. Judges in Europe – also in Georgia - will have to get acquainted with the idea that not all the law can be found in legislation. They sometimes will have to explore new areas of human rights protection under the Convention that have not yet been incorporated in Georgian legislation.

It is also important for judges in Georgia to learn about the margin of appreciation that the Convention sometimes leaves to the member states. It is therefore very important that judges are able to analyse the Strasbourg case law and to discover to what extent they have to apply the Convention. Of course analysing and applying Convention law is not an easy job. It needs building up experience, schooling and training. 

Case load

I have great admiration for my colleague-judges in Georgia whom I met. I think that they are very capable in their job. But I also noticed that judges in Georgia have a very big case load that they have to deal with. Achieving compliance with the Convention and the extensive analysing of Strasbourg will make the workload only bigger for judges. Therefore it will be of critical importance to the Georgian state to make it possible for judges to fulfill their duties under the Convention.

Judicial independence

My last observation is that the judge’s duty to bring national legislation in accordance with the Convention leads to tensions with Parliament and the Executive from time to time. This is almost inevitable as we can see in all member states that are party to the Convention. Also in my country the question is often raised whether a change in the law belongs to the realm of the legislature or of the judiciary.

My answer is that parliamentarians and judges share certain responsibilities. If it is necessary to interpret national legislation in conformity with the human rights case law from Strasbourg this is also a duty of judges. This duty under the ECHR has to be respected by Parliament and the Executive.

Therefore it is of paramount importance that judges are independent. Not only versus political bodies but also within their own organization. Judges should never fear that they may loose their job when they are only trying to fulfil their duties under the Convention.

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