Open Democracy, 20/02/2014
The preamble to the Universal Declaration of Human Rights affirms that the rule of law is an important antidote to"rebellion against tyranny and oppression". Despite progress in the 47 member states of the Council of Europe, the antidote is growing weaker in a number of them. Following country visits focusing on the administration of justice and human rights, I have identified three recurring problems: non-enforcement of court decisions, challenges to the legitimacy of the judiciary and pressure on the independence of judges.
Delay in—or, indeed, absence of—implementation of decisions by national courts is one of the most insidious threats to the rule of law. This has increasingly been recognised by the European Court of Human Rights as a violation of the European Convention on Human Rights (ECHR), in particular the right to a fair trial. By failing to enforce decisions of national courts, state authorities undercut a pillar of the rule of law and deny justice.
From 2010 to 2013, the European court found 289 violations of the ECHR because of non-enforcement of domestic judgments. Turkey, Russia, and Romania accounted for more than half of them. The problem persists too in Albania, Azerbaijan, Bosnia and Herzegovina, the Republic of Moldova, Serbia and Ukraine. And these cases which actually reach Strasbourg are likely only the tip of the iceberg, with many more domestic judgments not enforced at member-state level.
"Cherry-picking" judgments
The problem is not confined to decisions of national courts, however. At the end of 2012, more than 11,000 decisions of the European court were still awaiting implementation by member states.
Moreover, there is a tendency in some countries to "cherry-pick" judgments of the court, depending on their acceptance by political authorities. Take the cases concerning actions of security forces in the north Caucasus. Over the last decade, more than 120 judgments of the European court have found violations by the Russian Federation, resulting from serious infringements of the convention: unjustified use of force, disappearances, unacknowledged detentions, torture and ill-treatment—as well as lack of effective investigations into the alleged abuses and absence of an effective domestic remedy. Though monetary compensation has generally been awarded, Russia has yet fully to implement the judgments, particularly in effective investigation of such crimes.
Another example is the Czech Republic, which in 2007 was found in violation of the ECHR for segregating Roma children in education. Though action plans to address the situation have been adopted by the authorities, seven years after the DH judgment the percentage of Roma pupils corralled in programmes designed for children with "slight mental disabilities" remains disproportionately high.
Toxic discourse
The case of selective implementation on which most ink has been spilled is probably the United Kingdom's prolonged non-compliance with the Hirst and Greens and MT judgments, where the European court found that an automatic and indiscriminate ban on voting rights for prisoners breached the ECHR. Political leaders at the highest level have clearly stated their opposition to implementing this judgment and have fuelled a toxic discourse depicting the European court as a threat to parliamentary sovereignty.
This denies justice to thousands of people in the UK and exposes another facet of the threat to the rule of law—the challenge to judicial authority itself, whereby political elites have contributed to the delegitimisation of the judiciary. At the root of the problem of non-enforcement lies the belief that those in power are the depositaries of higher democratic legitimacy than those who are there to ensure that the rules are respected. The result, rulers think, is that the law can be broken to accommodate the state's interest or the real or supposed will of the people. This notion is profoundly wrong and dangerous.
It is wrong, because in a democracy elected governments do not hold a monopoly on legitimacy. They share it with the judiciary, which, to fulfill its mandate as guarantor of human rights, has to remain impervious to power shifts resulting from the electoral process. It is dangerous because delegitimisation of the judiciary inevitably polarises society, thus risking destabilising the democratic fabric and distancing a country from internationally agreed human-rights norms and standards.
International criticism
This has recently become evident in Turkey, where a bill extending the government's influence on the functioning of the judiciary was adopted a few days ago, after being suspended in January amid national and international criticism. The bill represents a significant setback for judicial independence in Turkey, as it transfers key powers of the General Assembly of the High Council of the Judiciary to the minister of justice—going in the opposite direction to recommendations of international bodies, including my office.
This is highly regrettable and does not bode well for the future of Turkey's democracy. Combined with the removal and reassignment of prosecutors involved in a high-profile criminal investigation, it has shaken already fragile public confidence in the independence and impartiality of the judiciary, in a country where impunity of state actors committing human-rights violations has consistently been a major concern.
Another example is Russia, where efforts by the government to reform the justice system have not fully assuaged concerns about the proper functioning of the judiciary, in particular its independence and impartiality. Procedures and criteria to appoint, dismiss and sanction judges still provide insufficient guarantees of objectivity and fairness. Between 2002 and 2012 more than 600 judges were dismissed and almost 2,500 cautioned. Although there has been a steady decline in sanctions since 2010, the pattern remains that judges are not shielded from undue pressure, including from within the judiciary.
In addition, the criminal-justice system, where the prosecutor's office exercises wide discretionary powers, is still set up to deliver guilty verdicts: acquittals are perceived as a system failure. In their rare eventuality, prosecutors almost always file appeals, as they do against putatively lenient sentences. Defence rights are also often impaired by harassment and other forms of pressure on lawyers, who frequently face impediments in assisting their clients.
In Albania, the justice system has found it hard to shake off corruption and political interference. Various strategic documents and legislation have been adopted in recent years or are anticipated but so far the independence and impartiality of the judiciary are not properly ensured.
Leverage
These examples—which I could easily multiply—show the various ways the executive and legislative branches use their leverage to influence judicial matters. Elected officials and parliaments have the power to propose, make and change the laws that the courts interpret and apply. This does not however entitle them to use their legislative powers to rein in the judiciary. On the contrary, politicians must uphold and strengthen judicial independence, impartiality and efficiency.
One means is to apply consistently and systematically the relevant international standards. The Council of Europe Committee of Ministers, the body where all member states take decisions, adopted a recommendation in 2010 providing guidance on ways to safeguard the independence of judges. Four seem highly topical today.
First, judicial independence should be enshrined in the constitution or at the highest possible legal level in member states. Secondly, the executive and the legislature should avoid actions which may call into question their willingness to abide by judges' decisions, such as attempts to discredit the judiciary or undermine its independence. A third element is to establish by law, or under the constitution, councils for the judiciary, whose members mainly comprise judges elected by their peers with full respect for the pluralism inside the judiciary. Finally, strict rules should apply when it comes to determining the liability of judges who fail to carry out their duties in an efficient and proper manner, with proceedings conducted by an independent authority or court without the involvement of political bodies and in full compliance with the principles of a fair trial.
Human rights
Politicians can encourage the adoption of measures to improve court management and effectiveness, in full respect of judicial independence. One tool consists of performance indicators aimed at mainstreaming the application of human rights. In Turkey, the High Council became much more independent following a constitutional referendum in 2010, which introduced among the assessment criteria of judges the compatibility of domestic rulings with the ECHR and the case-law of the European court. This has produced very encouraging results.
Another tool comprises the SATURN guidelines set by the Council of Europe Commission for the Efficiency of Justice, which contain specific recommendations to improve judicial effectiveness. In 2001 the First Instance Court of Turin adopted a programme to reduce the length of civil proceedings, which has yielded very positive results and has helped solve a quarter of the cases accumulated—all the more significant in a country where justice generally proceeds very slowly.
These experiences are promising and should inspire legislators and policy-makers to improve judicial effectiveness. The common denominator has to be preservation of the independence, impartiality and proper functioning of the judicial system, which is an indispensable component of the rule of law and in turn constitutes the basis of a genuine democracy. The rule of law protects us all by ensuring equal treatment, maintaining order in society, guaranteeing fair trials in a reasonable time, sanctioning government abuse of power and preventing arbitrariness.
Undermining this system would lead society down a path where there might be rule by law but no longer real rule of law. This is a path European countries have the resources and the obligation to avoid.