Applying and supervising the ECHR The role of Supreme Courts in the domestic implementation of the European Convention 100 on Human Rights 95 Proceedings of the Regional Conference 75 Belgrade, 20-21 September 2007 Serbian Chairmanship 25 Committee of Ministers COUNCIL OF EUROPE 5 May > November 2007 COUNCIL CONSEIL 0 OF EUROPE DE L’EUROPE LHRCBD (2008) 1 The role of Supreme Courts in the domestic implementation of the European Convention on Human Rights Regional conference organised by the Directorate General of Human Rights and Legal Affairs and the Supreme Court of Serbia in the framework of Serbia’s Chairmanship of the Committee of Ministers of the Council of Europe Belgrade, 20-21 September 2007 Proceedings Directorate General of Human Rights and Legal Affairs Council of Europe August 2008 Édition française: Le rôle des Cours suprêmes dans la mise en œuvre de la Convention européenne des Droits de l’Homme au niveau interne. Conférence régionale organisée par la Direction générale des droits de l’Homme et des affaires juridiques et la Cour suprême de Serbie, dans le cadre de la Présidence de la Serbie du Comité des Ministres du Conseil de l’Europe, Belgrade, 20-21 septembre 2007 The opinions expressed in this work are the responsibility of the author and do not necessarily reflect the official policy of the Council of Europe Directorate General of Human Rights and Legal Affairs Council of Europe F-67075 Strasbourg Cedex http://www.coe.int/justice/ © Council of Europe, 2008 Printed at the Council of Europe Contents Introduction Opening of the Conference Vida Petrović-Škero, President of the Supreme Court of Serbia . 8 Philippe Boillat, Director General of Human Rights and Legal Affairs, Council of Europe . 10 Welcome message on behalf of Serbian Foreign Minister Vuk Jeremić Radojko Bogojević, State Secretary of the Ministry of Foreign Affairs of the Republic of Serbia. 12 The authority of the jurisprudence of the European Court of Human Rights Jean-Paul Costa, President of the European Court of Human Rights . 15 The role of the Supreme Court of Albania in the domestic implementation of the European Convention on Human Rights Perikli Zaharia, Judge of the Supreme Court of Albania . 22 The independence of the judiciary: current problems and possible solutions Philippe Boillat, Director General of Human Rights and Legal Affairs, Council of Europe . 27 Guidance by Supreme Courts to lower courts on the requirements of the European Convention on Human Rights Paul Lemmens, Conseiller d’Etat, State Council of Belgium. 36 Providing remedies for judicial delays in criminal proceedings – the experience of Bulgaria Bilyana Chocheva, Judge of the Supreme Court of Cassation, Bulgaria. .52 Regional Conference, Belgrade, 20-21 September 2007 3 Providing remedies for judicial delays – the experience of Slovenia Franc Testen, President of the Supreme Court of Slovenia. 65 Securing of legal remedies for court delays Vladimir Babunski, Judge of the Supreme Court of “the former Yugoslav Republic of Macedonia”. 73 Acquisition by judges of skills and expertise essential for the application of the European Convention on Human Rights and the case-law of the European Court of Human Rights Vida Petrović-Škero, President of the Constitutional Court of Serbia . 82 Ensuring that judges have the skills and knowledge to apply the European Convention on Human Rights and the case-law of the European Court of Human Rights Gabor Szeplaki-Nagy, Judge of the Supreme Court of Hungary . 87 Evaluation of supposed obstacles to an effective implementation of the European Convention on Human Rights by national courts Jeremy McBride, Barrister, Monckton Chambers, London and Visiting Professor, Central European University, Budapest . 91 Pilot judgments of the European Court of Human Rights Dragoljub Popović, Judge of the European Court of Human Rights in respect of Serbia . 107 Reopening of proceedings further to a finding, by the European Court of Human Rights, of a violation of Article 6 of the European Convention on Human Rights Florin Costiniu, President of the Civil Chamber of the High Court of Cassation and Justice of Romania . 123 Reopening of proceedings to establish violation of Article 6 of the European Convention on Human Rights and assess damage caused by violation of a right protected by the Convention Dušanka Radović, Judge of the Supreme Court of the Republic of Montenegro . 133 4 The role of Supreme Courts in the domestic implementation of the ECHR Final observations Vida Petrović-Škero, President of the Supreme Court of Serbia . 140 Philippe Boillat, Director General of Human Rights and Legal Affairs, Council of Europe. 143 Appendix I: Programme Appendix II: Participants Regional Conference, Belgrade, 20-21 September 2007 5 Introduction The initiative to hold a regional conference to discuss the role of Supreme Courts in the domestic implementation of the European Convention on Human Rights, was taken by the Serbian Chairmanship of the Committee of Ministers of the Council of Europe. The conference, organised by the Directorate General of Human Rights and Legal Affairs, in co-operation with the Supreme Court of Serbia, the Serbian Ministry for Foreign Affairs and the Council of Europe office in Belgrade, gave rise to an in-depth exchange of views on national experiences, the progress made and the challenges still to be faced with regard to an effective implementation of European human rights standards within Council of Europe member states. The role of the case-law of the European Court of Human Rights as a guiding tool for Supreme Courts and national judicial systems was highlighted. The subsidiary character of the European Convention on Human Rights was emphasised during the conference, along with the role of national judges in making the protection of human rights a reality at national level. Finally, the par- ticipants also stressed the need for an independent and qualified judiciary. Regional conference, Belgrade, 20-21 September 2007 7 Opening of the Conference Vida Petrović-Škero President of the Supreme Court of Serbia Esteemed judges, ladies and gentlemen, dear guests, good day and wel- come. The Supreme Court of Serbia is honoured to have organised this conference, together with the Council of Europe, as part of Serbia’s activities relating to its chairmanship of the Committee of Ministers of the Council of Europe. We expect this meeting to contribute to the development and improvement of co- operation between the countries and Supreme Courts of the region and to the achievement of European goals: respect for human rights, the establishment of the rule of law and the development of democracy. By organising a meeting of this significance, the judiciary of our country has proved its commitment to the fundamental values, standards and norms of the Council of Europe and con- firmed its willingness to contribute to their full observance at the national, re- gional and international levels. Member states are striving to define the frameworks, methods and contents of their mutual co-operation and European integration within the framework of the Council of Europe and on the basis of equality and mutual respect. We expect that during the conference the participants will exchange experiences and views on certain legal topics, problems and their possible solutions and that they will make arrangements for their further co-operation. The Republic of Serbia, as a signatory to the Convention on Human Rights, has pledged to ensure respect for the rights and freedoms laid down in the Con- vention. These values form the basis of democracy in any society and constitute the foundations of justice and peace in the world. A greater unity among the members of the Council of Europe and better co-operation at the regional level will ensure greater efficiency in the implementation of the provisions of the Con- vention. In each individual country as well as at the regional and European levels, the judiciary plays the most important role in promoting the implementation of 8 The role of Supreme Courts in the domestic implementation of the ECHR the Convention on Human Rights. The Supreme Court of every country has the role to encourage other courts to reach an adequate level of human rights pro- tection and provide them with guidelines for the implementation of the provi- sions of the Convention. In order for the judiciary to be able to carry out this task, it is necessary for the state to ensure conditions for continuing education, for raising the level of skills and expertise of judges for the implementation of the Convention and the case-law of the European Court of Human Rights. Countries in transition are faced with a serious task with regard to harmonis- ing their domestic practices with international and European standards in all areas, including the improvement of human rights protection. If all three branches of government do everything they can within their purview to ensure conditions for the implementation of a mechanism for the effective protection of the rights of citizens in judicial proceedings, the results and progress will be assured. A good assessment of obstacles to the effective implementation of the European Convention on Human Rights and correctly selected mechanisms for overcoming those obstacles will also improve the quality of the protection of the rights of citizens and the trust they place in the courts. Continuing co-operation with European institutions, notably the Council of Europe, will help us too to overcome the difficulties we are facing at the moment and to fulfil our obligation to adopt and implement European standards as best we can. The Supreme Court of Serbia and the judiciary of our country are ready to in- crease the effectiveness of implementation of the Convention on the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights.