Public Interest Law Conference: "European Judicial Institutions – Decision-making Trends and Impact on Decision-making in Slovakia"

Such practice appears to be inconsistent with the provision of Article 45 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The discussion makes the point that this is most likely, among other things, due to the ECHR’s overburdened working capacity, and one of the ways, in which the Court eases out on its overloaded work schedule. That would appear to be reasonable, in particular, concerning applications that lack their fundamental requirements under the Convention, where any further correspondence with the applicant would only add yet another unnecessary and unreasonable burden on the already overburdened Court. Nevertheless, participants in the discussion agreed that such way of addressing citizens’ complaints is less than appropriate, if not overtly inconsistent with the Convention on the following grounds:

• It fails to fulfill the many times repeated principle of the ECHR that justice is not only to be enforced but visible.
• Dismissal by means of a plain letter without any statement or explanation as to the reasons of dismissal appears arrogant and undignified considering, in particular, that application is subject to numerous formal requirements under the Convention.
• If the Court has certain competences, it may not simply refuse to apply them and instead seek other ways of handling that are incompatible with the Convention; the Court’s overburdened schedule may not be a ground for prejudicing applicants’ rights.
• As the dismissing letter fails to give any reasons as to why the application should be unacceptable, such decision-making has no preventive effect on the applicant or other persons involved either, as they remain uninformed as to the actual fault or mistake they may have made.
• Substantiation of a decision (also concerning dismissal of application) has a bearing on the attorney/client relationship, as the attorney is responsible for providing legal assistance to his client.

Additionally, groundless dismissal of applications is a sensitive issue also due to the fact ECHR has been criticizing and sanctioning national courts for similar practice (i.e. insufficient substantiation in decision-making). The participants in discussion converged that at least a brief substantiation of a dismissing decision is necessary (in respect also to Article 45 of the Convention).

Delays in proceedings - approach to solutions by the Slovak Constitutional Court and the European Court of Human Rights

Complaints/applications concerning delays in proceedings at general courts amount to a substantial part of the agenda of both the Slovak Constitutional Court and the ECHR. However, the institutions differ in their approach to this issue. As a result, a dispute, in which the complainant was only partially successful, or, for that matter, even lost his case in proceedings before the Slovak Constitutional Court may be decided differently by the ECHR. Applicant can thus make a successful claim in proceedings before the ECHR, even though the facts and circumstances at issue have remained virtually unchanged. The differences in approach of both judicial institutions are, in particular, as follows:

• Time limit for submitting complaint/application: the time limit, within which the complainant can make its statement of claim with the Slovak Constitutional Court is 2 months, while the same time limit for applicants with the ECHR is 6 months.
• Reference to person, against which the complaint/application is made: The Slovak Constitutional Court considers delayed proceedings in cases that are pending before the courts of last instance, while the ECHR decides in cases against the Slovak Republic, thus considering delays in proceedings occurring at all instances of court action (i.e. not only at the last instance).

Additionally, both institutions differ on the following accounts:

• Determination of monetary damages in personal injury cases: The Slovak Constitutional Court has tended to awarding lower damages than those awarded by the ECHR.
• Exhaustion of ordinary remedies: The Slovak Constitutional Court considers it necessary to exhaust, as effective remedy, an additional complaint addressable to the presiding judge of the non-acting/delaying court, unlike the ECHR that does not consider such application an effective means of protecting the applicant’s rights, and, thus, does not require the applicant to use it.

The discussion makes the point that delays in proceedings are at times viewed differently even within the individual Chambers of the Slovak Constitutional Court itself. Several of these approaches may serve as inspiration to overcome the current dualist approach in ensuring the complainant’s protection in cases of delayed proceedings, and the participants identified a number of possible solutions:

• Where, before a case is decided on a final and conclusive judgment, the applicant has raised, within the 2 months statutory period and in proceeding before a court, objection as to the delay in proceedings at all court instances (i.e. including lower courts, in addition to the court of last instance), while, at the same time, objecting violation of Article 48 Constitution of the Slovak Republic and Article 6 of the Convention, the Slovak Constitutional Court has ample opportunity to consider delays in proceedings before courts of all objected instances. However, as the attending members of the Slovak Constitutional Court make clear, the complainant’s activity is required throughout the proceedings (i.e. use of all available procedural means of accelerating the course of action – that is, including, e.g., complaining delay with the presiding judge of the competent general court). Such procedure could, arguably, be applied even for judgments that have been final and conclusive for less than 2 months. The participants’ views differed on this account.
• Others believe that delays in proceedings should be no issue for the Slovak Constitutional Court to consider at all; instead, this should be in the jurisdiction of the general courts. Currently, delays in proceedings amount up to 40 % of all complaints before the Slovak Constitutional Court, thus reducing the Court’s capacity for disputes, for which it has been primarily established. Several participants believe that delays in proceedings should be an agenda of the general courts – on the grounds provided in Act no. 514/2003 Coll. regulating liability for damages incurred in the course of exercising public office.

The Adversarial System of Justice versus Access to Justice (the quality of access to justice vs. the adversarial nature of procedure)

Currently, the adversarial system is one of the fundamental principles of both civil and criminal proceedings. The discussion has fostered the question as to whether and how is the exercise of the right of a fair and just trial arranged in a proceedings, where both parties have failed to propose establishment of evidence that is substantial for future action. This issue has a particular bearing on the rights of the injured party in criminal proceedings, where the prosecutor fails to establish all necessary evidence. The participants agreed that even though the position of the judge is that of the “manager of the dispute” rather than dominus litis, the law nevertheless allows him (in exceptional cases) to establish even such pieces of evidence as the parties in proceedings (including the prosecutor) fail to submit themselves. What remains open is the issue as to whether not establishing such evidence can amount to the competent court’s violation of the right to a fair and just trial.

The discussion has made the point that the ECHR does not proceed to review the facts and circumstance of a case and the correctness of ascertaining them; rather, it reviews the consistency of reasoning, in particular, where findings suggest serious violation of rights.

Considerations of the intentsity of intervention in the Prohibition on Torture (Article 3 of the Convention) in special proceedings - Terrorism

Further discussion involved the effects of Article 3 of the Convention (prohibition of torture), specifically as to whether the effects of that Article are absolute or whether a higher interest can ground exemptions under particular circumstances. In respect to the current international and social situation and the threat of global terrorism, the participants weighed the individual’s right not to be subjected to torture or to inhuman or degrading treatment (i.e. including the issue of no extradition to the country of origin where the person may face torture or death penalty) against the country’s right to defend itself against terrorist attacks by a person that can be reasonably suspected of preparing such activity. As the discussion has made clear, the ECHR’s established case law is unambiguous on this issue and no exemptions can be made from the prohibition of torture under Article 3 of the Convention.

The relationship between the European Court of Justice and the European Court of Human Rights

The participants also addressed the relationship between both European judicial authorities – i.e. the courts of the European Union and the European Court of Human Rights.

1. The European Union would become a member party to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This would mean that, among other things, the EU’s scope of liability would be the same as that of the individual Member States and that any violation of the Convention would be considered directly by the European Court of Human Rights.
2. A certain sum of fundamental human rights falling under the Community law would be guaranteed also by the European Union (e.g. under the Constitution for Europe), in which case the EU would be no signatory to the Convention.

It is unclear yet as to which tendency will prevail on the EU level; some participants prefer the option of EU becoming directly involved as signatory to the Convention. That alternative appears to be realistic, the more so that the Community law is increasingly used in arguing at the ECHR. The current practice is that if there is a case law of the European Court of Human Rights applying to a particular issue at dispute, that interpretation is also applied on the EU level. Nevertheless, areas of conflict between the case law of the European Court of Justice and that of the ECHR still exist – such as the asylum policy.

The specifics of the relationship between the European Court of Justice and national courts: The preliminary question proceedings

The participants found the relationship between the EU courts and national courts even more complex and intriguing. The EU law is becoming, in its form, increasingly similar to national laws. However, the Community law is often incomplete, the solution of numerous legal relationships remains open and the final regulation is left up to the discretion of the European Court of Justice. Such approach, although flexible and progressive, is raising issues as to whether national states are able to sustain such open-ended game in the long term, as it causes uncertainty. Such conception of the Community law, in the view of several participants, may ultimately allow – in reliance on the fundamental principles – voluntarism in decision-making, with the final decision being highly unpredictable. Thus, the judge is, to a considerable extent, uncontrollable by the remaining powers in the system that would be able to balance possible deficiencies in its decision-making. Other participants, in turn, consider Community law a special area of law that, given its extended scope, specific and complex language, indeed demands a special approach from its users (legal representatives, judges) – specialization, education in Community law issues, publishing, and, ultimately, sufficient use of available technologies.

Additionally, the participants considered the direct relationship between national courts and the judicial institutions of the EU. National states are directly confronted with the ECJ’s decision-making, particularly, in the preliminary question proceedings. In this respect, the participants discussed as to whether and to what extent is a Member State liable for damages in interpreting and applying the Community law. The discussion made the point that the European Court of Justice had repeatedly confirmed that Member State could be liable for mistakes made in connection with incorrect interpretation of the law, provided, however, that such must be “sufficiently obvious”. Namely, under the case law of the European Court of Justice, any law that would exclude liability of Member States for damages caused by a mistake that rests in an incorrect interpretation of the Community law is inconsistent with the Community law.

The participants find it an interesting issue as to when it is the court’s duty to apply Community law, particularly, in a situation where no party has submitted this or objected non-observance of the legal acts of the Community law. Several participants expressed their view that, in particular, the disputing parties and their legal representatives in proceedings before courts should raise objections to and apply Community law. This approach has been allegedly used also by judges in other EU countries.

Considerable discussion arouse as concerning the preliminary question proceedings before the European Court of Justice. One of the issues raised by the participants was that the European Court of Justice had, in several cases, modified or reformulated the actual wording of the preliminary question. Some participants believe that the accurate wording of the preliminary question raises many practical difficulties, and that the European Court of Justice sometimes reformulates the referred question in order to be able, in preliminary question proceedings, to provide the national court with a an appropriate and usable answer.

Additionally, the length of the preliminary question proceedings was discussed, which is generally considered excessive. The average length is more than two years, and often delays the actual proceedings on the national level to an unreasonable extent. In this respect, the ECHR has already had to deal with applications concerning delays in proceedings due to the lengthy preliminary question proceedings, and, as the EU is as yet no party to the Convention, the liability for delays rests with the national states. The participants see no definite solution to this problem, and national states can be hardly expected to have any principled position on this. If the entire system is to be sustainable within the current enlargement policy of the EU, the expectations placed on the European judiciary are likely to necessitate review and a more realistic set-up in the future. Otherwise, this complicated system may, by its own working, become liable to be considered untrustworthy.