INTERNATIONAL FORUM Dialogue of courts - a tool for the harmonisation of judicial practice (concept paper, agenda and participants) Sarajevo, June, 2016

Harmonisation of judicial practice is an emerging issue which importance is being recognised at different levels throughout Europe. The uneven application of national legal norms and standards of the European Court of Human Rights (ECtHR) results in a lack of legal certainty and thus the unpredictability of the outcome of a dispute.

In separate countries, the problem was recognised as an obstacle to an efficient functioning of the judiciary (see, for example, Opinion on Legal Certainty and the Independence of the Judiciary in Bosnia and Herzegovina, CDL-AD(2012)014-e).

While the issue of incompatible legal norms within one legal order is clearly a seen as a problem which potentially leads to human rights violations, and numerous ECtHR judgments point out the necessity to bring legal acts in conformity with each other, and with the ECHR, little has been said as regards judicial practice.

The problem is even more sensitive since it involves the issue of judicial independence, when any attempt to “harmonise” the application of laws by a judge can be seen as an inappropriate interference with his or her actions.

Many countries use certain mechanisms in order to bring to coherence judicial practice at a national level. These vary from region to region; their form often depends on local legal traditions, and may include advisory opinions issued by high courts, distribution of case law through modern databases, special roles given to legal departments of higher courts. The effectiveness of those mechanisms also varies. The Council of Europe has contributed to the search for better models through its co-operation programmes. In the framework of projects implemented by the Human Rights National Implementation Division of the Directorate General of Human Rights and Rule of Law, working models have been suggested in Bosnia and Herzegovina and Serbia. In 2016, it has become the topic of the Annual HELP Conference held in Strasbourg. Discussions have begun in Georgia and Ukraine. Interest in the topic was expressed by the judiciary of other countries.

Judicial dialogue is a key tool for the harmonisation of judicial practice. A dialogue between the ECtHR and national courts is ongoing through the application of European human rights standards in domestic trials. This will be reinforced once Protocol 16 to the ECHR enters into force, and a mechanism of advisory opinions will give this dialogue a new dimension. Similar dialogue between courts at a national level and between high courts of the countries of one region can contribute to a more coherent judicial practice. 

Objectives

The International Forum will aim to review practices of harmonisation of judicial practice applied in different countries, and to see how successful models can be emulated in different jurisdictions. The Forum will be a platform for sharing experience and best practices, searching for optimal models and looking for elements of harmonisation that can be equally applied in any jurisdiction.

The following key problems will be at the centre of the discussion:

1. National approaches on harmonisation of judicial practice: effective models and their applicability in different legal orders
2. Harmonisation of national judicial practice and the case law of the ECtHR: the role of dissemination and systematisation of data.
3. A special independent “harmonisation body” at a national level: a feasible model or utopia?
4. The Council of Europe’s contribution to the harmonisation of judicial practice.

In addition, the Forum will serve as a starting point for the creation of an informal network of co-operation between the highest judicial instances of the participating countries for the promotion of best practices with regard to the harmonisation of national practices with the case law of the ECtHR.

Participants

Participants of the Forum will be representatives of the judiciary from the Western Balkans, Ukraine, Georgia, representatives of the Secretariat of the Council of Europe and the Registry of the European Court of Human Rights.

Venue and language

The Forum will be organised by the Council of Europe in co-operation with the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. The working languages will be English and Bosnian/ Croatian/Montenegrin/Serbian with simultaneous interpretation provided.