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:
- National approaches on harmonisation of
judicial practice: effective models and their applicability in different
legal orders
- Harmonisation of national judicial practice
and the case law of the ECtHR: the role of dissemination and
systematisation of data.
- A special independent “harmonisation body”
at a national level: a feasible model or utopia?
- 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.
