WORKSHOP ON THE IMPROVEMENT OF DOMESTIC REMEDIES
with particular emphasis on cases of unreasonable length of proceedings
at the initiative of the Polish Chairmanship of the Council of Europe
ADDRESS BY MR. ADAM DANIEL ROTFELD, MINISTER OF FOREIGN AFFAIRS OF THE REPUBLIC OF POLAND
Strasbourg, 28 April 2005 r.
Excellencies, ladies and gentlemen,
It is my pleasure to welcome you this morning – as the Chairman of the Committee of Ministers of the Council of Europe – to the workshop on the improvement of domestic remedies.
I am very pleased that the workshop takes place within the 57th meeting of the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights. This provides us with a unique opportunity to share national experiences and discuss domestic solutions in the field of effective remedies, with particular focus on the excessive length of judicial proceedings
The Polish Chairmanship of the Council of Europe put forward the initiative of organising such workshop bearing in mind one of the priorities of its Presidency – and notably –strengthening human rights and ensuring the effectiveness of the European system of human rights protection.
I believe that this workshop constitutes also a timely prologue to discussions planned within the agenda of the Third Summit of the Council of Europe, which will be held in Warsaw on 16-17 May 2005.
Ladies and gentlemen,
The positive influence of the European Convention on democratic societies is remarkable and well known. However, we should remember that the success of the Convention still depends to a large extent on the interaction between the domestic systems of human rights protection and the European umbrella hold by the European Court of Human Rights in Strasbourg.
In my short speech I wish to draw your attention to the memorandum adopted by the Plenary Court on 21 March 2005. We can find there some important issues concerning the European Convention system, which – according to the Court – deserve special attention during the Third Summit. Let me now address some of these issues.
Firstly, it goes without saying that the system’s effectiveness demands various steps to be taken at national level. Two main things should be indicated in this regard: a rapid ratification of Protocol no. 14 as well as conscientious implementation of the Recommendations adopted by the Committee of Ministers in May 2004.
Especially as regards the Recommendation on the improvement of domestic remedies, it should be noted that States were urged to ascertain that domestic remedies exist for anyone having an arguable complaint of a violation of the Convention, and that these remedies are effective. It has been almost a year since this Recommendation was adopted. It is hoped that the Member States not only translated this Recommendation into national languages, but also took action with view of its full implementation.
Of course, the process of reviewing the effectiveness of the existing domestic remedies may take more than one year. However, the States were encouraged to do all they can in order to ensure that effectiveness of domestic remedies is being given a priority.
I should also mention that the efforts for ensuring the effective system of domestic remedies are co-ordinated and encouraged within the European Commission for Democracy through Law (Venice Commission). The participants to this workshop are presumably familiar with the draft report on national remedies in respect of excessive length of proceedings, prepared by the Venice Commission in March 2005. I believe that such initiatives should be promoted and brought to the attention of all decision-makers in the Member States.
Secondly, the Court’s memorandum points out some main challenges ahead of the European System of human rights protection. The Governments should take note of the fact that Protocol no 14 will not by itself decrease the number of cases coming to Strasbourg, nor will it resolve the problem of the Court’s existing caseload. What is particularly important in this regard, is that the system requires further changes. Long-term options and strategies need to be formulated.
In other words, we must ask ourselves how do we imagine the European system of human rights in the future? What system do we want to leave the generations to come? It is the vision of the system in the XXI century, which should guide our next steps and actions.
I subscribe to the idea that the Third Summit of the Council of Europe should address the questions indicated above. Moreover, comprehensive discussions should be launched both at international as well as national levels, in order to identify likely scenarios and prepare adequate responses. These long-term strategies will allow for a better co-ordination of the Government’s action. They may also provide the Court with necessary input for a continuing dialogue with Governments aimed at preserving its efficiency.
As the Minister of Foreign Affairs of the Republic of Poland I can assure you that during the Third Summit there will be plenty of opportunities to focus on the Court’s future. It is also the Summit’s aspiration to offer a framework for discussions on the long-term strategies for the European Convention system. The debate should include independent experts, eminent academics, as well as distinguished national and international judges.
Thirdly, the challenges for the system include the accession of the European Union to the European Convention on Human Rights. This issue also involves an examination of the EU’s internal remedies in accordance with the principle of subsidiarity. The negotiations on the EU’s accession will require a close look at the institutional and procedural solutions.
Both before as well as after the accession, the exchange of experiences between the European Union and the Council of Europe should be developed. I believe that both organisations have much to offer in terms of initiatives in the field of improving effectiveness of national legal systems. By way of example – the proposal for a EU directive on certain aspects of mediation in civil and commercial matters (presented by the Commission) reflects a trend which is also close to the Council of Europe’s efforts aimed at ensuring a better access to justice.
Ladies and gentlemen,
Let me now say a few words about some legal initiatives of the Polish Chairmanship of the Committee of Ministers. We have prepared them convinced that strengthening human rights requires a forward-looking approach. We should constantly react to new challenges and needs. On the eve of the Third Summit we should think in what areas the Council of Europe action is not sufficient yet and requires a more creative attitude. Poland would like to contribute to this reflection and has prepared some ideas for consideration.
At this seminar we are discussing means by which we could better guarantee appropriate quality of domestic legislation and practice as regards the right to a fair trial. However, we should not limit ourselves to this aspect of Article 6 but we should also think about the subjects entitled to this right. In this context let me draw your attention to the important evolution of the Court’s case-law extending the guarantees of Article 6 to the victims of crimes. This issue is worth our deeper examination and drawing conclusions. Maybe we should consider institutionalising this tendency in a new Protocol to the Convention.
Protection of victims of crimes is becoming a more and more important part of the actions of the Council of Europe established to defend the rights of the most vulnerable groups of persons. Poland is ready to support them. In this task we should not forget about a particular category of victims – children. Their right to protection from all forms of violence is also present in the case-law of the European Court. Nevertheless, the effective protection of children from domestic violence still faces many obstacles both in law and in practice of many states.
In our opinion the action of the Council of Europe should be a package comprising all the relevant measures: education, social policies and standard setting. However, awareness raising and social policies are not sufficient if legal regulations are not precise.
Therefore, drawing inspiration from the case-law of the European Court, Poland would like to propose – for further reflection – to examine an idea of drafting a legal instrument on protection of children from domestic violence. Such an instrument should aim at facilitating the implementation of their rights by removing possible gaps in the law or practice that reduce the level of their protection against violence.
Ladies and gentlemen,
This seminar and these initiatives aim at strengthening the effectiveness of the European Convention on Human Rights system. However, we should not forget about the remaining conventions and protocols of the Council of Europe amounting now to about 200 instruments. This rich and diverse treaty system constitutes a real treasure, which requires our special attention and constant efforts. While planning and drafting new instruments we should – at least from time to time – look backwards and draw conclusions. The Third Summit provides us with a good opportunity in this respect.
Some conventions have never entered into force. Some have become obsolete. Some require amendments or improvement of practice. Some have been forgotten but still may be useful. Other should be adjusted to the new requirements and challenges. Some are worth opening for the accession of countries outside the Council of Europe.
Therefore Poland proposes to carry out a comprehensive review of the Council of Europe convention system with the intent of strengthening its effectiveness, updating to new requirements and promoting common standards. It would be a demanding task. Nevertheless, it would streamline the Council of Europe convention system and in this way increase its efficiency and confirm the unique role of the Council of Europe as a standard-setting pan-European organisation able to respond to the new challenges of the 21st century.
Let me once more express my strong conviction that this workshop will contribute to a better understanding of how to ensure an effective system of remedies at national level.
I also believe that your presentations and discussion will constitute an important contribution to the actions taken with view of reducing the caseload of the Court. Indeed, we should remember that the practical measures and remedies within your national legal systems are the key to success.
Before I give the floor to Mr Wildhaber I wish to express my gratitude – on behalf of the Polish Chairmanship – to the Secretariat of the Council of Europe for their constructive assistance in preparing this workshop.
I hope you will be having a thought-provoking discussion.
Thank you for your attention.