In this newsletter we have the great honour to host an interview with Justice Raffaele Sabato, elected as a judge of the European Court of Human Rights on 22nd January 2019, for a nine-year term of office officially commenced on 4th May 2019.
First of all, thank You for accepting this brief interview and our most sincere congratulations for Your recent assignment. In light of that, even though only five months after the official beginning of Your term at the European Court of Human Rights (ECHR), what are the initial considerations, or even simply the expectations, you developed regarding the relationship between the Strasbourg Court and the national courts? Furthermore, is this relationship different depending on the type of national court, this being a Constitutional Court or a Supreme Court?
It is a pleasure for me to answer your questions, as they are the same questions I am also asking myself these days, as I am getting more and more involved in the ECHR’s activity. I have a background of almost thirty years as a national judge, some of these years in the supreme court of my country, some other years organizing the training of junior judges, for whom it is very important – in this period of frequent lack of communication – to trust dialogue between justice systems. On this background it is easy to understand that for me working at the ECHR essentially means having the possibility to do something to improve this dialogue.
You ask me to comment on the relationship between the Strasbourg judges and national judges: I would start by saying that, after the Interlaken process, the principle of subsidiarity – already widely present in the Convention (one may think of the rule concerning the exhaustion of domestic remedies) and which will be strengthened by the entry into force of Protocol 15 – aims increasingly to make the national judge the judge who ordinarily must apply the Convention. Our readers – I am sure – will remember the Simmenthal judgment, by which the Luxembourg Court started to view the national judge as the main judge with the task of applying Community (now EU) law; well, I would say that the same process should now start concerning the European Convention on HRs, in the sense that the domestic judge should be the direct interpreter and enforcer of the Convention.
In general, I would say you are right to distinguish Supreme Courts and Constitutional Courts as to their position in the dialogue with the Strasbourg Court. Constitutional Courts are more crucial in the process of perceiving possible violations of the ECHR, thus declaring domestic laws unconstitutional; but, as they in some ways share with Strasbourg the same task of protecting fundamental rights and freedoms, when different approaches exist, such differences are more visible. Supreme Courts, on the contrary, have more limited powers in directly implementing the Convention; but, when they are called to do so, usually by way of consistent interpretation, they more rarely show a lack of interaction with Strasbourg. But these are just my first impressions …
Let me add a comment! A systemic change in the dialogue with Supreme and Constitutional Courts is coming from the entry into force of Protocol 16. After the first request of an advisory opinion by the French Court of Cassation, the Armenian Constitutional Court requested recently a second opinion, which was declared admissible by the Strasbourg Court. I think this idea of using advisory opinions is an excellent tool for dialogue. Therefore I don’t understand why this tool meets with such harsh criticism, e.g. in my country, Italy, which has signed but not ratified the Protocol yet. I strongly urge you to study structure and potentiality of this tool in your project!
A key area of interest of the FRICoRe project relates to the right to an effective remedy and to a fair trial. In Your view, which could be the future development of the interpretation of the relationship between these rights and Art. 47 of the Charter of Fundamental Rights of the EU? Do Courts need to improve their dialogue on the interpretation of these articles?
The rights to a fair trial and to an effective remedy, as guaranteed by Art. 6 and Art. 13 of the ECHR, are quite crucial these days in Europe. Let me concentrate only on the serious threats that in recent years have been addressed to the judiciaries of several European countries, whose independence is at risk. You cannot have a fair and effective remedy if there is no real independence of courts. The Luxembourg Court, starting from the 2018 decision in the case Associação Sindical dos Juízes Portugueses, has shown determination in using all the legal potential of art. 47 CFREU in the protection of independence of the judiciary, as a prerequisite to fair trial and effective remedy. My assumption is that the Strasbourg Court is ready to do the same. A quote? See, e.g., the decision of the Grand Chamber of 2018 in the case of Denisov v. Ukraine. Applying the criteria set out in Oleksandr Volkov v. Ukraine, the Court found, unanimously, that the High Council of Justice had failed to ensure an independent and impartial examination of the applicant’s case and that the subsequent review by the Higher Administrative Court – also because of its composition – had not remedied those defects, in breach of Article 6 § 1 of the Convention. One can tell easily that structural guarantees of independence are important in the development of case law on Art. 6 and Art. 13 of the ECHR. Even in EU tools that were traditionally concentrated on efficiency of the judiciary, such as the Justice Scoreboard, indicators of independence are now scrutinized.
We see that You agree that another sensitive issue directly related to Article 6 is judicial independence, which also is a central topic for our project. In two recent judgments in this regard (Sigurður Einarsson and Others v. Iceland, 4 June 2019 and Cosmos Maritime v. Ukraine, 27 June 2019) the ECtHR reiterated the importance of the appearance of independence, recalling that "justice must not only be done, it must also be seen to be done". This was said by the ECtHR for the first time in the Delcourt v. Belgium case, in 1970. After almost fifty years, what does this mean at a European level today? Do you think that the public perception of justice has changed and that the ECtHR may contribute further to improve this perception? If so, in what terms?
The public perception of justice has significantly changed over the years, shifting from the role of justice as authority to the role of a public service. Although of course justice is also a service for its users, nonetheless one cannot place on justice the same expectations applying to the performances of other sectors: unfortunately justice will always leave somebody unhappy and with the impression that justice has not been properly administered. This is a destiny which is common, e.g., with hospitals. By developing a set of principles that clarify when a national court operates ex fide bona, what interventions on society can be expected from tribunals, what the acceptable timeframes for proceedings are, etc. the ECtHR sets something similar to what international practice guidelines are for hospitals, to keep up with my example. I mean: the case-law of the Strasbourg court is a benchmark, common to all countries, against which stakeholders and justice users can build comparisons. I am sure your project will be an excellent example in the analysis of this phenomenon!