Judicial Application of International Law in the South-East Europe

1. Judicial Application of International Law in the South-East Europe Dr Janja Hojnik Trieste, 11 April 2016

2. South-East Europe – what territory? University of Maribor - Faculty of Law

3. University of Maribor - Faculty of Law

4. South-East Europe – common features • Area towards which the EU has been gradually enlarging; in different stages: • Slovenia joined the EU in 2004; Croatia in 2013; • Albania, Macedonia, Montenegro and Serbia – candidate countries; • BiH and Kosovo – potential candidates; • BiH submits its application to join the EU – 15 Feb 2016; • Kosovo - The Stabilisation and Association Agreement between the EU and Kosovo enters into force on 1 April 2016. University of Maribor - Faculty of Law

5. South-East Europe • Advantages of acceding the EU? • Economic • Political • Security • Currently like an enclave on the map of the EU. University of Maribor - Faculty of Law

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7. Migrant route to Germany- mixture of IL and EU law University of Maribor - Faculty of Law

8. National courts in SEE countries • Upon accession national courts in SEE countries serve as European courts • Direct effect, • Interpretative effect, • State liability for damages, • Requests for preliminary rulings to the CJEU… • How prepared are they for these functions? University of Maribor - Faculty of Law

9. Judging upon national courts‘ application of international law… • CJEU in Van Genden Loos (26/62): „the Community constitutes a new legal order of international law“ • IL prerequisites for closer ties with the EU: • Cooperation with international criminal tribunals; • Observing fundamental rights treaties – ECHR; • Becoming a member of the WTO. University of Maribor - Faculty of Law

10. Courts in SEE • Legal cornerstones of countries that share a common political and legal history; • In the recent past they were run according to communist ideology; • Communist Party seized control of Albania in 1946-1991; • Slovenia, Croatia, BiH, Montenegro, Serbia, Kosovo and Macedonia – part of SFRY (1945-1991); University of Maribor - Faculty of Law

11. Legal systems in SEE • Countries that were part of SFRY: • Legal system based on Marxist principles • Break with Stalin in 1948 – a new version of socialist laws to serve the interest of the Party; • This law was uniformly applied through a centralised judiciary, including the federal Supreme Court; • 1974 Constitution – decentralised legal system, republic constitutional courts, leaving the Federal Court with little power; • June 1991 beginning of disintegration, towards liberal legal system; • 1991 fall of communism in Albania. University of Maribor - Faculty of Law

12. United in diversity • Transition from communist to capitalist legal systems; driven by a desire to join the EU; • Differences: in the speed of transformation, diverging impact of the wars, varying levels of political will to look beyond electoral cycles… • New constitutions • Courts‘ structures • Role of international law University of Maribor - Faculty of Law

13. Courts in SEE Judiciary in SEE has, due to its history, had similar attitudes towards law and the legal profession; Considering the legal culture – mentalité; Judiciaries of SEE come from authoritarian and totalitarian traditions: judges trained under a centrally planned economy. University of Maribor - Faculty of Law

14. Courts in SEE Rodin (2009): „in a communist legal system judges were supposed to follow not to interpret, the will of the legislature not only and not primarily because of the hierarchical structure of the legal system, but because of the authoritarian nature of the political system“. University of Maribor - Faculty of Law

15. Courts in SEE Technocratic role of judges; very limited role for interpretation; law was understood as being objective; Rodin (2009): for over 50 years the development of law in the SEE was facilitated by an understanding of law as an autonomous science… the task of jurists (practitioners and legal theorists) was to find the right answers for all legal questions exclusively within the legal system, regardless of social reality. Legislative sovereignty put on a pedestal – unity of state power. Static understanding of law. University of Maribor - Faculty of Law

16. Has the judiciary in SEE moved away from its communist-oriented legal reasoning? • going beyond the mere wording of the law? • formalistic reading of the law still today, but hints of change are noticeable; • Older generations of judges are gradually retiring from the bench; • A positivist approach to adjudication still prevails whereby the role of the judge is restricted to the objective application of the law. University of Maribor - Faculty of Law

17. Courts‘ structure in SEE • 3-4 tiered hierarchical structure • Supreme Court on top; • Courts of general jurisdiction • Courts of specialised jurisdiction: labour courts, administrative courts, commercial courts • Constitutional Court formally falls outside the judicial branch – to rule on the conformity of laws with the constitution and international law; • Slovenia & Croatia – CJEU is entrusted with the highest authority to rule on the validity of EU law that has precedence over national law. University of Maribor - Faculty of Law

18. Courts‘ structure in SEE • BiH: Dayton Accord that marked the end of the Bosnian War; never ratified by the Parliament of BiH; • Constitution of 1995; officially only in English; • BiH: Federation of BiH (10 cantons) & Republic of Srpska – 13 constitutions within BiH • Two separate three-tier judicial systems (district courts – supreme courts – constitutional courts) • National Constitutional Court with binding legal authority across the entire country – 9 members • 4 elected by the Federation, 2 by RS and 3 international judges named by the president of the ECtHR • Foreign judges in the War Crimes Chamber of the State Court in Sarajevo. University of Maribor - Faculty of Law

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20. Courts‘ structure in SEE • Kosovo: EU Rule of Law Mission in Kosovo (EULEX) • international judges form part of the Kosovo judiciary – to help the local judiciary attain higher standards and get to know IL better • Constitutional Court in Priština • courts of general jurisdiction University of Maribor - Faculty of Law

21. Monistic understanding of the relationship between national and IL Constitutions of Albania, Croatia, Kosovo, Macedonia, Montenegro, Serbia and Slovenia expressly state that International Agreements which have been properly ratified and published in the official journal are a part of the country‘s internal legal order and that they enjoy priority over national laws. University of Maribor - Faculty of Law

22. Constitutional status ofinternationallaw in Slovenia Article 8 • Laws and regulations must comply with generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties shall be applied directly. 22 University of Maribor - Faculty of Law University of Maribor - Faculty of Law

23. Constitutional status ofinternationallaw in Slovenia Article 153(Conformity of Legal Acts) Laws, regulations and other general legal acts must be in conformity with the Constitution. Laws must be in conformity with generally accepted principles of international law and with valid treaties ratified by the National Assembly, whereas regulations and other general legal acts must also be in conformity with other ratified treaties.… University of Maribor - Faculty of Law

24. Constitutional status of international law in Macedonia Article 118 International agreements that are ratified and in accordance with the Constitution are an integral part of the domestic legal order and cannot be changed or derogated with laws. University of Maribor - Faculty of Law

25. BiH Constitution silent on the legal status of international agreements, but in Article 2(2) expressly states that the ECHR is directly applicable and hierarchically superior to other national laws; The Constitution‘s Annex I lists some other agreements for the protection of fundamental rights which are also self-executing; Articles 28 and 29 of the Law on the Procedure for the Conclusion and Execution of International Treaties – recognition of the direct application of international agreements in BiH. University of Maribor - Faculty of Law

26. Hierarchy or co-operation? • BiH: international law is incorporated in the domestic legal system in a cooperative fashion; • Solange approach in determining the relationship between different legal orders; • Other countries: the constitution is the supreme normative source of law • All legislation, including applicable international law, must be in conformity with it; • International law is given effect through ratification. University of Maribor - Faculty of Law

27. Referrences to international bills of rights • Macedonia: the Constitution is founded on an extensive list of international treaties, protecting HR in line with ECHR, International Convention on Civil and Political Rights… • Croatia: the Constitution lists HR from the ECHR; • Slovenia: a number of human and social rights based on ECHR; • Kosovo: a strong regime of domestic incorporation of international law. University of Maribor - Faculty of Law

28. SlovenianConstitution Article 15(Exercise and Limitation of Rights) • Human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution.  (5) No human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the grounds that this Constitution does not recognise that right or freedom or recognises it to a lesser extent. ConstitutionalCourtRulingof 30 may 2000: „Article 15(5) gives human rightsandfundamentalfreedoms, recognisedbyratifiedinternationaltreaties, theconstitutional rang…“ University of Maribor - Faculty of Law University of Maribor - Faculty of Law 28

29. Kosovo Constitution Demands respect for the jurisprudence of the European Court for Human Rights, even if (or exactly because) the country is not a member of the Council of Europe. University of Maribor - Faculty of Law

30. Application of IL by national courts • IL is usually applied by higher courts; • The focus on rights codified in the ECHR; • ECHR = the most frequently applied source of international law. University of Maribor - Faculty of Law

31. Authority to apply international law • Article 3 oftheSlovenianCourtsAct Whenperforminghisjudicialprofession a judgeshallbeboundbytheConstitutionandlaws. According to theConstitutionhe is alsoboundbythegeneral principlesofinternationallawandbyratifiedandpublishedinternationaltreaties. 31 31 University of Maribor - Faculty of Law University of Maribor - Faculty of Law

32. Application of international law 3 aspects: • Review of legality of national legislation • Provisions of IL ≤ constitution (courts use the latter) • Provisions of IL › constitution (courts use the former – e.g. Vienna Convention, ECHR, E. Convention on excercise of children‘s rights… • Constitutional complaint: breach of HR recognised in international treaties (ECHR, EU Charter, General declaration on HR…); • International law as an interpretative argument – when interpreting the Constitution and certain rights, e.g. freedom of faith… 32 University of Maribor - Faculty of Law

33. Referrences to the ECtHR case law • In Serbia ECtHR case law has been extensively used to interpret national law and is deemed to carry great moral and political value. • The Albanian judiciary has in almost all human rights related cases pointed to the ECHR. • Same applies to Croatia, Slovenia etc. 33 University of Maribor - Faculty of Law University of Maribor - Faculty of Law

34. The right to a fair trial: Xheraj v Albania Xheraj found guilty of murder, sentenced to life imprisonment, on appeal sentence was reduced to 20 years, High Court confirmed – res iudicata; new evidence – acquittal; appeal by prosecution – sentence to 20 years; ECtHR: the most appropriate form of redress for this situation would be for the applicant‘s final acquittal to be confirmed; Issue of re-opening of final procedures?! CC: With regard to fundamental human rights, the ECtHR enjoys an exclusive competence… The Parliament is under an obligation to take such measures as to ensure compliance with the ECHR‘s dispositions. University of Maribor - Faculty of Law

35. Relationship between the ECHR and the Constitution in BiH • Sejdić and Finci, 2009 • Provisions of the Constitution of BiG violate ECHR because of the ineligibility of the applicants to stand for election to the House of Peoples and the Presidency of the BiH due to their Roma and Jewish origins; • The compliance of electoral rights is a condition sine qua non required by the EU; • How to achieve this? • Legislation – hard to achieve • Constitutional Court: supremacy of ECHR + direct effect. University of Maribor - Faculty of Law

36. Kalinić case Constitutional Court of BiH concluded that BiH had violated Article 13 ECHR also when international territorial administrations were responsible for the breach. University of Maribor - Faculty of Law

37. Outside the HR realm national courts in the SEE are generally reluctant to apply IL directly – unless it is expressly incorporated into national law. University of Maribor - Faculty of Law

38. Stabilisation and Association Agreements (SAAs) • international agreements between the EU and „candidate“ countries for strengthening cooperation: • Macedonia and Croatia (2001) • Albania (2006) • Montenegro (2007) • Serbia and BiH (2008) • Kosovo (2016) • A way of imposing conditionality on potential candidates, to encourage reforms in a wide range of areas; • Mixed agreements; • Are national courts applying the SAAs in legal disputes? University of Maribor - Faculty of Law

39. Judicial application of WTO law in SEE • WTO members: Albania, Croatia, Macedonia, Montenegro and Slovenia; Observer status: BiH and Serbia • WTO accession was or is among the governments‘ priorities in SEE countries – more political than economic; • After accession they are not really interested in WTO law • Translations of WTO legislation and case-law; • Courses at universities; • WTO law has only rarely been applied in SEE countries and in most of them there has not been a single case where a national court has relied on WTO law; • Direct effect of WTO legal provisions? • Other vital problems: corruption, lengthy administrative procedures, small markets… University of Maribor - Faculty of Law

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41. Hungary v Croatia Naredba o zabrani uvoza u RH živih životinja i proizvoda životinjskog podrijetla radi sprječavanja unošenja transmisivnih spongiformnih encefalopatija, 2003 Hungary requested consultations in 2003; Croatia changed its measure. University of Maribor - Faculty of Law

42. Application of international environmental law All SEE countries, except Kosovo, are party to the 1998 Aarhus Convention on Access to Informationin Environmental Matters; Only one court in the whole region referred to it – the Constitutional Court in Ljubljana; Explanation: many rules of the Convention have been absorbed by the acquis of the EU. University of Maribor - Faculty of Law

43. CJEU case law In Slovenia and Croatia – constitutional amendments to secure the supremacy of EU law. Co-operation between national courts and CJEU. University of Maribor - Faculty of Law

44. Croatian Constitution Article 143 Pursuant to Article 142 of the Constitution, the Republic of Croatia shall, as a Member Stateof the European Union, participate in the creation of European unity in order to ensure,together with other European states, lasting peace, liberty, security and prosperity, and toattain other common objectives in keeping with the founding principles and values of theEuropean Union. Pursuant to Articles 140 and 141 of the Constitution, the Republic of Croatia shall conferupon the institutions of the European Union the powers necessary for the enjoyment of rightsand fulfilment of obligations ensuing from membership. University of Maribor - Faculty of Law

45. Croatian Constitution Article 145 The exercise of the rights ensuing from the European Union acquis communautaireshall bemade equal to the exercise of rights under Croatian law. All the legal acts and decisions accepted by the Republic of Croatia in European Unioninstitutions shall be applied in the Republic of Croatia in accordance with the European Unionacquis communautaire. Croatian courts shall protect subjective rights based on the European Union acquiscommunautaire. Governmental agencies, bodies of local and regional self-government and legal personsvested with public authority shall apply European Union law directly. University of Maribor - Faculty of Law

46. Article3.aoftheSlovenianConstitution • Legal acts and decisions adopted within international organisations to which Slovenia has transferred the exercise of part of its sovereign rights shall be applied in Slovenia in accordance with the legal regulation of these organisations. University of Maribor - Faculty of Law

47. The paramount importance of legal education • Chief Justice of the Czech Supreme Court: The understanding of the law is a matter of legal culture, which can be transformed or/and developed through education that indeed endorses critical thinking • robust education is the fundamental pillar in creating and maintaining a progressive judicial system; • It can be beneficial to a judicial system if it focuses on the methods by which judges arrive at their decisions rather than simply studying the decisions themselves (black-letter law in isolation). University of Maribor - Faculty of Law

48. Thank you for your attention!janja.hojnik@um.si University of Maribor - Faculty of Law