President Pauliine Koskelo's speech at the conference "Justice in the EU - from the Citizen's perspective" - 22 July 2009

Justice in the EU – from the Citizen's perspective
Conference organized by the Swedish Presidency of the EU
Stockholm 22-23 July 2009

Ladies and Gentlemen,

I would like to extend my warmest thanks to the Swedish Presidency for organising this conference on a very important theme, as well as for the invitation to participate in it. Over a long time, I have come to know Sweden as a country where things are done and not just talked about. That is a mentality to which I pay tribute and which also makes Stockholm a most suitable venue for the event we are about to have today and tomorrow.
I have noted that in the Communication issued by the European Commission last month (An area of freedom, security and justice serving the citizen, COM 2009/262 final), which is intended to inspire the Council and the Parliament in the ongoing work toward a Stockholm Programme, attention is drawn to the wide gap between the rules and policies adopted at the European level and their implementation at the national level. It is indeed vital not to lose sight of this gap. Focusing on how justice works from the citizen's perspective, as the title of our conference suggests, is essential. That in turn makes it necessary to focus precisely on how the legal instruments and our justice systems function in practice. My remarks this morning will address some aspects of this, and I try to be concrete by availing myself of some practical examples.

On the role of national courts

As Minister Ask pointed out in her opening address, legislation does not solve all the problems. Far from it. My first observation is especially related to the role of the national courts. The legal instruments that have been adopted and will be adopted by the EU institutions provide the legislative framework for various European aspects of the civil and criminal justice systems. In order for things to function well in practice, however, many questions of interpretation arise and need to be resolved. While it is the task of the European Court of Justice to provide such interpretative rulings, national courts play a crucial role in this process because they are the ones who decide if and when to make references to the ECJ. Preliminary rulings are always given in connection with individual cases, but at the same time they serve the whole system Union wide. It is important for national judges to bear this in mind and to consider the relevance and contribution that references can make for the benefit of that wider context. Even in this sense, apart from their duty to apply EU law in individual cases, national judges are European judges on whom we all depend in order to obtain case-law to clarify the interpretation of common legal rules and help their application throughout the Union. This is one vital contribution to the functioning of the legal instruments that are put in place.

Last autumn, for instance, we had a case in my court that gave rise to some questions concerning the interpretation of the framework decision on the European Arrest Warrant. We made a reference to the ECJ and requested the application of the new urgent procedure. The ECJ accepted to submit the case to the urgent procedure, and within three months we received the ECJ's answers to the questions posed, which are of great practical importance with a view to the application and practical functioning of the system of arrest warrants. This is just one recent example of an individual case where a reference to the ECJ helped serve a broader purpose.

On the need to improve knowledge of EU law

In her opening address, Minister Ask raised the difficulties that citizens encounter in trying to know and understand what is going on when they are involved in a case with cross-border elements. That is certainly a problem, but unfortunately it is not the only one, and here I come to my second topic this morning. In reality, even the professionals who are supposed to serve the citizens in their quest for justice often have deficits, sometimes quite serious ones, in their knowledge and understanding of EU law and its impact in the context of a case. Here, I would like to share with you just one real life example that can serve as an illustration of what may be at stake for an individual when we talk about the functioning or malfunctioning of civil justice in situations with a cross-border aspect.

Some years ago we had a case that arose out of an industrial accident where a worker had been seriously injured in connection with the use of a certain machine. The machine had been manufactured in another EU member state, imported to Finland by a Finnish firm and sold on to the owner of the plant where the accident occurred. The machine was CE labelled and furnished with a certificate of conformity which is supposed to provide assurance of compliance with the applicable safety requirements and standards. Nevertheless, however, the national health and safety authorities in Finland considered that the machine was, in a certain respect, deficient in terms of the relevant safety requirements and that this deficiency had caused the accident or contributed to it.

At that time, our national legislation governing health and safety at the workplace contained provisions according to which any importer of a machine was under an obligation to control and make sure that the machine was free from qualities that could present a health or safety hazard in the intended use of such a machine. This obligation was sanctioned through criminal liability and a corollary civil liability. In our case, the occupational health and safety authorities had reported the accident to the public prosecutor with a view to charges being brought against the importer on the grounds that he had failed in his statutory duty to control and ensure the safety of the machine. The public prosecutor brought charges against the importer, and the injured worker joined in these proceedings claiming damages for personal injury on account of the importer's alleged criminal breach of duty.

The trouble of course was that the national rules on which the prosecution and the injured party based their case were contrary to Community law. The relevant internal market rules do not allow the kind of duplication of controls that the national legislation imposed on a person who had imported from another Member State a machine that had been controlled and certified in the Member State of origin in accordance with the applicable EC legislation. Neither the national health and safety authorities, nor the public prosecutor, nor the injured party's lawyer, nor the lower courts saw this problem. In the end the case reached the Supreme Court where (following a reference to the ECJ) the criminal charge as well as the ancillary compensation claims were rejected on the grounds that Community law precluded the application of the national provisions on which the case was based. In other words, the case failed and the injured party was left without compensation.

The worst part of the story lies in the fact that while attention was focused on the national rules that were flawed, there was, apparently, a failure to see the case in its proper internal market context, that is to say as a product liability case that should have been brought against the manufacturer of the machine. Obviously, one cannot speculate about the outcome of hypothetical case, but since the machine allegedly had a deficiency in its safety features, a claim based on the manufacturer's product liability would seem to have been the obvious course of action. Under the jurisdictional rules of what was then the Brussels/Lugano Convention, today the Brussels I regulation, the case, as one concerning non-contractual liability, could have been brought in Finland, where the damage had occurred, although the manufacturer was based in another Member State. By the time the case against the importer was finished and failed, it would, however, have been too late to bring a product liability case against the manufacturer, due to the limitation period laid down in the product liability directive and implementing national rules. In other words, it wasn't so that the legal framework that is in place did not provide for any adequate prospect of legal protection for the injured party. The problem was that the most promising possibility was missed by those who should have seen it. A case was brought but it was the wrong case against the wrong party, and at the end of it the better avenue was no longer available.

Without attributing blame on the various actors involved, we can see, as a matter of objective facts, that there were many kinds of errors in and around this unfortunate situation. There was legislative error, as the government had failed to act in order to eliminate the provisions that imposed an infringing duty and liability on the intra-EU importer. There was administrative error, as the competent authorities failed to see and acknowledge the inapplicability of those national rules. There was error on the part of the public prosecution and legal counsel, who also failed to see that the approach chosen was doomed to fail. And there was judicial error, as the lower courts went ahead and applied the rules although Community law precluded their application. It wasn't until the case reached the Supreme Court that the problem was properly addressed. But in the meantime, the injured party had lost his chance to proceed against the manufacturer.

This case is a striking illustration of problems at many levels, which ended up with very grave consequences for the individual who needed legal protection. The problems boiled down to ignorance and misconceptions about Community law and its impact on national rules. Even those at various levels who are supposed to possess expert knowledge and serve the citizens in their quest for legal protection are not necessarily adequately informed about the state of the law. Legal instruments work only if those involved know them properly.

These kinds of experiences demonstrate very clearly that overcoming the problem of a lack of knowledge in matters of EU law remains among the main challenges. This is a serious matter and an important area for action at all levels. In this context, it must be stressed that the quality of training cannot be measured by the number of lessons that are offered or taken. The real test is the level of actual learning that results from training. National measures aimed at ensuring that legal and other professionals receive the right kind of training are of course vital, but apart from training at the national level it is also important to provide for possibilities for professionals from different Member States to participate in common training programs and exchange programs that allow them to engage in contacts and discussions across nationalities. Institutions such as the Academy of European Law, ERA, in Trier offer excellent opportunities for developing this kind of joint training activities which deserve strong support from the European as well as the national level.

So, my point here is to stress the importance of high quality training and enhanced professional contacts across borders. We need to invest a great deal of effort and resources in this in order to improve the quality of justice available to our citizens.

On the need to build proper foundations for mutual recognition

My final remarks - last but by no means least – have to do with the necessity of making sure that the judicial systems in all member states actually meet the high standards that are obligatory under EU law as well as the European Convention on Human Rights. This issue is at the heart of the co-operation taking place in the field of the third pillar. The principle of mutual recognition is, as we all know, based on mutual trust – in the recitals of various legal instruments, reference is made to “a high level of confidence”. This is a political premise of the legal instruments in this area. What the system of mutual recognition requires, however, is more: it requires well-founded mutual confidence.

The European Arrest Warrant (EAW) is perhaps the most poignant example of this so far. The Member States have committed themselves to surrendering persons, including their own citizens, for prosecution and conviction on strictly defined grounds. Thereby they have made the quality of each others' criminal justice systems a matter of serious common interest and common concern, even if the competence and responsibility for these systems remain at the national level.

Again, I will refer to an example that serves to illustrate the contradictory nature of the situation, namely the Finnish legislation implementing the framework decision on the EAW. While mutual recognition is a cornerstone of the framework decision, the Finnish legislator has introduced a reservation that is, at least in theory, quite fundamental. The Finnish implementing law provides for a mandatory ground for non-execution of a European Arrest Warrant firstly, if there are well-founded reasons for suspecting that the person concerned, if surrendered, would risk torture or other inhuman or degrading treatment, or persecution (this is the first part of the provision, no exact translation), and secondly, if there are grounds on which it can be presumed that the person concerned would suffer a violation of his human rights, his constitutional right to a fair trial (this corresponds to Article 6 of the ECHR) or his freedom of expression or freedom of association. As those here present will know, neither of these grounds for non-execution is as such included in the framework decision. The legal basis for these provisions of the Finnish law is drawn from Article 1 paragraph 3 of the framework decision, according to which the decision shall not have the effect of modifying the obligation to respect fundamental rights as enshrined in Article 6 TEU. The recitals (12 and 13) also contain some references to the first kinds of risks (torture, inhuman or degrading treatment, persecution). Furthermore, recital 12 mentions that the framework decision does not prevent a member state from applying its constitutional rules relating to due process, freedom of association or freedom of expression. On the other hand, recital 10 states that the implementation of the mechanism may be suspended only in the event of a serious and persistent breach by one of the member states of the principles set out in Article 6 of the TEU, an in that case as determined by the Council.

According to the Finnish implementing law, the situations mentioned - risk of torture, inhuman or degrading treatment or persecution under the first rule and risk of violation of human rights, fair trial rights, or freedom of expression or association - are mandatory grounds for non-execution. In the government bill it was stated that these provisions could only become relevant in rare cases and should only be applied with great caution. The legal affairs committee of the Finnish parliament, however, did not accept this restrictive attitude expressed by the government. The legal affairs committee stressed that the application of these mandatory grounds for non-execution should be based on an assessment of the risk of violation of the rights concerned in the circumstances of the individual case. Furthermore, the committee expressly pointed out that the right to fair trial includes the right to trial within a reasonable time and that the application of this non-execution ground therefore requires that consideration be given to the expected length of the proceedings in case in the issuing state.

As regards the first rule, it is a very disturbing prospect to envisage mutual recognition of arrest warrants while envisaging, at the same time, risks of torture, inhuman or degrading treatment, or persecution, in the state issuing such a warrant – another Member State.

As regards the second rule in respect of its reference to fair trial rights, the test – especially as set out in the interpretative guidelines formulated by the parliament's legal affairs committee – appears more rigorous than that applied by the European Court of Human Rights, the case-law of which indicates an issue under Article 6 may arise exceptionally, if the person concerned risks suffering a “flagrant denial of justice” in the requesting state. Such is not the language used and quoted above.

The parliament has no doubt acted with the best of intentions. But what about ground contact? The legal affairs committee did not give any clues as to how the envisaged protection is supposed to work in practice. On what basis and by what means is a judge expected to make a determination as to whether the person in question, if surrendered, would receive a trial within reasonable time and in accordance with the other relevant standards of a fair trial? The courts will normally have very little to rely on in order to be able to make any well-founded prognosis in this regard. In addition, there are tight time limits: the district court must reach a decision in these matters within 26 days. Appeals are directed straight to the Supreme Court, which must take its decision within 20 days. The reality is that a Finnish judge, or any other national judge, has few practically viable means of reaching realistic and reliable conclusions as to whether or not the person whose surrender is requested can be expected to get a trial within reasonable time in another Member State. Furthermore, at the level of principles, it is obvious that if we regularly and seriously engage in such assessments, we are in fact rather far from mutual recognition as envisaged in the framework decision.

It is possible that the parliamentarians haven't given much thought at all to how the guidelines they have set out could function in practice. Rather, there may have been a wish at the political level to offload responsibility onto the judicial system, in actual awareness of the inherent contradiction between mutual recognition and the reservations formulated, as well as of the difficulties involved in turning the good intentions into practical realities. But that is simply not good enough.

What also needs to be said is that while the Finnish legislator has, in the manner just described, made a special point of wanting to ensure that the execution of European Arrest Warrants should not result in any violations of fair trial rights, including the right to trial within a reasonable time, our own successive governments – regardless of their political configurations – cannot take pride in their own record of providing adequate conditions for the criminal justice system to be able to process and complete demanding trials within reasonable times. Among the EU member states, Finland ranks near the bottom when it comes to government expenditure in the courts and prosecution relative to GDP per capita, and the European Court of Human Rights has found dozens of violations of the requirement of reasonable length of proceedings against Finland. A situation of underinvestment has prevailed for a long time. While our legal and judicial system is very similar to that of Sweden, Sweden spends a third more than Finland per inhabitant in its justice system. So, if some of you in the audience should get the feeling that there is perhaps a certain air of hypocrisy in the concerns about how a person, if surrendered, would fare in the criminal justice system of another Member State, you could hardly be blamed.

The reason I have dwelled here on these aspects of the Finnish implementing legislation on the EAW is that in the rules and interpretative guidelines I have mentioned, the tension that exists between the principle of mutual recognition and the concern for fundamental rights in general and procedural rights in particular is laid wide open. At the same time, it is obvious that this tension cannot be undone or properly resolved by shifting the problem down to judges to sort out. There can be no good way out of this dilemma other than by bringing the reality in each Member State up to standard. Nothing less will do.

As we all know, many member states have more or less frequent and persistent difficulties in meeting the requirements of a fair trial as set out in Article 6 ECHR, especially in terms of the length of proceedings. The current recession is putting a huge new strain on our public economies and thus presents new threats to the funding and working conditions of the justice systems - and thereby to the legal protection available to our citizens.

It is obvious that when we contemplate cross-border cases in particular, and parties involved in proceedings in a country other than their own, there is a need for various kinds of special measures in support of parties in those situations. It remains a basic fact, however, that we cannot expect our systems of criminal or civil justice to work well for the citizens of other Member States unless and until they work well in general. If the justice systems don't function up to standard in the domestic context, they will hardly function up to standard in cross-border situations either. Therefore, we simply cannot escape the fact that adhering to the principle of mutual recognition necessarily entails that the justice systems in each and every Member State must be brought up to standard, and that this is an urgent and serious common concern in the interest of citizens throughout the Union.

Yet, competence and responsibility in this area remain, and must remain, at the national level. So how can the European level contribute? I think we can clearly see a need for more political pressure on governments in this area. The justice systems are generally not at the top of priorities in the domestic political arena. Sure enough, it is hard to find a politician who wouldn't subscribe to the ideas of justice, fundamental rights and so on. But when the crunch comes, investments in this area are often not “politically competitive”.

What could help is external pressure, in this case from the European level. Such pressure might emerge from individual cases arising sooner or later. But useful and constructive pressure could be brought about through effective external scrutiny. If we could establish mechanisms of independent, systematic, sufficiently thorough and focussed evaluation of the functioning of the justice systems in the Member States, that type of external scrutiny could help motivate governments to take these matters as seriously as they should be taken. I am aware that the Council of Europe, through its Commission for the Efficiency of Justice, conducts comparative analyses of available data on certain aspects of the national justice systems. What I have in mind, however, is a scrutiny in the form of country reports that should penetrate deeper into the functional aspects of how the justice systems in the various Member States meet the procedural and other standards that are essential from the point of view of the protection of the rights of citizens. It would be valuable if the European Commission, together with national justice professionals, could develop mechanisms to this effect.

Ladies and gentlemen -

For the citizen, principles, rights and legal instruments count only if they are matched by the realities. This remains the ultimate challenge and the ultimate test that we must face throughout the European Union, at all levels, with honesty and integrity. As the economists like to stress in their own contexts, we must work hard and seriously to get the fundamentals right in our justice systems. It isn't until then that the citizens can really appreciate our efforts and achievements.