President Pauliine Koskelo's speech at the IBA Northern European Conference, Helsinki 3-4 September 2009

Address by Pauliine Koskelo, President of the Supreme Court of Finland

The Need for a Common Judicial Culture in Europe – a Matter for Judges and Lawyers

Ladies and Gentlemen –

It is a great pleasure for me to be able to address such an impressive international gathering of prominent lawyers. Having looked at the programme of your conference and the topics that will be discussed, the focus of your attention appears to be mainly in the area of business law. The title of my remarks this morning, dealing with judicial culture, may seem a bit remote to some of you, because I suppose that a major part of your professional activity will be directed at keeping your clients out of court and, indeed, as far from court proceedings as possible. Nevertheless, I hope you will bear with me these few moments for some reflections about a broader theme that is, I think, of relevance to all lawyers with an interest in the underpinnings of our legal and social systems.

There are several reasons why this general theme should be of interest even for those whose daily activities are mainly outside the courtrooms.

Firstly, the legal profession as a whole plays, and ought to play, an important role in the advancement of a society’s legal culture. Judges and lawyers function in different roles, but in their respective tasks judges and lawyers work as guardians of the rights of individuals. As independent legal professionals, both judges and lawyers are pivotal figures when it comes to upholding, cultivating, defending and promoting the rule of law in all respects. This is a shared responsibility regardless of our daily line of activity. We in the legal community must act as bearers of the rule of law, even if it isn’t the main business for all of us. If we don’t fulfil this role, nobody will.

Secondly, our legal culture in general and our judicial culture in a narrower sense are fundamental parts of the social infrastructure of the society. As such they have important implications on the general social environment in which each of us operates.

And, last but not least, we have seen in recent years that while the rule of law has made important advances in many parts of the wider Europe and the globe, it is not free from problems or threats, even in civilized countries. Rule of law is not an “unendangered species”. It is one that requires constant attention, vigilance and care.

An independent judiciary is a necessary pillar of a society founded on the rule of law. For judges, upholding and defending the rule of law is, and must be, second nature, in other words an intrinsic part of their professional role. Without such an ethos, no-one can be a judge in the real sense of the word.

An independent legal profession is, likewise, an essential element of the rule of law. For members of the Bar, being in the service of the client goes hand in hand with being in the service of the rule of law. This idea is clearly anchored in the profession’s self-conception and ethical foundation. As you will know, it is expressly reflected in the Charter of the Core Principles of the European Legal Profession, as well as in similar instruments at the national level. The European Charter begins with a description of the lawyer’s function by stating the following: “In a society founded on respect for the rule of law the lawyer fulfils a special role. … A lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend. … Respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society.”

The foregoing goes to say that there is, and must be, a commonality of basic values relating to democracy under the rule of law that we share across borders at the level of general professional roles. A strong commonality at this level is indeed extremely important.

But in our era, the commonality extends to further levels as well.

Until not so long ago, the legal and judicial cultures of our societies were characterized by national features and differences. While such differences have not disappeared and are far from disappearing, quite a fundamental change has nevertheless taken place over the past few decades. In the so-called new democracies, or re-born democracies, this transformation is quite recent, but even in the older democracies the process is still relatively new.

What I refer to here is of course the fact that our legal systems and cultures are, to an ever increasing extent, being shaped by the legal integration that has taken place and is taking place under supranational and intergovernmental organizational structures. We are more and more widely and more and more profoundly bound by common legal norms and legal sources, through the European Convention on Human Rights and the extensive case-law relating to its interpretation, through European Union law and EEA law, through WTO law etc. This represents a truly fundamental change and creates a commonality of legal norms which in turn requires and promotes the evolution of a greater commonality of judicial cultures.

This new legal environment poses particular new responsibilities for judges as well as lawyers. In their distinct but interlinked roles as guarantors of the rights of individuals, lawyers assisting clients and judges deciding cases are the ultimate strongholds - or else fatal weak links - in the enforcement of a growingly multilayered and complex set of norms. To some, especially those outside our professions, it may sound banal to state that the tasks we face as lawyers and judges are increasingly demanding and that the requirements that flow from those tasks in terms of knowhow and competence are exceedingly high. But it is not a banal statement. Each day, we encounter this fact as a living reality.

One could easily mention a myriad of examples. I will only mention one: three small latin words “ne bis in idem”, or double jeopardy. A classic principle of criminal law, it is today strongly influenced by binding international rules. On the one hand, the European Convention on Human Rights, Article 4 of Protocol 7, regulates the intra-jurisdictional aspects of this principle, that is situations arising “under the jurisdiction of the same state”. On the other hand, for states bound by the Schengen rules, article 54 of the Schengen Agreement regulates the international, cross-border aspects of “ne bis in idem”. The principle is not only governed by the relevant provisions themselves but by a body of case-law from the European Court of Human Rights on the one hand and the European Court of Justice on the other hand. While the principle sounds quite simple it is not so in practice. Issues in this field cannot be dealt with without having recourse to the case-law. The case-law is, at the same time, a help and a hardship. As many of you may know, the case-law of the Strasbourg Court relating to “ne bis in idem” developed over the years in contradictory ways. Different doctrines emerged and gradually it became more and more obvious that the various strands of case-law could not be reconciled. Finally, in February of this year, the Strasbourg court made an effort to cure the situation by a Grand Chamber ruling intended to revamp the interpretation into a more coherent shape (the Zolotukhin case). In the meantime, lawyers and judges throughout Europe had struggled to make sense of an increasingly confusing legal situation. In recent years, the European Court of Justice in turn has issued a stream of case-law on the cross-border aspects of “ne bis in idem”.

This is just one example among a legion of others to illustrate that any lawyer or judge who ignores such common norms or case-law leads a dangerous life. - In passing, I will slip in another one: in early June of this year, the ECJ issued a judgment in a series of preliminary rulings that go to the heart of the rules governing civil procedure (I refer to the Pannon case).

Contrary to what many lawyers and judges still seem to assume, nothing is insulated from European law, and to think otherwise becomes riskier by the day. A commonality that modifies prevailing national norms creeps in all over our legal system. It is a growing challenge for all legal professionals, not least judges and lawyers.

One further aspect of these developments also entails a big change. Especially in the field of EU law but also in the field of human rights, the relationship between European norms and national law means that there is a new kind of role for judges as the ultimate guarantors of individual rights arising under European law. National courts are, in the last resort, the interface between the two levels of law and have a pivotal task in co-ordinating them in individual cases, or in enforcing remedies required under European law.

Basic doctrines of EU law that have emerged from the case-law of the European Court of Justice, such as direct effect, supremacy, conforming interpretation, and remedies such as state liability, are aimed at protecting the rights of individuals. These doctrines depend on the national courts for their application.

This means that national judges are not only called upon to apply EU law - where necessary after requesting a preliminary ruling on its interpretation from the ECJ. As a result of the basic doctrines, national judges are called upon to supervise the conformity of national norms with EU law in cases coming before them. Judges are not just “la bouche de la loi” as Montesquieu had in mind. They are also “auditors of the law” who must keep a critical eye on the national norms that they find in their statute books. For judges whose primary task has traditionally been to apply national law, such a supervisory role is not a customary one and it brings a new element into their professional responsibilities as judges.

Obviously, this transformation of the legal system puts new demands not only on the judges but also on the lawyers, who must be able to manage these new dimensions of the law in order to protect the interests of their clients in the best professional manner. I have seen some bad, even tragic examples of situations where counsel’s ignorance of European law has had unhappy consequences for an individual.

All in all, the widening and deepening of legal integration brings common challenges for legal professionals throughout Europe. There is still a long way to go in this area, and an important learning process, for both lawyers and judges in order for people to be able to enjoy effectively the rights they draw from our common norms.

There is yet another dimension of the challenges in this area that I would like to touch upon. Effective legal protection requires not just proper quality in terms of substance but good protection in a timely manner. The timely delivery of justice is required by binding standards that are common to us under Article 6 of the ECHR. From the point of view of the individual, the timely completion of cases is also a matter that depends not only on the performance of the judicial system but also on the performance of the legal profession. Good quality at each point contributes to good quality of the end result. By contrast, bad quality at any point tends to generate delays, and is an impediment to the timely delivery of good quality at the next point. A judicial system cannot be effective without a high professional standard on both sides of the bench, nor can it be effective without a common commitment to a good procedural culture where all those involved, in their distinct but interrelated roles, make an effort to focus on the right things at the right time. For the parties to a case, all the professionals at all junctions of the process must work well, and work well together, in order to deliver justice in a timely and effective manner. In the end, quality and timeliness are two sides of the same coin, and optimal results can only be achieved if both sides of the bench contribute. High professional and ethical standards are vital preconditions of timely quality.

Most of you in the audience are not criminal lawyers, at least not primarily. Still, I cannot refrain from raising one final point of fundamental importance when it comes to the need for a common judicial culture in Europe.

In the so-called third pillar of EU co-operation, the corner-stone principle is that of mutual recognition. That in turn is founded on mutual trust, or “a high level of confidence”, as the phrase goes in many official documents. Mutual trust 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 policies and legal instruments in the field of justice affairs highlight 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. In other words, there is an imperative need to ensure that each national judicial culture within the EU is robust and meets the requirements of independence, impartiality, professional integrity and fairness, in practice as well as in theory.
The European Arrest Warrant (EAW) is 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.

As we all know, many member states, including Finland, 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. In this country, we have in place a system the proper running of which would require more investment that has ever been available. Structural reforms are dawdling etc. The current recession is putting a huge new strain on the public economies throughout Europe, presenting a new threat 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. We cannot, however, 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. This is an urgent and serious common concern in the interest of citizens throughout the Union.

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 might help is external pressure, in this case from the European level. Such pressure may emerge from individual cases arising sooner or later. But useful and constructive pressure could be brought about through effective external scrutiny. If we had 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. We would need serious evaluations 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.

I raised this matter recently at a conference organized by the current Swedish EU presidency in Stockholm. In connection with that occasion, I learned that a similar idea has also been raised within the EU Council by the Dutch Minister of Justice. I think we as legal professionals have every reason to act in support of such measures.

Ladies and gentlemen –
Rule of law and effective legal protection need to be talked about, but will not be ensured by repeating the magic words. It is not a matter of talking the talk but of walking the walk. Many thanks for listening to my little talk. I wish you an interesting and rewarding conference and go back to try to walk my part of the walk.