Holenderskie doświadczenia w promowaniu orzecznictwa z zakresu praw człowieka
“W moim kraju, w Holandii, w każdym sądzie jest koordynator do spraw prawa UE i orzecznictwa ETPCz” – mówi w wywiadzie z dr Adamem Bodnarem profesor Marc de Werd, sędzia koordynator ds. promocji orzecznictwa ETPCz i prawa UE w Sądzie Apelacyjnym w Amsterdamie.
„To jest coś, co zaczęło się w późnych latach 90., co najmniej 15 lat temu. Powodem było to, że sędziowie mieli duże problemy ze stosowaniem prawa europejskiego, niezależnie czy to była Konwencja czy prawo UE. Nie wydaje mi się, żeby było inaczej w innych krajach w Europie, w Polsce też może tak być. Moim zadaniem jest informowanie kolegów o tym, co się dzieje w Europie” – dodaje profesor Marc de Werd.
Zapraszamy do zapoznania się z wywiadem, który publikujemy poniżej w angielskiej wersji językowej.
Role of judge-coordinators in promotion of human rights’ jurisprudence
Interview of Dr Adam Bodnar with Professor Marc de Werd, judge of the Appeal Court in Amsterdam, professor at the Faculty of Law, University of Maastricht
Adam Bodnar: My first question concerns your role as a judge-coordinator concerning the EU Court of Justice and the European Court of Human Rights jurisprudence on human rights. What is your role as the judge-coordinator? What in fact are you coordinating?
Marc de Werd: In my country, the Netherlands, every court has a coordinator for EU law and ECtHR law. This is something that started in the late 1990s, at least 15 years ago. The reasoning was that judges had a lot of trouble with applying European law, whether it’s the Convention or EU law. I don’t think that’s different in any country in Europe, and it could be the same case in Poland. My role is to inform my colleagues about what is happening in Europe. That is a very broad subject of course, because so much is happening, making it virtually impossible to master this field by oneself. I created a newsletter, in which I present every month the most important cases from both Strasbourg and Luxembourg. The name of the newsletter is Rechtspraak. I started this on my own. Initially, I produced the reports by myself, but that soon proved impossible. So I am working now with a team of eight people, including an editor, a librarian and 5 law clerks, as well as secretaries in my court, who help me with selecting cases and making short summaries of what we do. We make very short summaries, aiming to publish a kind of tweet with 140 characters. In this manner, people can see in just a glance what it is about, and if it’s something that interests them, they can immediately click on the hyperlink to the relevant judgment, which makes it quite easy for readers to have an overview of the cases from Luxembourg and Strasbourg. At the moment, we have multiple newsletters – I mean there is so much case law, that we now have something more than a newsletter. It’s almost like a journal, to be honest, about 30 to 40 pages, which is really very much to handle, but we try to make it appealing to our colleagues by using teams. So if you are interested in freedom of speech, for example, then you can click on the link to freedom of speech, and you find all relevant cases from last month regarding freedom of speech or merger law or consumers law or whatever specialty you need.
AB: Why do you treat the EU law and ECHR jointly, given that some people consider these quite distant issues? When looking into the Polish experience, we are very much interested in the EU law because we were in the process of the EU accession, then we were the new member of the EU. At the same time, human rights law was treated rather differently not only by judges, but also by policy makers. Why did you decide to create a position for the two areas together?
MdW: First, judges in my country find EU law very abstract and difficult, and if I made the newsletter only with the aim of presenting EU law, I fear that nobody would read it. So that’s a very practical reason. So I put in human rights law as well, because that is much more appealing in my country. But the second reason is that the European reality forces us to study both categories of judgments together. Since the Treaty of Lisbon in 2009, there has been this overlap between the European Convention on Human Rights and the EU charter. For example, both can be relevant in the same case if we talk about ne bis in idem in criminal law. You have different laws from Luxembourg and from Strasbourg. So if you have a case that touches upon EU law, then you should take into account not only the Strasbourg jurisprudence, but also the Luxembourg jurisprudence. It’s important that people know that there are different areas of law and that the applicability of some norms can differ according to the subject matter.
There is a necessity to study both categories of judgments. As a successful legal professional, you can’t say, “Well, I only checked one.” As a judge, I have to take into account both. Perhaps when you are an academic, that situation can be different, although I doubt it. As a judge who has to decide individual cases, however, I have to know what kind of law is applicable, and that’s the reason why we find it important to join both judgments. In Dutch law, we talk about this as ius commune, the development of entitlement between the EU and European Convention on Human Rights. This refers to the idea that the law is becoming increasingly common, and there are no separated areas of law anymore in the international perspective. That’s what we find.
AB: You are doing many different things in order to promote jurisprudence, such as making a blog, tweeting about it, and sending this newsletter to judges. But do your colleagues from your court and practitioners simply call you and ask for your advice on one or another case? How does it work in practice in your daily life?
MdW: As you say, since I am the court coordinator, it happens very often that someone comes to me and says, “we have X case, and we think that EU law is applicable or not. Do you think that the ECtHR law is applicable?” Or, “We think that case law from Strasbourg is saying this, but we think it’s the other way around. What do you think?” They consult me, and, if possible, I give them the answers. To be honest I’m judging a criminal case at the moment, so when someone comes to me with a difficult tax case, I really don’t have the answer. Then there is the next step. I try to find another court coordinator in the Netherlands, for example, someone who is involved in tax law, and I refer the question to my colleagues somewhere else in the Netherlands. That’s how it works or, at least, how it should work. And I think it’s quite important that people have someone to talk with, because we think that we are only applying European law in the national courts, but it’s not the case. There are not very many judges who really deal with EU law on a daily basis. Maybe people in tax law or in immigration cases, but for a common criminal court judge, EU law is applicable or relevant rarely. There are not very many judges who make even a single reference for a preliminary ruling during their lifetimes, so we should not forget that for most judges EU law is the exception to the rule. The rule is still that national law in 99% of the cases is dominant. So, yes, it’s really necessary that we have judges applying EU law, and I don’t think it will change very rapidly to be honest. I’m not very optimistic about it.
Diana Wallis researched in 2008 the role of national judges in the EU, when she was a member of the European Parliament. The results were dramatic, most judges finding EU law incredibly difficult. They find it difficult even to navigate the EU building, and I don’t think it has really changed since 2008. Therefore, it’s really necessary that we stress the importance of EU law, but people should also know the practical means of researching EU law on the internet, to help them find the way around EU blogs, which is very important, because I think these blogs are becoming increasingly essential for all legal practitioners at the moment. To aid legal professionals in this way is one of my major goals to be honest.
AB: I have two questions concerning the institutional setting of your position. First, who appoints you as the judge-coordinator? Second, are you additionally paid for this, or is it connected with some increase or deduction in your responsibilities as a judge, because you know you have to find the time for making it properly ?
MdW: The norm at this moment is that the coordinator of EU law has a half-day or full day for leave per week, so that’s about 2-4 days each month, which is not very much still, but at least it is something. I have been appointed by the board of my court. I must say that I am also a part-time professor in EU law at Maastricht University. It is also part of my job in Maastricht, so that makes it quite logical that I’m doing this job. By the way, I’m also very interested in this subject and, to be honest, not many of my colleagues are interested in this, so I don’t think many of my colleagues would like to change positions. EU law is not considered very sexy for judges, so that’s what I’m trying to do, to make EU law sexy to my colleagues and not only to judges, but especially also to our law clerks, because, in my country, a law clerk is someone who starts right after his education at the university, who works as a clerk for about 3 to 5 years and after that becomes a lawyer. During that traineeship at the courts, they learn quite a lot of things and for them it is quite interesting to help me with a newsletter, because if they are going to apply for a job in a law firm, they can say ”Well, I have been selecting and summarizing the European law at the courts, which is very interesting for lawyers, because they know there’s a lot of relevant European law and it’s a big business for them. Thus, I’m not only doing it for the court judges, but also to help train law clerks and offer them future perspective.
AB: Do you remember any interesting cases which were brought to you by your fellow colleague judges, the ones that you were thinking about all night, unable to sleep because of the problem that was in this case and when you had a feeling that in this case your knowledge was very useful?
MdW: I think of two cases, the first being the Salduz v. Turkey case, concerning access to a lawyer just after arrest, in which we saw that this was going to change things in my country, so we spent a lot of time examining and discussing this. And the other case quite recently was the annulment of the Data Retention Directive by the Court of Justice in Luxembourg (Digital Rights Ireland). So these are two examples that have had a big impact in practice, because, for example, the Data Retention Act is about storing data from cell phones, and many, many cases in my country can only be solved with the use of evidence from data. I mean child pornography on the internet for example: you cannot solve a case like that without the data that have been stored, so if we are not allowed to use this information anymore as evidence, then there are quite a few cases that will fall apart. That’s interesting, too, because people have thought that, in the area of data retention, we have an impact on criminal law.
That is one of the many reasons why in our newsletter we find it extremely important not only to talk about human rights and criminal law, but also EU law that might affect our criminal proceedings. One of the most important changes of this era is that the Courts in Luxembourg and Strasbourg are not confining themselves to specific areas of civil law, criminal law, or tax law. All these fields have come together at the moment. Immigration law at this moment can be relevant for criminal law, as well as if you talk about detention of foreign persons staying illegally in a country. I don’t think we realize enough how dramatically our national law is changing under the influence of European law– we don’t realize it enough to be honest, and this is really something we need to talk about in EU perspective. I’m not really sure when it’s going to end, but what I do think is that we are going to lose the traditional borders between criminal law, civil law and administrative law. I think these things are going to be mixed in the future. We will talk about financial problems that can be of a civil nature or of a criminal nature for example. Even environmental problems can have aspects of criminal law and civil law or administrative law. We have to look for the bigger issues in the law, so that’s how I think will be organized in the future courts. We will have dramatically different organizations of the legal framework in the EU. I would say that doesn’t make it easier. Indeed, it only makes the work of legal professionals much, much more difficult, but that is the reality that we are facing. I think we should stop with merely national education of lawyers actually or of judges. We should have some kind of European ius commune education of students, because there is too much going on and we should not forget the perspective of EU. This is my personal belief.
AB: Your blog was awarded with this special mention of the European Scale of Justice Award. One may say that you are almost on the top when it comes to the quality of service that is delivered to the judges. So what is next, if you are already that high in terms of delivery of a proper service? What is your professional dream connected with this dissemination, promotion, and raising awareness concerning EU law and ECtHR standards?
MdW: If I’m very honest, I think the newsletter we are making is a bit old-school. It is old-fashioned, because we still think that people are capable of remembering what they have read. I mean, you can read a lot of abstract information, but when you have to deal with it in practice in an individual concrete case, then you have forgotten nearly all the information. So what I would like to try to invent is a device, an electronic device that gives you up-to-date information in individual cases. That is what we are thinking about, that you are dealing with a case in a criminal law for example, and that you are working on your computer on that case and suddenly in that individual concrete case the latest information on a directive or the latest information about case law pops up. So we are thinking about inventing a program that gives us warnings for judges, so we should not rely any longer on our memory alone. The day is long gone when you could just read a book and remember what’s in it. There is too much information from Strasbourg, Luxembourg and Brussels and from your own country. So what we need is a process that gives relevant up-to-date information in the case that is in front of you, that you have to judge, and that is one of the challenges for the future, how to direct the information. That is something that I’m very interested in, but it’s so difficult. I am not really sure I know how to start to be honest, but that is our common interest, of all judges in Europe. And we should work on that together, I would say.
AB: Thank you very much.
Interview was prepared and edited thanks to assistance of Marta Korablin and Derrik Sweeney, interns in the Helsinki Foundation for Human Rights.