By Nikolaos Sitaropoulos*
Introduction
In early April this year the
Council of Europe Committee of Ministers (CM) issued its 2022 Annual Report
on the execution of ECHR judgments (the annual report). As usual, this report
did not hit national or European media headlines, although it refers to fundamental
issues concerning rule of law, democracy and human rights in European states.
The Secretary General of the
Council of Europe underlined this in her statement
that accompanied this time the publication of the annual report. Noting the essential
role played by execution of court rulings in the rule of law context, and the positive
impact of ECHR on human lives in Europe over the years, she added that “[i]n
order for this positive impact to continue, our member states must demonstrate
the political will to implement judgments fully and consistently.” This is
also one the major issues that a number of stakeholders have proposed to be on
the table of the forthcoming 4th Summit of the Council of Europe (e.g.
PACE Recommendation 2245
(2023) on The Reykjavik Summit).
Below an attempt is made to provide an overview of the
major challenges states are faced with in the context of execution. They
concern primarily their capacity to act promptly to ensure full and effective execution
of ECHR judgments, a number of long-lasting challenges arising out of certain
major, structural and/or complex human rights problems, and the need to further
enhance the participatory character of execution at national level, engaging
proactively with major national stakeholders such as parliaments, NHRIs and
civil society organisations.
Challenges
related to states’ capacity to execute promptly and effectively ECHR judgments
The data contained
in the annual report clearly indicate that, although member states, under the
principle of subsidiarity now enshrined in the preamble of ECHR, “have the
primary responsibility to secure the rights and freedoms defined in this
Convention”, the capacity of many of them to execute promptly and effectively
the ECHR judgments remains feeble.
The annual report
highlights that there has been a continuing rise of new judgments transmitted
to the CM from the Court. In 2021 there was a 40% increase and in 2022 an
additional one of 6%. This additional caseload pressure on the CM and on
respondent states is arguably reflected on the fact that as of end 2022 there
was a record number of 2,257 cases on which on information on payment of just
satisfaction awarded by the European Court was not submitted to the CM by
respondent states (1,847 of these cases concerned five states: Hungary,
Romania, Russia, Türkiye and Ukraine). Also, in 2022 there was a delay by a
large number of states in the submission of action plans or reports, which are
due six months after the finality of ECHR judgments. Thus, a record number of
92 “reminder letters” were sent to 17 states by the Department for the Execution of ECHR Judgments which assists and advises the CM in its function of
supervising execution.
Moreover, another
record number of 11 leading cases/groups of cases concerning seven states were
transferred the same year from standard to enhanced supervision. According to the CM working methods, in enhanced
supervision are placed, in principle, cases requiring urgent individual
measures, pilot, structural/complex issues related judgments, and inter-state
cases.
Such “trigger ups” may also occur in practice if there exist other
indications, such as slowness in execution, showing that the execution of a
judgment requires the CM’s particular attention, notably through examination of
this case in one of the four CM Human Rights meetings in Strasbourg, and
reinforced dialogue with and support (through Council of Europe expertise) to
the national authorities concerned.
It is also worthy
to be noted that the number of leading cases, that is, cases which in principle
require the adoption of general measures to prevent similar violations, despite
many closures every year, remained relatively high in 2022: 1,299 (compared to 1,300
in 2021 and 1,258 in 2020). What is of particular and continuing concern in this
context is that the main themes of leading cases under enhanced supervision (cf.
section E.5 of the annual report) remain, more or less, unchanged for many
years. They include, among others, actions of security forces (related
primarily to ill-treatment and ineffective investigations), conditions of
detention, length of judicial proceedings, enforcement of domestic judicial
decisions, freedom of expression, freedom of assembly and association. It is to
be noted that the first theme concerning actions of security forces remains the
bulkiest one among the leading cases under enhanced supervision for many years
(12% in 2022 and 2021, while, ten years ago, in the 2013 CM annual report the relevant percentage was 16%). There is no doubt
that the above themes are cross-cutting country-wise and are often of a
structural and/or complex nature requiring particular attention and action by
respondent states and the CM.
This situation has
not gone unnoticed by the CM which, especially since the early 2000s, has
adopted and issued a number of recommendations in order to enhance states’ capacity to respond and
execute effectively ECHR judgments, and embed the European Court’s case-law in
their legal systems. In September 2022 the CM adopted a useful set of Guidelines on the prevention and remedying of ECHR violations. The CM underlined therein that despite the progress
achieved at national level, “the Convention system continues to face significant and
enduring challenges, including
delays at different stages of its functioning, the persistence of serious or
widespread violations, systemic and structural problems in the member States”.
It strongly encouraged national decision
makers to take the ECHR requirements more proactively into account. It stressed
that such proactive attitude should involve in particular the development of
parliamentary, executive and judicial capacity in order to incorporate the
European Court’s case-law in the national legal systems.
Particularly
noteworthy is that the 2022 CM Guidelines highlighted not only the pivotal role
and responsibilities of the respondent States but also the fact that the
execution involves many more important stakeholders at national level with whom
national authorities need to synergise to achieve prompt and effective
execution of ECHR judgments. Thus, the Guidelines stressed the need for member
states to enhance support to national co-ordinators/co-ordinating structures,
through more resources, status/authority and capacity-building so that action
plans are timely prepared and they achieve notably the resolution of structural
or complex problems, such as those noted above.
It
takes though many more to effectively execute ECHR judgments that pertain
notably to structural/complex human rights issues. As stressed by Rosalyn
Higgins in one of the early and then rare publications on execution concerning
such issues (1978 RevHellDI, 39), “the question of execution of
decisions of the organs of the [ECHR] is a subtle and complex matter, going
beyond legal formalism”.
One
of the major national stakeholders in this context is national parliaments
which often have to adopt new legislation in response to leading ECHR judgments
requiring adoption of general measures. It is thus logical that the above
Guidelines underlined the need for national MPs and parliamentary legal staff
to enhance their knowledge of the ECHR system and the case-law of the
Court. Secondly, and importantly, states
are encouraged to further develop parliamentary mechanisms and procedures for
the effective control of the execution of ECHR judgments. In a similar vein,
the Council of Europe Parliamentary Assembly in its recent Resolution 2494
(2023)
on Implementation of ECHR judgments,
called on “human rights or constitutional committees of national
parliaments to engage in monitoring the implementation of the Court’s
judgments, including through taking a pro-active role in finding solutions to
potential frictions with the Court, by proposing necessary legislative
reforms”.
There is nonetheless much more that states can and should do in order to have
a “wide national dialogue to discuss matters related to the national
implementation of the Convention”. As underlined also by the CM 2022 Guidelines,
there is also a need for states to strengthen and engage with NHRIs, relevant
civil society organisations (CSOs) and representatives of legal professions
when implementing the Convention, given their rich expertise. As regards in
particular the process of execution of ECHR judgments, this engagement should
also take place “at the earliest possible stage” when draft laws and policy
strategies are under consideration by respondent states.
The significance of participation in the execution process of NHRIs and
CSOs had been highlighted by the CM already in 2006 when for the first time the
CM Rules allowed the submission
by NHRIs and CSOs of communications to the CM on the execution of ECHR
judgments. Over the years, such communications have proven to be of particular
value to the CM and have helped it have a more comprehensive picture of the
human rights issues it examines. The NHRIs and CSOs’ communications have
increased over the last years: from 47 in 2011 they reached 217 in 2022.
However, the vast majority originate in CSOs, the NHRIs’ submissions remaining
low (17 in 2022 and 11 in 2021). The enhancement of NHRIs’ engagement in the
execution process is thus an important issue linked also to states’ national
capacity, given the important human rights advisory role vis-à-vis national
authorities that these institutions play.
Conclusion
When the 2012 Brighton Declaration proposed the inclusion
of the principle of subsidiarity in the preamble of ECHR, it also recalled the
states’ obligation and commitment to secure the human rights enshrined therein
(cf. Explanatory Report to Protocol No 15 to
ECHR). Indeed, the execution of ECHR judgments takes place “at home” and not in
Strasbourg where only the supervision of execution happens. When structural or
complex problems at national level arise, the execution process is certainly
also complex and takes more than two (the respondent government and the CM) “to
tango”. It requires the synergies of all the above-mentioned major national
stakeholders.
The Council of Europe provides a wide range of cooperation projects to member states in
this context and many of them have been benefiting therefrom for decades now.
However, if lacunae persist in the national process of implementation of the
Convention, including the execution of ECHR judgments, such lacunae are bound
to affect and be reflected on the supervisory system itself which has been set
up. The 2022 annual report provides a clear picture of these challenges, and
the 2022 CM Guidelines propose a wealth of advice to member states on which the
latter may draw in order to further reinforce their capacity to execute the
ECHR judgments. To this end, political will is key. The 4th Summit
of the Council of Europe on 16-17 May provides another opportunity for member states
to demonstrate that they have this will and say their own “yes we can”.
*The author is head of division in the Department for
the execution of ECHR judgments, Council of Europe. All views expressed are
strictly personal.
