Thursday 18 June 2020

Guest Post: Implementation of the ECtHR’s judgments – A Call for Greater Transparency

It is my pleasure to host another guest post - this time by Ewa Garbarz, who is interning at the European Implementation Network (EIN):

Implementation of the ECtHR’s judgments – A Call for Greater Transparency 

The latest Committee of Ministers’ Annual Report on the status of execution of the leading judgments of the European Court of Human Rights (ECtHR) suggests a success in states’ compliance with the Court’s judgments and their implementation. Whereas the overall number of cases pending implementation is indeed decreasing, the disaggregation of the data demonstrates that the implementation of judgments in leading pending judgments still poses a significant problem. This matter has been the subject of criticism in the past; it has been pointed out that the lack of understanding of this issue as well as a clear evidence base makes it difficult for the key actors, such as Human Rights NGOs, funders and guardians of the ECHR system, to effectively address the problem of non-implementation.  

The independently undertaken research for this short blog has revealed that the obligation of ECHR state parties to report on the progress of leading judgment implementation is being neglected. This happens by causing substantial delays in submitting Action Plans and Action Reports or not filing them at all. Such information, despite being critical for both civil society and for the Council of Europe itself, is not easily accessible. As a result, the issue is not being dealt with properly. Transparent, state-by-state data regarding average implementation time and the rate with which Action Plans and Reports are submitted is essential for a swift and successful implementation and would be helpful for Human Rights NGOs in taking critical decisions on whether to prioritise work on litigation or implementation.

ECHR state parties are at liberty to choose the means of implementation which according to them are the most appropriate to address the violation. Nevertheless, they have a duty to report and collaborate with the Committee of Ministers in order to successfully comply with the judgment. Certain mechanisms of monitoring that process ensuring that states do in fact comply with the verdicts exist. However, the data regarding Moldova, Romania and Bulgaria collected and calculated in my research suggests that those mechanisms might not be sufficient and might not guarantee successful implementation or even collaboration from the part of the state. 

My research shows that in Romania the average time of implementation of the ECtHR’s leading judgments is 4 years, 6 years in Bulgaria, and 8 years in Moldova (data for March 2020). It is concerning that such delays exist, and that this data is not available to search in a state-by-state manner. The data is not easily accessible either on the HUDOC-EXEC search engine, or in the Committee of Ministers’ Annual Report. Using these main sources, it is not possible to easily find out the average length of the execution process per country – data crucial for national NHRIs, NGOs and anyone attempting to improve the national implementation rate or speed up that process, as it provides a full picture of how well the given state is working towards the successful implementation and fixing structural problems. It is believed that adding these options to the search engine could considerably aid NGOs and NHRIs working on the implementation improvement. 

For an average user of HUDOC-EXEC, the information with what success and frequency the states are filing Action Plans and Reports regarding specific judgments are not easily available either. It is a requirement for a state to provide an Action Plan with relevant information on the execution of the judgment of the ECtHR after that judgment has become final, and subsequently, Action Reports as soon as execution is deemed completed by the respondent State. Knowledge about Action Plans and Reports is important as it provides significant data about the rate of the compliance of states with the judgments. While HUDOC-EXEC allows to check for the overall number of submitted and awaiting documents, the information about the length of the procedure or the delay of a state in submitting an Action Plan or a Report is not that easily accessible. The only way to find out about the date of the submission of an Action Plan or state’s, applicant’s or an organization’s communications is a time-consuming and quite complicated procedure of reviewing each case individually. This makes that crucial piece of information inaccessible to the general public, and most importantly, to the organisations and institutions which otherwise equipped with that knowledge could have become involved putting pressure on the authorities in case of a delay. 

The fact that this information is essentially unknown results in no action being taken, whereas the research shows it is desperately needed; from the analysed data for Moldova, Bulgaria and Romania it appears that the average time since last the filed report (it being either Action Plan, or Action Report) for Romania is equal 2.2 years, for Bulgaria – 2.5 years and for Moldova – 6.3 years. In fact, apart from the issue of late submission of Action Plans, another pressing problem is that in some cases it is not received at all. It should be reminded at this point that states have an obligation to report on the process and workings on the implementation in the first 6 months after the judgment has been delivered. For example, in Romania in exactly 25% of leading pending cases, the Action Plan (AP) is still awaiting. In the case of Moldova that percentage is over twice as big reaching 57%. This means that an AP has not been submitted in 29 out of 52 leading pending cases. It is clear that some states are not abiding by the 6-months-rule, leaving the Committee of Ministers uninformed about the state of affairs, slowing down or even completely abandoning the process of implementation. These critical facts should be apparent and easily accessible so that an intervention from the part of interested NGOs or NHRIs is rendered possible.

To conclude, the approach taken by the Council of Europe and the Committee of Ministers, of presenting the general number of pending cases including leading and repetitive ones is insufficient. Additionally, the data concerning average implementation time or average time since last report per state is not available and only possible via conducting an independent analysis. What is needed is a database with state-by-state information setting out the extent of the problem of non-implementation and non-reportingIt would certainly prove useful for the Council oEurope as a whole, providing insight into states’ individual approaches to the execution of the judgments. Furthermore, such a tool would certainly be of great help to the civil society movement within each country making the organisations and institutions aware of the scale of the problem and enabling them to successfully put pressure on governments pursuing swift and successful implementation. 

Tuesday 16 June 2020

New Book on Extraterritorial ECHR Application

Conall Mallory of Newcastle University has published Human Rights Imperialists. The Extraterritorial Application of the European Convention of Human Rights with Hart Publishers. To human rights academics, the topic of this book will not be unfamiliar: entire research projects have been based on the issue of extraterritoriality of human rights treaties. And ECHR scholarship has also had its fair share of writing about the issue. What this book adds is a detailed analysis not just of the development of Strasbourg jurisprudence on the issue but also of the position of other actors, specifically domestic courts - the case study here, if one wants to frame it as such, is the practice of British courts and executive authorities. And specifically, it goes beyond explaining the what and dives into the 'why' issue: why did case-law and practice develop as it did? One of the particularly attractive features of this book is its accessible style, and stup really drawing the reader in at the start of each chapter with very concrete examples and questions and thus avoiding a potentially dry narrative on a very technical issue. Recommended! This is the abstract:

'To what extent do a state’s obligations under the European Convention on Human Rights apply beyond its territorial borders? Are soldiers deployed on overseas operations bound by the human rights commitments of their home state? What about other agents, like the police or diplomatic and consular services? If a state’s obligations do apply abroad, are they to be upheld in full or should they be tailored to the situation at hand?

Few topics have posed more of a challenge for the European Court of Human Rights than this issue of the Convention’s extraterritorial application. This book provides a novel understanding on why this is by looking at the behaviour of those principally tasked with interpreting the treaty: the Strasbourg Court, state parties, and national courts. It offers a theory for how these communities operate: what motivates, constrains and ultimately shapes their interpretive practices. Through a detailed analysis of the jurisprudence, with a particular focus on British authorities and judges during and after the Iraq War (2003), the book provides an explanation of how the interpretation of extraterritorial obligations has developed over time and how these obligations are currently understood. Some have argued that it is imperialistic to apply the Convention extraterritorially. If this is the case, the focus of this book is on those ‘imperialists’ who have interpreted European human rights law to extend beyond a state’s borders, as it is with them that any lasting solution to the challenge will be found.' 

The book is both available as hardback and as an E-book.

Thursday 4 June 2020

Miscellaneous Updates: Webinar Recordings and NGO Guide

Dear readers, two different updates relating to earlier blogposts on here:

First, the recording of the very interesting webinar / public online talk of President Robert Spano, held last week, has now been put online on the iCourts website. A big thanks to the team in Copenhagen for making this available, also for future reference (and all the more so as the livestream was hampering for many viewers, so it recording provides for high-quality, buffering-free watching and listening). Warmly recommended, as Spano addressed a lot of topical aspects of judicial independence and answered questions coming in on Twitter from the audience.

Also mentioned before, last month the European Implementation Network organised a webinar on effective domestic ECHR implementation. This has now also been put online. On that occasion, an EIN Guide for civil society on domestic advocacy for the implementation of Strasbourg Court was also launched. Accordign to its compilers, these are the contents:

'The examples compiled in this guide show that, where NGOs have sought, identified and pursued opportunities for engaging with the authorities, where they have formed alliances with other civil society actors and used the media to drive implementation forward, they have managed to secure important human rights gains. 

We hope that civil society actors in Europe will draw inspiration from the best practices and lessons learned presented in this toolkit. Because the conditions for effective implementation vary from country to country, from time to time and even from case to case, this guide does not provide a blueprint, one-size-fits-all approach to domestic advocacy for judgment implementation. Instead, it is conceived as a ‘menu’ of potential strategies, tools and actions that NGOs could take at the national level to push for the execution of judgments. The readers are encouraged to pick and choose those elements of this guide that are most relevant to them.

This guide is also a ‘living document’. It seeks to spark a wider conversation among civil society about how to use advocacy at the domestic level to push for the implementation of judgments. We therefore warmly invite our readers to send us feedback, and share their own experiences with domestic advocacy for the implementation of Strasbourg Court judgments with us. So please get in touch!'