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Monday, 4 April 2022
By Nikolaos Sitaropoulos
At the 130th Session of the Council of Europe Committee of Ministers (CM) which was held in Athens in November 2020, the CM adopted decisions on Securing the long-term effectiveness of the ECHR system which underlined “the extraordinary contribution of the Convention system to the protection and promotion of human rights and the rule of law in Europe…as well as its central role in maintaining and fostering democratic stability across the Continent”.
The CM stressed member states’ responsibility to resolve the systemic and structural human rights problems identified by the Court in its judgments. The states parties to ECHRwere called on in particular to give full effect to the principle of subsidiarity (which Protocol No 15 to the ECHR inserted in the Convention’s preamble) by complying with their Convention obligations and abiding by the judgments of the ECtHR. The CM also recalled the importance of existence at national level of an efficient capacity for rapid execution of the ECtHR judgment, recalling the relevant CM Recommendation CM/Rec(2008)2.
These issues were echoed in the decisions adopted by the CM in May 2021 at its 131st Session in Hamburg which additionally highlighted the increased complexity and challenges posed by non-execution or “persistent refusal” to execute ECtHR judgments, and by inter-state disputes which are on the rise. As shown below, the crucial importance of all these questions and the need to reinforce the execution process in Strasbourg and especially “at home” are confirmed by the 2021 Annual Report on the execution of the ECtHR judgments (‘2021 Annual Report’) issued by the CM on 30 March 2022.
Major advances in the execution of the ECtHR judgments
According to the 2021 Annual Report, in 2021 there were 1,379 new judgments (an increase of 40% compared to 2020) delivered by the ECtHR and forwarded to the CM for execution supervision under Article 46§2 ECHR. As of end 2021 there were 5,533 ECtHR judgments under supervision by the CM. This number is a bit higher than those of 2019 (5,231) and 2020 (5,233) but still one of the lowest since 2007 (6,711). The fact that a case is pending before the CM does not in fact mean that the respondent state has not taken any measure for the execution of the relevant ECtHR judgment (individual measures to provide full redress to the applicant, and general measures to prevent recurrence of similar ECHR violations). Most often, the “pending case” status means either that measures adopted are under assessment by the CM and/or more measures appear to be necessary and are under consideration.
Every year the CM records a plethora of measures taken and reforms undertaken or completed by respondent states in order to fully comply with the ECtHR judgments (see e.g. “Main Achievements” in country factsheets. Indeed it is rather an understatement to say that the number and range of law and policy-related changes which have occurred in European states over decades following ECtHR judgments are impressive and on many occasions groundbreaking. The 2021 Annual Report (chapter II) highlights examples of major advances recorded last year which include the following: Romania abolished prescription for torture by amending legislation, in line with the ECtHR case-law and the CM decisions in Al Nashiri. A similar legislative change took place in Armenia (Virabyan and Muradyan groups of cases, in effect in 2022) and is planned by North Macedonia (Kitanovski group of cases). France adopted a law providing for a new judicial remedy concerning poor conditions of detention, following the ECtHR judgment in J.M.B. and Others. Wide-ranging measures to enhance investigations into hate (especially homophobic) crime were recorded in the context of execution of Beizaras and Levickas v. Lithuania.
Another major positive development recorded in 2021 was the reinforcement of the participatory nature and transparency of the execution process especially through communications submitted to the CM by European civil society organisations and National Human Rights Institutions (NHRIs). The submission of such communications is possible since 2006 under Rule 9.2 of the CM Rules on the supervision of execution of the ECtHR judgments. In 2021 these communications reached 207 concerning 27 states. This is a significant increase, bearing in mind that until 2019 these communications were never more than 90. It reflects and confirms also the importance of NHRIs and the valuable contribution of civil society organisations to the promotion and protection of the rights enshrined in the Convention, stressed by the CM in its above-mentioned decisions adopted in Athens at its 130th Session.
In this context one may note that the “Rule 9.2” communications submitted by NHRIs, compared to those submitted by NGOs, remain at a low level (11 received in 2021 and 14 received in 2020). However, in the last couple of years there has been an increased interest by NHRIs in the execution process. In 2021 the European Network of NHRIs (ENNHRI) created the first interactive resource hub with guidance on the implementation of ECHR judgments, which was supported by the Department for the Execution of ECtHR judgments. This on-line hub aims to support and guide NHRIs in their efforts to enhance their work on the implementation of the ECtHR judgments at national and international level. It contains a compilation of resources and tools on execution of the ECtHR judgments as well as information on good practices by NHRIs in this field.
Major challenges with which the execution process is faced
Several systemic and structural human rights problems persist and remain on the CM supervision agenda for many years, despite the efforts made by respondent states and advances which have occurred. The persistence of such issues adversely affects the caseload of the ECtHR which, as a result, receives repetitive applications (raising structural/general problems already examined by the Court) and delivers repetitive judgments, then relayed to the CM to supervise their execution. Although the number of repetitive judgments pending before the CM as of end 2021 (4,233) is almost half compared to the 2011-2016 figures, there is a trend of increase since 2019 (see statistics section C.1 of 2021 Annual Report).
As noted in the 2021 Annual Report, major issues concerning the functioning of the judicial system scored high among the main themes of “leading cases” in “enhanced supervision”: cases concerning excessive length of judicial proceedings constituted 8% while cases related to non-enforcement of domestic judicial decisions constituted 3%. Already in the 2011 these themes were recorded among the major ones examined by the CM, but the respective percentages were higher (21,61% and 9,52%). Also, in 2021 12% of all leading cases in the enhanced supervision procedure concerned actions of (mainly ill-treatment by) security forces and/or ineffective investigations, this being the highest percentage of such cases under supervision. By way of comparison, in 2011 these cases constituted 13,92%. Lastly, poor conditions of detention (and lack of effective remedies) represented again in 2021 one of the highest percentages of leading cases in enhanced supervision (8%). In 2011 the relevant percentage was 11,36%.
The tackling and resolution of such systemic and structural human rights problems are linked, to a very high degree, to the respondent states’ capacity to act and, above all, coordinate rapidly action necessary in order to adopt general measures able to prevent recurrence of similar violations. The 2020 Annual Report (chapter II) had indicated that despite progress achieved in recent years in this domain, there are two major challenges identified in national practice. First, the status and resources of the national coordinator (usually this is the Government Agent before the ECtHR). Secondly, these coordinator’s capacity in identifying the necessary execution measures and promptly preparing the action plans and reports, in cooperation with all competent national authorities.
Furthermore, other statistical data contained in the 2021 Annual Report (statistics – sections E.1 and G.2) give rise to concern. First, they indicate that there are delays in the submission by respondent states of action plans or reports. In fact, in 2021 84 relevant “reminder letters” were sent by the Secretariat (Department for the Execution of ECtHR judgments) to 16 states, while in 2020 48 such letters had been dispatched to 19 states. Secondly, there has been a steady increase of cases in which delays occur in the submission by states to the CM of information concerning payment of just satisfaction awarded by the ECtHR. In 2021 there were 1,772 such cases, while in 2020 and 2019 they were 1,602 and 1,423 respectively.
Another major challenge to the execution process and the whole ECHR system are the inter-state and individual cases related to post-conflict situations or unresolved conflicts. Such cases are by definition highly complex and politically sensitive, often examined by the CM in more than one of its four annual Human Rights meetings. It is to be noted that (conflict related) inter-state applications before the ECtHR are on the rise and ten such cases were pending at the ECtHR as of end 2021. Since 2020 an expert committee of the CDDH (Steering Committee for Human Rights) in the Council of Europe has been working on proposals to enhance the effective processing and resolution of cases relating to inter-state disputes and individual applications arising from such situations.
In 2021 a new (third) inter-state case, Georgia v. Russia (II) was added to the agenda of the CM and scheduled to be examined in 2022 in a Human Rights meeting. It concerns various violations of the Convention in the context of the armed conflict between Georgia and Russia in August 2008. Two other inter-state cases examined by the CM in 2021 were the following: Georgia v. Russia (I) concerning the arrest, detention and expulsion from Russia of large numbers of Georgian between September 2006 and January 2007; Cyprus v. Turkey, concerning various violations in relation to the situation in the northern part of Cyprus since the military intervention by Turkey in 1974. Related individual cases which were again in 2021 on the CM Human Rights meetings’ agenda were: Xenides-Arestis group of cases v. Turkey concerning mainly the continuous denial of access to property in the northern part of Cyprus and the consequent loss of control thereof; the Kakoulli and Isaak groups of cases v. Turkey, concerning the 1996 killings of Greek Cypriots by Turkish or Turkish-Cypriot security forces. In 2021 the CM also continued to examine another past conflict-related case, Catan and Others v. Russia, concerning primarily violations of the right to education in Latin-script schools located in the Transnistrian region of the Republic of Moldova.
Last but not least, particularly challenging are the “Article 18” cases concerning abusive limitations of rights and freedoms enshrined in the ECHR. As of end 2021 there were 13 such cases pending before the CM concerning five member states: Azerbaijan, Georgia, Russia, Turkey and Ukraine (see details on p.17 of the 2021 Annual Report). Such cases have compounded the complexity of the CM supervision process. They concern mainly the arrest, detention and, in some cases, conviction of civil society activists and politicians, aiming ultimately to their silencing. They are also linked to serious, structural issues concerning the independence and impartiality of the national judicial systems. In 2021 the CM recorded a positive development in the Mammadli (former Ilgar Mammadov) group of cases v. Azerbaijan. In one case of this group (Rashad Hasanov and Others), the Supreme Court of Azerbaijan quashed the criminal convictions of the four applicants, discontinued criminal charges and awarded them compensation for unlawful arrest and imprisonment.
In Ilgar Mammadov v. Azerbaijan, the CM initiated in 2017, for the first time, infringement proceedings against Azerbaijan, under Article 46§4 ECHR, due to the respondent state’s refusal to abide by the Court’s judgment. These proceedings were successful, as far as individual measures are concerned, given that in 2020 the Supreme Court of Azerbaijan quashed the conviction of the applicant (and of Rasul Jafarov) and awarded non-pecuniary damages for the unlawful arrest and imprisonment.
In February 2022 the CM initiated infringement proceedings, for the second time in its history, in Kavala v. Turkey and as of late March 2022 the case was pending at the ECtHR under Article 46§4 ECHR. Earlier in 2021 the CM had examined the case in all four Human Rights meetings and at each regular CM meeting after March 2021, calling for the applicant’s immediate release. Also, a letter was sent by the Chair of the CM to his Turkish counterpart expressing deep concern and the expectation that the applicant would be released in line with the ECtHR judgment.
Françoise Tulkens, a former, eminent judge at the ECtHR had incisively remarked that a judgment of the ECtHR “is not an end in itself, but a promise of future change, the starting-point of a process which should enable rights and freedoms to be made effective”. Indeed a judgment by any court would have little, if any value, if it were not promptly, fully and effectively implemented. In many cases the full and effective execution of ECtHR judgments has proven to be an arduous, complex and long process. This is linked to the fact that the ECHR has evolved into a “constitutional instrument of European public order” (see 2004 CM Declaration) and the full and effective execution of the ECtHR judgments often requires not only the initiation of complex changes of domestic case-law, legislation, or even constitutions, but often also a shift in national, dominant socio-legal cultures where ECHR standards are not yet fully embedded.
While the ECHR system and its oversight mechanism are still considered to be robust, there is no doubt that the complexity of cases that arrive and are pending for supervision by the CM is on the rise. This was made more evident in 2021 when the CM examined a record high number (161) of cases at its four Human Rights meetings, and by the initiation by the CM in February 2022, for the second time ever, of infringement proceedings against a state for refusal to abide by a ECtHR judgment, thus demonstrating a clear political determination to defend and preserve the effectiveness of the ECHR system.
In addition, the persistence for many years of several structural and systemic problems at national level, as noted above, indicates that redoubled efforts are necessary for the rapid and effective execution by states of the ECtHR judgments. The 2021 Annual Report (chapter II) makes clearer that institutional reforms are necessary at national level in order to further enhance the states’ capacity for rapid execution of the ECtHR judgments. This cannot be achieved without the systematic advancement of knowledge of the Convention system among all national, state and non-state, stakeholders so that all decisions taken at national level are ECHR-compliant. As noted in the 1950 ECHR preamble, the maintenance of the fundamental freedoms enshrined in the Convention depends on their “common understanding and observance”. Despite the human rights advances that have been achieved since 1950, the new horrific conflict that erupted in Europe in February 2022 and its dramatic consequences for millions of human lives reminded that the further realisation of human rights and freedoms on the Old Continent is a long and winding path. There is no doubt though that it rewards those willing and able to follow it.
* The author is Head of Division of the Department for the Execution of ECtHR Judgments, DGI, Council of Europe. All views expressed in this paper are strictly personal.