It Takes More than Two to Execute ECHR judgments

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 4^th 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 4^th 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.