Webinar on Better Cooperation within the Council of Europe Institutions

On 9 May, from 12:00-14:00 (CET) SWPS University, Riga Graduate School of Law and the University of Cologne are organizing a webinar on better cooperation within the Council of Europe Institutions. Professor Konstantsin Dzehtsiarou (University of Liverpool), Dr Aleksandra Gliszczyńska-Grabias (Institute of Legal Studies of the Polish Academy of Science) and Dr Nikos Vogiatzis (University of Essex) will be speaking at the event. The event will be moderated by professor Adam Bodnar (SWPS University). 

This webinar is the third of the ''Road to Reykjavik. Chances and Challenges to the Council of Europe'' webinar series. As the Council of Europe is preparing for the 4th Council of Europe Summit of Heads of State and Government in Reykjavik in May this year, these webinar series discuss some pressing issues facing the Council of Europe. 

Here is a description of the webinar:

''The two meetings of the "Road to Reykjavik" webinar series in anticipation of the Council of Europe’s 4th Summit of Heads of State and Government in Reykjavik so far have focused on the momentous role of the European Court of Human Rights and its potential role in trying to judge Russian crimes in Ukraine. During the third meeting on 9 May from 13:00 – 14:40 (Riga time), we will reflect on the possibilities of deepening cooperation, as well as building a coherent message within the Council of Europe institutions.

As well as attempting to further discuss the challenges that have emerged with the fundamental change in the global political situation and the crisis of the previous security policy, the third webinar is also a follow-up to the issues identified during the two previous meetings. It was during these that voices and questions emerged regarding the deepening of cooperation between specific Council of Europe bodies and institutions.''

You can register here. 

New Romanian Judge Elected

Last week, the Parliamentary Assembly of the Council of Europe (PACE) elected Sebastian Răduleţu as judge to the European Court of Human Rights in respect of Romania. He will succeed judge Iulia Antoanella Motoc.

In a tight race, Mr Răduleţu obtained a majority of votes cast and was elected judge of the European Court of Human Rights for a term of office of nine years. In Romania, he is currently a practising lawyer as well as a professor at the Law Faculty of the University of Craiova. He is closely familiar with procedures before the European Court, both having worked within its registry in the past, as well as having  represented several applicants before the Court in cases against Romania, and having taught on the ECHR. He also has particular expertise in domestic, European and international criminal law. His experience and expertise, as a practising lawyer, thus complement the current composition of the Court. Good luck to the newly elected judge!

New Special Issue European Human Rights Law Review

A new Special Issue of the European Human Rights Law Review entitled 'The Road to Reykjavik and Beyond' has just been published (Issue 2, 2023). The contributions discuss various issues to be considered at the upcoming Council of Europe Summit in Reykjavik in May, such as the implementation and execution of ECtHR judgments, the function and value of infringement proceedings under article 46 of the Convention, and the shrinking space available for civil society.

These are the contents of the issue:

* Alice Donald and Philip Leach, 'Responding to seismic change in Europe - the road to Reykjavik and beyond'

* Robert Spano, 'Inclusive democracy and the European Convention on Human Rights'

* Jeremy McBride, 'Protecting and engaging with civil society: a challenge for the Council of Europe'

* Nils Muižnieks and Rita Patrício, 'Using the summit to breathe new life into the Council of Europe'

* George Stafford, 'The urgent reforms needed to improve the implementation of judgments of the European Court of Human Rights'

* Helen Keller and Viktoriya Gurash, '"Upping the ante": rethinking the execution of judgments of the European Court of Human Rights'

* Başak Çalı, 'The present and the future of infringement proceedings: lessons learned from Kavala v Turkiye'

* Nuala Mole, 'The Council of Europe and violence against women - past, present and future'

Workshop on Climate Change, Migration, Authoritarianism and the ECHR

On 16-17 November 2023, Başak Çalı, Esra Demir-Gürsel and Jens T. Theilen are organizing a workshop entitled 'Frames of European Human Rights - How are climate change, migration, and authoritarianism framed within the Council of Europe?'. The workshop is hosted by the Hertie School Centre for Fundamental Rights. The workshop will reflect critically on the frames and framers of climate change, migration, and authoritarianism in European human rights.

Here is a description of the workshop:

'Human rights set normative standards for states to adhere to – but they also contribute to shaping debates on politically, economically, and socially controversial topics at a deeper level, influencing our understanding of underlying realities, diagnosing problems, and leaving some aspects aside as irrelevant or less important. The aim of this workshop is to explore these constructions of realities and normativities within human rights law, focussing on the frames and framers of climate change, migration and authoritarianism in European human rights.

We invite contributions to critically analyse the emergence or shifts over time of the frames with regard to climate change, migration, and authoritarianism. What are the assumptions and terminology underpinning discussions of authoritarianism in Europe? What understandings of nature and its relation to the economy and human beings accompany discussions of climate change in the Council of Europe context? Along which lines are migrants classified within European human rights law, what kind of language is used to do so, and what gets invisibilised through these classifications? To explore the politics of different actors within the Council of Europe, we also seek to map the multiplicity of framers and how they interact with one another. To which actors can we trace certain frames used to address these topics? How do the vocabularies of various institutional actors within the Council of Europe and those of civil society and of scholarship overlap or conflict, and with what consequences?'

The deadline for abstract submissions is 23 June 2023. The full Call for Papers and more information can be found here. 

New ECHR Readings

Please find below our selection of recent publications, both articles and book chapters, related to the European Convention on Human Rights and its Court:

* Ivana Jelić, ‘Feminist Justice and the European Court of Human Rights’ in Ivana Krstić, Marco Evola, Maria Isabel Ribes Moreno (eds.), Legal Issues of International Law from a Gender Perspective (Springer International Publishing 2023), pp. 35-53:

 

‘Gender equality is clearly one of the pillar principles of the European Convention on Human Rights. Protection of women’s rights can be treated through an individual right, dealing with its substantial and procedural limb (ex. sex discrimination cases), or as an (aggravated) aspect or an attribute of a violation of a right enshrined by the Convention (ex. gender equality in connection with rights to freedom of expression or religion). Despite its principled position and having in mind the present state of jurisprudence of the Strasbourg Court (ECtHR), it could be concluded that feminist justice is still underdeveloped in comparison with the growing need for the protection of women’s rights, insisting on personal integrity.

 

Observing from a broader perspective, the ECtHR’s case law regarding feminist justice can be categorized into three clusters: (1) cases relating to achieving formal equality between men and women and prohibiting direct gender discrimination, focusing on the idea of achieving “sameness with men” (jurisprudence under Article 14); (2) cases relating to issues that may, in theory, affect both men and women, but in reality, disproportionately affect women and require special (additional) protection, such as domestic violence and trafficking; and (3) cases relating to issues that are specific to women’s rights, such as violence against women and reproductive rights.

 

The Court has gradually widened its approach concerning the protection of women’s rights, giving rise to a ‘living instrument doctrine’ by interpreting the Convention “in the light of present-day conditions”. This approach of evaluative interpretation of the Convention is necessary in order to address actual challenges of violation of human rights of women and girls, which were not envisaged in the text of the Convention 70 years ago.

 

The author tends to make an analysis on how contemporary international law deals with feminist justice, with a special emphasis on the most important ECtHR cases. The contribution should give an analytical overview through the prism of direct and indirect gender discrimination, having in mind the mentioned three clusters, with an emphasis on the recent case-law.’

 

* Janneke Gerards, Elif Erken and Claire Loven, 'The Expanding Methodological Toolbox of the ECHR Scholar', Law and Method (February 2023):

 

‘Scholars who set out to study the European Convention on Human Rights (ECHR or Convention) system will find an abundance in research methods to choose from. In the early years of the European Court of Human Rights (ECtHR or Court), the methodological toolbox of the ECHR scholar largely consisted of qualitative and classical-doctrinal methods to study the Court’s case law, as well as historical, philosophical and theoretical studies to contextualize the ECHR system. Today, these ‘traditional’ methods not only have evolved to reflect the enormous increase of, and scholarly interest in, the Court’s case law but have also been complemented by empirical qualitative and quantitative, statistical and machine learning research methods. This contribution traces these major developments in the methods applied to studying the Court. By providing a comprehensive discussion of the different approaches, including their application, value and potential weaknesses, this contribution helps scholars understand, use and learn from the rich methodological toolbox of the ECHR scholar.’

 

* Helga Molbæk-Steensig, ‘Subsidiarity Does Not Win Cases: A Mixed Methods Study of the Relationship between Margin of Appreciation Language and Deference at the European Court of Human Rights’, Leiden Journal of International Law, Vol. 36, Issue  1 (2023), pp. 83-107:

 

‘In August 2021, Protocol 15 inserted the doctrine of the margin of appreciation into the preamble of the European Convention of Human Rights, presumably cementing what President Spano has referred to as the ‘Age of Subsidiarity’, in which the European Court of Human Rights applies the margin of appreciation more often and increases deference to state parties. This insertion was done on the behest of the High Contracting Parties as part of the Interlaken reform process, and there is already a strong narrative in certain member states and parts of the scholarly literature that this focus has prompted the Court to increase the usage of the margin of appreciation and therefore the deference to states, judging more frequently in their favour. This article hypothesizes, however, that the increased usage of the margin of appreciation language which has been taken as proof for this narrative, might not, in fact, indicate higher levels of deference. Rather, the language of the margin of appreciation could be the result of usage by other actors or a marker of complexity for so-called ‘hard cases’. To investigate this relationship, the article applies a mixed legal-doctrinal and quantitative methodology to analyse who in the case law invokes the doctrine, what their purpose is for doing so, and what adjudicative consequences follow. It finds that usage of the margin-language topped well before the Interlaken process began, that governments are not the most frequent invokers and that, statistically speaking, states are no more likely to win margin-cases than other cases.’

* Andreas-Nikolaos Koukoulis, ‘The exercise of parental care of children born out of wedlock and the ECtHR: Reflections on Paparrigopoulos v. Greece’, Maastricht Journal of European and Comparative Law, Vol. 29, Issue 6 ( 2023):

 

‘This article analyses the recent judgment of the European Court of Human Rights in Paparrigopoulos v. Greece and examines its implications for cross-border surrogacy in Europe. This judgment is significant because it sets new standards in terms of the concept of discrimination between parents under Article 14 of the European Convention on Human Rights read in conjunction with Article 8 (right to respect for private and family life). The Court held that there was no reasonable relationship of proportionality between the preclusion of the applicant's exercise of parental responsibility and the aim pursued, which had been to protect the best interests of children born out of wedlock. Finally, this case note critiques the Court's findings and examines its likely impact on the parental care of the child, who was born and remains unmarried by his parents.’

* Daniela Alaattinoğlu, ‘Intersex interventions as human rights violations: The European Court of Human Rights sets out guiding principles in M v France’, Modern Law Review (14 February 2023):

 

‘In 2022, the European Court of Human Rights, for the first time, signalled that it regards non-consensual interventions on intersex individuals which are not motivated by medical necessity as human rights violations. This case note argues that the admissibility decision in question, M v France, albeit ruled inadmissible on procedural grounds, constitutes an important step towards binding supranational human rights standards, particularly regarding torture and ill-treatment. While M v France could inspire intersex people to further their claims as strategic litigation, the note reflects on the central questions invoked by the Court's decision and some of the legal hurdles that intersex people may face when approaching courts with claims for recognition and redress.’

New Book on Fairness in Criminal Appeal and the ECHR

Helena Morão and Ricardo Tavares da Silva, both of the University of Lisbon School of Law, have co-edited a book recently published by Springer, entitled Fairness in Criminal Appeal. A Critical and Interdisciplinary Analysis of the ECtHR Case-Law. This is the abstract:

'This book addresses the European Court of Human Rights’ fairness standards in criminal appeal, filling a gap in this less researched area of studies. Based on a fair trial immediacy requirement, the Court has found several violations of Article 6 of the European Convention on Human Rights at the appellate level by at least eighteen States of the Council of Europe in a vast array of cases, particularly in contexts of first instance acquittals overturning and of sentences increasing on appeal.

On the one hand, the book critically engages this case-law with the law revisions it has recently inspired in European countries, as well as with the critiques and difficulties that it continues to raise. On the other hand, it interweaves insight from criminal procedure theory with new discoveries in the field of cognitive sciences (neuroscience of memory, philosophy of knowledge, AI), shedding an interdisciplinary light on the (in)adequacy and limits of the Strasbourg Court’s jurisprudence.'

New Thematic Factsheet on Excessive Formalism by Courts

Today, the Council of Europe's Department for the Execution of Judgments of the European Court of Human Rights has issued a new thematic factsheet on excessive formalism by courts. Here is a brief description:

''The European Court has underlined that the right of access to a court is an inherent aspect of the safeguards enshrined in the European Convention on Human Rights, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention.  Possible limitations to the above right must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right be impaired. Thus, the European Court has noted that, when applying procedural rules, the courts must avoid excessive formalism that would impair the fairness of the proceedings.

The new Thematic Factsheet issued today by the Execution Department provides examples of general and individual measures reported by States in the context of the execution of the European Court’s judgments focusing on the following specific issues: excessively formalistic rules of procedure; excessively formalistic interpretation of procedural requirements; assessment by courts of statutes of limitation; payment of court fees; clerical errors; and excessively formalistic decisions concerning detention.''

2022 Report on Execution of ECtHR judgments

Last week, the latest Annual Report 'Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights' (covering the year 2022) of the Council of Europe's Committee of Ministers was published. The report outlines some important achievements: the Committee's closure of 880 cases (including 200 leading cases), and there was a new record number of communications from national human rights institutions and civil society organisations. Nonetheless, as the report shows, the Committee is also facing a number of challenges. The total number of judgments pending full execution has increased. Moreover, the complexity and the sensitivity of the issues examined by the Committee of Ministers continue to increase. This is exacerbated by the issue faced by a number of States of insufficient capacity to execute in full the judgments of the European Court of Human Rights. 

Apart from these general trends and developments this Annual Report, for the first time, contains a country-by-country statistical overview of the current situation regarding the execution of judgments and decisions of the Court in respect of each Member State.

The Court's Own Reykjavik Memorandum

Whether coincidental or not, but after last week Lize Glas reported on this blog that the Court's own memorandum for the Fourth Summit of Heads of State and Government of the Council of Europe was not yet public, just yesterday it has been put on the Court's website. The memorandum, adopted on 20 March by the Plenary Court, is the Court's own message directed at those who will gather in the Icelandic capital next month. 

In a nutshell, it is a very diplomatically worded call to the state parties to the ECHR to put their money where their mouth is. The Court asks for commitment to the Convention system, including in the shape of providing sufficient resources. The Court squarely, and one may obviously not be surprised about this, underlines the centrality of the ECHR and its mechanisms to uphold and defend the values of democracy, rule of law and human rights which the Council of Europe stands for. It describes its own judgments and decisions as making these values concrete. In the Court's own words "A strong Court ensures a strong Council of Europe, and vice versa." - echoing in a way one of the other 'wish lists' for Reyjavik, The Hague Civil Society Declaration on Council of Europe Reform, on which we reported earlier, which states "The CoE needs civil society as civil society needs the CoE." Both documents show how the ECHR  is a legal-political ecosystem that can only function well if each of its components is in a healthy state and works productively with the others.

The memorandum has a didactic edge, pointing out how political stability, rule of law, good governance, economic growth (sic) and strong democratic institutions interrelate. It emphasises how strides have been made through the reform process of the ECHR system in the past decade, both through steps taken by state parties but also by the Court's own efforts to become more efficient, connect more strongly with domestic courts, open up to civil society interventions and more. Large swathes of the backlog of cases have been tackled, but with new waves of applications coming in, often on complex and systemic issues, the Court emphasises that its own internal improvements in working methods simply do not suffice. Not just because the quantity of cases is an issue, but also because of - as the Court identifies in a thinly veiled wake up call - political pressure on its own independence and impartiality as well as in relation to the execution of its binding judgments and decisions.

In this context it calls for strong renewed commitment by the state parties. Concretely in three areas: (1) resources; (2) accountability in inter-state and confect-related cases; and (3) execution of judgments.

In terms of resources, the shortages are made very explicit: in the last decade, the Court lost 51 posts, 7% of its staff is financed by voluntary contributions and then there is voluntary help in kind in the shape of secondments from national institutions  It also points out that, unlike other parts of the Council of Europe, it has no voluntary contributions from the part of the EU - an element that puts the ongoing (and currently seemingly almost finalised) EU accession negotiations in a different light as well. In short, as those following the Court know, there has been and still is a shortage. Concrete action to sustainably fund the Court is needed - a call that aligns with those of the other wish lists for Reykjavik.

Secondly, in terms of the inter-state and conflict related cases, the Court obviously points to the Russian invasion in Ukraine and its consequences, including Russia no longer being a party to the ECHR, but the Court still having to deal with all pending applications related to it. In addition, inter-state cases are complex and time- and resource-consuming. For all such cases, the crucial importance of accountability - and thus of means to deal with such cases - again demands support by way of funding.

Finally, in terms of execution, again the Court's call aligns with those of the other wish lists analysed on this blog last week. The vicious circle between faltering execution of judgments and the influx of new cases because of unresolved systemic or large-scale human rights issues is again identified. The fact that 4 out of 5 cases before the Court relate to issues legally clarified in well-established case-law and/or to repetitive cases, both pointing to problems in the actual implementation of the Convention more broadly at the national level. These are well-known facts of course and the Court can do little more, as it does in this memorandum, than to call for the umpteenth time for states to re-affirm their commitment to the execution of the Court's judgments.

Trying to grab the momentum - "as war rages on European soil..." (sic) - the Court with this document issues another strongly worded call which one may hope will be  finally taken up - the geopolitical context in Europe does not bode too well in that sense. The Court in the memorandum rightly calls the Convention system "the beating heart" of the Council of Europe's human rights protection. One may add: for the heart to keep functioning, it needs less stress and more oxygen - and only the states can make this happen.

Wishes for Reykjavik

What Can the Fourth Council of Europe Summit Have in Store for the Court? 

by Lize R. Glas, Radboud University 

On 16 and 17 May 2023, a summit of heads of state and government of the Council of Europe (CoE) will take place in Reykjavik, Iceland. This is only the fourth such summit in the almost 74 years of existence of the organisation. With the war in Ukraine, which led to the expulsion of Russia from the CoE, the organisation is ‘at crossroads in its history’ and a summit was, therefore, called for. Other challenges for the CoE include democratic backsliding and erosion of the rule of law. The earlier three summits were also convened against the backdrop of great upheaval: the fall of the Berlin wall (1993), significant enlargement of the organisation (1997) and a series of terrorist attacks (2005) (see also here). The outcome of a summit – a declaration and action plan – can have major consequences for the Court. 

In this blog, I will first summarise the consequences of the previous summits for the Court. The main part of the blog explains what the upcoming summit can have in store for the Court, based on what five existing ‘wish lists’ for the summit want for the Court. 

The first list led to convening the summit and is the Report of the High-Level Reflection Group of the CoE. Secondly, the Parliamentary Assembly (PACE) adopted a wish list in the form of a recommendation(see also the underlying report). The third list is the The Hague Civil Society Declaration on CoE Reform. 38 civil society organisations (and counting) endorsed this Declaration, which was the result of a civil society summit organised by the Campaign to Uphold Rights in Europe (CURE) and the CoE’s Conference of International NGOs (CINGO) at the end of February. The latter also made a submission to the High-Level Reflection Group, which I also take into consideration, as I will do with another such  submission, which was prepared by the European Network of National Human Rights Institutions (ENNHRI). The last ‘wish list’ that I consulted is a letter written by Amnesty International in which it provides recommendations for the future of the CoE, in response to a call for consultations launched by the Icelandic Presidency of the Committee of Ministers (CoM). The Court itself also gave input to the High-Level Reflection Group, but this document is not available publicly. 

The previous summits and the Court 

The 1993 Vienna Declaration qualified an ‘undertaking to sign’ the Convention ‘within a short period’ as ‘fundamental’ for new member states of the CoE, thus increasing the importance of the ECHR and its Court. This instruction is now ‘a collective opinio juris, and its content has been confirmed by the practice followed in examining applications for membership’. Equally important, the states resolved to establish a single Court, thus giving green light to abolishing the part-time Court and the European Commission on Human Rights – a reform that changed the Convention system fundamentally. 

The 1997 Final Declaration, which was adopted in Strasbourg, affirmed the states’ determination to ensure full implementation of the CoE treaties, welcomed the ratification of Protocol 11 ECHR by all states and instructed the CoM to take the necessary steps to set up the single Court on 1 November 1998, as indeed happened.

In the 2005 Warsaw Declaration, the states expressed their strong commitment to implement the measures adopted at the CoM’s 114^th Session. In that session, the ministers had adopted three recommendations to the members states (on improvement of domestic remedies; on the verification of the compatibility laws and administrative practice with the Convention standards; and on the Convention in university education and professional training). The Declaration also led to the establishment of the Group of Wise Persons, tasked with drawing up a ‘comprehensive strategy to secure the effectiveness of the system in the longer term’. Quite a number of their ideas have not been implemented, but one idea planted the seed for a new protocol: Protocol 16, which permits the highest courts in the signatory states to request an advisory opinion from the Court. 

In the Warsaw Action Plan, the states pledged to ‘ensure the long-term effectiveness’ of the Convention ‘by all appropriate means’. As a consequence of this pledge, ‘more than 80% of the increase in the [CoE’s] budgetary posts benefited the Court’ in 2000-2020 according to the High-Level Reflection Group. This is only telling of the limited increase in budgetary posts and did not mean that the Court’s budgetary situation was rosy, since its regular budget allocation decreased from 629 posts in 2011 to 585 in 2021.

More budget for the Court (and the CoE at large) 

The most urgent practical wish is more budget for the CoE – without this ‘all pledges to re-vitalise the CoE are meaningless’, according to CURE. The CoE’s real budget decreased in the period 2010-2020 as a consequence of the CoM’s zero-nominal-growth policy. It now maintains a policy of zero-real-growth. These policies, coupled with Russia’s ‘refusal to pay its outstanding dues have put the Council of Europe in a difficult budgetary situation’. Although the states have made voluntary contributions in response, this is only a short-term solution. 

The half a euro per citizen living in the CoE that the states contribute to the regular budget is, according to the High-Level Reflection Group ‘unquestionably insufficient’, especially when compared to, for example, the budget of the City of Strasbourg, which amounts to 2000 euros per inhabitant. The PACE proposes to increase the budget by reviewing the scales of the contributions in order to raise the minimum contribution and by exploring whether the EU can contribute as part of its strategic partnership with the CoE. CURE suggests a budget of one euro per citizen as a ‘starting point for discussion’. 

Since the Court’s budget (76,816,700 euros for 2023) is not separate from that of the CoE, this wish for more budget is also relevant to the Court. CURE also specifically asks for extra funding for both the Court and the Department for the Execution of Judgments of the Court (Execution Department). The High-Level Reflection Group, CINGO and ENNHRI also flag the need to increase the Department’s budget (see also here). Both the previous President of the Court, Robert Spano, and the current President, Síofra O’Leary, have asked for further resources for the Court. As President O’Leary put it: the summit should ‘translate the discourse of values into material support’ (see also here).

Accession of the EU to the ECHR 

 

Both the High-Level Reflection Group and the PACE hope that Reykjavik will give the accession negotiations a boost so accession will be finalized sooner rather than later. There is a possibility that the states can give their approval to the revised draft accession instruments almost ten years after the Court of Justice of the EU declared the previous accession agreement invalid with the TEU. The CDDH Ad Hoc Negotiation Group, agreed to provisionally adopt these instruments, ‘with no delegation indicating any reservation’. Moreover, the CDDH will hold an extraordinary online meeting almost six weeks in advance of the summit to adopt the ad hoc group’s report. To my surprise, CINGO deems accession ‘technically unfeasible’ and argues that the ‘values and power of the CoE must be developed in its own right, in the service and with the full participation of all its members both within and outside’ the EU. Amnesty International does support accession. 

 

Additional Protocol to the ECHR on the environment

 

The words ‘environment’ (apart from ‘democratic environment’) and ‘climate’ are strikingly absent from the High-Level Reflection Group report. The word ‘climate’ only features in the chairperson’s biography, which makes the absence even more striking, since the chair – Mary Robinson – is Adjunct Professor for Climate Justice. Still, it can be expected that the environment will be on the agenda of Reykjavik because the environment is one of the four themes of the Icelandic CoE presidency. Moreover, Iceland proposed to look ‘at the right to a clean, healthy and sustainable environment’ during its presidency. The PACE proposes the environment as a separate agenda item and hopes that the summit supports the drafting of a binding instrument on the right to a healthy environment in the form of an additional protocol to the Convention, a hope that CURE and Amnesty International share. 

In 2021, the PACE made a similar recommendation, to which the CoM replied that it had instructed the CDDH to carry out a feasibility study. This is a more positive reply than the CoM’s previous reply to a similar PACE recommendation, when the CoM answered that an additional protocol was not ‘advisable’. Based on the more positive reply and with Iceland’s priorities and the latest alarming IPCC report in mind, perhaps sufficient momentum has been gained to give political approval to what will be Protocol 17 ECHR (see also here). The summit may come too early, however, since the CDDH Drafting Group on Human Rights and the Environment will discuss only the first two chapters of its feasibility study on 4-5 May 2023.

Execution of the Court’s judgments 

The last wish on the list, which is shared by all institutions, is improved execution of the Court’s judgments. The gist of what the High-Level Reflection Group suggests is a more political, comprehensive and co-operative approach to the execution process, in particular when execution is flawed because of a lack of political will. This approach requires ‘enhanced engagement’ with the respondent state and with different domestic actors, not only by the CoM at its human rights meetings, but also by the PACE and even the EU. The latter can, for example, as Amnesty International proposes ‘remind its member states of their obligation to implement ECtHR judgments, including in the annual Rule of Law Report and dialogues’ and ‘call for the implementation of judgments in the framework of its relations with non-EU member states, in particular those in the path to accession’.  

 

The Reflection Group proposes that the CoE should not just identify Convention violations, but ‘also contribute to finding sustainable and acceptable solutions’, which ‘may require a change in paradigm’, although I wonder whether the Execution Department does not already contribute to this. The PACE echoes these ideas and advocates for ‘strengthening relevant co-operation activities and introducing a procedure for enhanced political dialogue in cases of non-compliance’. This emphasis on co-operation should not lead to losing sight of the fact that, as Amnesty International points out, certain states systemically refuse to comply with the Court’s judgments, Turkey’s outright refusal to comply with the infringement judgment in the case of Osman Kavala being a case in point. The NGO proposes that the summit condemns this refusal ‘in the strongest possible terms’ and recommends the Secretary General, the CoM’s Presidency and the PACE President to visit Osman Kavala in prison.

 

Probably with cases like those of Osman Kavala in mind, the High-Level Reflection Group recommends the summit to consider whether ‘graduated sanctions’ can be imposed when a state persistently refuses to abide by a judgment. Comparably, CURE proposes to develop new types of sanctions. In 2000, the PACE recommended amending the Convention to introduce fines. The CDDH’s opinion on this proposal, which was appended to the CoM’s negative response to the PACE, mentioned a number of questions that the proposal raised: 

‘would such a system be efficient, would it be so outside certain exceptional situations (such as when a government is persistently refusing to fulfil its obligation to abide by a judgment)? Would, furthermore such a system be at all appropriate when the execution of the judgment requires the adoption of general measures, notably legislative ones, which may require lengthy procedures at the national level?’ 

The Venice Commission also wondered whether penalties would be of added value and offered to carry out a study to clarify this. Perhaps the questions of the CDDH and the offer of the Venice Commission will serve to inspire the participants at the summit to order such a study. 

 

Although the CoM can currently not impose sanctions (other than taking away a state’s rights of representation or its membership under Article 8 of the CoE statute), it can start infringement proceedings against a state that refuses to abide by a Strasbourg judgment under Article 46 (4-5) ECHR.  CURE proposes that the CoM applies this procedure ‘with greater speed and transparency and in a wider range of cases’. So far, the procedure has only been applied in the case of Osman Kavala as was noted above and in the factually comparable case of Ilgar Mammadov v Azerbaijan. Amnesty International focuses on the execution of infringement judgments, emphasising that an infringement judgment ‘should automatically trigger a collective response’ of the CoE’s statutory bodies and the states. Additionally, Amnesty International submits that the execution of these judgments should be included in every ministerial meeting at the end of a presidency (including in Reykjavik where this topic should be a separate agenda item) and that a conference should be organised when a state refuses to execute an infringement judgment. 

 

The more specific proposals come from CURE, suggesting, among other things, that the states encourage the Court to be more precise in its judgments about execution measures. The Execution Department would also welcome this. The High-Level Reflection Group notes about this idea that the Court’s guidance ‘gives an indication as to the choice of implementation measures; the choice itself remains a prerogative of the state party’. 

I am not sure that the Court would agree with this statement. As one of its previous Judges explained: the Court has ‘repeatedly’ prescribed (not merely suggested) execution measures and this practice has ‘a solid legal basis’, both in the Convention and in CoM documents. When the Court prescribes an execution measure in the operative provisions of its judgment, choosing the measure is outside the prerogative powers of a state (although the Court does not usually describe a measure in detail, so the respondent state can fill in the details). Even in the absence of a prescription of the Court, choosing execution measures is, I would argue, never the exclusive prerogative of the state, because the CoM is responsible for supervising the execution process under Article 46(2) ECHR.

 

So what can the fourth Council of Europe Summit have in store for the Court? 

The overview of what previous summits had in store for the Court demonstrates that a summit can have major consequences for the Court and can serve to express approval of already adopted reforms and promulgated ideas. However, the declarations did not include any detailed reform plans, which are left for other occasions, such as high-level conferences on the Court’s future, regular CoM sessions and working groups. We should, therefore, probably not expect any detailed proposals regarding the Court from Reykjavik, despite some of the current wishes being fairly specific. 

Based on the different wish lists, it is likely that these points will be subjects of discussion in Reykjavik: not only renewed support for the CoE’s founding principles and the Court’s authority, but also additional budget to turn support into action, approval of the EU accession instruments, an addition protocol to the ECHR on the right to a healthy environment and new approaches to the execution of the Court’s judgments. Only time will tell whether these points will make it to the declaration. 

Lize R. Glas is associate professor of international and European Law at Radboud University and member of the CURE Advisory Council.