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Presentation made by Christos Pourgourides - Conference on the Prevention of Human Rights Violations (Kyiv, Ukraine, 20 -21 September 2011)

“Ensuring an adequate normative framework and implementation of Strasbourg Court judgments: the parliamentary dimension”

 

Ladies and Gentlemen, I would like to start by thanking our hosts for organising a conference on this very important topic. It is an honour to be here and I look forward to sharing my thoughts with you and to what I hope will be a frank and fruitful discussion today.

 

The topic I have been asked to speak on is “ensuring an adequate normative framework and implementation of Strasbourg Court judgments: the parliamentary dimension”. To put these issues into context, at the end of 2010 there were over 9,900 judgments of the Strasbourg Court pending supervision of execution before the Committee of Ministers[1]. This is an increase of 14% on the previous year. Of these pending cases, 9 countries account for 64%: Turkey, Bulgaria, Russia, Romania, Poland, Italy, Ukraine, Greece and Moldova. These states, identified by the high number of violations found by the Court as states with major structural or systemic problems, have already attracted special attention from the Parliamentary Assembly. While it is often said the Court is a “victim of its own success”, it might be more accurate to say that it is, or risks becoming a victim of the shortcomings of these states with a high case-count. It is therefore crucial that these states take appropriate action if the Court is not to collapse under this weight. 

 

The main problems continue to be excessive length of judicial proceedings – Italy, chronic non-enforcement of domestic judicial decisions – Russia and Ukraine; persons being killed and ill-treated by law enforcement officials coupled with a lack of effective investigation – Russia and Moldova; and unlawful or over-long detention on remand – Moldova, Poland, Russia and Ukraine[2].

 

I have statistics which indicate that, with respect to 12 states, the majority of cases pending before the Committee of Ministers   92% ! – are repetitive or so-called clone cases[3]. The Court and its staff, not to mention the Secretariat overseeing the implementation of the Court’s judgments, should not be forced to waste time and effort dealing with such cases. At the same time, victims of repetitive human rights violations must not be denied justice. It has been suggested that states which fail for a long time to take corrective measures should be subjected to a form of exemplary damages[4]. This would not only send a strong message but would have the added benefit of perhaps making it worth the state’s while to solve the problem at the root. It appears that a new approach is indeed needed. As we can see, we at the Council of Europe – be it the Committee of Ministers or the Parliamentary Assembly, have thus far failed to persuade the states in question to take action  And here I refer to real, effective remedial measures.

 

As I said at a similar conference in Skopje back in October last year: one way of reducing the number of repetitive or clone cases is to apply the principle of res interpretata, which means that national legislators and courts should take into account Convention standards as interpreted by Strasbourg, including in judgments against other States Parties. To illustrate this, the Court held in 1979 in Marckx v Belgium that children born out of wedlock must not be discriminated against. The French law was similarly discriminatory. But the necessary changes were made only in 2000, after a judgment against France in the case of Mazurek.. 20 years were lost for the victims of such discrimination, which caused much unnecessary litigation before the Strasbourg Court and, of course, before the domestic courts.[5]

 

The Contracting Parties confirmed in Interlaken their commitment to

 

“take into account the Court’s developing case law, also with a view to considering the conclusion to be drawn from a judgment finding a violation of the Convention by another state, where the same problem of principle exists within their own legal system.”

 

Despite this, few states have, to my knowledge, introduced legislation which would have this effect: take the examples of the United Kingdom and Ukraine. The United Kingdom did so through its Human Rights Act of 1998 which stipulates that the UK must “take into account” the Convention as interpreted by the Court. And a law passed in Ukraine in 2006 elevates Strasbourg case law to the status of a “source of law”. Can anyone in the audience give us examples of how this law has been used in practice by the Ukrainian courts? That would be very interesting to all of us. In any event, if other States were to follow the UK’s and Ukraine’s lead, this would – potentially – have a substantial effect on the number of cases before the Strasbourg Court.

 

However, for this to be truly effective, it would need to be accompanied by the effective enforcement of domestic court judgments which, as I noted earlier, is an endemic problem in Russia and indeed in our host country, Ukraine. In my report on the implementation of Strasbourg court judgments, I discussed the difficult situation in numerous countries, including Ukraine. Our host country still faces a number of other problems with the implementation of Strasbourg Court judgments, including the length of civil and criminal proceedings, issues concerning detention on remand, unfair trial due to, inter alia, lack of impartiality and independence of judges. Hence the urgent need to take measures – if necessary, legislative measures – to reinforce the authority and efficiency of the national judiciary.

 

Turning first to the non-enforcement of domestic court judgments, I note that the Zhovner group of cases, which relates to excessive delays in enforcing domestic court judgments, is still under examination by the Committee of Ministers – and has been since 2004. The Committee of Ministers has repeatedly called on Ukraine to create a domestic remedy for victims of these excessive delays. The Committee of Ministers has also been examining for a long time Ukraine’s implementation of the pilot judgment in Ivanov. For this case, a draft law addressing problems identified by the Court and providing a domestic remedy was tabled with Parliament in January of this year. To date, insufficient progress has been made in its adoption, despite the clear deadline set by the Committee of Ministers.

 

We understand that this draft law concerning the execution of domestic court decisions has, with minor changes, recently been submitted before the Ukrainian Parliament for a second reading. The Ukrainian authorities, including the legislative branch, must now ensure this law’s rapid adoption.

 

Ukraine has also given rise to concerns for other reasons, particularly in relation to the increasing number of reports that democratic freedoms and fundamental rights – including freedom of assembly, of expression and of the media – have come under pressure in recent months[6]. In particular, we are dismayed by the disappearance of the Ukrainian journalist Vasyl Klymentyev. He had been reporting on corruption, a fact which Anatoly Mogylyov, the Interior Minister, has admitted may account for his disappearance.[7] Reports have also reached us that requests for demonstrations in front of the Verkhovna Rada and other government buildings have been denied and spontaneous protests have been broken up.[8] Also, we remain concerned with respect to the involvement of the Security Service of Ukraine in domestic political affairs, and of reports of pressure on journalists and civil society.[9] Whilst we applaud the Ukrainian government for the political will it has displayed in working towards fulfilment of its accession commitments to the Council of Europe, we would remind Ukraine that freedom of expression is a cornerstone of any democratic society and would like to see it take steps to protect this and other rights. Last but not least, we are alarmed by the criminal prosecution of former high-level officials, in particular Yulia Timochenko and Yuri Lutsenko. Any criminalisation of political decision-making smacks of politically-motivated abuse of the criminal justice system – a practice strongly condemned by the Assembly in a report prepared by the current German Minister of Justice, Sabine Leutheusser-Schnarrenberger.

 

On a more positive note, I would like to mention the Council of Europe Action Plan for Ukraine for 2011 – 2014, itself a follow-up to the Action Plan for 2008 – 2011. This Action Plan is directed at supporting democratic reforms launched by the President and the Government of Ukraine, promoting free and fair elections, the reform of the judiciary and the fight against corruption, countering money laundering, supporting freedom of expression and enhancement of social security[10]. With regard to the non-execution of domestic court judgments, prolonged and unjustified detention periods, violations of fair trial and of property rights, a series of expert meetings and seminars will be conducted by the Council of Europe, as well as a cascade of seminars by national ECHR trainers, workshops, round table discussions and so on.

 

To return more specifically to the topic of parliamentary follow-up structures, I have long stressed their importance for ensuring the implementation of Strasbourg Court judgments. Effective parliamentary supervision at the national level is required in all States. Leaving the entire burden to the Committee of Ministers is not only unfair on them, but also on national parliaments who must be allowed to play their important role. The latter are uniquely placed to scrutinise the action – or inaction - of governments. In fact, a recent report has shown that States with strong implementation records also have a strong participation of parliamentary actors in the implementation process of Strasbourg Court judgments. Ukraine now has a parliamentary committee dealing with this matter - maybe someone in the audience  can give us some more information on its activities.

 

National parliaments which have not yet done so should set up strong procedures to ensure systematic verification of compatibility of draft legislation with Convention standards, including regular monitoring of all judgements which could potentially affect their countries respective legal orders. Here, I wish to stress that Parliaments are uniquely placed to hold governments to account to ensure swift and effective implementation of Strasbourg Court judgments. Above all, when adopting state budgets, parliaments should take a more ‘aggressive’, pro-active approach to influence and prioritise legislative initiatives and, where appropriate, channel the funds needed to ensure the effective implementation of Strasbourg Court judgments.[11]

 

 

I would like to end by referring to the Assembly’s Resolution 1787, adopted in January of this year, on the implementation of judgments of the European Court of Human Rights.[12] The Assembly called upon several chairpersons of PACE delegations to present the results achieved in solving major structural and systemic problems highlighted in the said Assembly Resolution. I trust the representatives of Ukraine, when the time comes, will be in a position to tell us a good story, a success story, which will inspire others to follow in their footsteps – for the sake of the fundamental rights and principles for which we all stand. But good intentions are not enough. We need concrete results.

 

I thank you for your attention.

 

 



[1] Annual Report of the Committee of Ministers 2010 (on the supervision of the execution of judgments of the European Court of Human Rights), page 31.

[2] PACE Resolution 1787 (2011) and  Doc. 12455, passim.

[3] See Doc. AS/Jur/Inf (2011) 05 rev 2,”States with major structural/systematic problems before the European Court of Human Rights: statistics, “  § 17 at p. 6 http://assembly.coe.int/CommitteeDocs/2011/ajinfdoc05%202011rev_EN.pdf

 

[5]  See, in particular the comparative survey undertaken by the Secretariat of the Assembly’s Legal Affairs & Human Rights Committee, doc. AS/Jur/Inf (2011) 04 “Strengthening Subsidiarity: Integrating the Strasbourg Court’s Case law into National & Judicial Practice”, available at http://assembly.coe.int/CommitteeDocs/2010/20101125_skopje.pdf at pages 4 to 44.

[6] See PACE Resolution 1755 (2010),on the functioning of democratic institutions in Ukraine, paragraph 12 http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta10/ERES1755.htm

[7] PACE Doc. 12357, paragraph 78.

[8] Ibid, paragraph 83.

[9] Supra fn 5, paragraph 8.

[10] DPA/Inf (2011) 17 rev, Introduction

[11] See Assembly Resolution 1823 (2011 National Parliaments : guarantors of Human Rights in Europe (http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta11/ERES1823.htm ) & Committee of Ministers Recommendation (2008) 2 on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights.

[12]  § 10.4 of Assembly Resolution 1787 (2011), available at http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta11/ERES1787.htm