Doc. 8808

12 July 2000

Execution of judgments of the European Court of Human Rights

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group

Summary

For fifty years the European Convention on Human Rights has contributed substantially to the maintenance of democratic stability and the rule of law in Europe.

But that contribution depends on the good faith of the states parties to the Convention. By signing it, they have undertaken to abide by the final judgments of the European Court of Human Rights in cases to which they are parties, the Committee of Ministers of the Council Europe being responsible for supervising the execution of the judgments. There is, however, no provision in the Convention for sanctions to be taken if judgments are not executed. Yet failure to execute judgments undermines the whole system of protection.

The Assembly is therefore proposing a number of measures designed to ensure that judgments and Committee of Ministers’ decisions are executed; the proposals are addressed to the states parties and their various institutions, to the Court and to the Committee of Ministers. The Assembly itself undertakes to play a greater role in the process and also invites its national delegations to contribute.

I.       Draft resolution

1. The Assembly considers that the European Convention on Human Rights (hereafter the Convention) offers a unique mechanism for the protection of human rights and contributes substantially to maintaining democratic security and to the principle of the rule of law throughout the European continent. In order to maintain this standard of protection, it is essential that States fully comply with their formal undertaking to abide by the final judgments of the European Court of Human Rights (hereafter the Court) in cases to which they are parties.

2. The system of the Convention is based in particular on two principles: subsidiarity and solidarity. The principle of subsidiarity implies that the primary responsibility for the ensurance of the rights and freedoms laid down in the Convention rests with the national authorities. Only if they fail to fulfil their responsibility is the Court called upon to take a decision.

3.       The principle of solidarity implies that the case-law of the Court forms part of the Convention, thus extending the legally binding force of the Convention erga omnes (to all the other parties). This means that the States parties not only have to execute the judgments of the Court pronounced in cases to which they are party, but also have to take into consideration the possible implications which judgments pronounced in other cases may have for their own legal system and legal practice.

4.        The Committee of Ministers, according to Article 46 § 2 of the Convention, supervises the execution of the Court’s judgments. However, the Convention does not provide for a sanction in a case where a State does not execute a judgment of the Court. The measures to be taken in such cases are those foreseen in the Statute of the Council of Europe, in particular in its Article 8.

5.        The Assembly is concerned that the execution of some judgments is causing considerable problems that threaten to undermine what has been achieved during the forty years during which the Convention has operated. Some judgments of the Court are still not executed after several years.

6.        The Assembly is of the view that the responsibility for this situation rests mainly with the States Parties which must execute the Court's judgments. In that regard, members of national delegations to the Assembly have a role to play. However, the Court, whose judgments are sometimes not sufficiently clear, and the Committee of Ministers, which does not exert enough pressure when supervising the execution of judgments share part of the responsibility.

7.        In spite of some progress made in giving direct effect to the Court’s judgments, the present situation gives cause for serious concern. On the one hand, the Court faces an increase in the number of cases due to the accession of a number of new member parties; on the other, the situation is aggravated by the numerous cases which relate to violations of human rights already judged, but the judgments have not been followed by the necessary reforms which would avoid further violations.

8.        The problems of implementation are at least seven-fold: political reasons, reasons to do with the reforms required, practical reasons relating to national legislative procedures, budgetary reasons, reasons to do with public opinion, judgments which are casuistical or unclear, reasons relating to interference with obligations deriving from other institutions.

9.        The possible solutions concern both the national level and the Council of Europe level.

10.        At the national level:

i. legislators should ensure that new legislation fully complies with the Convention;

ii. governments should take the necessary action to execute the Court’s judgments in order to avoid any recurrence of violations;

iii. governments should remedy the applicant’s individual situation and where necessary they should ensure that their legislation provides for the revision of a trial following a judgment of the Court;

iv. judges and administrators should work towards giving direct effect to the Court’s judgments so that national courts authorities can directly apply them;

v. national authorities should make sure that the Court's case-law is adequately circulated in the language(s) of the country;

vi. until definitive reforms come into effect, domestic authorities and courts should adopt interim measures.

11.        At Council of Europe level:

A. the Committee of Ministers should

i. amend the Convention so as to give the Committee of Ministers the power to ask the Court for a clarifying interpretation of its judgments in cases where the execution gives rise to reasonable doubts and serious problems regarding the correct mode of implementation;

ii. amend the Convention to introduce a system of "astreintes" (daily fines for a delay in performance of a legal obligation) to be imposed on States that persistently fail to execute a Court judgment;

iii. ask the governments of High Contracting Parties to make more use of their right to intervene in cases before the Court, so as to promote the clarity of the decisions of the Court;

iv. be more strict towards member States which fail in their obligation to execute decisions and take the measures provided for in Article 8 of the Statute in case of continued refusal;

v. ensure that measures taken are effective means of preventing further violations;

vi. keep the Assembly informed of progress in the execution of judgments, in particular by more systematic use of interim resolutions setting a timetable for carrying the reforms necessary within signatory States for execution;

vii. instruct the Secretary General to reinforce assistance to train judges and lawyers in member States;

B. the Court

i. should ensure that its judgments are clear and its case-law coherent;

ii. should find possibilities to indicate in its judgments to the national authorities concerned in what way they should execute the judgment so that they can comply with the decisions and take the individual and general measures required;

iii. should more frequently indicate in a judgment that a previous judgment has not, or not completely, or not timely been executed by the State concerned.

C. the Assembly decides to

i. draw the attention of the public at large to the execution of judgments of the Court;

ii. keep a permanent updated record of the execution of judgments, noting:

      a. the just satisfaction afforded to applicants;

      b. any legislative or constitutional reforms needed to avoid further violations;

iii. hold regular debates about the execution of judgments, on the basis of the aforementioned permanent record;

iv. adopt recommendations to the Committee of Ministers, and through it to the relevant states, concerning the execution of certain judgments if it considers that execution has been abnormally delayed, or if the state in question has neglected to execute or deliberately refrained from executing the judgment – if necessary holding an urgent debate to this end;

v. invite the parliamentary delegations of the States concerned to do their utmost to bring about the quick and efficient execution of judgments;

vi. invite the Minister of Justice or another relevant minister of the responding State to give the Assembly an explanation in person, in case of refusal to execute a judgment or in case of excessive delays;

vii. consider as a reason to open a monitoring procedure the case of a member state refusing to implement a decision of the Court;

viii. envisage, if these measures fail, to make use of other possibilities, in particular those provided for in its own Rules of Procedure and/or of a recommendation to the Committee of Ministers to make use of Article 8 of the Statute.

D. National delegations

i.        National delegations within the Assembly should be regularly informed about the Court’s case-law and problems concerning the execution of judgments in their country.

12.        Accordingly the Assembly

i. invites the High Contracting Parties

a. to take the necessary action to execute the Court’s judgments in order to avoid any recurrence of violations;

b. to ensure that new legislation fully complies with the Convention;

c. to take the necessary steps to give direct effect to the Court’s judgments so that national courts can apply them;

d. to remedy the applicant’s individual situation and to ensure that their legislation provides for the revision of a trial following a judgment of the Court;

e. to adopt interim measures until definitive reforms come into effect;

f. to proceed with the legislative, and if necessary constitutional, reforms required to bring their national legislation fully into conformity with the European Convention on Human Rights and the case law of the Court;

ii.        invites the national delegations to the Assembly to carefully follow the execution of judgments of the Court in which their governments are involved in their respective parliaments and to take all necessary measures for their quick and efficient execution.

II.        Draft recommendation

The Assembly, referring to its Resolution …. (2000) on the execution of judgments of the European Court of Human Rights, recommends that the Committee of Ministers

i.       amend the Convention so as to give the Committee of Ministers the power to ask the Court for a clarifying interpretation of its judgments in cases where the execution gives rise to reasonable doubts and serious problems regarding the correct mode of implementation;

ii.       amend the Convention to introduce a system of "astreintes" (daily fines for a delay in performance of a legal obligation) to be imposed on States that persistently fail to execute a Court judgment;

iii       ask the governments of High Contracting Parties to make more use of their right to intervene in cases before the Court, so as to promote the erga omnes significance of of the decisions of the Court;

iv.       when exercising its function under Article 46 § 2 of the European Convention on Human Rights,

a. be more strict towards member States which fail in their obligation to execute judgments of the Court;

b. ensure that measures taken constitute effective means to prevent further violations;

c. keep the Assembly informed of progress in the executions of judgments, in particular by the more systematic use of interim resolutions setting a timetable for carrying out the reforms planned;

d. instruct the Secretary General to reinforce and improve its technical assistance programmes;

e. ask member States to help persons or organisations who contribute to the diffusion of information and to the training of judges and lawyers.

III.       Explanatory memorandum        by Mr Jurgens, Rapporteur

Contents

A.       Introduction       7

B.       Shared responsibility       10

C.       The causes

      1.       Declaratory nature of judgments       12

      2.        Problems of implementation       13

.       a. Political reasons       13

      b. Reasons to do with the scale of reforms required       14

      c. Practical reasons relating to internal legislative procedures       15

      d. Budgetary reasons       16

      e. Reasons to do with public opinion       16

      f. Casuistical or unclear judgments       16

g. Reasons relating to interference with obligations deriving

      from other institutions       17

D.       Possible solutions       18

      - National level       18

      - Council of Europe level       19

Appendix I       22

Appendix II       28

A.       Introduction¹

1.        In order to maintain the standard of human rights protection, it is essential for states to continue to comply with their formal undertaking under Article 46(1) of the European Convention on Human Rights (ECHR) to abide by the final judgments of the Court in any cases to which they are parties. Compliance with the Court’s judgments is the key to the effectiveness of the system established by the Council of Europe to protect human rights and fundamental freedoms.

2.        The system of the Convention is based on the principle of subsidiarity. In the present context this principle implies the following:

3.        On the one hand, the primary responsibility for the ensurance of the rights and freedoms laid down in the Convention rests with the national authorities, including the domestic courts (see Article 1 of the Convention). Only if and to the extent that they fail to fulfil their responsibility, is there access to the mechanism provided for in the Convention (see Article 35, paragraph 1, of the Convention: exhaustion of local remedies as an admissibility requirements).

4.        On the other hand, the interpretation of the provisions of the Convention ultimately rests with the European Court of Human Rights (see Article 19 juncto Article 44 of the Convention). This means that, although Article 46 of the Convention only refers to the obligation of the State which is a party to the case, to abide by the judgment, the interpretations given by the Court in its judgments form part and parcel of the provision concerned and, consequently, share the legally binding force of the Convention erga omnes.

5.        From this it follows that, although the Contracting States are, first of all, under the obligation to execute the judgments of the Court pronounced in cases to which they are a party, they also have to take into consideration the possible implications which judgments pronounced in other cases may have for their own legal system and legal practice. Only in that way can they meet in an effective and full way their primary responsibility, under Article 1 of the Convention, to ensure the rights and freedoms of the Convention as interpreted by the Court. In this broader context, it is preferable to use the term "implementation" instead of "execution". This report, however, confines itself to the execution of decisions by respondent States.

6.        The body responsible for monitoring states’ compliance with this fundamental commitment is the Committee of Ministers. Article 46(2) provides:

      “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”7.

7.        This task has, in theory, been made easier since Protocol No. 11 came into force on 1 November 1998: once the transitional period is over², the Committee of Ministers will no longer be required to exercise the quasi-judicial function assigned to it by Article 32 of the 1950 Convention and will thus be able to concentrate on supervising national execution of the Court’s judgments. However, there are still cases which have been referred to the Committee of Ministers and which have not yet lead to a decision – even after ten years.

8.        The Assembly is concerned that the execution of some judgments is causing considerable problems that threaten to undermine what almost forty years of operating the Convention machinery has achieved. The entry into force of Protocol No. 11 has not, at least initially, put an end to this state of affairs.

9.        On several occasions already this has compelled the Assembly to question the Committee of Ministers about the most blatant current examples of failure to execute judgments: the cases of Hakkar v. France, the Socialist Party v. Turkey and Loizidou v. Turkey.

10.        While the action taken by the Committee of Ministers to ensure that these judgments and its own decisions are properly executed is to be welcomed (see, in particular, the letter from the Chair of the Committee of Ministers, the Greek Minister of Foreign Affairs, Mr Papandreou, to his French counterpart, Mr Védrine, in the Hakkar case, and interim resolutions DH (99) 245 and DH (99) 529 in the Socialist Party case and DH (99) 680 in the Loizidou case), the fact remains that these judgments and decisions of the Committee of Ministers have still not been executed.

11.        The Assembly has also expressed concern at the time taken to execute certain other judgments. I shall refer in particular to Written Question No. 378 of 10 September 1998 by Ms Ragnarsdottír, Mr Clerfayt, Mr Hagård and myself, in which we asked about the length of time full execution was taking in all cases where judgments were over three years old (some, such as Gaskin v. United Kingdom, a 1989 judgment, are much older) and there was still no sign of execution.

12.        In its reply to this written question, the Committee of Ministers began by providing a number of clarifications as to the procedure followed in supervising the execution of judgments:

      “Before going into the details of Written Question No. 378, the Committee of Ministers recalls that it has adopted rules for the application of Article 54 of the Convention which provide for including all new Court judgments on its agenda without delay for the purpose of supervising execution and, at intervals of not more than 6 months, the measures taken by the respondent State in order to abide by the judgment. It also recalls that this supervision takes place, in principle, at every human rights meeting if there is a problem concerning the just satisfaction due to the applicant. According to the practice of the Committee of Ministers, the supervision of the execution of decisions taken under Article 32 of the Convention is carried out in the same way.”13

13.        It then gave three explanations for the length of time needed to execute judgments: firstly, the extent of the reforms which the states concerned had undertaken in order to meet all the implications of the Court’s judgments; secondly, the internal difficulties which some countries encountered in implementing projected reforms (for example, amendments to the constitution might be needed); and finally, in certain special circumstances, it might be necessary to await the outcome of other similar cases still pending before the Convention organs so as to have a clearer picture of the Convention’s requirements and the reforms needed in the relevant area.

14.        Since then, the Committee of Ministers has, in a number of resolutions, stressed the importance it attaches to swift execution of the Court’s judgments and its own decisions. For example, one of the paragraphs of the preamble to the Committee of Ministers’ interim resolution on the serious problem of the excessive length of court proceedings in Italy read:

      “Stressing the necessity for all the Contracting States to take rapidly all the measures required in order to comply with their obligation to prevent the repetition of violations of the Convention similar to those established in the judgments of the European Court of Human Rights and in the decisions of the Committee of Ministers.” (Interim Resolution DH (99) 437)15

15.        The Chair of the Committee of Ministers has also stressed the need for swift execution of judgments in his statements to the Parliamentary Assembly. The reply of the Chair of the Committee of Ministers, the Hungarian Minister of Foreign Affairs, Mr Martonyi, to the oral question from Ms Ragnarsdottír and myself on 27 April 1999 is particularly eloquent:

      “I take this opportunity to stress the importance the Committee of Ministers attaches to the swift execution of judgments of the European Court of Human Rights and decisions by the Committee of Ministers.Pr

      Proper execution implies that the member states take all the necessary measures to avoid similar violations in the future, but also that states remedy the situation of applicants who are still suffering from the violations found by the Court or the Committee of Ministers.

      Enforcement is an essential element of the efficiency of our system for the protection of human rights, which would be seriously called into question if the obligations freely accepted by the member states in this regard were not fully respected.”

16.        Nevertheless, five of the seven judgments referred to in Written Question No. 378 have still not been appropriately executed (the only cases properly resolved are Keegan v. Ireland (Resolution DH (99) 123) and Holm v. Sweden (Resolution DH (98) 205)).

17.        Yet are we to infer that the Committee of Ministers alone is responsible for this state of affairs? Without wishing to pass judgment on the details of the various problem cases, in most of the cases it is clear that the execution problems stem from an accumulation of factors.

B.       Shared responsibility

18.        As Pierre-Henri Teitgen, one of the moving spirits behind the Convention, put it, there is collective national responsibility for giving effect to the safeguards laid down in the Convention. Since states were not just governments as represented on the Committee of Ministers, the Parliamentary Assembly should take a much keener interest in the Court’s judgments and its members, being members of national parliaments, should be able to intercede with the authorities to good effect when difficulties arose in the execution of a judgment.

19.        And the Assembly has in fact long assumed a share of responsibility, alongside the Committee of Ministers, for ensuring compliance with the collective safeguards provided by the Convention. The above-mentioned questions from Assembly members demonstrate that. The main question now is what resources it can devote to continuing and developing its supervision of execution to keep pace with the increasing number of cases and defendant states.

20.        The Parliamentary Assembly and individual members should see to it that the Committee of Ministers does not satisfy itself with formal information provided by the Government concerned but examines itself - assisted by the Directorate General of Human Rights of the Council of Europe - whether the measures indicated by the Government constitute full and effective execution of the judgment.

21.        Assembly members themselves, in their national parliaments, can draw on the Court’s judgments when called upon to examine or to decide on legislation. They can ensure that it complies with the Convention whether for executing a judgment concerning their own country or, more generally, as a precautionary check that the legislation is not in breach of the Convention or the Court’s case-law. This is another avenue which should be explored and developed further.

22.        The national parliaments are in a better position than the Parliamentary Assembly itself, given that it is they who are involved in the adoption of new national legislation and who are able to bring pressure to bear on the competent authorities to change procedures judged to be in breach of the European Convention on Human Rights.

23.        In this connection, it should be emphasised that the Court's position on a given issue, particularly as apparent from its case-law, has a very important bearing on execution. Where its case-law is stable, clear and well reasoned, states are provided with a sound basis for taking the necessary measures to redress violations and prevent their repetition. But if, for example, a judgment deviates inexplicably from established case-law, the state may wonder, especially if the case has been dealt with by a chamber, whether the Court is really going to maintain its new line and whether it is really necessary to embark on substantial reforms in order to comply with it. Execution of a judgment of that kind is very likely to become problematical. It is not yet clear whether the internal appeal to the Grand Chamber, instituted by Protocol No 11, could turn out to be a part of the answer to this problem.

24.        If the Convention’s machinery is to operate smoothly, the Court needs to take an interest in action on its judgments and give sufficient reasons to make it clear to states what reforms are needed to avoid the violations the Court has found. This is essential if states are to develop standards or effective remedies of their own to prevent any further violations. The Committee of Ministers’ reply to Written Question No. 378 illustrates clearly that a casuistic approach can make it difficult to carry out effective reforms.

25.        Finally, much of the responsibility naturally rests with the states parties to the Convention, which are bound to execute judgments. While it is rare for the competent authorities simply to refuse to take the measures a judgment requires, the measures adopted are frequently taken too slowly or only partially redress the violation and prevent further violations. Such imperfections or delays may lead to floods of applications to the Strasbourg bodies. The most striking example to date has been the excessive length of court proceedings in Italy (see, for example, the Di Mauro v. Italy judgment of 28 July 1999, in which repeated delay was described as “a practice that is incompatible with the Convention”, thus rendering it unnecessary to consider further whether domestic remedies had been exhausted, and the Court quoted Resolution DH (97) 336 of the Committee of Ministers to the effect that “excessive delays in the administration of justice constitute an important danger, in particular for the respect of the rule of law) - See also Committee of Ministers resolutions DH (97) 336, DH (99) 436 and DH (99) 437. Committee of Ministers statistics show that between 1995 and November 1999, over 2000 cases concerning this problem were referred to the Committee).

26.        If the Council of Europe is to maintain its action capability and serve the interests of all its member states with regard to human rights and fundamental freedoms, one state cannot possibly be allowed to monopolise the system’s resources. Such situations are therefore to be avoided at all costs.

27.        In this connection the role of the domestic courts is not to be ignored. Considerable progress has been made in the past few years: the Convention has been incorporated into the domestic law of nearly all the member states³ and supreme courts nowadays generally appear willing to give direct effect to the Court’s judgments, even those concerning other countries.

28.        Constitutional courts in member states have resolved a number of significant problems relating to execution (for example, in connection with the Karlheinz Schmidt judgment (Germany), the Informationsverein Lentia and Gaygusuz judgments (Austria), the Barberà, Messegué and Jabardo case (Spain), the Lauko and Kadubec judgments (Slovakia) and the Vasilescu judgment (Romania)). However, if domestic courts are to be able to provide fully effective remedies, they must have ready access to the Court’s case-law. This problem has yet to be solved and is particularly serious in the lower courts. Judgments are only available in French and English. Nationwide availability, in the national language if necessary, remains indispensable in all countries.

29.        The Vermeire v. Belgium case (1991) seems to suggest that the Court's decision should be directly applied by national courts when the legislator takes too long in implementing the Court's decision.

30.        In spite of the considerable progress made in giving direct effect to the Court’s judgments in domestic law, the combined result of the problem factors gives cause for serious concern: when the President of the Court reported on the Court’s first six months in operation, he issued an alert to member states’ governments, parliaments and courts. The Court has already opened nearly 16 000 provisional case-files in its first 10 months, a 30% increase on the old Court’s last 10 months.

31.        If we add the thousands of cases whose execution is under review by the Committee of Ministers - in some cases review of execution has been going on for years - the outlook is fairly bleak. All the more so as problems are bound to snowball: as long as judgments remain unexecuted, further violations will be caused – whether by unrepealed legislation that is in breach of the Convention, by domestic court decisions or by not having proper means of ensuring that the different branches of government are able to observe human rights and fundamental freedoms in the performance of their functions – and these further violations will result in applications to the Court.

32.        The Assembly therefore wishes to look into the causes of all this and outline possible solutions.

C.       The causes

1.       Declaratory nature of judgments

33.        To begin with, it should be noted that the Court’s judgments are declaratory. In other words, the Court does not tell states how to remedy any violations that it finds. The Court has always turned down requests for specific advice as to measures; it merely awards just satisfaction to the injured party. As the Court itself explained in Marckx v. Belgium (judgment of 13 June 1979):

      “Admittedly, it is inevitable that the Court’s decision will have effects extending beyond the confines of this particular case, especially since the violations found stem directly from the contested provisions and not from individual measures of implementation, but the decision cannot of itself annul or repeal these provisions: the Court’s judgment is essentially declaratory and leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligation under Article 53”.34

34.        There has been a certain development, however. In X and Y v. The Netherlands (1985) the Court indicated that the penal law needed to be adapted and that suits in civil law did not give sufficient protection. And since Ringeisen (1972) the Court has given instructions how damages should in fact be paid.

35.        Since the Court does not tell states how to apply its decisions, they must consider how to do so themselves. The obligation to comply with judgments is an obligation to produce a specific result - to prevent further violations and repair the damage caused to the applicant by the violation. As the Court explained in its Papamichalopoulos judgment (judgment of 31 October 1995):

      “The Court points out that by Article 53 of the Convention the High Contracting Parties undertook to abide by the decision of the Court in any case to which they were parties; furthermore, Article 54 provides that the judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach”.36

36.        As a rule, states act in good faith and endeavour to execute the Court’s decisions. This is clear from the resolutions adopted by the Committee of Ministers on its supervision of the execution of judgments. Legislators amend offending legislation, while the courts and administrative authorities, pending legislative reform, take interim measures in order to avoid, as far as possible, any repetition of the violation (the Keegan v. Ireland case referred to above was an example of this). The courts have even gone so far as to stop applying contested legislation (as in the Tyrer v. United Kingdom and F. v. Switzerland cases). Moreover, in some cases where laws have been found to be in breach of the Convention, constitutional courts have had no hesitation in not applying them on the ground of unconstitutionality.

37.        Nevertheless, it is clear that the execution of some judgments is problematic. Why?

2.        Problems of implementation

38.        The reasons for implementation problems are of at least seven types:

a.       Political reasons

39.        Fortunately, this is the least frequent type. The Council of Europe has only been confronted with an outright refusal to accept the Convention’s minimum standards in the case of Greece under the colonels.

40.        The Belgian language case of 1968 seems also a case in point. The background is formed by the political settlement reached in 1963, after years of strife, between the two main language groups in Belgium. By this settlement, in six communes in the vicinity of Brussels, which belong to the Belgian federal region of Flanders, special rules exist as regards French-speaking citizens from francophone areas claiming the right to use French. Clearly this is a politically sensitive affair. But at the same time it seems also clear that the 1968 decision of the Court – which recognizes a measure of unjustified discrimination following from the settlement – has not been fully implemented, notwithstanding the answer of the Committee of Ministers to written questions by Mr Clerfayt and others (nr 99/47, Gazette V, May 1999).

41.        A difficult situation now seems to be developing in the case of Loizidou v. Turkey, in which the Turkish government is refusing to execute the judgment, and in particular to pay the just-satisfaction award to the applicant, for political reasons. In this particular case, Turkey was held responsible for the fact that the applicant had lost all control over her property in northern Cyprus following the events of summer 1974. The Court found that the situation had not been resolved by the expropriation ordered in 1984 by the “Constitution of the Turkish Republic of Northern Cyprus” (the Court based its judgment on the non-recognition of the “republic”, which only Turkey recognises as a state) and that Turkey had not provided any justification for the interference. The Court accordingly awarded the applicant damages for being deprived of enjoyment of her property.

42.        The Committee of Ministers recently rejected in the following terms the political arguments Turkey once again advanced as justification for its failure to pay the damages awarded to the applicant (Resolution DH (99) 680):

      “Considering that the Government of Turkey has indicated that the sums awarded by the European Court could only be paid to the applicant in the context of a global settlement of all property cases in Cyprus and concluding that the conditions of payment envisaged by the Government of Turkey cannot be considered to be in conformity with the obligations flowing from the Court’s judgment; De

      Deploring the fact that Turkey has not yet complied with the judgment by paying to the applicant the sums awarded by the Court;

      Stressing the obligation undertaken by all contracting States to abide by the judgments of the Court, in accordance with Article 53 of the European Convention on Human Rights;

      Strongly urges Turkey to review its position and to pay the just satisfaction awarded in this case in accordance with the conditions set out by the European Court of Human Rights so as to ensure that Turkey, as a High Contracting Party, meets its obligations under the Convention.”

b.       Reasons to do with the scale of reforms required

43.        A number of cases fall into this category, such as those relating to torture in Turkey. The practice of torture has continued in Turkey in spite of the legislative reforms of the 1980s and 1990s which attempted to stop it (cf. the excessive optimism both of the Turkish government and the Committee of Ministers in Resolution DH (93) 59 on the Sargin case and Resolution DH (96) 17 on the Erdagöz case, in which it was stated that no further violations would take place).

44.        A lot more regulatory and administrative measures, as well as training courses, have been necessary to curb the problem of torture (see the new hope for a solution expressed by the Committee of Ministers in Resolution DH (99) 20 on the Yagiz case, concerning ordinary crimes and offences, and the warning issued in Resolution DH (99) 434 concerning the action of the security forces, particularly in regions subject to a state of emergency).

45.        The problem of torture is more than a question of legislation: it is a cultural problem, a question of widespread attitudes, and thus requires an entire arsenal of measures if it is to be combated effectively. It is not enough to make torture a criminal offence; those inflicting torture must be actually prosecuted and punished. Measures required include carrying out as many checks as possible on what happens during police custody and setting up machinery comprising independent prosecutors and honest judges able to enforce the law where authority is being abused. In addition, appropriate training needs providing for the security forces.

46.        This category also undoubtedly includes the group of cases concerning the excessive length of judicial proceedings in Italy. Here too, execution requires a large number of legislative, regulatory, administrative and practical measures (see resolutions DH (97) 336, DH (99) 436 and DH (99) 437).

47.        The scale of reforms required has not deterred the Commission or the Court from expressing itself on the matters concerned, when new cases come up during the period that the reform has not yet taken place.

c.       Practical reasons relating to national legislative procedures

48.        In its reply to Written Question No. 378, the Committee of Ministers stated that one of the reasons for the delays in executing certain judgments was legislative or other difficulties in carrying out the necessary reforms.

49.        Besides the Holm v. Sweden case referred to in the Committee of Ministers reply (which ultimately did not require the constitutional changes initially thought necessary), we may cite the famous Marckx v. Belgium case, where the necessary law reforms regarding parentage and patrimonial rights were not carried out until ten years after the Court’s judgment was delivered. The preparatory work was done during a difficult period in Belgium, however: parliament’s main concern was drafting a new constitution, in addition to which several changes of parliament meant that each new (government and) parliament had to begin drafting the legislation afresh. It would appear that the execution of other judgments, a recent example being the Vereinigung Demokratischer Soldaten and Gubi v. Austria case, has also been delayed by changes of legislature which have meant that legislative drafting has had to start from scratch again for constitutional reasons. In other cases the adoption of measures necessary for the execution of judgments has been complicated and delayed because Directives of the European Union (or European Communities) have intervened. The case of Informationsverein Lentia and Others v. Austria is one example, and Gaskin v. United Kingdom would appear to be another.

50.        The execution of some judgments demanding the applicant's rehabilitation may also be hindered where domestic law makes no provision for setting aside the contested decision.

51.        This may, in particular, involve reopening judicial proceedings in which the judgments were final, or cancelling certain consequences (relating to civil and political rights) of a criminal conviction. This was recommended by the Committee of Ministers in its Recommendation No R (2000) 2 of 19 January 2000 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. While most countries have either enacted special legislation allowing proceedings to be reopened or have managed to apply existing legislation, some states appear to have problems.

52.        For example, the French Minister of Justice has stated that she does not believe that French law, in particular Article 622 of the Code of Criminal Procedure (which affords her the possibility of requesting the reopening of criminal proceedings “in the interest of the law”), permits any measures in respect of the applicant in the Hakkar case (in which the applicant was sentenced to life imprisonment following proceedings which infringed Article 6 of the Convention in that he was neither present nor represented, even though he maintained his innocence). It seems curious to appeal to existing legislation which, it is contended, blocks the national execution of a Strasbourg decision if the government concerned does not, at the same time, introduce a draft law to change that legislation. Such legislation was not even included in the draft law submitted by the French government in 1999 on "Presumption of innocence". Happily the draft law was amended by parliament in February 2000 to make revision possible in the future.

53.        Situations of this kind have in the past been resolved in a number of different ways. The Netherlands in the case of Van Mechelen (1997) simply released him after the Court decided that he had not had an equitable trial. The Dutch code also did not allow for the reopening of the case. Some cases have been settled through an ex gratia measure (for example, Weeks v. United Kingdom, in which the applicant’s life sentence was remitted by the Crown – see the Court’s judgment of 5 October 1988). Other cases have been settled at constitutional level. For example, in the case of Barberà, Messegué and Jabardo v. Spain, the Spanish Constitutional Court ordered that the trial be reopened although there was no legal provision for doing so, stating that it would be contrary to the Spanish constitutional system to keep the applicants in prison after a trial found to have been unfair within the meaning of the Convention. Other cases have been settled by means of special legislation. For example, in the first Austrian cases (Pataki and Dunshirn), the new legislation passed to redress the violation permitted the applicants to the Commission to have the proceedings reopened (see Resolution DH (63) 2). Similarly, in the Belgian “vagrancy” case, the new legislation was made available to persons in detention at the time when the new law entered into force (Resolution DH (72) 2).

d.       Budgetary reasons

54.        In the case of Gaygusuz v. Austria, the Austrian parliament passed a law eliminating the discrimination found by the Court regarding unemployment insurance, but, mainly for budgetary reasons, deferred the new law’s entry into force for two years. The problem this situation posed was solved by the Constitutional Court, which ruled that the deferment was unconstitutional and that the law should therefore take immediate effect (see Resolution DH (98) 372).

55.        This category might also be said to include the thousands of cases against Italy concerning the length of court proceedings. It would appear that the excessive length of proceedings is partly due to the shortage of judges. To solve this problem, Italy has, inter alia, created 5000 justice of the peace posts and 1000 posts for special judges with responsibility for examining older cases. In spite of these reforms, there do not yet seem to have been any major improvements with regard to the length of proceedings and the latest information supplied to the Committee of Ministers only shows that the number of cases being settled by the courts is now, for the first time, equal to the number of cases being brought. The Committee of Ministers has therefore decided that it will continue to monitor the situation (see resolutions DH (99) 436 and DH (99) 437).

e.       Reasons to do with public opinion

56.        This is a delicate matter. Public opinion has, of course, been invoked to justify keeping the death penalty (even though its abolition in most countries has not aroused any protest). It may be argued, however, that the authorities have a duty to take certain measures that run counter to public opinion and are therefore unpopular, at the risk of being accused of undemocratic behaviour.

57.        The cases concerning homosexuals in Cyprus (the Modinos and Marangos cases) probably fall into this category, since homosexuality is viewed extremely unfavourably in some southern European countries. Cyprus has nevertheless passed new legislation decriminalising homosexual acts, although it maintains various distinctions between homosexual and heterosexual acts and uses problematic language: (eg “acts against nature”)⁴. The Committee of Ministers has not yet completed its examination of the execution of these judgments.

58.        Public opinion was also used as an argument in the case of Stran Greek Refineries v. Greece, in which the judgment was executed only after heavy pressure from other states in the Committee of Ministers.

f.       Casuistical or unclear judgments

59.        Some judgments are excessively casuistical or reach a general conclusion in which it is impossible to identify the specific cause of the violation. Others are worded ambiguously or vaguely. Protocol No. 2 to the Convention does not, however, empower the Committee of Ministers to ask the Court for an interpretation in difficult cases. Only the respondent state or, subject to a number of restrictions, the applicant may make such a request. Previously the Commission was empowered to do so (see, for example, the interpretation of the judgment in the case of Allenet de Ribemont v. France). A direct exchange of views between the Court and the Committee of Ministers could today be a useful means of clarifying certain judgments and their implications for the state concerned. Pragmatic solutions might be possible here. It would seem necessary, however, to take into consideration a revision of the Convention, giving the Committee of Ministers the right to ask for clarification of the measures necessary to execute decisions of the Court.

60.        A contribution could also be made by States making use of Rule 61 of the Rules of Court, i.e. the right to intervene in cases before the Court. Such interventions could be used to promote the clarity of the decisions of the Court and help to make them binding erga omnes. Rule 61 is, however, seldom applied.

61.        In his comments of 28 March 2000 on the preliminary draft of this report (7 January 2000), the President of the Court, Mr Luzius Wildhaber, saw problems with the proposal to give the Committee of Ministers the right to ask the Court for clarification. "It would require" he wrote "a departure from the division of responsibilities under the Convention and of the subsidiary nature of the mechanism". I would agree with the President that the Court should not be forced to specify too exactly the nature of the actions the respondent State should take to execute a decision. But I disagree with him that the Court should keep its present aloof position. If it is unclear which measures should be taken, and if also the Committee of Ministers is not able to solve this problem, I do not see why the system of the Convention should preclude the Court from giving more guidance. Who else is more competent than the Court itself to do so? If measures taken in execution of judgments are unsatisfactory because the judgments are not clear, the Court will, in any case, have to provide clarification by ruling on subsequent applications. Why not clarify its position at the earliest possible opportunity in order to avoid such applications?

g.       Reasons relating to interference with obligations deriving from other institutions

62.        The Committee of Ministers was recently asked to deal with a problem of this nature in connection with the Matthews v. United Kingdom judgment. The judgment found that there had been a breach of Article 3 of Protocol No. 1 in that the people of Gibraltar were not allowed to vote in the European Parliament elections even though they were subject to European Union “legislation”. The United Kingdom has begun drafting legislation to resolve the matter, but it would seem that new legislation can only be passed with the consent of the other member states of the European Union.

63.        Given the increase in the Union’s powers, particularly in the judicial field (under the “third pillar”), similar situations involving an overlap of powers are likely to arise more and more frequently.

64.        If they are managed effectively, the systems of the Council of Europe and the European Union can be mutually enhancing, as in the case of Hornsby v. Greece. Here, the Strasbourg Court found that there had been a breach of Article 6 in that the applicants, who had complained to the Greek courts that they had been refused permission to set up an English language school in Rhodes, had been unable to obtain enforcement of the Greek courts’ decision - which had been founded on a judgment of the European Court of Justice in Luxembourg, pursuant to Article 177 of the Treaty of Rome - that they should be allowed to open the school. During review of the execution of the Strasbourg Court’s judgment, permission to set up the school was granted. Similarly, in the case of Piermont v. France, a German member of the European parliament, who had been expelled from certain French overseas territories on account of her political views, which were deemed contrary to public policy, was found by the Court to have suffered a violation of her right to freedom of expression.

65.        In some seventy cases the European Court of Justice in Luxembourg has been required to check whether powers wielded by the Union’s institutions, or on behalf of the Union, conform to the Convention. In doing so, it has managed to avoid any major conflict with Strasbourg case-law (to which, prudently, it does not refer), although a number of discrepancies have been observed (for example, between the Grogan and Hoechst cases before the Luxembourg Court and the Open Door and Dublin Wells v. Ireland and Niemitz v. Germany cases before the Strasbourg Court).

66.        In view of the extension of the Union’s powers, particularly in the field of justice and internal security, following the Amsterdam Treaty's entry into force in May 1999, and the consequent expansion of the Luxembourg Court’s jurisdiction, the question of the relationship between the two systems is becoming increasingly pertinent. The drawing up of the new Charter of Fundamental Rights is another key issue here, and has led to a separate report by the Committee on Legal Affairs and Human Rights.

D.       Possible solutions

67.        In conclusion, it may be argued that responsibility for unsatisfactory execution of some Court judgments is shared between the Court itself, the States Parties and their various institutions, including the national parliaments and the Committee of Ministers of the Council of Europe.

68.        The number of applications will continue to rise as a result of the recent accessions, as will the number of judgments. It is therefore vitally important for the Court’s decisions to be applied swiftly and effectively so that it does not have to deal with further identical violations. Effective execution reinforces the overall authority of Court decisions. It also strengthens their binding effect erga omnes and, in particular, helps national courts to assume their duty of offering effective recourse in all cases where violations of the Convention are alleged. Effective execution is a key means of limiting the number of new applications to the Court.

69.        In view of each state’s undertaking to abide by the Court’s judgment in any cases to which it is a party, the necessary work on averting further violations should start immediately after the judgment is delivered, with no waiting for a second judgment. In order to avert other foreseeable violations, states should also keep a close eye on the Court’s case-law in respect of other countries and take the necessary preventive measures.

70.        In this connection, the Council of Europe’s Human Rights Commissioner, elected in September 1999, could have a significant role to play in that one of his main duties will be to anticipate violations and alert governments to the measures they need to take in order to avoid an intervention of the Court and ensure that it remains the subsidiary organ which it is intended to be.

71.        In conclusion, I make the following proposals to try and remedy the problems described:

- at the national level

72.        Legislators should ensure that they have appropriate procedures for verifying that all new legislation which could interfere with human rights and fundamental freedoms complies with the Convention.

73.        Governments should take the necessary action to execute the Court’s judgments as swiftly as possible in order to avoid any recurrence of violations; this may involve preparing draft legislation, regulations or administrative measures.

74.        Judges and administrators should work towards giving direct effect to the Court’s judgments more widely in domestic law so that national courts can apply the Court's decisions.

75.        If the domestic courts are to provide the effective remedy expected of them, the member states should ensure that the European Court’s case-law is properly available in the national language to the domestic authorities and courts, and should improve the provision of university-level education and in-service training on the Convention and its protection machinery.

76.        States which are not yet equipped with the necessary legislation to ensure that the Court’s judgments are executed swiftly and effectively, particularly as regards remedying the applicant’s individual situation (allowing judicial proceedings to be reopened, for example) should start work in this area immediately.

77.        In particular, if this is not already the case, they should ensure that their legislation provides for the revision of a trial following a judgment of the Court, as the French government did following the judgment in the Hakkar case. This is in conformity with Recommendation No R (2000) 2 of the Committee of Ministers.

78.        Until definitive reforms come into effect, domestic authorities and courts should, as far as their powers allow, adopt interim measures so as to keep possible recurrences of violations to a minimum.

- at the Council of Europe level

79.        National delegations within the Parliamentary Assembly should be informed by the Directorate of Human Rights about the Court’s case-law and problems concerning the execution of judgments in their country on a regular basis, every six months, so that they can apply pressure when their governments execute the Court’s judgments tardily or do not pay sufficient heed to significant developments in case-law concerning other countries. Similarly, they should call their own parliament to account if it is the source of the problem.

80.        The Committee of Ministers should amend the Convention so as to give itself the power to request interpretation by the Court in difficult cases, and to ask the Court for clarification of the measures necessary to execute the decisions of the Court.

81.        Governments of High Contracting Parties should make more use of their right to intervene in cases before the Court, so as to promote the clarity of the decisions of the Court.

82.        The Committee of Ministers should be less indulgent towards member states which fail in their obligation to execute decisions, since this reflects badly on the Council of Europe as a whole and places a question mark against its ability to make a useful contribution to enforcement of human rights and maintaining democratic security throughout the continent. Moreover, a less indulgent attitude would lend greater credibility to Europe’s commitment to human rights at international level. In cases of persistent refusal to execute a judgment in spite of all steps taken by the Council, the Committee should consider using the powers invested in it by the Statute, in particular Article 8 thereof.

83.        The Committee of Ministers should make a greater effort, when supervising the execution of judgments, to ensure that measures taken are effective means of preventing further violations. It should ask the States concerned to enact the legislation necessary in order to overcome all the legal obstacles to the execution of judgments. In cases of delay or other problems with execution it should furnish the states concerned with the information needed to ensure that executing measures are in conformity with the Court’s decision.

84.        The Committee of Ministers should keep the Parliamentary Assembly informed of progress in the execution of judgments; the present statutory report is inappropriate for this purpose. This, for example, entails adopting resolutions without delay. More systematic use of interim resolutions, setting out all the reforms planned and the likely timetable for carrying them out, is one of the most worthwhile measures in this connection. Other initiatives to ensure greater transparency would also be welcome and would be in keeping with the spirit of Protocol No. 11.

85.        The Committee of Ministers should instruct the Secretary General to reinforce and, if necessary, improve the technical assistance programmes and ask member Sates to help persons or organisations who contribute to the diffusion of information and to the training of judges and lawyers.

86.        The Court should ensure that its judgments are clear and its case-law coherent so that governments have a firmer grasp of what is expected of them and are not tempted to use any inconsistencies as an excuse for failing to execute.

87.        The Court should, as from now, find ways, without overstepping its judicial powers, of including in its judgments all the information needed to enable national authorities to comply with the judgment and take the necessary legislative, regulatory or other measures as well as the measures required in relation to individuals.

88.        The Court should also make more frequent use of the opportunities to indicate in a judgment that a previous judgment has not, or not completely, or not timely been executed by the State concerned.⁵

89.        The Parliamentary Assembly may continue to use the instrument of "mobilisation of shame" by adopting recommendations to the Committee of Ministers in which serious failures to implement judgments of the Court are brought to the attention of the public at large.

90.        The Committee on Legal Affairs and Human Rights should present a yearly report to the Assembly on this matter, on the basis of information from the Directorate of Human Rights, with its own comments and proposals.

91.        In the event of refusal to execute a judgment or of excessive delays, the Parliamentary Assembly should invite the Minister of Justice, or any other relevant minister, of the respondent state to give the Assembly an explanation in person.

92.        If the Assembly decides on the proposal of the Committee on Legal Affairs and Human Rights, that a member State continues to refuse to implement a decision of the Court, a monitoring procedure shall be instituted. If such a procedure does not yield results, application of the sanctions provided for in the Assembly’s Rules of Procedure should be envisaged.

93.        The Convention does not provide for a sanction in case a State does not, not fully or not timely execute a judgment of the Court. Also the Committee of Ministers cannot impose any sanction.⁶ There is, of course, the possibility of application of Article 8 in conjunction with Article 3 of the Statute of the Council of Europe concerning suspension and withdrawal of membership, but these are sanctions which should be applied only in cases of persistent refusal despite recourse to all other avenues of persuasion and pressure available to the Council of Europe bodies.

94.        In order to avoid having recourse to the supreme sanction and to the suspension and withdrawal of membership, one could foresee, either by revising the Convention or simply by a resolution of the Committee of Ministers, a system of "astreintes" (ie daily fines for delay in performance of a legal obligation) which the Committee of Ministers, after formal notice, could decide to apply to a State which persistently refused to execute a judgment of the Court.

APPENDIX I





Strasbourg, 12 April 2000       Restricted

      CDL (2000) 16

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

COMMENTS

by Mr Pieter Van DIJK

(Member, Netherlands)

on the

PRELIMINARY REPORT

OF THE PARLIAMENTARY ASSEMBLY

OF THE COUNCIL OF EUROPE

ON THE EXECUTION OF JUDGMENTS OF THE COURT

AND MONITORING OF THE CASE-LAW

OF THE EUROPEAN COURT

AND COMMISSION OF HUMAN RIGHTS

approved by the Venice Commission

at its last Plenary Meeting,

Venice, 31 March – 1 April 2000

1. The preliminary report of the Parliamentary Assembly contains an excellent analysis of the legal obligation of the Contracting States to execute the judgments of the European Court of Human Rights, of the necessity of prompt and full execution for the effective ensurence of the rights and freedoms laid down in the Convention, and of the shortcomings of such prompt and full execution and their main causes. It also contains a number of recommendations proposing tentative solutions, which would indeed, if put into practice by the national authorities, the Committee of Ministers of the Council of Europe and the Court itself, respectively, would mean steps in the right direction. My comments, therefore, can be brief and are mainly of a supplementary character.

2. The preliminary report takes as a starting point in paragraph 1 of the Introduction that, in order to maintain the standard of human rights protection, it is essential for States to continue to comply with their formal undertaking under Article 46(1) of the Convention to abide by the final judgments of the Court in any cases to which they are parties.

It is submitted that the starting point should be broadened.

The system of the Convention is based on the principle of subsidiarity⁷ In the present context this principle implies the following:

On the one hand, the primary responsibility for the ensurence of the rights and freedoms laid down in the Convention rests with the national authorities, including the domestic courts (see Article 1 of the Convention). Only if and to the extent that they fail to fulfil their responsibility, is there access to the mechanism provided for in the Convention (see Article 35, paragraph 1, of the Convention: exhaustion of local remedies as an admissibility requirements).

(b)       On the other hand, the interpretation of the provisions of the Convention ultimately rests with the European Court of Human Rights (see Article 19 juncto Article 44 of the Convention). This means that, although Article 46 of the Convention only refers to the obligation of the State which is a party to the case, to abide by the judgment, the interpretations given by the Court in its judgments form part and parcel of the provision concerned and, consequently, share the legally binding force of the Convention erga omnes.⁸

From this it follows that, although the Contracting States are, first of all, under the obligation to execute the judgments of the Court pronounced in cases to which they are a party, they also have to take into consideration the possible implications which judgments pronounced in other cases may have for their own legal system and legal practice. Only in that way can they meet in an effective and full way their primary responsibility, under Article 1 of the Convention, to ensure the rights and freedoms of the Convention as interpreted by the Court. In this broader context, I prefer to use the term "implementation" instead of "execution".

Although the special monitoring role of the Committee of Ministers, provided for in the second paragraph of Article 46 of the Convention, relates only to the execution of judgments by the States which are a party to the case, that does not exclude that the implementation by other Contracting States, as an element of their obligation under Article 1, is subject to the general monitoring procedures (see, e.g., Article 52 of the Convention concerning inquiries by the Secretary General.

2. It is common knowledge that the monitoring task with which the Committee of ministers has been entrusted, is not always performed in the most effective way. This is also explicitly stated in the preliminary report of the Parliamentary Assembly.

The Parliamentary Assembly, at various occasions, has addressed the Committee of Ministers expressing its concern about the unsatisfactory situation of the execution of certain judgments, and members of the Parliamentary Assembly have asked for specific information. This active approach has had some effect in that it has forced the (Chair of the) Committee of Ministers to (re-)emphasize the importance of a swift execution of the Court's judgments and to give explanations about some of the causes of delays, but has remained without much practical result.

As the preliminary report indicates, the Parliamentary Assembly and individual members should remain active, and become even more active, in this "monitoring of the monitoring". In my opinion, the Assembly and its members should in particular be more persistent by asking more detailed information and by giving a follow-up to questions addressed to the Committee of Ministers. In relation to each particular case or situation raised, recommendations or questions should be followed by new recommendations or questions if (a) the reaction or answer is not satisfactory; (b) the reaction or answer refers to a non-satisfactory situation in the State concerned without providing a perspective of a prompt and appropriate solution; or (c) the reaction or answer indicates intentions and/or measures which are not, not fully or not timely put into practice. In particular, the Parliamentary Assembly and individual members should see to it that the Committee of Ministers does not satisfy itself with formal information provided by the Government concerned but examines itself - assisted by the Directorate of Human Rights of the Council of Europe - whether and to what extent the measures indicated by the Government constitute full and effective execution of the judgment.⁹

3. As is rightly stressed in paragraph 16 of the preliminary report, the members of the Parliamentary Assembly can also play an important role in their national parliaments, of which they all are also members, to promote a prompt and full implementation of the Strasbourg case-law.

In my opinion, this point deserves more emphasis and more elaboration, since for the moment this monitoring role may well be more effective than that of the Parliamentary Assembly itself, given the fact that national parliaments have more instruments and powers to promote (or even initiate) the enactment of required new legislation or the amendment of existing legislation, and to bring pressure to bear on the competent authorities to change practices which are not in conformity with the Convention as interpreted by the Court. In this way, too, there is room for a more attentive and more persistent follow-up. The awareness which Assembly members, through their membership of the Assembly, obtain about shortcomings in their domestic law and legal practice, should also be "mobilized" through their membership of the national parliament.

4. In paragraphs 17 and 18, the preliminary report discusses the role which the Court itself may play in facilitating the implementation of its judgments. First of all there is the important element of the requirement, also in that respect, of clear and well-reasoned formulations of the judgments, which will make it easier for domestic authorities to recognize and translate the implications for their domestic law and practice. Secondly, precisely in view of the preventive effect of judgments and in view of the fact that judgments may also have implications for States which are not a party to the case concerned, the Court should avoid too casuistic an approach. On appropriate occasions it should use the concrete complaint brought before it to give a more general guidance to the domestic authorities for the interpretation and application of the provision of the Convention at issue, which they should take into consideration in their domestic legislation and legal practice.

In addition, the Court should act in a more creative and extensive way in finding possibilities, without overstepping its judicial powers, to indicate in its judgments to the national authorities concerned in what way they should abide by the judgment. The judgment itself is of a declaratory character only and cannot contain an order for the State concerned, except an obligation to pay fair compensation.¹⁰ That does not exclude, however, that the Court indicates, for instance, that a certain legal provision should be abrogated, amended or introduced, that a certain administrative practice should be abandoned or followed, that a certain measure should be taken to bring about restitutio in integrum or optimal reparation. It is submitted that such a recommendatory role does not require an express legal foundation in the Convention.¹¹

Finally, the Court should make more frequent use of the opportunities to indicate in a judgment that a previous judgment has not, or not completely, or not timely been executed by the State concerned.¹² In this way it may give further guidance to the domestic authorities, even in a later phase of the implementation. In that context it is also important that, at its earliest occasion, the Court expressly recognizes that the applicant in a previous case may bring a new application under Article 34 to complain about non-execution, incorrect execution or incomplete execution in violation of his or her right under the Convention.¹³

5. One of the reasons why certain States are faced with problems to execute a certain judgment, mentioned in the preliminary report, deserves in my opinion a somewhat broader inventory and discussion, and possibly concrete action by the Parliamentary Assembly and individual Assembly members: practical reasons relating to internal legislative procedures (§§ 38-42). As is indicated in the preliminary report, in some States measures have been taken and practical solutions have been found to overcome legal obstacles, but in several States these obstacles remain.

If, as still is the case in some legal systems¹⁴, domestic judicial proceedings which have been found by the Court to have been conducted in violation of Article 6 of the Convention, cannot be referred back to the competent domestic court for a retrial, execution of the Court's judgment by restitutio in integrum is excluded by law. As the Court cannot itself order the reopening of the proceedings¹⁵, effect to its judgment can be given only by way of non-execution or stay of execution of the domestic judgment and/or reparation of immaterial and material damages. It is obvious that such a situation stands in the way of full and effective execution of the Court's judgment and is at odds with the State's undertaking to abide by the judgment.¹⁶

The Parliamentary Assembly should recommend that the Committee of Ministers calls upon the States concerned to adopt the necessary legislation to overcome any legal obstacles to full execution of the Court's judgment, and Assembly members of the States concerned should take appropriate action in their respective parliaments to that end. A comparative study of the legislation and legal practice of the Member States of the Council of Europe in the areas where such obstacles occur, might assist the domestic authorities in finding solutions. This is one possible area where the Venice Commission might offer its expertise and assistance.

6. The Convention does not provide for a sanction in case a State does not, not fully or not timely execute a judgment of the Court. Also the Committee of Ministers cannot impose any sanction.¹⁷ There is, of course, the possibility of application of Article 8 in conjunction with Article 3 of the Statute of the Council of Europe concerning suspension and withdrawal of membership, but these are sanctions which should be applied in very exceptional cases only.

Recently, the Court has taken a decision which, though not formally, in fact could be seen as a kind of sanction. In its Ferrari v. Italy judgment of 28 July 1999 the Grand Chamber of the Court unanimously held as follows:

      The Court notes at the outset that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet the requirements of this provision (...).

      (...)

      The Court next draws attention to the fact that since 25 June 1987 (...) it has already delivered 65 judgments in which it has found violations of Article 6 § 1 in proceedings exceeding a "reasonable time" in the civil courts of the various regions of Italy. Similarly, under former Articles 31 and 32 of the Convention, more than 1,400 reports of the Commission resulted in resolutions by the Committee of Ministers finding Italy in breach of Article 6 of the Convention for the same reason.

      The frequency with which violations are found shows that there is an accumulation of identical breaches which are sufficiently numerous to amount not merely to isolated incidents. Such breaches reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy.¹⁸

If I see it well, the reason behind this part of the judgment is mainly impatience, not only with the Italian Government, which after so many years still had not taken measures to effectively remedy the situation that was repeatedly found by the Court to violate Article 6, but also with the Committee of Ministers which had not been able to persuade the Italian Government to take measures of a substantial character and, in its Resolution DH(99)437, had satisfied itself with the "supplementary measures" announced by the Italian Government. The "punitive" element of the Court's decision is that the Court takes the "continuing situation" into acount when examining a new complaint relating to the same situation, which in fact means a shift of the burden of proof: the Court starts from the assumption that the reasonable-time requirement has not been met and it is up to the Government to advance special circumstances to prove the opposite.

Although it cannot be excluded that situations may arise in the future which will lead the Court to a similar conclusion in relation to another State and/or in relation to another repetition of complaints, this will be very exceptional and cannot function as a general sanction for disrespect of the Court's judgments. Therefore, the issue of sanctions deserves further study and discussion within and outside the Parliamentary Assembly. In the meantime, the Parliamentary Assembly may continue to use the instrument of "mobilization of shame" by adopting recommendations to the Committee of Ministers in which serious failures to implement judgments of the Court are brought to the attention of the public at large.

7. The recommendations included in the provisional report for measures to be taken at the national level and at the Council of Europe level may, in my opinion, be wholeheartedly endorsed by the Venice Commission. I have only one observation to make in that respect.

In paragraph 61 it is stated that the Member States should ensure that the Court's case-law is properly available in the national language to the domestic authorities and courts, and should improve the provision of university-level education and in-service training on the Convention and its protection machinery. However, for several Member States, especially most of the new Members from Central and Eastern Europe, it will be very difficult, if not totally impossible, to put that recommendation into real practice, unless they are sufficiently assisted by the Council of Europe and by persons and organizations from the Western European Members. It is submitted, therefore, that a recommendation should be added, addressed to the Committee of Ministers, to instruct the Secretary General to intensify and, where necessary, improve and redirect the programmes of technical assistance and technical training, and to call upon the Member States to support individuals and organizations who assist in providing the required information and documents, and in training judges, lawyers and law-enforcing authorities.

It is this area where the Venice Commission could probably most usefully cooperate with the Parliamentary Assembly in its efforts to improve the situation of the implementation of the Court's judgments. The Commission could make an inventory and evaluation of existing programmes and actions in the field of documentation and practical training, and could make recommendations for improvement of the existing.

APPENDIX II

Letter of 28 March 2000 from the Mr Luzius Wildhaber, President of the European Court of Human Rights, to Mr Gunnar Jansson, Chairperson of the Committee on Legal Affairs and Human Rights

…

Thank you for your letter of 27 January 2000 asking for the Court’s comments on the introductory memorandum prepared by Mr Jurgens on the execution of the Court’s judgments and monitoring of the Court’s case-law. I have read the document with great interest.

May I say first of all that I appreciate this opportunity to comment on the memorandum, all the more so as I fully share the view expressed that compliance with the Court’s judgments is crucial to the effectiveness of the system of human rights protection set up by the European Convention. I thus welcome the interest shown by the Parliamentary Assembly in this aspect of the Convention system and indeed the overall tenor of the memorandum.

Two general comments may be made.

Firstly the division of responsibility within the Convention control mechanism is clear: the task of establishing the existence of a violation falls to the Court, the judicial branch of the Council of Europe, while supervision of the execution of judgments finding such a violation is the role of the Committee of Ministers, the executive branch (Article 46 § 2 of the Convention). This is a system which on the whole has worked well and here I would agree with your Rapporteur that, in the great majority of cases, States have acted in good faith and have endeavoured to fulfil their obligation to abide by the Court’s judgments (Article 46 § 1 of the Convention). In this respect due credit should be given to the part played by the Committee of Ministers, assisted in particular by the Human Rights Directorate.

A second comment relates to the subsidiary character of the system, as recognised by the Court from its earliest judgments. This means that the “national authorities remain free to choose the measures they consider appropriate in those matters governed by the Convention” ¹⁹. This is reflected in the “declaratory” nature of the Court’s judgments which leaves Governments a wide discretion in respect of the choice of the method of implementing the judgment, the so-called obligation as to the result.

The increase in the number of Contracting States has made it even more important for the principle of subsidiarity to operate effectively. This requires in particular the application by national judicial authorities of the Convention guarantees and the Court’s case-law. The Court therefore obviously welcomes the emphasis on the need for effective implementation at national level of its case-law and endorses the call for its judgments to be made available in national languages so as to ensure that all courts have access to the Strasbourg decisions.

The Court also sees arrangements allowing the re-opening of national proceedings following a finding of a violation by the Court as a useful tool not only for affording individual redress, but also for strengthening the involvement of national courts in the Convention system. Such procedures will, however, not be appropriate in every case.

On the formulation of judgments, the Court would naturally accept the need for “stable, clear and well-reasoned” case-law and indeed strives to attain that goal. However, as a consequence of the two elements referred to above, namely the division of responsibilities under the Convention and the subsidiary nature of the mechanism, the Court has consistently, as a matter of judicial policy, refrained from indicating specific measures to be taken by the respondent State, other than the award of just satisfaction under Article 41.

To amend the Convention with a view to allowing the Committee of Ministers to seek interpretational guidance from the Court on what measures may be called for to comply with a given judgment would not only require a departure from this practice, it would also conflict with the two fundamental characteristics of the system identified. I do therefore see problems with this proposal.

May I conclude by once again expressing my gratitude for the interest shown by the Assembly in this vital aspect of the Convention control mechanism. There is no doubt that developments in this area should be monitored to ensure the continuing credibility of the system.

…

signed: Mr Luzius Wildhaber

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Doc 7777 and Reference No. 2177 of 19 March 1997

Draft resolution and draft recommendation adopted unanimously by the committee on 27 June 2000

Members of the committee: MM Jansson (Chairperson), Bindig, Frunda, Mrs Err (Vice-Chairpersons), Mrs Aguiar, MM Akçali, de Aristegui (alternate: Mrs Lopez Gonzalez) Arzilli, Attard Montalto, Bal (alternate: Mrs Gülek), Bartumeu Cassany, Bruce, Bulavinov, Clerfayt, Contestabile (alternate: Mr Provera), Demetriou, Derycke, Dimas, Enright, Floros, Mrs Frimansdóttir, MM Fyodorov, Gustafsson, Holovaty, Mrs Hren-Vencelj, Mrs Imbrasiene, MM Jaskiernia, Jurgens, Kelemen, Lord Kirkhill, MM S. Kovalev, Kresák, Mrs Krzyzanowska, Mr Le Guen (alternate: M. Michel), Mrs Libane (alternate: Mr Cilevics), MM Lintner, Lippelt, Loutfi, Magnusson, Mrs Markovic-Dimova, MM Marty, McNamara, Moeller (alternate: Mrs Auken), Nastase, Mrs Ninoshvili, MM Pavlov, Pollo, Mrs Pourtaud (alternate: Mr Bordas), Mr Rodeghiero, Mrs Roudy, Mrs Serafini (alternate: Mr Lauricella), MM Simonsen, Skrabalo, Sole Tura, Solonari, Spindelegger, Svoboda (alternate: Mr Kroupa), Symonenko (alternate: Mr Khunov) Tabajdi, Tallo, Vera Jardim, Verhagen, Mrs Vermot-Mangold, Mr Vyvadil, Mrs Wohlwend, Mrs Wurm

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge

¹ The Rapporteur is much indebted to the comments given by the Venice Commission (21 March 2000), Rapporteur Mr Pieter van Dijk, and by the President of the Court, Mr Luzius Wildhaber (28 March 2000) on the text of his introductory memorandum (7 January 2000). These comments are reproduced in Appendices I and II.

² The Commission ceased to operate on 31 October 1999. It remains for the Committee of Ministers to examine the last Commission cases referred to it, under the former Article 32 of the Convention, after the expiry of a period of three months. This work is likely to be completed by summer 2000.

³ With the exception of Ireland and the United Kingdom. Incorporation of the Convention into United Kingdom law is, however, at an advanced stage. The necessary legislation has been passed and will come into force once judges have received the necessary training. In Ireland, a bill has just been adopted.

⁴ On 8 June 2000, the House of Representatives amended the Criminal Code to bring it into conformity with the judgment of the Court and Article 8 of the European Convention on Human Rights.

⁵ See the Vermeire v. Belgium judgment of 29 November 1991, Series A no. 214-C, pp. 82-83 §§ 25-26.

⁶ In the former supervisory system, prior to the entry into force of Protocol No. XI, for cases where the decision on the merits was taken by the Committee of Ministers instead of the Court, Article 32, paragraph 3, provided as follows: "If the High Contracting Party concerned has not taken satisfactory measures within the prescribed period, the Committee of Ministers shall decide by the majority provided for in paragraph 1 above what effect shall be given to its original decision and shall publish the report". A similar power has not been provided for in relation to judgments of the Court.

⁷ See H. Petzold, "The Convention and the Principle of Subsidiarity", in: R.St.J. Macdonald, F. Matscher & H. Petzold (eds), The European System for the Protection of Human Rights, Dordrecht etc. 1993, pp. 41-62.

⁸        See P. Leuprecht, "The Execution of Judgments and Decisions", in Macdonald a.o., supra, pp. 791-800 at pp. 792-793.

⁹        See D.J. Harris, M. O'Boyle & C. Warbrick, Law of the European Convention on Human Rights, London etc. 1995, pp. 701-702.

¹⁰ See the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 25 § 58. In contrast, see Article 63, paragraph 1, of the American Convention on Human Rights.

¹¹ See P. van Dijk & G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, 3d ed. The Hague etc. 1998, p. 259.

¹² See the Vermeire v. Belgium judgment of 29 November 1991, Series A no. 214-C, pp. 82-83 §§ 25-26.

¹³ See S.K. Martens, "Individual Complaints under Article 53 of the European Convention on Human Rights", in: R. Lawson & M. de Blois, The Dynamics of the Protection of Human Rights in Europe; Essays in Honour of Henry G. Schermers, Dordrecht etc. 1994, pp. 253-292.

¹⁴ For the Netherlands, see T. Barkhuysen, M. van Emmerik & P.H. van Kempen (eds), The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order, The Hague etc. 1999, pp. 223-355. For the situation in some other Member States of the Council of Europe, see ibidem, pp. 115-182.

¹⁵ See the Pelladoah v. the Netherlands judgment of 22 September 1994, Series A no. 297-B, p. 36 § 44.

¹⁶        See E. Myjer, "To be revised? Revision of res judicata sentences in Dutch criminal cases", in: Barkhuysen a.o., supra, pp. 243-253 at p. 250.

¹⁷        In the former supervisory system, prior to the entry into force of Protocol No. XI, for cases where the decision on the merits was taken by the Committee of Ministers instead of the Court, Article 32, paragraph 3, provided as follows: "If the High Contracting Party concerned has not taken satisfactory measures within the prescribed period, the Committee of Ministers shall decide by the majority provided for in paragraph 1 above what effect shall be given to its original decision and shall publish the report". A similar power has not been provided for in relation to judgments of the Court.

¹⁸        Not yet officially published; § 21.

¹⁹ See for example Belgian Linguistic case, judgment of 23 July 1968, Series A no. 6, p. 35, § 10.