14 January 2002
Execution of the judgments of the European Court of Human Rights
Recommendation 1477 (2000)
Reply from the Committee of Ministers
adopted at the 779th meeting of the Ministers’ Deputies (9 January 2002)
The Committee has carefully examined Parliamentary Assembly Recommendation 1477 and Resolution 1226 upon which it is based. It shares the Assembly’s assessment of the importance of the European Convention on Human Rights in maintaining the democratic stability of the Continent. It welcomes the Assembly’s interest in the execution of Court judgments. It, too, attaches very great importance to full and diligent execution of Court judgments in performing its functions under Article 46, paragraph 2, of the Convention.
The Committee recalls that the subsidiary nature of the supervisory machinery presupposes that the rights guaranteed by the Convention should, first and foremost, be protected at the national level and implemented by the national authorities. This subsidiary character is also reflected in the “declaratory” nature of the Court’s judgments, which leaves Governments wide discretion in choosing the means of implementing them.
In January 2001, in the course of its regular, thorough examination of the question of execution of Court judgments, the Committee revised the rules governing the exercise of its relevant functions.
Moreover, the changes brought about by the entry into force of Protocol No. 11 and the growth of the Committee’s work-load are testing the capacity of the Committee and the Secretariat to assume this responsibility effectively. The Committee of Ministers has thus been led to review its working methods in order to ensure the continuing effectiveness of the system of human rights protection set up by the European Convention on Human Rights.
The most recent developments have comprised: increased use of interim resolutions to inform, to encourage and even in certain cases to exhort; streamlining procedures and documentation to improve effectiveness; the introduction of a new rule of transparency and, more recently, the publication of the information regarding the execution of the different cases on the Committee of Ministers’ internet site.
The Ministerial Conference held in Rome in November 2000 to commemorate the 50th anniversary of the Convention addressed the question of execution of Court judgments. Among other questions, it discussed ways of dealing with slowness or negligence in implementing judgments – or even failure to implement them. The Conference started a movement which must be taken further. The Committee is determined to promote the execution of the Court’s judgments and the operation of the Convention machinery.
The Evaluation Group set up in January 2001 pursuant to the conclusions of the Ministerial Conference, to examine possible means of guaranteeing the effectiveness of the European Court of Human Rights, recognised the importance of the execution of judgments and placed emphasis inter alia on the handling of repetitive applications.
In the Declaration on “the protection of human rights and fundamental freedoms in Europe – guaranteeing the long-term effectiveness of the European Court of Human Rights” adopted at its 109th Session (Strasbourg, 8 November 2001), the Committee instructed the Deputies to pursue consideration of the Evaluation Group’s recommendations, including those concerning the execution of the judgments of the Court.
With regard to the latter recommendations, the Ministers’ Deputies, at their 773rd meeting (November 2001) decided to consider them at one of their forthcoming meetings, inter alia in the light of the CDDH’s opinion on Recommendation 1477.
The Committee of Ministers will pursue its examination of these questions in the light, among other things, of the Assembly’s proposals, the relevant opinions of the CDDH and the recommendations of its Reflection Group and the Evaluation Group.
With regard to the content of Recommendation 1477, the Committee of Ministers refers to the positions expressed in the opinion adopted by the CDDH at its 52nd meeting (6-9 November 2001), which is appended to the present reply.
Considering the Assembly’s commitment to assist in the search for solutions, the Committee will keep the Assembly informed of significant developments in this area, as emphasised in the Declaration of 8 November 2001. It proposes that this be done in the context of an ongoing dialogue between their appropriate subordinate bodies, such as the Committee’s Rapporteur Group on Human Rights (GR-H) and the Assembly’s Committee on Legal Affairs and Human Rights.
Opinion of the CDDH concerning Recommendation 1477 (2000) of the Parliamentary Assembly on the execution of judgments of the European Court of Human Rights1
Adopted by the CDDH during its 52nd meeting
(6-9 November 2001, CDDH (2001) 35, Appendix IV)
1. The Steering Committee for Human Rights (CDDH) welcomes the adoption by the Assembly of Recommendation 1477 (2000), the subject of the present opinion. This document which is particularly opportune in the present context, stresses the importance of the execution of judgments of the European Court of Human Rights as the touchstone for the credibility of the protection system for human rights in Europe and also reflects the will of the Assembly to be more involved in this field.
2. The CDDH notes that the Assembly's assessment of the importance of the Convention, notably for the maintenance of democratic security and the rule of law on the European continent has been shared by the Governments of the Member States on numerous occasions, most recently by the European Ministerial Conference on Human Rights in Rome on 3-4 November 2000. It notes in particular that the Conference calls upon all member States to ensure constantly that their law and practice conform to the Convention and to execute the judgments of the Court. It also expresses its clear conviction of the need to exercise optimum supervision of the execution of Court judgments, which would help to avoid new violations, and to render such supervision more transparent.
3. The CDDH further recalls the subsidiary nature of the control mechanism of the Convention, which presupposes that the rights guaranteed by the Convention should, first and foremost, be fully protected at national level and implemented by national authorities, in particular the courts.
4. This subsidiary nature is also reflected in the “declaratory” nature of the Court’s judgments which leaves Governments a wide discretion in respect of the choice of the method in implementing the judgment. Accordingly, in its judgment in the case of Scozzari and Giunta against Italy of 13 July 2000, paragraph 249, the Court pointed out:
“[…] subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment.”
5. The CDDH also points out, like the President of the Court2, that the 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 responsibility of the Committee of Ministers, the executive branch (Article 46, paragraph 2, of the Convention). The CDDH agrees with the President that this is a system which on the whole has worked well. 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, paragraph 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 Directorate General of Human Rights.
6. The CDDH is convinced that the question of the execution of judgments is one of the priorities for its future work. In this context, it is recalled that, at their 736th meeting (10-11 January 2001, item 4.3), during which they examined the follow up to be given to the Conference, the Ministers’ Deputies instructed the CDDH to examine ways and means of assisting member States with a view to a better implementation of the Convention in their domestic law and practice. This mandate included, amongst others, the examination of questions linked to the execution of judgments.
* * *
7. The CDDH finds the proposals contained in the Assembly's Recommendation interesting while raising a number of questions. In the present opinion, the CDDH offers the following comments:
The Assembly, referring to its Resolution 1226 (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;
8. As to the suggestion made in paragraph i of the Recommendation 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, the CDDH considers that this suggestion should be examined in the context of a global reflection on the reform of the current system of human rights protection and in the light of the reservations expressed notably by the President of the Court3, as well as by the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights (DH-PR)4.
ii. amend the Convention to introduce a system of “astreintes” (daily fines for a delay in the performance of a legal obligation) to be imposed on states that persistently fail to execute a Court judgment;
9. The idea of a system of financial penalties (“astreintes”) (paragraph ii of the Recommendation) and, in particular, the practicalities of such a proposal, merit very thorough examination. The CDDH notes that the European Union has already introduced a system of this kind, with the safeguard that a financial penalty can only be imposed after a second judicial decision (Article 228, paragraph 2, of the Treaty on European Union). Also the Human Rights Chamber for Bosnia-Herzegovina has ordered financial penalties in certain cases where it had known from previous experience that execution might be difficult. The introduction of such a system into the control mechanisms instituted by the Convention raises a number of questions. In particular, would such a system be efficient, would it be so outside certain exceptional situations (such as when a government is persistently refusing to fulfil its obligation to abide by a judgment)? Would, furthermore such a system be at all appropriate when the execution of the judgment requires the adoption of general measures, notably legislative ones, which may require lengthy procedures at the national level? In any event, persistent failure to execute judgments already carries financial consequences: the risk of being obliged to award just satisfaction to other persons affected by a persistent violation of the Convention may already bring with it a considerable economic pressure on the respondent State.
In the light of these considerations the CDDH is not convinced that the introduction of a system of monetary fines would bring about any important improvement.
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 the decisions of the Court;
10. The CDDH recalls that intervening third party states are not for this reason considered as parties to the procedure before the Court. They are therefore not more bound by the judgment of a case in which they have intervened than other states that have not intervened. Whether they intervene or not is consequently without relevance with respect to Article 46 of the Convention.
11. The CDDH accepts, however, that such interventions could encourage the Court to deliver judgments of principle, allowing therefore an improvement of the significance erga omnes of the judgments of the Court for the Parties to the Convention.
12. The recommendation to High Contracting Parties to make more frequent use of their right to intervene in cases before the Court (paragraph iii of the Recommendation), should be further clarified. In this respect, two different situations merit consideration. The first concerns the right of a third party intervention (Article 36, paragraph 1, of the Convention), in the strictest sense, according to which a Contracting State may intervene as a third party in a case brought by one of its nationals against another State. The second concerns the possibility for the President of the Court to invite any High Contracting Party to intervene in pending proceedings (Article 36, paragraph 2, of the Convention). The States have, accordingly, no general right themselves to intervene in pending proceedings against another State.
13. That being said, the introduction of such a right might well be examined in the context of a global reflection on the reform of the current system of human rights protection. The CDDH can see some advantages to several States intervening; but it should not be overlooked that such interventions could risk a lengthening of procedures, which would go against the objective of reducing the excessive length of procedures.
14. Finally, the CDDH would like to recall in this context the authority of the Court’s judgments: it is inherent in the control system set up by the Convention that any contracting State – independently of any possible participation in proceedings pending against another State – should examine and apply each judgment, in order to ensure constantly that its law and practice correspond to the Convention.
15. As to the other points evoked in the Recommendation which aim to improve the manner in which the Committee of Ministers exercises its powers under Article 46, paragraph 2, of the Convention, the CDDH recalls that during its 736th meeting (10-11 January 2001, item 4.3), the Ministers’ Deputies agreed to consider measures to follow up, as appropriate, the recommendations made by the Ministerial Conference with respect to the supervision of the execution of judgments of the Court. The CDDH notes, moreover, that the Deputies adopted at this same meeting (item 4.2) revised Rules for the application of article 46, paragraph 2, of the Convention. These rules, drawn up by the CDDH, mainly codify the existing practice of the Committee of Ministers in the application of this article, but also add new rules on transparency.
iv. when exercising its function under Article 46 paragraph 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;
16. The CDDH certainly shares the objective of the Parliamentary Assembly, ie to guarantee the execution of the Court’s judgment by the respondent State. If this is not done, (in other words, if judgments are not executed or are executed in a too slow or unsatisfactory manner), the credibility of the system for the protection of human rights provided for by the Convention is at risk.
17. The CDDH recalls that from an overall perspective, the cases of unsatisfactory execution are rare and those of non-execution exceptional to the point that it is possible to assert that generally the respondent States execute judgments effectively and in good faith. When, exceptionally, they do not proceed with the execution as diligently as expected, this is usually due to objective difficulties with satisfying the requirements of the judgment (for example, the length of time needed to implement certain general measures, for example of a legislative or constitutional nature) or to a lack of clarity as to the requirements of a certain judgment (a lack of clarity, which in order to be overcome may require some input from other later judgments of the Court, possibly concerning other States).
18. Of course, manifest refusal to execute the Court’s judgments cannot be ruled out. However, rather than to provide for more “strictness” in the execution control, the CDDH invites the Committee of Ministers to develop a series of responses in case of slowness or negligence in the execution of the judgments (as was indicated by the Rome Conference) as well as objective criteria for the identification of these cases in order to apply the responses in a coherent manner. Furthermore, the CDDH is of the opinion that the judgments of the Court must be formulated with a constant concern for clarity.
19. The CDDH notes that the more general issue regarding the responses which should be at the disposal of the Committee of Ministers to ensure the execution of judgments is evoked also by the Ministers' Deputies in their decision at their 736th meeting (10-11 January 2001, item 4.3) on the follow-up to the aforementioned Ministerial Conference.
20. In this decision the Deputies agreed to consider measures to follow up, as appropriate, the recommendations made in Resolution I with respect to the supervision of the execution of judgments of the Court and to consider the general question of the effectiveness of the Council of Europe’s response to cases of failure of member States to abide by the human rights standards of the Council of Europe. The CDDH expresses its satisfaction with this. It suggests that the Ministers’ Deputies give priority to the examination of this item, which corresponds to the wishes expressed by the Parliamentary Assembly in the Recommendation which is the subject of the present opinion.
21. This being said, it is noted that the Committee of Ministers already appears to have developed a certain number of measures in order to ensure execution besides the regular examination of the cases at its meetings; in particular:
- direct contacts (letters, meetings in person) at different levels with the national authorities concerned by the case, including contacts at the highest level between the Chairman of the Committee and the Minister of Foreign affairs of the respondent State;
- different types of interim resolutions aimed at (i) informing; (ii) encouraging; and/or, if necessary, (iii) establishing the non-execution and where necessary, declaring its [the Committee of Ministers] resolve to ensure, with all means available to the Organisation, the respondent State's compliance with its obligations under the judgment, and calling upon the authorities of the member States to take such action as they deem appropriate to this end. 5
b. ensure that measures taken constitute effective means to prevent further violations being committed;
22. The CDDH shares this concern. In this context, it would also be appropriate to give to the Secretariat of the Department for the execution of the Court’s judgments the means necessary, within the overall budget of the Council of Europe, to assist the Committee in the realisation of this important task.
c. keep the Assembly informed of progress in the execution of judgments, in particular by the more systematic use of interim resolutions setting a timetable for carrying out the reforms planned;
23. The CDDH notes with satisfaction the Parliamentary Assembly’s increasing interest in respect of the execution of the Court’s judgments. It understands the Assembly’s concern in being informed notably of the timetables set for the adoption of general measures. However, it does not consider that the interim resolutions are conceived, generally, to serve this purpose.
24. The CDDH recalls that the Committee of Ministers decided in April 2001 to make public its annotated agenda for its human rights meetings. This document contains notably information on the state of progress of the execution of the cases. The CDDH would suggest that the Committee of Ministers ensure that this general and regular document, which is now available on the Committee of Ministers public web-site, also contains information with regard to the time-tables announced. The CDDH also suggests that the Committee of Ministers develop the information contained in this document into a database equally available on the internet and accompanied by an adequate search engine.
d. instruct the Secretary General to reinforce and improve its technical assistance programmes;
25. The CDDH cannot but share the political objective of reinforcing and improving the assistance programmes of the Council of Europe towards States Parties to the Convention. These programmes can contribute to improve the degree of respect for the Convention at a national level and, further to this, to lighten the workload of the organs of Strasbourg.
26. The CDDH considers, however, that this general policy objective does not, in principle, concern the activities of the Committee of Ministers under Article 46, paragraph 2 of the Convention, which relates to a specific problem with regard to a State. This being said, several assistance programmes have contributed in a significant way to resolving problems linked to execution. This possibility should therefore be taken into consideration and developed in the context of the examination of the various cases referred to the Committee for controlling the execution.
e. ask member states to assist persons or organisations who contribute to the diffusion of information and to the training of judges and lawyers.
27. According to the CDDH, the same considerations as under d., above, are valid, mutatis mutandis, towards this last request from the Assembly.
1 The ad hoc terms of reference given to the CDDH specify that it is asked to give its opinion notably in the light of the opinion of the European Court of Human Rights. To this effect the CDDH has noted that the President of the Court, Mr Luzius Wildhaber, replied, on 28 March 2000, to a letter from the Chairman of the Committee on Legal Affairs and Human Rights, Mr Gunnar Jansson, asking for comments on a memorandum prepared by the rapporteur of the above-mentioned committee (M. Erik Jurgens). Moreover, the President of the Court gave a speech on the execution of judgments of the Court to the Parliamentary Assembly (28 September 2000). The CDDH has taken into account the above-mentioned letter and the speech when elaborating the present opinion.
See the letter referred to in footnote 1.
4 Report of the 50th meeting (26-28 September 2001), document DH-PR (2001) 10, Appendix III, § 3.
5 See Interim Resolution Res DH (2001) 80 concerning the judgment of the Court of 28 July 1998 in the case of
Loizidou against Turkey.