CM(2003)37 Revised 6 27 September 2004
897 DH Meeting, 28-29 September 2004
Responses in the event of slow or negligent execution or non-execution of judgments of the European Court of Human Rights
Information document prepared by Directorate General II – Human Rights
This document, prepared by the Directorate General II at the request of the Ministers' Deputies1 in order to develop document CM(2003)37 Rev 5 – Responses in the event of slow or negligent execution or non-execution of judgments of the European Court of Human Rights - with a view to making it available to the public. Elaborated under the sole responsibility of the Secretariat it in no way binds the Committee of Ministers.
A number of amendments have been introduced in the former document in order to take into account the recent developments in the case-law of the Court (e.g. in the cases of Broniowski v. Poland and Assanidze v. Georgia), the new working methods adopted by the Deputies and the CDDH's work. A number of other minor amendments (essentially a revised introduction, more headings and explanations and a presentation of the Committee's execution control), have been added to make the document more accessible to the public.
I. PRELIMINARY REMARKS
1. The present document has been prepared by the Directorate-General II – Human Rights following a request from the Ministers' Deputies to present the work carried out to develop possible responses in the event of slowness or negligence in the execution of a judgment of the European Court of Human Rights (“the Court”) or even non-execution thereof.
2. The first part of the document provides a general overview of the efforts undertaken so far to improve execution and execution control and contains a short summary of the main obligations flowing from the judgments of the Court. A second part describes the present responses to situations of delay and negligence are developed and contains certain suggestions for further developments. A third part addresses the present responses in case of refusal to execute and a fourth part hints at the framework foreseen for the further reflections on these issues.
3. The content is the sole responsibility of the Directorate-General and does not bind the Committee of Ministers.
B. Overview of efforts undertaken so far to improve execution and execution control
4. The background to the exercise may be found in the call made by the Ministers at the European Ministerial Conference on Human Rights in Rome in November 2000, celebrating the 50th anniversary of the European Convention on Human Rights (the “Convention”), that the Committee of Ministers of the Council of Europe should pursue examination of possible responses in the event of slowness or negligence in the execution of a judgment of the the Court or even non-execution thereof.
5. It is recalled at the outset that a number of proposals with regard to such responses have also been submitted by the Parliamentary Assembly, notably in its Recommendations 1477(2000), 1546(2001) and 1576(2002), and by the Venice Commission2 in the opinion it was invited by the Assembly to give on the aforementioned Recommendation 1477.
6. Further proposals have been elaborated by the Steering Committee for Human Rights (“CDDH”)3 following the Committee of Ministers' insistence at several ministerial sessions since the Rome Ministerial Conference in November 2000, that the Deputies improve their execution control and develop responses to slow execution or non-execution of the Court's judgments4 .
7. The CDDH's proposals were examined by the Committee of Ministers at its 112th Session (14-15 May 2003) in the course of which the Committee adopted a Declaration on how to guarantee the long term effectiveness of the European Court of Human Rights.
8. In the context of the implementation of this Declaration, the Deputies assigned (842nd meeting, 5 June 2003) ad hoc terms of reference to the CDDH to follow up the proposals by elaborating a draft amending protocol and other relevant instruments.
9. Two of the CDDH's proposals appeared, however, capable of being rapidly implemented by the Ministers' deputies within the framework of existing rules and practices. These were proposals C2 and C5:
- C2 aimed at developing the Committee of Ministers' procedures and practice to give priority to the rapid execution of judgments revealing systemic problems, and,
- C5 aimed at making optimum use of other existing institutions, mechanisms and activities.
10 The CDDH completed its ad hoc terms of reference in April 2004 and the Committee of Ministers considered and adopted at its 114th session (12-13 May 2004) Protocol No. 14 to the Convention. This Protocol notably adds to the Committee of Ministers existing powers a possibility to engage infringement proceedings before the Court in case the Committee considers that a State is violating its obligation to abide by a judgment of the Court. It also adds a new possibility to apply to the Court for an interpretation of its judgments.
11. In addition the Committee adopted a number of recommendations aiming at improving the implementation of the Convention and of the case-law of the Court in the domestic legal systems, inter alia with the aim of limiting the number of repetitive cases brought before the Court in the wake of judgments revealing systemic problems. In this context the Committee also adopted a resolution addressed to the Court, Res(2004)3, which deals with judgments revealing an underlying systemic problem.
12. In response to the Ministers' requests and taking into account the CDDH's proposals, the Deputies have themselves sought to improve the efficiency and the publicity of execution control and to develop their responses notably to situations of delay and negligence. The Deputies have amongst other things encouraged an increased cooperation between the Secretariat and the respondent State and the development of their practice in respect of different types of interim resolutions and diplomatic initiatives. Special attention has also been given to cases revealing important systemic problems.
13. In this context the Deputies have also recently amended their working methods in order to improve the effectiveness of the supervision of the execution of the judgments of the Court5.
C. Main obligations flowing from the judgments European Court of Human Rights
1. The respondent State's general duty to abide by the judgments
14. Under Article 46, paragraph 1, of the Convention, the Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. As stressed by the Committee, the duty to abide is unconditional.6
15. Traditionally, the judgments of the Court only “declare” the violations of the Convention. It is thus primarily for the authorities of the respondent state to choose, subject to the Committee of Ministers' supervision (see section ii. below), the individual and/or general measures to be adopted within its legal order so as to erase the consequences of the violation for the individual applicant and safeguard respect for the Convention standard through the adoption of general measures preventing new violations for the future. In certain circumstances, the Court may, however, also itself provide in its judgments indications as to the execution measures required (see below under iii. and iv.).
2. The Committee of Ministers supervision of execution
16. Under Article 46 of the Convention it falls upon the Committee of Ministers to supervise that the necessary execution measures are taken. In case the measures envisaged or adopted appear insufficient to remedy the consequences of the violation found, or if the taking of the necessary measures is delayed, the Committee may intervene in different ways (see below section II) to ensure proper execution.
17. Judgments are put on the agenda of the Ministers' Deputies without delay. Examination normally takes place at the Deputies Human Rights meetings (presently 6 a year), but may take place at any meeting if the situation so requires. The control intervals depend on the nature of the outstanding questions and the state of progress achieved (see the Rules adopted by the Committee of Ministers for this purpose7). All information provided by the respondent State is in principle made available to the public together with an outline of the other positions taken in the Committee in the course of the examination. If the applicant considers that the measures taken to rectify his personal situation are insufficient he may submit his grievances to the Committee. Once all measures required have been taken the Committee of Ministers ends its control with a resolution concluding that it has fulfilled its obligations under the said Article 46.
3. The obligation to pay just satisfaction and to take individual and general measures
18. As regards the consequences of a violation for the applicant, the Court will, in general, only consider under Article 41 of the Convention those consequences which can be repaired by a monetary just satisfaction. As regards any remaining unrepaired consequences, it will be for the Respondent state to take the further execution measures which may be required (reopening of unfair proceedings, granting of a residence permit, destruction of illegally obtained information etc…). The Court may, in addition, in exceptional circumstances, where the nature of the violation found does not leave any real choice as to the remedial action required, itself order the necessary individual measures to be taken (e.g. liberation from unjust imprisonment)8.
19. The necessity of general measures to prevent new similar violations (e.g. changes of legislation, regulation or case-law, or administrative action), will in general be assessed by the authorities of the respondent state on the basis of the explanations of the violation found in the Court's judgment. Recently, the Court has, also, in response to the Committee of Ministers Resolution (2004)3 on cases revealing an underlying systemic problem and its Recommendation (2004)6 on the improvement of domestic remedies, started to assist the respondent State and the Committee by identifying formally in its judgment the underlying structural problem and by providing indications as to the remedial action required9.
20. These basic obligations are reflected in numerous judgments and Committee of Ministers' recommendations and resolutions, as well as in Rule 3 of the Committee's Rules for the application of Article 46, paragraph 210.
4. The time-frame for compliance
21. The time-limit for compliance is in general set by the Court only with regard to the payment of just satisfaction.
22. As to other execution measures, it follows from general principles adopted by the States and the Committee of Ministers in the context of its execution control that the duty to comply arises as soon as the judgment becomes final. Immediate execution often being materially impossible, the practice is in general to accept that execution must be ensured without unjustified delay. In certain circumstances, however, obtaining the required results may be pressing, even requiring immediate action, e.g. where the violation causes serious hardship for the individual or in the case of repeated serious violations11.
23. If rapid full compliance is not possible, respondent States are called upon to adopt interim measures to prevent, to the extent possible under existing law, new similar violations awaiting the entry into force of legislative and/or other, more time-consuming, measures. The possibility of adopting new remedies, where necessary even with retroactive effect, should notably be considered (see Recommendation Rec(2004)612 of the Committee of Ministers to member states on the improvement of domestic remedies and its explanatory report, notably §19). In this context States might also envisage, if this is deemed advisable, the possibility of reopening proceedings (see §17 of the explanatory report).
II. RESPONSES TO NEGLIGENCE OR DELAY IN EXECUTION
A. Current responses
1. Delayed or negligent payment
i. Safeguarding the value of awards - default interest
24. The Committee of Ministers has consistently maintained that states have a general obligation under Article 46 of the Convention to safeguard the value of monetary awards made by the Court in case of late payment.
25. However, as the problem of late payment became increasingly frequent and important, the Committee of Ministers proposed at the end of 1995, in order to facilitate the handling thereof, that the Court and the Committee itself should, simultaneously, include explicit provisions for default interest in their decisions on just satisfaction, including notably details about the applicable rate.
ii. Peer pressure and publicity
26. In order to increase the pressure and improve payment procedures, the Committee also decided in 1995 to specially identify those states which had not been able to confirm payment more than 6 months after the expiry of the time limit for payment, and request an explanation for the delay from the delegation concerned. Today, these cases also have a special heading in the public annotated agenda and order of business.
2. Individual and general measures
i. Early information of delay – “informative” interim resolutions
27. As judgments in general contain no explicit time frame for execution as regards individual and general measures, the Committee of Ministers has recently in the context of the Deputies' new working methods started to ask the respondent states to present rapidly action plans explaining the measures envisaged together with the time frame for their adoption. Such action plans thus should be submitted at the latest within six month of the judgment – earlier where required.
28. If the Committee receives information that execution cannot be ensured rapidly, or if the time-table in the action plan cannot be respected, and finds the reasons advanced acceptable, it may ask the respondent state to make a more formal undertaking in the form of an “informative” interim resolution setting out the reasons for the delay and providing information on the execution measures planned (including interim measures), and the time-table envisaged. Due to their formal and public nature, these resolutions compel the respondent state to make clearer and more precise undertakings than it usually does in the context of the Committee's ordinary examination of the case. Such resolutions also facilitate a possible subsequent examination of questions relating to delay or negligence (see below §§14 and 23). The practice of such resolutions is developing, in accordance with the wishes expressed by successive Chairs (see below §22).13 In some cases the Committee has gone a middle way by including the action plans in ordinary decisions.14
ii. Continuing delay I : peer pressure
29. If the time-limits proposed by the respondent state and accepted by the Committee are not respected, the Committee usually engages a series of actions to raise the visibility of the problem and bring it clearly to the attention of those national decision-makers with power to ensure compliance.
30. The Committee's responses will customarily first be confidential, relying on the capacity of the Minister/Ministry of Foreign Affairs of the respondent State to put adequate pressure on the other state bodies concerned. According to the existing practice, such actions may consist in:
- Increased contacts with the Department for the execution of judgments to investigate different ways of overcoming identified problems;
- Peer pressure at meetings and insistence on the rapid adoption of measures to overcome delay;
- Increased frequency of the examination of the case, where necessary at each Human Rights meeting (held every two months) or even at all regular meetings (held every week);
- Action by the Chair at the request of the Committee of Ministers:
- letters to and/or meetings between the Chair of the Ministers' Deputies and representatives of the respondent state;
- letters to and/or meetings between the Chair of the Committee of Ministers and the Minister of Foreign Affairs of the respondent state;
- Raising problems/concerns at high level meetings;
- Announcing the necessity of a interim resolution (depending on the circumstances, either only encouraging rapid adoption of reform, or denouncing the shortcomings observed and urging rapid remedial actions).
31. In the vast majority of cases this kind of peer pressure, which may be more or less confidential, is sufficient to ensure compliance.
iii. Continuing delay II : formal expressions of concern
32. It may be recalled that the concerns evoked in the Committee of Ministers regarding possible negligence and delay is today regularly given a degree of publicity since, following the adoption of the new Rules in 2001, the annotated agenda and order of business summarising the execution measures taken and the concerns expressed in the Committee of Ministers are now public and available on the Committee's internet site.
33. Once those concerns have reached a certain level of seriousness, the Committee will, however, normally take more formal steps to ensure compliance . Such steps may include further high level contacts (letters or meetings) as indicated above (§15) and placing them in the public domain.
34. The Committee may also manifest its concerns in the form of interim resolutions
- either urging the domestic authorities rapidly to conclude ongoing reforms, and/or
- expressing, for the attention of all national and international authorities concerned, the Committee's disquiet on account of the negligence/delay established and urging action and/or;
- providing indications as to the execution measures expected.
35. The emerging trend is to raise the question of the necessity of adopting these types of interim resolutions where no concrete progress in the adoption of general measures has been reported 2 years after the judgment and where full execution has not taken place within 4 years of the judgment. The question may be raised much more quickly – within weeks - in the absence of individual measures where such measures are required.
36. Instead of, or in addition to interim resolutions, the Committee has sometimes found it appropriate to have recourse to:
- Press releases15;
- Public statements by the Chair on behalf of the Committee16;
B. Proposals for improvements
37. With the implementation of the new working methods the Deputies have already enhanced their efforts in order to ensure that the respondent State fixes more rapidly and more precisely than today, in collaboration with the Department for the execution of judgments, an action plan for the execution of the judgments17. Further measures could be taken to ensure that these action plans and their follow up are rapidly made public and brought to the attention of competent authorities18.
38. In case respect of the action plan encounters delay, or if execution demonstrates signs of negligence, more frequent recourse could be had to interim resolutions, notably of an “encouraging” character. Such a development would be in line with the positions taken by successive Chairs of the Committee of Ministers. The details provided by these instruments improve the Committee of Ministers' possibilities to examine the question of negligence or delay and to evaluate the need for further actions. 19
39. In addition, further efforts could be deployed to ensure that interim resolutions are made visible on the Council of Europe portal and systematically accompanied by press releases and widely distributed, also within the respondent state.
40. It could further be envisaged to shorten the present warning deadlines (see paragraph 20 above) prior to the issuing of interim resolutions expressing concern in cases of delay or negligence. The necessity of such resolutions could thus be raised in important cases if, within one year, no clear proposal for general measures has been received and if, within two years, the proposed measures have not entered into force. For individual measures, this deadline would be much shorter, depending on the circumstances. Such warning deadlines could be introduced also in respect of less important cases. Any case not fully solved after a certain period (for example 3 years) could thus be presented under a special heading before the Deputies for decisions as to appropriate action (e.g. publication in a “special list”, possibly appended to a special resolution published annually).
41. More frequent controls of cases raising important general problems, in particular systemic problems, than the usual 6 month intervals could be valuable to ensure that delays are avoided and adequate solutions are rapidly found.20 Important negligence or delay in executing such judgments could thus be treated regularly both at the ordinary “human rights” meetings and at regular meetings in order to mark clearly the need to rapidly arrive at a solution 21.
42. Recourse to assistance programmes has so far been rare and has normally intervened some time after a problem has emerged before the Committee. A more speedy discussion of the desirability of such programmes could be useful.22
43. If the question of delay or negligence is linked with a difficult question of interpretation of the Court's judgment, the Committee of Ministers could under Protocol No. 14, once it has entered into force, refer the interpretation question to the Court for a ruling23. Awaiting the entry into force of the Protocol, the existing possibilities to this effect under the Rules of Court could be more frequently considered.
44. Information exchanges with other bodies of the Council of Europe such as the Human Rights Commissioner and the Parliamentary Assembly could also be improved24.
III. RESPONSES IN CASE OF PERSISTENT NON-RESPECT
A. General considerations
45. The Committee of Ministers has stated that it has the duty to ensure, with all the means available to the Council of Europe, the respondent state's compliance with its obligations under the Court's judgment.
46. Under the existing practice, the measures listed below have been considered in order to respond to the respondent State's non–respect of its obligation. It should be noted that the Committee has only considered the responses below once the measures referred to in connection with the responses to delay and negligence have led to no result, or where it is otherwise clear that no other solution can be envisaged.
47. Another matter is that compliance may also necessitate parallel, possibly confidential, consultations with a view to finding a solution. The taking of any of the measures mentioned below thus have not prevented recourse to further informal contacts at different levels.
B. Current practice so far
48. The Committee's current practice may be summarised as follows25:
a) adoption of an interim resolution deploring the absence of execution, or, if the breach nevertheless persists, declaring the non respect of the State's obligation as a High Contracting Party to the Convention and, possibly, also of its obligations as a Member State of the Council of Europe (in addition the Committee will insist on the adoption of the necessary execution measures); ensuring the rapid and wide distribution of this resolution so that states or different bodies or organisations concerned or potentially interested are made aware of the non-respect of the Convention;
b) issuing a formal warning that action, for example in the form of an interim resolution, that action under Article 8 of the Statute may follow;
c) appealing to the authorities of the Member States to take more or less specific actions.
49. With the entry into force of Protocol 14 the Committee of Ministers will also have the possibility of engaging, after having served formal notice on the respondent State, an infringement procedure before the Court.
IV. REFLECTIONS ON FUTURE DEVELOPMENTS
50. Further consideration on possible responses in case of delay, negligence or refusal to execute is presently being carried out by the Ministers' Deputies, notably assisted by the CDDH.