Ministers’ Deputies
CM Documents

CM(2006)39 Addendum 13 April 20061
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963 Meeting, 3 May 2006
4 Human Rights


4.1 Steering Committee for Human Rights (CDDH)

b. Activity report – Reform of the European Convention on Human Rights – Declaration of the Committee of Ministers “Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels”

Item to be prepared by the Rapporteur Group on Human Rights (GR-H) at its meeting on 27 April 2006

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Table of contents

Introduction

- Terms of reference
- Working methods

I. European level

- Draft Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements

- Practical suggestions from the CDDH to the Ministers’ Deputies to address situations of slow or negligent execution of judgments of the Court

II. National level

- Collection, analysis and presentation of the information

- CDDH conclusions and suggestions concerning the implementation of the five recommendations

Appendices

I. Declaration “Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels”, adopted on 12 May 2004, at the 114th Session of the Committee of Ministers

II. Revised ad hoc terms of reference for the Steering Committee for Human Rights (CDDH)

III. Draft Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements

IV. Practical suggestions from the CDDH to the Ministers’ Deputies to address situations of slow or negligent execution of judgments of the European Court of Human Rights

V. Overview of the information submitted on the five Recommendations mentioned in the Committee of Ministers Declaration adopted on 12 May 2004

Introduction

1. Following the 114th Session of the Committee of Ministers (12-13 May 2004) at which Protocol No. 14 to the European Convention on Human Rights (the Convention) was opened for signature and the Declaration “Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels2 was adopted, the Steering Committee for Human Rights (CDDH) was assigned ad hoc terms of reference3 with regard to specific issues raised by both instruments. Since the terms of reference were subsequently specified and enlarged between June 2004 and October 2005, it is helpful to briefly recall them before describing the methodology chosen by the CDDH to fulfil them.

Terms of reference

2. In June 2004, the Ministers’ Deputies assigned the CDDH ad hoc terms of reference to:

      “a. Consider whether it is necessary to revise the rules adopted by the Committee of Ministers for applying Article 46, paragraph 2, of the Convention, so as to reflect the changes made by Protocol No. 14 to the Convention, and submit its opinion and possible corresponding proposals to the Committee of Ministers;

      b. Consider the appropriate follow-up to the Committee of Ministers' Resolution on judgments revealing an underlying systemic problem;

      c. Submit regular progress reports on implementation of the recommendations4 mentioned in the Declaration adopted at the 114th Ministerial Session, so as to enable the Deputies to undertake an effective, transparent review of their implementation.” 5

3. As to reporting on the implementation of the five recommendations, in September 2005, the Ministers’ Deputies urged member states which had not yet done so, to submit the information requested to the CDDH and clarified that the latter should:

      “provide clear and concise information on the state of implementation of the recommendations in each member state including any lacunae and requested the CDDH to submit its next progress report before the end of 2005.” 6

4. As to Article 46, paragraph 2, of the Convention, in October 2005, the Ministers’ Deputies also requested the CDDH to:

      “d. examine the practical application of Article 46, paragraph 2 of the Convention in different situations of slow or negligent execution of judgments of the European Court of Human Rights and present practical suggestions in order to address such situations, taking into account existing practice”.7

5. To sum up, the CDDH was asked to:

- Put forward proposals, in the light of Protocol No. 14 to the Convention and taking into account existing practice, on the Committee of Ministers’ supervision of execution of judgments, particularly (i) when execution is hindered by a problem of interpretation of a final judgment, (ii) when a High Contracting Party refuses to abide by the final judgment, (iii) when judgments reveal an underlying systemic problem and (iv) when execution is slow or negligent.

- Report on the implementation by member states of Committee of Ministers recommendations: Rec(2000)2 on re-examination or reopening; Rec(2002)13 on publication and dissemination; Rec(2004)4 on education and training; Rec(2004)5 on verification of compatibility; and Rec(2004)6 on domestic remedies.

6. The deadline for execution of these various terms of reference was fixed at 31 May 2006.

Working methods

7. The CDDH entrusted relevant work to its Committee of Experts for the Improvement of Procedures for the Protection of Human Rights (DH-PR), which set up two Working Groups (A and B) to deal respectively with the European and the national aspects of the terms of reference, i.e.:

- Working Group A8 was asked to draft proposals to revise the Committee of Ministers’ Rules for applying Article 46, paragraph 2, of the Convention; to consider follow-up to the Committee of Ministers’ Resolution on judgments revealing an underlying systemic problem and to present practical suggestions to deal with situations of slow or negligent execution of judgments.

- Working Group B9 was assigned work on follow-up to the implementation of the five recommendations mentioned in the Declaration adopted at the 114th Ministerial Session.

8. The CDDH submitted two progress reports to the Committee of Ministers. The first one,10 adopted on 17 June 2005, particularly concerned the work carried out by Group A, whilst the second one,11 adopted on 25 November 2005, focused on the work of Group B.

9. This report covers all activities carried out to fulfil the above-mentioned terms of reference. Account of these activities is given in two main sections:

I. Ensuring the effectiveness of the implementation of the Convention at the European level. Proposals in this regard appear in Appendices III and IV, which contain respectively Draft Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, including proposals on the supervision of the execution of judgments concerning systemic problems, and practical suggestions to address situations of slow or negligent execution of judgments of the European Court of Human Rights (the Court).

II. Ensuring the effectiveness of the implementation of the Convention at the national level. An overview of the information submitted by member states with regard to the five recommendations appears in Appendix V, whilst document CDDH(2006)008 Addenda I and II contain respectively follow-up sheets and summary tables for each recommendation. The full information submitted by member states with regard to the implementation of the five recommendations is reproduced in document CDDH(2006)008 Addendum III. The latter documents can be obtained from Directorate General II – Human Rights.

10. By submitting this activity report to the Ministers’ Deputies, the CDDH considers it has fulfilled the current terms of reference assigned to it. It therefore remains at the disposal of the Ministers’ Deputies, should they decide to entrust further work to it after the 116th Ministerial Session (18-19 May 2006).

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I. European level

11. This section presents the proposals put forward by the CDDH with a view to enhancing the effectiveness of supervision by the Committee of Ministers of the execution of judgments.

12. The proposals fall in two main categories:

- Draft amendments to the current Rules12 of the Committee of Ministers for the application of Article 46, paragraph 2, of the Convention (see Appendix III), which were principally prepared taking into account the changes introduced by Protocol No. 14 with a view to guaranteeing the long term effectiveness of the Convention, as well as Committee of Ministers’ Resolution(2004)3 on judgments revealing an underlying systemic problem;

- Practical suggestions to the Ministers’ Deputies to address situations of slow or negligent execution of judgments of the Court (see Appendix IV), which were formulated taking into consideration existing practice with regard to the working methods of the human rights meetings focusing primarily on prevention of delays.

13. Before outlining the main issues examined while preparing the proposals contained in these Appendices, it should be underlined that work focused first and foremost on the drafting of the proposals for amendments to the Rules as the request to put forward practical suggestions to address situations of slow or negligent execution of judgments was made, as mentioned above, at a relatively later stage (October 2005).

14. It should also be highlighted that during its discussions on the draft amendments to the Rules, the CDDH considered proposals and observations submitted to it by:

- The Advice on Individual Rights in Europe Centre (AIRE Centre), Amnesty International and the European Human Rights Advocacy Centre (EHRAC),13 on the roles of the applicant and civil society with regard to interpretation and infringement proceedings (concerning respectively, proposed draft Rules 10 and 11) and communications to the Committee of Ministers (concerning proposed draft Rules 9 and 15);
- Norway, on the adoption by the Committee of Ministers of an annual report its activities concerning supervision of execution (proposed draft Rule 5), on action plans (amendments to proposed draft Rules 6 and 7) and on communications to the Committee of Ministers from the injured party and/or civil society (concerning proposed draft Rules 9 and 15);
- The Registry of the Court, on anonymity of the injured party also during the execution process (proposed draft Rules 8 and 14); the role of the applicant in the context of communications to the Committee of Ministers (proposed draft Rule 9) and possible reference to the Commissioner for Human Rights in the proposed draft Rules, and notably where reference to cases revealing a systemic problem, is made (proposed draft Rule 4).

15. As to the preparation of the practical suggestions, the following documents were primarily at the basis of the exchanges of views and subsequent elaboration of proposals by the CDDH:

- CM/Inf(2004)8 Final, 7 April 2004, “Human Rights Working methods – Improved effectiveness of the Committee of Ministers’ supervision of execution of judgments”, Information document prepared under the responsibility of the Norwegian Delegation;

- CM(2003)37 Revised 6, 27 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;
- Specific proposals submitted by France and Norway for discussions during the last meeting of Group A (1-3 February 2006);
- Section C on improving and accelerating execution of judgments of the Court of the CDDH interim report on Guaranteeing the long-term effectiveness of the European Court of Human Rights – Implementation of the Declaration adopted by the Committee of Ministers at its 112th Session (14-15 May 2003) (see document CM(2003)55);
- Proposals submitted by the AIRE Centre, Amnesty International and the EHRAC.14

Draft proposals for amendments to the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements

Proposed new title and structure of the Rules

16. In the light of Protocol No. 14 to the Convention, it was deemed advisable to submit a comprehensive restructured set of Rules (not just a few amendments / new Rules). This implied a special section on the execution of the terms of friendly settlements. To reflect this, the following proposed new draft title of the Rules was agreed upon: “Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements”. Furthermore, it was noted that some of the proposals for amendments to the Rules could become, once adopted, immediately effective whilst others depended on the entry into force of Protocol No. 14 to the Convention. To avoid possible confusion and misunderstandings, it was therefore decided to clarify this in a draft separate decision of the Committee of Ministers (see the Annex to the Draft Rules which appear in Appendix III).

17. As to the proposed structure of the Rules, it was suggested to have four main sections: (I) General Provisions; (II) Supervision of the Execution of judgments; (III) Supervision of the Execution of the terms of friendly settlements; and (IV) Resolutions. The first and last sections contain provisions related to supervision of both the execution of judgments and that of terms of friendly settlements.

Proposals for amendments to the Rules

18. The proposals for amendments were made to:

- take into account changes introduced by Protocol No. 14 to the Convention;
- better reflect actual practices;
- highlight the importance of the Committee of Ministers’ giving adequate priority to deserving cases; and
- to improve transparency and the involvement of non-governmental organisations, as well as of national institutions for the promotion and protection of human rights.

19. In the General Provisions’ section (section I), apart from a slight re-ordering of existing Rules, the main change proposed consists in the inclusion of two new Rules:

- One (proposed draft Rule 4) specifically addresses the supervision of execution of judgments revealing an underlying systemic problem. The CDDH proposed that priority treatment should be granted to those judgments where the Court itself has, pursuant to Committee of Ministers’ Resolution Res(2004)3, identified a systemic problem. It was however also considered necessary to specify that such priority treatment should not be to the detriment of the priority to be given to other important cases (i.e. cases where the violation established has caused grave consequences for the injured party).

- The other (proposed draft Rule 5) provides that the Committee of Ministers should adopt an annual activities report on its supervision of the execution of judgments and of the terms of friendly settlements. Reference to such a report in the Rules was felt particularly important insofar as the Rule identified its addressees (i.e. the Court, the Secretary General, the Parliamentary Assembly and the Commissioner for Human Rights of the Council of Europe), which could hence be expected to request such a report every year.

20. In the section on the supervision of the execution of judgments (section II), the CDDH suggested to introduce various changes:

- A slight but important modification was made to the Rule on information to the Committee of Ministers on execution of a judgment (proposed draft Rule 6) in order to better reflect existing practices. It was added that the information to be provided by member states to the Committee of Ministers would not only be on the measures taken to abide by the judgment, but also on those that it intends to take. This addition implicitly refers to the elaboration of action plans.

- It was proposed to extend and clarify the Rule concerning access to information (proposed draft Rule 8) with regard to requests for confidentiality and the injured party’s anonymity in the execution process. To reflect changes suggested to the Rule concerning communications to the Committee of Ministers (proposed draft Rule 9), it was specified that also documents presented by the injured party and non-governmental organisations, as well as national institutions for the promotion and protection of human rights, should be made accessible to the public. Finally, it was also added that the annotated agenda concerning the Committee of Ministers’ supervision of execution, together with the decisions taken, and as appropriate other documents presented, should also, after each meeting of the Committee, be published unless the Committee decides otherwise.

- The Rule on communications to the Committee of Ministers (proposed draft Rule 9), was also enriched with reference to the discretion of the Committee of Ministers to also consider any communication from non-governmental organisations as well as national institutions for the promotion and protection of human rights with regard to the execution of judgments that the Secretariat would bring to its attention in an appropriate way.

- Finally, the main new elements added in this section are proposed draft Rules 10 and 11, which regulate situations when execution is hindered by a problem of interpretation of a final judgment and when a High Contracting Party refuses to abide by the final judgment. These Rules are directly based on the new paragraphs (3 to 5), which Protocol No. 14 to the Convention adds to Article 46 of the Convention, as well as on the relevant paragraphs of the Explanatory Report to Protocol No. 14.

21. The whole of section III on the supervision of execution of the terms of friendly settlements is new. Proposed draft Rules 12-15 were drafted mutatis mutandis on the basis of the existing rules on the issue of execution of judgments.

22. The section on resolutions (section IV) does not contain any new provisions.

Practical suggestions from the CDDH to the Ministers’ Deputies to address situations of slow or negligent execution of judgments of the Court

23. The practical suggestions from the CDDH to the Ministers’ Deputies (see Appendix IV) to address different situations of delay or negligence in the execution of judgments of the Court are primarily based on an assessment of the Committee of Ministers’ practice with regard to the guidelines for working methods for the supervision of the execution of judgments as defined in April 2004.15 They also build on some of the conclusions emerging from the Oslo High-Level Seminar on the Reform of the European Human Rights System (18 October 2004), as well as on proposals submitted by some member states, notably France and Norway, the Venice Commission, the CDDH itself or the Secretariat in a number of documents since the Rome European Ministerial Conference on Human Rights (3-4 November 2000), which launched the present efforts to guarantee the long term effectiveness of the Convention system.

24. The CDDH decided to focus on the identification of possible causes of slow and negligent execution of judgments. Its starting point was to insist on the full implementation of the existing guidelines for working methods.

25. The CDDH decided to concentrate its attention on the identification of some practices and/or measures to improve the initial execution phase, i.e. the rapid preparation of good action plans, and ensuring a maximum of transparency notably by making information on execution in general, and on action plans in particular, available as soon as possible to members of the Committee of Ministers and to the public at large. Consequently, the suggestions put forward principally aim at avoiding situations of delay (e.g. the preparation of a Vademecum to provide guidance to member states in the preparation of action plans, and the improvement of the preparation of Human Rights meetings by making the annotated agenda available as soon as possible, etc.). Other suggestions concern more generally the need to share information on execution between all relevant actors in the execution process (e.g. the organisation of a yearly tripartite meeting between the Chairman of the Committee of Ministers, the Chairman of the Legal Affairs and Human Rights Committee of the Parliamentary Assembly and the Human Rights Commissioner shortly after the publication of the annual report foreseen in the new Rules,16 the holding of a yearly meeting of Government Agents dedicated specifically to execution).

26. In this regard, the CDDH expressed its willingness to pursue its work on situations of slow or negligent execution of judgments. In its view, the best way to do so would be through a Working Group composed of several DH-PR experts having experience in the execution of judgment at national level. An equivalent number of experts with experience of the Ministers’ Deputies “Human Rights” meetings would also be invited to contribute to the work of this Group so that it would be in a position to fully respond to the difficulties observed in supervising the execution of judgments in practice. If the suggestion in paragraph 7 of Appendix IV is retained, this Group could also prepare the Vademecum explaining the supervision process of the execution of judgments by the Committee of Ministers as well as a draft instrument (recommendation, resolution) containing practical suggestions on ways and means to address efficiently the execution of a judgment at the national level.

27. Finally, it should be highlighted that the CDDH considered two of its practical suggestions to the Committee of Ministers to be of the utmost importance:

- The urgent need for a global database with relevant and up-to-date information on the execution situation. It decided to append to its suggestions the specific proposal put forward by France in this regard (see the Annex to Appendix IV);

- The essential need to reinforce the Department for the Execution of Judgments.

II. National level

28. This section concerns the follow-up to the implementation of the five recommendations mentioned in the Declaration adopted at the 114th Ministerial Session (12 May 2004). After briefly recalling the methodology adopted to collect, analyse and present information submitted by member states on how the recommendations have been/will be implemented, general CDDH conclusions and suggestions are drawn with regard to each recommendation.

Collection of information

29. Member states were repeatedly17 invited to submit information on efforts undertaken to implement the five recommendations. It was highlighted that such information should provide a realistic picture of domestic law and practice, including good practices and lacunae. Member states replied to these appeals by submitting a considerable amount of information (see Appendix IV for an overview and Addendum III to CDDH(2006)008 for a detailed picture in this regard). However, only some member states pointed at lacunae encountered when implementing the recommendations (or specific aspects of the recommendations).

30. With regard to collection of information, it should be pointed out that only information provided by member states was used to assess the state of implementation of the five recommendations. Non-governmental organisations, as well as national institutions for the promotion and protection of human rights were not invited to provide additional information, at this stage. Furthermore, information was not sought from other Council of Europe bodies at this stage.

Analysis of information

31. For each recommendation an expert was appointed to serve as a main contact person (“rapporteur”) for the Secretariat:

- Mr Adrian SCHEIDEGGER (Switzerland), rapporteur for Rec(2000)2 on re-examination or reopening;
- Mr Roeland BÖCKER (Netherlands), rapporteur for Rec(2002)13 on publication and dissemination;
- Mr Jan SOBCZAK (Poland), rapporteur for Rec(2004)4 on education and training;
- Mr Hans-Jörg BEHRENS (Germany), rapporteur for Rec(2004)5 on verification of compatibility;
- Mrs Inga REINE (Latvia), rapporteur for Rec(2004)6 on domestic remedies.

32. These rapporteurs guided and helped the Secretariat in:

- collecting information (deciding what additional information should be requested from all or some member states with a view to establishing the most complete overview possible);
- deciding how to use and present the information submitted (decision to elaborate follow-up sheets and tables and to compile all the information received by member states in one document);
- drafting the follow-up sheets concerning the implementation of the recommendation.

Presentation of information

33. It was decided to present the information submitted by member states using three tools:18

- Follow-up sheets, which present the factual information on the implementation of the recommendation by all member states, a general assessment by the CDDH of the information submitted (identified tendencies, good practices and lacunae) and the specific conclusions and suggestions by the CDDH with regard to each recommendation (these sheets are reproduced in Addendum I to document CDDH(2006)008).

- Summary tables, which present a synopsis of the information provided on the implementation of the various crucial aspects of each recommendation by each member state (these tables are reproduced in Addendum II to document CDDH(2006)008).

- Compilation of all information, which contains the information as it was submitted by member states (see Addendum III to document CDDH(2006)008).

CDDH conclusions and suggestions

34. This section illustrates the general conclusions drawn, on the basis of the information submitted by member states, from the exercise of following-up the implementation of the five recommendations mentioned in the Declaration adopted at the 114th Ministerial Session. It also contains the suggestions which the CDDH addresses to the Committee of Ministers with regard to each one of the five recommendations. These suggestions, which aim at improving further implementation of the five recommendations, are inspired by the good practices reported and / or intend to respond to the lacunae identified.

35. Before presenting these specific conclusions and suggestions, the following general remarks should be made:

- Overall, member states submitted a great amount of information which demonstrates their commitment to this follow-up exercise.

- However, information is still completely lacking from a few member states and partly lacking from others.

- Moreover, the recommendations were not always understood in the same way by member states. This has led to the submission of information which, at times, was difficult to compare.

36. Consequently, it appears advisable to continue the review of implementation of the recommendations (in their entirety or only with regards to certain aspects) with a view to obtaining a better assessment of their actual implementation.

37. The following general suggestions were made to the Committee of Ministers with regard to the review of the implementation of the recommendations:

- Immediately after the May Ministerial Session, a questionnaire having a clear added value compared to former questionnaires, with a limited number of clear questions could be addressed to member states on each of the five recommendations, setting the deadline for replies at 15 October 2006. Such a questionnaire would be prepared by the Chairpersons of the DH-PR and the CDDH, jointly with the Rapporteurs of Working Group B, and if necessary with the coordinators appointed by the GR-H, on the basis of a draft which would be prepared by the Secretariat.

- All the information submitted by Governments of the member states concerning the implementation of the five recommendations could be put at the disposal of representatives of non-governmental organisations and national institutions for the promotion and protection of human rights, with a view to obtaining from them supplementary information and comments. As the assessment of the information received on the implementation of recommendation Rec(2004)6 on the improvement of domestic remedies was regarded of utmost importance, it was suggested to hold a two-day hearing with representatives of non-governmental organisations and national institutions for the promotion and protection of human rights if possible during the next DH-PR meeting (21-22 September 2006).

- Member states should be reminded that they may ask the Council of Europe for technical assistance to ensure effective implementation of the recommendations.

38. The CDDH decided to put forward the following specific conclusions and suggestions to the Committee of Ministers with regard to each recommendation.

Recommendation Rec(2000)2 – Re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights

Conclusions

1. One member state did not provide any information on the implementation of the recommendation.

2. Little information was submitted with regard to ensuring the existence at national level of adequate possibilities to achieve, as far as possible, restitutio in integrum. It is thus not possible to assess the implementation of the recommendation in this regard.

3. As to the examination of national legal systems with a view to ensuring that there exist adequate possibilities of re-examining a case or reopening proceedings following a judgment of the Court, substantive information was submitted concerning reopening of proceedings, whilst there is not sufficient information concerning re-examination19 of a case.

4. In the light of the information received, it may be concluded that important progress has been achieved in ensuring that member states provide adequate possibilities for reopening of proceedings.

Suggestions

1. Member states which have not yet provided any information or which have not provided sufficient information should be urged to do so. Where necessary, the Secretariat should be requested to contact such member states bilaterally in this respect. It should also contact those member states that have submitted information which needs to be clarified.

2. In order to achieve, as far as possible, restitutio in integrum, particularly through the re-opening of cases in the circumstances highlighted in the recommendation:

      i. Member states which do not provide for the possibility of re-opening criminal proceedings should be urged to adopt such provisions;

      ii. Member states which do not provide for the possibility of re-opening civil and administrative proceedings, should be encouraged to consider adopting such provisions.

3. Further follow-up to the implementation of this recommendation should focus on the existence at national level of adequate possibilities to achieve, as far as possible, restitutio in integrum, notably through re-examination of cases, and on the areas where inherent difficulties and lacunae have been detected in the first follow-up exercise.

Recommendation Rec(2002)13 – Publication and dissemination in the member states of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights

Conclusions

1. All member states provided information on the implementation of the recommendation. Yet, information is lacking with regard to possible cooperation among states sharing a national language with a view to translating and disseminating the Court’s case-law. However, generally, the information received is sufficient.

2. Being part of national law in all member states, the Convention has been translated and published in the national language of all member states. No further follow-up to this part of the recommendation is needed.

3. It may be concluded from the information provided by member states, that the overall implementation of the recommendation is generally satisfactory. Although the publication and the dissemination of the Court’s case-law concerning the state itself appears to be sufficiently guaranteed, this is much less the case with regard to the case-law concerning other states. In addition, it seems that, in some countries there are still few textbooks and other publications, in the language(s) of the country, facilitating knowledge of the Convention system and the main case-law of the Court.

4. Numerous private initiatives to publish the Court’s case-law contribute to the implementation of the recommendation.

Suggestions

1. Member states which have not provided sufficient information should be urged to do so. Where necessary, the Secretariat should be requested to contact those member states that have submitted information which needs to be clarified.

2. With respect to the dissemination of the Court’s case-law, member states should be encouraged to ensure, where necessary, the rapid dissemination, where appropriate with an explanatory note, of case-law concerning third States.

3. With respect to accessibility of the case-law, those member states that do not yet have Internet access at all levels of the judiciary should be encouraged to provide the necessary facilities (e.g. HUDOC CD-Rom). In this framework, it is suggested that the HUDOC search tool be sharpened with a view to facilitate access to information on case-law.

4. Member states should encourage, where necessary, the regular production of textbooks and other publications, in the language(s) of the country, in paper and/or electronic form, facilitating knowledge of the Convention system and the main case-law of the Court.

5. Member states sharing a common national language could be encouraged to consider the possibility of co-operating, with a view to publishing compilations in paper or in electronic form of Court judgments and decisions that are available in non-official languages of the Council of Europe.

6. Member states could be encouraged to cooperate with the private sector to publish national court practice in respect of the Convention and the Court's case-law.

7. Member states should be encouraged to consider the good practices mentioned in the follow-up sheet and choose among them those which are the most appropriate in view of their existing national systems.

8. Further follow-up to the implementation of this recommendation should focus in particular on the dissemination of all relevant case-law of the Court concerning third states.

Recommendation Rec(2004)4 – The European Convention on Human Rights in university education and professional training

Conclusions

1. Two member states did not yet provide information on implementation of the recommendation. The information provided by a number of other member states is insufficient. Nonetheless, from the information received on the general arrangements for education/training it has been possible to gain a satisfactory picture of the implementation of the recommendation as far as these aspects are concerned. On the other hand, it has not been possible to consider whether the education/teaching also covers particular aspects of the Convention’s protection system (mechanisms before the Court, case-law, execution of judgments) further than the substantive rights set out in the Convention.

2. Overall, the recommendation seems to have been acted upon by member states. However, so far it would appear that no particular attention has been paid to the training of teachers and trainers.

Suggestions

1. Member states which have not yet provided any information or which have not provided sufficient information should be urged to do so. Where necessary, the Secretariat should be requested to contact such member states bilaterally in this respect. It should also contact those member states that have submitted information which needs to be clarified.

2. Member states should be encouraged to publicise at national level Council of Europe programmes on the training of teachers and trainers. They are also encouraged to set up adequate and appropriate initial and in-service training facilities for those who are responsible for the enforcement of the Convention, in particular judges and prosecutors,20 as well as lawyers.

3. The Council of Europe should be encouraged to produce standard teaching material in electronic format and disseminate the glossary of keywords relating to the Convention system, while updating it where necessary.

4. Member states and the Council of Europe should be invited to:

      i. encourage, as far as possible, a thematic approach in university education and professional training concerning the Convention, in addition to an article-by-article approach;

      ii. encourage on-line training courses, particularly with regard to developments in the Court’s case-law;

      iii. ensure that all training includes an evaluation by trainers and participants so as to know whether the training objectives have been achieved;

      iv. develop national and international moot court competitions based on the Convention system or, if necessary, set up new competitions in languages widely spoken in Europe, such as English, Russian and German.

5. Further follow-up to the implementation of this recommendation should focus on the training of teacher and trainers, as well as on close co-operation between the Council of Europe, national training institutions and NGOs. In particular, it would be useful if the Council of Europe organised a seminar on these issues in 2007 if possible.

Recommendation Rec(2004)5 – Verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights

Conclusions

1. All member states provided information on the implementation of the recommendation. However, several member states provided insufficient information on parts of the recommendation (in particular on the compatibility of administrative practice with the standards laid down in the Convention).

2. There is no need to request that member states introduce a special mechanism to ensure that draft legislation, existing laws and administrative practice are in conformity with the Convention since general mechanisms cover the compatibility with the Convention. However, there is a need to verify the effectiveness of these mechanisms.

3. It may be concluded from the information provided by states, that the implementation of the recommendation is generally satisfactory as concerns the compatibility of draft laws with the standards laid down in the Convention. Due to the lack of information mentioned above, it is however difficult to assess the implementation of the recommendation as concerns the compatibility of existing laws and administrative practice.

Suggestions

1. Member states which have not provided sufficient information, should be urged to do so. Where necessary, the Secretariat should be requested to contact those member states that have submitted information which needs to be clarified.

2. Good practices identified by member states while implementing this recommendation could be included in a handbook to be drafted by the Secretariat.

3. Project 2004/DG2/25 on legislative reform/compatibility21 should be continued and further developed in order to further assist member states in their efforts to verify the compatibility of their draft laws, existing laws and administrative practice with the standards of the Convention.

4. Continued follow-up to the implementation of the recommendation should focus on:

      i. the verification of compatibility of existing laws and administrative practice, bearing in mind the need to clarify the exact meaning of “administrative practice”. Also, parliamentary procedures concerning the verification of compatibility of draft laws could merit a more detailed evaluation;

      ii. the appropriateness and effectiveness of mechanisms to ensure that draft laws, existing laws and administrative practice are in conformity with the standards laid down in the Convention.

Recommendation Rec(2004)6 – The improvement of domestic remedies

Conclusions

1. The information provided by member states on the implementation of this recommendation is generally insufficient and difficult to compare. Besides the fact that two member states did not provide any information, the information submitted by other states is unequal (not sufficient with regard to some aspects of the recommendation, particularly the ascertainment of the existence and effectiveness of remedies) or too wide-ranging.

2. It is therefore not possible to assess whether the recommendation has generally been implemented in a satisfactory manner.

Suggestions

1. Member states which have not yet provided any information or which have not provided sufficient information, should be urged to do so. Where necessary, the Secretariat should be requested to contact such member states bilaterally in this respect. It should also contact those member states that have submitted information which needs to be clarified.

2. As to the ascertainment of the existence and effectiveness of remedies, it will be important to assess whether various existing ways and means of doing this, alone or taken together, ensure ongoing ascertainment and whether those may lead to the review of the effectiveness of existing remedies or to the setting up of new ones. Member states should be invited to share their experience in this regard, particularly as to ascertainment following pilot judgments and concerning excessive length of proceedings.

3. The adoption of preventive measures to keep length of proceedings reasonable and/or to avoid repetitive cases, should be encouraged. It might be helpful to identify those measures that have an impact on both the short term full protection of the individuals concerned and on the long term relief of the increasing workload of the domestic judiciary and of the Court. Member states could be invited to share their experiences in this regard, either directly or within the framework of the Council of Europe (e.g. within the European Commission for the Efficiency of Justice - CEPEJ).

4. A handbook containing member states’ good practices in bringing their national systems in full compliance with the requirements of Article 13 of the Convention should be drafted by the Secretariat.

5. The process of following-up the implementation of this recommendation should be continued and focus on the ascertainment of the effectiveness (and not just the existence) of domestic remedies. For this purpose, relevant reports prepared by the European Commission for Democracy through Law (“Venice Commission”)22 and the CEPEJ23 as well as pertinent information provided by non-governmental organisations, as well as national institutions for the promotion and protection of human rights, should be drawn upon.

Appendix I

Declaration of the Committee of Ministers
Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels

(adopted by the Committee of Ministers on 12 May 2004,
at its 114th Session)

The Committee of Ministers,

Referring to the Declaration The European Convention on Human Rights at 50: what future for the protection of human rights in Europe? adopted by the European Ministerial Conference on Human Rights, held in Rome to commemorate the 50th anniversary of the Convention on 4 November 2000;

Reaffirming the central role that the Convention must continue to play as a constitutional instrument of European public order, on which the democratic stability of the Continent depends;

Recalling that the Ministerial Conference Declaration emphasized that it falls in the first place to the Member States to ensure that human rights are respected, in full implementation of their international commitments;

Considering that it is indispensable that any reform of the Convention aimed at guaranteeing the long-term effectiveness of the European Court of Human Rights be accompanied by effective national measures by the legislature, the executive and the judiciary to ensure protection of Convention rights at the domestic level, in full conformity with the principle of subsidiarity and the obligations of Member States under Article 1 of the Convention;

Recalling that, according to Article 46, paragraph 1 of the Convention, “the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties”;

Recalling the various Recommendations it adopted to help Member States to fulfil their obligations:

- Recommendation Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights;
- Recommendation Rec(2002)13 on the publication and dissemination in the Member States of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights;
- Recommendation Rec(2004)4 on the European Convention on Human Rights in university education and professional training;
- Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights;
- Recommendation Rec(2004)6 on the improvement of domestic remedies;

Recalling that the following Resolutions were brought to the attention of the Court:

- Resolution Res(2002)58 on the publication and dissemination of the case-law of the European Court of Human Rights;
- Resolution Res(2002)59 concerning the practice in respect of friendly settlements;
- Resolution Res(2004)3 on judgments revealing an underlying systemic problem;

Recalling that, on 10 January 2001, it adopted new Rules for the supervision of the execution of the Court’s judgments under Article 46, paragraph 2 of the Convention, following the instructions given at the Ministerial Conference;

Considering that the Ministerial Conference Declaration gave the decisive political impetus for a determined initiative of Member States aimed at guaranteeing the long-term effectiveness of the Court so as to enable it to continue to protect human rights in Europe;

Welcoming the fact that the work which began immediately after the Conference has made it possible for the Committee of Ministers, at its 114th Session on 12-13 May 2004, to open for signature amending Protocol No. 14 to the Convention;

Considering that the reform introduced by the Protocol aims at preserving the effectiveness of the right of individual application in the context of steadily growing numbers of applications;

Considering, in particular, that the Protocol addresses the main problems with which the Court is confronted, on the one hand, the filtering of the very numerous individual applications and, on the other hand, the so-called repetitive cases;

Considering that a new provision has been introduced by the Protocol to ensure respect for the Court’s judgments and that the Ministers’ Deputies are developing their practices under Article 46, paragraph 2 of the Convention with a view to helping Member States to improve and accelerate the execution of the judgments, notably those revealing an underlying systemic problem;

Considering that these texts, measures and provisions are interdependent and that their implementation is necessary for ensuring the effectiveness of the Convention at national and European levels;

Paying tribute to the significant contribution to this work made by the Court, the Parliamentary Assembly and the Council of Europe Commissioner for Human Rights, as well as by representatives of national courts, national institutions for the promotion and protection of human rights and non-governmental organisations;

I. URGES member states to:

take all necessary steps to sign and ratify Protocol No. 14 as speedily as possible, so as to ensure its entry into force within two years of its opening for signature;

implement speedily and effectively the above-mentioned Recommendations;

II. ASKS the Ministers’ Deputies to:

take specific and effective measures to improve and accelerate the execution of the Court’s judgments, notably those revealing an underlying systemic problem;

undertake a review, on a regular and transparent basis, of the implementation of the above-mentioned Recommendations;

assess the resources necessary for the rapid and efficient implementation of the Protocol, in particular for the Court and its registry in the framework of the new mechanism for the filtering of applications, and to take measures accordingly;

III. INVITES the Secretary General of the Council of Europe and the States concerned to take the necessary steps to disseminate appropriately, in the national language(s), this Declaration and the various instruments mentioned in it.

Appendix II

Revised ad hoc terms of reference for the Steering Committee for Human Rights (CDDH) (CM/Del/Dec(2005)933/item e., CM/Del/Dec(2005)936/item 1.1, CM(2003)37 revised 6)

940th meeting – 12 October 2005
Item e

Decision

The Deputies,

1. adopted Decision No. CM/940/11102005 (…) revising the ad hoc terms of reference given to the Steering Committee for Human Rights (CDDH) at their 886th meeting in Decision No. CM/864/03062004;

2. agreed to make available CM(2003)37 revised 6 to the CDDH for this purpose.

Appendix

Revised ad hoc terms of reference of the Steering Committee for Human Rights (CDDH)
Decision No. CM/940/11102005

1. Name of Committee:
Steering Committee for Human Rights (CDDH)

2. Source:
Committee of Ministers

3. Duration:
These terms of reference shall expire on 31 May 2006.

4. Terms of reference:

a. The Committee shall consider whether it is necessary to revise the rules adopted by the Committee of Ministers for applying Article 46, paragraph 2, of the Convention, so as to reflect the changes made by Protocol No. 14 to the Convention, and submit its opinion and possible corresponding proposals to the Committee of Ministers;

b. The Committee shall also consider the appropriate follow-up to the Committee of Ministers’ Resolution on judgments revealing an underlying systemic problem;

c. The Committee shall submit regular progress reports on implementation of the recommendations mentioned in the Declaration adopted at the 114th Ministerial Session, so as to enable the Deputies to undertake an effective, transparent review of their implementation;24

d. The Committee shall examine the practical application of Article 46, paragraph 2 of the Convention in different situations of slow or negligent execution of judgments of the European Court of Human Rights and present practical suggestions in order to address such situations, taking into account existing practice.

5. Other bodies which may be involved in the work of the CDDH:

Parliamentary Assembly and Registry of the Court.

* * *

Appendix III

Draft Rules of the Committee of Ministers for the supervision
of the execution of judgments and of the terms of friendly settlements

I. General Provisions

Rule 1

1. The exercise of the powers of the Committee of Ministers under Article 46, paragraphs 2 to 5, and Article 39, paragraph 4, of the European Convention on Human Rights, is governed by the present Rules.

2. Unless otherwise provided in the present Rules, the general rules of procedure of the meetings of the Committee of Ministers and of the Ministers’ Deputies shall apply when exercising these powers.

Rule 2

1. The Committee of Ministers’ supervision of the execution of judgments and of the terms of friendly settlements shall in principle take place at special human rights meetings, the agenda of which is public.

2. If the chairmanship of the Committee of Ministers is held by the representative of a High Contracting Party which is a party to a case under examination, that representative shall relinquish the chairmanship during any discussion of that case.

Rule 3

When a judgment or a decision is transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, or Article 39, paragraph 4, of the Convention, the case shall be inscribed on the agenda of the Committee without delay.

Rule 4

1. The Committee of Ministers shall give priority to supervision of the execution of judgments in which the Court has identified what it considers a systemic problem in accordance with Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem.

2. The priority given to cases under the first paragraph of this Rule shall not be to the detriment of the priority to be given to other important cases, notably cases where the violation established has caused grave consequences for the injured party.

Rule 5

The Committee of Ministers shall adopt an annual report on its activities under Article 46, paragraphs 2 to 5, and Article 39, paragraph 4, of the Convention, which shall be made public and transmitted to the Court and to the Secretary General, the Parliamentary Assembly and the Commissioner for Human Rights of the Council of Europe.

II. Supervision of the Execution of Judgments

Rule 6
Information to the Committee of Ministers on the execution of the judgment

1. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, of the Convention, the Court has decided that there has been a violation of the Convention or its protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the High Contracting Party concerned to inform it of the measures which the High Contracting Party has taken or intends to take in consequence of the judgment, having regard to its obligation to abide by it under Article 46, paragraph 1, of the Convention.

2. When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine:

a. whether any just satisfaction awarded by the Court has been paid, including as the case may be, default interest; and

b. if required, and taking into account the discretion of the High Contracting Party concerned to choose the means necessary to comply with the judgment, whether:

    i. individual measures25 have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention;

    ii. general measures26 have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.

Rule 7
Control intervals

1. Until the High Contracting Party concerned has provided information on the payment of the just satisfaction awarded by the Court or concerning possible individual measures, the case shall be placed on the agenda of each human rights meeting of the Committee of Ministers, unless the Committee decides otherwise.

2. If the High Contracting Party concerned informs the Committee of Ministers that it is not yet in a position to inform the Committee that the general measures necessary to ensure compliance with the judgment have been taken, the case shall be placed again on the agenda of a meeting of the Committee of Ministers taking place no more than six months later, unless the Committee decides otherwise; the same rule shall apply when this period expires and for each subsequent period.

Rule 8
Access to information

1. The provisions of this Rule are without prejudice to the confidential nature of the Committee of Ministers’ deliberations in accordance with Article 21 of the Statute of the Council of Europe.

2. The following information shall be accessible to the public unless the Committee decides otherwise in order to protect legitimate public or private interests:

a. information and documents relating thereto provided by a High Contracting Party to the Committee of Ministers pursuant to Article 46, paragraph 2, of the Convention;

b. information and documents relating thereto provided to the Committee of Ministers, in accordance with the present Rules, by the injured party, by non-governmental organisations or by national institutions for the promotion and protection of human rights.

3. In reaching its decision under paragraph 2 of this Rule, the Committee shall take, inter alia, into account:

a. reasoned requests for confidentiality made, at the time the information is submitted, by the High Contracting Party, by the injured party, by non-governmental organisations or by national institutions for the promotion and protection of human rights submitting the information;

b. reasoned requests for confidentiality made by any other High Contracting Party concerned by the information without delay, or at the latest in time for the Committee’s first examination of the information concerned;

c. the interest of an injured party or a third party not to have their identity, or anything allowing their identification, disclosed.

4. After each meeting of the Committee of Ministers, the annotated agenda presented for the Committee’s supervision of execution shall also be accessible to the public and shall be published, together with the decisions taken, unless the Committee decides otherwise. As far as possible, other documents presented to the Committee which are accessible to the public shall be published, unless the Committee decides otherwise.

5. In all cases, where an injured party has been granted anonymity in accordance with Rule 47, paragraph 3 of the Rules of Court; his/her anonymity shall be preserved during the execution process unless he/she expressly requests that anonymity be waived.

Rule 9
Communications to the Committee of Ministers

1. The Committee of Ministers shall consider any communication from the injured party with regard to payment of the just satisfaction or the taking of individual measures.

2. The Committee of Ministers shall be entitled to consider any communication from non-governmental organisations, as well as national institutions for the promotion and protection of human rights, with regard to the execution of judgments under Article 46, paragraph 2, of the Convention.

3. The Secretariat shall bring, in an appropriate way, any communication received in reference to paragraph 1 or 2 of this Rule, to the attention of the Committee of Ministers.

Rule 10
Referral to the Court for interpretation of a judgment

1. When, in accordance with Article 46, paragraph 3, of the Convention, the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Committee.

2. A referral decision may be taken at any time during the Committee of Ministers’ supervision of the execution of the judgments.

3. A referral decision shall take the form of an interim resolution. It shall be reasoned and reflect the different views within the Committee of Ministers, in particular that of the High Contracting Party concerned.

4. If need be, the Committee of Ministers shall be represented before the Court by its Chair, unless the Committee decides upon another form of representation. This decision shall be taken by a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee.

Rule 11
Infringement Proceedings

1. When, in accordance with Article 46, paragraph 4, of the Convention, the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation.

2. Infringement proceedings should be brought only in exceptional circumstances. They shall not be initiated unless formal notice of the Committee’s intention to bring such proceedings has been given to the High Contracting Party concerned. Such formal notice shall be given ultimately six months before the lodging of proceedings, unless the Committee decides otherwise, and shall take the form of an interim resolution. This resolution shall be adopted by a majority vote of two-thirds of the representatives entitled to sit on the Committee.

3. The referral decision of the matter to the Court shall take the form of an interim resolution. It shall be reasoned and concisely reflect the views of the High Contracting Party concerned.

4. The Committee of Ministers shall be represented before the Court by its Chair unless the Committee decides upon another form of representation. This decision shall be taken by a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee.

III. Supervision of the Execution of the Terms of Friendly Settlements

Rule 12
Information to the Committee of Ministers on the execution of the terms of the friendly settlement

1. When a decision is transmitted to the Committee of Ministers in accordance with Article 39, paragraph 4, of the Convention, the Committee shall invite the High Contracting Party concerned to inform it on the execution of the terms of the friendly settlement.

2. The Committee of Ministers shall examine whether the terms of the friendly settlement, as set out in the Court’s decision, have been executed.

Rule 13
Control intervals

Until the High Contracting Party concerned has provided information on the execution of the terms of the friendly settlement as set out in the decision of the Court, the case shall be placed on the agenda of each human rights meeting of the Committee of Ministers, or, where appropriate,27 on the agenda of a meeting of the Committee of Ministers taking place no more than six months later, unless the Committee decides otherwise.

Rule 14

Access to information

1. The provisions of this Rule are without prejudice to the confidential nature of the Committee of Ministers’ deliberations in accordance with Article 21 of the Statute of the Council of Europe.

2. The following information shall be accessible to the public unless the Committee decides otherwise in order to protect legitimate public or private interests:

a. information and documents relating thereto provided by a High Contracting Party to the Committee of Ministers pursuant to Article 39, paragraph 4, of the Convention;

b. information and documents relating thereto provided to the Committee of Ministers in accordance with the present Rules by the applicant, by non-governmental organisations or by national institutions for the promotion and protection of human rights.

3. In reaching its decision under paragraph 2 of this Rule, the Committee shall take, inter alia, into account:

a. reasoned requests for confidentiality made, at the time the information is submitted, by the High Contracting Party, by the applicant, by non-governmental organisations or by national institutions for the promotion and protection of human rights submitting the information;

b. reasoned requests for confidentiality made by any other High Contracting Party concerned by the information without delay, or at the latest in time for the Committee’s first examination of the information concerned;

c. the interest of an applicant or a third party not to have their identity, or anything allowing their identification, disclosed.

4. After each meeting of the Committee of Ministers, the annotated agenda presented for the Committee’s supervision of execution shall also be accessible to the public and shall be published, together with the decisions taken, unless the Committee decides otherwise. As far as possible, other documents presented to the Committee which are accessible to the public shall be published, unless the Committee decides otherwise.

5. In all cases, where an applicant has been granted anonymity in accordance with Rule 47, paragraph 3 of the Rules of Court; his/her anonymity shall be preserved during the execution process unless he/she expressly requests that anonymity be waived.

Rule 15
Communications to the Committee of Ministers

1. The Committee of Ministers shall consider any communication from the applicant with regard to the execution of the terms of friendly settlements.

2. The Committee of Ministers shall be entitled to consider any communication from non-governmental organisations, as well as national institutions for the promotion and protection of human rights, with regard to the execution of the terms of friendly settlements.

3. The Secretariat shall bring, in an appropriate way, any communication received in reference to paragraph 1 or 2 of this Rule, to the attention of the Committee of Ministers.

IV. Resolutions

Rule 16
Interim resolutions

In the course of its supervision of the execution of a judgment or of the terms of a friendly settlement, the Committee of Ministers may adopt interim resolutions, notably in order to provide information on the state of progress of the execution or, where appropriate, to express concern and/or to make suggestions with respect to the execution.

Rule 17
Final resolution

After having established that the High Contracting Party concerned has taken all the necessary measures to abide by the judgment or that the terms of the friendly settlement have been executed, the Committee of Ministers shall adopt a resolution concluding that its functions under Article 46, paragraph 2, or Article 39 paragraph 4, of the Convention have been exercised.

* * *

Appendix

Draft decision

“The Committee of Ministers,

1. adopts the appended Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, which repeal and replace the existing Rules;

2. decides, bearing in mind its wish that these Rules be applicable with immediate effect to the extent that they do not depend on the entry into force of Protocol No. 14 to the European Convention on Human Rights, that these Rules take effect as from the date of their adoption, as necessary by applying them mutatis mutandis to the existing provisions of the Convention, with the exception of Rules 10 and 11.”

* * *

Appendix IV

Practical suggestions from the CDDH to the Ministers’ Deputies
to address situations of slow or negligent execution of judgments
of the European Court of Human Rights

Introduction

1. In October 2005, the Ministers’ Deputies asked the CDDH to “examine the practical application of Article 46, paragraph 2 of the Convention in different situations of slow or negligent execution of judgments of the European Court of Human Rights and present practical suggestions in order to address such situations, taking into account existing practice”.28 It is recalled that on 3 June 2004, the Ministers’ Deputies had already, inter alia, asked the CDDH to “consider the appropriate follow-up to the Committee of Ministers’ Resolution on judgments revealing an underlying systemic problem”.29

* * *

2. The observations and practical suggestions contained in this document and put forward by the CDDH to address different situations of delay or negligence in the execution of judgments of the Court are based on the Committee of Ministers’ practice as well as on various proposals and observations emerging, in particular, from the Oslo Seminar (18 October 2004) or submitted by some member States, the CDDH, the Venice Commission or the Secretariat in a number of documents since the Rome Ministerial Conference, which launched, in 2000, the present efforts to guarantee the long term effectiveness of the Convention system. The practical suggestions are also based on the requirements contained in the guidelines for working methods of the Committee of Ministers, as defined in April 2004, and on the restatement of their practice as contained in document CM(2003)37 Revised 6, 27 September 2004.

3. Bearing in mind the difficulties national authorities may encounter in ensuring rapid execution, the CDDH concentrated its efforts on the identification of possible causes of slow and negligent execution of judgments. It therefore put emphasis on the full implementation of the guidelines for working methods and different practices and measures capable of improving the initial execution phase, i.e. the rapid preparation of good action plans, and ensuring a maximum of transparency notably by making information on action plans rapidly available to the members of the Committee of Ministers and to the public at large in a global database. Such a database should also contain other execution information of relevance for the Committee of Ministers’ execution supervision.

4. The following suggestions aim at providing responses to situations of delay (II), but also, and principally, to avoid such situations, where possible (I), notably through information sharing (III).

I. Prevention of delays

Rapid identification of cases requiring general measures

5. The CDDH observed that the prevention of negligent or delayed execution depends to a great extent on the rapid identification of cases requiring general measures because of the nature of the problem underlying the violation established and the scope of the necessary remedial measures. If the efforts to guarantee the long term effectiveness of the Convention system are to bear fruit it is of special importance that all situations revealing systemic problems are correctly identified.

Advance notification of cases to be examined

6. The CDDH underlined the importance of providing the delegations with detailed information on the cases presented for supervision of execution well in advance of the Human Rights meetings. A time limit of 6 weeks before meetings was suggested. Knowing as soon as possible which judgments will be examined at DH meetings and what information the Secretariat already possesses, allows the executing State to rapidly gather any other useful information to explain to the delegations where it stands with regard to the execution of the judgments that appear on the agenda of the meeting. The link between this information requirement and the setting up of a global data base was noted.

Vademecum

7. Another practical measure identified by the CDDH was the elaboration of a Vademecum for the execution of the judgments of the European Court of Human Rights. This Vademecum should have to be drafted in a clear pedagogical way so as to address all the professional sectors concerned, and, in particular, national authorities, representatives of non-governmental organisations as well as national institutions for the promotion and protection of human rights. The Vademecum should reproduce the Deputies’ guidelines for working methods concerning the supervision of the execution of judgments and should provide practical guidance, including examples. It would be very useful if the Vademecum was easily available in the language(s) of the country, in paper and/or electronic form. It would appear important that the Committee of Ministers and competent national authorities widely provide information of the existence of this Vademecum.

Effective handling of the execution process at national level

8. The CDDH considered that it would be useful to prepare a draft instrument on various ways and means to handle efficiently the execution process at national level. Such a text could draw on existing good practice and offer practical guidance to member States in this area.

Action plans

9. In accordance with the guidelines for working methods an action plan should be presented to the Committee of Ministers as soon as possible, at the latest within 6 months after the relevant judgment has become final, unless the Committee of Ministers decides otherwise. The Committee of Ministers should carefully examine the reasonableness of action plans.

10. The CDDH noted that the executing State should consider establishing, in appropriate cases, a national task force between relevant ministries and authorities to prepare the action plan and to ensure its sustained implementation.

11. The CDDH noted that, while the elaboration of an action plan remains the responsibility of the executing State, the Committee of Ministers could facilitate the preparation of such plans:

- This could be done by giving clear guidance, in the Vademecum mentioned in paragraph 7 above, as to their structure and content.

- The drafting of action plans capable of effectively addressing the problem at the basis of the violation established could also be facilitated by easy access to the experience of other states confronted with similar problems. Such information could be available on the internet in a global database with information on all measures taken by states in response to violations established by the Court and also in the form of more topical surveys (e.g. with examples of measures adopted by states in order to provide effective remedies for unreasonably long proceedings).

12. In order to effectively assist in alleviating the case-load of the Court, the CDDH noted that it currently appeared important that action plans should, wherever appropriate, in line with Committee of Ministers’ Recommendation (2004)6, also provide for the setting up of effective domestic remedies to take care of “clone” and “repetitive” cases. This could, when the case reveals a systemic problem raising particular valuation issues, consist in the setting up of national claims commissions.

13. It was noted that the Committee of Ministers might consider it appropriate to supervise that action plans are presented without delay by having the cases concerned on the agenda of each human rights meeting until such plans have been submitted. Such supervision could be made more efficient if further measures were adopted to facilitate delegations’ preparation for meetings (earlier issuing of annotated agendas and better information on outstanding issues – for example by means of the global database referred to above).

14. The Committee of Ministers should resume examination of the case at the appropriate time in view of the action plan.

15. The executing State should submit any information relevant to the implementation of the action plan to the Committee of Ministers as soon as possible.

16. The CDDH finally noted that if a state found, when elaborating the action plan, that special technical assistance (such as advice on legislative expertise or professional training) would be required to bring the execution work to a satisfactory conclusion, the Council of Europe offered a number of structures capable of providing such assistance. The CDDH considered that the Committee of Ministers should inform the State concerned of those structures.

A global database

17. The CDDH also highlighted the urgent need for a global database with relevant and up to date information on the execution situation as it would facilitate efficient execution – it would e.g. help delegations and the Secretariat to prepare cases for meetings and prepare responses to problems arising in respect of the execution of judgments concerning other countries. It could also help to disseminate information to the applicant and other interested bodies, both at the European level, such as the Parliamentary Assembly and the Human Rights Commissioner, and at domestic level (parliamentary committees, government departments, courts, ombudsmen etc…). The CDDH thus emphasised the need to implement in the near future the creation of a database already decided upon in the framework of the guidelines for working methods. Experts noted that, in the French proposal, there were very useful elements that could form the basis for further consideration (see annex).

Reinforcing the Department for the Execution of Judgments

18. Finally, the CDDH considered it essential that the Department for the Execution of Judgments be reinforced.

II. Responses in case of delay

19. If the necessary action plan is not presented within the 6 month time limit foreseen in the guidelines for working methods (or any other date accepted by the Committee of Ministers),30 or if the plan is not adequately implemented within the time frame foreseen in the plan, the CDDH considered that the Committee of Ministers should as soon as possible adopt adequate responses.

20. In order to ensure a maximum transparency in such cases, the Committee of Ministers should consider developing the practice of Committee of Ministers’ press releases, press statements and Chairman’s declarations. Moreover, interim resolutions should be made more easily available on the internet and also be adequately highlighted.

21. A coherent application of available responses was considered of great importance, including use of interim resolutions, reasoned decisions, press releases or other publicity.

III. Information sharing

22. The CDDH noted that adequate responses ought also to be developed on a more general level and include information sharing with other relevant Council of Europe bodies.

Yearly tripartite meeting

23. Such information sharing could include the organisation of a tripartite meeting between the Chairman of the Committee of Ministers, the Chairman of the Legal Affairs and Human Rights Committee of the Parliamentary Assembly and the Human Rights Commissioner shortly after the publication of the annual report foreseen in the new Rules31 (and identifying trends and problems encountered in the course of the year).

Other contacts

24. It was also noted that the Committee of Ministers could consider inviting, in appropriate cases, the Human Rights Commissioner or the Parliamentary Assembly to address the Committee of Ministers.

Yearly meeting for Government Agents

25. The organisation of a yearly meeting for Government Agents to examine the specific issue of the execution of judgments was also considered very useful. The CDDH suggested that, on this occasion, participants could take note of and exchange views with the Secretariat on the Committee of Ministers annual report on execution elaborated in accordance with the proposed draft Rule 5 (see footnote 31 above), as well as two documents to be regularly up-dated by the Secretariat, dealing respectively with (i) individual and general measures taken within the framework of the execution of judgments (ii) issues raised by the payment of just satisfaction. The CDDH considered that, while exchanging views with the Government Agents, the Secretariat should highlight those aspects that might be of an interest to all member states.

Appendix

French proposal:
Establishing an on-line execution database

States find it hard to gain a comprehensive overview of the execution of a sentence. The information received and requested by the Secretariat is compiled nowhere except by the individual departments in each state. In a country such as France which has an extensive civil service, delays and lack of response to Secretariat requests can occur because of the time spent in the many inter-departmental contacts that have to be made in the specialist ministries and the work involved in compiling scant information on the situation of cases, often duplicated from one department to another.

An on-line database would considerably reduce the time spent on inter-departmental contacts and repetitive and partial summaries. Access to the database would enable all “execution” correspondents (Secretariat, departments of the Government Agents before the Court, departments in the specialist ministries responsible for execution) to seek the information at source and find in a matter of minutes the answer to questions such as: “What am I being asked to do?” and “By when?”

The execution of Court judgments is far from always being carried out by the same departments in the specialist ministries. Moreover, monitoring the execution always involves an instruction sent from the Government Agent to the departments concerned, which, because they do not have the resources, do not automatically keep a watch on the case-law of the Court and what has been happening there. The people we deal with therefore need clear information and instructions.

France suggests that a database on the execution of judgments be set up, along the lines of HUDOC. Confidentiality would be ensured by requiring password-protected access. Cases could be called up by name of applicant, application number, keywords or article of the Convention, as in HUDOC. The data base would include, case by case, the information set out in the table on the following page, which could be supplemented by suggestions from other countries. The table should be read in columns.

All information contained in this database which states did not deem confidential could be accessible to applicants, the general public and civil society.

This would reduce considerably the number of cases to be examined in the Committee of Ministers human rights meetings. Practice has shown that in the vast majority of meetings, the departments concerned find that, because of a lack of information and sufficient notice, they do not have enough time to reply and examination of the case is deferred to a subsequent meeting.

France is well aware of the investment costs in setting up such a database, but the gains in productivity that would result would mean that these costs would be quickly offset.

Payment

Individual measures

General measures

Committee of Ministers Human Rights meetings (all, including future meetings )

Capital
- Date due:
Amount due:

- Date paid:
Amount paid:

- Secretariat requests:

Subject / date

- Secretariat requests:
Subject / date

- Action plan requested: Yes / No
Content / date

Examination
Number of meeting / Dates / subject matter / recommendations or statements

Resolutions
Dates / subject matter

Interest for delay
-Due
Yes / No
Date due:
Amount due:

- Date paid:
Amount paid

- Replies from country concerned:

Subject matter / date / form

- Replies from country concerned:

- Action plan supplied:
Content / date / form

Replies from country concerned

Date / form / content

Friendly settlement Yes / No
- Date due:
Amount due:
-Date paid:
Amount paid:

- Secretariat requests still outstanding
-Deadline for reply
(regular updating required)

- Secretariat requests still outstanding
-Deadline for reply
(regular updating required)

Requests for information or replies to recommendations still outstanding.
-Deadline for reply
(regular updating required)

Paying Ministry

Ministries and departments concerned

Ministries and departments concerned

Ministries and departments concerned

* * *

Appendix V

Overview of the information submitted on the five Recommendations
(as of 5 April 2006)

STATE

REC(2000)2

REC(2002)13

REC(2004)4

REC(2004)5

REC(2004)6

ALBANIA

+

+

+

+

+

ANDORRA

+

+

 

+

 

ARMENIA

+

+

+

+

+

AUSTRIA

+

+

+

+

+

AZERBAIJAN

 

+

+

+

 

BELGIUM

+

+

+

+

+

BOSNIA AND HERZEGOVINA

+

+

+

+

+

BULGARIA

+

+

+

+

+

CROATIA

+

+

+

+

+

CYPRUS

+

+

+

+

+

CZECH REPUBLIC

+

+

+

+

+

DENMARK

+

+

+

+

+

ESTONIA

+

+

+

+

+

FINLAND

+

+

+

+

+

FRANCE

+

+

+

+

+

GEORGIA

+

+

+

+

+

GERMANY

+

+

+

+

+

GREECE

+

+

+

+

+

HUNGARY

+

+

+

+

+

ICELAND

+

+

+

+

+

IRELAND

+

+

+

+

+

ITALY

+

+

+

+

+

LATVIA

+

+

+

+

+

LIECHTENSTEIN

+

+

+

+

+

LITHUANIA

+

+

+

+

+

LUXEMBOURG

+

+

+

+

+

MALTA

+

+

 

+

+

MOLDOVA

+

+

+

+

+

MONACO

+

+

+

+

+

NETHERLANDS

+

+

+

+

+

NORWAY

+

+

+

+

+

POLAND

+

+

+

+

+

PORTUGAL

+

+

+

+

+

ROMANIA

+

+

+

+

+

RUSSIAN FEDERATION

+

+

+

+

+

SAN MARINO

+

+

+

+

+

SERBIA AND MONTENEGRO

+

+

+

+

+

SLOVAK REPUBLIC

+

+

+

+

+

SLOVENIA

+

+

+

+

+

SPAIN

+

+

+

+

+

SWEDEN

+

+

+

+

+

SWITZERLAND

+

+

+

+

+

STATE

REC(2000)2

REC(2002)13

REC(2004)4

REC(2004)5

REC(2004)6

"The former Yugoslav Republic of Macedonia"

+

+

+

+

+

TURKEY

+

+

+

+

+

UKRAINE

+

+

+

+

+

UNITED KINGDOM

+

+

+

+

+

T
O
T
A
L

+

45

46

44

46

44

States not having sent information

1

0

2

0

2

Note 1 This document has been classified restricted at the date of issue. It was declassified at the 116th Session of the Committee of Ministers (19 May 2006).
Note 2 The Declaration appears in Appendix I to this report.
Note 3 The ad hoc terms of reference, as revised at the 940th meeting of the Deputies (11-12 October 2005) are reproduced in Appendix II to this report.
Note 4 Committee of Ministers’ Recommendations:
Note - Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights;
Note - Rec(2002)13 on the publication and dissemination in the member States of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights;
Note - Rec(2004)4 on the European Convention on Human Rights in university education and professional training;
Note - Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights;
Note - Rec(2004)6 on the improvement of domestic remedies.
Note 5 Decision No. CM/864/03062004 adopted by the Ministers’ Deputies, 886th meeting (3 June 2004).
Note 6 Decision No. CM/Del/Dec(2005)938/4.1, adopted by the Ministers’ Deputies, 938th meeting (21 September 2005).
Note 7 Decision No. CM/940/11102005, adopted by the Ministers’ Deputies, 940th meeting (12 October 2005).
Note 8 Working Group A held 4 meetings (9-11 February 2005, 23-25 May 2005, 7 November 2005 and 1-3 February 2006). It was composed of experts from Austria (Chair), France, Italy, the Netherlands, Turkey and the United Kingdom. In addition, experts from Finland, Norway, the Russian Federation and Sweden also participated in all or some of the meetings.
Note 9 Working Group B held 5 meetings (21-23 September 2005, 7 November 2005, 14-16 December 2005,
Note 25-27 January 2006 and 22-24 February 2006). The Group was composed of experts from Cyprus, the Czech Republic (Chair), Germany, Poland, Switzerland and the United Kingdom. In addition, experts from France, Latvia, the Netherlands, Spain and Sweden also participated in all or some of the meetings. On 17 January 2006, the Rapporteur Group on Human Rights (GR-H) decided to appoint five coordinators to closely follow the work of the CDDH with regard to the implementation of the five recommendations with a view to make proposals concerning the political dimension to the technical elements which would be provided by the CDDH. The five coordinators participated in all subsequent relevant meetings (of Group B on 25-27 January 2006 and 22-24 February 2006, and of the DH-PR on 7-10 March 2006).
Note 10 See document CM(2005)115 Addendum.
Note 11 See document CM(2005)186 Addendum 1.
Note 12 The current Rules were approved by the Committee of Ministers on 10 January 2001 at the 736th meeting of the Ministers' Deputies.
Note 13 Proposals submitted by the AIRE Centre, Amnesty International and the EHRAC:
Note - “Recommendations to facilitate inclusion of civil society in ensuring the implementation of judgments of the European court of Human Rights and debates on the future of the Court”, AI Index: IOR 61/010/2005, 20 May 2005;
Note - “Further Recommendations relating to the implementation of judgments of the European Court of Human Rights”; AI Index: IOR 61/021/2005;
Note - Letter of January 2006 concerning proposed amendments to draft amended Rule related to the Committee of Ministers’ discretion to consider relevant submissions by civil society when exercising its powers under Articles 39 and 46 of the European Convention on Human Rights, as amended by Protocol No. 14 to the Convention.
Note 14 See footnote 13.
Note 15 See paragraph 15 above.
Note 16 See proposed draft Rule 5, as it appears in Appendix III.
Note 17 It is recalled that in September 2005, it was observed that about half the Member States had not sent up-dated information on the implementation of the five recommendations. The Vice-Chair of the CDDH and the Chair of the DH-PR had addressed a joint letter to members of the CDDH and the DH-PR encouraging them to submit the requisite information. This letter was followed by two Secretariat circular letters identifying items for which it was crucial to provide information.
Note 18 These documents can be obtained from Directorate General II – Human Rights.
Note 19 The information submitted by member states on the implementation of this recommendation demonstrates that re-examination has not always been interpreted in the same way. A definition of “re-examination” has thus been inserted in the follow-up sheet of Recommendation Rec(2000)2 for sake of clarity.
Note 20 European Programme of Human Rights Education for Legal Professionals (HELP Programme).
Note 21 Implemented by the Human Rights Co-operation and Awareness Division within Directorate General II – Human Rights – of the Council of Europe.
Note 22 Venice Commission report on “National remedies in respect of excessive length of proceedings” (Study no. 316/ 2004, document CDL(2005)092 Engl. only restricted, 8 December 2005) as well as the reports submitted at the Seminar organised by the Czech Constitutional Court, in collaboration with the Venice Commission, on the limits of constitutional review of ordinary court’s decisions in constitutional complain proceedings (14-15 November 2005, Brno, documents CDLJU(2005)059-61 and 67-68 Engl. only).
Note 23 CEPEJ report on « Analyse des délais judiciaires dans les Etats membres du Conseil de l'Europe à partir de la jurisprudence » (not yet final).
Note 24 At their 938th meeting on 21 September 2005, the Ministers’ Deputies further specified this aspect of the terms of reference by adopting the following Decision (Progress Report – Reform of the European Convention on Human Rights – Declaration of the Committee of Ministers “Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels” - CM(2005)115 Addendum, CM/Notes/936/4.4, GR-H(2005)CB6):
Note “The Deputies,
Note 1. took note of the Progress Report – Reform of the European Convention on Human Rights – Declaration of the Committee of Ministers “Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels”, as it appears in document (CM(2005)115 Addendum);
Note 2. in the light of the relevant elements of the progress report, invited the Rapporteur Group on Human Rights (GR-H) to proceed rapidly to an exchange of views on the issue of the implementation of the Recommendations and other measures mentioned in the Declaration and to report back to them;
Note 3. urged all member states which have not yet done so to submit to the CDDH, without further delay, the information requested with regard to implementation of the Recommendations mentioned in the Declaration;
Note 4. invited the CDDH to make every effort in its future reports on this issue to provide clear and concise information on the state of implementation of the Recommendations in each member state including any lacunae and requested the CDDH to submit its next progress report before the end of 2005.”
Note 25 For instance, the striking out of an unjustified criminal conviction from the criminal records, the granting of a residence permit or the re-opening of impugned domestic proceedings (see on this latter point Recommendation (2000)2 of the Committee of Ministers to the member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted on 19 January 2000 at the 694th meeting of the Ministers’ Deputies).
Note 26 For instance, legislative or regulatory amendments, changes of case-law or administrative practice or publication of the Court’s judgment in the language of the respondent State and its dissemination to the authorities concerned.
Note 27 In particular where the terms of the friendly settlement include undertakings which, by their nature, cannot be fulfilled within a short time span, such as the adoption of new legislation.
Note 28 See Appendix I of this report.
Note 29 See letter b) of the terms of reference assigned to the CDDH on 3 June 2005 by the Ministers’ Deputies (Decision No. CM/864/03062004 adopted by the Ministers’ Deputies at their 886th meeting).
Note 30 See paragraphs 37-44 of document CM(2003)37 revised containing the information document prepared by DG II on “Responses in the event of slow or negligent execution or non-execution of judgments of the European Court of Human Rights”.
Note 31 Proposed draft Rule 5 provides: “ The Committee of Ministers shall adopt an annual report on its activities under Article 46, paragraphs 2 to 5, and Article 39, paragraph 4, of the Convention, which shall be made public and transmitted to the Court and to the Secretary General, the Parliamentary Assembly and the Commissioner for Human Rights of the Council of Europe.”


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