1100th DH meeting – 2 December 2010

Item e.

Measures to improve the execution of the judgments of the European Court of Human Rights
Proposals for the implementation of the Interlaken Declaration and Action Plan

GT-SUIVI.Interlaken(2010)CB5, CM/Inf/DH(2010)37, CM/Inf/DH(2010)45 final, DH-DD(2010)603

Decisions

The Deputies,

1. recalling the decision adopted by the Committee of Ministers at its 120th Session approving the Interlaken Declaration and Action Plan, and instructing the Deputies to intensify their efforts to increase the efficiency and the transparency of the supervision of execution and to complete this work by December 2010;

2. approved the proposals contained in document CM/Inf/DH(2010)45 as amended in the paragraphs appended, and recalled document CM/Inf/DH(2010)37;

3. decided to implement the new, twin-track supervision system with effect from 1 January 2011 taking into account the transitional provisions set out below;

4. decided that, as from that date, all cases will be placed on the agenda of each DH meeting of the Deputies until the supervision of their execution is closed, unless the Committee were to decide otherwise in the light of the development of the execution process;

5. decided that action plans and action reports, together with relevant information provided by applicants, non-governmental organisations and national human rights institutions under rules 9 and 15 of the Rules for the supervision of execution judgments and of the terms of friendly settlements will be promptly made public (taking into account Rule 9§ 3 of the Rules of supervision) and put on line except where a motivated request for confidentiality is made at the time of submitting the information;

6. decided that all new cases transmitted for supervision after 1 January 2011 will be examined under the new system;

7. decided that all cases pending before the Committee of Ministers for supervision of execution on 1st January 2011 will be subject to transitional arrangements and instructed the Execution Department to provide, to the extent possible in time for their DH meeting in March 2011 and in any event, at the latest for their DH meeting of September 2011, proposals for their classification following bilateral consultations with the states concerned;

8. decided that any cases not yet included in one or other of the supervision tracks1 will be placed on a specific list and until their classification, will be dealt with under the standard procedure;

9. decided that the practical modalities of supervision of the execution of European Court’s judgments and decisions under the twin-track approach would be evaluated specifically at the DH December meeting in 2011;

10. decided to declassify document CM/Inf/DH(2010)45, as amended.

APPENDIX

Proposed amendments to document CM/Inf/DH(2010)45

9. As several delegations have rightly pointed out, serious violations are a priori covered by the indicators already suggested, particularly those concerning cases “requiring urgent individual measures” or “raising complex problems”. It has also been emphasised that the fact that any case may be examined under the enhanced procedure by decision of the Committee of Ministers at the initiative of a member state or the Secretariat2 represents in itself a sufficient guarantee to cover cases of “serious violations” in the light of the circumstances of the case and the Court’s considerations in the judgment at issue. It thus seems unnecessary to introduce such an additional indicator.

10. It is therefore proposed that the indicators for cases to be examined under the enhanced supervision procedure be as follows:

- judgments requiring urgent individual measures;

- pilot judgments;

- judgments disclosing major structural and/or complex problems as identified by the Court and/or the Committee of Ministers;

- interstate cases.

It should also be explicitly indicated in the context of those indicators that in addition, the Committee of Ministers may decide to examine any case under the enhanced procedure following an initiative of a member state or the Secretariat. The request may be made at any stage of the supervision procedure. Both member states and the Secretariat should be mindful of the selected indicators when requesting a case be examined under the enhanced procedure.3

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II. Clarifications regarding the role of the Committee of Ministers under the standard supervision procedure

12. Some delegations wondered about the extent of the Committee of Ministers’ role in the standard supervision procedure in the light of the wording of paragraphs 7 of document CM/Inf(2010)28 rev4 and 7 and 12 of document CM/Inf/DH(2010)37.5

12 bis. It is recalled from the outset that the whole new system, including the standard supervision procedure, is based on the fundamental principle that it is for respondent states to ensure the effective execution of the Court’s judgments and decisions6, i.e., the principle of subsidiarity of their execution.

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18. Chairman’s proposal (DH-DD(2010)607)7

i) Option 1: initial proposal made in paragraphs 27 and 28 of the document discussed in September slightly amended, namely:

    27. If a member state still does not present an action plan or report within three months after the Secretariat’s reminder, and does not provide any explanation for this state of affairs to the Committee of Ministers, the Secretariat will propose that the case be examined under the enhanced procedure.

    28. Consequently, it will be proposed to the Committee that a decision is adopted at the first “Human Rights” meeting following the expiry of the three months period inviting the member state concerned to provide an action plan/report without any further delay:

Sample decision (no action plan or report has been presented)

In the case of A v. [member state]:

The Deputies,

1. noted with regret that no action plan or report has been presented in this case nor valid explanation for such situation despite the reminder sent to the authorities on [specify the date]

2. invited the authorities of the respondent State to present an action plan or report without any further delay and decided to transfer this case for its examination under the enhanced procedure

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New paragraph to clarify the status of technical cooperation as presented in CM/Inf/DH(2010)37 (see DH-DD(2010)606), paras refer to CM/Inf/DH(2010)37)

C. Practical modalities of the enhanced procedure


20. The supervision under this procedure does not mean that each and every case needs to be systematically debated in order for the CM to be able to follow the execution process. Under the enhanced procedure without debate, the Committee of Ministers could thus also exercise its supervision through decisions adopted without debate at the “Human Rights” meetings. These decisions would aim at demonstrating, whenever necessary, the developments in the execution process (for example, stocktaking of the measures already adopted and identification of the outstanding issues). An example of such a decision which could be adopted without debate is as follows:

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21. In parallel, in the context of the enhanced supervision procedure, the Secretariat will make all efforts to respond positively to requests from respondent States for a targeted cooperation, notably in the form of:

    - assistance in the preparation and/or implementation of action plans;
    - expertise assistance as regards the type of measures envisaged;
    - bilateral/multilateral cooperation programmes (e.g. seminars, round-tables) in case of complex and substantive issues.

It is underlined that such cooperation activities which aim at facilitating the execution process are the sole competence of the respondent State with the support of the Secretariat. They are not part of the Committee of Ministers’ responsibilities in the context of its supervision of the execution of the Court’s judgments under Article 46, paragraph 2 of the Convention.

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31. As regards these cases, bilateral discussions have already started with a view to identifying the most appropriate form of supervision. [NOTE remaining paragraph unchanged]

1 Including, on this occasion, decisions as well as judgments becoming final if appropriate until 31 December 2010, as set out in document CM/Inf/DH(2010)49.

2 See paragraph 9 of document CM/Inf/DH(2010)37.

3 The addition of this last sentence is based on a proposal by the United Kingdom which received wide support at the 1092nd meeting of the Committee of Ministers.

4 “7. Simplified supervision would entail only formal involvement of the Committee of Ministers at the end of the execution phase in order to endorse the measures adopted by the state […]“.

5 « 7. As requested by the Deputies, the practical modalities of such a twin-track supervisory system are set out below. The proposed arrangements are based on the principle that all cases are technically considered to be on the agenda of every « Human Rights » meeting until their closure. The arrangements also reflect the need for prioritised and ranked supervision by the Committee of Ministers. ».

« 12. In order for the standard procedure to operate effectively, member states are expected to present an action plan or an action report as soon as possible and in any event not later than six months after a judgment becomes final. The Committee’s involvement in the standard procedure will be limited to verifying whether or not action plans or action reports have been presented by member states. »

This question was also submitted by the Secretariat of the Committee of Ministers to the Jurisconsult of the Directorate of Legal Advice and International Public Law, who replied in a memorandum dated 7 October 2010 that "Thus, the large margin of discretion given to the CM […] leads, necessarily, to the conclusion that the proposal on how to deal with standard supervision cases would not be incompatible with the current CM Execution Rules."

6 See paragraph 2 of the decision adopted by the Committee of Ministers on 15 September 2010 :

« The Deputies […] 2. recalling the responsibility which lies on states parties to the European Convention on Human Rights regarding the effective execution of these judgments. »

7 It should be noted that when formulating this proposal, the Chairman emphasised that this option, like all other provisions of the reform would be adopted subject to review at the latest in December 2011.



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