Ministers’ Deputies
Information documents

CM/Inf/DH(2006)9 revised 3 24 November 20061
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Working methods for supervision of the execution of the European Court of Human Rights’ judgments
Follow-up to the implementation of the working methods since their introduction in April 20042 and proposals for further improvement

Prepared by the Department for the Execution of Judgments of the European Court of Human Rights, DGII

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ABSTRACT

This Memorandum attempts to further aid and synthesize Deputies’ discussions and the ongoing reflection by the Secretariat and the Deputies upon the effective implementation of the “ working methods” under Article 46§2.

It takes into consideration in particular the Deputies’ discussions on the working methods that took place at the 976th DH meeting (17/10/2006) and written comments subsequently submitted by Delegations.

The four major thematic chapters of the present document are the following:

I. The conduct of the Committee of Ministers’ Human Rights meetings (new order of business and more selective debates), with special reference to the improvement of Delegations’ capacity to prepare for DH meetings;

II. “Initial phase” of the supervision of execution of new judgments (Secretariat’s “initial phase” letters and “action plans” by states);

III. The Committee of Ministers’ developing practices in cases of slow or negligent execution or non-execution;

IV. Relevant technical and caseload developments, with special reference to the “execution database”.

INTRODUCTORY NOTE

The ongoing efforts of the Deputies, in close co-operation with the Secretariat, to build up a more efficient practice under Article 46§2 are based on - and put into practice - the following major Declarations and decisions:

1. The Committee of Ministers’ Declaration of 12/05/2004 on ensuring the effectiveness of the implementation of the Convention at national and European levels;
2. The Committee of Ministers’ Declaration of 19/05/2006 on sustained action to ensure the effectiveness of the implementation of the Convention at national and European levels;
3. The Deputies’ decisions of 14/06/2006, adopted in the light of the above Committee of Ministers’ Declaration of 19/05/2006.

By the last-mentioned decisions the Deputies agreed, inter alia, the following:

(a) “within the framework of their Human Rights meetings, to intensify their action with regard to taking specific and effective measures to improve and accelerate the execution of the Court's judgments, inter alia, by carrying forward the practical proposals already made by the Steering Committee for Human Rights (CDDH) [see herein Appendix II] , including those referred to in paragraphs X. c) and d) of the Declaration [of 19/05/2006]3”;

(b) “to pursue their work in the context of their Human Rights meetings, on proposals for the supervision practice in cases of slow or negligent execution of Court judgments”.

The present Memorandum, since its version of May 2006 (CM/Inf/DH(2006)9 revised, 17/05/2006), has systematically taken into account and carried forward the “practical suggestions” by CDDH to address situations of slow or negligent execution of the Court’s judgments (see Appendix II). A comparative reading shows that almost all of these suggestions by CDDH have been tackled in a detailed manner and constitute already “acquis” of the Deputies’ practice under Article 46§2.

The only suggestions which have not been touched upon are those contained in §18 (“Reinforcing the Department for the Execution of Judgments”), §23 (“Yearly tripartite meeting”) and §25 (“Yearly meeting for Government Agents”). Also this document has not dealt with the “annual report” provided for by the Committee of Ministers’ Rule 5. Follow-up to the latter three issues depends on decisions to be adopted by the Deputies.

Finally, it is to be noted that as from October 2006, the Execution Department has been in constant, direct contact with the CDDH Secretariat with a view to contributing to the latter’s work undertaken under the Committee of Ministers’ Declaration of 19/05/2006. The issues covered by this close cooperation are the following:
(a) Development of the execution database;
(b) The Committee of Ministers’ practice concerning execution of pilot judgments;
(c) Good and bad practices of domestic mechanisms for execution;
(d) Committee of Ministers’ practice in cases of slow or negligent execution;
(e) Drafting a Vademecum on the execution of the Court’s judgments.

I. THE CONDUCT OF THE COMMITTEE OF MINISTERS’ HUMAN RIGHTS MEETINGS
(NEW ORDER OF BUSINESS AND MORE SELECTIVE DEBATES)

I.1 RESULTS OF THE WORKING METHODS

The Deputies have been able to give priority to those cases where their collective involvement may facilitate, or may even be necessary to ensure, the proper execution of the judgments.

As a consequence, the Deputies have been able to have more substantial, qualitative and productive debates on pilot and other important cases.
The Committee, as a whole, has been allowed to use its time and resources in a more effective way.

I. 2 MAIN OUTSTANDING ISSUES

1. Improving Delegations’ capacity to prepare for meetings earlier and to access information on cases in general as well as on cases to be dealt with at the Human Rights meetings;

2. Delays in providing information or in adoption of measures by States still occur, meaning that many cases still have to be debated solely for these reasons.

I.3 IMPROVING DELEGATIONS’ CAPACITY TO PREPARE FOR DH MEETINGS

1.a Improvements concerning the new order of business
The Execution Department and the Secretariat of the Committee of Ministers make efforts to ensure that the order of business is issued at least one week before the DH meeting. The last-minute adjustments to the order in which the cases will be taken at the meeting, upon approval by the Chair, are communicated to Delegations, as appropriate, by a separate note from the Chair.
As from the 970th DH meeting (July 2006) in the order of business with the cases proposed for debate notes are appended to each case or group of cases. This has further facilitated the Deputies’ preparation and work.
Also, as regards in particular the DH Annotated Agendas, in the interests of economy and efficiency, printed versions are no longer distributed to the Delegations by the Secretariat of the Committee of Ministers. The former are informed by e-mail about the on-line availability of these documents as soon as they are finalised. This practice could also be applied to the issue of the order of business.

1.b Issue by the Secretariat of “preliminary lists of items” by country
States’ preparation for the DH meetings has been enhanced by the issue by the Secretariat of country-based “preliminary lists of items” (available in word or excel form on the internet), as from the 960th DH meeting (28-29 March 2006). They are also available on the Committee’s website.

It is to be noted that at every DH meeting, preliminary lists of cases (classified by sections) are issued for the following DH meeting. As a consequence, Delegations are informed of a number of cases to be examined approximately two months before each DH meeting. Further technical developments relating to CMIS (see also below section IV) will allow an earlier issue of preliminary lists by country.

1.c Inclusion of draft decisions in Annotated Agendas
As from the 970th DH meeting (July 2006), individualised, draft decisions are appended to each of the case notes of the Annotated Agendas (reprinted also in the order of business). The inclusion of more informative draft decisions for each item on the agenda has further facilitated both access to up-to-date information on execution status and case management (see also below section IV.A). This practice has also improved information-sharing with other government departments and the public in general once the public information version is issued.
If it does not appear possible at the time of issuing of the annotated agenda to present the decision to be adopted, the Secretariat proposes a standard formula: “A draft decision will be prepared subsequently on the basis of the information provided during the meeting.”

The above developments carry forward the CDDH practical suggestion contained in §6 (“advance notification of cases to be examined”, Appendix II)

2. A summary debate in cases of delay in submission of information or in adoption of measures
Cases involving delays in submission of information or in adoption of measures may be grouped in the order of business, for a summary debate, and be the object of decisions pointing to the absence of information and requesting the competent national authorities rapidly to furnish the information required4. Such a “grouping” occurred in the order of business of the 976th Human Rights meeting (October 2006).

The above development carries forward the CDDH practical suggestion contained in §19 (“responses in case of delay”, Appendix II); see also below section III

I. 4 “INNOVATIVE APPROACHES” TO THE HUMAN RIGHTS MEETINGS (THEMATIC/COUNTRY-BASED SESSIONS)

By letter of 16 March 2006 Norway’s Delegation proposed that,

      “in order to increase the understanding of the issues dealt with in the DH meetings…[the Deputies] on some occasions [devote] parts of the DH meetings to specific themes or to the situation in a specific country, and [invite] resource persons (e.g. HR Commissioner) to attend the meeting and provide their analysis of the situation. This could be used to focus on a specific type of judgments or execution measure across countries or to focus on systemic problems in individual countries to better understand the background for the individual cases”.

The above proposal was supported by certain Delegations at the 960th DH meeting (28/03/2006). Its development and application depend on further discussion by the Deputies.

It is to be noted that the thematic approach (without the participation of “resource persons”) has already been applied by the Committee at its DH meetings (see e.g. earlier discussions on the issues of seizure in the context of payment of just satisfaction and of international child abduction).

The above development carries forward the CDDH practical suggestion contained in §22 (“information sharing with other relevant Council of Europe bodies”) and §24 (“other contacts [of the Committee of Ministers]”, Appendix II)

II. “INITIAL PHASE” OF THE SUPERVISION OF EXECUTION OF NEW JUDGMENTS
(SECRETARIAT’S “INITIAL PHASE” LETTERS AND “ACTION PLANS” BY STATES)

II.1 RESULTS OF THE WORKING METHODS

Quicker and clearer identification of the issues raised by the judgments, especially of the measures required;
Enhanced bilateral cooperation between the Secretariat and Delegations to this effect;
Easier transmission of information to the capitals;
Better use of the Human Rights meetings’ time.

II.2 OUTSTANDING ISSUES

1. Identifying objective criteria for the need of dispatch by the Secretariat of “initial phase” letters to assist in the preparation of “action plans” by states in deserving cases;
2. The number of new cases in which an “action plan” is presented by states is limited and precise indications of a time frame for the adoption of announced measures are rare. Also, the number of cases in which no response is received to the “initial phase” letters after six months gives rise to concern;
3. Occasionally confusion occurs about the time-frames for the beginning of the “initial phase” (date of the final judgment or date of the Secretariat’s letter), and consequently for the presentation of the “action plan”;
4. Clarification of status of “action plans” submitted by States.

II.3 MEASURES FOR FURTHER IMPROVEMENT

1. The following objective criteria could be used by states and the Secretariat in evaluating what kind of cases deserve “action plans” and thus “initial phase” letters:

    · the applicant’s situation warrants special measures to be adopted by a State;

    · the case appears to disclose a potential systemic problem which is anticipated to give rise to similar cases in the future;

    · the case indicates clearly the need for adoption by a State of legislative, or other extensive or complex general, measures for avoiding similar violations.

2. Stronger co-operation between the Delegations, the competent national authorities and the Secretariat

The “initial phase” letters are sent to Delegations, if needed, in both hard-copy and electronic format with a view to quick transmission to the national authorities. The Secretariat should like to further promote the electronic means of communication with all Delegations. Experience to date shows that, where there is good co-operation between Delegations, competent national authorities and the Secretariat, this facilitates the submission of effective and realistic “action plans”.

The “initial phase” letters constitute invitations to States to provide an “action plan” for execution of judgments, containing, at the same time, initial proposals to that effect. It is to be stressed that the Secretariat stands ready to assist this process by providing rapidly its observations to Delegations and by remaining available for any later consultation which would prove to be appropriate, including, if necessary, with the competent national authorities.

It is to be noted that the issue of effective domestic remedies should be considered by States in the context of their action plans, in accordance with the Committee’s Recommendation Rec(2004)6 on the improvement of domestic remedies.

Finally it is noted that the execution process is highly dependent on the structure and efficiency of state authorities at national level. Thus, Delegations are invited to reflect, in co-operation with their capitals, upon the possibility of further developing existing national mechanisms for a more effective handling of the execution process at domestic level and for promoting transparency and publicity of the Committee of Ministers’ work under Article 46§2 in their countries (see also below section III.3). In this context, it is noted that this issue is currently under study by the CDDH (see above introductory note).

3. Clarification of the time frames for “initial phase” procedure and for submission of the “action plan” by states

The time-frame for the main stages of the “initial phase” procedure would be as follows:

Start of the “initial phase” procedure: Date of final judgment

Secretariat’s “initial phase” letter: After transmission of the final judgment to the Secretariat.

Submission of the “action plan” to the Committee (via the Execution Department): 6 months after the final judgment5

Presentation of the “action plan” to the Committee for discussion: First or second meeting after the expiry of the above 6 months

Shorter time frames may be established on a case-by-case basis, taking into account particular circumstances of the case, e.g. urgent individual measures; systemic problems. It is also noted that the Execution Department has initiated a practice of sending to states “reminder letters” in cases where “action plans” are not received in due time (see also Committee of Ministers’ Rule 4, Appendix III).

4. Clarification of status of “action plans” submitted by states

For the time being, it appears clear that the “action plans” when initially submitted constitute unilateral declarations of intent on the part of the respondent state, in the context of their “obligation of result” remedying violations established in the Court’s judgments. The plan nevertheless assists the Committee in ensuring that the execution process is under way within appropriate time limits.

In accordance with the general principle of subsidiarity, the State remains free to change the plan, but such changes should then preferably be made public in the same form as the original plan. The Committee will also usually receive reasons for changes at this stage. Eventually, timely presentation of “action plans” and compliance with the ones presented and accepted by the Committee may be an important element in assessing such questions as whether or not there is delay or negligence (see also below section III.1).

In the light of the ongoing efforts to speed up, and thus also to streamline, execution, the possibility of issuing a Vademecum regarding existing practices (both on questions of substance and on questions of procedure) in the Committee regarding execution and execution supervision is envisaged. As from October 2006, the CDDH Secretariat has been in touch with the Execution Department with a view to discussing the structure and publication of this Vademecum.

The above developments carry forward the CDDH practical suggestions contained in §5 (“Rapid identification of cases requiring general measures”), §7 (“Vademecum”), §8 (“effective handling of the execution process at national level”) and §§9-16 (“Action plans”), Appendix II

III. PROPOSALS FOR SETTING THE EXECUTION FRAMEWORK IN A “MORE ROBUST”6 AND SIMPLIFIED MANNER IN CASES OF SLOW OR NEGLIGENT EXECUTION OR NON-EXECUTION7

III. 1 Examination at longer intervals of cases where implementation of “action plan” objectively necessitates a long time

The Rules for the application of Article 46 of the Convention provide for a regular postponement of 6 months for the examination of cases in which the question of general measures is not yet solved after the “initial phase”. It is recalled that, according to the working methods,

“[i]f all the general measures required have not been taken and it is likely that they will take yet some time, the Committee should start examining the feasibility of setting the framework of the execution in a more robust manner by adopting an execution framework, in an appropriate form, permitting longer-term planning. The execution framework should normally provide for the resumption of the Deputies’ examination when the measures awaited are likely to be adopted. It is understood that the Respondent State will continue to keep the Secretariat informed of developments so that the case may be put on the agenda if the premises on which the execution framework was based change in important respects”8.

So far, the Committee has examined cases at longer (more than 6 months’) intervals only on the basis of Interim Resolutions. However, it is noted that Rule 7§2 allows the Committee to do so also on the basis of decisions (see text in Appendix III).

III. 2 Decisions in lieu of Interim Resolutions in certain situations

One concern has been that postponement through the adoption of informative Interim Resolutions could imply a drastic increase of such Resolutions, to the detriment of their authority and visibility. In cases where adoption of the necessary measures objectively necessitates a long time, Interim Resolutions could possibly be replaced by more instructive decisions in order to prevent this.

In addition, the Committee may in certain circumstances wish to express special satisfaction or concern, without the situation warranting a formal Interim Resolution - see e.g. decisions regarding Metropolitan Church of Bessarabia and others v Moldova, 955th DH meeting (February 2006); Dorigo v Italy, 960th DH meeting (March 2006). The systematic, subsequent issue of press releases on such decisions appears important.

III.3 Development of more detailed Interim Resolutions in cases of significant delays

Note In cases where the adoption of necessary measures has been significantly delayed, however, the execution process may be enhanced by a more regular adoption of Interim Resolutions by the Committee, stressing the need for reform and, where appropriate, indicating in more detail the specific measures required.

Delegations are invited to examine the possibility of systematic translation into national languages and wide publication of Interim, and possibly also Final, Resolutions concerning, at least, their own countries, in order to further promote the transparency and effectiveness of the Committee of Ministers’ work under Article 46§2. A number of Delegations have already accepted this proposal. Special attention is to be paid to Resolutions concerning systemic problems in national legal orders or cases where the violations occurred have caused “grave consequences for the injured party”, in accordance with the new Committee of Ministers’ Rule 4 (see Appendix III). The above-mentioned Vademecum could provide examples of state practice and guidelines regarding the translation and publication of Human Rights Resolutions of the Committee of Ministers.

The above development carries forward the CDDH practical suggestions contained in §§19-21 (“Responses in cases of delay”, Appendix II).

IV. OTHER ISSUES RELATING TO THE IMPLEMENTATION OF THE WORKING METHODS

IV.A. ACCESS TO INFORMATION AND CREATION OF A USER-FRIENDLY, ON-LINE EXECUTION DATABASE

IV.A.1 Internet and CMIS9 database developments in 2004-2005

The development of the CMIS database and the additional resources obtained through the UK voluntary contribution in 2002 have been instrumental in the development of the website of the Execution Department10. This site started operating in December 2004. In 2005 it was technically improved and enriched with information covering all major aspects of the Committee’s supervision of the execution of judgments. Of particular interest are regular announcements of the most important topics and cases to be examined at the Human Rights meetings and the press releases published (notably on Interim Resolutions and other important decisions). At this very moment, efforts are under way to put on this site the public information contained in the Annotated Agenda together with decisions adopted and to sort this information by country to make it easily accessible for interested delegations and the public. This will, hopefully, further facilitate the work of the Deputies and enhance the publicity and transparency of the Committee’s activities under Article 46§2 of the Convention.

Migration by the Execution Department and the Secretariat of the Committee of Ministers to the CMIS database has also improved case-management, and in particular information-sharing within the Secretariat and the Registry (occasionally also between the Secretariat and Delegations, when, for example, the latter are provided by the former with information on their pending cases).

The current CMIS database, even if the last improvements requested have not as yet been delivered, facilitates the production of draft Final Resolutions in less complex (“clone”) cases. It is to be noted that in 2005, 350 cases were closed by a Final Resolution, as opposed to 163 in 2004. Further development of CMIS under way will make possible the simplification of the format of Final Resolutions and the increase of their production.

IV.A.2 Creation of a user-friendly, on-line execution database

Note The Secretariat, in co-operation with the Court IT Division, is working on a draft “judgment execution model” that may be used for the creation of a user-friendly, CMIS-based on-line execution database, accessible to the Delegations and possibly their capitals. At the 976th DH meeting (October 2006) a presentation of the relevant IT developments was made by the Execution Department (Ms Corinne Amat). Further developments will be reported to the Deputies at their 982nd DH meeting (5-6 December 2006).

As an interim measure, the Execution Department has placed on its website lists of pending cases regarding all States11. This facilitates further the Deputies’ (and the public’s) access to updated information on all cases or groups of cases pending before the Committee for supervision of execution. The aforementioned execution database developments under way should allow automating the production of these lists.

IV.A.3 Outstanding issues

Completion of the on-line execution database.

IV.A.4 Measures for further improvement

1. The Secretariat continues its work with the Court IT Division on the development of the execution database.

2. The Execution Department is further developing its website in order to provide information, with the help of CMIS, to States and to general public in a user-friendly manner that notably facilitates “search” (see also above sections I.3.1 and IV.A.2).

3. Further developments will depend to a great extent on the availability of external programme funding (“voluntary contributions”).

The above development carries forward the CDDH practical suggestions contained in §17 and in “Annex – French proposal: establishing an on-line execution database” (Appendix II)

IV.B. DEVELOPMENT OF CASELOAD

Whether the working methods, as adopted so far, will achieve the aim of improving the efficiency of the Committee’s execution supervision is closely linked with the development of the Committee’s caseload. In this context, it is worth recalling that in 2005 an average of 3,375 cases were examined per Committee of Ministers’ meeting of Human Rights as opposed to 2,755 cases in 2004. If Italian length-of-proceedings cases are excluded, the figures in 2005 are 1,556 as opposed to 1,321 in 2004. At the end of 2005, 4,322 cases (3,969 at the end of 2004) were pending before the Committee, an increase of 22% in two years. In 2005, 786 new cases were examined by the Committee as opposed to 541 in 2004.

It is also noted that the European Court has envisaged a continuous increase of its number of judgments from 1,000 judgments in 2005 to 1,200 in 2006, 1,400 in 2007 and 1,500 in 2008 and thereafter.12 In fact, the Court delivered 1,106 judgments in 2005, 1,030 of them to be treated by the Committee for the supervision of execution.13

From 1 January - 10 November 2006 the Court delivered 1,302 new judgments while 1,383 new final judgments have been on the CM DH agendas of the six DH meetings of the Committee of Ministers in 2006. In addition, in view of the ongoing reform of the Convention mechanism, the proportion of precedent cases requiring complex, and time-consuming, execution measures is likely to grow.

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Appendix I

Background information on the history of the Deputies’ working methods under Article 46§2 (ex-Article 54) of the Convention

I. Introductory note

The “working methods” developed so far by the Deputies do not constitute, stricto sensu, binding rules, as is the case with the Committee’s Rules adopted on 10 May 2006. The former have been agreed upon by the Deputies as guidelines for facilitating and improving their work under Article 46§2 of the Convention.

The present efforts to ensure the efficiency of the Deputies’ supervision of the execution of the Court’s judgments form part of the long cycle of reforms engaged by the Deputies in order to allow efficient execution control notwithstanding the constant increase in the number and complexity of violations brought before the Committee for such control. Issues directly related to the working methods are currently under examination also by the Council of Europe’s Steering Committee for Human Rights (CDDH)14.

II. 1989-2000

Following the steady increase of execution items on the Deputies’ agenda, the latter decided in 1989 to devote one A level meeting each month to such items – the first so-called Human Rights meetings. In 1999 the distinction between A and B-level meetings disappeared.

In order to allow a better overview of the cases, the Deputies decided in 1994 to group the cases according to the nature of the issue to be examined (cases for resolution; new cases; payment controls; general and individual measures; special problems). In 1995 it was decided, in the face of increasing complaints about late payment, to increase the pressure to pay just satisfaction in time by creating a special list of all cases unpaid more than 6 months after the payment deadline and to require States to explain any such delays at the meetings.

The pace of one Human Rights meeting every month soon became unmanageable and, in 1996, it was decided to hold a meeting every 2 months, but to extend meeting time (mostly 2, sometimes 3 days). This rhythm has been maintained since then. In order to allow the Secretariat to handle the large amount of decisions to be prepared after each meeting, it was agreed they would be adopted by a subsequent written procedure (usually some 2 weeks after the meeting).

The new reforms proved efficient for some time, but the steady increase in cases and the practice of making extensive, narrative agenda notes (restating the positions of all major interventions made) in each case led to an excessive amount of documentation, making it difficult for delegations to access relevant information and to obtain a rapid overview of the general execution situation.

III. 2000-2004

A further reform in 2000 responded to these concerns by drastically shortening the presentation of cases and grouping all notes in one document – the present annotated agenda. The increasing time needed by the Chair to prepare and handle the meetings also led to an ad hoc arrangement, kept so far, whereby the chairmanship of the Human Rights meetings was assumed by the Vice-Chair (i.e. the incoming Chair) of the Committee of Ministers.

Following a general call for more transparency in the Council’s activities and specific proposals on the subject from the CDDH, the Deputies also increased public access to relevant execution information (see notably Rule 5 of the 2001 Rules adopted and the publication of the annotated agenda). In order to increase information to the public and to put relevant State authorities under pressure to adopt the necessary reforms, successive Chairs encouraged the development of the practice of interim resolutions.

The continuing increase in the number and complexity of cases calling for complex execution measures and the lengthening of the time needed for execution has led to repeated calls, for improved execution control, notably in respect of judgments revealing systemic problems or important individual measures. This relates, inter alia, to the need for better use of meeting time, better publicity, easier access for delegations to relevant execution information and the development of further responses to different execution problems, notably negligence or delay in execution and non-execution of judgments. All this has led to further major reforms in 2004.

IV. 2004 to date

The major reforms of the Deputies’ working methods since April 200415 have been the following:

(a) The establishment of a new order of business that has led the Deputies to more selective debates;

(b) The drawing up of “action plans” by States in specific “hard” cases;

(c) Other measures aimed at a more robust and simplified procedure of supervision;

(d) Planning and development of an on-line “execution database” accessible to Delegations and possibly their capitals.

V. Conclusion

It has been widely acknowledged by the Deputies that the continuous reflection upon and development of the working methods, especially since April 2004, have significantly enhanced the former’s performance.

Further developments expected to materialize within 2006, in particular the creation of the on-line execution database, will provide an even stronger impetus to the Deputies’ work.

Appendix II

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
(Excerpt from document CDDH(2006)8, 7 April 200616)

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”. 17 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”.18

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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 new 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 new 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’ new 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 new 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 new 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 new working methods (or any other date accepted by the Committee of Ministers),19 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 Rules20 (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.

Annex

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 III

Rules of the Committee of Ministers for the supervision
of the execution of judgments and of the terms of friendly settlements (excerpts)

(Adopted by the Committee of Ministers on 10 May 2006
at the 964th meeting of the Ministers’ Deputies)

I. General Provisions

[…]

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.

[…]

II. Supervision of the execution of judgments

[…]

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.

Note 1 This document has been classified restricted at the date of issue. It was declassified at the 982nd (DH) meeting of the Ministers’ Deputies (5-6 December 2006)..
Note It is an updated version of document CM/Inf/DH(2006)9 revised 2, 11 October 2006. Changes introduced into the present document are underlined.
Note 2 , CM/Inf/DH(2006)9, 1 February 2006; CM/Inf/DH(2006)9 revised, 17 May 2006.

3 “[The Committee]…X. INSTRUCTS the Ministers’ Deputies:...
c. to initiate annual tripartite meetings between representatives of the Committee of Ministers, the Parliamentary Assembly and the Commissioner for Human Rights to promote stronger interaction with regard to the execution of judgments;
d. to carry forward other practical proposals for the supervision of execution of the Court’s judgments, including the creation of a global database on such execution;…” In this context it is noted that under current Committee of Ministers’ Rule 5 relating to the supervision of execution, “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.”

4 A number of exceptions appear, however, warranted:
- detailed debates could be foreseen in those cases where important new information, meriting discussion under the general principles adopted by the Deputies, has become available in time for the meeting;
- detailed debates could also be foreseen in cases where the delay in providing information becomes significant, or where the delay in furnishing information also signals a delay in the taking of the measures required;
- Delegations accumulating frequent delays in the provision of information might be invited to provide information on the problems at the basis of the delays and the remedial action proposed.

Note 5 See also Appendix II, §2.4 of doc CM/Inf(2004)8 final, 7 April 2004 : “…During the initial phase, which in normal circumstances should not last more than 6 months, the case will be put on the Deputies agenda, but only for information, not for examination …”
Note 6 See CM/Inf(2004)8 final, 7 April 2004, Appendix II, §2.7 in fine.
Note 7 See also Responses in the event of slow or negligent execution or non-execution of judgments of the ECtHR, Doc. CM(2003)37 revised 6, 27/09/2004.
Note 8 Ibid.
Note 9 Court Management Information System.
Note 10 http://www.coe.int/T/E/Human_Rights/execution/.

11 See “Simplified global database with all pending cases” at: www.coe.int/t/E/Human_Rights/Execution/02_Documents/PPcasesExecution.asp#TopOfPage.

12 See Memorandum of the Secretary General to the Ministers’ Deputies of 12 May 2005.

Note 13 See European Court of Human Rights, Survey of Activities 2005, p. 31.
Note 14 See Appendix II.
Note 15 See CM documents cited above n. 2.
Note 16 CDDH, 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 ».

17 See Appendix I of this report.

Note 18 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 19 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”.

20 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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