CM/Inf/DH(2009)29rev … … 3 June 20091
Action Plans – Action Reports
Definitions and objectives
Memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights.
In its practical proposals for the supervision of the execution of judgments of the Court in situations of slow execution, the CDDH draws the attention of the Committee to the fact that, in order to avoid situations of slowness, it is essential that the respondent State indicates its position, as quickly as possible after a judgment has become final, on what it considers to be necessary to execute the judgment in question. It is equally essential that the respondent State indicates when it considers that all the necessary measures have already been taken or when it considers that no measures are necessary. This requirement arises from the Rules of the Committee of Ministers and has been underlined on many occasions in previous years, notably in Recommendation R(2008)2, in which the Committee recommends that member states “ensure the existence of appropriate mechanisms for effective dialogue and transmission of relevant information” and “rapidly prepare, where appropriate, Action Plans on the measures envisaged to execute judgments, if possible including an indicative timetable”2
The concept of “Action Plan” introduced in the Committee of Ministers’ new working methods in 2004 to standardise and specify the information awaited from the respondent States was therefore a key concept. However the content and status of “Action Plans” continued to raise questions. The CDDH endeavoured to clarify and provide answers. The CDDH also proposes that the Committee supplement the concept of “Action Plan” by that of “Action Report”.
The Committee is therefore invited to consider the definitions suggested by the CDDH to clarify the concepts of “Action Plan”/“Action Report” (I), as well as the positive effects expected from an approach to execution based on these concepts (II).
I. Definition of Action Plan / Action Report
Action Plan: a Plan setting out the measures the respondent State intends to take to implement a judgment, including an indicative timetable. The Plan shall, if possible, set out all measures necessary to implement the judgment. Alternatively, where it is not possible to determine all measures immediately, the Plan shall set out the steps to be taken to determine the measures required, including an indicative timetable for such steps. Plans shall be updated when necessary.
Comment: as has often been noted, the Action Plans are not binding legal instruments but non-binding expressions of the intentions of national authorities for executing particular judgments.
Action Report: information provided by the respondent State setting out the measures taken to implement the judgment, and/ or its explanation of why no further measures are necessary.
Action Reports and Action Plans are not exclusive but can be combined where necessary. Indeed, in certain cases, at the first examination of the case the State can already present in an Action Report some measures adopted, whilst also presenting the additional measures envisaged in an Action Plan. Throughout the execution process, the respondent State will be able to present the progress made in execution in the form of Action Reports. Where appropriate, a revised Action Plan may be submitted.
II. Positive effects expected
1. Such an approach would allow more rapid agreement to be reached on what is required for the execution of a judgment
In order to improve the effectiveness of supervision, it is first of all important to define as quickly as possible the measures required to execute a judgment. Action Plans and Action Reports submitted during the initial phase of the execution process may be used as the basis for a common consideration by the Committee and the respondent State of the necessary measures, from the beginning of the execution process. The Action Plans will also make it possible to indicate rapidly the possible difficulties faced by states and to seek possible ways to overcome them.
Two aspects are, in this context, of high importance:
i) The analysis by the respondent State of the situation at national level is crucial to enable an assessment of the measures required on the basis of all relevant elements.
It is of crucial importance that respondent States provide information to the Committee of Ministers via the Department for the Execution of judgments, where possible within six months of the final judgment, on the actions already taken and/ or foreseen to execute a judgment.
This information should be sufficient to enable the Committee to assess whether the judgment has been satisfactorily executed or whether appropriate steps are foreseen for its execution, with a timetable for taking those steps. If within six months it is not possible to determine the measures required, an Action Plan should be submitted presenting the steps envisaged to determine them3. In some cases, all measures necessary for the execution of a judgment may already have been taken, in which case an “Action Report” alone would be appropriate.
ii) Any obstacle or difference of views concerning the measures to be taken to execute a judgment should be settled rapidly
Close and permanent cooperation between the Department for the Execution of judgments, acting on behalf of the Committee, and the Permanent representation/authorities of the respondent State enables rapid resolution of any difficulties relating to the determination of measures to be taken. The common objective is to allow the respondent State to present within the deadlines appropriate Action Plans/Action Reports. The Execution Department can offer the authorities a wide range of assistance in order to help them prepare Action Plans/Action Reports (see document GT-DH-PR A (2008)002, §§ 15 to 18).
If, nevertheless, some doubts or disagreements remain, it will be possible – on the basis of the Action Plans/Action Reports submitted by the authorities – to bring them rapidly before the Committee for a solution.
2. Such an approach would enable the CM both to react more effectively in cases of lengthy execution, and to concentrate on the most important and complex issues
i) Action Plans/Action Reports will indeed help the Committee to rapidly identify possible situations of slowness (see §§ 21-23 of document GT-DH-PR A (2008)001).
In some cases, the initial six-months deadline may be too short to finalise an Action Plan for adoption of the required measures. The complexity of certain issues may, indeed, require more detailed consultation and/or reflection in order to determine the most appropriate measures required to solve the problem identified in the Court’s judgment. If in such situations, the respondent State submits to the Committee an Action Plan on the steps to be taken to determine the measures required, i.e. which indicates action taken or envisaged in order to reach a conclusion, including clear deadlines4, the Committee will be able to decide on an appropriate postponement of the examination of the case.
In the same way, when the Deputies supervise the implementation of the measures chosen, the Action Plans/Action Reports will enable them to make sure that the execution progresses satisfactorily.
It is necessary at this point to underline the fact that the deadlines in an Action Plan remain purely indicative: if they were to be exceeded but the situation could be objectively justified, the respondent State would be free to propose new deadlines to replace the initial ones.
By contrast, if the deadlines were to be persistently exceeded, without explanation by the respondent State, this could alert the Committee on the existence of a possible problem of slowness that it would have to address in an appropriate way.
Such an approach would be particularly useful for the supervision of execution of judgments revealing the existence of a systemic problem (notably pilot judgments or Article 41 judgments on just satisfaction).
ii) Action Plans/Action Reports may enable the Committee to proceed to an optimal prioritarisation in the supervision of the constantly growing number of cases under its control.
Rule 45 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements sets clear priorities for the Committee’s mandate in this field. However, with the growing number of cases pending before the Committee, the identification and the proper follow-up of these priorities may become more difficult.
The submission of clear and detailed Action Plans/Action Reports should enable the Committee to lighten its follow-up of cases that do not raise any particular problem (notably in enabling less frequent examination) and to concentrate itself on the most complex cases or problems.
Appendixes 1 and 2 – Flowcharts on the execution process6
Appendix 3 - Document GT-DH-PR (2008)001 (Objective indicators of slowness in execution)
Appendix 4 - Document GT-DH-PR (2008)002 (Inventory of tools allowing the Committee to react, if necessary, to situations of slowness in execution)
1 This document has been classified restricted at the date of issue. It was declassified at the 1059th meeting of the Ministers’ Deputies (June 2009) (see CM/Del/Dec(2009)1059 Decisions adopted at the meeting).
2 Recommendation CM/Rec(2008)2 of the Committee of Ministers to member states on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights, adopted on 6 February 2008.
3 For example: public consultation, consultation of interested departments within government, ad hoc working group, inter-ministerial reflection group, provision of advice from the Execution Department, high-level meetings, round tables etc
4 For example : deadline for an interdepartmental government working group to submit its Report
5 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. Rule 4.2: 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.
6 Prepared in cooperation with the Delegation of the United Kingdom