CM/Inf/DH(2011)29 30 May 20111
Measures to improve the supervision of the execution of the judgments and decisions of the European Court of Human Rights. Summary of current reflections on implementation of the new working methods
Memorandum prepared by the Department for the execution of judgments and decisions of the European Court of Human Rights
I. Introduction 2
II. Improvement of working methods 2
III. Transparency and visibility of the Committee of Ministers’ supervision 5
1. At the Deputies’ last Human Rights meeting (8-10 March 2011), the Deputies held a detailed exchange of views on implementation of the new working methods. They instructed the Secretariat to draft a working document summarising the reflections and proposals put forward for their continuing work.2
2. The discussions confirmed the consensus among the Deputies to reform the supervision arrangements as adopted in December 2010. The discussions focused primarily on possible options for improving and adjusting working methods in the light of the initial experiences of their implementation, and on the visibility of the supervision process.
II. Improvement of working methods
3. Several delegations stressed the need to improve still further the presentation and distribution of the documentation required for the preparation of the meetings. Most importantly, steps should be taken to avoid a large number of addenda to the initial documents which led to confusion.
4. The draft order of business comprising cases proposed for decision without debate and the cases proposed with debate was regarded as a useful, practical, comprehensible and user-friendly document. In its current form, it could be sufficient for delegations and capitals to make appropriate preparations for the meetings. It has been suggested that before the meeting (and following the expiry of the agreed 10 calendar days before which delegations are to submit proposed amendments to the Chairman’s proposed order of business), the Secretariat should circulate a consolidated draft order of business, highlighting the proposed changes to make it more easily readable and to enable delegations to prepare for the meeting appropriately.
5. It was pointed out in this context that there was no need to circulate a draft agenda in addition to the draft order of business, insofar as the Deputies had decided at their 1100th meeting (December 2010) that all cases are included on the agenda of each of their CMDH meetings until the supervision of their execution is closed. A permanent agenda was available to delegations, accessible on the website of the Department for the Execution of Judgments, entitled “pending cases”, which had a search engine (cf the demonstration given to the Deputies at the March 2011 meeting). Moreover, upon request, any delegation could obtain the extracts they desired from the permanent agenda. The draft order of business could refer to the permanent agenda and provide a direct link to it.
6. The question of the presentation and distribution in advance of the draft decisions was discussed at length.3 With regard to the cases proposed for decision without debate, there was broad consensus that the draft decisions should continue to be circulated in advance, so that the Deputies could adopt a position with full knowledge of the facts. With regard to the cases proposed for debate, a large number of delegations were also in favour of the preparation of draft decisions in advance. However, some felt that it was not a good idea to have draft decisions for such cases in advance, so as not to prejudge the debate and the decision which the Committee of Ministers might adopt. One delegation suggested that for the cases proposed for debate, flexibility should be the watchword, but that in any event, there needed to be a clear identification of the main legal problems raised by the case and an indication of the elements on which the Committee of Ministers was invited to take a position in the course of the discussion.
7. It was agreed that on an experimental basis for the June 2011 DH meeting, there would be no draft decisions circulated in advance for the cases proposed for debate, but that the Secretariat would prepare a number of points for consideration, enabling the Committee of Ministers to focus on the questions to be debated. The Deputies said that they would like to be able to review the matter in the light of this experiment.
8. In the course of the discussions, emphasis was also placed on the need to have the documentation required for the preparation of the meetings in good time. It was observed that, for the March meeting, the documentation had been distributed well within the stipulated timeframe, and that it was also important for delegations to make an effort to provide information in good time. The point was also made that it was essential that delegations comply with the timeframe given for submitting proposed amendments to the order of business.
9. In the draft order of business distributed for the June 2011 “Human Rights” meeting, the Secretariat had made every effort to take into account the above comments by the Deputies.
10. The Deputies are invited to indicate whether they are happy with the changes made to the documentation or whether, in the light of their preparations for the June 2011 meeting, they would like further adjustments. If they would, it would be helpful if the Deputies could be specific in what they would like to see.
11. It is also important for the Deputies to decide which documents they would like to have for the decisions to be taken in the cases proposed with debate, namely:4
i) only points for discussion in the debate
ii) draft decisions in advance;
iii) in principle, draft decisions in advance except for certain types of case.
In the latter case, is it necessary to define the type of case for which the Deputies did not wish to have drafts provided in advance, or should a flexible case-by-case approach be adopted? Furthermore, what type of points for discussion would they like to have to prepare for their debate: similar to those proposed on an experimental basis for the June 2011 meeting, or something else?
12. Some delegations made proposals concerning the drawing up of the order of business,5 (i.e. the cases/questions selected for a given meeting) and internal transparency regarding the reasons why, out of the vast number of pending cases, particular cases were selected for detailed examination rather than others (see also part III below).
13. The following suggestions were made in the course of the discussion:
- Involvement of the Bureau of the Committee of Ministers in drawing up the draft order of business;
- explanations regarding the selection of cases in the draft order of business of a meeting – both those not selected for decision with detailed examination and those that had been selected.
14. With regard to the proposal for the involvement of the Bureau, the Secretariat recalls that it is for the Committee to decide whether to follow this up or continue the long-established practice whereby the order of business is drawn up under the authority of the Chairmanship (applicable to both the DH meetings and the Committee’s other meetings) with the possibility for any interested delegation to put forward its own proposals before the formal adoption of the order of business by the Committee itself. One delegation pointed out in this connection that the Committee had up to now always shown some reluctance vis-à-vis the various proposals to involve the Committee’s sub-groups in supervision of the execution of judgments.
15. Regarding the proposal to provide further explanations as to the proposed content of the order of business, it was pointed out that the information relevant to all the pending cases was available on the website (cf paragraph 5 above), which should normally offer sufficient explanation as to why a debate, a decision without debate or a transfer from one supervision arrangement to another was or was not proposed. Furthermore, all delegations which so wished could contact the Secretariat at any time for further information.
16. It was also pointed out that any delegation could, within the timeframe indicated in the order of business (i.e. 10 calendar days before a given meeting) request the inclusion of a case on the order of business (see below).
17. Lastly, it was pointed out that the present format of the draft order of business, like the proposed cases/questions to be considered, is based on the two memoranda (CM/Inf/DH(2010)37 and CM/Inf/DH(2010)45 final) approved by the Committee of Ministers when deciding to reform of its working methods.
18. The Deputies are invited to indicate whether they wish to explore further avenues for the preparation of proposals for the order of business, other than the existing practice based on the draft drawn up by the Chairman, supplemented, where appropriate, by proposals from delegations.6
19. The Deputies are also invited to indicate whether they are satisfied with the existing information possibilities described above or whether they would like further discussion on the need for additional information on the cases/questions not proposed for consideration at a given meeting. If so, it would be helpful if Deputies could put forward specific proposals.
20. In the course of the discussions, it was suggested that, in the light of the new working methods, thought should be given to the best way of differentiating, in all the lists provided regarding the payment of just satisfaction, between the cases where the payment deadline had been kept to and those where payment was still outstanding.
21. In order for the lists regarding just satisfaction published on the Execution Department website to be more readily understandable, in late May the Secretariat made the following changes:
- in the list of cases under supervision of the payment of just satisfaction, a column has been added showing the date limit for payment;
- the list of cases in which payment has been made and for which the applicant party has two months in which to submit a challenge has been divided into two, in order to distinguish between cases in which payment has been made within the specified timeframe and those where payment was made outside that timeframe.
22. The Deputies are invited to indicate whether they are satisfied with the proposed changes.
III. Transparency and visibility of the Committee of Ministers supervision
23. Several delegations stressed the need to improve the transparency and visibility of the supervision process, in accordance with the Interlaken action plan and the decision adopted by the Committee of Ministers at its 120th session (May 2010). It was pointed out that it was essential to improve the means by which information on the work of the Committee of Ministers in this field was disseminated. In this context, the following ideas were put forward:
- improving the flow of information between the Committee of Ministers in its Human Rights formation and in its ordinary formation, in the form of a report after a Human Rights meeting;
- providing statements by the Chairmanship at the end of the term of office, which would include stocktaking of the activities undertaken under the outgoing Chairmanship and the questions to be dealt with by the next Chairmanship.
24. With regard to the proposal for a report on the Committee of Ministers’ supervision activity to be presented at regular meetings, attention was drawn to the fact that when meeting in its “Human Rights” formation, it is still the same body (i.e. the Committee of Ministers) and not a working or subordinate group of the Committee. In effect, it was pointed out that this would lead to a situation in which the Committee of Ministers reported to itself. Moreover, it was observed that such a proposed report would require thought to be given to the practical arrangements of how it would be put into practice: who would be responsible for preparing the report? Who would assume responsibility for its substance and who would present it to the Committee of Ministers? What would its purpose be? Furthermore, it was stressed that such a report could lead to the reopening of discussions on items already decided on by the Committee of Ministers in its specific “Human Rights” formation.
25. The Deputies are invited, in the light of the above, to indicate whether or not they wish to continue to explore this avenue.
26. The proposal for a statement by the Chairmanship at the end of its term of office, summarising developments in cases, was viewed as an interesting one. However, it was pointed out that this would raise questions warranting more detailed consideration. In particular, the discussion had not specified which chairmanship was meant: the chairmanship of the Committee of Ministers in its regular formation or in its “Human Rights” formation? It would also be necessary to clarify the purpose of the statement. Would it be one intended to increase the external visibility of the Committee of Ministers’ supervisory action and to be disseminated in the media? What should such a declaration contain and how was it to be drafted?
27. The Deputies are also invited to reflect further on this point.
28. Certain delegations raised the question of the content of the press releases issued following the Human Rights meetings. The discussions revealed some divergence in points of views. Some delegations felt that it was important to increase the visibility and results of the execution supervision process. It was suggested that the press releases announcing the meetings should refer to the most important items to be dealt with and that those issued following the meetings should mention the most noteworthy results. Other delegations felt that the current efforts made were sufficient. Nonetheless, delegations stressed the specific role of the Committee of Ministers in supervising the execution of judgments and therefore the need to observe restraint in communications with the press and the public. Attention was drawn to the significant contribution to the visibility of the Committee’s action made by the Committee of Ministers’ annual report.
29. The Deputies are invited to indicate (cf DH-DD(2011)163) whether they would like the Secretariat to draft a discussion document on this question.
1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.
2 This summary document has been drafted using the transcript of the audio recordings of the debates.
3 Cf. Summary by the Chairman under item 2.b, document CM/Del/Act/DH(2011)1108 final of 14 April 2011 - Confidential
4 Cf. document DH-DD(2011)163 of 8 March 2011 “Reform of the Deputies' working methods under Article 46, paragraph 2, of the European Convention on Human Rights”
1. Following the initial debate at the Deputies' 1108th Meeting (DH) (8-10 March 2011) a certain number of questions have been identified to which a clear reply is required with a view to preparing the next meeting, in particular:
2. Some delegations expressed disagreement with the principle of issuing draft decisions concerning cases proposed for debate. Others considered that this principle was a procedural improvement. The Secretariat invites the Deputies to provide guidance on this question in the form of an unambiguous decision.
5 It would appear that the debate on this point gave rise to some confusion between the agenda and the order of business. The agenda of the Committee of Ministers’ DH meetings has always been decided by the Committee of Ministers itself, either by applying the rules for the supervision of execution (for example, the rule whereby each new judgment must be placed on the agenda without delay) or as a result of decisions taken in meetings on individual cases which, with the occasional exception, stipulate when the Committee of Ministers will resume consideration of the case. The agenda of the DH meetings has therefore always been drawn up by the Committee of Ministers itself in its full composition. The order of business, however, has been prepared by the Chairman (as is the case for other CM meetings), under the control of the delegations which have always had the possibility to make proposals before its formal adoption by the Committee. It will be recalled (cf. paragraph 5 above) that in December 2010, the Committee decided that all cases would be included on the agenda of each of its DH meetings until the supervision of their execution was closed.
6 Clearly, the idea of involving the Bureau of the Committee of Ministers would require thought to be given to a series of related issues, in particular the practical feasibility of this suggestion (for example, the timescale for the production of documents for the Bureau, and consequently for the DH meetings, the timing of the Bureau and DH meetings, additional workload for the respective secretariats and the members of the Bureau).