Enforcement of judgments of the European Court of Human Rights

Adam Bodnar

Antalya, 30 August 2010

Significance of the enforcement of ECHR judgments

Obligation on the contracting states to enforce judgments

ECHR as a „constitutional court” for Europe Changes in law (preventing further violations) Heavy losses for the state budget caused by the

adverse judgments Dramatic increase in number of applications and

judgments Promoting high standards of human rights’

protection and good practices of public institutions

Diplomatic responsibility – international image of the state

Obligations under the Convention Principle of subsidiarity Principle of primarity (Jonas Christofferson) Article 1 of the Convention - general obligation Article 13 of the Convention – domestic remedy Article 46 of the Convention – legal effect of

judgments Judgments binding only for state parties subject

to proceedings Supervision of the Committee of Ministers Power to seek clarification

Concept of „positive obligations” Interlaken Declaration – underlining importance of

state parties obligations under the Convention

„Own” judgments vs. judgments concerning other states Legally binding – only judgments concerning a

given state party to the Convention (Article 46)

Value of judgments issued with respect to third country? Concept of „res interpretata” (interpretation

value) Similarity of a problem Finality and level of authority of a judgment

(chamber judgments, sections of the court, Grand Chamber)

Enforcement of „third country” judgment prevents future violations

General obligation to comply with Convention (as interpreted by the ECtHR)

Case-law of the ECtHR - standards

Individual and general enforcement of the ECtHR judgment Individual

enforcement (inter partes effect) Restitutio in integrum

e.g. releasing from psychiatric hospital

return of the property Payment of

compensation Re-examination of the

case e.g. in criminal matters

Re-opening of proceedings

General enforcement (erga omnes effect) Legislative changes

(source of violation – wrongful provisions)

Practical changes Reform of institutions

(e.g. prisons) Trainings Dissemination of

judgments State has a freedom

as to the choice of means – they must be effective

Restitutio in integrum Ordering certain action may take place in the

course of proceedings (e.g. under Rule 39) Sometimes state may voluntarily change the

situation of a victim (e.g. provide adequate conditions to prisoner)

The ECtHR may order certain action in a judgment the respondent State must secure the applicant's release at the

earliest possible date (Assanidze v. Georgia) State must secure at the earliest possible date adequate

conditions of the applicant's detention in a specialised institution capable of providing him with necessary psychiatric treatment and constant medical supervision (Sławomir Musiał v. Poland)

Typical restitutio in integrum (full reparation) is possible in property cases: Returning historical coins to proper owner (Kopecky v. Slovakia –

but it was impossible to show their location) Returning of the house (e.g. Zwierzyński v. Poland)

Re-examination and re-opening of case Recommendation No. R (2000) 2 of the Committee of Ministers to

member states on the reexamination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (19 January 2000)

1) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and

2) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.

need for a domestic legislative provision allowing for re-examination or re-opening of proceedings

different approach in different countries

Re-examination and re-opening of proceedings – daily practice Re-examination of a case

Wasilewska and Kałucka v. Poland – need to once re-examine a case and to accuse policemen for shooting the suspect

Re-opening of criminal proceedings Gençel v. Turkey - most appropriate form of redress in Article 6

violations Usually specific provisions in the Code of Criminal Proceedings

(or interpretation of general clauses)

Re-opening of civil proceedings Problem of „res judicata”. Many jurisdictions – not allowing for re-opening

of civil proceedings (e.g. France, Austria, Netherlands) Cudak v. Lithuania (Grand Chamber) - “where, as in the instant case, an

individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if he or she so requests, represents in principle an appropriate way of redressing the violation”

Liability of the state for damage (e.g. Podbielski case)

Re-opening of administrative proceedings

Change in law following the ECtHR judgment Recommendation Rec(2004)5 on the verification of the

compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights

Need to change legislation following specific judgment of the ECtHR

Need to create a domestic remedy (e.g. complaint on length of proceedings – Kudła v. Poland judgment)

Change in law may concern even the Constitution (e.g. Incal v. Turkey, Kiss v. Hungary)

Change in law must be effective (e.g. Tysiąc v. Poland)

Responsibility for preparation of draft law and cooperation between organs of state

Verification of new and existing laws as to compliance with the Convention Verification of new and existing laws –

prevention of future violations Special „desks” or offices in governments and

parliaments checking compliance with the ECHR

Role of the Legislative Councils Role of ombudsmen – indication of possible

violations Regular review of existing legislation in the

light of ECHR standards Use of the ECHR standards in the

constitutional review by the Constitutional Court

Coordination of enforcement of ECtHR judgments Need for a special coordination body

Recommendation Rec(2008)2 on efficient domestic capacity for rapid execution of the Court’s judgments

Usually in the Ministry of Foreign Affairs or in the Ministry of Justice

Rank in the government Different tasks:

Coordination and dialogue with different state authorities (necessary authority)

Identification of measures, preparation of action plans Payment of compensations Dissemination of judgments Reporting obligations Ensuring all remedial actions are taken (especially in case of

systemic problems)

Practical measures to enforce ECtHR judgments Changes in practice

E.g. brutality of police – creation of internal mechanism of complaints, trainings for police, raising awareness

E.g. systems of names and surnames – sending circulaire to different administrative agencies how to interpret law

Violation of right to privacy – deletion of information obtained illegally from state archives

Institutional reforms E.g. overcrowding in prisons – need for renovation or

building new prisons, promotion of alternative penalties, introduction of new systems (e.g. electronic bracelets)

E.g. disabled persons in prisons – technical enhancements E.g. length of proceedings in a given court – increasing

number of judges, management reforms

Dissemination of judments Recommendation Rec (2002) 13 on the

publication and dissemination in the member states of the text of the ECHR and of the case-law of the ECtHR

Need to translate all the judgments concerning given state in the local language

Translation of most important „foreign” judgments Preparation of summaries and digests of case-law Dissemination of the text of the Convention Dissemination of judgments to specific state

organs (e.g. courts responsible for a given violation)

Coordination of efforts with other state organs (e.g. schools for police, judiciary, judicial councils, municipal administration)

Trainings on human rights Recommendation Rec(2004)4 on the European

Convention on Human Rights in university education and professional training

Trainings as a way to enforce specific judgments: E.g. Kauczor v. Poland (quasi-pilot judgment) – training

to judges and prosecutors on pre-trial detention standards

Traning to specific professional groups which may violate human rights: E.g. police officers, prison guards, secret services’

officers, soldiers, prosecutors Trainings to professional groups which should

incorporate human rights into their practice: Attorneys, legal advisors, legal draftsmen

Role of state academies, universities and NGOs

Best practices Comprehensive legislative act regulating enforcement of

judgments (Italy, Ukraine) Preparation of the annual report on enforcement of

judgments presented to the Parliament (e.g. Netherlands) Possibility to claim redress from different state agencies for

compensation paid to victim (Italy, France) Publication of summaries of judgment in the official journal

of the state (Ukraine) Existence of detailed procedure on dissemination of

judgments (France) Website of the government agent with detailed information

on state of implementation of judgments (Slovakia) Inter-ministerial team dealing with enforcement of

judgments, including pilot judgments (Poland)

Judicial enforcement of ECtHR judgments Change of interpretation of certain domestic

provisions following the judgment of the ECtHR (indirect effect)

e.g. in cases concerning freedom of speech vs. privacy

Direct reliance on the provisions of the ECtHR – in case domestic provision is missing (direct effect of the ECHR) e.g. Polish Supreme Court decision in Mandugequi

– reliance on Soering v. UK Using the ECtHR case-law in the jurisprudence

of the constitutional courts (source of interpretation of constitutional provisions)

Constitutional dialogue e.g. at resolution of pilot judgments in Broniowski

case and Hutten-Czapska case

Proceedings before the Committee of Ministers Rules of the Committee of Ministers for the

supervision of the execution of judgments and of the terms of friendly settlements (10 May 2006) Special human rights meetings, control intervals Interim resolutions and final resolutions Crisis vs. strenthening of role of Committee of

Ministers Participation of victims and NGOs:

The Committee of Ministers shall consider any communication from the injured party with regard to payment of the just satisfaction or the taking of individual measures (Rule 9 Section 1)

The Committee of Ministers shall be entitled to consider any communication from non-governmental organisations, as well as national institutions for the promotion and protection of human rights, with regard to the execution of judgments under Article 46, paragraph 2, of the Convention (Rule 9 Section 2).

Bringing such communications to the attention of the Committee of Ministers

Cases pending before the Committee of Ministers as of 31 December 2009 Armenia

8 leading cases 7 clone or repetitive cases

Azerbaijan 13 leading cases 3 repetitive cases

Georgia 19 leading cases 6 repetitive cases

By comparison: Ukraine: 37 leading cases 491 repetitive cases

Protocol No. 14 – new measures for the Committee of Ministers and the ECtHR Article 46 (3) – request for interpretation by

majority of 2/3 when „execution of a final judgment is hindered by a problem of interpretation of the judgment”

Article 46 (4) and (5) – new procedure when the state „refuses to abide by a final judgment in a case to which it is a party” Formal notice 2/3 majority decision by the Committee of Ministers ECHR finding a violation of Article 46 (1) of the Convention

+ Grand Chamber The Committee of Ministers – consideration of measures

to be taken (others than suspension of voting rights) Up to now – Verein gegen Tierfabriken (No. 2) –

once again finding a violation

Possible role for NGOs as regards enforcement of judgments Monitoring the implementation of the CoE soft law

(recommendations of the Committee of Ministers) Pushing on state authorities to make institutional reforms

securing more effective enforcement Raising awareness among local politicians – member of the

Parliamentary Assembly of CoE as regards problems with implementation

Communications to the Committee of Ministers (concerning all important cases)

Monitoring of the enforcement efforts by a given state (as well as proceedings before CM)

Warning on the need to implement „third party” judgments Promotion of judgments among media, judiciary and other

relevant professions

Leading scholarship in the field JURISTRAS project

http://www.juristras.eliamep.gr/ Robert Blackburn, Jorg Polakiewicz (eds.)

Fundamental Rights In Europe: The ECHR and Its Member States, 1950-2000, Oxford University Press 2002

Helen Keller, Alec Stone-Sweet (eds.), A Europe of Rights: The Impact of the ECHR on National Legal Systems, Oxford University Press 2008

Giuseppe Martinico, Oreste Pollicino (eds.) The National Judicial Treatment of the ECHR and EU Laws, Europa Law Publishing, 2010

Anton Burkov’s publications on the impact of the ECHR on the Russian legal system (also in Russian).

Thank you

Adam Bodnar, Ph.D., LL.M.

Human Rights ChairFaculty of Law and Administration

Warsaw University

Helsinki Foundation for Human Rights, Warsaw

e-mail: a.bodnar@wpia.uw.edu.pl, a.bodnar@hfhr.org.pl