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Analysis 443

The effectiveness of the Committee of Ministers in


supervising the enforcement of judgments of the
European Court of Human Rights

Committee of Ministers; Enforcement; European Court of Human


Rights; Judgments and orders; Supervision

The effectiveness of the implementation of Strasbourg judgments fell outside


the remit of Lord Woolf’s recent review of the working methods of the
European Court of Human Rights, but he nevertheless referred to the
importance of this issue and the need for a ‘‘focus on the rapid and effective
implementation of judgments’’.1 As the Woolf Report suggests, ‘‘both the
Court and Member States are adversely affected by the non-implementation
of the Court’s judgments’’2 (not to speak of the consequences for successful
applicants and those in comparable situations). In 2000 a resolution of the
Parliamentary Assembly of the Council of Europe (‘‘PACE’’) laid the primary
blame for the failure to execute Court judgments on states, but it also attributed
responsibility to the Court (for lack of clarity in some of its judgments) and
the Committee of Ministers ‘‘which . . . [did] not exert enough pressure
when supervising the execution of judgments’’.3 PACE has acknowledged that
lengthy compliance procedures, and worse still, non-compliance, undermine
the credibility of both the European Court system and the Council of Europe.4
The Committee of Ministers has itself been urging improvements in the system
of execution, calling on the Ministers’ Deputies to take ‘‘specific and effective
measures to improve and accelerate’’ the process.5
Robert Harmsen has recently suggested that the Court’s new practice of
highlighting systemic violations of the Convention in its judgments6 raises the
stakes for the Committee of Ministers’ supervision process, and establishes a
more direct onus on the Committee to fulfil its obligations under the European
Convention on Human Rights (‘‘ECHR’’):
‘‘As the Court shifts attention from individual violations to structural
problems, more demands are correspondingly placed on the Committee
of Ministers in its oversight function as regards the execution of ECtHR
decisions. Court decisions cast in general terms place a correspondingly

1 Review of the Working Methods of the European Court of Human Rights (December 2005), p.66.
2
ibid.
3 PACE Resolution 1226 (2000), September 28, 2000.
4 Implementation of judgments of the European Court of Human Rights—Supplementary Introductory

Memorandum (revised), Committee on Legal Affairs and Human Rights, Mr Erik Jurgens, AS/Jur (2005)
55 rev, December 20, 2005, para.8.
5 Declaration of the CoM, ‘‘The Court of Human Rights for Europe’’, November 8, 2002, [2002]

Revue Universelle des Droits de l’Homme 331; Declaration of the CoM, ‘‘Ensuring the effectiveness of
the implementation of the European Convention on Human Rights at national and European levels’’,
May 12, 2004.
6 See, e.g. P. Leach, ‘‘Beyond the Bug River—A new dawn for redress before the European Court

of Human Rights’’ [2005] E.H.R.L.R. 148.

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444 Public Law

general obligation on the Committee to engage in potentially wide-


ranging dialogues with respondent states concerning the reform of
domestic legislation and practice.’’7
This article seeks to consider the practice of the Committee of Ministers vis-à-
vis its role in the execution of Court decisions and also to discuss the respective
responsibilities of the Parliamentary Assembly and PACE’s Committee on Legal
Affairs and Human Rights. It seeks to raise questions about the effectiveness
and accessibility of the process, and discusses the potential for reform.

The role of the Committee of Ministers

Whilst it was stripped of its quasi-judicial function in 1998 as a result of the


reforms introduced by Protocol No.11 to the ECHR, it is the Committee of
Ministers (‘‘CoM’’) which retains the primary responsibility for supervising the
execution of European Court judgments. The ECHR stipulates this power
(in Art.46(2)) without further reference to methodology.8 In 2001 the CoM
adopted its own rules (‘‘the CoM Rules’’) as to its practice in this area. These
Rules were amended in May 2006.9 These Rules prescribe an obligation on
the Committee to examine three questions:
(i) whether any ‘‘just satisfaction’’ awarded by the Court under Art.41
has been paid; and
(ii) whether individual measures have been taken to ensure that the
violation has ceased and that the injured party is put, as far as possible,
in the same situation as that party enjoyed prior to the violation of
the ECHR; and
(iii) whether general measures have been adopted, preventing new
violations similar to that or those found or putting an end to
continuing violations.10
Since 1996 the CoM (in practice, the Ministers’ Deputies) has held six
meetings a year (lasting two or three days) in order to deal specifically with
the supervision of Court judgments (‘‘human rights meetings’’). Urgent cases
can also be considered at other ‘‘ordinary’’ meetings, as required. The CoM
is obliged to adopt a final resolution once it is satisfied that the respondent
state in question has taken all the necessary measures to comply with the
judgment.11 Prior to that point, however, the CoM may adopt interim

7
R. Harmsen, ‘‘The European Court of Human Rights as a ‘Constitutional Court’: Definitional
Debates and the Dynamics of Reform’’, Judges, Transition and Human Rights Culture—Conference in
Memory of Stephen Livingstone, Queen’s University, Belfast, October 7–8, 2005.
8
Art.46(2) states: ‘‘The final judgment of the Court shall be transmitted to the Committee of
Ministers, which shall supervise its execution’’ (formerly Art.54: ‘‘The judgment of the Court shall be
transmitted to the Committee of Ministers which shall supervise its execution’’).
9 Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of

friendly settlements, May 10, 2006. The general procedural rules of the CoM and the Ministers’ Deputies
may also apply to this function—see r.1(b) of the CoM Rules.
10 ibid., r.6(2).
11 ibid., r.17.

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Analysis 445

resolutions. The CoM Rules are not prescriptive as to the nature or purpose
of such interim resolutions; they state that they may be adopted ‘‘in order to
provide information on the state of progress of the execution’’ or ‘‘to express
concern and/or to make suggestions with respect to the execution’’.12 Interim
resolutions may therefore be adopted with various objectives: to urge the
domestic authorities to conclude ongoing reforms; to express concern about
the negligence and/or delay in execution and urge further action; or to provide
indications as to the execution measures expected.13 The CoM’s resolutions
accordingly provide a wealth of information about the measures (individual
and general) which have been taken by Council of Europe states in response
to judgments of the Court.

Recent reforms of the CoM practices

The most significant impetus lately for the improvement of the execution
process has been the need to prioritise the rapid execution of European Court
judgments identifying systemic Convention violations.14 In recent years the
Ministers’ Deputies have sought to improve the efficiency and publicity of
the execution control process and to develop their responses, in particular,
to situations of delay and negligence.15 Emphasis has been placed on a series
of applicable ‘‘basic principles’’: the collective nature of the role of the
CoM; equality of treatment; and transparency. It was said to be ‘‘paramount
that supervision of execution is treated as a co-operative task and not an
inquisitorial one’’.16
New working methods were adopted by the Ministers’ Deputies in April
2004. One of the key reforms was to establish execution timetables earlier in
the supervision process, accompanied by the introduction of ‘‘status sheets’’
which would also be publicly accessible.17 The status sheet would include
information about the state of execution of a case and the action proposed by
the CoM. Furthermore, states would be required to provide an ‘‘action plan’’,
with a specified time frame, for the envisaged measures, within six months of
the judgment becoming final (the initial phase). During this initial phase the
recent practice has been for the CoM secretariat regularly to send letters to
respondent states to make proposals in those cases where the measures required
for the execution of the judgment are not self-evident. Furthermore, meetings

12 ibid., r.16.
13 CDDH, Suggestions on solutions in the event of slowness in the execution of judgment, DH-PR(2005)001,
April 26, 2005, para.26.
14 Declaration of the CoM, ‘‘Ensuring the effectiveness of the implementation of the European

Convention on Human Rights at national and European levels’’, May 12, 2004; CoM Resolution, Res
(2004) 3 on judgments revealing an underlying systemic problem, May 12, 2004.
15 CDDH, fn.13 above, para.6.
16 Human rights working methods—Improved effectiveness of the Committee of Ministers’ supervision of

execution of judgments, CM/Inf(2004)8 Final, April 7, 2004, para.1.3.


17 ibid., para.2.

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446 Public Law

between the secretariat and state representatives, and with applicants, have
become more frequent.18
In introducing such reforms competing needs were recognised: the need for
‘‘flexibility in the fixing of the time tables’’, as against ‘‘the interests at stake
for the individuals’’ and the imperative of preventing new applications to the
Court following judgments concerning systemic violations.19 The initial phase
(usually six months) could be reduced in urgent cases (for example, ‘‘certain
individual measures where the personal integrity of the applicant is at stake’’),
systemic cases or cases of ‘‘very serious violations’’. It was envisaged that after
about one year from the date of the judgment becoming final, it would have
become apparent whether or not all the requisite general measures would
be taken within the following six to twelve months. Such cases would then
be examined in accordance with the time-limits in the CoM Rules. If that
were not the case, consideration would be given to adopting a more robust
framework for execution.20
Furthermore, for the purposes of selecting cases for debate, a non-exhaustive
list of criteria was adopted:
(i) the applicant’s situation warrants special supervision;
(ii) a new departure in case law;
(iii) a potential systemic problem;
(iv) inter-state cases;
(v) where the CoM secretariat and the state are not agreed about the
measures required;
(vi) a significant delay in execution; and
(vii) debate is requested by a delegation or the secretariat.21
Some of the elements of the code of good practice that were proposed at the
same time are revealing of states’ failings: that states should meet deadlines for
the submission of comments and information; that there should be ‘‘no abuse
of meeting time’’; that ‘‘speakers should as far as possible stick rigorously to
the issues’’; and that ‘‘participants should avoid addressing arguments already
rejected by the Court’’.22

Delays in execution

Where there are delays in the execution of a judgment, the CoM may
take various steps, although ‘‘the Committee’s actions will usually first be
confidential, relying on the capacity of the Minister of Foreign Affairs of
the country concerned to put adequate pressure on the other state bodies
concerned’’.23 These steps may include the following:

18 New working methods for supervision of the execution of the Court’s judgments (Human Rights meetings),

Ministers’ Deputies, CM/Inf/DH(2005)30, June 1, 2005, para.10.


19 ibid.
20 ibid.
21
Human rights working methods, n.16 above, App.I.
22 ibid.
23 CDDH, n.13 above, para.22.

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Analysis 447

(i) peer pressure at meetings and insistence on the state’s duty to comply;
(ii) increased frequency of examination of the case;
(iii) communications between the Chair of the CoM and the Minister
of Foreign Affairs and/or other state representatives (which may be
made public)24 ;
(iv) adoption of a public interim resolution.25

Late payment of monetary awards

Since 1995 provision has been made in Court judgments for the payment
of interest where the state fails to pay monetary awards within the specified
time-limit. The CoM also decided in 1995 to identify those states which had
not confirmed payment more than six months after the expiry of the applicable
time-limit and request an explanation.

‘‘Informative’’ interim resolutions

Where the CoM is informed of a delay in the execution of a judgment, it may


supplement the action plan with an ‘‘informative’’ interim resolution which
describes what execution measures are planned. The Steering Committee for
Human Rights (‘‘CDDH’’) (a body comprising state representatives which
is tasked by the CoM with making recommendations for the reform of
mechanisms and procedures related to the European Court system) has
suggested that ‘‘due to their formal and public nature, these resolutions compel
the respondent state to make clearer and more precise public undertakings than
it usually does in the context of the Committee’s ordinary examination of the
case’’. It has called for their more systematic use.26

Further steps

There are also various other potential measures within the CoM armoury:
(i) press releases27 ;
(ii) public statements by the Chair28 ; and
(iii) special decisions.
Where there is persistent non-compliance by a state, the CoM may initiate
further action:

24 ibid., para.25.
25
ibid., para.22.
26 ibid., para.20.
27 See, e.g. ‘‘Delays of Italian Justice: situation remains serious’’, CoM press release, October 13,

2005; ‘‘Persistent delays of Italian justice: a need for a new national strategy and commitment at the
highest level’’, CoM press release, December 1, 2005; ‘‘Hulki Gunes v Turkey judgment: call for
urgent measures to redress an unfair trial’’, CoM press release, December 1, 2005.
28 See, e.g. Statement of the Chairman of the Committee of Ministers (Dr Bernard Bot), April 4,

2004 re Sadak, Zana, Dogan and Dicle v Turkey.

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448 Public Law

(i) adopting successively more strongly worded interim resolutions29 ;


(ii) issuing formal warnings that action under Art.8 of the Statute of the
Council of Europe may follow (see further below);
(iii) appealing to the authorities of the member states to take appropriate
action to ensure compliance.30

Suspension and expulsion from the Council of Europe

The Statute of the Council of Europe provides the CoM with powers of
suspension and expulsion,31 which are yet to be utilised. It is arguable that the
use of such powers is likely to be counter-productive and accordingly they
are extremely unlikely to be used. The authors of the Explanatory Report to
Protocol No.14 take such a line and indeed argue that states which might be
the subject of such procedures would need the discipline of the Council of
Europe far more than other states.32 Nevertheless, the participants at the Oslo
Seminar in 2004, convened to discuss possible reforms of the Court, concluded
that where there is a persistent failure of compliance by a state, consideration
should indeed be given to excluding the state from taking on particular leading
positions or functions within the Council of Europe, or suspending its voting
rights within the CoM, or expelling it.33

Protocol No.14

The CoM’s enforcement powers will be supplemented by Protocol No.14


in the form of interpretation and infringement proceedings.34 Once Protocol
No.14 has come into force35 these reforms are likely to enhance the supervision

29 See, e.g. CoM Interim Resolution ResDH(2005)114, November 30, 2005 (concerning 2,183

cases against Italy relating to the excessive length of judicial proceedings).


30 CDDH, fn.13 above, para.29. E.g. the particular problems encountered by Italy have been the

subject of close attention by the CoM, which issued 12 interim resolutions between 1997 and 2004
in respect of various Italian cases. Furthermore, a special annual monitoring process was established,
relating to the excessive length of judicial proceedings (see CoM Interim Resolution Res DH(2000)135,
October 25, 2000). As to the reasons for Italy’s particular problems, see also S. Wolf, ‘‘Trial within
a Reasonable Time: The Recent Reforms of the Italian Justice System in Response to the Conflict
with Art.6(1) of the ECHR’’ (2003) 9 E.P.L. 189 and S. Greer, ‘‘Protocol 14 and the Future of the
European Court of Human Rights’’ [2005] P.L. 83, pp.91–92.
31 Arts 3 and 8.
32 Explanatory Report to Protocol No.14 to the Convention for the Protection of Human Rights and

Fundamental Freedoms, April 7, 2004, para.100.


33 Applying and Supervising the ECHR—Reform of the European Human Rights system: Proceedings of the

High Level Seminar, Oslo, October 18, 2004 (Council of Europe, 2004), p.12, available from www.coe.int.
34 If the CoM considers (by a two-thirds majority) that ‘‘the supervision of the execution of a final

judgment is hindered by a problem of interpretation of the judgment’’, it may refer the case back to
the Court for a ruling on the question of interpretation. Furthermore, if the CoM considers (by a
two-thirds majority) that a state refuses to abide by a judgment, it will be able to refer the question to
the Court as to whether that state has failed to fulfil its obligations under Art.46(1) ECHR (Art.16 of
Protocol No.14, amending Art.46 ECHR). See CoM Rules, rr.10 and 11.
35 At the time of writing there were 36 ratifications of Protocol No.14, which had not yet been

signed by Russia. On Protocol No.14, see further P. Lemmens and W. Vandenhole, eds, Protocol No.14
and the Reform of the European Court of Human Rights (Intersentia, Antwerp, 2005).

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Analysis 449

mechanism. Harmsen sees these developments as creating ‘‘new possibilities for


dialogues between the Court and the Committee’’, and thereby ‘‘strengthening
the sense of the Convention as an interlocking set of institutions in which
both the judicial and the political elements have distinctive and necessary
roles’’. Whether Harmsen’s optimism is well-founded remains to be seen. It is
regrettable that no express sanction will be available if the Court finds that a
state has indeed failed to fulfil its obligations under Art.46(1).36

The Parliamentary Assembly of the Council of Europe and its


Committee on Legal Affairs and Human Rights

The work of PACE, in relation to the non-implementation of Court


judgments, has led to reports, resolutions, recommendations, the holding
of debates, and the tabling of oral and written parliamentary questions.
The Committee on Legal Affairs and Human Rights (‘‘CLAHR’’) plays an
increasingly influential role in this process. Not only does it make general
recommendations aimed at improving the effectiveness and efficiency of the
system, but it also exerts pressure in respect of selected individual cases.37
Its practice is to focus on older cases (those not fully implemented after five
years), as well as the most urgent or important cases or those which raise
important implementation issues.38 Increasingly, priority is being given to
cases revealing systemic problems.39 The CLAHR may seek explanations from
national delegates (within PACE) for a government’s failure to comply with a
particular judgment,40 or it may make recommendations to the CoM.41 PACE

36
In 2000 the Committee on Legal Affairs and Human Rights of PACE (see below) recommended
that the CoM should have the power to impose an astreinte (a fine) where a state persistently
refuses to execute a judgment of the Court (Report of July 12, 2000—this proposal was included
in PACE Recommendation 1477(2000)). The proposal was rejected by the CDDH which doubted
its effectiveness, in particular where the failure to implement the judgment was the result of causes
other than the state’s clear will not to implement the decision (CDDH (2001) 35, November 6–9,
2001). That was an argument endorsed by the Evaluation Group which questioned how such penalties
could be calculated, given that assessment of the implementation of a judgment will often necessitate a
‘‘lengthy legislative process that may be interrupted by extraneous events such as elections, changes of
government and lack of Parliamentary time’’ (Report of the Evaluation Group to the Committee of Ministers
on the European Court of Human Rights, September 27, 2001, EG (Court) 2001, Strasbourg). See also
W. Vandenhole, ‘‘Execution of Judgments’’ in Lemmens and Vandenhole, n.35 above, p.120.
37 See, e.g. Implementation of judgments of the European Court of Human Rights—Introductory Memorandum,

Committee on Legal Affairs and Human Rights, Mr Erik Jurgens, AS/Jur (2005) 35, June 20, 2005,
para.3.
38 See Implementation of judgments of the European Court of Human Rights—Court judgments pending before

the Committee of Ministers for control of execution for more than five years or otherwise raising important issues,
Working Paper, Committee on Legal Affairs and Human Rights, Mr Erik Jurgens, AS/Jur (2005)
32, June 9, 2005; Implementation of judgments of the European Court of Human Rights—Supplementary
Introductory Memorandum (revised), Committee on Legal Affairs and Human Rights, Mr Erik Jurgens,
AS/Jur (2005) 55 rev, December 20, 2005, para.2.
39 Implementation of judgments of the European Court of Human Rights—Supplementary Introductory

Memorandum (revised), fn.38 above, para.8.


40 ibid., paras 1–5.
41 This in turn may elicit a formal response from the CoM. See, e.g. Written Question No.428 to the

Chair of the Committee of Ministers by Mr Jurgens: Execution of the European Court’s judgments by Turkey,
CM/AS(2003), Quest 428 final, September 5, 2003.

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450 Public Law

delegations may also be sent to countries where problems most frequently


arise, or where the most important implementation questions crop up, in
order to establish, or improve, dialogue with parliaments, administrations and
governments.42 Andrew Drzemczewski has highlighted such visits as being an
important and effective recent innovation.43 To date the CLAHR has produced
five reports on the implementation of judgments of the European Court. These
reports seek to keep the spotlight focused on the ‘‘usual suspects’’ with the
worst compliance record.44 The response of states to periodic prodding by the
CLAHR, however, can be described as inconsistent.45
Erik Jurgens, a CLAHR rapporteur, has recently sought to make a case
for developing the role of PACE.46 He argues that PACE benefits from its

42 Implementation of judgments of the European Court of Human Rights—Supplementary Introductory

Memorandum (revised n.38 above, paras 9–10. In accordance with these criteria, in 2005 five countries
were selected for visits in 2006: Italy, Turkey, the Russian Federation, Ukraine and the UK. The
particular reasons for the need to focus on the UK were stated to be as follows: ‘‘The United Kingdom
has a relatively big number of old judgments of the Court that have not yet been fully implemented,
due principally to delays in adoption of legislation. The Committee of Ministers has been awaiting
for years some important legislative or other reforms to be adopted in order, for example, to prohibit
the physical punishment of children amounting to ill-treatment, to introduce adequate legal safeguards
during detention in mental hospitals, to ensure clarity and precision of ‘binding-over’ orders. Of
particular importance are the measures required by the Court’s judgments finding violations of the
ECHR by the security forces in Northern Ireland. While significant progress was made to prevent new
similar violations, issues still remain with regard to the UK’s continuing obligation to conduct effective
investigations into the applicants’ death so as to remedy the procedural shortcomings highlighted by
the Court. In this respect, the domestic courts’ failure to order the reexamination of old decisions not
to prosecute and the apparent shortcomings related thereto, from the ECHR’s viewpoint, of the new
Inquiries Act are of particular concern.’’ See also Joint Committee on Human Rights, Implementation of
Strasbourg Judgments: First Progress Report (2005–06 HL 133/HC 954).
43 A. Drzemczewski, Quelques Observations sur le Rôle de la Commission des Questions Juridiques et Droits

de L’Homme de L’Assemblée Parlementaire dans L’Exécution des Arrêts de la Cour de Strasbourg in ’Trente Ans
de Droit Européen des Droits de L’Homme’ (provisional title, Bruylant, Bruxelles, forthcoming in 2006).
44 The report of June 2005, n.38 above, drew attention to particular problems in Italy, Turkey and

Poland. The rapporteur, Erik Jurgens, was notably critical of the failure of the Italian delegation actively
to co-operate with the CLAHR. Jurgens also highlighted the continuing violations being perpetrated
by the Turkish security forces (see, e.g. Interim Resolution ResDH(2005)43), but his report noted the
‘‘significant results’’ achieved by Turkey in terms of measures taken in response to European Court
decisions, and he praised the Turkish delegation’s ‘‘constructive attitude’’ (paras 14–17). In relation
to Poland, the report expressed concern about the increasing number of judgments which required
comprehensive general measures in order to prevent similar violations in the future (paras 18–20). The
December 2005 report, fn.38 above, drew attention, again, to Italy’s continuing sorry record: Italy was
responsible for more than 60% of all cases pending before the CoM, and 12% of structural problems
pending before the CoM concerned Italy (para.29).
45
e.g. following the adoption of its decisions in June 2005, the President of PACE sent letters to the
heads of 13 PACE delegations about individual cases seeking information and/or specific action to be
taken. By December 2005, only 9 of the 13 had replied (not Bulgaria, France, Moldova or Ukraine).
Of the replies which were received, an unspecified number were described as being ‘‘not too helpful’’
as they provided no new information and reported no specific follow-up.
46
n.38, para.6. Jurgens suggested that ‘‘the Assembly should continue, and indeed have a more
prominent role, in promoting compliance with the Court’s judgments. By helping to ensure that
member states rapidly comply with judgments, it provides tangible assistance to victims of human
rights violations. It also helps the Committee of Ministers to discharge more speedily and effectively
its responsibilities in this respect . . . rapid compliance with judgments, especially those requiring
legislative action, to which the Assembly is best placed to contribute, helps the Strasbourg Court cope
with the avalanche of applications by attacking the root causes for repetitive applications’’.

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Analysis 451

‘‘privileged relations with national legislators’’ and that its involvement in


problematic cases has often led to the adoption of satisfactory measures of
implementation by respondent states within one or two years.47

Evaluating the strengths and weaknesses of the execution process

An assessment of the new CoM working methods carried out a year after
their adoption in April 2004 showed mixed results. The Ministers’ Deputies
and the secretariat concluded that the new procedures had made it possible
for a quicker and clearer identification of the key issues raised by a judgment.
Deputies’ meetings were considered to be more productive (allowing more
time to debate pilot cases) and there were improved levels of co-operation
between the secretariat and state representatives. It was also suggested that state
delegations had become more involved in cases against other countries, both
by exerting pressure on other states and learning from their experiences.48
However, it was also apparent that states were failing to comply with the new
procedures in a number of important respects. Too frequently, states were
failing to reply to the secretariat’s initial phase letter. Action plans had been
presented in only a ‘‘limited’’ number of cases and precise time-frames for the
adoption of measures were ‘‘rare’’.49
The responsiveness, or otherwise, of states to the implementation process
is critical. The CoM Rules are not prescriptive of states. If the Court finds a
violation of the ECHR, the respondent state is invited to inform the CoM
‘‘of the measures which the High Contracting Party has taken or intends to
take in consequence of the judgment’’.50 The CoM is only obliged to consider
individual or general measures ‘‘if required’’, and also ‘‘taking into account
the discretion of the High Contracting Party concerned to choose the means
necessary to comply with the judgment’’. The Rules make no reference to
the timing of the state’s response. Instead, they stipulate that until the state
has provided the information sought, the case will ordinarily be placed on
successive agendas of the Committee’s human rights meetings and will be
reconsidered ‘‘no more than six months later’’.51
In practice the usual CoM Rules will apply to the majority of cases for up
to two years after the final judgment—only then will more stringent measures
be considered. This is insufficiently rigorous.52 The CoM has itself emphasised
the unconditional nature of the obligation to abide by a judgment,53 and the

47 ibid., paras 3 and 5.


48 CDDH, n.13 above, p.18.
49 New working methods, n.18 above, para.14.
50
CoM Rules, r.6(1).
51 ibid., r.7.
52 However, it should be recognised, of course, that some cases are not so susceptible to

speedy supervision. E.g. Lambert-Abdelgawad has noted that in respect of cases requiring legislative
amendments, the CoM requires ‘‘convincing judicial practice over several years’’ as proof of the
sufficiency of the measure—see E. Lambert-Abdelgawad, The Execution of Judgments of the European
Court of Human Rights (Council of Europe Publishing, Strasbourg, 2002), p.35.
53 Interim Resolution DH(2000)105, July 24, 2000 (relating to the case of Loizidou v Turkey).

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CDDH has recently reiterated that ‘‘. . . the duty to comply is created as soon
as the judgment becomes final. Immediate execution often being materially
impossible, the practice is in general to accept that execution must be ensured
without unjustified delay.’’54 The Ministers’ Deputies have also called on states
to engage earlier in the proceedings: ‘‘. . . the respondent State’s reflection on
and adoption of measures to comply with a judgment should start at the very
latest when the judgment becomes final’’.55
The supervision process can also be criticised for its inaccessibility. The
CoM Rules require a certain level of public access. The agenda of human
rights meetings must be made public56 and the practice is for the CoM to
publish general information about the progress of the execution of judgments
after each human rights meeting. Furthermore, information provided by states
(and indeed by the injured party and civil society organisations) should also
be accessible to the public.57 However, it is the practical inaccessibility of
information which remains a serious problem. Whilst some of this information
is made available on the Committee’s website,58 there is no adequate means
of searching for material related to particular cases. Murray Hunt has criticised
the process as being ‘‘woefully lacking in transparency’’.59 The delegates at the
Oslo seminar in 2004 advocated that the CoM should publish an annual report
on its enforcement role, in order to enhance transparency and publicity.60 This
recommendation has been accepted and is now incorporated into the CoM
Rules, as amended in May 2006.61
A further aspect of the inaccessibility of the supervision process, is the
ambiguity of r.9 (formerly r.6) of the CoM Rules regulating the submission of
communications.62 Rule 9 expressly allows an applicant to make submissions
concerning the payment of just satisfaction and in respect of individual
measures. However, r.9 does not permit the applicant to send communications
addressing the question of ‘‘general measures’’ (although this is not expressly
excluded). This begs the question as to whether it is always clear if a particular
step required in response to a judgment is individual or general, 63 and would

54 CDDH, n.13 above, para.13.


55 New working methods, n.18 above, para.18.
56 CoM Rules, r.2(1).
57
Unless the CoM decides otherwise in order to protect legitimate public or private interests (ibid.,
rr.8 and 14).
58 www.coe.int/T/CM.
59
M. Hunt, ‘‘State Obligations following a Judgment of the ECtHR’’ in T. Christou and J.P.
Raymond, eds, European Court of Human Rights—Remedies and Execution of Judgments (British Institute
of International and Comparative Law, London, 2005), p.43.
60 Applying and Supervising the ECHR, n.33 above.
61 CoM Rules, r.5.
62 Rule 9 states as follows: ‘‘a. 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.
However, the new rule on friendly settlements (r.15(1)) is broader: ‘‘The Committee of Ministers shall
consider any communication from the applicant with regard to the execution of the terms of friendly
settlements.’’
63 e.g. in the leading ‘‘systemic’’ judgment of Broniowski v Poland, September 28, 2005 (friendly

settlement), the Court stated: ‘‘. . . in view of the systemic or structural character of the shortcoming
at the root of the finding of a violation in a pilot judgment, it is evidently desirable for the effective

[2006] P.L. Autumn  Sweet & Maxwell and Contributors


Analysis 453

a communication from an applicant addressing both types of measure be


excluded from consideration by the CoM?
Until the changes to the Rules adopted in May 2006, there was no
reference in the Rules to the role of civil society organisations. Their absence
from this important process, notably in respect of the implementation of
‘‘pilot’’ judgments, did not sit well with the intention of Council of Europe
Heads of State to ‘‘. . . enhance the participation of NGOs in Council of
Europe activities as an essential element of civil society’s contribution to the
transparency and accountability of democratic government’’.64
The practice of the CoM secretariat has been to exercise a discretion on
such questions—on occasions they may permit consideration of an applicant’s
position on ‘‘general measures’’ or submissions on execution questions from an
NGO. But should this be left solely to the exercise of an unwritten discretion?
Lambert-Abdelgawad65 and Barkhuysen and van Emmerik66 have criticised
the continuing exclusion of the applicant from the process. The role of civil
society in the execution process has recently been reconsidered and it will be
enhanced by an amendment to the Rules which allows the CoM to consider
any communication from NGOs and natural institutions for the promotion
and protection of human rights.67
Aside from these admittedly important questions, the rigour of the system,
especially in respect of persistently non-compliant states, is the essential ques-
tion. Does the CoM execution process fail to exert enough pressure on states?
In 2000, for example, PACE urged a stricter approach from the CoM.68 If
such criticisms are validly made, is it an inevitable consequence of the reliance
on inter-state ‘‘peer pressure’’? As the Venice Commission has recalled, the
supervisory function of the CoM is a ‘‘collective responsibility’’. As a result,
‘‘the execution of a particular judgment is not only the legal obligation of the
State concerned, but a common concern’’.69
Imbert has argued that recognition of the notion of collective responsibility,
and indeed a collective determination, are required in particular in relation to
politically sensitive cases.70 The Venice Commission has also been critical of
the ‘‘rather ad hoc and casuistic approach’’ to the supervision of execution

functioning of the Convention system that individual and general redress should go hand in hand’’
(at [36]).
64
Action Plan, adopted at Third Summit of Heads of State and Government of the Council of
Europe, Warsaw, May 16–17, 2005, CM(2005)80 final, May 17, 2005, para.3.
65 Lambert-Abdelgawad, n.52 above, pp.25–26.
66
T. Barkhuysen and M. L. van Emmerik, ‘‘The Execution of Judgments of the ECHR’’ in Christou
and Raymond, fn.59 above, p.22.
67 CoM Rules, r.9(2). See also r.15(2) concerning friendly settlements.
68 PACE Recommendation 1477(2000), September 28, 2000.
69
Opinion on the Implementation of the Judgments of the European Court of Human Rights, European
Commission for Democracy Through Law (Venice Commission) (Jan Helgesen, Giorgio Malinverni,
Franz Matscher and Pieter van Dijk), Opinion No.209/2002, CDL-AD (2002) 34, December 18,
2002, para.41.
70 Speech by M. Pierre-Henri Imbert, Applying and Supervising the ECHR—Reform of the European

Human Rights system: proceedings of the high level seminar, Oslo, October 18, 2004 (Council of Europe,
Strasbourg, 2004), pp.33–43, available from www.coe.int.

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454 Public Law

of judgments and of the failure to adopt a systematic approach to follow-


up.71 The Venice Commission furthermore identified states’ ‘‘insufficient and
unsatisfactory co-operation’’ as being ‘‘another major shortcoming’’ in the
procedure. The failure of states to provide timely information either about
pending domestic developments, or about steps which states proposed to take,
meant that a proper examination of the case was impossible.
Criticism can also be made of the rigour of the process in terms of its success
in preventing further similar Convention breaches. PACE has urged that the
CoM ‘‘ensure that measures taken constitute effective means to prevent further
violations being committed’’.72 There is an overwhelming case for making the
implementation process in respect of systemic violation cases more frequent
and more rigorous.73 An amendment to the CoM Rules made in May 2006
acknowledges this argument by introducing an obligation on the CoM to give
priority to systemic cases.74 In relation to pilot judgments, Imbert has called for
states rapidly to produce comprehensive, time-tabled plans of action, which
may require special task forces to be set up by relevant ministries and other
domestic authorities. He has also urged states to keep national parliaments and
national human rights institutions fully informed.75
The sheer burden being placed on the CoM has to be recognised as being
significantly detrimental to the effectiveness of the supervision process.76 At
the CoM meeting selected for scrutiny by the Venice Commission in 2002,77
1,456 cases were listed to be examined, 128 of which raised particular questions
in terms of individual measures or other problems. During the six human rights
meetings in 2005, there were an average of 3,375 cases on its agenda.78 This
raises the further issue of the adequacy of resources, not least in terms of the
staffing of the secretariat.

Conclusion

It is commonly accepted that the effectiveness of the enforcement process is


critical to public perceptions of the Court’s authority and the credibility of
the system.79 Steven Greer has suggested that implementation is the ‘‘Achilles

71
Venice Commission, fn.67 above, para.26.
72 PACE Recommendation 1477 (2000), n.66.
73 The authors of the Explanatory Report to Protocol No.14 suggested that it would be useful if the

CoM were to develop a ‘‘special procedure’’ in order to give priority treatment to structural violation
cases (n.32 above, para.16). Such possibilities have also been discussed by the CDDH which rightly
reiterated that any such developments should not be to the detriment of the priority to be given to
cases involving ‘‘grave consequences for the applicant’’ (see Report of the Steering Committee for Human
Rights (CDDH), 57th meeting, Strasbourg, April 26–29, 2005, DH-PR(2005)010, June 3, 2005, paras
35–36). The CDDH’s concerns are now reflected in the amended CoM Rules, r.4(2).
74 CoM Rules, r.4.
75 See n.70 above.
76
See, e.g. E. Bates, ‘‘Supervising the Execution of Judgments Delivered by the European Court of
Human Rights: The Challenges facing the Committee of Ministers’’ in Christou and Raymond, fn.59
above, pp.52–55 and 66–71.
77
The Deputies’ meeting of October 8–9, 2002.
78 Ministers Deputies’ Agenda, CM/Del/OJ/DH(2006)960, February 23, 2006.
79 See, e.g. Explanatory Report, n.32 above, para.16.

[2006] P.L. Autumn  Sweet & Maxwell and Contributors


Analysis 455

heel of the entire Convention system’’, because of the Council of Europe’s


powerlessness to deal with persistently non-compliant states.80 Of course, the
effectiveness of institutions at the European level depends substantially upon
the capability and willingness of national bodies to respond appropriately and
adequately.81 As Erik Jurgens has reminded us:
‘‘The ECHR’s mechanism does not . . . operate in a legal vacuum: the
Court’s judgments are implemented and translated into real life through a
complex legal and political process, which involves a number of domestic
and international institutions.’’82
As we have seen, there are various ways in which the Committee of Ministers’
process could be developed and strengthened, fundamentally in terms of the rig-
orousness of its mechanism based on peer pressure, the speed of the process and
the availability of suitable sanctions, as well as its accessibility and transparency.
One can also legitimately ask whether other Council of Europe institutions
and mechanisms are being effectively utilised in order to aid and support the
implementation process? The Explanatory Report to Protocol No.14 rightly
drew attention to the need to make optimum use of other Council of Europe
institutions, mechanisms and activities in supporting the promotion of the rapid
execution of Strasbourg judgments.83 Furthermore, the CDDH has advocated
the active involvement of many such institutions, including the Commissioner
for Human Rights, the Secretary General, the Venice Commission and
PACE.84 Whilst the Group of Wise Persons has recently advocated, in its
interim Report, the better co-ordination of the activities of Council of Europe
bodies in general, rather surprisingly it seems not to have given consideration
to the question of the enforcement of Court judgments—it has in any event
made no recommendations on this question.82 The work carried out by
PACE in recent years has ensured, to a certain extent, a stronger public and
democratic aspect to the process. Nevertheless, it is not at all evident that the
work of these other Council of Europe bodies is sufficiently integrated into, or
engaged with, the process for the implementation of Court judgments. Indeed,
Imbert has called for ‘‘greater synergies’’ between the various mechanisms.85
The continuing obstacles to effective implementation of Strasbourg judgments

80
S. Greer, ‘‘Protocol 14 and the Future of the European Court of Human Rights’’ [2005] P.L. 83,
p.92.
81 In the UK context, see the recent report of the Joint Committee on Human Rights, n.42 above:

‘‘To be effective, . . . international review must be accompanied by close scrutiny at a national level of
the implementation of Convention rights and judgment of the ECtHR’’ (para.3).
82 n.38, para.2.
83
Explanatory Report, n.32 above, para.19.
84 Final Activity Report of the CDDH: Guaranteeing the long-term effectiveness of the European Court of

Human Rights, CM(2004) 65, April 8, 2004, para.26.


85
See n.70 above. Interim Report of the Group of Wise Persons to the Committee of Ministers, CM(2006)88,
May 10, 2006. On implementation the Group of Wise Persons merely acknowledges that the CoM
‘‘plays an important role in monitoring the execution of judgments’’. (para.12) It also suggests that
the Commissioner for Human Rights might take on a general co-ordinating role amongst Council of
Europe bodies: ‘‘he could inform them of human rights violations identified by the Court and of the
allegations contained in applications ... These bodies could thus act to resolve the difficulties identified,
which would prevent further applications from being submitted.’’ (para.49).

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456 Public Law

are substantial and significant. To overcome them will require, at the European
level, a sophisticated and rigorous approach, combining the strengths of civil
society groups and Council of Europe mechanisms, in support of the role
played by the Committee of Ministers.

Philip Leach*

* Senior Lecturer in Law, London Metropolitan University; Director, European Human Rights
Advocacy Centre, www.londonmet.ac.uk/ehrac.

[2006] P.L. Autumn  Sweet & Maxwell and Contributors