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MISSION IMPOSSIBLE? ADDRESSING NON-EXECUTION THROUGH INFRINGEMENT PROCEEDINGS IN THE EUROPEAN COURT OF HUMAN RIGHTS

  • Fiona de Londras (a1) and Kanstantsin Dzehtsiarou (a1)
Abstract
Abstract

Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States’ execution of its judgments.

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2 Art 46(1) ECHR.

3 According to the annual report for 2015 the Committee of Ministers closed 1537 cases that have been executed by the Contracting Parties. During the same year only 1285 cases were received for execution. There is a major backlog of cases (over 10,000) but the tendency is positive. Moreover, not all of these cases are problematic in terms of execution; some of them simply require time to be implemented, but do not attract any dispute as to execution from the State in question. See more in ‘Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights. 9th Annual Report of the Committee of Ministers’, <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168062fe2d> 58–60.

4 K de Vries, ‘Implementation of Judgments of the European Court of Human Rights’ (PACE, Report, 9 September 2015, Doc 13864) <www.assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=22005&lang=en>.

5 ibid.

6 In a recently published report of the Council of Europe on the long-term future of the ECtHR the Steering Committee for Human Rights (CDDH) has acknowledged that ‘[t]he implementation of some judgments is problematic for reasons of a more political nature’. ‘CDDH Report on the Longer-Term Future of the System of the European Convention on Human Rights’ <http://www.coe.int/t/dghl/standardsetting/cddh/reformechr/CDDH%282015%29R84_Addendum%20I_EN-Final.pdf> para 134.

7 The members of the Steering Committee for Human Rights came to a similar conclusion that non-execution is caused by either political reasons or by the complexity of execution. ibid para 134–5. Although we acknowledge that some delays in execution can be caused by complexity of the measures that should be adopted by the Contracting Parties complexity is not determinative of the effort Contracting Parties give to execution. Therefore, categorization of non-execution below into principled non-execution and dilatoriness is more appropriate for the purposes of this paper.

8 See Keller H and Marti C, ‘Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments’ (2015) 26 EJIL 829, 830; Hillebrecht C, ‘Rethinking Compliance: The Challenges and Prospects of Measuring Compliance with International Human Rights Tribunals’ (2009) 1 Journal of Human Rights Practice 362 .

9 On the interaction of these elements in theories of democratic legitimacy see, for example, Chistyakova Y, ‘Democratic Legitimacy, Effectiveness, and the Impact of EU Counter-Terrorism Measures’ in de Londras F and Doody J (eds), The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism (Routledge 2015) 114 .

10 About 60 per cent of all leading cases are executed in under five years, of which more than 20 per cent are executed within two years. ‘Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights. 9th Annual Report of the Committee of Ministers’ (n 3) 75. Although similar statistics are not available for the Inter-American Court of Human Rights (IACtHR), it has been pointed out that the compliance rate with their judgments is not particularly high. See, for example, Dothan S, Reputation and Judicial Tactics. A Theory of National and International Courts (Cambridge University Press 2015) 55 ; Burgorgue-Larsen L and de Torres A Úbeda, The Inter-American Court of Human Rights: Case-Law and Commentary (Oxford University Press 2013) 213 .

11 ‘Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights. 8th Annual Report of the Committee of Ministers (2014)’ <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680592ae9>28 see also Keller and Marti (n 8) 830.

12 ‘Supervision of the execution of judgments and decisions of the European Court of Human Rights: implementation of the Interlaken Action Plan – Modalities for a twin-track supervision system’ CM/Inf/DH(2010)37 (6 September 2010) <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804a327f>.

13 The problem identified in the pilot judgment in Ivanov v Ukraine, App No 40450/04, Judgment of 15 October 2009 is an example of such a situation. This case concerned violations of arts 6 and 13 ECHR as final judgments of Ukrainian national courts could not be executed. This related to a large number of cases, the resolution of which would put extra pressure on the already stretched budget of Ukraine, and a large number of which are still not executed. ‘Current State of Execution of Pending Case Zhovner v Ukraine’ <www.coe.int/t/dghl/monitoring/execution/Reports/pendingCases_en.asp?CaseTitleOrNumber=zhovner&StateCode=UKR&SectionCode>.

14 A, B and C v Ireland, App No 25579/05, Judgment of 16 December 2010.

15 Hirst v the United Kingdom (No 2), App No 74025/01, Judgment of 6 October 2005; Greens and MT v the United Kingdom, App Nos 60041/08 and 60054/08, Judgment of 23 November 2010.

16 Alekseyev v Russia, App Nos 4916/07, 25924/08 and 14599/09, Judgment of 10 October 2010.

17 Although one cannot say that for instance the IACtHR and the UN Human Rights Committee do not have any supervisory mechanism of compliance with their decisions, their mechanisms are fundamentally different to the one provided by the ECHR.

18 On the working of art 41 ECHR see, for example, Harris D, O'Boyle M, Bates E and Buckley C, Harris, O'Boyle and Warbrick: Law of the European Convention on Human Rights (Oxford University Press 2014) 155–62.

19 Cyprus v Turkey (just satisfaction), App No 25781/94, Decision of 12 May 2014.

20 This is not to suggest that some complex matters (eg interest payments, and whether payment has been made by the correct date) do not arise. It is also the case that in some cases, such as Loizidou v Turkey, App No 15318/89, Judgment of 18 December 1996, (non-)payment is perceived by the State as a matter of principle, which may add a further layer of complexity and indeed the payments in that case are now under enhanced supervision procedures. This is because, ‘the Turkish authorities have not complied with their obligation to pay the amounts awarded by the Court to the applicants in those cases, as well as in 32 other cases in the Xenides-Arestis group, on the grounds that this payment cannot be dissociated from the measures of substance in these cases’ (Status of Execution, Xenides-Arestis v Turkey, App No 46347/99, Judgment of 22 December 2005 <http://www.coe.int/t/dghl/monitoring/execution/Reports/pendingCases_en.asp?CaseTitleOrNumber=Xenides-Arestis&StateCode=TUR&SectionCode>). However as a general matter determining whether or not payment has been made in full and on time is a ‘simple’ or straightforward matter.

21 ‘Appendix 4 (Item 4.4) Rules of the Committee of Ministers for the Supervision of the Execution of Judgments and of the Terms of Friendly Settlements’. Rule 6, section 2 <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016805905e5>.

22 See for example Scozzari and Giunta v Italy, App Nos 39221/98 and 41963/98, Judgment of 13 July 2000, para 249.

23 Volkov v Ukraine, App No 21722/11, Judgment of 27 May 2013. On compliance with the remedy see ‘Oleksandr Volkov Reinstated as Supreme Court Judge in Ukraine’ (EHRAC webpage, 2 February 2015) <www.ehrac.org.uk/news/oleksandr-volkov-reinstated-as-supreme-court-judge-in-ukraine/>.

24 Appendix 4 (Item 4.4) Rules of the Committee of Ministers (n 21) Rule 6, section 2.

25 The Court stated that ‘it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the right to vote in compliance with this judgment. In the circumstances, it considers that this may be regarded as providing the applicant with just satisfaction for the breach in this case’. Hirst v the United Kingdom (No 2) (n 15) para 93.

26 See Waldron J, ‘The Core of the Case Against Judicial Review’ (2006) 115 YaleLJ 1346 .

27 On the standoff between the UK and the European Court of Human Rights as a dispute as to authority, see Çali B, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press 2015) 15 .

28 See Görgülü, BVerfG, 2 BvR 1481/04 (14 Oct 2004) 307.

29 Corte Costituzionale (Italian Constitutional Court) Judgment Nos 348 and 349 of 2007.

30 de Londras F and Dzehtsiarou K, ‘Managing Judicial Innovation in the European Court of Human Rights’ (2015) 15 HRLR 523, 527.

31 Hirst v the United Kingdom (No 2) (n 15). See also Scoppola v Italy (No 3), App No 126/05, Judgment of 22 May 2012; Anchugov and Gladkov v Russia, Apps No 11157/04 and 15162/05, Judgment of 4 July 2013; Firth and Others v the United Kingdom, App No 47784/09, Judgment of 12 August 2014.

32 Hirst v the United Kingdom (No 2) (n 15); Greens and MT v the United Kingdom (n 15).

33 See ‘The ‘Backbenchers’ Debate on Prisoners’ Voting’ (Hansard Report, 10 February 2011) <www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110210/debtext/110210-0002.htm>. See also ‘Proposals by the Joint Select Committee, ‘‘the Draft Voting Eligibility (Prisoners) Bill’’’ <www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/10311.htm#a45>. The Select Committee proposed to allow those prisoners who serve less than 12 months imprisonment to vote, as well as those who are due to be released within the next 6 months.

34 Section 4, Human Rights Act 1998.

35 Section 3, Human Rights Act 1998.

36 ‘Prime Minister's Questions’ (Daily Hansard: Debate, 3 November 2010) <www.publications.parliament.uk/pa/cm201011/cmhansrd/cm101103/debtext/101103-0001.htm>.

37 ‘Prisoners “damn well shouldn't” be given right to vote, says David Cameron’ (The Guardian, 13 December 2013) <https://www.theguardian.com/politics/2013/dec/13/prisoners-right-to-vote-david-cameron>.

38 ibid.

39 Classically, see Griffin JAGThe Political Constitution’ (1979) 42 MLR 1 .

40 This refers, of course, to Bringing Rights Home (Labour Party, 1996) in which the Labour Party outlined its vision of the Human Rights Act 1998 itself.

41 See generally Human Rights Act 1998.

42 Cass Stunstein described ‘norm entrepreneurs’ as ‘people interested in changing social norms’ (C Sunstein, ‘Social Norms and Social Rules’ (1995) 36 Chicago John M Olin Law & Economics Working Paper 1, 6). Here we use the phrase to refer to parties interested in, and capable of, changing norms through their behaviours, eg of leading in a community (in this case of States) through behaviour, State practice, and utterance.

43 ‘Venice Commission, Interim Opinion on the Amendments to the Federal Constitutional Law on the Constitutional Court of the Russian Federation’ (Venice Commission, 15 March 2016) <http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282016%29005-e> para 98.

44 There were 9207 applications brought against Russia in 2015. Italy, Turkey, Ukraine and Russia are ‘responsible’ for more than a half of all complaints brought to the Court in 2015, ‘Analysis of Statistics 2015’ <www.echr.coe.int/Documents/Stats_analysis_2015_ENG.pdf>.

45 The Court has delivered 1720 judgments in cases brought against Russia (until December 2015) and at least one violation was found in 1612. ‘Violations by Article and by State 1959–2015’ <www.echr.coe.int/Documents/Stats_violation_1959_2015_ENG.pdf>.

46 Quoted in BBC News, ‘Russia passes law to overrule European human rights court’ (4 December 2015) <www.bbc.co.uk/news/world-europe-35007059>. For further analysis see P Leach and A Donald, ‘Russia Defies Strasbourg: Is Contagion Spreading?’ (EJIL: Talk!, 19 December 2015) <www.ejiltalk.org/russia-defies-strasbourg-is-contagion-spreading/#more-13922>.

47 Anchugov and Gladkov v Russia (n 31).

48 Judgment of 19 April, 2016 No 12-П/2016 on the case concerning the resolution of the question of the possibility to execute in accordance with the Constitution of the Russian Federation the Judgment of the European Court of Human Rights of 4 July 2013 in the case of Anchugov and Gladkov v Russia in connection with the request of the Ministry of Justice of the Russian Federation, <http://www.ksrf.ru/en/Decision/Judgments/Documents/2016_April_19_12-P.pdf>. For a short commentary see K Dzehtsiarou, S Golubok and M Timofeev, ‘Imaginary Dialogue and Fictitious Collaboration: Russian Response to the Prisoner Voting Judgment’ (ECHR Blog, 29 April 2016) <http://echrblog.blogspot.co.uk/2016/04/the-russian-response-to-prisoner-voting.html>.

49 de Vries (n 4).

50 For example, Azerbaijani authorities have failed to execute Ilgar Mammadov v Azerbaijan, App No 15172/13, Judgment of 22 May 2014, concerning the detention of an opposition political leader, in spite of repeated calls from the Committee of Ministers to do so.

51 For example, it has been widely stated that the long-standing problem of undue delays in criminal trials in Italy results from structural problems within the Italian judicial system, repeated reform attempts of which have been largely unsuccessful. See Scordino v Italy (No 1), App No 36813/97, Judgment of 29 March 2006, Cocchiarella v Italy, App No 64886/01, Judgment of 29 March 2006.

52 See, for example, Burdov v Russia (No 2), App No 33509/04, Judgment of 15 January 2009.

53 ‘Azerbaijan: Country Press Profile’ (Press Unit ECtHR, November 2016). <http://www.echr.coe.int/Documents/CP_Azerbaijan_ENG.pdf>.

54 Gadirov J, ‘The European Convention on Human Rights and Fundamental Freedoms in Azerbaijan’ in Hammer L and Emmert F (eds), The European Convention on Human Rights and Fundamental Freedoms in Central and Eastern Europe (Eleven International Publishing 2011).

55 See generally ibid.

56 Ilgar Mammadov v Azerbaijan (n 50).

57 See also, for example, Insanov v Azerbaijan, App No 16133/08, Judgment of 14 March 2013.

58 See for example ‘The Country Report’ (Freedom House 2015) <https://freedomhouse.org/report/freedom-world/2015/azerbaijan>.

59 See, for example, ‘Committee of Ministers Interim Resolution CM/ResDH(2015)156 on Execution of the judgment of the European Court of Human Rights: Ilgar Mammadov v Azerbaijan’ (24 September 2015) <https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805c2de7>.

60 See Marckx v Belgium, App No 6833/74, Judgment of 13 June 1979, para 58. Although the Court has somewhat toughened its position in more recent cases, it rarely prescribes certain particular actions to be undertaken by the respondent State to repair the violation. Keller and Marti (n 8) 835–9.

61 ‘Statistical Data on Execution of Judgments of the European Court of Human Rights’ <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168065156c>.

62 ibid.

63 ‘Explanatory Report to Protocol 14’ (Council of Europe, 13 May 2004) <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016800d380f> para 16.

64 ibid.

65 ibid para 98.

66 ibid para 100.

67 de Vries (n 4).

68 About the Committee of Ministers <http://www.coe.int/en/web/cm/about-cm>.

69 The Committee of Ministers ‘decides the Council's policy. It also determines the action to be taken on recommendations of the Parliamentary Assembly and the Congress of Local and Regional Authorities and the proposals from various intergovernmental committees and conferences of specialised ministers. It approves the Council of Europe's Programme and Budget. The Committee of Ministers also supervises the execution by member states of judgments of the European Court of Human Rights.’ ibid.

70 Lambert-Abdelgawad E, ‘The Court as a part of the Council of Europe: the Parliamentary Assembly and the Committee of Ministers’ in Føllesdal A, Peters B and Ulfstein G (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge University Press 2013) 280 .

71 Although there are very few requests to give advisory opinions at the moment, when Protocol 16 comes into force it is likely that the Grand Chamber will get many more. See Dzehtsiarou K and O'Meara N, ‘Advisory Jurisdiction and the European Court of Human Rights: a Magic Bullet for Dialogue and Docket-Control?’ (2014) 34 LS 444 .

72 T May, ‘Speech to the Conservative Party Conference’ (Birmingham, 5 October 2016) <http://press.conservatives.com/post/151378268295/prime-minister-the-good-that-government-can-do>.

73 Al Skeini v the United Kingdom, App No 55721/07, Judgment of 7 July 2011.

74 R Ekins, ‘How to Address the Reach of European Human Rights Law’ (Written evidence submitted by the Judicial Power Project to the Defence Sub-Committee investigation on Ministry of Defence support for former and serving personal subject to judicial processes inquiry, 18 October 2016) <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/defence-subcommittee/mod-support-for-former-and-serving-personnel-subject-to-judicial-processes/written/41201.html>.

75 Ekins R, Morgan J, and Tugendhat T, Clearing the Fog of War: Saving Our Armed Forces from Defeat by Judicial Diktat (Policy Exchange 2015).

76 See de Londras and Dzehtsiarou (n 30) and Bates E, ‘The UK and Strasbourg: A Strained Relationship – The Long View’ in Ziegler K, Wicks E and Hodson L (eds), The UK and European Human Rights – A Strained Relationship? (Hart Publishing 2015) 39 .

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