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Challenging the Unconditional: Partial Compliance with ECtHR Judgments in the South Caucasus States

  • Ramute Remezaite (a1)

Abstract

The European human rights system has long been seen as one of the greatest European achievements, with its European Court of Human Rights (ECtHR) as the world's leading human rights court. Current turbulent times, however, pose serious challenges to the European system, which is increasingly being contested by the deepening ‘implementation crisis’. The absolute obligation of member states of the Council of Europe (CoE) to abide by ECtHR judgments under Article 46 of the European Convention on Human Rights has been increasingly compromised by the selective approach of states, often resulting in minimal, dilatory, lengthy or even contested compliance with ECtHR judgments. As the implementation backlog has grown largely after the accession to the CoE of the newly emerged states, as aspiring democracies, in the late 1990s and early 2000s following the collapse of the Soviet Union, this article analyses the compliance behaviour of these states by looking at the South Caucasus states: Armenia, Azerbaijan and Georgia. The research findings suggest that partial compliance is a very likely form of compliance in the South Caucasus states as democratising states, and that some of the factors that explain such behaviour discussed in the article may be distinctive of states that joined the CoE as emerging democracies after the collapse of the Soviet Union. These states continue to display various vulnerabilities in the areas of human rights, the rule of law and democracy. This, in turn, has serious implications for the whole European human rights system and its ability to ensure that states’ commitments to the CoE are duly respected in the longer term.

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References

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1 Nils Muižnieks, ‘Non-implementation of the Court's Judgments: Our Shared Responsibility’, Council of Europe, The Commissioner's Human Rights Comments, 23 August 2016, https://www.coe.int/en/web/commissioner/blog/-/asset_publisher/xZ32OPEoxOkq/content/non-implementation-of-the-court-s-judgments-our-shared-responsibility?_101_INSTANCE_xZ32OPEoxOkq_languageId=en_GB; Open Society Justice Initiative, From Judgment to Justice: Implementing International and Regional Human Rights Judgments (Open Society Foundations 2010) 11; European Implementation Network, ‘EIN Launch Event: A Strong Call for Collective Responsibility over Implementation of ECtHR Judgments’, EIN News, 6 December 2016, http://www.einnetwork.org/ein-news-past-editions/2016/12/6/ein-launch-event-a-strong-call-for-collective-responsibility-over-implementation-of-european-court-judgments.

2 Council of Europe, ‘Supervision of the Execution of Judgments of the European Court of Human Rights: 11th Annual Report of the Committee of Ministers 2017’, March 2018, 64, https://rm.coe.int/annual-report-2017/16807af92b (CoE 11th Annual Report 2017). Seven out of ten ‘main states with cases under enhanced supervision’ are states that joined the CoE in the early 1990s and later: Azerbaijan, Bulgaria, Hungary, Moldova, Romania, Russia and Ukraine.

3 2017 saw a remarkable decrease to almost 7,600 cases compared with 9,941 cases in 2016 and 11,099 in 2012 (rising from 709 in 1996). This, however, is a result of the new policy of ‘partial closure’, which changes the method of calculating the number of cases that are closed when individual measures have been implemented but general measures have not been yet resolved; therefore, in the author's view, they cannot be considered as indicating a higher rate of implementation: ibid 62. The 11th Annual Report (ibid) documents a sharp reduction in the total number of cases awaiting implementation compared with 9,941 cases in 2016 and 11,099 in 2012.

4 ibid 75.

5 ibid 76. ‘Leading cases’ are defined as those that give rise to new structural and/or systemic problems, and therefore require new general measures.

6 ibid 10, 13.

7 Philip Leach and Alice Donald, ‘Russia Defies Strasbourg: Is Contagion Spreading?’, EJIL: Talk! Blog, 19 December 2015, https://www.ejiltalk.org/russia-defies-strasbourg-is-contagion-spreading.

8 Council of Europe Committee of Ministers, Interim Resolution CM/ResDH(2017)429, Execution of the Judgment of the European Court of Human Rights, Ilgar Mammadov against Azerbaijan (adopted by the Committee of Ministers on 5 December 2017 at the 1302nd meeting of the Ministers’ Deputies), 7 December 2017 (to initiate infringement proceedings and to refer the case to the ECtHR under Article 46(4) of the European Convention on Human Rights (ECHR) as a result Azerbaijan's failure to comply with the repeated calls of the CM to release Ilgar Mammadov).

9 CoE 11th Annual Report 2017 (n 2) 83–84. As at 31 December 2017 late payments were pending in 95 cases against Azerbaijan, 230 cases against Russia and 212 against Ukraine. These numbers increased significantly in 2017 compared with those in 2016. By way of comparison, Georgia was late in paying compensation in one case, Armenia had no cases with late payments, Bulgaria 4, Romania 16, Italy 35.

10 Council of Europe, ‘Supervision of the Execution of Judgments of the European Court of Human Rights: 10th Annual Report of the Committee of Ministers 2016’, March 2017, 284, https://rm.coe.int/prems-021117-gbr-2001-10e-rapport-annuel-2016-web-16x24/168072800b.

11 ibid 13.

12 Partial compliance as a concept was first suggested by Darren Hawkins and Wade Jacoby in their article Partial Compliance: A Comparison of the European and Inter-American Courts of Human Rights’ (2010) 6 Journal of International Law and International Relations 35.

13 Gerards, Janneke and Fleuren, Joseph (eds), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case Law: A Comparative Analysis (Intersentia 2014) 35; Başak Çalı, Anne Koch and Nicola Bruch, ‘The Legitimacy of the European Court of Human Rights: The View from the Ground’, 2 May 2011, University College London, 35–37, https://ecthrproject.files.wordpress.com/2011/04/ecthrlegitimacyreport.pdf.

14 CoE 11th Annual Report 2017 (n 2) 14.

15 Shany, Yuval, ‘Assessing the Effectiveness of International Courts: A Goal-Based Approach’ (2012) 106 American Journal of International Law 225; Open Society Justice Initiative, Strategic Litigation Impacts: Insights from Global Practice (Open Society Foundations 2017) 2627.

16 Parliamentary Assembly of the Council of Europe (PACE), Recommendation 1247 (1994), Enlargement of the Council of Europe; 4 October 1994, http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=15281&lang=en; PACE Report, ‘Georgia's Application for Membership of the Council of Europe’, Doc 8275, prepared by the Political Affairs Committee and its Rapporteur Mr Terry Davis (UK, Socialist Group), 2 December 1998; PACE Report, ‘Armenia's Application for Membership of the Council of Europe’, Doc 8747, prepared by the Political Affairs Committee and its Rapporteur Mr Demetrio Volcic (Socialist Group), 23 May 2000; PACE Report, ‘Azerbaijan's Application for Membership of the Council of Europe’, Doc 8748, prepared by the Political Affairs Committee and its Rapporteur Mr Jacques Baumel (France, European Democratic Group), 23 May 2000.

17 PACE, Opinion 209 (1999), Georgia's Application for Membership in the Council of Europe, 12 January 1999, http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=16669&lang=en; PACE, Opinion 221 (2000), Armenia's Application for Membership of the Council of Europe, 28 June 2000, http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=16815&lang=en; PACE, Opinion 222 (2000), Azerbaijan's Application for Membership of the Council of Europe, 28 June 2000, http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=16816&lang=en.

19 Statute of the Council of Europe (entered into force 5 May 1949) CETS 001, arts 3 and 4.

20 PACE Report, Georgia's Application (n 16) Annex II para 7.

21 Spielmann, Dean, ‘Foreword’ in Motoc, Iulia and Ziemele, Ineta (eds), The Impact of the ECHR in Democratic Change in Central and Eastern Europe: Judicial Perspectives (Cambridge University Press 2016) xxv, xxv; Sadurski, Wojciech, ‘Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments’ (2009) 9 Human Rights Law Review 397.

22 PACE Report, Armenia's Application (n 16) App I.

23 Andrew Drzemczewski, ‘Human Rights in Europe: An Insider's View’, Inaugural Professorial Lecture, School of Law, Middlesex University, 18 January 2017. A shortened version of the lecture was published in (2017) 2 European Human Rights Law Review 134–44.

24 PACE Report, Georgia's Application (n 16) para 91; PACE Report, Armenia's Application (n 16) para 116; PACE Report, Azerbaijan's Application (n 16) paras 108, 112.

25 PACE Report, Azerbaijan's Application (n 16), Apps 4 and 7.

26 PACE Report, Georgia's Application (n 16); PACE Report, Armenia's Application (n 16); and PACE Report, Azerbaijan's Application (n 16).

27 PACE Report, Azerbaijan's Application (n 16) para 43; PACE Report, Armenia's Application (n 16) para 62.

28 PACE Report, Georgia's Application (n 16) para 88; PACE Report, Azerbaijan's Application (n 16) para 109; Transparency International, ‘Corruption Perceptions Index 2015’, https://issuu.com/transparencyinternational/docs/2015_corruptionperceptionsindex_rep?e=2496456/33011041 (ranking Azerbaijan 119th, Armenia 95th and Georgia 48th out of 168 countries).

29 Department for Execution of Judgments of the European Court of Human Rights, ‘Country Factsheets’, last updated 31 December 2018, https://www.coe.int/en/web/execution/country-factsheets.

31 See n 5.

32 Statistics on the HUDOC EXEC database as of 31 December 2018.

33 Interviews conducted with domestic actors in 2016–17; interviews with two Georgian government agents and two MPs conducted in September 2016; interviews with the Armenian Ministry of Justice and Ombudsman Office conducted in April 2017.

34 CoE CM Interim Resolution CM/ResDH(2017)429 (n 8).

35 Council of Europe, ‘Report of the Independent Investigation Body on the Allegations of Corruption within the Parliamentary Assembly of the Council of Europe’, 15 April 2018, http://assembly.coe.int/Communication/IBAC/IBAC-GIAC-Report-EN.pdf.

36 Among others, see the speech by Samad Sayidov, Representative of the Azerbaijani Delegation to PACE, 26 April 2018, https://vodmanager.coe.int/coe/webcast/coe/2018-04-26-1/en [1:20:09].

37 In Azerbaijan, for example, the process for implementing ECtHR judgments is run predominantly by the presidential administration; in Georgia and Armenia, it is under the responsibility of the Ministry of Justice.

38 PACE Report, Azerbaijan's Application (n 16) para 109.

39 PACE Report, Georgia's Application (n 16) para 88.

40 PACE Report, Armenia's Application (n 16) App I.

41 ibid para 62; PACE Report, Georgia's Application (n 16) para 8.

42 Council of Europe Committee of Ministers, Resolution CM/ResDH(2014)209, Execution of the Judgments of the European Court of Human Rights in Five Cases against Georgia (adopted by the Committee of Ministers on 12 November 2014 at the 1211th meeting of the Ministers’ Deputies), 17 March 2016; interviews with representatives of civil society and the Ombudsman Office, 24 September 2015.

43 Council of Europe Committee of Ministers, Notes on the Agenda, H46-8 Identoba and Others v Georgia (App no 73235/12), CM/Notes/1318/H46-8, 7 June 2018; case progress description in the cases of Sargsyan v Azerbaijan and Chiragov and Others v Armenia on HUDOC EXEC database (last updated 12 December 2018), https://hudoc.exec.coe.int/eng#{%22fulltext%22:[%22Chiragov%20and%20others%20v%20Armenia%22],%22EXECDocumentTypeCollection%22:[%22CEC%22],%22EXECIdentifier%22:[%22004-353%22]}.

44 CoE 11th Annual Report 2017 (n 2) 83–84.

45 CoE CM Interim Resolution CM/ResDH(2017)429 (n 8) Appendix: Views of the Republic of Azerbaijan, para 23.

46 ECtHR, Jafarov v Azerbaijan, App no 69981/14, 17 March 2016; ECtHR, Mammadli v Azerbaijan, App no 47145/14, 19 April 2018, paras 153–63; ECtHR, Rashad Hasanov and Others v Azerbaijan, App no 48653/13 and three others, 7 June 2018, paras 116–27; ECtHR, Aliyev v Azerbaijan, App nos 68762/14 and 71200/14, 20 September 2018, paras 197–216; see also ECtHR, Merabishvili v Georgia, App no 72508/13, 28 November 2017, paras 264–354.

47 Among other CM decisions available on the HUDOC EXEC database see Council of Europe Committee of Ministers, Decisions, H46-3 Mahmudov and Agazade Group v Azerbaijan (App no 35877/04), CM/Del/Dec(2017)1294/H46-3, 21 September 2017; ‘2017 World Press Freedom Index’, Reporters Without Borders, https://rsf.org/en/ranking/2017 (ranking Azerbaijan in 162nd place).

48 ECtHR, Virabyan v Armenia, App no 40094/05, 2 January 2013; ECtHR, Tsintsabadze v Georgia, App no 35403/06, 15 February 2011.

49 Communication of the Coalition for an Independent and Transparent Judiciary to the Committee of Ministers in the Gharibashvili group of cases, received by the CM on 7 March 2017.

50 ibid.

51 ibid; interviews with representatives of Georgian civil society on 24 November 2016, and with a former representative of the Georgian government on 16 January 2018.

52 ‘Freedom in the World 2017: Azerbaijan’, Freedom House, https://freedomhouse.org/report/freedom-world/2017/azerbaijan.

53 CoE, CM Secretariat, ‘Communication from NGOs (Identoba, the Women's Initiatives Support Group (WISG), Amnesty International and ILGA-Europe) in the Case of Identoba and Others v Georgia (Application No. 73235/12)’, Submission to the Committee of Ministers, Council of Europe, 24 November 2016, DH-DD(2016)1303, paras 23, 40, https://www.ilga-europe.org/sites/default/files/Attachments/2016_11_identoba_wisg_ai_ie_submission_government_response_dh-dd20161303e.pdf.

54 European Commission against Racism and Intolerance, ‘ECRI Report on Georgia’, CRI(2016)2, 1 March 2016, para 104, https://rm.coe.int/fourth-report-on-georgia/16808b5773.

56 Dothan, Shai, ‘A Virtual Wall of Shame: The New Way of Imposing Reputational Sanctions on Defiant States’ (2017) 27 Duke Journal of Comparative & International Law 141, 181.

57 The reforms were first documented by the ECtHR in the subsequent similar case of Goginashvili v Georgia, App no 47729/08, 4 October 2011, para 55.

58 European Prison Rules (Council of Europe Publishing 2006), https://rm.coe.int/european-prison-rules-978-92-871-5982-3/16806ab9ae.

59 Government Reports to the CM on 27 January 2014, 4 August 2014, 30 September 2014.

60 Interview with a representative of the Ministry of Justice of Georgia, 14 October 2016.

61 Interview with representatives of the Ministry of Justice of Georgia, 11 September 2015 and 14 October 2016. The CM closed the examination of the Ghavtadze group of cases on 12 November 2014: CM Resolution CM/ResDH(2014)209 (n 42).

62 All interviewed Georgian actors mentioned the Kiladze case as an illustrative example of compliance with ECtHR judgments, referring to the government's political will to undertake reforms and the introduction of necessary changes.

63 CoE, CM Secretariat, ‘Communication from Georgia concerning the Case of Klaus and Yuri Kiladze against Georgia (Application No. 7975/06)’, Submission to the Committee of Ministers, Council of Europe, 5 December 2014, DH-DD(2014)1508, paras 13–14, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804a30d4.

64 ibid para 16. In their submission to the CM, received on 24 January 2012, the two NGOs representing clients submitted that the compensation ranged between 46 and 230 euros.

65 CoE, CM Secretariat, ‘Communication from NGOs (Georgian Young Lawyers Association (GYLA) and European Human Rights Advocacy Centre (EHRAC)) in the Case of Klaus and Youri Kiladze against Georgia (Application No. 7975/06)’, Submission to the Committee of Ministers, Council of Europe, 24 January 2012, DH-DD(2012)238, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168063c993.

66 ECtHR, Burdiashvili and Others v Georgia, App no 26290/12, 23 September 2013 (currently awaiting judgment).

67 ‘Georgia Amends Legislation Following European Court Case’, EHRAC News, 13 November 2014, http://ehrac.org.uk/news/georgia-amends-legislation-following-european-court-case.

68 Communication from Georgia concerning the Case of Klaus and Yuri Kiladze against Georgia (n 63) paras 13–14.

69 Interview with a representative of the Georgian Ministry of Justice, 24 September 2015.

70 Council of Europe Committee of Ministers, ‘Brussels Declaration – High-level CM Conference on the “Implementation of the European Convention on Human Rights, Our Shared Responsibility”’, 27 March 2015, is the latest high level political agreement on the need to enhance implementation efforts; Council of Europe Committee of Ministers, ‘Copenhagen Declaration – High-level Conference Meeting in Copenhagen’, 12–13 April 2018.

71 PACE, Recommendation 1764 (2006), Implementation of the Judgments of the European Court of Human Rights, 2 October 2006, para 1.4, http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17471&lang=en.

72 Council of Europe Committee of Ministers, Recommendation CM/Rec(2008)2 of the Committee of Ministers to Member States on Efficient Domestic Capacity for Rapid Execution of Judgments of the European Court of Human Rights, CM/Rec(2008)2, 6 February 2008, para 5.

73 Interview with a representative of the Georgian Ministry of Justice, 24 September 2015.

74 Interviews with former representatives of the Ministry of Justice of Georgia and the Ombudsman Office, 24 September 2015; interviews with human rights lawyers from Armenia and Azerbaijan, 22 April 2017 and 15 May 2017 respectively.

75 Drzemczewski, Andrew and Gaughan, James, ‘Implementing Strasbourg Court Judgments: The Parliamentary Dimension’ in Benedek, Wolfgang and others (eds), European Yearbook on Human Rights (European Academic Press 2010) 233, 240.

76 Interview with an opposition member of the parliament, a representative of the parliamentary human rights committee, 14 September 2015.

77 I discuss the role of civil society and its impact on the implementation process in greater detail in my forthcoming PhD thesis on compliance with ECtHR judgments in the South Caucasus states.

78 Laurence R Helfer and Erik Voeten, ‘Do European Court of Human Rights Judgments Promote Legal and Policy Change?’, paper presented at the International Law Workshop, University of Chicago Law School, 22 April 2011.

79 Rules of the Committee of Ministers for the Supervision of the Execution of Judgments and of the Terms of Friendly Settlements (entered into force 10 May 2006), r 9.2.

80 Goodman, Ryan and Jinks, Derek, Socializing States: Promoting Human Rights through International Law (Oxford University Press 2013); Brunnée, Jutta and Toope, Stephen J, Legitimacy and Legality in International Law: An International Account (Cambridge University Press 2010).

81 Goldsmith, Jack L and Posner, Eric A, The Limits of International Law (Oxford University Press 2005); Guzman, Andrew T, How International Law Works: A Rational Choice Theory (Oxford University Press 2010).

82 Motoc and Ziemele (n 21).

83 ECtHR, Merabishvili v Georgia, App no 72508/13, 28 November 2017; ECtHR, Mammadov v Azerbaijan, App no 15172/13, 22 May 2014.

84 Hawkins and Jacoby suggested five forms of partial compliance: split decisions, state substitution, slow motion compliance, impossible requests, and disputes over details: Hawkins and Jacoby (n 12) 38.

85 ‘Status of Execution’ in the case of Rasul Jafarov v Azerbaijan, App no 69941/14, https://hudoc.exec.coe.int/eng#{"fulltext":["Rasul Jafarov v Azerbaijan"],"EXECDocumentTypeCollection":["CEC"],"EXECIdentifier":["004-1605"]} (last visited 7 October 2018).

86 ‘Communication from the Georgian Young Lawyers Association and the European Human Rights Advocacy Centre to the Department for Execution of Judgments of the European Court of Human Rights on the Implementation of the Case of Tsintsabadze v Georgia (App no 35403/06)’, 30 August 2018.

87 For a similar status of execution see ECtHR, Virabyan v Armenia group, App no 40094/05, 2 January 2013.

88 ‘Status of Execution’ in the case of Mahmudov and Agazade v Azerbaijan, https://hudoc.exec.coe.int/eng#{"fulltext":["Mahmudov"],"EXECDocumentTypeCollection":["CEC"],"EXECIdentifier":["004-1709"]} (last visited 11 October 2018).

89 CoE CM Secretariat, ‘Communication from the Applicant (27 July 2018) in Sargsyan v Azerbaijan (Application No. 40167/06)’, submitted to the Department for Execution of Judgments of the European Court of Human Rights, 9 October 2018, DH-DD(2018)980, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016808e49f2.

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