The which indicate that the CoE has

The execution of judgments of the European Court of Human Rights (ECtHR) is paramount for the credibility of the human rights protection system and for the rights enshrined in the European Convention on Human Rights (ECHR) not to be illusory. Hence, the efficacy and effectiveness of the ECHR as well as the impact and the future of the Council of Europe (CoE) are dependent on the implementation of judgments of the Court. The Court would not have any significant impact on the protection of human rights without having its judgments implemented by respondent states.

              Both the Court and the Convention have succeeded in establishing their influence and authority.1 However, the lack of direct and executive power over sovereign signatory parties to the Convention as well as some states’ noncompliance with the Court judgments for legal and political reasons have made the systematic and rapid implementation of the judgments very challenging. As a consequence, compliance with the Court’s judgments has become a major issue in the political agenda of the CoE. CoE stated that “the execution of the Court’s judgment is an aspect of the European Convention system about which the public still knows very little but which is obviously of prime importance.”2 Protocol 14 to the European Convention and the setting up of the Group of Wise Persons are the examples of developments which indicate that the CoE has recognized that effective enforcement machinery is crucial for its credibility.

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              In this paper, I will be analyzing the challenges related to the execution of and noncompliance with the judgments of the European Court of Human Rights and the guiding principles of this process as well as the major factors that need to be taken into account when designing and enforcing possible solutions. I will be doing so by discussing the developments over the period that the Court has functioned and by explaining the content and purpose of certain parts of the European Convention, particularly the Article 46.

 

The Problem

It is the concern of the CoE that the credibility of the Court may be damaged and the effectiveness of the enforcement system of the judgments may be compromised which will have a grave adverse impact on the protection of human rights within Europe. This damage can be caused by the increasing number of applications before the Court and cumulatively, by states’ failure to comply with the judgments of the Court.3 When Turkey refused to execute the judgment of the Court in the Loizidou case in 1998,4 concerns regarding the capacity of the Court became significantly apparent.5 In 2000, the Committee of Ministers stated that Turkey’s failure to comply with a judgment of the Court was “unprecedented.”6 The intervention of European Union, regarding Turkey’s candidacy to join the EU, seemed like a feasible political solution which in fact produced results – after a new deadline was imposed by the Committee of Ministers on Turkey, the Loizidou case was successfully executed in the late 2003, thanks to using the prospect of Turkey of joining EU as a leverage. However, in the later Mamatkulov Case,7 Turkey, again, attracted the attention of the CoE.

              There have been more examples of deliberate noncompliance with the Court judgments. One of the most famous such cases deals with prisoners’ voting rights in the UK.8 Later the same issue came up in the Russian Federation.9 Both, for different reasons, have been refusing the implementation of the judgments. Additionally, the Russian Federation has been refusing to implement another judgment in which the Court awarded almost 2-billion-Euro compensation to the shareholders of the Russian company to be paid by the Russian government.10 Lastly, and, perhaps, most importantly, in case of Ilgar Mammadov v. Azerbaijan the respondent state failed to implement the judgment by retaining the opposition politician in detention.11 The latter case, due to recent developments, will be brought up later in the paper. At the same time, it’s worth mentioning that there have been other member states that have been systematically failing to comply with the judgments within the required period and have been extending the process for a number of years.

              Such practices have proven to be important – it made the CoE face the explicit refusal to comply with the Court’s judgments, and consequently, it caused the reassessment of the implementation process.12 The Parliamentary Assembly of the CoE in 2000 stated its concerns about the slow implementation of the Court’s rulings: “The Assembly is concerned that the execution of some judgments is causing considerable problems that threaten to undermine what has been achieved over the fifty years during which the Convention has operated. Some judgments of the Court have still not been executed several years later.”13 In 2005, the Rapporteur of the Committee on Legal Affairs and Human Rights, Jurgens, selected a number of decisions of the ECtHR that had not been implemented by respondent states for more than five years after the delivery of the judgment along with other decisions raising important implementation issues to show that a reform was needed in the enforcement mechanism.14 The important question to ask was how the CoE could approach to the imposition of its authority.15

              While it was clear that the enforcement can be encouraged through combined use of human rights mechanisms in Europe – in particular the EU – (i.e. the mutual effort of CoE and the EU in Loizidou case), this has also shown that the implementation could only be achieved through negotiations outside of CoE. As a result, it would not be wrong to argue that the CoE is not as powerful as had been assumed up to that point, and it was not self-sufficient in solving such conflicts internally. Hence, from Protocol 11 through Protocol 14, to the Group of Wise Persons, the focus has been towards improving the effectiveness of the work of the Court in terms of compliance with its judgments.

 

Binding Effect of the ECtHR’s Judgments

According to article 46 of the Convention, all member states undertake to abide by the final judgement of the Court, and it is the Committee of Ministers that has the primary responsibility for supervising the execution of judgements.  The supervisory function of the Committee is based on the collective responsibility. This means that the execution of a judgement is a common concern of all Member States of the Council of Europe and not only a legal obligation for the State concerned.16 CoE has many times emphasized the importance of the principle of subsidiarity, which means that member states have to secure implementation of rights while the Court’s role is subsidiary.17

              Regarding the question whether all member states or only the respondent state is bound by the judgments of the Court, while Article 46 (1)’s literal interpretation suggests that the rulings would find their applications only to the respondent state,18 the Committee of Ministers explicitly declared in 2000 that, according to the principle of solidarity, the Court’s case law is part of the European Convention, and therefore has legally binding force for all member states.19 This view is also explicitly declared by the Court in 2004: “All member states are bound to ensure that their domestic set of laws are compatible with the Convention ex Article 1.”20 This principle of solidarity is important since it aims to enlarge the impact of the judgments of the Court to all member states. However, even though it was a central argument of the Court and other CoE bodies, the principle has not produced expected results. The main limitation was that it was extremely hard to expect member states to include the judgments of the Court in their legal systems without waiting for the subject to be raised against them before the Court.

              Another limitation of the principle of solidarity is that the Court can only address specific legal circumstances referring to a ‘respondent’ state. It cannot assess the relevance and applicability of the circumstances in other member states because this “would go beyond the object of the specific case.” Therefore, it is the member states’ and their domestic judges’ decisions to “abide by the jurisprudence of the Court and to assess the relevant domestic provisions in light of the interpretations offered by the Court.”21

              The ECtHR tried to clarify the accessible ways for the member states to implement the Convention rights into their systems. The Court emphasized that these rights should be interpreted in a “practical and effective” manner.22 This is a sign showing that the Court tried to impose a discipline on the member states by “inviting them to adjust their internal legal systems in a way that would adhere to the principles and aims of the Convention, and would remove the obstacles that hinder citizens from accessing their rights.”23 Accordingly, the combination of Article 46 (1) and the principle of solidarity provides a legal obligation for the respondent state and all other member states to adjust their legal systems to the Convention in accordance with the latest Court judgments.

 

The Committee of Ministers’ Role of Supervising Execution

While the enforcement machinery is solely the responsibility of the Court, supervision of execution is the responsibility of the Committee of Ministers: The Court acts on judicial grounds, the Committee acts on political grounds. The responsibility for the execution of the Court’s judgments passes on to the Committee of Ministers, which has the task of supervising execution.24 According to the Article 54 of the Convention, when the Committee of Ministers receives the final judgment from the Court, it invites the respondent state to inform the Committee about the steps taken in order to fulfill the judicial requirements.25 The Department for the Execution of Judgments of the European Court monitors the execution, and reports back to the Committee of Ministers. All the final judgments remain pending before the measures adopted by the respondent state satisfy the requirements of the Convention as interpreted by the Court.26

              The supervision mechanism is basically founded on the collective responsibility and political and moral pressure. It is worth to mention that the Committee of Ministers is formed by Ministers of Foreign Affairs or their representatives from all of the member states of the CoE. There are two types of political pressure in the monitoring system: The supranational political pressure from the Committee as a body of the CoE, and the peer political pressure coming from the other states through their representation in this body. Decisions are taken at every human rights meeting to express concern or acknowledge progress as well as to encourage the respondent States to continue their efforts to execute the judgements. If the Committee exhausted all the resources of political pressure, it has the power to suspend the right to vote of the non-respondent state as a final measure, or, in extreme cases, it can expel the non-respondent state from the CoE; this is a power that derives from Article 8 of the Statute of the CoE. The Committee has never resorted to such measures for reasons related to non-compliance with the ECtHR judgment. However, it recently initiated the procedure to pursue such measures against Azerbaijan within the case of Ilgar Mammadov v. Azerbaijan. I will return to this discussion later.

              While it is acknowledged that the Committee of Ministers should apply more pressure when supervising the execution of the rulings, the Committee has expressed its disappointment many times about persistent violation of the obligation to execute judgments, and has launched a number of appeals to member states. Hence, it is clear that the strategy of exerting political pressure has not produced the desirable results. The CoE has shown increasing concern over execution of rulings and have adopted some steps to improve implementation, including strengthening the role of the Committee of Ministers who should assume an increasingly strategic position within the system.

 

Protocol 14

Thanks to the efforts to safeguard the human right protection system, Protocol No. 14 to the Convention was adopted and opened for signature in 2004.27 With the purpose of improving effectiveness,28 the Protocol amended the judicial system of the Court, simplifying the mechanism by allowing the Court to focus on the most important cases.

The three main aims of the Protocol can be counted as preventing breaches of the Convention at national level through encouraging the introduction of training and university education,29 monitoring the compatibility of domestic legislation with the Convention, and revising the control system in order to improve the rate of the execution of judgments. In addition, the role of the Committee of Ministers is reinforced by this Protocol with the amended Article 46. Paragraphs 4 and 5 of Article 46 authorize the Committee to notify the respondent state of its obligation to comply and to bring infringement proceedings to the Court sitting as the Grand Chamber.30 The Grand Chamber then decides on judicial grounds whether a breach in execution of judgments has occurred, but compliance measures remain political and are left to the Committee. The Grand Chamber would administer a proceeding for non-compliance with the aim of securing execution, as it is clearly stated: “It is felt that the political pressure exerted by proceedings for non-compliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned.”31 Therefore, the new Article 46 basically aims to provide a systematic and persistent pressure on non-compliant states to push them to comply with the obligations deriving from the judgments and to avoid repeat violations.

However, the mechanism has been reliant to remain only based on political pressure and to the power to suspend the right to vote or to expel the non-respondent state. Yet, the explanatory report states that suspension or expulsion is not a resource the CoE should easily adopt, as it is felt to be counter-productive for the position of individuals in the contravening member state.32 On the other hand, the Loizidou and Mamatkulov cases mentioned above and the experience with the non-compliant countries show that external political pressure do not provide long term positive changes.

              The Committee of Ministers has been very passive when it comes to the powers under the paragraphs 4 and 5 of the article 46 of the Convention. Until the end of 2017, it had never pursued measures to counter noncompliance with the Court judgments. However, in the end of 2017, within the case of Ilgar Mammadov v. Azerbaijan, it adopted an unprecedented decision – to refer to the Court the question whether Azerbaijan has failed to implement the judgment of the Court. In accordance with the article 46.5, if the Court finds that the respondent state has disobeyed the judgment, it will refer the case back to the Committee of Ministers for consideration of the measures to be taken. These measures, as stated above, could go as far as the expulsion of Azerbaijan from the CoE. However, the impact of these actions on the protection of human rights is yet to be seen.

Additionally, in May 2005 the CoE member states established the ‘Group of Wise Persons.’33 This Group is formed by eleven experts in the field of European Human Rights, with the aim of searching strategic ways to reach a better rate of implementation of the judgments in the long term. This group is another clear sign that effectiveness of the CoE judicial system has been a priority and that the CoE is making efforts to address this issue.

 

Discussion

The European Court of Human Rights is one of the greatest accomplishments of the international human rights systems. It has been successful in assessing applications submitted against Member States of ECHR and determining whether the Convention has been violated. However, having a positive impact on the protection of human rights has so far been depended on the willingness of the sovereign respondent States to comply with the judgments of the Court. Due to States’ refusal to cooperate, the Convention system, in some cases, has been unable to prevent repetitive violations of human rights.

For this reason, the mechanism of the CoE system that ensures states’ compliance with the Court judgments is an issue that the trustworthiness and the credibility of the Convention and of the Court depend on. With the adoption of Protocol 14, the human rights framework armed itself against refusal to comply with the judgments. However, these “arms” aka “nuclear option” have not proven to be effective in overcoming the challenge. Due to the gravity of the procedure and the sensitivity of the human rights framework, it has been a great difficulty to convince the members of the Committee of Ministers to resort to invoking the powers enshrined in the article 46 of the Convention.

As the CoE system explores and tries out the new ways of addressing the issue of noncompliance, it will always encounter resistance from governments of sovereign states that are not willing to let people under their jurisdiction exercise their rights and freedoms. Indeed, the principle of sovereignty is and will remain to be an obstacle for the Council of Europe to force governments comply with the Court judgments. This is where the political methods can be made useful – perhaps, the key to an effective solution is the combination of the international law and international politics. An apparent example of this, as discussed in the beginning, was demonstrated in the case of Loizidou v. Turkey.34

1 R. Beddard, Human Rights and Europe (Grotius Publisher, 1993); A. H. Robertson and J. G. Merrills, Human Rights in Europe (Manchester University Press, 1993), 376; M. Janis, R. Kay and A. Bradley, European Human Rights Law (OUP, 2000).

2 Council of Europe, A Unique and Effective System, Section 1, http://www.coe.int/T/E/Human_rights/execution/01_Introduction/01_Introduction.asp.

3 Explanatory Report, Protocol 14, paras 4 & 6; Woolf Review, Review of the Working Methods of the European Court.

4 Loizidou v. Turkey, 15318/89, para 60.

5 Turkish Ministry of Foreign Affairs’ Website, http://www.mfa.gov.tr/grupe/en/contents.htm; Parliamentary Assembly  (September 1998).

6 Committee of Ministers, Interim Resolution Concerning the Judgment of the European Court of Human Rights of July 1998 in the case of Loizidou against Turkey, Interim Resolution DH 105/2000. Mamatkulov and Askarov v Turkey 46827/99 and 46951/99 ECtHR (2005) 64.

7 Mamatkulov and Askarov v Turkey 46827/99 and 46951/99 ECtHR (2005) 64.

8 Hirst v United Kingdom (No 2) 74025/01

9 Anchugov and Gladkov v. Russia 11157/04

10 Oao Neftyanaya Kompaniya Yukos v. Russia 14902/04

11 Ilgar Mammadov v. Azerbaijan (No. 2) 919/15

12 Venice Commission (European Commission for Democracy Through Law), Draft Opinion on the Implementation of the Judgments of the European Court of Human Rights, 209/2002.

13 Council of Europe Resolution 1226/2000, para. 5.

14 Jurgens, Implementation of Judgments of the European Court of Human Rights – Introductory Memorandum

15 E. Jurgens, Committee on Legal Affairs and Human Rights, Implementation of Judgments of the European Court of Human Rights – Introductory Memorandum, Parliamentary Assembly, AS/Jur 35/2005.

16 European Commission for Democracy Through Law, Opinion on the Implementation of the Judgments of the European Court of Human Rights, 11.

17 See, inter alia, Explanatory Report, paras. 11–12.

18 R. Masterman, ‘Taking the Strasbourg Jurisprudence into Account: Developing a “Municipal Law of Human Rights” Under the Human Rights Act’, 54. (2005)

19 Resolution 1226/2000, Execution of Judgments of the European Court of Human Rights, Parliamentary Assembly (30th Sitting), Council of Europe, para. 3.

20 Maestri v Italy, Application No. 39748/98, 2004 ECtHR 77, para. 47.

21 Group of Wise Persons, Interim Report of the Group of Wise Persons to the Committee of Ministers, cM 88e/2006, Chapter 9.

22 Airey v Ireland, Application No. 6289/73, 1979 ECtHR 3, para. 24; Marckx v Belgium, Application No. 6833/74 1979 ECtHR 2; McCann and Others v United Kingdom, Application No. 18984/91 1995 ECtHR 31; Özgür Gündem v Turkey, Application No. 23144/93 2000 ECtHR 104.

23 A. Mowbray, ‘ The Creativity of the European Court of Human Rights’, 5 H.R.L. Rev. 57 (2005), 72–78.

24 Van Dijk et al, Theory and Practice of the European Convention on Human Rights (Chapter 3 revised by l. Zwaak).

25 “The judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution”, European Convention, Article 54.

26 Council of Europe, http://www.coe.int/t/e/Human_ rights/execution/02_Documents/PPcasesexecution.asp; Cases pending for supervision of execution as appearing in the Annotated Agendas of the Committee of Ministers’ Human Rights meetings and decisions taken, Information presented for the Minister’s Deputies’ 970th meeting, 4–5 July 2006, sections 2–5.

27 F. Sundberg, ‘Control of Execution of Decisions under the European Convention on Human Rights’, 468.

28 V. Starace, ‘Modifications Provided by Protocol No. 14 Concerning Proceedings Before the European Court of Human Rights’, Law and Practice of International Courts and Tribunals (2006).

29 Explanatory Report to Protocol 14, para. 14; Recommendation (2004) 4 of the Committee of Ministers on the European Convention on Human Rights in University Education and Professional Training.

30 The Court, under the provisions of paras. 4 and 5, will sit in Grand Chamber, in Explanatory Report to Protocol 14, para. 99.

31 Ibid.

32 Ibid, para. 100.

33 Third Summit of the Council of Europe, Warsaw, 16–17 May 2005. For a general view of the Group’s work, see A. Mowbray, ‘Beyond Protocol 14’, 6 H.R.L. Rev. (2006), and Mowbray, ‘Faltering Steps on the Path to reform of the Strasbourg Enforcement System’.

34 Loizidou v. Turkey, 15318/89, para 60.