Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

personal capacities of the Secretariat have not been increased, it is currently adopting a minimised and a prioritised supervision. The reforms have led to ‘two (simplified and enhanced) practical supervision methods’, which should be ‘parallel and interdependent’.55 The priority would be on three types of cases: the ‘inter-state cases, pilot judgments and other cases raising significant and/or complex structural problems that may give rise to numerous repetitive cases, and judgments requiring urgent individual measures’.56 In all cases, the approach is still of a noncoercive nature.57 The ‘simplified’ procedure, which will be the most common, means that the supervision of the CoM will be purely formal, limiting itself to ‘verifying whether or not action plans or action reports have been presented by member states’.58 It is expected to speed-up the adoption of a final resolution and be less time-consuming for the Secretariat. Nevertheless, one may fear that, relying upon the bona fides of the State is not reassuring, as, without any political and collective pressure of the CoM, the implementation of some judgments might be less effective. If the States do not submit an action plan or an action report after six months, a reminder will be sent to the State concerned in the following three months. If the State still has not complied with its duties, the case may be analysed according to the enhanced procedure. If, in due time, the States do not fulfil their obligations (six months is a very short time period), which could occur, this simplified procedure will be a failure. The same assessment is to be applied to the execution of just satisfaction. At the request of some States, and despite the fact that the implementation of the just satisfaction has raised many problems in the past,59 ‘Registration would therefore become the standard procedure and

55Committee of Ministers, ‘Supervision of the Execution of the Judgments and Decisions of the European Court of Human Rights: Implementation of the Interlaken Action Plan – Elements for a Roadmap’, CM/Inf(2010)28 revised, 24 June 2010.

56Ibid.

57Ibid., at 9: ‘Thus, enhanced supervision by the CoM may be conducted by means other than debate, e.g. support by the Execution Department in drawing up and implementing action plans; more intensive bilateral consultations and/or enhanced technical cooperation programs with national authorities and regular reports to the CoM on the progress of execution.’

58Committee of Ministers, ‘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, at 12.

59Committee of Ministers, ‘Monitoring of the Payment of Sums awarded by Way of Just Satisfaction: An Overview of the Committee of Ministers’ Present Practice’, CM/Inf/DH (2008)7 final, 15 January 2009.

supervision the exception’ in these issues.60 In practice, only in cases where the applicant complains within a short time will the Execution Department involve itself in the supervision process. Concerning the enhanced procedure, the Secretariat will have the duty to assist the States in the preparation and/or implementation of action plans, and provide them with expert assistance as regards the type of measures to be adopted. Such expertise is fundamental, as States often do not know how to abide by the judgment. Actually, the ignorance of the State about which measures to implement is relevant in many judgments, in particular those subject to the new standard procedure!

So, relying on the principle of effectiveness, the Court has come to realise that it should get more involved in recommending, or even ordering which measures the State has to take; as a consequence, this new policy also facilitates the responsibility of the CoM. But as the implementation process may be very technical, the Court is not always in the best position to address this task. However, the interference of the Court in some cases, in particular the pilot cases, is useful, in that it puts more pressure on the State to implement the judgment before the deadline prescribed by the Court (sometimes mentioning the measures and the deadline in the operative part of its judgment); although, if the Court goes too far, the risk is that competitive relations with the CoM may become even more complicated.

2.1.1 From competitive relations …

Considering that the execution of judicial decisions is a component of the right to a fair process,61 the European courts (the ECtHR as well as the European Court of Justice (ECJ)) have depoliticised the process of execution. This provides them with the conditions to interfere in that process, particularly when the execution takes time or seems difficult.62 The basis for this evolution is the result of the ‘implied powers’ theory, the ECtHR using article 46 as the legal ground. By basing its reasoning on article 46, and undoubtedly on its paragraph 1 (‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case

60CM/Inf/DH(2010)37, Appendix II.

61ECtHR, Hornsby v. Greece (Appl. No. 18357/91), Judgment (Chamber), 19 March 1997, Report 1997-II, at 40. Cf., more recently, ECtHR, Dubenko v. Ukraine (Appl. No. 74221/01), Judgment (Second Section), 11 January 2005, not reported, at 44.

62See E. Lambert-Abdelgawad, ‘L’Exécution des Décisions des Juridictions Européennes (Cour de Justice des Communautés Européennes et Cour Européenne des Droits de l’Homme)’, Annuaire Français de Droit International 52 (2006) 676–724.

to which they are parties’), even if it does not explicitly mention it,63 the Court recommends, or even orders specific measures to be adopted by the States, even if it reaffirms that the judgments are still, in principle, declaratory.64 Moreover, the Court has the advantage of being the first actor which may decide on the implementation of the judgment, and so it may try to influence the CoM. This is clear for matters where the reopening of judicial procedures is required, or in the pilot cases. In its opinion on 1 December 2009, the CDDH considered ‘Developing the emerging practice of interaction between the Committee of Ministers and the Court in relation to the pilot judgment procedure’.65 Therefore, over the course of several years, the Court has assumed a more important role in the execution of its judgments and has become a major player. This is confirmed by the words couched for article 61 on the procedure for pilot judgments.66

The risk of competition between the ECtHR and the CoM may emerge when the two new mechanisms introduced by Protocol 14 in article 46 are implemented in order to speed up and improve the implementation of the judgments. The CoM used to have little power to sanction the reluctance of some States to abide by the judgments; in practice, interim resolutions have had no impact.67 The infringement proceedings

63ECHR, article 46: ‘Binding Force and Execution of Judgments’: ‘1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.’

64See ECtHR, Abbasov v. Azerbaijan (Appl. No. 24271/05), Judgment (First Section), 17 January 2008, not reported, at 36: ‘The Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention.’

65Steering Committee for Human Rights, Report CDDH(2009)019 Report 69th Meeting, 24–7 November 2009, Addendum I, at C(5). This document includes a great number of proposals; it mentions the cooperation activities between national authorities and the CoM and the interaction between the CoM and the Court, but nothing with regard to the cooperation with the PACE.

66Ibid., para. 9, holds that ‘The CoM, the PACE, the Secretary General of the Council of Europe, and the Council of Europe’s Human Rights Commissioner shall be informed of the adoption of a pilot judgment as well as of any other judgment in which the Court draws attention to the existence of a structural or systemic problem in a Contracting State.’

67See, for instance, Committee of Ministers, ‘Execution of the Judgments of the European Court of Human Rights in 145 cases against the Russian Federation’, Interim Resolution CM/ResDH(2009)43, 19 March 2009.

pursuant to article 46(4) ECHR allow the CoM to apply to the Court in order to have the refusal of a State to adhere to a judgment sanctioned. Neither the Assembly nor the applicants (nor their representatives, nongovernmental organisations (NGOs), or lawyers) have been offered such a right, despite the fact that the Assembly was the first organ to launch the idea of incorporating the possibility of infringement proceedings in the ECHR.68 The risk of abuse is not the main explanation; the idea was to create special links between the Court and the CoM and to give a political (and not a victim) approach to such an appeal. It was admitted that only the CoM (composed of ambassadors representative of the States) would be wise enough not to abuse such a power. The same reasoning has to be applied to the new competence of the CoM to ask the Court to interpret one of its former judgments pursuant to article 46(3) of the ECHR. The danger for the Court is that the way judgments are enacted could be criticised. The opinion shared at the time of the adoption of Protocol 14 was that neither the infringement nor the interpretation appeals would jeopardise the sharing of power between the CoM and the Court. ‘The aim was not to give the Committee of Ministers authority over the work of the Court, but to inform the Court of the difficulties which could arise with certain of its judgments during the execution stage.’69 Thus, from the beginning, there seems to have been a kind of ‘deal’ between the Court and the CoM that very little use of these new appeals will be made, whatever the States’ practice might be, whether or not they abide by the judgments.

Nevertheless, owing to its composition, the CoM, certainly does not have the political willingness to go forward in this direction. Moreover, bringing a case to the Court on the ground of article 46(3) or (4) ECHR means that the CoM has failed in its function of supervising the implementation of the judgments; it will therefore probably be reluctant to display such a failure. Moreover, as the infringement proceedings are not coupled with daily fines, contrary to the practice applied before the ECJ, the impact of such an appeal will undoubtedly not be very high.

68See the references in E. Lambert-Abdelgawad, ‘Le Protocole 14 et l’Exécution des Arrêts de la Cour Européenne des Droits de l’Homme’, G. Cohen-Jonathan and J.F. Flauss (eds.), La Réforme du Système de Contrôle Contentieux de la Convention Européenne des Droits de l’Homme (Brussels: Bruylant, Nemesis, 2005) 79–113.

69Steering Committee for Human Rights, ‘Activity Report on the Reinforcement of the Human Rights Protection Mechanism’, CDDH-GDR(2001)010, 15 June 2001. This opinion was supported by the Venice Commission: ‘Execution of Judgments of the European Court of Human Rights’, Opinion No. 209/2002, 18 December 2002, at 61.

2.1.2 … to some complicated relationship

Some cases illustrate that tensions may arise between the Court and the CoM regarding the implementation of the judgments. An illustrative example is VGT v. Switzerland. In this case, the applicant, an association, alleged that the continued prohibition on broadcasting a television commercial, after the Court had found a violation of the freedom of expression, constituted a breach of article 10. In this case the CoM had closed the implementation process by issuing a final resolution, whereas the reopening of the case at the national stage had not been granted yet. In fact, when an applicant is dissatisfied with the implementation of a judgment delivered by the ECtHR, he/she may come back before the Court itself, alleging a continuous violation. That was also the case for Mehemi and Burdov.70 In these instances, the conflict was resolved by a new judgment of the Court. It declared the case inadmissible in the former, and established a violation in the latter case. In the latter case, the CoM will abide by the judgment and recommendations of the Court to have the judgment properly implemented.

If the Court’s recommendations in a case concerning a general measure are not implemented, follow-up decisions may ensue, raising the same question. Those also evince a failure of the CoM to put pressure on States and have them abide by the first judgment of the Court. For example, Rumpf v. Germany71 is a repetitive case following the Sürmeli judgment.72 The Greens and M.T. v. UK case73 is also a repetitive judgment after Hirst (No. 2),74 despite the interim resolution in this case.75

It is worth mentioning that the CoM closes its supervisory function when the applicant decides to bring his/her case before the ECtHR once more. This happened in the Hertel v. Switzerland and Öcalan v. Turkey cases.76

70ECtHR, Mehemi v. France (No. 2) (Appl. No. 53470/99), Judgment (Third Section), 10 April 2003, Reports 2003-IV; ECtHR, Burdov v. Russia (No. 2) (Appl. No. 33509/04), Judgment (First Section), 15 January 2009, Reports 2009.

71ECtHR, Rumpf v. Germany (Appl. No. 46344/06), Judgment (Fifth Section), 2 September 2010, Reports 2010.

72ECtHR, Sürmeli v. Germany (Appl. No. 75529/01), Judgment (Grand Chamber), 8 June 2006, Reports 2006-VII.

73ECtHR, Greens and M.T. v. UK (Appl. Nos. 60041 and 60054/08), Judgment (Fourth Section), 23 November 2010, Reports 2010.

74ECtHR, Hirst v. UK (No. 2) (Appl. No. 74025/01), Judgment (Grand Chamber), 6 October 2005, Reports 2005-IX.

75‘Execution of the Judgment of the ECtHR Hirst v. UK (No. 2)’, Interim Resolution CM/ ResDH(2009)160, 3 December 2009.

76ECtHR, Öcalan v. Turkey (Appl. No. 5980/07), Decision (Second Section), 6 July 2010, not reported.

Consequently, in many cases, the ECtHR’s position will prevail, as was the situation in the VGT v. Switzerland judgment. The Swiss government had no other choice but to reopen the case, whereas the reopening had been refused by the Swiss Federal Tribunal following the first judgment of the Court. Another recent judgment, Emre v. Switzerland (No. 2),77 confirms the willingness of the majority of the Court78 to play a greater role. But it would appear that if the Court goes too far, States will refer to the principle of subsidiarity alleging their margin of appreciation in implementing judgments. The risk is that States may refuse to implement some of the judgments of the ECtHR, which could jeopardise the whole system and the legitimacy of the judicial organ.

Another cause of further tension between the CoM and the Court could arise from a very recent proposal by some judges and the Registry of the Court, to send repetitive cases directly to the CoM instead of losing time dealing with them.79 Until now, the idea has not been welcomed by the CoM.

2.2 The PACE’s involvment in the implementation process and its impact

The PACE’s involvement in the implementation process is to increase the pressure not on the Court, but mostly on the CoM; it focuses on the most urgent and serious cases.

2.2.1 A complementary role

The Assembly’s involvement in the task of supervising the execution of judgments is the result of a gradual process, and currently takes a number of forms.80 First, members of the Assembly do not hesitate to use written

77ECtHR, Emre v. Switzerland (No. 2) (Appl. No. 5056/10), Judgment (Second Section), 11 October 2011, not reported.

78See the Dissenting Opinion of Judge Malinverni.

79See L. Wildhaber, ‘Rethinking the European Court of Human Rights’, in J. Christoffersen and M.R. Madsen (eds.), The European Court of Human Rights between Law and Politics

(Oxford University Press, 2011) 204–29, at 224: ‘… if class actions were handled collectively, and if repetitive matters were sent directly to the CM and/or the States, matters would definitely look more hopeful’.

80See 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’, H. Hartig (ed.), Trente Ans de Droit Européen des Droits de l’Homme: Études à la Mémoire de Wolfgang Strasser (Brussels: Nemesis, Bruylant, 2007) 55–63.

questions to obtain explanations from the CoM concerning its failure to have certain judgments implemented correctly and within reasonable time.81 The CoM is required to provide a written answer.82 When oral questions are raised by members of the PACE to the Chair of the Ministers’ Deputies at each session, the CoM is frequently called upon to provide an explanation concerning judgments which have not yet been executed. One of the PACE’s four annual sessions now includes an agenda item on the implementation of the judgments. In addition to the drafting of a report, the discussion leads to the adoption of a recommendation and/or a resolution. With the adoption of Resolution 1226 (2000), the PACE decided to hold regular debates about the execution of judgments on the basis of a record of execution that it would keep. Its Committee on Legal Affairs and Human Rights decided to use two criteria when compiling this record: first, the time elapsed since the Court’s decision (five years for the first record) and, second, the urgency attached to the implementation of certain decisions. The use of this procedure is based on the principle that only national delegations ‘have the competence to call their governments to account within their own national parliamentary procedure’,83 in an objective manner, for action taken on a judgment. More generally, the Assembly ‘again calls upon national delegations to monitor the execution of specific Court judgments concerning their governments through their respective parliaments and to take all necessary steps to ensure their speedy and effective execution’.84

The Assembly also envisages, in cases where States prove more reluctant, asking the minister of justice of the state concerned to give an

81For example, see Written Question No. 402 from Mr. Clerfayt (Doc. 9272) regarding Turkey’s non-compliance with judgments concerning violations of article 5 of the Convention and the Committee’s reply dated 16 January 2002, Parliamentary Assembly, ‘Non-compliance of Turkey with European Court of Human Rights Judgments’, Doc. 9327, 21 January 2002.

82For example, Parliamentary Assembly, ‘Written Question No. 378’, 10 September 1998, from certain members of the PACE asking the CoM to explain the length of time necessary for full execution of all the judgments pending for more than three years. See also, more recently, Parliamentary Assembly, CM/AS(2007)Quest487–488 final, 23 March 2007, ‘Written Questions by Mr. Austin to the Chair of the CoM: a. No. 487: “Conditions of Detention for Mr Öcalan”; b. No. 488: “Execution of the Judgment of the ECtHR in the Öcalan case”.’

83Parliamentary Assembly, ‘Implementation of Decisions of the European Court of Human Rights’, Resolution 1268 (2002), 22 January 2002, at 10.

84Ibid., at 11.

explanation to the Assembly in person. This measure was included in Resolution 1226 (2000) on ‘Execution of judgments of the European Court of Human Rights’; in this Resolution, the Assembly also decided to ‘adopt recommendations to the CoM, and through it to the relevant states, concerning the execution of certain judgments, if it [noticed] abnormal delays’, to hold an ‘urgent debate’, if necessary, ‘if the state in question [had] neglected to execute or deliberately refrained from executing the judgment’, to open a monitoring procedure should a member state refuse to implement a decision of the Court, and even to ‘envisage, if these measures [failed], making use of other possibilities, in particular those provided for in its own Rules of Procedure and/or of a recommendation to the CoM to make use of article 8 of the Statute [i.e. challenging the credentials of a national delegation]’. Finally, the Assembly has secured a promise from the CoM that a regular formal consultation will take place between the Committee’s Rapporteur Group on Human Rights and the Assembly’s Committee on Legal Affairs and Human Rights,85 so that the different national delegations can question their governments without delay where the latter fail to fulfil their obligation to execute judgments. This measure was, however, a complete failure, as the CoM is jealous of its prerogatives and is opposed to such a sharing of responsibilities.86

Encouraged by official recognition of its role from the CoM itself,87 the Assembly has decided to step up its supervision procedure by adopting a

85Committee of Ministers, see ‘Reply from the CoM to Recommendation 1546 (2002) on the implementation of decisions of the ECtHR’ PACE, First part of 2002 Session, Adopted texts, and Committee of Ministers, Notes on the Agenda, 782 Meeting, CM/ Del/Dec (2002) 781/3.1, at 14.

86The year 2007 was marked especially by the adoption of the report by the Assembly, ‘Council of Europe Commissioner for Human Rights – Stock-Taking and Perspectives’. The Assembly took note of the Commissioner’s willingness to invest more into the control of the judgments, especially the pilot judgments. The Assembly focuses on the question of synergy between the organs at the European level. The Recommendation of the Assembly equally invites the CoM ‘to make practical arrangements to fulfil the intention expressed in its Declaration of 19 May 2006 by organising, as quickly as possible, an initial annual tripartite meeting between representatives of the CoM, the Assembly and the Commissioner in order to promote stronger interaction with regard to the execution of Court judgments’, see Parliamentary Assembly, ‘Council of Europe Commissioner for Human Rights – stock-taking and perspectives’ (J.C. Gardetto), Doc. 11376, 17 September 2007; Parliamentary Assembly, ‘Resolution 1581 of 5 October 2007’ and Parliamentary Assembly, ‘Recommendation 1816 of 5 October 2007’. But it failed.

87Parliamentary Assembly, ‘Implementation of Judgments of the European Court of Human Rights’, Resolution 1516 (2006), 2 October 2006, at 4: ‘In line with … the

more proactive approach, giving priority to the examination of cases which concern major structural problems, and in which unacceptable delays of implementation have arisen. The PACE has further specified that it has ‘reserve[d] the right to take appropriate action, notably by making use of Rule 8 of its Rules of Procedure, should the state concerned continuously fail to take all the measures required by a judgment of the Court, or should the national parliament fail to exert the necessary pressure on the government to implement judgments of the Court’.88 The significance of the Assembly’s involvement lies, above all, in the public nature of its denunciation; it seeks to heighten the Assembly’s awareness of the international commitments of their own governments. In the author’s view, this increasing activity of this organ can only be salutary at this stage, in particular as it complements the CoM’s role.

Being inundated with cases, the Assembly was obliged to apply new and more selective criteria regarding the supervision of the implementation of the judgments by prioritising: ‘judgments which raise important implementation issues as identified, in particular, by an interim resolution of the Committee of Ministers; and judgments concerning violations of a very serious nature’.89

Evidently the aim of the PACE is to increase the effectiveness of the implementation of judgments. Thus, priority will mostly be given to the pilot judgments and the judgments with serious violations, as is the case with the ECtHR and the CoM.

2.2.2 Putting more pressure on the CoM and indirectly on the Court

The PACE’s involvement is crucial, as this organ has the political willingness to put pressure on the States to abide by their judgments. In its

Committee of Ministers Declaration of 19 May 2006 indicating that the Parliamentary Assembly will be associated with the drawing up of a recommendation on the efficient domestic capacity for rapid implementation of the Court’s judgments, the Assembly feels duty-bound to further its involvement in the need to resolve the most important problems of compliance with the Court’s judgments.’ See also Steering Committee for Human Rights, ‘CDDH Contribution to the Ministerial Conference Organised by the UK Chairmanship of the Committee of Ministers’, CDDH(2012) R74 Addendum III, 15 February 2012, para. 14, encouraging ‘closer involvement of the Parliamentary Assembly (…)’.

88See also Parliamentary Assembly, ‘Implementation of Judgments of the European Court of Human Rights’, Recommendation 1764 (2006), 2 October 2006.

89Declassified, Parliamentary Assembly, AS/Jur (2009) 36, Committee on Legal Affairs and Human Rights, ‘Implementation of Judgments of the European Court of Human Rights Progress Report’ 31 August 2009.

2009 report, the Assembly undertook ‘to consider suspending the voting rights of a national delegation where its national parliament does not seriously exercise parliamentary control over the executive in cases of non-implementation of Strasbourg Court judgments’.90 Punitive damages could also be a way of sanctioning serious repetitive violations.91 Daily fines should also be reconsidered, in light of the deteriorating situation. In its report dated December 2010,92 Mr. Pourgourides supported the view that ‘the Assembly ought to consider – in the future – suspending the voting rights of national delegations when their parliaments do not seriously exercise parliamentary control over the executive in cases of non-implementation of judgments of the European Court of Human Rights’. Another measure is also indicated in this report, that is to say, the invitation made to ‘the chairpersons of national parliamentary delegations – together, if need be, with the competent ministers – of states in which in situ visits were undertaken (or envisaged, in the case of Turkey) to present the results achieved in solving substantial problems highlighted in this resolution’.93 The PACE recommended that the CoM ‘increase pressure and take firmer measures in cases of dilatory and continuous non-compliance with the Court’s judgments by state parties, and to work more closely on this subject with the Assembly’, without expressly mentioning the infringement proceedings, as the CoM is the only organ which may seise the Court in such cases.

It is important to remember that NGOs, as well as the victim (and the victim’s representative), play no part at the implementation stage. They are absent from the meetings of the CoM. This is a fundamental difference from the Inter-American system of human rights, where victims and their lawyers are very much involved in the monitoring process of the Court’s judgments.94 The execution of the judgment is therefore outside the control of the applicant (interstate applications are virtually

90Ibid., at 23.

91Y. Grozev, ‘How Human Rights Protection has Evolved: A Critical Analysis of Ten Years of Case Law’, in ECtHR, Ten Years of the ‘New’ European Court of Human Rights 1998– 2008; Situation and Outlook (Strasbourg: Council of Europe, 2009), at 39.

92Parliamentary Assembly, ‘Implementation of Judgments of The European Court of Human Rights’ (M.C. Pourgourides), Doc. 12455, 20 December 2010, Report, para. 213.

93Ibid., at 10.4.

94See E. Lambert-Abdelgawad, ‘L’Exécution des Décisions des Juridictions Internationales des Droits de l’Homme: vers une Harmonisation des Systèmes Régionaux’, Anuario Colombiano de Derecho Internacional, 2010–3 Especial, 9–55 (www.anuariocdi.org/ anuario3a-capitulos-pdf/01_art.pdf ).