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

non-existent). In addition, according to new Rule 9 of the rules adopted by the CoM for the implementation of article 46, NGOs, national institutions and applicants have been granted the right to provide documents to the CoM on the measures to be adopted. This may constitute a starting point for consideration by the Department for the Execution of Judgments.95 NGOs and lawyers will certainly be encouraged by the PACE to ask the CoM to put more pressure on the State concerned, and to demand, for instance, the use of the infringement proceedings from the CoM. NGOs are well informed and it is fundamental that they share their expertise with the CoM.96 According to the Rules adopted for the implementation of article 46, only NGOs have the competence to raise issues regarding general measures. Such documents may inform the CoM of the changes, or of the lack of changes, following the delivery of a particular judgment, such as the Hirst v. UK case settled in 2005 by the Grand Chamber;97 NGOs have requested the use of the infringement proceedings in this case, as the UK opposed the reform on the right of prisoners to vote.98 In another case, NGOs asked the CoM to adopt an interim resolution in order to put pressure on the State.99 They also requested the enactment of precise recommendations on general measures which should be adopted, or to make comments on general measures the State had enacted or intended to adopt.100 They have even

95Under Rules 9.1 and 9.2 adopted in 2006 by the CoM. National authorities are also able to appear before the CoM at the request of the Permanent Representative (Rules of the Committee of Ministers for the Supervision of the Execution of Judgments and of the Terms of Friendly Settlements, adopted on 10 May 2006).

96See the information sent by the NGO European Roma Rights Centre, DH-DD(2010)300, 7 June 2010. See also the documents sent by Human Rights Watch, DH-DD(2010)307, 9 June 2010.

97Communication by an NGO in the case Hirst (No. 2) v. The United Kingdom (Appl. No. 74025/01), Judgment (Grand Chamber), 6 October 2005, Reports 2005-IX; and Response of the Government, Information sent by the NGO UNLOCK, DH-DD (2010)3, 11 January 2010; see also Communications from different NGOs (AIRE, UNLOCK, PRI, PRT) in the case Hirst (No. 2) v. The United Kingdom, ibid., DH-DD (2010)609, 1 December 2010.

98Communications from different NGOs (AIRE, UNLOCK, PRI, PRT) in Hirst (No. 2) v. The United Kingdom, ibid., DH-DD(2010)609, 1 December 2010.

99Communications from Human Rights Watch in the case of ECtHR, Sejdić and Finci v. Bosnia and Herzegovina (Appl. Nos. 27996 and 34836/06), Judgment (Grand Chamber), 22 December 2009, Reports 2009, DH-DD(2010)307, 9 June 2010.

100Communication from NGOs in the cases of ECtHR, DH and Others v. Czech Republic (Appl. No. 57325/00), Judgment (Grand Chamber), 13 November 2007, Reports

2007-IV; ECtHR, Sampanis and Others v. Greece (Appl. No. 32526/05), Judgment (First Section), 5 June 2008, not reported; and ECtHR, Oršuš and Others v. Croatia

suggested that the CoM ask the Court for an advisory opinion on the compatibility of some national measures with the ECHR.101

2.3A positive synergy between the Court, the PACE and the CoM

It would be too restrictive and biased to analyse the relationships between the Court, the PACE and the CoM only in terms of competition in the field of the implementation of judgments.

In his speech at the Izmir Conference, the Chairman of the PACE recalled that the CoM, which ‘holds the principal responsibility for the supervision of the execution of the Court’s judgments, has itself acknowledged the benefit of greater parliamentary involvement’. It is regrettable that the final Declaration adopted in Izmir on this matter only mentions the CoM, and even recalls ‘the special role given to the Committee of Ministers in exercising its supervisory function under the Convention and underlines the requirement to carry out its supervision only on the basis of a legal analysis of the Court’s judgments’.

There are many examples of good practices and progress emerging from the agreement of the three organs on some issues and the resulting pressure on States to comply with their obligations. In some instances these organs convinced States to adopt some specific measures, even without uniting their efforts, just through a positive cross-fertilisation of their work. It is necessary to illustrate this statement with a few examples. Concerning the payment of default interest after the expiry of the deadline to pay just satisfaction, even before the ECtHR imposed default interest on just satisfaction, the CoM required that the sum actually paid by States made full reparation for the harm sustained. That was the case in Stran Greek Refineries and Stratis Andreadis.102

(Appl. No. 15766/03), Judgment (Grand Chamber), 16 March 2010, Reports 2010; and observations of the Greek government regarding the case of Sampanis v. Greece, DH-DD (2010)586, 23 November 2010; Communications from Human Rights Watch in the case of Sejdić and Finci v. Bosnia and Herzegovina, DH-DD(2010)307, 9 June 2010. Communications from NGOs in the case of ECtHR, Meltex Ltd. and Mesrop Movsesyan v. Armenia (Appl. No. 32283/04), Judgment (Third Section), 17 June 2008, not reported, DH-DD(2010)375, 10 August 2010. Communication from an NGO in the case of ECtHR, Bulves AD v. Bulgaria (Appl. No. 3991/03), Judgment (Fifth Section), 22 January 2009, not reported, DH-DD(2010)377, 16 August 2010.

101Communication by an NGO in ECtHR, Strain v. Romania (Appl. No. 57001/00), Judgment (Third Section), 21 July 2005, Reports 2005-VII, DH-DD(2010)37F, 28 January 2010.

102The interest rate for compensation was in the region of 6 to 7 per cent of the principal established by the Court. See Committee of Ministers, Resolution DH (97) 184, 20 March

In this case, the three organs worked very effectively together to achieve reopening in the interest of the applicant. The practice was initiated by the CoM. Then some decisions of the PACE required the adoption of domestic measures to allow the reopening of national proceedings.103

These developments prompted a change in the Court’s ‘policy’ in this field. The ECtHR now interprets the reopening of proceedings as a measure as close to restitutio in integrum as possible104 and considers it to further ‘the ideal form of reparation in international law’.105 Consequently, it contends that the availability of such a procedure in national

law ‘demonstrat[ed] a Contracting State’s commitment to the Convention and the case law to which it has given rise’.106 The Court thus took a

further step: instead of contenting itself with establishing the beneficial effects of the reopening of domestic proceedings after the violative act, it commended this measure prior to the event as offering the most appropriate remedy or an appropriate way of redressing the violation. Now the ECtHR proceeds as described, in particular in cases where the right to an independent and impartial tribunal has been violated.107 The issue whether or not individuals must (instead of may) be released pending

the new proceedings was discussed and eventually criticised by the PACE in the case of Sadak, Zana, Dicle and Dogan v. Turkey,108 and also by

the CoM in an interim resolution.109 Relying on the presumption of

1997, concerning ECtHR, Stran Greek Refineries and Stratis Andreadis v. Greece (Appl. No. 13427/87), Judgment (Chamber), 9 December 1994, Series A, Vol. 301-B: ‘stressing Greece’s obligation to safeguard the value of the amounts awarded’, the CoM ascertained that the sum paid, ‘increased in order to provide compensation for the loss of value caused by the delay in payment, [corresponded] to the just satisfaction awarded by the Court’.

103See, for example, Parliamentary Assembly, ‘Implementation of Decisions of the European Court of Human Rights’, Recommendation 1684 (2004), 23 November 2004, and Parliamentary Assembly, ‘Implementation of Decisions of the European Court of Human Rights’, Resolution 1411 (2004), 23 November 2004, at 18.

104ECtHR, Piersack v. Belgium (Article 50) (Appl. No. 8692/79), 26 October 1984, Series A, Vol. 85, at 11.

105ECtHR, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (Appl. No. 32772/02), Judgment (Fifth Section), 4 October 2007, Reports 2009, at 56.

106Ibid., at 55.

107ECtHR, Gençel v. Turkey (Appl. No. 53431/99), Judgment (Third Section), 23 October 2003, not reported; ECtHR, Ceylan v. Turkey (No. 2) (Appl. No. 46454/99), Judgment (Second Section), 11 October 2005, not reported, at 38.

108Parliamentary Assembly, ‘Implementation of Decisions of the European Court of Human Rights by Turkey’ (M.E. Jurgens), Doc. 10192, at 7–9.

109Committee of Ministers, ‘Interim Resolution’, ResDH (2004) 31, 6 April 2004.

innocence and the Court’s judgment, the CoM now considers that, in addition to the reopening of proceedings, the release of applicants is an integral part of the right to reparation ‘in the absence of any compelling

reasons justifying their continued detention pending the outcome of the new trial’.110

It is indisputable that these overall developments offer further incentives for States to allow reopening in their legal system. More explicitly, and more often than in the past, the Court also refers to interim resolutions enacted by the CoM in order to conclude that there is a systemic failure of the State to implement the ECHR on one or more issues.111 It is certain that such references will increase in the years to come.

It may be concluded that the three organs interact on the implementation of judgments. Their actions complement one another most of the time. Yet, there is a risk for the ECtHR to get more involved in these technical and sensitive matters, in particular, at a time when States raise the subsidiarity principle, and thus challenge the imposition of specified measures in the implementation of judgments. Indeed, the Izmir Conference focused, first, on the ‘new standard and enhanced procedures for supervision’, whose aim is to speed-up the supervisory function by the CoM, and second, on the ‘principle of subsidiarity’ in this matter, and so on the ‘choice of means’ of States to implement the judgments. This approach reveals the pressure imposed by States on the European system of human rights. Currently, the reluctance of some States to implement some judgments bona fide seems to be the most problematic challenge. The CoM and the other European organs in charge of the supervisory function should be equipped to sanction such reluctance. The role of the Court, on the other hand, should be limited to an

110Ibid., ‘Stressing, in this connection, the importance of the presumption of innocence as guaranteed by the Convention; deplores the fact that, notwithstanding the reopening of the impugned proceedings, the applicants continue to serve their original sentences …; stresses the obligation incumbent on Turkey, under Article 46, paragraph 1, of the Convention, to comply with the Court’s judgment in this case notably through measures to erase the consequences of the violation found for the applicants, including the release of the applicants in the absence of any compelling reasons.’

111ECtHR, Vassilios Athanasiou and Others v. Greece (Appl. No. 50973/08), Judgment (First Section), 21 December 2010, not reported, 45–53; ECtHR, Gaglione and Others v. Italy (Appl. Nos. 45867/07 and 474 others), Judgment (Second Section), 21 December 2010, not reported; ECtHR, Konstantin Markin v. Russia (Appl. No. 30078/06), Judgment (First Section), 7 October 2010, not reported; and ECtHR, Wegera v. Poland (Appl. No. 141/07), Judgment (Fourth Section), 19 January 2010, not reported, at 80.

objective examination of the violation of article 46,112 so as not to get mixed up in political issues with States.

The ambition of the ECtHR to play a greater role could also be supported by an increased administrative, and perhaps financial, autonomy. On this issue, the ECtHR has also tried to make progress, but without the same success. This will be addressed in the next section.

3. The budgetary and administrative issues: the Court’s dependence on the CoM

This section will discuss the pros and cons of a greater financial and administrative autonomy of the Court. On this question, a comparative approach with the practice of other regional and international tribunals will be adopted.

3.1 Deciding on the budget of the ECtHR: the involvement of the Secretary General

In conformity with article 50 of the ECHR, ‘the expenditure on the Court shall be borne by the Council of Europe’. Accordingly, the Court does not have a separate budget; its budget is part of the general budget of the Council of Europe. As such, it is subject to the approval of the CoM as part of the overall Council of Europe budget. According to some authors, the Court is a body ‘pris en pension’ by the Council of Europe, as it is not really an organ of the Council of Europe.113

Article 20 of the Statute of the Council of Europe specifies that ‘resolutions of the CoM, including adoption of the budget … require a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee’. The PACE is involved in that process, but purely in an advisory capacity, having to provide two opinions (one on the Council of Europe’s general budget, the

112See Emre v. Switzerland (No. 2), where the Court concludes there was a violation of both articles 8 and 46.

113These are the words of H. Klebes, cited by J.F. Flauss, ‘De l’indépendance de la Cour Européenne Des Droits de l’Homme’, J.F. Flauss, (ed.), La Mise en Œuvre du Protocole No.11: le Nouveau Règlement de la Cour EDH: Actes de la Journée d’Études du 23 octobre 1999 à la Mémoire de Louis Edmond Pettiti (Brussels: Bruylant, 2000) 13–31 (hereinafter Flauss, ‘De l’indépendance de la Cour’). For J.F. Flauss, ‘institutionnellement, l’autonomie et partant l’indépendance budgétaire de la nouvelle Cour avoisine le degré zéro’, at 29.

other on its own budget). Yet the PACE has complained that this advisory competence has been made ‘without either having seen the draft budget submitted to the CoM by the Secretary General or being aware of the positions of the bodies involved in the budgetary process [Ministers’ Deputies, Budget Committee]’.114 The PACE has also required more budgetary powers, in light of what could be expected from a legislative assembly.115 It needs to be stressed that the Secretary General is playing an important part in that process by submitting a draft of the budget to the CoM. According to interviews with the former President of the Court, Luzius Wildhaber, current disputes have not occurred between the CoM and the Court, nor between the Assembly and the Court, but between the Secretary General and the Court.116 Luzius Wildhaber also confessed he was in favour of a separate budget for the Court.

With regard to this question, the ECtHR differs fundamentally from the other regional and international Courts. Indeed, article 72 of the American Convention on Human Rights holds that ‘The Court shall draw up its own budget and submit it for approval to the General Assembly through the General Secretariat. The latter may not introduce any changes in it.’ Article 26 of the Statute of the Court also repeats that the Court administers its own budget. This approach is also shared by the African system, even if it is not couched in such strict words. Article 26 of the Statute of the African Court of Justice and Human Rights states that: ‘The Court shall prepare its draft annual budget and shall submit it to the Assembly through the Executive Council. 2. The budget of the Court shall be borne by the African Union. 3. The Court shall be accountable for the execution of its budget and shall submit reports thereon to the Executive Council in conformity with the Financial Rules and Regulations of the African Union.’ Moreover, both the International Court of Justice (ICJ) and the ECJ submit a proposal for their own budget. Limiting ourselves to these examples, internationally, judicial independence seems to go hand-in-hand with budgetary independence. It would therefore be desirable for the ECtHR to co-decide on its own budget or,

114Recommendation 1155 (1991), Powers of the Assembly in Budgetary Matters, 28 June 1991.

115Parliamentary Assembly, ‘Enlargement of the Council of Europe: the Budgetary and Administrative Powers of the Assembly’ (M.A. Martinez), Doc. 7900, 8 September 1997: ‘1. The Assembly considers that its present budgetary and administrative powers are unsatisfactory and do not correspond to the normal prerogatives of a parliamentary assembly.’

116Interview with L. Wildhaber, 3 May 2011, Fribourg (on file with the author).

at least, to have the competence to propose it; the lack of financial autonomy is dangerous and could jeopardise the capacity of the Court to perform its functions in the future.

An autonomous budget would not necessarily mean a higher amount allocated to the Court. In 2010 the budget of the ECtHR (including the registry) was raised from €58 to €58.48 million; in 2011 the sum was €63.7 million.117 At the same time, the ordinary budget for the Council of Europe in 2011 and in 2010 totalled €217 million, as it was subject to a zero growth policy. By contrast, in 2009 the budget of the Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission of Human Rights (IACommHR) was US $5,526,600, whereas the overall budget of the Organization of American States (OAS) was US $90,125,000. The budget of the Commission and the Court amount to 4–5 per cent and 2 per cent of the overall budget of the OAS, respectively, whereas the budget of the ECtHR consumed slightly more than one-third of the total Council of Europe budget. These figures must be analysed in consideration of the number of cases submitted to these organs, as the number of cases before the ECtHR is infinitely higher than the number of applications the IACtHR has to deal with: with the annual budget of roughly €58 million for 2010, the Court decided 41,183 in total in that year. This means that the Court spent about €1,500 per decision. The IACtHR, by contrast, decided only 143 cases on a budget of US $3.7 million, which means the IACtHR has about US $25,000 per decision.

The budget of the ECtHR somehow increased during the last fifteen years, despite the fact that the budget of the Council of Europe was subject to the zero growth rule. The PACE required that the budget of the ECtHR be elevated, and that this budget be separated from the overall budget of the Council of Europe, without claiming an autonomous budget for the Court.118 The PACE, opposing the redistribution of the budget of the

117 ECtHR, Annual Report 2010, provisional edition (Strasbourg: Council of Europe, January 2011), at 17.

118Parliamentary Assembly, Recommendation 1812 (2007) and Parliamentary Assembly, ‘Political Dimension of the Council of Europe Budget’ (P. Wille), Doc. 11371, 12 September 2007: ‘6. The Assembly consequently asks the Committee of Ministers to place at the disposal of the Council of Europe the funds necessary to translate into action the tasks and priorities identified at the Warsaw Summit, which entails allocating financial and other resources not just to the European Court of Human Rights but also to all the other sectors whose activities ranked as a priority at the Summit.’ ‘7.4. separate the budget of the European Court of Human Rights from the rest of the ordinary budget while keeping the Court within the Council of Europe’s budgetary structure.’

Council of Europe in favour of the ECtHR, suggested ‘the member states [to] face up to their responsibilities and finance all the needs of the European Court of Human Rights outside zero growth in real terms’.119 In a Recommendation adopted in 2007, it also asked the CoM ‘to 7.5. set minimum scales for member states’ contributions so as to cover at least the administrative cost of a judge at the Court’. Indeed, it appears that some State contributions do not even cover the cost of their judge at the ECtHR.

Under the former chairmanship of Jean-Paul Costa, a sort of modus vivendi seemed to have been found between the Secretary General and the Court. Nevertheless, the situation is becoming more sensitive owing to the current financial crisis, and the budget allocated to the Court has even been reduced. In 2010, the Secretary General suggested that the budget of the Court be reduced by €251,600 and opposed the incorporation in the 2010 budget priorities of the third programme of reinforcement of the Court with the recruitment of an extra 225 staff. This view was fully endorsed by the CoM.120 As one author wrote, ‘judges depend on governments for the implementation of court decisions and for other forms of support, including budgetary support. The budget is obviously important given the severe backlog of cases.’121

3.2 Towards more autonomy of the ECtHR?

It is unsurprising that the issue of gaining more autonomy, mostly with regard to the budgetary questions, has been raised in the past.122 In fact,

119Parliamentary Assembly, ‘Budgets of the Council of Europe for the Financial Year 2008’, Opinion No. 264 (2007), 24 May 2007.

120Committee of Ministers, Extract CM(2009)90, ‘Meeting Report of the Budget Committee’, May 2009 Session Court Enhancement Programme: ‘40. The Committee recognised that any significant reinforcement of the Court presented a serious challenge for the Organisation. If the €21.6M were to be financed by additional resources, made available through member states contributions, this would represent additional contributions of some 10 per cent for member states. The Committee considered that in the current economic climate it would not be possible in the foreseeable future to allocate additional resources to the Council of Europe by increasing Member States contributions in order to finance the programme of the Court. 41. The Committee also noted, that if the organisation had to finance some €21.6M on an annual basis for the Court programme within the Ordinary Budget this would only be possible by making dramatic reductions in other sectors of the Organisation…)’

121E. Voeten, ‘Politics, Judicial Behavior, and Institutional Design’, in Christoffersen and Madsen (eds.), The European Court of Human Rights between Law and Politics, 61–76, at 76.

122See ECtHR, Ten Years of the ‘New’ European Court of Human Rights 1998–2008, Situation and Outlook, Proceedings of the Seminar, 13 October 2008, ‘Preface’, President

more autonomy has been more highly prioritised than the issue of recruitment and the internal functioning of the Court. The Group of Wise Persons recommended ‘… in the interests of enhancing the Court’s independence and effectiveness, … granting it the greatest possible operational autonomy, as regards in particular the presentation and management of its budget and the appointment, deployment and promotion of its staff’.123 The lack of administrative autonomy was also criticised by the former President, Jean-Paul Costa.124 To a certain extent, such an autonomy de facto already exists, according to interviews with judges of the Court and members of the PACE. Indeed, the Secretary General leaves the Court to decide its policy of recruitment.

Despite the foregoing, currently the entire internal functioning of the Court seems to be subject to the CoM. Two aspects exemplify this lack of autonomy: first, the establishment and functioning of the Liaison Committee with the Court, second, the way the rules on the status of judges are enacted.

The Liaison Committee, a body of dialogue between the CoM and the Court,125 was created in 2000 ‘to maintain a dialogue on the future of human rights protection in Europe and questions affecting the European Court of human rights’.126 The Liaison Committee is chaired by an ambassador. In 2004, the Secretary General expressed the desire to be included in its work. The proposals concerning the modalities and procedures of the Liaison Committee mentioned that the draft agenda of the meetings of this Committee ‘shall be agreed in advance with the Court’, and that ‘the Chair shall ensure that the judicial independence of the Court is respected in the proceedings of the Liaison Committee’.

Costa, at 15: ‘How can one not raise the question of the Court’s need for greater autonomy of management and funding, which would provide increased effectiveness?’ See also ‘Memorandum of the President of the ECtHR to the States with a view to preparing the Interlaken Conference’, 3 July 2009: ‘At the Conference, in addition to defining the relationship with States, it will be necessary to take steps to ensure that the Court is able to enjoy autonomy with regard to administrative and budgetary management. Steps must also be taken to meet the Court’s resource needs.’ This requirement will not be worded in exactly the same way one year later.

123‘Report of the Group of Wise Persons to the CoM,’ CM(2006)203, 15 November 2006, at 124.

124‘Memorandum of the President of the ECtHR to the States with a View to Preparing the Interlaken Conference’, 3 July 2009, at 4.

125There was an attempt to set up another Liaison Committee between the ECtHR and the PACE, but it did not work.

126Committee of Ministers, ‘706th meeting’, 11 April 2010, Decisions, item 4.1.

If meetings are convened by the Chair, the Court only has the power to make proposals concerning the holding of meetings. Clearly the aim of the Liaison Committee was thus to allow the CoM to prepare and initiate the reforms of the future ECtHR.

Resolution (97)9 ‘on the status and conditions of service of judges of the European Court of Human Rights’ governs the conditions of service

of judges and ad hoc judges and exemplifies the dependence of the status of the ECtHR’s judges on decisions of the CoM.127 The ECtHR was not

involved in the enactment of these rules.128 Such rules were intended to be provisional and to be reviewed ‘on the proposal of the Secretary General of the Council of Europe and in consultation with the President of the Court’. Nonetheless, it is surprising that the CoM has competence

to enact these rules (following the text of the preamble to this resolution pursuant to article 16 of the Statute of the Council of Europe).129 In

addition, the Secretary General is given more powers than the President of the Court to review such rules.130 This resolution has not been reviewed.

In 2004, discussions concerned the reform of the pension regime of judges. Under the prior regime, judges were to provide for their retirement or pension benefits at their own expense. On this issue, a majority of delegations clearly favoured the Budget Committee’s recommendation over the judges’ proposal, taking into account the budgetary constraints.131 The main difference between the Secretary General’s proposal

127It deals, in one appendix, with questions such as the annual salary, the place of residence, holiday and sick leave, the payment of expenses by the Council of Europe and social protection. Appendix II concerns the provisional regulations governing the conditions of service of ad hoc judges.

128Flauss, ‘De l’indépendance de la Cour’, at 17, note 6: ‘La présence au sein du groupe de travail spécial du président et du greffe de l’ancienne Cour ne constitue qu’un pis-aller: ni l’un, ni l’autre n’avaient la moindre légitimité pour parler au nom de la nouvelle Cour. Leur âge les empêchait d’ailleurs, de jure ou de facto, d’être “renouvelés” dans leurs fonctions respectives.’

129According to article 16, ‘the Committee of Ministers shall, subject to the provisions of Articles 24, 28, 30, 32, 33 and 35, relating to the powers of the Consultative Assembly, decide with binding effect all matters relating to the internal organisation and arrangements of the Council of Europe. For this purpose the Committee of Ministers shall adopt such financial and administrative arrangements as may be necessary.’

130Flauss, ‘De l’indépendance de la Cour’, at 17: ‘Dans ces conditions, la résolution (97)9 a pu être comprise comme un coup de force ou à tout le moins, un coup de Jarnac assené à la nouvelle Cour, avant même qu’elle ne soit constituée.’

131Committee of Ministers, ‘Rapporteur Group on Administrative and Budgetary Questions’, GR-AB(2004)CB9, 26 July 2004.