Binding Effect and Declaratory Nature of the Judgments of the European Court of Human Rights: An Overview

Mark E. Villiger

The contributions to this volume all concern specific aspects of the effects and the implementation of the judgments of the European Court of Human Rights regarding violations of the European Convention on Human Rights. The starting points are the binding effects and the declaratory nature of the Court’s judgments.

Once the Court has issued a judgment, the main obligation falling upon a respondent state derives from Article 46 (1) of the Convention, namely that convention states “undertake to abide by the final judgment of the court in any case to which they are parties”. In other words, the judgment is binding on the respondent state concerned. Article 46 (2) complements this obligation by providing that the Committee of Ministers of the Council of Europe shall supervise the execution of the judgment. According to Article 41, the Court may also award compensation for pecuniary and non-pecuniary (immaterial) damage.

And this is all – this is where, according to the Convention, a respondent state’s obligations end. In particular, the Court cannot annul the domestic act concerned, nor can it decide in lieu of the domestic authority. The judgments are merely declaratory: they hold whether or not a state has breached its obligations under the Convention.

Thus, if the Court finds a Convention violation by a particular respondent government¸ the latter enjoys a certain margin of appreciation. While the government knows that it must implement a particular judgment, it is in principle free how it implements. There are many ways how national authorities can implement the Court’s judgments: Will it be necessary to enact a new statute, or revise an existing law? Should the judicial interpretation of a particular legal provision be changed? Are structural changes in the administration (e.g., of the Public Prosecutor’s Office) called for? Should a new domestic remedy be introduced? Should instructions be issued to prison staff, to teachers, to the police? Indeed, implementation may raise particularly complex difficulties, for instance where courts in a convention state are completely overburdened but are nevertheless called upon to conduct court

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proceedings within a reasonable time (Article 6 (1) of the Convention). Throughout, domestic courts, in particular the highest courts, of a convention state enjoy a particular role in ensuring the implementation of the Court’s judgments in the domestic sphere.

The Committee of Ministers, which examines compliance with these obligations, has limited powers. Apart from requesting a state to provide further information as to implementation of a particular judgment, the Committee of Ministers has no other means of enforcement, except of course the so-far theoretical possibility of expelling a state from the Council of Europe. Looking at the Committee of Ministers’ website on the execution of judgments, one is struck by the thoroughness with which it approaches its task; indeed, one is reminded of an accountancy exercise.1 But it is no secret that when cases – and the ensuing judgments – have political connotations discussions in the Committee of Ministers on their execution may be protracted and even tough – which is not what the protection of human rights is actually about.

This situation as to the nature and effects of the Court’s judgments is a reflection of international law in 1950 when the Convention was adopted. Whether these effects are still appropriate more than 60 years later in the 21st century is an issue; whether these effects hinder – or maybe, to the contrary, in their flexibility further – the effective protection of human rights; or whether the Convention should reflect that the Court’s judgments may exercise an erga omnes effect by also affecting third States. These are highly important and fascinating questions which cannot be resolved once and for all. The Convention is a “living instrument”, and so are also the effects of its judgments.

Of course, the Court in its judgment may also order a state to pay material and immaterial damages as well as costs and expenses according to Article 41 of the Convention. This is a direct reflection of public international law both in 1950 and today. But there is hardly a topic so disputed as the award of money by the Court and issues which arise in connection are whether the Court should afford higher or lower sums; whether it should present and publish tables of awards; whether money can at all remedy a human rights violation; whether the Court – as in the case of the Inter-American Court of Human Rights – should offer forms of just satisfaction other than money;

1See the Committee of Ministers’ website, available at http://www.coe.int/t/dghl/ monitoring/execution (last visited 31 January 2014).

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Binding Effect and Declaratory Nature of the Judgments of the ECtHR: An Overview

and whether these awards are actually the reason why certain persons file applications – in which case the awards no longer have anything to do with human rights and should be abolished?

I questioned above whether the Convention’s regulation of effects of the Court’s judgments in 1950 is still adequate today. Clearly, one reason why the Convention fathers and mothers chose this approach is because they placed considerable importance on the principle of subsidiarity in the implementation of these judgments.2 Convention states have different constitutional systems and traditions – written and unwritten – and will encounter varying difficulties when implementing an international decision. One and the same judgment may mean different things to different states. For instance, the judiciary and the administration may have different roles to play. There are also varying relations between international and domestic law. Finally, federal states are confronted with the particular problem of a separation of powers on various levels. In 1950 it was thought that states should have a certain leeway in deciding how to implement the Court’s judgments.

A recent and central aspect of the effects and implementation of the Court’s judgments concerns the future role of the Court. While different roles may be considered, one has certainly become clear – that the Court will give advice in its judgments as to how judgments could and should be implemented. It has done so first under Article 41 of the Convention, and now regularly under Article 46.3

This role started very inconspicuously some years ago when the Court in certain judgments came to the finding of a violation because it had concluded that criminal proceedings had not been fair according to Article 6 (1) of the Convention. The first case in which this arose was Gencel v. Turkey where the Court, after finding a breach of Article 6 (1) inasmuch as the Turkish State Security Courts lacked sufficient independence and impartiality in the applicant’s criminal proceedings, went on to state that the most appropriate

2See on the subject M. E. Villiger, The Principle of Subsidiarity in the European Convention on Human Rights, in M. G. Cohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch (2007), 623.

3See on the subject among the small but growing literature, including within this volume, inter alia, G. Nicolaou, The New Perspective of the European Court of Human Rights on the Effectiveness of its Judgments, in Christine Hohmann-Dennhardt et al. (eds.), Grundrechte und Solidarität – Durchsetzung und Verfahren: Festschrift für Renate Jaeger (2011), 163.

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redress would be to reopen the proceedings.4 This so-called Gencel formula became widely known when it was applied in Öcalan v. Turkey.5 Since then, the Court has become more proactive – there are over 200 Gencel-type judgments – and the Court has indeed now also become clearer in its advice to respondent governments. For instance, in Oleksandr Volkov v. Ukraine, the Court considered that the applicant’s dismissal as a Supreme Court judge breached his Convention rights; as a result, it found that there was no other way to comply with the judgment than for the respondent government to reinstate the applicant as a judge of the Supreme Court.6 The limits of such counsel under Article 46 are also clear: as the Court found in Iskandarov v. Russia, it could not indicate to a respondent government to interfere with the affairs of another sovereign state.7

Government reactions to the Court’s up-dated role have been surprisingly muted. It is true that in the case of Konstantin Markin v. Russia, concerning the discrimination of male Russian soldiers as regards parental leave, the Court was criticised for overstepping its boundaries when the Chamber judgment recommended as being desirable certain changes in the domestic legislation.8 Interestingly, the subsequent Grand Chamber judgment no longer gave such advice.9

There are clearly good reasons why the Court issues such advice. There is the practical reason: the Court has carefully examined the case and is in a very good position to make such proposals. And respondent governments, even more so domestic courts, are grateful for indications as to how they should proceed when implementing the judgment – they wish to do suffi-

4Gencel v. Turkey, ECtHR Application No. 53431/99, Judgment of 23 October 2003, para 27: “Lorsque la Cour conclut que la condamnation d’un requérant a été prononcée par un tribunal qui n’était pas indépendant et impartial au sens de l’article 6 § 1, elle estime qu’en principe le redressement le plus approprié serait de faire rejuger le requérant en temps utile par un tribunal indépendant et impartial.”

5Öcalan v. Turkey, ECtHR Application No. 46221/99, Judgment (GC) of 12 May 2005, para. 210.

6Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11, Judgment of 9 January 2013, para. 208.

7Iskandarov v. Russia, ECtHR Application No. 17185/05, Judgment of 23 September 2010, para. 161.

8Konstantin Markin v. Russia, ECtHR Application No. 30078/06, Judgment of 7 October 2010, para. 67: “[T]he Court would recommend [...].”

9Konstantin Markin v. Russia, ECtHR Application No. 30078/06, Judgment (GC) of 22 March 2012, para. 118. With the Government’s criticism about the Chamber judgment’s “order”, ibid., under Article 46 of the Convention.

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cient, yet not too much. There is some positive feedback in this respect. There is also the reason that the Court is thereby complementing – or should one say, assisting – the Committee of Ministers in its supervision of the implementation of Court’s judgments.

These developments in the Court’s case-law must be analysed, tested and challenged. They are open to both criticism and praise. While the Court appears, at least for the time being, to be set on its course, the criticism must certainly be discussed seriously and thoroughly.

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