THE EXECUTION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS

tion of the right to a tribunal established by law, the Court gave the state the alternative of reopening the proceedings or paying a predetermined amount in just satisfaction. This alternative may be explained by the fact that it was found to be below the threshold of gravity of the consequences foreseen by a reopening of the case. In its Lungoci v. Romania judgment,64 concerning a similar violation of the right of access to a court, after noting in the reasons for the decision (§56) that the reopening of proceedings was a possibility, the Court held (operative part, 3.a) that the state should ensure that the proceedings were reopened if the applicant so desired, whilst at the same time requiring the payment of €5 000 for non-pecuniary damage.

In this as in other regards, the European system should set a fundamental example and exercise an influence over, in particular, practice in the inter-American and United Nations systems, and also in the African human rights system.

Other measures

If proceedings are not reopened, re-examination, particularly in administrative cases, may prove sufficient. The choice between reexamination and reopening is not always easy to make and depends on the domestic systems.65 This type of measure applies above all to cases involving family law and the law relating to foreign nationals. In criminal law as well, a range of individual measures may offer redress. These may include an agreement not to enforce the domestic measure at issue, including a judgment.66 In some states, rectification of criminal records does not require a retrial.67 In some countries the legislation also has special provisions, such as the possibility of suspending enforcement of a sentence. Mention should also be made of acts of clemency and reduction of

64.Lungoci v. Romania, 26 January 2006.

65.See the cases of Chevrol v. France (ResDH (2006) 52) and Lemoine v. France (ResDH (2007) 78), in which reopening was excluded as a possiblity and the outcome was a request made to the authorities for compensation for loss of opportunity.

66.ECtHR, Muyldermans v. Belgium, 23 October 91, Resolution DH (96) 18 of 9 February 1996: enforcement of the Audit Court judgment at issue was waived under a subsequent law.

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Determination of the content of the obligation to execute judgments

sentences, with procedures varying considerably from one state to another. In the past, pardons have in fact constituted an adequate measure of relief for a number of applicants and in cases where reopening of proceedings is not possible, as in the Belgian cases concerning infringements of the applicants’ right to defend themselves through legal assistance of their own choosing at different stages of criminal proceedings.68

Another possibility is the unconditional release of the applicant69 or, failing that, release on parole.70 Following the Stefanov v. Bulgaria case, the government promised to adopt a general amnesty; Jehovah’s witnesses with criminal convictions for having refused to do their military service on the grounds of conscientious objection would thus be exempted from criminal responsibility and discharged, since they would no longer have committed illegal acts.71 However, these acts of clemency may entail some awkward consequences. As a measure wholly or partly exempting convicted persons from serving their sentences, a pardon, in most European systems, does not abolish the other effects of a criminal conviction, such as ancillary penalties and entry of the conviction in the criminal record. It does not call into question the individual’s criminal guilt. Furthermore, a pardon is often regarded as a sovereign favour; yet, in the case with which

67.Resolution ResDH (2006) 79 of 20 December 2006, on 32 judgments against Turkey in 1999, 2000, 2002, 2004 and 2005 concerning freedom of expression following convictions under former Article 8 of the Law against Terrorism No. 3713, refers to the following individual measures: ex officio removal of the convictions from the judicial records and statistics of the Ministry of Justice and automatic lifting of restrictions on applicants’ civil and political rights.

68.Cases of Van Geyseghem (judgment of 21 January 1999), Goedhart (judgment of 20 March 2001), Stroek L. and C. (judgment of 20 March 2001) and Pronk (judgment of 8 July 2004). The Belgian authorities partially pardoned Mr Stroek and Mr Goedhart, partly erasing the consequences of their convictions, declaring void the international arrest warrants taken out against them; the sentence imposed on Ms Van Geyseghem was time-barred (see CM/Del/OJ/DH (2005) 940vol1 Public, 28 October 2005).

69.ResDH (2006) 53 of 2 November 2006 concerning a judgment against Georgia in 2004 (Grand Chamber): in this case, release occurred the day after the Court’s judgment (pursuant to a domestic decision at the same time).

70.ResDH (2006) 56 of 2 November 2006 concerning two Committee of Ministers decisions of 1999 and a judgment against the United Kingdom in 2002 relating to aliens’ unlawful detention, lack of compensation, and violation of the right to a fair trial. One of the applicants was released unconditionally, while the other was released on parole.

71.Stefanov v. Bulgaria case of 3 May 2001, Resolution ResDH (2004) 32 of 15 June 2004.

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we are concerned, the victim is entitled to restitutio in integrum. A pardon and reopening of proceedings cannot therefore be deemed equivalent in terms of reparation.72

“Positive” action, which is more noteworthy than that described above since it entails the adoption of new provisions rather than the annulment or repeal of the contested measure, is also less widespread in practice. A positive measure may consist in the reinstatement of an employee who has been unlawfully excluded from the civil service.73 The judgment of the European Court may in itself be recognised in national law as conferring a right to claim compensation where the applicant has been remanded in custody in breach of the Convention.74 Cases involving aliens give rise to national reactions that vary considerably as regards the granting of a residence permit following expulsion or removal from the territory that has been held to be incompatible with the Convention.75 As regards length of proceedings, when a case is still pending in the domestic courts, the Committee now demands measures to expedite the proceedings.76

72.This was clearly accepted by the I.C.J. in the case concerning Avena and other Mexican Nationals (Mexico v. United States of America). Admittedly, in the law of English-speaking countries, the concept of a pardon is broader, encompassing an amnesty, and a pardon may be granted before a conviction has taken place. Moreover, in Italy and Germany in particular, pardon is granted ex officio; only certain states such as Belgium, Spain and Switzerland acknowledge a personal right to apply for pardon.

73.ECtHR, Vogt v. Germany (Article 50), 2 September 1996, and Resolution DH(97)12.

74.See, for example, Article 1 of the Luxembourg law of 30 December 1981 (Mémorial A, 1981, p. 2660): “Anyone who has been deprived of freedom in circumstances incompatible with Article 5 of the European Convention on Human Rights shall be entitled to compensation.”

75.See, for example, ECtHR, Lamguindaz v. the United Kingdom, 23 June 1993, Series A no. 258-C and Resolution DH (93) 55, where the person concerned was given indefinite leave to remain and allowed to make an application for naturalisation. More recently, see CM/ResDH (2007) 35 of 20 April 2007 in the case of N v. Finland. The applicant was granted a continuous residence permit, although he had been threatened with expulsion to the Democratic Republic of the Congo. See also CM/ResDH (2007) 38 of 20 April 2007 concerning the judgment in Aristimuno Mendizabal v. France, where the Spanish applicant was issued with a ten-year residence permit.

76.Conversely, see ResDH (2006) 28 of 21 June 2006 concerning four judgments against the United Kingdom in 2002 and 2003: “noting that all proceedings had ended at the time the Court rendered its judgments so that no question of their acceleration has been raised”.

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