E nforcement of judgments of the European Court of Human Rights

1. Enforcement of judgments of the European Court of Human Rights Adam Bodnar Antalya, 30 August 2010

2. Significance of the enforcement of ECHR judgments • Obligation on the contracting states to enforce judgments • ECHR as a „constitutional court” for Europe • Changes in law (preventing further violations) • Heavy losses for the state budget caused by the adverse judgments • Dramatic increase in number of applications and judgments • Promoting high standards of human rights’ protection and good practices of public institutions • Diplomatic responsibility – international image of the state

3. Obligations under the Convention • Principle of subsidiarity • Principle of primarity (Jonas Christofferson) • Article 1 of the Convention - general obligation • Article 13 of the Convention – domestic remedy • Article 46 of the Convention – legal effect of judgments • Judgments binding only for state parties subject to proceedings • Supervision of the Committee of Ministers • Power to seek clarification • Concept of „positive obligations” • Interlaken Declaration – underlining importance of state parties obligations under the Convention

4. „Own” judgments vs. judgments concerning other states • Legally binding – only judgments concerning a given state party to the Convention (Article 46) • Value of judgments issued with respect to third country? • Concept of „res interpretata” (interpretation value) • Similarity of a problem • Finality and level of authority of a judgment (chamber judgments, sections of the court, Grand Chamber) • Enforcement of „third country” judgment prevents future violations • General obligation to comply with Convention (as interpreted by the ECtHR) • Case-law of the ECtHR - standards

5. Individual and general enforcement of the ECtHR judgment • General enforcement (erga omnes effect) • Legislative changes (source of violation – wrongful provisions) • Practical changes • Reform of institutions (e.g. prisons) • Trainings • Dissemination of judgments • State has a freedom as to the choice of means – they must be effective • Individual enforcement (inter partes effect) • Restitutio in integrum • e.g. releasing from psychiatric hospital • return of the property • Payment of compensation • Re-examination of the case • e.g. in criminal matters • Re-opening of proceedings

6. Restitutio in integrum • Ordering certain action may take place in the course of proceedings (e.g. under Rule 39) • Sometimes state may voluntarily change the situation of a victim (e.g. provide adequate conditions to prisoner) • The ECtHR may order certain action in a judgment • the respondent State must secure the applicant's release at the earliest possible date (Assanidze v. Georgia) • State must secure at the earliest possible date adequate conditions of the applicant's detention in a specialised institution capable of providing him with necessary psychiatric treatment and constant medical supervision (Sławomir Musiał v. Poland) • Typical restitutio in integrum (full reparation) is possible in property cases: • Returning historical coins to proper owner (Kopecky v. Slovakia – but it was impossible to show their location) • Returning of the house (e.g. Zwierzyński v. Poland)

7. Re-examination and re-opening of case • Recommendation No. R (2000) 2 of the Committee of Ministers to member states on the reexamination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (19 January 2000) • 1) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and • 2) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of. • need for a domestic legislative provision allowing for re-examination or re-opening of proceedings • different approach in different countries

8. Re-examination and re-opening of proceedings – daily practice • Re-examination of a case • Wasilewska and Kałucka v. Poland – need to once re-examine a case and to accuse policemen for shooting the suspect • Re-opening of criminal proceedings • Gençel v. Turkey - most appropriate form of redress in Article 6 violations • Usually specific provisions in the Code of Criminal Proceedings (or interpretation of general clauses) • Re-opening of civil proceedings • Problem of „res judicata”. Many jurisdictions – not allowing for re-opening of civil proceedings (e.g. France, Austria, Netherlands) • Cudak v. Lithuania (Grand Chamber) - “where, as in the instant case, an individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if he or she so requests, represents in principle an appropriate way of redressing the violation” • Liability of the state for damage (e.g. Podbielski case) • Re-opening of administrative proceedings

9. Change in law following the ECtHR judgment • Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights • Need to change legislation following specific judgment of the ECtHR • Need to create a domestic remedy (e.g. complaint on length of proceedings – Kudła v. Poland judgment) • Change in law may concern even the Constitution (e.g. Incal v. Turkey, Kiss v. Hungary) • Change in law must be effective (e.g. Tysiąc v. Poland) • Responsibility for preparation of draft law and cooperation between organs of state

10. Verification of new and existing laws as to compliance with the Convention • Verification of new and existing laws – prevention of future violations • Special „desks” or offices in governments and parliaments checking compliance with the ECHR • Role of the Legislative Councils • Role of ombudsmen – indication of possible violations • Regular review of existing legislation in the light of ECHR standards • Use of the ECHR standards in the constitutional review by the Constitutional Court

11. Coordination of enforcement of ECtHR judgments • Need for a special coordination body • Recommendation Rec(2008)2 on efficient domestic capacity for rapid execution of the Court’s judgments • Usually in the Ministry of Foreign Affairs or in the Ministry of Justice • Rank in the government • Different tasks: • Coordination and dialogue with different state authorities (necessary authority) • Identification of measures, preparation of action plans • Payment of compensations • Dissemination of judgments • Reporting obligations • Ensuring all remedial actions are taken (especially in case of systemic problems)

12. Practical measures to enforce ECtHR judgments • Changes in practice • E.g. brutality of police – creation of internal mechanism of complaints, trainings for police, raising awareness • E.g. systems of names and surnames – sending circulaire to different administrative agencies how to interpret law • Violation of right to privacy – deletion of information obtained illegally from state archives • Institutional reforms • E.g. overcrowding in prisons – need for renovation or building new prisons, promotion of alternative penalties, introduction of new systems (e.g. electronic bracelets) • E.g. disabled persons in prisons – technical enhancements • E.g. length of proceedings in a given court – increasing number of judges, management reforms

13. Dissemination of judments • Recommendation Rec (2002) 13 on the publication and dissemination in the member states of the text of the ECHR and of the case-law of the ECtHR • Need to translate all the judgments concerning given state in the local language • Translation of most important „foreign” judgments • Preparation of summaries and digests of case-law • Dissemination of the text of the Convention • Dissemination of judgments to specific state organs (e.g. courts responsible for a given violation) • Coordination of efforts with other state organs (e.g. schools for police, judiciary, judicial councils, municipal administration)

14. Trainings on human rights • Recommendation Rec(2004)4 on the European Convention on Human Rights in university education and professional training • Trainings as a way to enforce specific judgments: • E.g. Kauczor v. Poland (quasi-pilot judgment) – training to judges and prosecutors on pre-trial detention standards • Traning to specific professional groups which may violate human rights: • E.g. police officers, prison guards, secret services’ officers, soldiers, prosecutors • Trainings to professional groups which should incorporate human rights into their practice: • Attorneys, legal advisors, legal draftsmen • Role of state academies, universities and NGOs

15. Best practices • Comprehensive legislative act regulating enforcement of judgments (Italy, Ukraine) • Preparation of the annual report on enforcement of judgments presented to the Parliament (e.g. Netherlands) • Possibility to claim redress from different state agencies for compensation paid to victim (Italy, France) • Publication of summaries of judgment in the official journal of the state (Ukraine) • Existence of detailed procedure on dissemination of judgments (France) • Website of the government agent with detailed information on state of implementation of judgments (Slovakia) • Inter-ministerial team dealing with enforcement of judgments, including pilot judgments (Poland)

16. Judicial enforcement of ECtHR judgments • Change of interpretation of certain domestic provisions following the judgment of the ECtHR (indirect effect) e.g. in cases concerning freedom of speech vs. privacy • Direct reliance on the provisions of the ECtHR – in case domestic provision is missing (direct effect of the ECHR) • e.g. Polish Supreme Court decision in Mandugequi – reliance on Soering v. UK • Using the ECtHR case-law in the jurisprudence of the constitutional courts (source of interpretation of constitutional provisions) • Constitutional dialogue • e.g. at resolution of pilot judgments in Broniowski case and Hutten-Czapska case

17. Proceedings before the Committee of Ministers • Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements (10 May 2006) • Special human rights meetings, control intervals • Interim resolutions and final resolutions • Crisis vs. strenthening of role of Committee of Ministers • Participation of victims and NGOs: • The Committee of Ministers shall consider any communication from the injured party with regard to payment of the just satisfaction or the taking of individual measures (Rule 9 Section 1) • The Committee of Ministers shall be entitled to consider any communication from non-governmental organisations, as well as national institutions for the promotion and protection of human rights, with regard to the execution of judgments under Article 46, paragraph 2, of the Convention (Rule 9 Section 2). • Bringing such communications to the attention of the Committee of Ministers

18. Cases pending before the Committee of Ministers as of 31 December 2009 • Armenia • 8 leading cases • 7 clone or repetitive cases • Azerbaijan • 13 leading cases • 3 repetitive cases • Georgia • 19 leading cases • 6 repetitive cases • By comparison: Ukraine: • 37 leading cases • 491 repetitive cases

19. Protocol No. 14 – new measures for the Committee of Ministers and the ECtHR • Article 46 (3) – request for interpretation by majority of 2/3 when „execution of a final judgment is hindered by a problem of interpretation of the judgment” • Article 46 (4) and (5) – new procedure when the state „refuses to abide by a final judgment in a case to which it is a party” • Formal notice • 2/3 majority decision by the Committee of Ministers • ECHR finding a violation of Article 46 (1) of the Convention + Grand Chamber • The Committee of Ministers – consideration of measures to be taken (others than suspension of voting rights) • Up to now – Verein gegen Tierfabriken (No. 2) – once again finding a violation

20. Possible role for NGOs as regards enforcement of judgments • Monitoring the implementation of the CoE soft law (recommendations of the Committee of Ministers) • Pushing on state authorities to make institutional reforms securing more effective enforcement • Raising awareness among local politicians – member of the Parliamentary Assembly of CoE as regards problems with implementation • Communications to the Committee of Ministers (concerning all important cases) • Monitoring of the enforcement efforts by a given state (as well as proceedings before CM) • Warning on the need to implement „third party” judgments • Promotion of judgments among media, judiciary and other relevant professions

21. Leading scholarship in the field • JURISTRAS project • http://www.juristras.eliamep.gr/ • Robert Blackburn, Jorg Polakiewicz (eds.) Fundamental Rights In Europe: The ECHR and Its Member States, 1950-2000, Oxford University Press 2002 • Helen Keller, Alec Stone-Sweet (eds.), A Europe of Rights: The Impact of the ECHR on National Legal Systems, Oxford University Press 2008 • Giuseppe Martinico, Oreste Pollicino (eds.) The National Judicial Treatment of the ECHR and EU Laws, Europa Law Publishing, 2010 • Anton Burkov’s publications on the impact of the ECHR on the Russian legal system (also in Russian).

22. Thank you Adam Bodnar, Ph.D., LL.M. Human Rights Chair Faculty of Law and Administration Warsaw University Helsinki Foundation for Human Rights, Warsaw e-mail: a.bodnar@wpia.uw.edu.pl, a.bodnar@hfhr.org.pl