The UIHJ Offers its Expertise to the European Court of Human Rights

7881 cases under supervision of the European Court of Human Rights

The delayed execution or the non-enforcement of domestic court decisions is unfortunately a reality having for direct consequence an increase in application at the European Court of Human Rights (ECHR). According to Article 46 of the European Convention on Human Rights, the Member States undertake to abide by the final judgment of the Court in any case to which they are parties and the final judgment of the Court shall be transmitted to the Committee of Minister, which shall supervise its execution.
Once the Court's final judgment has been transmitted to the Committee of Ministers, the latter invites the respondent State to inform it of the steps taken to pay any just satisfaction (compensation and/or costs and expenses) awarded as well as of any individual or general measures which may be necessary in order to comply with the State's legal obligation to abide by the judgment. In the performance of this task the Committee is assisted, in addition to its own secretariat, by a special department of the Council of Europe's Secretariat - the Department for the Execution of judgments of the European Court of Human Rights.
In 2009, 1515 new judgments finding violations of the European Convention on Human Rights were brought before the Committee of Ministers for supervision of their execution, thus bringing the number of cases under supervision to 7 881. The compensation awarded to the victims in the new judgments 2009 amounted to some 54 million Euros (Source: 2009 Annual report on the execution of judgments of the European Court of Human Rights). It is within this framework that the roundtable was held of 15 and 16 March 2010 at the Council of Europe in Strasburg.

Enforcement in the middle of the concerns of the countries

In its capacity as expert of the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe and in particular following its active participation in the CEPEJ-GT-EXE working group which worked out the Guide Lines of December 2009 on execution, the UIHJ was invited to take part in the round table. The seventy-eight participants came from eleven European countries: Albania, Azerbaijan, Bosnia-Herzegovina, Croatia, Greece, Moldova, Poland, Romania, Russian Federation, Serbia, and Ukraine. The UIHJ was represented by its first secretary, Mathieu Chardon, who had worked on the CEPEJ Guide Lines.
Peter Wille permanent representative of Norway, chair of the Human Rights Trust Fund,  indicated in his introductory speech that the right to have a decision carried out is not theoretical but very concrete and that all non-respect must give place to compensations. Christos Giakoumpooulos, director of monitoring at the General Direction of Human Rights and Legal Affairs added that “providing remedies is not an end in itself because it would be necessary to have not violation”. In the meantime, he continued, it is necessary that the countries set up means of compensating the violations. Dean Spielman, Judge at the European Court of  Human Rights, presented a report on the experience of the European convention on Human Rights as regards non-execution or delayed execution of domestic court decisions against the State or individuals. He evoked the Hornsby v. Greece case of 1997 in which the ECHR recognized that the execution of a legal decision is an integral part of the fair trial mentioned in article 6 of the convention. For him, “the problem comes from the non-execution of domestic decisions and also of the lack of effective measures to solve this non-execution”. Then he evoked the Burdov 2 pilot judgment in which it was judged that an action in compensation must be settled quickly and that compensations must be settled within 6 month of the decision having granted it.
Then Jakub Wolasiewicz, president of the Committee of experts on effective remedies against the excessive duration of procedures (DH-RE), government official, Ministry for Foreign Affairs (Poland), presented the recommendation of the Committee of the ministers (2010)3 of 24 February 2010 on effective remedies against excessive length of procedures and its guide of good practices. Among the many presentations which followed one another during two days to identify and define the problems, one in particular concerned the occupation of judicial officer: that on the improvement of the efficiency of the service of enforcement agents as a guarantee in the event of non-execution or delayed execution of domestic court decisions. Georg Stawa, member of the CEPEJ on behalf of Austria presented the Guide Lines of the CEPEJ for a better implementation of the existing Council of Europe's Recommendation on enforcement. Mathieu Chardon presented the UIHJ, its role and its activities. He said how much the enforcement of court decisions is in the middle of the concerns of the countries. The first secretary of the UIHJ insisted on the importance for the countries to comply with the CEPEJ Guide Lines. “It is probably  one of the efficient way of ensuring a fast and effective enforcement and in conformity with the requirements of the European Convention of Human Rights, and to thus help to solve the problems of non-execution or delayed execution of domestic court decisions” he estimated. Then the first secretary of the UIHJ offered the expertise of the UIHJ to the European Court of Human Rights to help fighting against what ultimately constitutes a limit to the economic development of countries. Genevieve Mayer, head of the Department for the execution of judgments of the European Court of  Human Rights, declared very interested by these remarks. The UIHJ could thus become a privileged interlocutor of this European jurisdiction.
In conclusions of the roundtable, Paul Widmer, president of the delegate ministers, permanent representative of Switzerland, acknowledged the interest of the work: “If an individual obtains satisfaction, it is well. But for the individual, it is necessary that this judgment is carried out. From here, the talks will be an inspiration for the countries where there is still a major effort to make”. This roundtable showed that the concerns of the UIHJ and all the judicial officers in the world for many years are also shared today by the European Court of Human Rights and that a collaboration between the two institutions seems desirable.

Here is the text of the conclusions adopted by the participants in the roundtable.

Round Table on “Effective remedies against non-execution or delayed execution of domestic court decisions”

Round Table
Council of Europe
Strasbourg, AGORA
15 - 16 March 2010

CONCLUSIONS

Having regard to the constantly growing number of judgments of the European Court of Human Rights revealing systemic problems due to the non-execution or delayed execution of domestic judicial decisions, both directed against public entities, including the State itself, and private individuals;

Recalling that the effective enforcement of judicial decisions is essential for respect of the rule of law  which the States party to the European Convention on Human Rights have undertaken to guarantee, in particular through Article 6, paragraph 1, and the right to fair trial;

Recalling that the European Convention on Human Rights requires that States take ex officio all necessary measures to ensure that national authorities rapidly comply with domestic judicial decisions and that the complexity of enforcement or lack of budgetary or other resources cannot justify non-execution or delayed execution;

Recalling in this context the conclusions reached at the two earlier round tables organised around the theme of the non-execution of domestic judicial decisions addressing in particular the questions linked to the organisation of state budgetary procedures and of enforcement services ;

Recalling in the present context the requirements relating to the provision of effective domestic remedies in Article 13 of the Convention, which give direct expression to the principle of subsidiarity enshrined in Article 1 of the Convention, according to which the protection of human rights is first and foremost the responsibility of the domestic legal system;

Recalling that Article 13 requires the States to provide for a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, whether in the form of compensation, acceleration and/or other forms of redress, for any violation found;

Bearing also in mind the Committee of Minister's Recommendations Rec (2004)6 on the improvement of domestic remedies and Rec (2010)3 on effective remedies for excessive length of proceedings and its Guide of Good Practices and the reports and guidelines of the European Commission for the Efficiency of Justice (CEPEJ) ;

Recalling that the findings of violations by the European Court of Human Rights impose a legal obligation on competent state authorities to adopt without delay general measures preventing similar violations and that the need for such measures, including the provision of effective domestic remedies, is all the more pressing in case of repetitive violations revealing structural problems;

Stressing the Committee of Ministers' long-standing position that the setting up of domestic remedies, however important, does not relieve states from their general obligation to solve the structural problems underlying violations;

Noting in particular the risk that structural problems may generate large number of complaints awaiting the adoption of adequate remedial measures and the ensuing risk of overburdening of national instances and/or of the Convention organs;

Having taken stock of the exchanges of experiences between States on the problems encountered and the concrete measures adopted or envisaged in order to put in place effective remedies in situations of non-execution and/or excessively lengthy execution of domestic court judgments, in particular in response to judgments of the European Court;

Having noted the special experiences gained of the pilot judgment procedure and the obligations imposed in the ensuing judgments as regards effective remedies and, in particular, as regards the time limits set for the introduction of such remedies and the solution of individual cases;

Noting the variety of additional measures adopted in different countries to address the consequences of the non-execution or slow execution of domestic court judgments, including the provision of adequate default interest or indexation systems, the introduction of a competence for courts or special judicial bodies to impose notably monetary sanctions, the possibility of seizure also of state assets and improved monitoring of the State authorities' compliance with judicial decisions by prosecutors or other equivalent institutions;

Noting the important ongoing reforms in a number of countries to improve the efficiency of bailiffs' services and the continuing contribution of the work of CEPEJ;

The participants of the Round Table:

Stressed the need for each State to equip itself with the legal instruments and resources which are adequate and sufficient to ensure execution of domestic judicial decisions, including those delivered against it and its entities;

Encouraged the States, in accordance with the principle of subsidiarity, to ensure that means exist which permits the anticipation of possible needs for the introduction of domestic remedies;

Stressed the importance for States to include the question of remedies in the action plans developed following judgments of the European Court, in particular when judgments reveal structural problems;

Highlighted the fact that, where structural systemic problems are at the roots of the violations found, the introduction of a remedy, while important, cannot in itself constitute a long-lasting solution;

Underlined the necessity, in case of major structural problems, to ensure the adoption of comprehensive integrated domestic strategies, including the issue of remedies, involving all actors and decision-makers concerned, in the spirit of the Committee of Ministers' Recommendation CM/Rec (2008)2 on efficient domestic capacity for rapid execution of judgments of the European Court;

Recognised the importance as well as the need of developing as early as possible, both in the framework of the Committee of Ministers' supervision of the execution process and the European Court's pilot judgment procedure, the interaction between the domestic and the European levels as far as such comprehensive national strategies are concerned,

Agreed to continue the ongoing reflections, including on issues such as the reforms of the bailiffs' service, with a view to speeding up and increasing the efficiency of the reforms in their respective countries, and to resume consideration of progress achieved in an appropriate form at the earliest opportunity.