Appendix
Comments by the Steering Committee for
Human Rights (CDDH)
1. The Steering Committee for
Human Rights (CDDH) takes note of the Parliamentary Assembly
Recommendation 2110 (2017) – “The implementation of judgments of the European Court
of Human Rights”.
2. The CDDH notes that the issue of implementation of the Convention,
including the execution of the Court’s judgments, was highlighted
in several declarations of Ministerial conferences from 2010 onwards,
the most recent one being the 2015 Brussels Declaration. The issue
of execution of judgments and its supervision by the Committee of
Ministers is one of the main themes of the CDDH’s ongoing work under
its terms of reference to examine the longer-term future of the
Convention system and the Court.
Note
3. In 2013, the CDDH identified three general causes of failure
to execute judgments in a timely manner: (i) reluctance on the part
of either the executive to propose measures or parliament to adopt
legislation; (ii) substantive problems and technical complexity,
e.g. need for a wide range of measures requiring co-ordination or
extensive legal reforms; and (iii) inertia, being a simple failure
to take action not linked to any particular political or technical
consideration, but e.g. to a shortage of staff.
Note
4. Since 2014, regular exchanges of information on various issues
connected to the execution of judgments have taken place within
the relevant bodies of the CDDH, regarding
inter
alia the re-examination or reopening of cases following
judgments of the Court
Note as well as verification
of the compatibility of legislation with the Convention.
Note The
CDDH has also taken an active part in a number of extraordinary
events concerning execution.
Note
5. Concerning in particular rapid execution of judgments of the
Court, the CDDH has in 2017 elaborated a Guide to good practices
on the implementation of the Recommendation (2008)2 on efficient
domestic capacity for rapid execution of judgments of the European
Court of Human Rights. The Guide includes an inventory of good practices
relating to implementation of the recommendation.
Note
6. Regarding the ideas put forward by the Assembly in its
Recommendation 2110 (2017) to the Committee of Ministers, the CDDH wishes to submit
the following comments:
2.1. give
renewed consideration to the use of the procedures provided for
in Article 46, paragraphs 3 to 5, of the Convention, in the event
of implementation of a judgment encountering strong resistance from the
respondent State
7. It is worth recalling the CDDH’s 2008 Practical proposals
for the supervision of the execution of judgments of the Court in
situations of slow execution.
Note This text
contributed to the Committee of Ministers’ introduction of the ‘twin-track’
(standard and enhanced) supervision process. In 2013, the CDDH submitted
its report on whether more effective measures are needed in respect
of States that fail to implement Court judgments in a timely manner.
Note The 2017 Guide to good practices
on the implementation of the Recommendation
CM/Rec(2008)2 examined in particular the role of the co-ordinator
in identifying execution measures, practices ensuring the visibility
of and promoting sufficient acquaintance with the execution process, the
co-operation of member States with the Committee of Ministers and
the Department for the Execution of Judgments, as well as the means
to prevent or resolve a significant persistent problem in the execution process.
8. The CDDH is following with interest the recent developments
in the area the of procedures provided for in Article 46, paragraphs
3 to 5, of the Convention, regarding both individual measures
Note relating
to individual applicants and general measures
Note to address systemic shortcomings.
9. In its work on civil society and national human rights institutions,
the CDDH has noted that in the case of systemic shortcomings in
the protection and promotion of human rights, many of the judgments
of the Court concerning such situations have yet to be implemented
through the adoption of general measures.
Note
10. At the same time, the CDDH is continuing its work by producing
a compilation of good practices regarding the general measures taken
by member States aimed at executing judgments of the Court concerning
human rights defenders, national human rights institutions, and
freedom of assembly and association.
Note
2.5. give applicants, civil society,
national human rights protection bodies and international organisations a
greater role in this process
11. The Brussels Declaration
Note reiterated the need
to involve national human rights institutions and civil society
where appropriate in the supervisory mechanism established by the
Convention. In the same light, the Rules of the Committee of Ministers
for the supervision of the execution of judgments and of the terms
of friendly settlements
Note make
provision for the involvement of national human rights protection
bodies and civil society in the process of the supervisory mechanism
concerning the implementation of judgments of the Court. The CDDH
relied significantly upon the jurisprudence of the Court in its
analysis on the impact of current national legislation, policies
and practices on the activities of civil society organisations,
human rights defenders and national human rights institutions. NHRIs
can improve the implementation of human rights at the national and
local level through their broad mandate to protect and promote human
rights. According to the Paris Principles, they also co-operate
with civil society, other national bodies and the international
human rights system. Applicants could be invited, when appropriate,
to actively collaborate in the execution of judgments.
2.6. continue to strengthen synergies,
within the Council of Europe, between all the stakeholders concerned,
in particular the European Court of Human Rights and its Registry,
the Assembly, the Secretary General, the Commissioner for Human
Rights, the Steering Committee for Human Rights, the European Commission
for Democracy through Law (Venice Commission) and the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment
12. The CDDH, through its subcommittee the DH-SYSC, will work
in close synergy and co-operation with other relevant Council of
Europe instances and activities.
Note One example of such synergy in practice,
albeit in a different area than the execution of the Court’s judgments,
is the close interaction between the CDDH, the Court and its Registry,
the PACE and the Advisory Panel of Experts on Candidates for Election
as Judge to the Court in the work undertaken within the CDDH concerning
the process of selection and election of judges of the Court.
Note The
CDDH and its subcommittees work in their activities in close synergy
with the Department for the Execution of Judgments. One example
of this co-operation is the latter’s presentation of the search
tool HUDOC-EXEC and of information on the state of execution of
the Court’s judgments prior to the 2nd meeting of
the DH-SYSC in 2016.
Note
2.7. increase the resources of
the Department for the Execution of Judgments of the European Court
of Human Rights
13. In its 2015 report on the longer-term future of the Convention
system, the CDDH has underlined the significance of the bodies dealing
with the supervision of the execution of judgments of the Court
(e.g. the Committee of Ministers assisted by its Secretariat and
the Department for the Execution of Judgments of the Court) having
sufficient capacity to process effectively the high number of cases
decided by the Court.
Note Support for increased resources
for the Department of Execution of Judgments was also expressed
in the 2015 Brussels Declaration.
Conclusion
14. The CDDH emphasises to the Parliamentary Assembly that the
long-term efficacy of the Convention, including the implementation
of the Court’s judgments, rests on the enhanced dialogue between
all actors of the Convention. In this regard, the Council of Europe
will continue its work in the upcoming months with the aim of enhancing,
at every stage of the process, this dialogue which is beneficial
to the execution of judgments.
Comments by the Venice Commission
I. Introduction
1. On 5 July 2017, the Committee
of Ministers of the Council of Europe decided to communicate to
the Venice Commission the Parliamentary Assembly of the Council
of Europe (PACE)
Recommendation
2110 (2017) on the “Implementation of judgments of the European
Court of Human Rights” for information and possible comments.
2. In its
Recommendation
2110 (2017) adopted on 29 June 2017, the PACE urged the Committee
of Ministers to use all available means to fulfill its tasks arising
under Article 46.2 of the European Convention on Human Rights (ECHR).
Accordingly, it recommended,
inter alia, that
the Committee of Ministers continue to step up synergies, within
the Council of Europe, between all stakeholders concerned, in particular
the European Court of Human Rights (ECtHR) and its Registry, the
PACE, the Secretary General, the Commissioner for Human Rights,
the Steering Committee for Human Rights, the Venice Commission and
the European Committee for the Prevention of Torture.
3. These comments were prepared on the basis of a contribution
of Mr Helgesen; they were adopted by the Venice Commission at its
112th plenary session (Venice, 6-7 October
2017).
II. Previous work of the Venice Commission
in this field
A. General studies and reports
18. At the request of the Chairperson
of the Committee on Legal Affairs and Human Rights of the PACE,
the Venice Commission adopted in 2002 an “Opinion on the implementation
of the judgment of the European Court of Human Rights”, in which
it assessed the existing proposals and made a number of recommendations
on this issue. As expressed in this opinion, the Venice Commission
attaches high importance to the timely and complete execution of
the ECtHR judgments for the effectiveness of the European mechanism
of human rights protection.
Note
19. The Venice Commission carried out in 2006 a comparative study
on existing national remedies with respect to allegations of excessive
length of proceedings, with a view to proposing possible improvements
in their availability and effectiveness.
Note The study aimed at
assisting States in devising a remedy or improving an already existing
one in order for it to be compatible with the requirements of the
ECtHR. It was also designed to assist the Committee of Ministers
in monitoring compliance with such requirements. In fact, the effectiveness of
national judicial remedies with respect to the length of proceedings
is of primary importance for the execution of numerous judgments
that found a breach of the reasonable time requirement.
20. In a report adopted in 2014, the Venice Commission analysed,
in the broader context of the implementation of international human
rights treaties in national law, the role of national courts in
implementing ECHR and ECtHR judgments.
Note
B. Country-specific opinions
a. Opinions relating to European human
rights standards
21. The Venice Commission has repeatedly
received from PACE and member States requests for an assessment
of the compatibility of a legal act or of a practice with the ECHR.
Indeed, most opinions of the Venice Commission are directly or indirectly
related to at least one judgment of the ECtHR or one article of
the ECHR or the Protocols thereto. This is very well demonstrated
by the great number of references made to the ECtHR caselaw in the
Venice Commission’s opinions and studies. Indeed, when it assesses
the compatibility of a piece of legislation with European human
rights standards, the Venice Commission obviously refers to the ECHR
and the ECtHR caselaw.
Note
22. By referring to the ECtHR caselaw, while assessing a particular
legal provision or practice, the Venice Commission draws the national
authorities’ attention to the incompatibility between the latter
and the fundamental rights enshrined by the ECHR or the Protocols
thereto.
Note It makes, where
appropriate, specific recommendations on how to amend (draft) legislation
or change a practice to be fully in line with the ECHR requirements.
Note In the event, the ECtHR has already identified
a shortcoming in a particular piece of legislation or practice,
the Venice Commission verifies whether a (draft) amendment subject
to its opinion has succeeded or partially or completely failed to
address the shortcoming in question.
Note
23. The Venice Commission is aware of the fact that the question
of the execution of judgments of the ECtHR is of exclusive competence
of the Committee of Ministers. That being said, the aforementioned
practice of the Commission may usefully contribute to a better execution
of the ECHR judgments.
b. Opinions specifically requested within
the framework of a procedure of execution of judgments of the ECtHR
24. The Venice Commission has at
times been requested to express its view on general measures adopted with
the special purpose to execute judgments of the ECtHR. The following
opinions fall under this category:
- Joint Opinion of the Venice Commission, the Directorate
of Human Rights (DHR) of the Directorate General of Human Rights
and Rule of Law (DGI) of the Council of Europe and the OSCE Office
for Democratic Institutions and Human Rights (OSCE/ODIHR) on two
Draft Laws on Guarantees for Freedom of Peaceful Assembly of Ukraine
(CDL-AD(2016)030). This opinion was requested by the Speaker of
the Verkhovna Rada (Parliament)
of Ukraine. It concerns two Draft Laws on “Guarantees for Freedom
of Peaceful Assembly” prepared in order to fill the existing legislative
lacuna in this area, as highlighted by the ECtHR in its Vyerentsov v. Ukraine judgment (Application
No. 20372/11, 14 April 2013).
- Preliminary Opinion on the Draft Law on the Judicial System
and the Status of Judges of Ukraine (CDL-AD(2015)008). This opinion
was requested by the Minister of Justice of Ukraine. It relates
to the Draft Law on Amending the Law on the Judicial System and
the Status of Judges of Ukraine, which aimed to remedy a number
of deficiencies in the judicial system that the Venice Commission
and the Directorate General of Human Rights and Legal Affairs had
pointed out in their 2010 Joint OpinionNote and fulfil
the requirements of the ECtHR judgment in the case of Oleksandr Volkov v. Ukraine (Application
No. 21722/11, judgment of 9 January 2013).
- Joint Opinion of the Venice Commission and the Directorate
of Human Rights (DHR) of the Directorate of Human Rights and Rule
of Law (DGI) of the Council of Europe on the Draft Laws amending
the Administrative, Civil and Criminal Codes of Georgia (CDL-AD(2014)030).
This opinion was requested by the Minister of Justice of Georgia.
It relates to the draft amendments to the Administrative, Civil
and Criminal Procedure Codes of Georgia which introduced the possibility
of cassation appeal in case “the decision of the appeal court contradicts
the precedent decision(s) of the European Court of Human Rights
in case(s) in which Georgia was a party.”
- Opinion on the Draft Law on making changes and additions
to the Civil Code (introducing compensation for non-pecuniary damage)
of the Republic of Armenia (CDL-AD(2013)037), requested by the Permanent
Representative of the Republic of Armenia to the Council of Europe.
The Draft Law had introduced compensation for non-pecuniary damages
into the Armenian civil law in specific, limited circumstances,
in order to implement Armenia’s obligations under the ECHR and properly
execute the judgments of the ECtHR in the cases Poghosyan and Baghdasaryan v. Armenia (Application
No. 22999/06, Judgment of 12 June 2012) and Khachatryan
and Others v. Armenia (Application No. 23978/06, Judgment
of 27 November 2012).
- Opinion on the legislation pertaining to the protection
against defamation of the Republic of Azerbaijan (CDL-AD(2013)024).
This opinion concerning the Draft Law on defamation was prepared
by the Venice Commission following a request from the Presidential
Administration of the Republic of Azerbaijan. The latter had requested
the assistance of the Venice Commission in drafting a Law on Defamation
as part of the execution of two judgments of the ECtHRNoteNote, in which
the Court had found violations by Azerbaijan of Article 10 of the
ECHR.
- Opinion on the Draft Law on Amendments and Additions to
the Law on Alternative Service of Armenia (CDL-AD(2011)051). This
opinion was requested by the Chairman of the Standing Committee
on Defense, National Security and Internal Affairs of the National
Assembly. It concerns the Draft Law on Amendments and Additions
to the Law on Alternative Service of the Republic of Armenia which
was an important step forward for the execution of the Grand Chamber
Judgment in the case of Bayatyan v. Armenia of
7 July 2011 (Application No. 23459/03).
25. In the aforementioned opinions, the Venice Commission and
the Directorate of Human Rights made a number of specific suggestions
aiming to improve the Draft Laws submitted for assessment in order
for them to be fully in line with the relevant ECtHR caselaw.
26. The Venice Commission received as well an
amicus curiae brief request from
the President of the Constitutional Court of Albania on the conformity
of Law No. 133/2015 of the Republic of Albania “On the treatment
of property and finalisation of the process of compensation of property”
with the requirements of Article 1, Protocol No. 1 to the ECHR and
the respective caselaw of the ECtHR. Law No. 133/2015 aimed to resolve
the administrative problems concerning the effective restitution
of property and concerned, at the time of writing the
amicus curiae brief, around 230
cases pending before the ECtHR and over 15 cases under the supervision
of the Committee of Ministers. The Venice Commission concluded that
in Albania’s specific situation, it could well be argued that a
new and effective legal framework provided by Law No.133/2015, which may
lead to a lower amount of compensation paid to the former owners,
meets the requirement of proportionality as set out in Article 1
of Protocol No.1 to the ECHR.
Note
27. The Venice Commission has also received similar requests from
PACE which, for instance, in its
Resolution 1920 (2013) on the state of media freedom in Europe, requested an
opinion on “whether the Italian laws on defamation are in line with
Article 10 of the European Convention on Human Rights”. The Venice Commission
assessed the legislative amendments aimed at limiting the use of
criminal sanctions for defamation and introducing the abolishment
of imprisonment as a sanction for defamation, in line with the relevant
ECtHR judgments against Italy. The Venice Commission considered
the aforesaid amendments as a welcome effort to bring the Italian
legal framework pertaining to defamation into conformity with the
ECHR requirements
Note
28. Lastly, the Venice Commission assessed the compatibility of
legislative amendments with the ECHR related to the power of the
Russian Constitutional Court on declaring the decisions of international
courts, notably of the ECtHR, as “unenforceable” when their execution
raises issues of constitutionality. In this opinion, requested by
PACE, the Venice Commission emphasised once again the utmost importance
of the execution of judgments of the ECtHR, which is, in its view,
an unequivocal and imperative legal obligation, whose respect is
vital for preserving and fostering the community of principles and
values of the European continent.
Note
C. Conferences and other similar events
29. Furthermore, the Venice Commission
has co-organised
Note in
co-operation with various partners or simply participated in a number
of conferences, seminars, and similar events on the European Convention
mechanism including the issues linked to the execution of the ECtHR
judgments.
Note
III. Conclusions
30. The Venice Commission has, on
so many previous occasions, emphasised the legal aspects involved in
the execution of judgments by ECtHR. At this juncture, the Commission
reiterates the statements presented already in 2002:
“49. The issue of execution is
central in any system of judicial review. It is, however, especially
pertinent and problematic, and indeed “the crucial question”, for
international jurisdictions, since execution lies mainly in the
hands of sovereign States. And this the more so if the cohesiveness
within the community of States concerned is weak or has weakened,
and if the international judicial body has no power to put a sanction
on non-execution of its judgments.
50. It may be argued that since
the Court has so far seen itself as having almost no means to promote the
execution of its judgments and the supervision is in the hands of
the Committee of Ministers, the issue of execution is a political
rather than a legal issue. However, States are under a legal obligation
to execute the judgments of the Court (see para. 28 above). In that
respect, the issue of execution and its supervision is also a legal
one and, consequently, justifies also a legal approach.” Note
31. The Venice Commission stands ready to play a more active role
in this field, within the framework of the procedures of execution
of judgments of the ECtHR. The Commission’s legal opinions can be
useful for the Committee of Ministers in deciding whether general
measures taken by member States should be considered as sufficient
to close the supervision of the execution of a judgment or a group
of judgments. They can, on the other hand, assist the member States
in bringing their existing legislation which generated violations
of the ECHR into conformity with the latter and in ensuring compliance
of their draft legislation with the ECHR before being adopted, thus
avoiding further violations.
32. The Venice Commission has the possibility of preparing these
opinions jointly with other services of the Council of Europe, thus
streamlining the synergies already existing within our Organisation.
33. The Commission is also well placed to carry out research and
prepare general studies, notably from a comparative perspective,
with the aim of contributing to the execution of judgments of the
ECtHR.
34. The Venice Commission therefore encourages the relevant organs
of the Council of Europe as well as member States to take full advantage
of its expertise for strengthening the execution of judgments of
the ECtHR.