C Explanatory memorandum
by Mr Constantinos Efstathiou, rapporteurNote
1 Introduction
1. One of my clients before the
European Court of Human Rights (“the Court”, or “the European Court”) was
only a child. He was 17 when he was accused of serious crimes. The
trial in Cyprus was a travesty of justice, but the boy was somehow
convicted and sentenced to 14 years in jail. We brought the case
to the Court and won. The Court found that there had been multiple
violations of the right to a fair trial and that my client never
should have been convicted as a result of such proceedings. The
next step should naturally have been for him to be released and
for there to be a retrial. However, that did not happen. The reason
is because there had been such a long delay between the application
being made to the Court and the Court’s judgment, that my client
had already been released after over six years’ imprisonment, as
a result of good behaviour.
2. Unfortunately, this story does not have a happy ending. After
years in jail at such a young age, the boy had developed mental
health issues. He married, then divorced; and could not get a job
to pay alimony for his children, due to his criminal record.
3. I do not refer to this story to in some way blame the European
Court for what happened to my client. I refer to it in order to
highlight the impact of the non-implementation of the Court’s judgments
on the whole European Convention on Human Rights (ETS No. 5, “the
Convention”) system. The Court is becoming more efficient every
year, but there is a limit to how many applications it can process
with finite resources – it dealt with the case as fast as it could
at the time. If the system were to work efficiently, after the Court
finds a violation of the Convention, States would promptly ensure
that the same problem does not happen again – to prevent more human
rights violations and to ensure the Court is not overloaded with
applications. However, 84% of the Court’s judgments from the last
five years that found a violation were subsequently classified by
the Committee of Ministers as “repetitive” cases, on the grounds
that the type of violation concerned had already been the subject
of a judgment of the Court. In other words, five in every six judgments
of the Court that find a violation are about a wider human rights
problem that the Court has already identified in the State concerned.
Note
4. Over 79% of the Court’s rulings have been implemented. In
the year of the 75th anniversary of the Convention,
it is important to recall just how important these judgments have
been. Judgments have led to the release of political prisoners;
Note protections of the freedom of
speech, assembly, and association that are the bedrock of democratic
life;
Note the
decriminalisation of homosexuality;
Note the
development of fairer trials;
Note the
end to impunity for torture and ill-treatment in many States;
Note laws
to protect the judiciary and prosecutors from government control;
Note measures
to tackle slavery and human trafficking;
Note and
countless other achievements. These are just a handful of the 26 379
rulings that have been implemented.
Note I
urge readers to look at the website “Impact of the European Convention
on Human Rights” at
www.coe.int/echr, for examples of how the Court’s judgments have led
to improvements in the member States.
5. The Convention and the Court are therefore monumental achievements
in the history of our continent. Yet despite the successes, the
failure by some States to remedy the underlying causes of human
rights violations identified in a minority of judgments has a very
negative impact on the Convention system as a whole, as the Court
is overloaded with repetitive applications. In our interconnected
world, the fate of a boy in Cyprus can be linked to the ineffective
implementation of judgments across the rest of Europe.
6. At the May 2023 Summit, the Heads of State and Government
of the Council of Europe adopted the Reykjavik Declaration.
Note Appendix IV, relating to the Convention
system, underlines “the fundamental importance of the execution
of the Court’s judgments and the effective supervision of that process
to ensure the long-term sustainability, integrity and credibility
of the Convention system” and the States recommitted to “resolving
the systemic and structural human rights problems identified by
the Court and to ensure the full, effective and prompt execution
of the final judgments of the Court, taking into account their binding
nature […] while also recalling the importance of involving national
parliaments in the execution of judgments”. The Reykjavik Declaration
also included the “Reykjavik Principles for Democracy” in its Appendix
III.
7. In formulating the focus of this 12th report I have sought
to incorporate this renewed focus on respect for the Convention
system, on timely and effective implementation of the judgments
of the Court, and on strengthened support for democratic principles.
The report therefore focuses on the following:
- the importance of addressing
leading cases (section 3);
- the implementation of judgments protecting democratic
principles, including those relating to the freedom of expression,
the freedom of assembly and association, the right to free and fair
elections, the misuse of the law to violate human rights, and the
independence of the judiciary (section 4);
- the challenges in implementing interstate cases (section
5);
- the implementation of judgments concerning the Russian
Federation (section 6);
- the implementation of measures set out in the Reykjavik
Declaration to promote the implementation of the judgments of the
Court (section 7);
- the role of the Parliamentary Assembly and national parliamentarians
in the implementation of the judgments of the Court (section 8).
8. A large number of meetings and hearings have been carried
out during the preparation of this report. These include hearings
focused on the implementation of judgments by three particular States
(Albania, Armenia, and Türkiye);
NoteNoteNoteNote fact-finding visits to Armenia
and Poland;
Note participation in
a roundtable discussion in Brussels with the Council of Bars and
Law Societies of Europe;
Note and meetings with officials from
the Committee of Ministers, the Council of Europe’s Directorate
General Human Rights and Rule of Law, the European Court of Human
Rights, and the European Union’s Directorate-General of Justice
and Consumers.
Note
2 Overall statistics
9. The most recent Annual Report
on the Supervision of the Execution of Judgments and Decisions of
the European Court of Human Rights is the 2024 edition.
Note It states that 3 916 judgments of
the Court concerning member States are pending execution and lists
the ten member States with the largest number of cases pending full
implementation (from the highest to the lowest number): Ukraine
(842), Türkiye (440), Romania (411), Azerbaijan (329), Italy (310),
Hungary (198), Bulgaria (164), Republic of Moldova (163), Poland
(147) and Georgia (73).
Note
3 The
importance of addressing leading cases
10. Of the 3 916 cases pending
execution concerning member States in the
Annual
Report 2024, 1 149 were classified as “leading” cases. Leading cases
are those that disclose a problem in law or practice, often requiring general
measures to be adopted to prevent a recurrence of the human rights
violation.
Note Addressing
leading cases is fundamental to any meaningful implementation of
judgments of the Court, as this is what resolves the underlying
causes of the violation and prevents similar problems from occurring.
Implementing leading cases is also crucial to preventing an increase
in the backlog cases at the Court, as the failure to resolve human
rights issues leads to more violations and more applications. By
way of example, the case of
Levinta v.
the Republic of Moldova concerns a case of ill-treatment
in police custody. Since the judgment in 2008, there have been numerous
subsequent applications to the Court about the same issue, after
which the Court found a violation in ten “repetitive” cases. While
important general measures have been taken by the authorities, the implementation
of
Levinta is still being
supervised by the Committee of Ministers, meaning the underlying problem
has still not been fully resolved 16 years after the Court’s judgment,
and more repetitive cases are likely to find their way to the Court.
11. Meanwhile, when States carry out reforms to successfully implement
leading judgments, this can have a very positive impact on the caseload
of the Court. For example, the Court’s pilot judgment in
Varga and Othersv. Hungary highlighted widespread
issues with conditions of detention and the lack of remedy for violations
at national level. In 2017, the authorities introduced a preventive
and a compensatory remedy for these violations. The scheme was considered
by both the Committee of Ministers and the Court to comply with the
Convention, resulting in the rejection by the Court of more than
8 000 pending applications.
Note
12. As outlined in the introduction, 84% of the judgments of the
Court from the last five years that found a violation were subsequently
classified by the Committee of Ministers as “repetitive”, on the
grounds that the type of violation concerned had already been the
subject of a judgment of the Court.
Note The systemic and prolonged
failure of States to implement leading cases therefore not only
means that human rights are left unprotected in the country which
has been the subject of the judgment. It also means that citizens
across Europe are delayed in ensuring the protection of their rights,
as applications to the Court are slowed down by a significant backlog
caused by States failing to resolve issues that have already been
identified in previous judgments of the Court. Due to the high number
of applications being made to the Court, applicants can generally
expect to wait for many years before receiving a judgment.
13. The following member States have over 40 leading cases pending
implementation (from the highest to the lowest number): Türkiye
(137), Romania (111), Ukraine (106), Bulgaria (89), Italy (74),
Poland (53), Azerbaijan (51), Hungary (47), and the Republic of
Moldova (46).
Note These
States also have the highest number of leading cases pending execution
for over 5 years – which is particularly significant as it indicates
not only where there are issues, but also where those issues are
not being resolved within a reasonable period of time. The data
for leading cases pending execution for over five years in these
States is as follows (from the highest to the lowest number): Türkiye
(76), Ukraine (70), Romania (62), Bulgaria (49), Italy (37); Azerbaijan
(28), Republic of Moldova (26), Hungary (23), Poland (20).
Note It must be recalled
though that Ukraine has been fighting a full-scale war for its survival
for over three years, which is rightly the subject of the full capacity
of the State. Meanwhile it must be underlined that, other than derogations
invoked under Article 15, no conditions of war or state of emergency
can absolve a State from its human rights obligations under the
Convention.
14. The importance of the implementation of leading cases is reflected
also in the European Union Rule of Law Reports. Since 2022, these
have included an assessment of the implementation of leading cases
of the European Court of Human Rights by European Union member States
within their country chapters.
Note The European Commission describes
the implementation of leading cases of the Court as “an important
indicator for the functioning of the rule of law in a country.”
Note
15. In the country chapters, the European Commission highlighted
particular judgments of the Court pending implementation which are
relevant to the rule of law. The country chapters also included
data for each member State as of 1 January 2024, on: the number
of leading Court cases pending implementation; the percentage of leading
judgments pending implementation from the last ten years; and the
average time that leading cases have been pending implementation.
The data for Bulgaria, Hungary, Italy, Poland and Romania were particularly
concerning:
- Bulgaria had 89
leading cases pending implementation, which had been pending for
an average of 6 years and 9 months. Of the leading cases from the
last 10 years, 53% were still pending execution;
- Hungary had 45 leading cases pending implementation, which
had been pending for an average of 6 years and 2 months. Of the
leading cases from the last 10 years, 76% were still pending execution;
- Italy had 66 leading cases pending implementation, which
had been pending for an average of 6 years and 7 months. Of the
leading cases from the last 10 years, 65% were still pending execution;
- Poland had 46 leading cases pending implementation, which
had been pending for an average of 5 years and 5 months. Of the
leading cases from the last 10 years, 51% were still pending execution;
- Romania had 115 leading cases pending implementation,
which had been pending for an average of 5 years and 5 months. Of
the leading cases from the last 10 years, 59% were still pending
execution.Note
16. In light of the importance of leading cases, the Assembly
should therefore highlight in its resolution the States listed in
paragraph 13 and call on them to rapidly improve their implementation
of leading Court cases. The Assembly should also welcome the contribution
that the European Commission has made to highlighting the problem
of leading Court cases in its Rule of Law Reports and call on it
to make specific recommendations for States to implement Court judgments
in serious cases.
17. During the three hearings carried out in the course of preparing
this report (regarding Albania, Armenia, and Türkiye) and two country
visits (to Armenia and Poland) I used the opportunity to encourage
the authorities to improve their implementation of leading Court
cases. I am very grateful for the participation of all of the member
States authorities in these discussions. My overall conclusions
from these exchanges were as follows:
- Albania: significant steps forward have been taken in
relation to a number of important leading cases, with notable reforms
carried out. Examples include improvements to the fairness of criminal
trials, measures to prevent and punish the abduction of children,
and the strengthening of individual constitutional complaints, so
that the European Court now considers them to be an effective remedy
in principle in respect of all complaints alleging any breach of
rights under the Convention. Nevertheless, important shortcomings
and challenges remain, and the overall number of leading cases pending implementation
remains of concern, particularly in relation to the Sharxhi group (concerning deprivation of
property) and the Strazimiri group
(concerning detention conditions). It was unfortunate that a representative
of the office of the government agent did not attend the scheduled
hearing;
- Armenia: I was impressed by the genuine commitment of
the authorities to improving judgment execution, reflected by the
significantly increased engagement with the implementation monitoring process
that has been carried out in recent years. I also recognised the
significant reforms carried out to date, in areas such as freedom
of assembly (explored further below). Meanwhile, it is also important to
recall the notable number of leading cases still pending implementation
and the need for the strong work to continue;
- Poland: the current government inherits a considerable
challenge in regard to the implementation of Court judgments. There
has not yet been progress in lowering the number of leading cases
pending implementation, but I noted the authorities’ plans to bring
forward legislation aimed at improving implementation of Court
judgments systematically and the clear commitment of the government
to make progress on this issue. My visit concentrated on the implementation
of judgments concerning judicial independence – this issue is dealt
with in more detail in the section below;
- Türkiye: the representatives of the Turkish authorities
had a difficult task in the hearing held in the Committee on Legal
Affairs and Human Rights, jointly with the Committee on the Honouring
of Obligations and Commitments by Member States of the Council of
Europe, in January 2025, with the need to cover in detail a very
wide number of cases in a short period of time. In my view, they
attempted to paint an unrealistically positive picture of the overall
implementation of Court judgments by Türkiye. The committee members’
questions focused on the interstate case Cyprus
v. Turkey, the case of Kavala v.
Türkiye, imprisoned politicians, and those concerning
violations of the right to freedom of expression. I regret that
the responses did not demonstrate a concrete plan or intention to
implement these judgments. Meanwhile, information provided about
progress in the implementation of Opuz
v. Turkey, concerning domestic violence, is an example
of how some progress is being made in Türkiye to carry out reforms
to address judgments that do not concern political or democratic
rights.
18. On the issue of the statistics, it is important to note that
focusing on the overall number of cases pending implementation,
rather than the number and type of leading cases, can be very unhelpful.
When the Russian Federation was a member of the Council of Europe,
it claimed that it “implemented” the vast majority of cases from
the European Court. However, this was done not necessarily by improving
human rights protections, but largely by paying money to applicants
in order to close supervision of repetitive cases. In reality, most
of the underlying human rights issues were not dealt with. The more
useful way to assess the implementation of the Court’s judgments
by the Russian Federation would be by assessing its implementation
of leading cases. The fact that three-quarters of the leading cases
concerning the Russian Federation still remain pending – 244 overall
– reflects the fact that human rights protections in the country
have worsened.
19. In the same way, not much clarity is gained through the claim
by the Turkish authorities that the country has a good implementation
record, because the Committee of Ministers has ended supervision
of over 90% of cases finding a violation. Closure of a high number
of repetitive cases was mostly achieved by paying compensation,
not by resolving the underlying human rights issues – a fact reflected
by Türkiye having 137 leading cases pending at the end of 2024 (the
highest of any member State), a great many of which represent ongoing
and systematic human rights violations affecting a very large number
of people. Similar claims about strong compliance with the Court’s
judgments relying on data about implementation of overall cases,
have been made by representatives of the Turkish government in other
fora.
Note I am concerned
by this approach and urge stakeholders in the Convention system
to be sceptical about these kinds of claims.
4 Protecting
democratic principles
20. The Reykjavik Principles for
Democracy
Note reiterate that democracy is the
“only means to ensure that everyone can live in a peaceful, prosperous
and free society”, and that Council of Europe States endeavour to “prevent
and resist democratic backsliding on [the European] continent”.
The principles include a renewed focus on democratic participation
through free and fair elections, with elections being “grounded
in respect for relevant human rights standards, especially freedom
of expression, freedom of assembly and freedom of association”.
This expressly includes having free and pluralistic media, as well
as an environment in which “civil society, as well as human rights
defenders, can operate free from hindrance”. The principles also
highlight the importance of the separation of powers, and “independent,
impartial and effective judiciaries” for a healthy, functioning
democracy. In order to further the Council of Europe priorities
agreed in Reykjavik, I include a specific focus in this 12th report
on protecting democratic principles through the timely and efficient implementation
of relevant Court judgments, specifically relating to:
- the freedom of expression (Article
10);
- the freedom of assembly and association (Article 11);
- the right to free elections (Article 3 of the Additional
Protocol (ETS No. 9));
- abusive limitations of rights and freedoms (Article 18);
- the independence of the judiciary.
4.1 Cases
relating to the freedom of expression (Article 10 of the Convention)
21. As highlighted in the Reykjavik
Principles for Democracy, free and fair elections are grounded in
the respect for freedom of expression. Moreover, “free, independent,
plural and diverse media constitutes one of the cornerstones of
a democratic society and journalists and other media workers should
be afforded full protection under the law.”
Note
22. In my 2023 report, I mentioned the judgment Selahattin Demirtaş v. Turkey (No.2) as
a case that was typical of a situation of a politically motivated
violation of rights, which cannot coincide with democratic principles.
The case concerned the politically motivated arrest and detention
of Selahattin Demirtaş, one of the leaders of the People’s Democratic
Party (HDP). The Court considered, amongst other violations, that
his pre-trial detention violated his rights to freedom of expression
protected by Article 10 of the Convention.
23. Similarly, Assembly
Resolution
2381 (2021) “Should politicians be prosecuted for statements made
in the exercise of their mandate?” raised concerns about the prosecution
of politicians for exercising free speech in the exercise of their
political mandates, in particular in Spain and in Türkiye. The Assembly
stressed “the crucial importance, in a living democracy, of politicians
being able to freely exercise their mandates. This requires a particularly
high level of protection of politicians’ freedom of speech and freedom
of assembly, both in parliament and when speaking to their constituents
in public meetings or through the media, including social media.”
I regret to observe that the judgment
Selahattin
Demirtaş v. Turkey (No.2) is still awaiting implementation.
24. Freedom of expression cases concerning the protection of democratic
principles include those relating to the safety of journalists,
Note restriction
of access to the internet and blocking of internet sites,
Note a lack of media pluralism,
Note and
the application of excessive defamation laws.
Note Leading
cases involving a violation of Article 10 of the Convention still
remain pending in relation to Azerbaijan, Bulgaria, France, Georgia,
Greece, Hungary, Italy, Lithuania, Poland, Portugal, the Republic
of Moldova, Romania, Russian Federation, the Slovak Republic, Spain,
Türkiye, and Ukraine.
25. A number of Court cases, or groups of cases, concern unjustified
and disproportionate interferences with the freedom of expression
on account of criminal proceedings for having expressed opinions
that do not incite hatred or violence. The chilling effect of such
proceedings on society as a whole and on the freedom of expression
in general is of grave concern. There are a significant number of
groups of cases relating to the state of freedom of expression in
Türkiye,
Note and legislative changes are
urgently necessary to clarify that the exercise of the right to
freedom of expression does not constitute an offence.
4.2 Cases
relating to the freedom of assembly and association (Article 11
of the Convention)
26. The right to assembly, and
the related right to peaceful protest, are crucial for a functioning
democracy.
Note The treatment
of anti-war protesters in Russian Federation has shone a particular
light on the vital importance of the right to protest and the nefarious
effects that a clamp down on such rights can have on a democracy.
Of similar importance is the freedom of association, and the Court
has underlined its direct relationship with democracy and pluralism,
noting that the state of democracy in a country can be measured
by the way in which this freedom is secured under national legislation
and in which the authorities apply it in practice.
Note
27. Article 11 cases that are significant for protecting democratic
principles include those relating to holding and policing peaceful
demonstrations and protests; the freedom to create and participate
in associations (including civil society) and the freedom to create
and participate in political parties. However, a significant number
of leading cases of the Court finding a violation of the freedom
of peaceful assembly have yet to be implemented, including cases
relating to Armenia, Azerbaijan, Georgia, Hungary, Romania, the
Russian Federation, Türkiye and Ukraine.
Note
28. Cases relating to the right to peaceful political protest
include, for example, Mushegh Saghatelyan
v. Armenia, which concerns the disproportionate and unnecessary
dispersal of peaceful political protests. This was one of the main
subjects of my fact-finding visit in Armenia in December 2024. In
Yerevan I met with the Minister of Internal Affairs, Arpine Sargsyan;
the government agent, Yegishe Kirakosyan; the Deputy Minister of
Justice, Tigran Dadunts; a group of Armenian civil society organisations
(the Democracy Development Foundation, PINK Armenia, Protection
of Rights without Borders, Helsinki Foundation Vanadzor, and the
Law Development and Protection Foundation); and a group of Armenian
parliamentarians (Mr Vladimir Vardanyan, Ms Arusyak Julhakyan, Ms Maria
Karapetyan and Mr Sargis Khandanyan). During my visit it was made
clear that significant steps forward have been taken to implement
the judgments, including legislative changes to ensure that the
use of force by police is more proportionate, as well as the start
of trainings for police officers to ensure the standards are put
into practice. At the same time, civil society emphasised that these
measures have yet to result in positive practical effects, alleging
the continuation of human rights violations during peaceful assemblies,
including violence by State agents. Noting that the case is still
under the supervision of the Committee of Ministers, I hope that
the positive steps taken so far can be built upon to ensure concrete protections
for the right to freedom of assembly in Armenia.
29. Other important freedom of assembly cases pending implementation
include Gafgaz Mammadov v. Azerbaijan,
which concerns the dispersal of unauthorised peaceful demonstrations
posing no threat to public order, the OyaAtaman v. Turkey group concerning
the prosecution of participants in peaceful protest as well as the
use of excessive force to disperse peaceful demonstrations, and
the Lashmankin and others v. Russia group
relating to the prohibition on participating in public gatherings
and protests.
30. Notably, the judgment of the Court in Ecodefence
and Others v. Russia remains unimplemented. The ruling
concerned the violation of 73 NGOs’ right to freedom of association
arising from the Law on Foreign Agents Act, which had resulted in
administrative fines, criminal proceedings, and the dissolution
of some organisations. In October 2024 the judgment was followed
by Kobaliya and Others v. Russia, where the Court found a
similar violation for another 107 applicants. In order to protect
civil society, member States must ensure that their NGO legislation
is consistent with these rulings, and expeditiously implement any
similar rulings provided by the Court.
31. There has been a long-standing failure to implement certain
judgments relating to the registration of certain associations in
violation of Article 11 of the Convention. This has included the
routine refusal for over 18 years to register associations with
“goals aiming at the recognition of the Macedonian minority in Bulgaria”
(UMO Ilinden and Others v. Bulgaria).
In this case, notwithstanding various steps taken, the Registration Agency
and the Bulgarian courts still fail to comply with the requirements
of the Convention. Similarly, the Greek Courts, including the Court
of Cassation, have consistently and repeatedly failed to uphold
the right to freedom of association of the organisations in the
Bekir Ousta v. Greece group of judgments,
contravening the rulings of the European Court of Human Rights and
the Convention and these remain unimplemented for 17 years. Despite
the legislative amendment adopted by Greece in 2017, the organisations
have still not received
restitutio in
integrum, largely due to the judgments of the Greek Court
of Cassation in 2021 and 2022 which considered the violations to
be lawful on grounds most of which were expressly impugned by the European
Court of Human Rights. Similarly, the Russian Courts’ decisions
have also proved to be an obstacle to the right to freedom of association
in relation to the dissolution of Jehovah’s Witnesses organisations, because
of their refusal to comply with the judgments of the Court in the
group
Taganrog LRO and Others v. Russia (concerning
the dissolution of Jehovah’s Witnesses associations in the Russian
Federation, a ban on all their activities and detention of some
of their members).
Note
4.3 Cases
relating to the right to free elections (Article 3 of the Additional
Protocol to the Convention) and related cases
32. The right to free and fair
elections is obviously central to a functioning democracy.
Note As set out
in the thematic factsheet on the right to free elections of the
Department for the Execution of Judgments, “the European Court has
underlined that democracy constitutes a fundamental element of the
‘European public order’. The right to free elections guaranteed
under Article 3 of Protocol No. 1… is crucial to establishing and maintaining
the foundations of an effective and meaningful democracy governed
by the rule of law and is accordingly of prime importance to the
Convention system. The Convention does not lay down an obligation
of abstention or non-interference, as with most civil and political
rights, but one of adoption by the state, as the ultimate guarantor
of pluralism, of positive measures to guarantee democratic legislative
elections. The Court has established that the right to free elections
also implies individual rights, including the right to vote and
to stand for election.”
Note Moreover, in order to guarantee
these rights, there should be effective remedies for the regulation
of electoral disputes. However, many leading judgments finding a
violation of the right to free elections are yet to be implemented,
including in cases relating to Belgium, Bosnia and Herzegovina,
Bulgaria, Hungary, Türkiye and Ukraine.
Note
33. Relevant cases include the Namat
Aliyev v. Azerbaijan group, which concerns the arbitrary
application of electoral legislation and the absence of procedures
affording adequate safeguards against arbitrariness, including the
arbitrary rejection of complaints regarding irregularities or breaches
of electoral law, the arbitrary cancelation of registration of candidates
and the erroneous application of electoral law. Other cases of note include Mugemangango v. Belgium which concerns
procedural guarantees in post-election disputes and the right to
an effective remedy, and Cegolea v. Romania,
which relates to an arbitrary eligibility requirement which disadvantages
national minority organisations not yet represented in parliament.
34. Whilst Article 3 of the Additional Protocol to the Convention
only applies to elections relating to the “choice of the legislature”,
other provisions can also be applicable to, for example, discriminatory
provisions in other elections, such as presidential elections. In
this way, Article 1 of Protocol 12 to the Convention (ETS No. 177)
(the principle of non-discrimination) has also been found to apply
and to have been violated in discriminatory provisions of electoral
law relating to, for example, presidential elections in Bosnia and Herzegovina.
The judgments in the Sejdić and Finci v. Bosnia and Herzegovina
Note group concern discrimination against
persons belonging to groups other than the “constituent peoples”
of Bosnia and Herzegovina (namely Bosniaks, Croats and Serbs) as
regards their right to stand for election to the House of Peoples
and the presidency of Bosnia and Herzegovina. Notwithstanding the
Committee of Ministers’ interventions and the extensive support
offered to the national authorities by both the Council of Europe
and the European Union
Note, the elections of 2010,
2014, 2018 and 2022 were based on what has been described as a “discriminatory electoral
system in clear violation of the requirements” of the Convention.
Note The European
Commission for Democracy through Law (Venice Commission) has produced
numerous opinions on the subject, notably calling on the people
and politicians of Bosnia and Herzegovina to gradually replace ethnic
representation mechanisms with representation based on the citizenship
system.
Note The
inherently discriminatory requirements for voting in certain elections
under the constitution of Bosnia and Herzegovina continue to be
a significant concern, reminding us how politics can effectively
undermine human rights.
4.4 Cases
relating to abusive limitation of rights and freedoms (Article 18
of the Convention)
35. I am concerned by the public’s
toleration of the authorities in certain member States violating
the Convention for political purposes – without thinking about the
long-term consequences. It makes me recall the story of the Hunter,
Horse, and Stag in Aesop’s fables. The Horse agreed for the Hunter
to put a bridle and saddle on him, so that together they could catch
the Stag. After the Stag was overcome, the Horse asked the Hunter
to get off and release him. “Not so fast, friend,” said the Hunter.
“I have now got you under bit and spur and prefer to keep you as
you are at present”.
36. Article 18 violations have a very specific nature in that
these are human rights violations in pursuit of an unlawful ulterior
purpose involving a misuse of power. They concern primarily the
arrest, detention, and/or conviction of government critics, civil
society activists, human rights defenders and politicians – in many
cases involving criminal prosecutions for charges unsupported by
evidence and where the ulterior motive is to silence or punish the
applicant and discourage others. As I highlighted in the 2023 report,
“violations of Article 18 of the Convention deny par excellence
the very gist of democracy and are regarded as particularly serious
given that they relate to the purposive misuse of power”.
Note They often indicate
pervasive and systemic malfunctioning within a constitutional system,
such that the separation of powers is eroded and thus the system
is open to the misuse and abuse of power for ulterior motives. As
highlighted in the Reykjavik Principles for Democracy, the States
committed to “uphold the separation of powers with appropriate checks
and balances between different State institutions, at all levels,
to prevent any excessive concentration of power”, as well as to
fight corruption, “including through prevention and by holding accountable
those exercising public power”.
Note However,
leading Court judgments finding a violation of Article 18 have yet
to be implemented for cases concerning Azerbaijan, Bulgaria, Georgia,
Poland, the Russian Federation, Türkiye and Ukraine.
Note
37. The most prominent of these is the case of Osman Kavala v.
Turkey. Mr Kavala is a human rights defender and civil
activist in Türkiye. A Court judgment from 2019 found that the arrest
and pre-trial detention of Mr Kavala in 2017 (within the context
of Gezi Park events of 2013 and the attempted coup of 2016) violated his
human rights and took place in the absence of evidence to support
a reasonable suspicion that he had committed an offence. Moreover,
in the absence of such evidence there was obviously insufficient
evidence to convict him of any such an offence. Notwithstanding
this, Mr Kavala has continued to be detained since 2017 in breach
of the judgment of the European Court of Human Rights. Given Türkiye’s
persistent refusal to implement the Court’s judgment in this case,
the Committee of Ministers referred the matter to the Court under Article
46(4). The ensuing 2022 Article 46(4) judgment of the Court found
that Türkiye had failed to fulfil its obligation to comply with
the final judgment of the Court, including through failing and refusing
to release Mr Kavala. Nevertheless, Mr Kavala remains in prison.
38. This is only the second time that the Court has made such
a significant finding. The continued, flagrant, persistent, and
incomprehensible refusal of Türkiye to release Mr Kavala, as ordered
by the Court, presents a clear risk to the rule of law and the Convention
system as a whole and is therefore a grave concern to all actors within
the Council of Europe system. This will necessarily continue to
be a stark focus and area of concern to the credibility of the Council
of Europe and the Convention system for so long as Mr Kavala continues
to be arbitrarily detained in Türkiye. In October 2023 the Assembly
adopted
Resolution 2518
(2023) “Call for the immediate release of Osman Kavala”, in
which it called unequivocally for the release of Osman Kavala, noting that
“[t]his truly exceptional case is undermining the basis of the Convention
system as a whole”. The Assembly noted that the time had come to
take steps to initiate the complementary joint procedure and recalled
its ability to challenge the credentials of the Turkish delegation.
However, neither of these steps have yet been taken.
39. Other notable cases relating to Article 18 include the politically
motivated arbitrary detention of Mr Selahattin Demirtaş, the former
leader of the People’s Democratic Party (HDP), a pro-Kurdish opposition party,
and a member of the Turkish Grand National Assembly (see paragraph
22). In
Selahattin Demirtaş v. Turkey, the
Court found that the domestic courts had failed to indicate specific
facts or information that could give rise to a reasonable suspicion
that the applicant had committed the offences such that this would
justify his arrest and pre-trial detention. Similarly, in
Yüksekdağ Şenoğlu and others v.
Turkey, Ms Figen Yüksekdağ Şenoğlu
continues to be imprisoned, despite the Court finding that she had
been detained and charged in the absence of a reasonable suspicion
that she had committed an offence. 11 other members of the Turkish
Grand National Assembly in the same case have been released but
are awaiting trial on charges that the Court found were not supported
by reasonable suspicion and pursued an ulterior purpose.
Note
40. I am very concerned about the impact that the failure to implement
these judgments has on Türkiye. If the government can have undue
influence over the prosecutorial services and the judiciary, and
elected representatives can be detained and imprisoned arbitrarily,
democracy is at great risk. One example of great concern is that
of Istanbul Mayor Ekrem Imamoğlu, a leading figure in Türkiye’s
main opposition, the Republican People’s Party (CHP), who is considered
to be a potential presidential candidate in 2028. Three criminal
indictments have now been issued against him, which would seek to
imprison him and ban him from Turkish politics. Given the failure
of the Turkish authorities to implement reforms made necessary by
the cases set out above to ensure the independence of the judiciary
and prevent the arbitrary prosecution of politicians, serious questions
naturally arise as to whether the charges against Mr Imamoğlu are
politically motivated. Similarly, 10 mayors have been removed since
Türkiye’s local elections in 2024. Most recently in Van, the democratically
elected mayor from the Democratic Party was removed from office,
thus in effect discarding the votes of 1 million people. Following
the March 2019 local elections, only 6 out of 65 municipalities
won by the HDP were able to continue operating without a trustee
appointment until 2024.
41. The Mammadli v. Azerbaijan group
similarly concerns politically motivated arrests and prosecutions
of human rights defenders, civil society activists and a journalist.
All in this group have been pardoned, released, and/or had criminal
proceedings against them discontinued. However, seven applicants
who had been convicted have yet to have their convictions quashed
by the Supreme Court and have their criminal records erased, which
is required for restitutio in integrum.
The applicant in the leading case, the Assembly Václav Havel Prizewinner
Anar Mammadli, was re-arrested on 29 April 2024 and placed in pre-trial
detention.
42. Finally, regarding the case of Öcalan
v. Turkey (No.2) I am concerned by the continued absence
in Türkiye of a mechanism that would allow the review of aggravated
life sentences after a certain minimum term with a possibility of
release, in cases where the requirements of punishment and deterrence
have been entirely fulfilled and the person no longer poses a danger
to society.
4.5 Cases
relating to the independence of the judiciary
43. Cases relating to the independence
of the judiciary and other oversight mechanisms are crucial to avoiding
an abuse or misuse of power and to upholding a functioning democracy.
Note This includes cases relating
to the adequacy of procedural safeguards around the removal or appointment
of judges, or other measures to sanction or discipline judges, especially
where the abuse of such sanctions might constitute a restriction
on a judge’s freedom of expression.
Note It also includes cases concerning the adequacy
and independence of procedures for appointing judges.
NoteNote
44. Poland has been the subject of Court judgments concerning
all of these issues. These rulings were the main focus of my fact-finding
visit to Warsaw, carried out in September 2024. I was grateful for
a wide range of high-level meetings, including with the Chairman
of the Standing Committee of the Council of Ministers, Mr Maciej
Berek; the Minister for Equality Ms Katarzyna Kotula; the Minister
of Justice, Adam Bodnar; the Undersecretary of State at the Ministry
of Foreign Affairs, Ms Henryka Mościcka-Dendys; the Deputy Commissioner
for Human Rights, Mr Valeri Vachev; the President of the National
Council of the Judiciary, Ms Dagmara Pawelczyk-Woicka; the First
President of the Supreme Court, Dr Małgorzata Manowska; the Chief
of the Chancellery of the President of Poland, Ms Małgorzata Paprocka;
the Head of the Polish delegation to the Assembly, Ms Agnieszka
Pomaska; as well as Mr Patryk Jaskulski and other distinguished parliamentarians,
and a diverse group of civil society organisations (including representatives
of the Helsinki Foundation for Human Rights, Iustitia, Forum Obywatelskiego
Rozwoju, and Votum Association of Judges). We discussed the important
and complex issues raised by the judgments of the Court, concerning
the composition of the Constitutional Court,
Note the independence of the National
Council of the Judiciary,
Note appointments
to the Supreme and lower-level courts,
Note and
disciplinary proceedings against judges.
Note
45. I welcomed the clear desire of the government to carry out
reforms on these significant issues, which they regarded as extremely
pressing and which are indeed necessary to comply with judgments
of the Court. This is highly welcome, particularly given the opposition
to implementation indicated by the previous administration and certain
judicial organs which the former governing majority had appointed.
Note Meanwhile, I was concerned by
the fact that the constitutional crisis in Poland has created a
wide range of factions in the legal community, who are deeply divided
about whether the current judicial order should be maintained or reformed
(and, if it should be reformed, the form those reforms should take).
These divisions of opinion about the core legal institutions are
dangerous to the rule of law and unsustainable.
46. The current stalemate constitutes significant barriers to
reforms taking place. The principal barrier is the fact that the
current President of Poland – who can refuse to sign new legislation
under the Polish Constitution
Note –
has publicly declared his opposition to the judicial reforms proposed
by the government (this was confirmed during my meeting with the
Chief of his Chancellery). I concluded that the different factions
in Poland’s constitutional crisis are waiting until the presidential
election of spring 2025, in the hope that the election will help
protect the current judicial order or facilitate its transformation
(depending on their point of view). My hope is that the constitutional
crisis in Poland can be resolved as swiftly as possible, with reforms beginning
this year which will ultimately serve to bring the legal profession
in Poland together and fully implement judgments of the Court, in
compliance with the relevant opinions of the Venice Commission and
in line with the indications provided by the Committee of Ministers.
47. Returning to the
Osman Kavala v.
Turkey case, the Committee of Ministers has “strongly
urg[ed] the Turkish authorities to take all legislative and other
measures to ensure independence of the judiciary, in particular
by securing the structural independence of the Council of Judges
and Prosecutors from the executive, and deeply regretted once again
the absence of any progress on this issue.”
Note
5 Interstate cases and individual cases
with interstate features
48. Many of the interstate cases
and individual cases related to interstate issues pending implementation are
linked to bitter post-conflict situations or unresolved or frozen
conflicts. Key examples are
Cyprus v.
Turkey;
Georgia v. Russia
(I), (II) and (IV); individual cases relating to the
situation in the Transnistrian region of the Republic of Moldova;
Note and
cases relating to the situation in Karabakh.
49. Such cases are likely to pose a challenge for years to come
given the number of interstate applications currently pending before
the Court. There are currently 12 interstate applications pending
before the Court concerning conflicts: one brought by Ukraine and
the Netherlands against the Russian Federation; three brought by
Ukraine against the Russian Federation; four brought by Armenia
against Azerbaijan; one brought by Armenia against Türkiye; two
brought by Azerbaijan against Armenia; and one brought by Georgia
against the Russian Federation. In addition, there are also around
10 500 individual applications which stem from the same conflicts.
Note Whilst pending applications
will not necessarily result in judgments requiring implementation by
a State, or supervision by the Committee of Ministers, one can nevertheless
surmise that given the growth in such cases it would be prudent
for the Council of Europe to develop tools for dealing with interstate
cases and for facilitating the implementation of relevant judgments.
In this context, it is worth highlighting the proposals adopted
by the its Assembly in Resolution 2559 (2024) “Reparation and reconciliation
processes to overcome past conflicts and build a common peaceful
future: the question of just and equal redress”.
50. Since the 2023 report, the Committee on Legal Affairs and
Human Rights held useful exchanges during its meeting in Larnaca
on 22-23 May 2023, focussing notably on the Cyprus
v. Turkey interstate case as well as the individual applications
relating to the consequences of the Turkish military invasion in
Cyprus of 1974. Speakers at the hearing included Ms Anna Koukkides-Procopiou,
Minister of Justice and Public Order of the Republic of Cyprus;
Dr Costas Paraskeva, Associate Professor of Public and Human Rights
Law, University of Cyprus, Advocate and former member of the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment; Mr Polyvios G. Polyviou, Lawyer; and Mr Achilleas
Demetriades, Lawyer. The hearing also focussed on the Georgia v. Russia interstate case
with the participation of Mr Levan Meskhoradze, Georgia and Azerbaijan
Unit, Directorate General Human Rights and Rule of Law, Council
of Europe. Speakers highlighted the need for there to be consequences
for aggression – to do otherwise would merely encourage tolerance
for further war and aggression in Europe. The speakers acknowledged
the role that politics played in seeking to enforce interstate judgments,
but also highlighted the role of accountability and the rule of
law (and not only power politics) in securing a peaceful and safe
European continent.
51. The exchange fully highlighted the challenges in securing
the timely and effective implementation of the Court’s judgments
in interstate cases, as well as the frustration felt by the individuals
whose rights are ignored and seriously affected through the continued
and I could say deliberate delays in implementing the judgments of
the Court due to politics and extrajudicial reasons. Interstate
cases involve by their own nature, some very sensitive issues (like
the question of the effective investigation of missing persons in
Cyprus since 1974) and other basic human rights considerations (for
example property rights of Greek Cypriot owners in the occupied part
of Cyprus or the right to education of the enclaved persons). The
importance of political will to resolving such cases was underlined,
as well as the complex interplay between the political solutions
necessary to reconciliation and to resolving complex post-conflict
situations, and the individual rights upheld by a given Court judgment.
Notwithstanding the award of just satisfaction in 2014 in the 4th
Cyprus v. Turkey interstate case, this
has still not been paid over 10 years later, seriously questioning
the right to an effective remedy for human rights violations.
Note
52. The three Georgia v. Russia judgments
involve (i) the deportation of Georgians from the Russian Federation
in 2006, (ii) the violation of the right to life, freedom from torture,
arbitrary detentions, right to property and others during the invasion
of Abkhazia and South Ossetia in 2008, and (iii) various violations stemming
from the subsequent “borderisation” process. The Court awarded just
satisfaction claims of €10 million in the first case and €130 million
in the second case, but these have still not been paid (the Court is
yet to decide on just satisfaction in Georgia
v. Russia (IV)). Just satisfaction (compensation), however,
is just one of many measures required from the Russian authorities
in order to implement these judgments – for example, thousands of
internally displaced persons in Georgia want to return home, but
the Russian Federation continues to create obstacles for internally
displaced persons. Fundamentally this requires political will and
effective measures to ensure judgment implementation. One proposal
discussed has been the seizing of Russian State assets held in third
countries – this is explored in more detail in the context of the
Russian Federation below.
6 The implementation of judgments by
the Russian Federation
6.1 Overview
53. The Russian Federation ceased
to be a member of the Council of Europe on 16 March 2022 and ceased to
be a party to the European Convention on Human Rights six months
after this, on 16 September 2022. The Russian Federation has a continuing
obligation to implement judgments of the European Court relating
to violations of the Convention up until 16 September 2022.
54. According to the
Annual
Report 2024, the Russian Federation has the largest number of judgments pending
implementation, at 2 867 – meaning that over 40% of all cases pending
execution relate to the Russian Federation. Moreover, the Russian
Federation has the largest number of leading cases pending implementation,
with 244 recorded in the
Annual
Report 2024.
55. Even before its expulsion from the Organisation, the Russian
Federation had a poor record of implementation of Court judgments.
With some notable exceptions, it generally paid the just satisfaction awarded
by the Court. However, its record of carrying out general measures
in response to leading cases was extremely poor. This was reflected
by a severe degradation of human rights in the country and its descent
into authoritarianism.
56. On 11 June 2022 a new law entered into force in the Russian
Federation regarding the execution of judgments. It stated that
judgments of the European Court which became final after 15 March
2022 shall not be enforced, nor shall they serve as a ground for
the reopening of proceedings. Just satisfaction awarded would be
paid until 1 January 2023 for judgments which became final before
15 March 2022. However, payment would be made in roubles and only
to bank accounts in the Russian Federation. The Russian authorities
have now ceased payment of just satisfaction in all cases and ceased
communication with the Committee of Ministers’ implementation supervision
process.
Note
57. The Committee of Ministers has published a number of strategy
papers regarding the supervision of the execution of cases pending
against the Russian Federation. In December 2022, in the absence
of engagement from the Russian authorities, the Committee of Ministers
resolved to enhance its engagement with Russian civil society, as
well as relevant United Nations’ bodies, and create an online public
register of outstanding just satisfaction awards concerning the
Russian Federation.
Note
58. In its most recent decision on the issue of December 2024,
the Committee of Ministers instructed the secretariat to continue
its co-operation with other international organisations to highlight
the pending judgments, explore further avenues to reinforce co-operation
with Russian civil society on this issue, further enhance work on
visibility and communication as regards the supervision of Court
judgments concerning the Russian Federation; and prepare a document
prior to each quarterly Human Rights meeting offering an overview
of the execution measures required in all leading Russian cases
pending implementation. The Committee of Ministers also agreed to
continue to review the implementation of interstate cases concerning the
Russian Federation, and cases with interstate elements, at regular
intervals; invited the Secretary General to send a letter once per
year to the Russian Minister of Foreign Affairs, informing him of
the decisions and resolutions adopted during the year by the Committee
of Ministers concerning cases where the Russian Federation is the
respondent State; and agreed to review the strategy in December
2025 at the latest.
Note
6.2 Analysis
59. Unfortunately, the Committee
of Ministers has very limited tools at its disposal to ensure the
effective implementation of Court judgments against the Russian
Federation. The strategy adopted largely focuses on co-operating
with the United Nations, liaising with Russian civil society, sending
symbolic messages to the Russian authorities, enhancing the visibility
of the judgment supervision process, and keeping the supervision of
the cases under review. These measures may help to raise the profile
of the judgments and keep them “alive” but are highly unlikely to
lead to implementation.
60. Implementation will realistically happen in only one of two
possible ways. First, if the Russian Federation undergoes fundamental
political change and seeks to rejoin the Council of Europe or otherwise
reintegrate the European legal order. Second, partial implementation
of the judgments might be achieved through obtaining the payment
of just satisfaction through some creative means. The Assembly should
focus on the second of these options for the time being.
6.3 Ensuring the payment of just satisfaction
due in judgments of the European Court of Human Rights concerning
the Russian Federation
61. As of 15 January 2025, over
€3 billion are owed to applicants by the Russian Federation, as
just satisfaction in judgments of the Court (a total of €3 011 965
800.80 including default interest). This includes €156 754 832.80
relating to interstate cases (of which there are two: €12 723 315.07
for
Georgia v. Russia (I), and
€144 031 517.73 for
Georgia v. Russia
(II)). The amount due for individual cases is €2 855
210.968 (including default interest). A significant portion of this
arises from the “Yukos” case,
OAO Neftyanaya Kompaniya
Yukos v. Russia, which requires the payment of €2 621
185 130.80.
Note
62. We still have not had any judgments yet from the Court concerning
violations resulting from the downing of flight MH17 or the full-scale
invasion of Ukraine in February 2022. In June 2024, the Court delivered
an important judgment in Ukraine v. Russia
(re Crimea), an interstate case mainly related to violations
in Crimea since 2014. The issue of just satisfaction for the violations
found will be decided in a future judgment. When the Court determines
the amount of damage for these and other violations that it may
find in the future relating to the war in Ukraine, it will be important
that the claimants are paid the compensation that is owed to them. The
amounts involved may be strategically important.
63. In February 2024 the Committee of Ministers invited the Committee
of Legal Advisers on Public International Law (CAHDI) to provide
an indicative overview of possible avenues consistent with international law
aimed at securing the payment by the Russian Federation of just
satisfaction awarded by the European Court of Human Rights, while
respecting the immunities of States and their property.
Note This report was provided
to the Committee of Ministers in January 2025, but it is not public.
At the time of writing, the Committee of Ministers is yet to discuss
the possible implications of the report.
64. In public debate, a number of interesting proposals have been
raised in regard to securing payment of the outstanding sums. The
two main proposals are enforcement in domestic courts (for example
by treating Court judgments as
res judicata and
not enforcing State immunity); and the establishment of an
ad hoc funding mechanism, such as
a trust fund, or a partial agreement at the Council of Europe. Potential
sources of the funds could include assets of the Russian State (notably
the frozen Russian Central bank assets of over €300 billion held
by Euroclear) and the assets of Russian State-owned commercial entities.
Note
65. Such measures involve legal and political complexities. These
include: very significant legal issues related to sovereign immunity
and whether enforcement at national level is compliant with the
Convention; the question of how new measures to enforce implementation
of the Court’s judgments would co-exist with the Register of Damage
for Ukraine (and perhaps compete for the same funds as an eventual
compensation commission); moral and political issues about the use
of seized Russian assets for the payment of just satisfaction to
Russian citizens whilst such sums might (possibly) otherwise be
used for compensation to Ukraine; financial risks related to the
seizure of foreign central bank assets; and questions over exactly
who would be able to receive the payment of just satisfaction, given
the restrictions on Russian residents interacting with international
organisations from within the Russian Federation.
66. In the Reykjavik Declaration, leaders of the Council of Europe’s
member States affirmed “the need to make every effort to ensure
the execution of the Court’s judgments by the Russian Federation”.
Note Due to its complexity and
its importance, this issue should be examined in a separate report.
7 The implementation of measures set
out in the Reykjavik Declaration to promote the implementation of
the judgments of the European Court of Human Rights
67. The aims and priorities of
the Council of Europe were reformulated in the Reykjavik Declaration
by the Heads of State and Government in May 2023. The implementation
of judgments of the European Court of Human Rights formed an important
part of the text, including both general commitments and specific
plans. In order to assess how the Declaration has been implemented
by Council of Europe entities, I carried out a number of meetings
with key stakeholders, as outlined in paragraph 8 above. Below I
set out a list of the most important measures foreseen in Appendix
IV of the Reykjavik Declaration relating to the implementation of Court
judgments by Council of Europe entities, as well as the steps taken
to implement them to date.
68. Member States undertook to:
- “…continue
to enhance the efficiency of the process of supervision of the execution
of the Court’s judgments, particularly its Human Rights meetings
… [and] continue improving the effectiveness of the supervision
mechanism of the execution of judgments.” In November 2023, the
Committee of Ministers decided to make public the indicative annual
planning document approved by the Committee of Ministers at its
December Human Rights meetings.Note Apart
from this welcome but limited transparency measure, no further steps
have been taken to enhance the efficiency or effectiveness of the
process of supervision of the execution of the Court’s judgments,
other than those set out below. The Committee of Ministers did decide
to keep the issue under future review;Note
- “…ensure that the Department for the Execution of Judgments
has the necessary resources to assist member States and the Committee
of Ministers in this task”. The Department for the Execution of Judgments’
budget rose from €6 734 000 in 2024 to €8 099 800 in 2025. This
will allow the department to increase the number of staff from 53
to 66, which is highly welcome.Note At
the same time, it is worth noting that the workload of the Department
for the Execution of Judgments has also increased in recent years.
The Court has carried out notable efficiency measures, which have
led a higher number of applications being dealt with in a single
judgment. This has meant that, when the Department for the Execution
of Judgments would normally be working on ensuring implementation
for one or a few applicants in a single judgment, they are now more
regularly tasked with tracking implementation for tens or hundreds
of applicants. It is also worth re-emphasising the importance of
the work of the Department for the Execution of Judgments for ensuring
that cases never come to the Court at all. Ensuring the full and
timely implementation of the Court’s judgments would help prevent
the majority of violations from happening – and the cases from coming
before the Court in the first place. It is therefore open to question why
the Court has an ordinary budget that is ten times higher than that
of the Department for the Execution of Judgments,Note given that the work of the Department
for the Execution of Judgments can ensure that the Court’s workload
is decreased, bringing efficiencies to the entire Convention system. Given
this and the extensive issues with the implementation of Court judgments
set out in this report, it is recommended that the resources of
the Department for the Execution of Judgments be further re-enforced;
- “Scale up co-operation programmes to assist member States
in the implementation of judgments, which may involve, as appropriate,
States facing the same or similar issues in implementation, and
increase synergy between the Department for the Execution of Judgments
and the Council of Europe co-operation programmes”. Over 70% of
current co-operation projects are related to Court judgments implementation.
Co-operation between secretariats of technical co-operation projects
and the Department for the Execution of Judgments has been strengthened,
with particular staff members in the relevant departments responsible
for liaising between the two. Meanwhile, it is not clear that the
number of co-operation projects relating to the implementation of
Court judgments has been increased. It is essential that additional
resources are made available by member States for this purpose –
particularly for projects in EU member States, which presently receive
very little support;
- “underline the importance of holding an annual meeting
with national co-ordinators for the execution of judgments and the
Department for the Execution of Judgments”. It is highly welcome
that the Execution Coordinators Network was created in June 2024.
On 30 January 2025, I participated in a meeting of the Network,
during which I presented a list of possible synergies and co-operation
activities with the Assembly. I am confident that this dialogue
will continue and that productive exchanges will be carried out
in due course;
- “Call for a strengthening of the institutional dialogue
between the Court and the Committee of Ministers on general issues
related to the execution of judgments”. There is currently a biannual
exchange between the Committee of Ministers and the President of
the Court. There is also now an annual meeting between the Presidency
of the Court, the Secretary General of the Council of Europe and
the Chairmanship of the Committee of Ministers. The Department for
the Execution of Judgments and the Registry of the Court have continued
to enhance their co-operation with the official launch of a “Dialogue Project”
in 2024 bringing together lawyers from both entities to promote
a holistic approach to the Convention. Both thematic and country
meetings take place to identify and align priorities particularly
in relation to cases stemming from structural problems. Regular
exchanges of information and common trainings are ongoing and a
joint project is underway to create targeted HELP modules in transversal areas
of interest to enhance domestic capacity to address certain structural
problems, strengthen general measures and prevent repetitive cases
arriving at the Court;
- Call for a strengthening of political dialogue in the
event of difficulties in the implementation of judgments and encourage
the participation of high-level representatives from the respondent
State”. In a decision of February 2024, the Committee of Ministers
agreed to strengthen the dialogue at political level in the event
of difficulties in the implementation of judgments and reiterated
the invitation to high-level representatives to participate in the
Human Rights meetings.Note It
is not clear that there has been a subsequent increase in the participation
of high-level representatives in the Human Rights; but it is also not
clear that the Committee of Ministers has the means to achieve such
an increase, beyond making such requests;
- “Call on the Committee of Ministers to continue its work
enhancing the tools available in the supervision of the execution
of judgments with clear and predictable, gradual steps in the event
of non-execution or persistent refusal to execute the final judgments
of the Court, in an appropriate and flexible way, which takes into
account the specificities of each case.” Following a decision of
February 2024, the Committee of Ministers’ document on the means
at the disposal of the Committee in the context of its supervision of
the execution of judgments of the Court has been updated to outline
the steps to be taken prior to infringement proceedings being initiated.Note This
document is not public.
69. Following from this analysis, I have included a number of
suggestions for further measures in the draft resolution and recommendation,
for issues where it is important to make additional progress and
where it is feasible to do so.
70. The steps already taken in the list above are very much welcomed
– as are the significant efforts by those involved. The most notable
shortcoming of these additional measures is in the first point in
the list: steps to improve the efficiency and effectiveness of the
implementation supervision process, notably the Human Rights meetings
of the Committee of Ministers. Immediately before and after the
Reykjavik Declaration, there has been a healthy public discourse
about possible ways in which this could be done, among academic commentators,
civil society organisations, and the High-Level Reflection Group
of the Council of Europe.
71. In my view, one effective measure to promote Court judgment
implementation would be financial sanctions for widespread non-execution.
It is important to recall that in the year 2000 the Assembly proposed to
the Committee of Ministers that it should introduce daily fines
for non-implementation of the Court’s judgments. The Committee of
Ministers asked the Steering Committee for Human Rights (CDDH) to
look into it. The CDDH concluded that fines were not necessary to
help promote implementation and would not increase pressure on States
in any case. The following year, the Venice Commission issued an
opinion saying that the issue could benefit from a feasibility study.
Nevertheless, the Committee of Ministers did not commission one and
took no further action. I believe that there is currently insufficient
political support for such a measure in the Committee of Ministers.
Nevertheless, the Assembly should not abandon this proposal and
keep reminding the Committee of Ministers of the need to apply more
pressure if need be.
Note
72. Notable other proposals include increasing the number, length,
and transparency of the Human Rights meetings of the Committee of
Ministers, establishing a clear criterion for using Article 46(4),
a special representative on the implementation of the Court’s judgments,
and financial sanctions for non-implementation.
Note It is unfortunate that
none of these proposals have been taken up by the Committee of Ministers.
The Assembly should request that the Committee of Ministers keep
the matter of such reforms under review.
73. As the Committee of Ministers is the authority designated
to supervise the execution of the Court’s judgments by its very
nature, certain decisions are politically motivated, causing much
damage, frustration and disappointment at the national level, especially
when decisions are unsubstantiated or hasty. That is why in the 2023
report I insisted on the transparency of the supervision mechanism
and a detailed justification procedure of measures taken.
8 The role of the Assembly in the implementation
of the judgments of the Court
74. In the Reykjavik Declaration,
the Heads of State and Government invited the President of the Assembly, alongside
other senior figures in the Council of Europe, “to strengthen their
political dialogue with their respective national interlocutors
on the implementation of judgments”. The States specifically recalled
“the importance of involving national parliaments in the execution
of judgments”.
Note The Committee of Ministers
has since invited the Assembly and the Congress of Local and Regional
Authorities to strengthen their dialogue with national interlocutors
on the implementation of Court judgments, and asked the Department
for the Execution of Judgments to assist.
Note In
June 2024, the Department for the Execution of Judgments conducted its
first-ever joint mission with the Congress of Local and Regional
Authorities to support the execution of the Court's judgments by
the Bulgarian authorities at the local level, in the case of
Yordanova and Others v. Bulgaria. Finally,
in his speech before the Assembly in January 2025, the President
of the European Court of Human Rights, Marko Bošnjak, noted the
“powerful role” that the Assembly can have in promoting the implementation
of Court judgments, recalling the relevant aspects of the Reykjavik
Declaration.
75. The Assembly is therefore called upon to do its part in promoting
implementation of the Court’s judgments. I am glad to report that
we are answering this call. Following discussions in the Sub-committee
on the implementation of judgments of the European Court of Human
Rights in Zagreb in November 2023, the Committee on Legal Affairs
and Human Rights adopted in December 2023 a set of proposals to
enhance the activities of the Assembly in promoting execution of
the Court’s judgments.
Note
76. Some of these proposals have already been put into action
in 2024. Prior to each high-level meeting of the President of the
Assembly with Presidents, Prime Ministers and Ministers of Foreign
Affairs, the President is now provided with briefing papers on the
implementation of Court judgments in the State concerned, so that the
judgments may be raised in these exchanges. Briefings are also now
regularly provided to the parliamentarians themselves. Since January
2024, in each part-session of the Assembly, the Department for the
Execution of Judgments has provided briefings to national delegations
of parliamentarians on the implementation of Court judgments in
their country. Such briefings have been organised for the members
of the Armenian, Bulgarian, Croatian, Greek, Hungarian, Italian,
Moldovan, Romanian, Portuguese, and Ukrainian delegations. One of
the most productive aspects of my meeting with senior staff from
the Council of Europe’s Directorate of Human Rights was a discussion
about expanding such briefings. I hope that we can move towards
annual briefings for national delegations, accompanied with detailed
information about how parliamentarians can best promote the implementation
of Court judgments in their country.
77. Meanwhile, the Assembly should go further. The most ambitious
proposal of the Committee on Legal Affairs and Human Rights was
to create a network of parliamentarians to promote the implementation
of Court judgments. This would see the creation of a group of parliamentarians
from across Europe, who would meet around twice a year to provide
parliamentarians with more information about how the implementation
of Court judgments operates, and how they can work to advance execution.
This would be done by members of the network sharing best practices
about how they have helped to promote the implementation of Court
judgments at national level and the best structures for this purpose,
such as parliamentary committees that are very effective in particular
States in monitoring the implementation of Court judgments. Finally,
a parliamentarian could be appointed for each State as the “Assembly
representative” for the country concerned, who could take a leading
role in pushing forward implementation of Court judgments in the
parliament.
78. I have proposed the creation of such a network in the draft
resolution. If this proposal is adopted by the Assembly, it will
most likely need additional resources to make it into a reality.
This may require specific voluntary contributions from member States.
My hope is that both the Assembly and member States will see the
value in a group of parliamentarians dedicated to promoting the
implementation of rulings of the European Court of Human Rights.
9 Conclusion
79. I will not tire to say that
75 years after the adoption of the Convention we are still talking
about the very basics of what we have all agreed to establish; the
respect and implementation of Court judgments. The implementation
of Court judgments reflects the effectiveness of the entire Convention
system but also the current state of play. Judgments of the Court
can only help protect human rights if they are properly implemented.
The Court can only issue new judgments in a timely manner, if States
implement the old ones. The Reykjavik Declaration has provided an
unequivocal commitment to the need to implement the Court’s judgments,
from every member State of the Council of Europe. It has also given
us a path forward to do this. It is time for all of us – governments,
parliamentarians, courts, and civil society – to take that path
and move ahead. As I set out in the introduction, the life of a
child in one corner of Europe can be determined by the willingness
of States to implement judgments across our continent. We should
all approach the implementation of Court judgments with a seriousness
that reflects this fact.
