From the perspective of the lawyers of the European Court of Human Rights it may seem that with the delivery of the judgment, the work is finished. However, from the perspective of the lawyers of the Department for the Execution of Judgments of the Council of Europe, this is where the work begins. What does it take to trigger and monitor a successful domestic implementation of a judgment of the Strasbourg court?
The Department for the Execution of Judgments is part of the Strasbourg human rights machinery that does not receive much attention. Nevertheless, it is this body that supervises the domestic implementation of judgments of the European Court of Human Rights which leads to real changes in practice. We are pleased to bring you a first hand account through an interview with Clare Ovey, the Head of the Department for the Execution of Judgments, as well as Szymon Janczarek, the Legal Officer dealing with Czech cases.
Life of a judgement
To start with, could you please briefly explain the role of the Department for the Execution of Judgments?
Clare Ovey: The Department for the Execution of Judgments (Department) is part of the Directorate General for Human Rights and the Rule of Law of the Council of Europe. Our position lies in two roles. The main role is supporting the work of the Committee of Ministers (Committee) in its work, which is done under Article 46 of the European Convention on Human Rights (Convention). This means that the Department advises in supervising the execution of judgments and preparing human rights meetings for the Committee, which take place four times a year.
The second role regards the respondent state. The Department communicates with states trying to advise them on what kind of measures they need to take or whether the measures they have taken are sufficient. The Department also provides them with different kinds of activities, such as expert advice on legislative changes, round tables or any training, if necessary.
What does a ‘life’ of a judgment look like after it has been delivered?
When the European Court of Human Rights (Court) finds a violation, the first thing the Department does is to look at the judgment very carefully, scrutinize the causes of the violation, and make a classification proposal. There is an enhanced and standard classification. For the judgment to fall into the enhanced procedure it should be related to a complex or structural problem or require urgent individual measure. In this situation, the Committee is concerned about the developments of the implementation. The standard procedure is a sort of a default procedure in which the Department works bilaterally with the state. The Committee then only looks at the case at the time of its closure.
We also consider whether it is a leading case raising a new problem, or whether it is a repetitive case. After the proposal by the Department, the Committee takes a decision on the classification at one of its quarterly meetings.
The state has six months from the date of when the judgment becomes final to send an action plan containing their proposed measures. Afterwards, the Department bilaterally engages with the state regarding the necessary measures, and the process is finalized by the state through sending an action report about what they have done, so that it can be assessed by the Department and eventually closed by the Committee.
Individual and general measures
There are two kinds of measures that can be distinguished according to whether they aim to improve the situation of an individual or to improve the general situation in the country. Could you tell us the most common examples of individual measures and general measures?
Individual measures aim to provide restitution for the individual applicant. The first major individual measure is the payment of just satisfaction, which is awarded by the Court. Another individual measure depends on the type of case. For example, if it is a case about deportation, which would violate Article 3 of the Convention, then the deportation needs to be canceled. In case of a violation of a right to a fair trial in criminal matters, the case needs to be reopened. Other examples can be from the area of family life where a child and a parent need to be reunited.
With regards to general measures, the aim is to stop repeating the same violations in other cases. There can be a problem in national legislation, in its application by courts or in execution by the police or other state bodies. This means that there might be a need for change of legislation, judicial practice, or for example training and awareness raising of police to prevent further violations.
With regard to individual measures, statistically, how often do Member States actually comply with just satisfaction? In other words, in how many cases do Member States comply and pay the monetary compensation?
There is an annual report on the execution of judgments published every year which can be found on our website. In 2020, 581 payments were made within the deadline and 203 payments were made after the deadline. In addition, in 1,118 cases, the payments were without confirmation for more than six months after the deadline.
This, of course, might not seem to be very good. However, we are dependent on the state telling us that they have paid the just satisfaction. Some of the countries do not always inform us that they made the payment. Therefore, it is quite difficult to make specific conclusions from the statistics.
As the general measures are more complicated and there might be less political will to implement the changes, could we say that the level of compliance with general measures would be lower in comparison to individual measures?
I would say that this needs to be assessed on a case by case basis. If there is a big case with a structural problem that might need a lot of interrelated general measures, it can take more time. For example, if a case concerns a problem with prison overcrowding, the state may have to build new prisons or renovate the existing ones. Legislative changes might also be needed to implement other measures apart from imprisonment. All of this can take a lot of time to proceed. Therefore, there are cases that are still pending even though a huge amount of work in terms of general measures have already been done, but still not enough for a closure.
The role of the Committee of Ministers in the implementation
The Department for the Execution of Judgments permanently supports the Committee of Ministers of the Council of Europe which supervises the execution of judgments. The Committee is a political body. How does this interaction between law and politics work? Do you think the model of supervision is efficient?
I think it is a massive strength of the system that it is not the Court supervising the execution, but the Committee. This is due to the fact that it has an element of political pressure, but also a certain flexibility. Therefore, if there are good reasons why a judgment is not being executed at a certain moment I think this level of flexibility is helpful.
The weaknesses of this system are the same as with any other system of international law; there are just not enough tools to back up the process. Therefore, the only tool we can work with is the element of public shame. So far it has worked relatively well for the most serious issues but in the case of the older pending cases the level of public shame is not efficient, and some states are quite inactive. This is also related to the problem that the government agent offices dealing with both the litigation and implementation are very often under-resourced.
The infringement proceedings as ultima ratio
In case a state does not wish to cooperate on the matter, what steps can the Committee of Ministers take?
As mentioned earlier, after we receive a case we first classify if it corresponds to the standard or enhanced procedure. Under the standard procedure if we have a major disagreement with the state about the necessary measures which it should undertake, we change it to the enhanced classification. Following that, the Committee takes a decision on its view of the measures which need to be taken.
If the state does not agree with the Committee and does not take action, there are various tools the Committee can use. These can have a form of an interim resolution which is a special kind of decision expressing a high level of concern by the Committee. It can also ask the secretary general or other Member States to raise the issue in their bilateral contacts with the state. By those means it is raising the pressure and the publicity concerning the issue.
The ultimate tool which the Committee can use are infringement proceedings under Article 46 para. 4 of the Convention, asking the Court if the state has failed to implement the judgment.
Until now, there has only been the case of Mammadov v. Azerbaijan in which the Committee of Ministers used the infringement proceedings and asked the Court for a secondary decision on non-implementation. Why is this not happening more often?
Infringement proceedings were designed to be used only in exceptional cases, and for this reason the procedure to launch them is difficult. Two interim resolutions needs to be adopted by the Committee. Standard decisions in the Committee are adopted by consensus or, if necessary, a majority vote, meaning that two-thirds of the representatives casting a vote and a majority of the representatives entitled to vote, are voting the same way. Since there are 47 member States, in practice this means decisions can be adopted by 24 votes. Interim resolutions under Article 46 para. 4 of the Convention, however, need a two-thirds majority of the Committee, which is 32 votes.
In the case of Mammadov v. Azerbaijan, the procedure worked and he was released from prison. Recently, another case is being discussed. The Committee took a decision against Turkey stating that if human rights defender, Osman Kavala, is not released from prison, the Committee will consider taking action under Article 46 para. 4 of the Convention.
Which Member States have the highest proportion of unimplemented judgments?
According to statistics in the annual report, it is Russia, Ukraine, Hungary, Romania, Turkey, Azerbaijan and Italy. In general, it concerns the countries with the highest caseload or the highest number of judgments from the Court.
Nevertheless, when we talk about unimplemented judgments, it does not mean that nothing has been done in the case. It just means that all the measures which need to be taken either have not been done or the state has not informed us that they have already been completed.
Inter-state cases and friendly settlements
The Court recently deals with much more inter-state cases than in the past. What is the difference in terms of implementation when it comes to inter-state cases as opposed to individual cases?
In the beginning, there are not too many differences. We look at the root causes of the problem and work with the state to identify measures that need to be taken. The problem with these types of cases is that the applicants are states themselves, therefore there is a high level of pressure in the Committee from the applicant state. So far, we only have three interstate cases; Cyprus vs. Turkey, the first Georgia vs. Russia case regarding the expulsion of Georgian nationals and the problem with the payment of just satisfaction, and lastly, we have just received the second Georgia vs. Russia case. The Court currently deals with a number of other inter-state issues which did not reach the stage of implementation yet.
The problem with these judgments is that they usually refer to a conflict situation that is quite often unresolved. Therefore, it concerns very sensitive and emotional issues and it makes all the discussions in the Committee much more complicated.
The oldest inter-state case which has been relatively successful is Cyprus vs. Turkey. We had to coordinate with the United Nations and other agencies for a part of the Court’s findings on the missing persons. In general, the inter-state cases are very difficult and they require a huge amount of time in terms of execution.
Apart from judgments, the Department also supervises friendly settlements. In addition, a Member State can admit a violation through a unilateral declaration. There has been criticism that some countries excessively use friendly settlements and unilateral declarations in order to lower their statistics of human rights violations. Is their use on a rise?
Yes, but this is actually a policy of the Court, not Member States. In fact, I think it makes sense since if you get a friendly settlement, you save the Court a lot of extra work and get the results quicker. Our only concern is that there are some cases which we do not think should be settled, such as cases regarding major structural problems in which a new Court judgment and findings could be beneficial and elucidate the situation. Regarding the unilateral declarations, they are not supervised by the Committee.
Implementation of judgments in Czech cases
With regard to the Czech Republic, among ongoing supervision is mainly the case of D.H. v. Czech Republic of 2007, which concerned the unjustified placement of Roma children in special schools. What has been achieved and why has it still not been possible to close the matter?
Szymon Janczarek: It is true that the execution of this judgment has been ongoing since 2007 and it needs to be emphasized that it concerns a deeply rooted problem in the Czech society, which in a way requires a cultural shift. Nevertheless, I can say that quite a lot was achieved in the meantime. In 2005, the special schools were closed and replaced. There have been two recent educational reforms in 2015 and 2016, which the Committee already assessed. The problem is that such complex changes require time, not only to implement the reforms but also to see their results. The Committee does not only look at the measures themselves but also at the real impacts it made before it makes any respective decision. The results achieved so far are encouraging but are not satisfactory for the closure of the procedure at this stage.
This is the only case against the Czech Republic which is in enhanced supervision and it is regularly debated and examined by the Committee at its meetings. The last examination was in December 2020 and the authorities were encouraged to continue with the reforms.
We are currently waiting for the intermediary report which we should receive from the Czech authorities by the end of September this year, and the next examination is foreseen in June 2022.
Another ongoing implementation relates to the criminal case of Tempel v. Czech Republic. What measures are needed and in what stage is it currently?
This supervision is at the beginning. Recently, the authorities submitted an action plan and before that, the domestic proceedings before the Constitutional Court were reopened in the case of Mr. Tempel upon his application. Therefore, we can see that the judgments of the Court have an impact and that the domestic authorities take their responsibilities seriously.
We were informed that the just satisfaction was paid and that there is no need for an amendment of the section 262 of the Code of Criminal Procedure which allows the appeals court to transfer the case to another chamber or another court. According to the information received this should not be necessary due to a development of the case law of the Constitutional Court and the corresponding change in judicial practice. The discussions at the domestic level are ongoing, which is understandable as for certain measures, six months might not be sufficient to analyze and diagnose the problem.
With regard to the recently closed cases, we could mention Žirovnický v. Czech Republic and the length of the judicial proceedings. How did this matter pursue to a successful end?
In this case, the Court found a violation of the right to a fair trial and the authorities submitted an action report in 2018. Nevertheless, sometimes the authorities submit the action report and then the Department sees that there are elements that are missing or are misrepresented. Therefore it initiates a bilateral dialogue. This happened in this case and following the dialogue, the government agent submitted a revised action report in 2020 presenting different measures to tackle the problems identified by the Court. These measures were considered sufficient by the Committee.
On the one hand, the authorities explained that one of the sources of the problem with the excessive length of this compensatory proceeding was the high number of requests for the compensation of the applicant which were manifestly ill-founded. However, on the other hand, regarding the problem of increasing the compensation granted because of the excessive length of the compensatory proceedings, the authorities were in general able to increase the compensation due to the changes in the case-law of the Supreme Court.
Cooperation with the Czech Republic
How would you describe the level of cooperation with the Czech Republic on the implementation of judgments?
I assess the cooperation as very satisfactory or even smooth. In the case of the Czech Republic, there were not many judgments during the last years. I also think that the Czech agent is very professional and our communication with regard to the execution of judgments is effective.
Could you compare the implementation of judgments in the Czech Republic with other countries in the central-European area? How are we doing?
Compared to the other V4 countries (Slovakia, Poland and Hungary), the Czech Republic only has four cases in the execution phase; two are pending friendly settlements, one case is in the enhanced procedure and one is in the standard procedure. Therefore, I would say that the numbers speak for themselves. This probably says something about the legal culture of the country, as well as that the Constitutional Court plays its role really well.
 Annual report 2020: https://rm.coe.int/2020-cm-annual-report-eng/1680a1f4e8.
 The interview took place in Strasbourg in June 2021.
 Information can be found on the webpage of the Department for the Execution of Judgments: https://www.coe.int/en/web/execution. Section for the Czech Republic: https://www.coe.int/en/web/execution/czech-republic. In addition, apart from HUDOC which is the Court’s database, there is also HUDOC-EXEC where all documentation with regard to the execution of judgments can be accessed.
Szymon Janczarek and Clare Ovey during the interview in Strasbourg, source: Czech Centre for Human Rights and Democracy, edits: cropped.