Flawed enforcement of court decisions undermines the trust in State justice

Flawed enforcement of court decisions undermines the trust in State justice

[31/08/09] Court decisions in several European countries are often enforced only partly or with long delay - or sometimes not at all. This is one of the most frequent problems identified by the European Court of Human Rights (the Strasbourg Court). Flawed execution of final court decisions must be seen as a refusal to accept the rule of law and is a serious human rights problem.

The non-enforcement of court judgments can affect large groups of the population and particularly vulnerable groups. When State authorities ignore judicial decisions that social benefits - such as pensions or child allowances - should be paid, this can have profound consequences for all the family involved.

Other examples concern compensation for damage sustained during military service or after wrongful prosecution. A high number of non-executed decisions which have been brought to the Strasbourg Court relate to the return of property which was nationalized by former communist governments.

A great number of other cases of non-enforcement of domestic judicial decisions are also raised among the complaints to the Strasbourg Court - which has found and continue to find numerous violations in this area. Among the countries with cases have been Albania, Bosnia and Herzegovina, Moldova, Russian Federation, Serbia and Ukraine.

Indeed, the flawed response to domestic judicial decisions in several countries must be regarded as a structural problem which should require the national authorities to take priority action.

It is an important principle that every judgment is enforced, including those delivered against the governmental administration. Therefore, it is particularly worrying that even political decision-makers at high levels sometimes tend to seek all kinds of pretexts to disregard judicial decisions and make public statements that convey a lack of respect for the judiciary.

It has to be made clear that the non-execution of court judgments by the authorities constitutes a breach of the right to a fair trial as defined in Article 6 of the European Convention on Human Rights. In its judgment in the case of Hornsby v. Greece the Strasbourg Court affirmed that the "right to a court […] would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party.”1

The Court observed also that the States by ratifying the Convention had undertaken to respect the principle of the rule of law. To ignore the implementation of judicial decisions would be incompatible with this principle. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 are rendered devoid of purpose.

The complexity of the domestic enforcement procedure or of the State budgetary system cannot relieve the State of its obligation to guarantee to everyone the right to have a binding judicial decision enforced within a reasonable time, stated the Court. Nor is it open to a State authority to cite the lack of funds or other resources as an excuse for not honoring a judgment debt.2

Several Council of Europe bodies have focused on these structural problems. This has been a focus of attention for the Parliamentary Assembly or for specialised organs such as the European Commission for the Efficiency of Justice (CEPEJ) and a priority for the Committee of Ministers in the framework of the execution the judgments of the European Court of Human Rights.

The Council of Europe has a special Department which assists the Committee of Ministers in the supervision of the execution of the judgments of the European Court. This Department has also organised discussions to address the problem of delayed or lacking action on domestic court decisions.3

The conclusions drawn have stressed the need of a legal and regulatory framework which will ensure enforcement of the domestic court decisions:

* There should be clear procedures adapted to national budgetary contexts that are compatible with the need for rapid and proper execution of judgments;
* An effective and independent bailiffs’ service should be established;
* The responsibility of the relevant national officials should be increased with regard to the execution process for domestic judgments, both by increasing their personal responsibility and through stricter control over their actions;
* There should be effective domestic remedies to accelerate execution proceedings and compensation in cases of non-execution should be made available.

This last requirement is essential. In a recent pilot judgment the Strasbourg Court further specified the requirements and the criteria for efforts to verify the effectiveness of preventive or compensatory remedies that allow for adequate and sufficient redress at domestic level.4

In fact, a number of measures have been taken by several countries in this direction. Progress is under way through action plans or national strategies, reforms of the bailiffs systems, new laws introducing remedies, enforcement mechanisms set up for instance by both the Supreme Court and the Council of State.

It is clear, however, that for all these efforts to be effective, there is a need of proper knowledge of all involved. Exchanges of experiences between the countries concerned, discussions with the Council of Europe and legal advice are essential in this respect.

These efforts require more awareness raising and action by key national actors. Parliamentarians may push for the rapid introduction of the necessary legal reforms. Independent state authorities like ombudsmen have a key role to play due to their power to control the Administration. Such institutions may inform the citizens about new laws providing for domestic remedies in cases of non-enforcement and also push the administration to abide by the law.

The credibility of the justice system is at stake.It is not sufficient to reform legislation, increase the resources of the courts or encourage the public to settle their disputes in court. Members of the public who have placed their trust in the judicial system should obtain satisfaction, not only on paper but also in practice. To ensure full and prompt execution of court decisions is one of the hallmarks of a democratic society.

Thomas Hammarberg

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Notes:

1.Court judgment 19 March 1997, § 40.

2. See inter alia, Burdov v. Russia (No. 2), 15 January 2009, § 70.

3. Documents prepared by the Department for the Execution of Court Judgments can be found at: http://www.coe.int/t/dghl/monitoring/execution/default_en.asp

4. Burdov v. Russia (No. 2), op.cit.

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Comment: Whilst this appears to relate to domestic proceedings, I would contend that the same principle should apply in relation to non-compliance of ECtHR decisions, for example, Hirst v UK (No2).