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Saturday, February 05, 2011

From Judgment to Justice

From Judgment to Justice

Implementing International and Regional Human Rights Decisions

[I have pulled out those sections of the report which I feel have relevance for the UK's non-compliance with Hirst v UK (No2)]

"...lack the capacity or political will to implement judgments. As a result, a number of those cases where implementation remains pending are, in fact, “repetitive” cases—the result of states having failed to comply with their earlier implementation obligations.

Individual measures are designed to restore the applicant to the position he or she enjoyed prior to the violation, while general measures are designed to prevent the same abuse(s) from happening again. In these cases, implementation is harder to monitor and often more protracted because general measures typically require wide-ranging reforms, such as changes to a state’s legal code, which can challenge institutional power or run contrary to public opinion.

In the face of such intransigence, the court has at times adopted a more prescriptive approach to remedies, which has assisted the Committee of Ministers and occasionally resulted in more effective execution. Most representative of this shift is the court’s application of the pilot judgment procedure, used as a way to dispose of a large class of similarly situated cases. States have also begun to respond to calls by the Committee of Ministers and other Council of Europe organs to better address implementation of judgments at the local level. The United Kingdom’s Joint Committee on Human Rights has been a model institution in this regard and, more recently, Italy and Ukraine have passed laws that seek to strengthen parliamentary oversight of implementation.

Overall, however, general measures present the greatest challenge for the European system, and there are numerous instances in which full implementation has not been achieved. Another worrisome trend is the widespread failure by states to implement orders to investigate and prosecute gross human rights violations—an area the court has addressed more often since the accession of post-Soviet states. Other problem areas for the Committee of Ministers have been the satisfactory resolution of cases involving the unreasonable length of proceedings and the failure to execute domestic judgments, which collectively comprise the vast majority of cases pending before the committee. As a result, implementation continues to lag where there is political resistance to, or a lack of public support for, the measures ordered by the court. Moreover, because general measures are time consuming and frequently complicated, states often treat them as a lower priority, choosing instead to pay just satisfaction and then delay.

In such cases, Strasbourg’s pressure is not enough; active participation from local civil society is needed to overcome political resistance and move public opinion.

As set forth by Article 46 of the European Convention, the Committee of Ministers is the statutory body tasked with monitoring the court’s judgments. The committee, whose supervision is based on “constructive and co-operative dialogue between states,” meets four times a year and is assisted in its oversight duties by the Department for the Execution of Judgments. Another important monitoring body is the Parliamentary Assembly of the Council of Europe, whose Committee on Legal Affairs and Human Rights reports regularly to the assembly on compliance-related matters. Notably, the Committee of Ministers has recently emphasized the importance of developing synergies in the implementation monitoring process among the committee, the Parliamentary Assembly, and the European Commissioner for Human Rights, whose mandate it is to promote awareness and respect for human rights throughout the Council’s member states.

In response to the challenges of implementation, the Committee of Ministers has adopted an increasingly rigorous approach to implementation and its own monitoring powers. Rules of procedure, amended as of 2006, require that states against which a judgment is pending submit a plan for implementation to the Committee of Ministers within six months of the court’s decision, although this timeframe may be reduced in urgent cases, systemic cases, or cases of very serious violations. Cases are then placed on the agenda of the committee’s subsequent meetings and reviewed regularly until a final resolution closing the case is adopted. The committee’s deliberations are not open to the public (unless it decides otherwise), although victims are now entitled to communicate in writing with the committee about the implementation of individual measures, and non-governmental organizations and national human rights institutions are entitled to make written submissions on both individual and general measures. New working methods adopted in 2004 by the committee also include the use of publicly accessible “status sheets” summarizing the status of implementation, as well as more frequent meetings between the committee’s secretariat and state representatives.

While compliance is pending, the Committee of Ministers may adopt interim resolutions, in order to provide information on the progress of implementation, or to express concern or make suggestions; on occasion, the committee also issues public memoranda explaining what steps a state should undertake in cases raising structural violations. Where necessary, the committee may seek to put more pressure on a respondent state through compliance meetings, undertake more frequent examinations of a case, or adopt public interim resolutions condemning the failure to implement. Notably, Protocol 14, effective as of June 2010, also expands the Committee of Ministers’ monitoring powers in two important ways. First, it permits a two-thirds majority of the committee to seek interpretive rulings from the court if the meaning of a judgment is unclear; second, it provides that a two-thirds majority may bring “infringement proceedings” before the court in cases where a state has failed to comply. In exceptional cases of persistent non-implementation, the committee may sanction states by ultimately suspending or expelling them from the Council of Europe. However, suspension has been an exceedingly rare occurrence and, to date, no member state has ever been expelled from the Council.

Conclusions and Recommendations

Protocol 14 and the reforms being put into place by the European Court of Human
Rights to secure its long-term effectiveness are important steps. But the growing challenges of implementing the court’s judgments remain of primary concern. To address these challenges, the following conclusions and recommendations are offered:

• The Committee of Ministers, Parliamentary Assembly, and the European Commissioner of Human Rights should continue to improve their respective working methods, in addition to developing increasingly formalized synergies in their monitoring rules. The Committee of Ministers, in particular, should prioritize and agglomerate cases against those states that contribute most to the implementation backlog. Greater clarification about the pilot judgment procedure, especially regarding the respective role of the court and the committee in evaluating compliance at the national level is also needed. The Parliamentary Assembly’s Committee on Legal Affairs should continue to develop its reporting work on implementation and capitalize on its status as a parliamentary body, one that permits greater possibilities for dialogue with national legislators. The commissioner should conduct on-site visits to countries against which cases have been brought, and provide the court with information about alleged violations and proposed remedies.

• Further training on communicating with the Committee of Ministers is needed, particularly in states where civil society is less active and states that have the lowest implementation rates. Litigants and interveners alike can also play a role in urging the court to identify cases that pose an underlying systemic problem.

• The court should continue to seek to supplement the committee’s monitoring and enforcement role, by continuing its cautious trend towards greater specificity in its approach to remedies. Further application and refinement of the pilot judgment procedure is important in this regard; likewise, proposals for adding collective redress mechanisms, such as a class action procedure, should be considered anew.

• Consistent with the principle of subsidiarity, states must enhance their ability to effectively implement court judgments. All Council member states should have a system in place for responding to court judgments, in addition to establishing greater parliamentary scrutiny of legislation to ensure it is consistent with court jurisprudence. Where such systems are already in place, more research is also needed on their impact and effectiveness. The establishment of robust national human rights institutions in each member state should be required by the Council of Europe as a way to develop effective mechanisms of reception at the national level; likewise, the establishment of a standing judicial training institute should be considered, in order to improve application of the convention at the national level".

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