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Wednesday, March 02, 2011

Don't rock the corruption boat!

Don't rock the corruption boat!

Next Tuesday 8 March 2011 William Hague, Secretary of State for the Foreign and Commonwealth Office, will appear before the Committee of Ministers to explain the UK's failure to amend legislation to fully comply with Hirst v UK (No2).

Urszula Gacek, Polish Ambassador to the Council of Europe, has stated that almost every country has issues with the Court and nobody likes being told what to do and how to reform domestic legislation, therefore Ambassadors will be quite cautious about pointing the finger of blame because, in effect, everybody is in the same boat. So, the statements of the Ambassadors tend to be more conciliatory. Therefore, the UK doesn't need to be concerned that it will get slammed in the Committee of Ministers. Nevertheless, to completely disregard a judgment is bad practice. It opens the door to countries which are a little more behind on democracy issues to say if the UK does not comply then why should we?

Law with sharper teeth

Protocol 14 will finally allow the European court of human rights to make their judgments bite

Protocol 14 came into force on 1 June 2010.

"It gives the Council of Europe's decision-making body, the Committee of Ministers, stronger powers to ensure that member states comply with rulings of the court. The current position is slow and complex. In the UK, for instance, if the government loses a case in Strasbourg, the underlying domestic law remains largely unaffected. Of course, the individual who won the case in the European court will have the declaration of an international court that the UK has violated his fundamental human rights. But when he comes to enforce the judgment of the European court back home, things get distinctly messy".

"The Human Rights Act provides that UK courts must take the Strasbourg ruling into account. But the doctrine of precedent still bites; so anyone who wants to overturn a decision on the basis that it is inconsistent with the subsequent Strasbourg ruling will generally have to litigate the case up to the UK supreme court. In the meantime, the offending domestic law in effect remains in force. The exceptions to this drawn-out process are currently quite narrow".

"The Committee of Ministers can refer a case back to the European court if it considers that the state has not fully complied with a decision of the court. If the court agrees, the committee can decide to take action against the state for noncompliance – including, in theory, suspension or expulsion from the Council of Europe".

"Perhaps the most pressing issues concern prisoners' voting 2005, the European Court held that a blanket ban on prisoners' voting violated their human rights, but the ruling has still not been implemented. Over 100,000 prisoners have missed the opportunity to vote since the decision. Prisoners are taking legal action in the domestic courts, backed by the Equality and Human Rights Commission, to challenge this failure. But all that a court could do would be to declare – again – that the government is in breach of its obligations".

"...there is no point having a supreme international human rights court if its judgments can be quietly ignored".

Council of Europe website...

"In accordance with Article 46 of the Convention as amended by Protocol No. 11, the Committee of Ministers supervises the execution of judgments of the European Court of Human Rights...The Committee of Ministers' essential function is to ensure that member states comply with the judgments of the European Court of Human Rights".

Committee of Ministers website...

"Execution of Judgments of the European Court of Human Rights

Respect of the European Convention for the Protection of Human Rights and Fundamental Freedoms and, in particular, of the European Court of Human Rights's judgments, is a crucial element of the Council of Europe's system for the protection of human rights, rule of law and democracy and, hence, for democratic stability and European unification

A unique and effective mechanism


The European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") is the concrete expression at European level of a collective guarantee for some of the rights set out in the Universal Declaration of Human Rights of 10 December 1948.

This collective guarantee is based not only on the contracting parties' resolve to uphold a number of universal values but also on their common interest in safeguarding democratic security throughout Europe and securing the foundations of an ever closer union among European states.

The Convention is designed to ensure that states respect human rights, the rule of law and the principles of pluralist democracy. Acceptance of the Convention, as well as the compulsory jurisdiction of the Court and the binding nature of its judgments, has become a requirement for membership of the organisation ( Interim Resolution DH(2001)80). The Convention is now also an integral part of member states' domestic legal systems.

From a practical standpoint, much of the Convention' success is due to its well-developed monitoring machinery, which has made it possible, in practice, effectively to safeguard the rights and freedoms enshrined in it.

The Convention machinery is currently based on two institutions:

* European Court of Human Rights ("the Court"), an international court that delivers binding judgments on applications from individuals and states alleging violations of the Convention,
* the Committee of Ministers, the main political body of the Council of Europe, to which the Convention assigns the specific and very precise responsibility of supervising the execution of the Court's judgments.

The execution of the Court's judgments is an aspect of the Convention system about which the public still knows very little but which is obviously of prime importance. The Convention is now one of the keystones of the European political framework precisely because the execution of each individual judgment in which a state is found to have violated the Convention is closely and systematically monitored by the other states through their representation in the Committee of Ministers.

Obligation to comply with judgments

Under Article 46 § 1 of the Convention, states "undertake to abide by the final judgment of the Court in any case to which they are parties". This undertaking entails precise obligations for respondent states. On the one hand they must take measures in favour of the applicants to put an end to violations and, as far as possible, erase their consequences (restitutio in integrum), and, on the other hand, they must take the measures needed to prevent new, similar violations.

A first obligation is therefore the payment of just satisfaction (normally a sum of money), which the Court may award the applicant under Article 41 of the Convention and which covers, as appropriate, pecuniary and non-pecuniary damage and/or costs and expenses. The payment of such compensation is a strict obligation which is clearly defined in the judgment.

However, the adverse consequences of the violation suffered by an injured party are not always adequately remedied by the payment of just satisfaction. Depending on the circumstances, the execution of the judgment may also require the respondent state to take individual measures in favour of the applicant, such as the re-opening of unfair proceedings, the destruction of information gathered in breach of the right to privacy or the revocation of a deportation order issued despite the risk of inhumane treatment in the country of destination. It may also require general measures - such as a review of legislation, rules and regulations or judicial practice - to prevent new, similar violations. There are many examples of such obligations imposed by the Court and the Committee of Ministers (see, for example, the judgment of the Court in the case of Scozzari and Giunta (39221/98) and Resolutions DH(99)245 in the Socialist Party and Others against Turkey case (21237/93) and ResDH(99)434 concerning the activities of the security forces in Turkey (21987/93), as well as the Rules for the application of Article 46 § 2 adopted by the Committee of Ministers).

Indeed, under the Convention, states have considerable freedom in the choice of the individual and general measures they take to meet these requirements. However, this freedom goes hand in hand with the monitoring by the Committee of Ministers (assisted by the Department for the execution of judgments), which ensures that the measures taken are appropriate and actually achieve the outcome sought in the Court's judgment (see the aforementioned Scozzari and Giunta judgment (39221/98)). Where the notion of a choice of measures is in practice theoretical, since it is constrained by the nature of the violation, the Court can itself directly require certain steps to be taken. It has made use of this possibility for the first time in 2004 in two cases, ordering the release of applicants who were being arbitrarily detained in breach of Article 5 of the Convention (see the Assanidze v. Georgia judgment (71503/01) and the Ilascu and others v. Russia and Moldova judgment (48787/99)). In the last few years, in response notably to a Resolution by the Committee of Ministers on judgments revealing an underlying systemic problem, Res(2004)3, the Court has also started to provide better identification of systemic problems underlying violations found and also to give indications as to the execution measures required.

Examples of specific measures taken to abide by the judgments of the ECHR

In its judgment of 13 July 2000 (§ 249), in the Scozzari and Giunta case (39221/98), the Grand Chamber of the Court summarised states' obligation to take general measures to prevent further violations and individual measures to remedy the effects of the violation on the applicant as follows:

"by Article 46 of the Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent state a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see, mutatis mutandis, the Papamichalopoulos and Others v. Greece (14556/89) (Article 50) judgment of
31 October 1995, Series A no. 330-B, pp. 58-59, § 34). Furthermore, subject to monitoring by the Committee of Ministers, the respondent state remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment."

Individual measures

If the violation continues to have adverse effects which have not been offset by the just satisfaction awarded to the applicant, the Committee of Ministers examines whether it is necessary for the national authorities to take individual measures. The aim is to put an end to any continuing violations and to redress, as far as possible, their effects (restitutio in integrum).

The individual measures depend on the nature of the violation and the applicant's situation.

Re-opening and re-examination of national proceedings

Re-opening proceedings in the domestic courts may be an effective way of redressing the consequences of a violation of the Convention caused by unfair national proceedings (see, for example, Barberà, Messegué and Jabardo v. Spain (10588/83), Resolution DH (94) 84).

Re-opening proceedings may also provide the opportunity to rectify a domestic decision which is deemed incompatible with the substance of the Convention, for example, a prohibition on the publication of certain information (see, for example, Open Door and Dublin Well Woman v. Ireland (14234/88), Resolution DH (96) 368). Similarly, when the Court concludes that an applicant’s expulsion from a country is, or would be, incompatible with the Convention, the execution of the judgment may require the authorities to reconsider their decisions to ensure that the applicant can return to the country in question or remain there if the deportation has not yet taken place (see, for example D. v. United Kingdom (30240/96), Resolution DH(98)010).

The reopening of domestic proceedings is of fundamental importance for the execution of the European Court’s judgments. Indeed, in some cases, this is the only form of "restitutio in integrum" possible, ie the only effective means of redressing the violation of the Convention.

In response to execution problems, caused in certain cases by the lack of appropriate national legislation on the re-opening of proceedings, the Committee of Ministers adopted a Recommendation to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights Recommendation No R (2000) 2), inviting them to ensure that there existed at national level adequate possibilities for achieving, as far as possible, restitutio in integrum, including the reopening of proceedings.
Other measures

Other measures may concern the destruction by the police of all files (or at least those used for operational purposes) containing information obtained in breach of the right to privacy (see, for example, the Kopp v. Switzerland judgment (23224/94), Final Resolution ResDH(2005)96), the recognition of a Church which had previously been refused recognition, in breach of Article 9 (see, for example, the Metropolitan Church of Bessarabia and Others v. Moldova judgment (45701/99), Final Resolution ResDH(2010)008), or the introduction of previously non-existent legislation giving access to the Court (see, for example, The Holy Monasteries v. Greece (13092/87), Resolution DH(97) 577).

General measures

General measures to prevent further similar violations are sometimes difficult to define and implement. The national authorities must first make a detailed examination of the causes of the violation of the Convention.

In some cases, the circumstances of the case clearly show that the violation is the result of domestic legislation. Sometimes, it is the lack of legislation which has led to the violation. In such cases, it falls to the state concerned to amend the existing legislation or introduce new, appropriate legislation in order to comply with the Court's judgment.

Nevertheless, in many cases, the violation is due not to clear incompatibility between domestic legislation and the Convention but to a problem of judicial practice, i.e the way in which the national courts usually interpret domestic legislation and the Convention. In such cases it is necessary to change judicial practice along the lines suggested by the Court in order to execute the judgment.

When courts automatically adjust their legal stance and their interpretation of national law to meet the demands of the Convention, as reflected in the Court’s judgments, in the individual cases submitted to them, they make these judgments directly enforceable by virtue of their domestic law. This is what now happens in almost all member states and further similar violations can be effectively prevented by simply ensuring that the judgment is published and transmitted to the national authorities, accompanied, where appropriate, by an explanatory circular.

On the 50th anniversary of the Convention, the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights (DH-PR), which was set up by the Committee of Ministers of the Council of Europe, drew up an inventory of general measures taken by the Contracting States to implement the decisions taken by the Convention bodies since they were first established.

Monitoring arrangements and means used by the Committee of Ministers

Once the Court's final judgment has been transmitted to the Committee of Ministers (Article 46 § 2 of the Convention), the latter invites the respondent state to inform it of the steps taken to pay the amounts awarded by the Court in respect of just satisfaction and, where appropriate, of the individual and general measures taken to abide by the judgment (see the Rules adopted by the Committee of Ministers on this subject). Once it has received this information, the Committee examines it closely. After establishing that the state concerned has taken all the necessary measures to abide by the judgment, the Committee adopts a resolution concluding that its functions under Article 46 § 2 of the Convention have been exercised.

The Directorate General of Human Rights assists the Committee of Ministers in exercising this responsibility under the Convention. In close co-operation with the authorities of the state concerned, the Directorate considers the measures that should be taken to comply with the Court's judgment. At the Committee of Ministers' request, the Directorate offers its opinion and advice, which are based on the experience and practice of the Convention bodies.

In accordance with its well-established practice, until the state in question has adopted satisfactory measures, the Committee of Ministers does not adopt a final resolution striking the judgment off its list of cases, and the state continues to be required to provide explanations or to take the necessary action. During the examination of the case, the Committee may take various measures to facilitate execution of the judgment. It may adopt interim resolutions, which usually contain information concerning the interim measures already taken and set a provisional calendar for the reforms to be undertaken or encourage the respondent state to pursue certain reforms or insist that it take the measures needed to comply with the judgment.

If difficulties are encountered in executing the judgment, the Directorate General of Human Rights often examines possible solutions in greater detail with the authorities concerned.

The Committee of Ministers may fully exercise its influence to persuade the state concerned to comply with the Court's judgments, not least by noting its failure to comply with the Convention and taking appropriate action. In practice, the Committee of Ministers very seldom needs to exert political and diplomatic pressure but functions rather as a forum for constructive dialogue, thus helping states find satisfactory solutions enabling them to execute the Court's judgments.

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