The execution of judgments of the European Court of Human Rights (ECtHR) is paramount for the credibility of the human rights protection system and for the rights enshrined in the European Convention on Human Rights (ECHR) not to be illusory. Hence, the efficacy and effectiveness of the ECHR as well as the impact and the future of the Council of Europe (CoE) are dependent on the implementation of judgments of the Court. The Court would not have any significant impact on the protection of human rights without having its judgments implemented by respondent states.
Both the Court and the Convention have succeeded in establishing their influence and authority.1 However, the lack of direct and executive power over sovereign signatory parties to the Convention as well as some states’ noncompliance with the Court judgments for legal and political reasons have made the systematic and rapid implementation of the judgments very challenging. As a consequence, compliance with the Court’s judgments has become a major issue in the political agenda of the CoE. CoE stated that “the execution of the Court’s judgment is an aspect of the European Convention system about which the public still knows very little but which is obviously of prime importance.”2 Protocol 14 to the European Convention and the setting up of the Group of Wise Persons are the examples of developments which indicate that the CoE has recognized that effective enforcement machinery is crucial for its credibility.
In this paper, I will be analyzing the challenges related to the execution of and noncompliance with the judgments of the European Court of Human Rights and the guiding principles of this process as well as the major factors that need to be taken into account when designing and enforcing possible solutions. I will be doing so by discussing the developments over the period that the Court has functioned and by explaining the content and purpose of certain parts of the European Convention, particularly the Article 46.
It is the concern of the CoE that the credibility of the Court may be damaged and the effectiveness of the enforcement system of the judgments may be compromised which will have a grave adverse impact on the protection of human rights within Europe. This damage can be caused by the increasing number of applications before the Court and cumulatively, by states’ failure to comply with the judgments of the Court.3 When Turkey refused to execute the judgment of the Court in the Loizidou case in 1998,4 concerns regarding the capacity of the Court became significantly apparent.5 In 2000, the Committee of Ministers stated that Turkey’s failure to comply with a judgment of the Court was “unprecedented.”6 The intervention of European Union, regarding Turkey’s candidacy to join the EU, seemed like a feasible political solution which in fact produced results – after a new deadline was imposed by the Committee of Ministers on Turkey, the Loizidou case was successfully executed in the late 2003, thanks to using the prospect of Turkey of joining EU as a leverage. However, in the later Mamatkulov Case,7 Turkey, again, attracted the attention of the CoE.
There have been more examples of deliberate noncompliance with the Court judgments. One of the most famous such cases deals with prisoners’ voting rights in the UK.8 Later the same issue came up in the Russian Federation.9 Both, for different reasons, have been refusing the implementation of the judgments. Additionally, the Russian Federation has been refusing to implement another judgment in which the Court awarded almost 2-billion-Euro compensation to the shareholders of the Russian company to be paid by the Russian government.10 Lastly, and, perhaps, most importantly, in case of Ilgar Mammadov v. Azerbaijan the respondent state failed to implement the judgment by retaining the opposition politician in detention.11 The latter case, due to recent developments, will be brought up later in the paper. At the same time, it’s worth mentioning that there have been other member states that have been systematically failing to comply with the judgments within the required period and have been extending the process for a number of years.
Such practices have proven to be important – it made the CoE face the explicit refusal to comply with the Court’s judgments, and consequently, it caused the reassessment of the implementation process.12 The Parliamentary Assembly of the CoE in 2000 stated its concerns about the slow implementation of the Court’s rulings: “The Assembly is concerned that the execution of some judgments is causing considerable problems that threaten to undermine what has been achieved over the fifty years during which the Convention has operated. Some judgments of the Court have still not been executed several years later.”13 In 2005, the Rapporteur of the Committee on Legal Affairs and Human Rights, Jurgens, selected a number of decisions of the ECtHR that had not been implemented by respondent states for more than five years after the delivery of the judgment along with other decisions raising important implementation issues to show that a reform was needed in the enforcement mechanism.14 The important question to ask was how the CoE could approach to the imposition of its authority.15
While it was clear that the enforcement can be encouraged through combined use of human rights mechanisms in Europe – in particular the EU – (i.e. the mutual effort of CoE and the EU in Loizidou case), this has also shown that the implementation could only be achieved through negotiations outside of CoE. As a result, it would not be wrong to argue that the CoE is not as powerful as had been assumed up to that point, and it was not self-sufficient in solving such conflicts internally. Hence, from Protocol 11 through Protocol 14, to the Group of Wise Persons, the focus has been towards improving the effectiveness of the work of the Court in terms of compliance with its judgments.
1 R. Beddard, Human Rights and Europe (Grotius Publisher, 1993); A. H. Robertson and J. G. Merrills, Human Rights in Europe (Manchester University Press, 1993), 376; M. Janis, R. Kay and A. Bradley, European Human Rights Law (OUP, 2000).
2 Council of Europe, A Unique and Effective System, Section 1, http://www.coe.int/T/E/Human_rights/execution/01_Introduction/01_Introduction.asp.
3 Explanatory Report, Protocol 14, paras 4 & 6; Woolf Review, Review of the Working Methods of the European Court.
4 Loizidou v. Turkey, 15318/89, para 60.
5 Turkish Ministry of Foreign Affairs’ Website, http://www.mfa.gov.tr/grupe/en/contents.htm; Parliamentary Assembly (September 1998).
6 Committee of Ministers, Interim Resolution Concerning the Judgment of the European Court of Human Rights of July 1998 in the case of Loizidou against Turkey, Interim Resolution DH 105/2000. Mamatkulov and Askarov v Turkey 46827/99 and 46951/99 ECtHR (2005) 64.
7 Mamatkulov and Askarov v Turkey 46827/99 and 46951/99 ECtHR (2005) 64.
8 Hirst v United Kingdom (No 2) 74025/01
9 Anchugov and Gladkov v. Russia 11157/04
10 Oao Neftyanaya Kompaniya Yukos v. Russia 14902/04
11 Ilgar Mammadov v. Azerbaijan (No. 2) 919/15
12 Venice Commission (European Commission for Democracy Through Law), Draft Opinion on the Implementation of the Judgments of the European Court of Human Rights, 209/2002.
13 Council of Europe Resolution 1226/2000, para. 5.
14 Jurgens, Implementation of Judgments of the European Court of Human Rights – Introductory Memorandum
15 E. Jurgens, Committee on Legal Affairs and Human Rights, Implementation of Judgments of the European Court of Human Rights – Introductory Memorandum, Parliamentary Assembly, AS/Jur 35/2005.