The Achilles’ heel of the European Court of Human Rights
The whole European system of human rights protection is powerless when confronted with bad faith, and this represents its existential threat.
The Council of Europe is the regional international organization with “maintenance and further realization of human rights and fundamental freedoms” as its principal statutory aim. The pearl in the Council’s crown is undoubtedly the European Court of Human Rights, an international judicial institution established by the European Convention on Human Rights, which allows individuals who have exhausted effective domestic remedies to sue states for infringements of their rights guaranteed by that treaty. The Court decides whether the state is internationally responsible for violating its treaty obligations from which individuals within its jurisdiction should benefit. But failure to execute the Court’s judgments, coupled with rampant impunity, is now widespread in all parts of Europe.
While these judgments of the Court are binding, there is no straightforward way to ensure that states comply with them. Indeed, no international courts have coercive methods at their disposal to ensure execution of their judgments. Their jurisdiction is based on consent of the states. In the absence of good faith on the part of respondent states and their real political will to undertake required individual and general measures, there is no way to ensure compliance with the judgments of the Court. If the state loses the case in Strasbourg and responds with contempt and clear lack of desire to comply, the Council of Europe has no recourse.
Flickr/Outlandos [ym]/(CC BY-NC-ND 2.0)
The European Court of Human Rights in Strasbourg, France.
Of course, the Court’s judgments may contain a declaration establishing violation of the particular article(s) of the Convention and often indicate the amount of monetary compensation payable by the state to the applicant as “just satisfaction”. However, payment is arguably insufficient. As former Vice President of the Court Françoise Tulkens has put it, “[a] judgment of the [Court] is not an end of itself, but… the starting point of a process which should enable rights and freedoms to be made effective.”
There are two dimensions necessary to achieve this effectiveness: first, there must be individual measures to ensure that the consequences of human rights violations are remedied for the successful applicant. Second, there must be general measures to ensure that similar violations do not repeat themselves in the future.
The individual remedial measures are based on the general concept of the law of international responsibility: a state responsible for an internationally wrongful act is under an obligation to make restitution. This is frequently interpreted as re-establishing the situation which existed before the wrongful act was committed. With respect to some human rights violations, such as the denial of fair trial, the most appropriate way of restitution is reopening of the case at the domestic level.
These general remedial measures are critical to preventing new similar violations. But it is up to national authorities and, ultimately, national judiciaries to ensure this. It is pointless for the Court to repeat itself again and again while the domestic authorities repeatedly violate human rights and ignore court orders.
"The Committee is a political body composed of state representatives that are supposed to supervise how the respondent states execute the judgments of the Court."
To fix this problem, the Committee of Ministers of the Council of Europe must actually take action—which it is clearly hesitant to do. The Committee is a political body composed of state representatives that are supposed to supervise how the respondent states execute the judgments of the Court. This includes determining whether state measures to address the judgement are sufficient. But most states are too willing to turn a blind eye on other states’ failure to execute the Court’s judgments, due to the expectations of reciprocity. Indeed, the Committee of Ministers seems to be a “club of alimony dodgers” based on mutual cover-up.
In a glaring example of the Committee’s shameful inaction, none of the dozens of the Court’s judgments in “Chechen cases”, which established absence of effective investigations into enforced disappearances of civilians during the armed conflict in the Chechen Republic, led to the identification and punishment of those responsible. This failure to act left the Court in the position of being the distributor of monetary compensations which, according to the Court itself, does not and cannot constitute sufficient remedy in the cases of enforced disappearance. Effective criminal investigation is an indispensable individual remedy in those cases.
Illustrating how pervasive this problem is, in February 2011, the UK House of Commons adopted a motion supporting “the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand”. This motion was a clear refusal to take general measures in execution of the judgment of the Grand Chamber of the Court in Hirst v. the United Kingdom (no. 2), in which the Court ruled that a blanket ban on prisoners’ right to vote in the UK was a violation of the European Convention on Human Rights.
Since 2010, the Committee of Ministers has been entitled to initiate infringement proceedings. That is, the Committee can apply to the Court if it considers that a state is refusing to abide by a final judgment of the Court. The Committee has never made use of this powerful tool, although in one recent decision—in the case of a journalist unjustly imprisoned in Azerbaijan—it made indication of its willingness to explore that option “should no tangible progress be made in ensuring the applicant’s release”. In any case, even if the infringement proceedings lead to another judgment from the Court, there is no further magic bullet left within the Council of Europe to ensure compliance with it.
Missing political will can be obtained internally, if compliance with the Court’s judgments becomes part of domestic political agenda. But those domestic shifts have nothing to do with the Council of Europe. The whole European system of human rights protection is powerless when confronted with bad faith, and this represents its existential threat.
Sergei Golubok is a Partner at Double Bridge Law in St. Petersburg.