Enforcement of judgments of the
European Court of Human Rights
Adam Bodnar
Antalya, 30 August 2010
Significance of the enforcement of ECHR
judgments
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Obligation on the contracting states to enforce judgments
ECHR as a „constitutional court” for Europe
Changes in law (preventing further violations)
Heavy losses for the state budget caused by the adverse
judgments
Dramatic increase in number of applications and judgments
Promoting high standards of human rights’ protection and
good practices of public institutions
Diplomatic responsibility – international image of the state
Obligations under the Convention
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Principle of subsidiarity
Principle of primarity (Jonas Christofferson)
Article 1 of the Convention - general obligation
Article 13 of the Convention – domestic remedy
Article 46 of the Convention – legal effect of judgments
 Judgments binding only for state parties subject to
proceedings
 Supervision of the Committee of Ministers
 Power to seek clarification
Concept of „positive obligations”
Interlaken Declaration – underlining importance of state
parties obligations under the Convention
„Own” judgments vs. judgments
concerning other states
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Legally binding – only judgments concerning a given state
party to the Convention (Article 46)
Value of judgments issued with respect to third country?
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Concept of „res interpretata” (interpretation value)
Similarity of a problem
Finality and level of authority of a judgment (chamber
judgments, sections of the court, Grand Chamber)
Enforcement of „third country” judgment prevents future
violations
General obligation to comply with Convention (as interpreted
by the ECtHR)
Case-law of the ECtHR - standards
Individual and general enforcement of
the ECtHR judgment
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Individual enforcement
(inter partes effect)
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Restitutio in integrum
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General enforcement
(erga omnes effect)
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Payment of compensation
Re-examination of the case
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e.g. releasing from psychiatric
hospital
return of the property
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Legislative changes (source
of violation – wrongful
provisions)
Practical changes
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e.g. in criminal matters
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Re-opening of proceedings
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Reform of institutions (e.g.
prisons)
Trainings
Dissemination of judgments
State has a freedom as to
the choice of means – they
must be effective
Restitutio in integrum
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Ordering certain action may take place in the course of
proceedings (e.g. under Rule 39)
Sometimes state may voluntarily change the situation of a
victim (e.g. provide adequate conditions to prisoner)
The ECtHR may order certain action in a judgment
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the respondent State must secure the applicant's release at the earliest possible
date (Assanidze v. Georgia)
State must secure at the earliest possible date adequate conditions of the
applicant's detention in a specialised institution capable of providing him with
necessary psychiatric treatment and constant medical supervision (Sławomir
Musiał v. Poland)
Typical restitutio in integrum (full reparation) is possible in
property cases:
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Returning historical coins to proper owner (Kopecky v. Slovakia – but it was
impossible to show their location)
Returning of the house (e.g. Zwierzyński v. Poland)
Re-examination and re-opening of case
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Recommendation No. R (2000) 2 of the Committee of Ministers to member states
on the reexamination or reopening of certain cases at domestic level following
judgments of the European Court of Human Rights (19 January 2000)
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1) the injured party continues to suffer very serious negative consequences because of the outcome of
the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot
be rectified except by re-examination or reopening, and
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2) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on
the merits contrary to the Convention, or (b) the violation found is based on procedural errors or
shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings
complained of.
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need for a domestic legislative provision allowing for reexamination or re-opening of proceedings
different approach in different countries
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Re-examination and re-opening of
proceedings – daily practice
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Re-examination of a case
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Re-opening of criminal proceedings
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Wasilewska and Kałucka v. Poland – need to once re-examine a case and to accuse
policemen for shooting the suspect
Gençel v.Turkey - most appropriate form of redress in Article 6 violations
Usually specific provisions in the Code of Criminal Proceedings (or
interpretation of general clauses)
Re-opening of civil proceedings
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Problem of „res judicata”. Many jurisdictions – not allowing for re-opening of civil
proceedings (e.g. France, Austria, Netherlands)
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Cudak v. Lithuania (Grand Chamber) - “where, as in the instant case, an individual has been the
victim of proceedings that have entailed breaches of the requirements of Article 6 of the
Convention, a retrial or the reopening of the case, if he or she so requests, represents in principle
an appropriate way of redressing the violation”
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Liability of the state for damage (e.g. Podbielski case)
Re-opening of administrative proceedings
Change in law following the ECtHR
judgment
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Recommendation Rec(2004)5 on the verification of the compatibility of
draft laws, existing laws and administrative practice with the standards laid
down in the European Convention on Human Rights
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Need to change legislation following specific judgment of the
ECtHR
Need to create a domestic remedy (e.g. complaint on length of
proceedings – Kudła v. Poland judgment)
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Change in law may concern even the Constitution (e.g.
Incal v.Turkey, Kiss v. Hungary)
Change in law must be effective (e.g. Tysiąc v. Poland)
Responsibility for preparation of draft law and
cooperation between organs of state
Verification of new and existing laws as
to compliance with the Convention
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Verification of new and existing laws – prevention of
future violations
Special „desks” or offices in governments and parliaments
checking compliance with the ECHR
Role of the Legislative Councils
Role of ombudsmen – indication of possible violations
Regular review of existing legislation in the light of ECHR
standards
Use of the ECHR standards in the constitutional review
by the Constitutional Court
Coordination of enforcement of ECtHR
judgments
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Need for a special coordination body
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Recommendation Rec(2008)2 on efficient domestic capacity
for rapid execution of the Court’s judgments
Usually in the Ministry of Foreign Affairs or in the Ministry of
Justice
Rank in the government
Different tasks:
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Coordination and dialogue with different state authorities (necessary authority)
Identification of measures, preparation of action plans
Payment of compensations
Dissemination of judgments
Reporting obligations
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Ensuring all remedial actions are taken (especially in case of systemic problems)
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Practical measures to enforce ECtHR
judgments
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Changes in practice
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E.g. brutality of police – creation of internal mechanism of complaints,
trainings for police, raising awareness
E.g. systems of names and surnames – sending circulaire to different
administrative agencies how to interpret law
Violation of right to privacy – deletion of information obtained illegally
from state archives
Institutional reforms
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E.g. overcrowding in prisons – need for renovation or building new
prisons, promotion of alternative penalties, introduction of new systems
(e.g. electronic bracelets)
E.g. disabled persons in prisons – technical enhancements
E.g. length of proceedings in a given court – increasing number of judges,
management reforms
Dissemination of judments
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Recommendation Rec (2002) 13 on the publication and
dissemination in the member states of the text of the ECHR
and of the case-law of the ECtHR
Need to translate all the judgments concerning given state in
the local language
Translation of most important „foreign” judgments
Preparation of summaries and digests of case-law
Dissemination of the text of the Convention
Dissemination of judgments to specific state organs (e.g.
courts responsible for a given violation)
Coordination of efforts with other state organs (e.g. schools
for police, judiciary, judicial councils, municipal administration)
Trainings on human rights
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Recommendation Rec(2004)4 on the European Convention on
Human Rights in university education and professional training
Trainings as a way to enforce specific judgments:
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Traning to specific professional groups which may violate
human rights:
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E.g. police officers, prison guards, secret services’ officers, soldiers,
prosecutors
Trainings to professional groups which should incorporate
human rights into their practice:
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E.g. Kauczor v. Poland (quasi-pilot judgment) – training to judges and
prosecutors on pre-trial detention standards
Attorneys, legal advisors, legal draftsmen
Role of state academies, universities and NGOs
Best practices
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Comprehensive legislative act regulating enforcement of judgments (Italy,
Ukraine)
Preparation of the annual report on enforcement of judgments presented
to the Parliament (e.g. Netherlands)
Possibility to claim redress from different state agencies for compensation
paid to victim (Italy, France)
Publication of summaries of judgment in the official journal of the state
(Ukraine)
Existence of detailed procedure on dissemination of judgments (France)
Website of the government agent with detailed information on state of
implementation of judgments (Slovakia)
Inter-ministerial team dealing with enforcement of judgments, including
pilot judgments (Poland)
Judicial enforcement of ECtHR
judgments
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Change of interpretation of certain domestic provisions
following the judgment of the ECtHR (indirect effect)
e.g. in cases concerning freedom of speech vs. privacy
Direct reliance on the provisions of the ECtHR – in case
domestic provision is missing (direct effect of the ECHR)
 e.g. Polish Supreme Court decision in Mandugequi – reliance
on Soering v. UK
Using the ECtHR case-law in the jurisprudence of the
constitutional courts (source of interpretation of
constitutional provisions)
Constitutional dialogue
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e.g. at resolution of pilot judgments in Broniowski case and
Hutten-Czapska case
Proceedings before the Committee of
Ministers
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Rules of the Committee of Ministers for the supervision
of the execution of judgments and of the terms of friendly
settlements (10 May 2006)
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Special human rights meetings, control intervals
Interim resolutions and final resolutions
Crisis vs. strenthening of role of Committee of Ministers
Participation of victims and NGOs:
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The Committee of Ministers shall consider any communication from the injured party with regard
to payment of the just satisfaction or the taking of individual measures (Rule 9 Section 1)
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The Committee of Ministers shall be entitled to consider any communication from nongovernmental organisations, as well as national institutions for the promotion and protection of
human rights, with regard to the execution of judgments under Article 46, paragraph 2, of the
Convention (Rule 9 Section 2).
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Bringing such communications to the attention of the Committee of Ministers
Cases pending before the Committee of
Ministers as of 31 December 2009
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Armenia
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Azerbaijan
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13 leading cases
3 repetitive cases
Georgia
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8 leading cases
7 clone or repetitive cases
19 leading cases
6 repetitive cases
By comparison: Ukraine:
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37 leading cases
491 repetitive cases
Protocol No. 14 – new measures for the
Committee of Ministers and the ECtHR
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Article 46 (3) – request for interpretation by majority of 2/3
when „execution of a final judgment is hindered by a problem of
interpretation of the judgment”
Article 46 (4) and (5) – new procedure when the state „refuses
to abide by a final judgment in a case to which it is a party”
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Formal notice
2/3 majority decision by the Committee of Ministers
ECHR finding a violation of Article 46 (1) of the Convention + Grand
Chamber
The Committee of Ministers – consideration of measures to be taken
(others than suspension of voting rights)
Up to now – Verein gegen Tierfabriken (No. 2) – once again
finding a violation
Possible role for NGOs as regards
enforcement of judgments
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Monitoring the implementation of the CoE soft law (recommendations of
the Committee of Ministers)
Pushing on state authorities to make institutional reforms securing more
effective enforcement
Raising awareness among local politicians – member of the Parliamentary
Assembly of CoE as regards problems with implementation
Communications to the Committee of Ministers (concerning all important
cases)
Monitoring of the enforcement efforts by a given state (as well as
proceedings before CM)
Warning on the need to implement „third party” judgments
Promotion of judgments among media, judiciary and other relevant
professions
Leading scholarship in the field
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JURISTRAS project
 http://www.juristras.eliamep.gr/
Robert Blackburn, Jorg Polakiewicz (eds.) Fundamental Rights In
Europe:The ECHR and Its Member States, 1950-2000, Oxford
University Press 2002
Helen Keller, Alec Stone-Sweet (eds.), A Europe of Rights:The
Impact of the ECHR on National Legal Systems, Oxford
University Press 2008
Giuseppe Martinico, Oreste Pollicino (eds.) The National Judicial
Treatment of the ECHR and EU Laws, Europa Law Publishing,
2010
Anton Burkov’s publications on the impact of the ECHR on
the Russian legal system (also in Russian).
Thank you
Adam Bodnar, Ph.D., LL.M.
Human Rights Chair
Faculty of Law and Administration
Warsaw University
Helsinki Foundation for Human Rights,Warsaw
e-mail: a.bodnar@wpia.uw.edu.pl, a.bodnar@hfhr.org.pl