Reflections on the 2016 Annual Report of the Committee of Ministers on the Execution of ECtHR Judgments

Başak Çali, EIN President 

The Committee of Ministers published its 10th Annual Report on the Execution of the Judgments of the European Court of Human Rights (the Report) in March 2017. These annual publications are a crucial source of information for members of civil society and those researching human rights implementation in Europe. They give us, in particular, a comparative understanding of the state of implementation in two ways: 1) how the implementation record of all member States stands compared to previous years; 2) how member States’ implementation efforts stand in comparison to one and another.

These two dimensions are crucial for devising effective civil advocacy tactics that advocate for implementation of judgments. They are also a powerful way of scrutinising the effectiveness of the supervisory system for the execution of human rights judgments as a whole with the view to improvement. In contrast, the Report helps us less to understand how different fields of human rights judgment implementation compare and which thematic areas overall are subject to major delays in implementation. This gives us a lesser view of what all this means for the health of the Convention system of human rights protections as a whole. In what follows, I offer a review of the descriptive statistics to show: what this means for the state of implementation in 2016; what areas of concern exist; and how information provision can be improved in future reports.

Year 2016 in a comparative perspective

There are a number of positive signals in the Report with respect to absolute improvements in the number of ‘closed’ cases (cases that are deemed to be fully implemented by the Committee of Ministers). In particular, the number of non-implemented cases dropped just under the daunting figure of 10,000 to 9,944. It is also significant to note that the Committee of Ministers was also able to close a higher number of cases under enhanced supervision than in previous years, suggesting that placing cases under enhanced supervision could make a beneficial difference.

Beyond the improvements in the absolute number of cases closed, however, the statistics advise caution. New cases added to the docket of supervision increased from 1,285 to 1,352 in 2016. Given the significant increase in the caseload of the European Court of Human Rights in 2017 (in particular, from Turkey), the number of cases transmitted to the Committee of Ministers from the Court can only increase further this year and beyond. The number of leading cases that reveal systemic and structural problems and thus require long-term scrutiny have also not dropped in any significant manner. The Report notes a small drop to 1,493 in 2016 from 1,555 previously. The Report further notes a delay in payment of compensation in 2016, an area often hailed as one of the strongest areas of effective implementation.

An important area of concern for civil society in the years to come will be the fate of cases that are placed in standard supervision and the difference this makes to the speed of implementation and the level of scrutiny by the Committee of Ministers. In particular, given that States have been more responsive to implementing cases that are under enhanced supervision, the determination of when a case should be upgraded to this procedure and how civil society should provide input to this process will require important attention. In 2016, only 18 cases were transferred from standard to enhanced supervision out of the 5,950 standard supervision cases. A second area of concern is the Well-Established Case Law (WECL) track of cases, for which the European Court of Human Rights has started to deliver short judgments without any indication as to the kind of measures that need to be taken. From an implementation perspective, the fact that a case involves WECL does not offer any clues as to whether such cases should be subject to standard or enhanced supervision. There is therefore a risk of a lack of attention to what level of scrutiny a case requires for supervision of implementation when it falls under WECL.

Comparing the performance of States in 2016

Page 67 of the Report provides absolute data comparing States’ performance in terms of the number of cases pending for implementation both under standard and enhanced supervision over five or more years. As the Report highlights, and we at the European Implementation Network (EIN) would agree, the implementation of judgments takes time. The particulars of a case and the complexity of the measures that need to be implemented are all relevant considerations in assessing the reasonableness of the steps taken by States over time.

However, cases that are pending for five or more years are cause for special concern. In absolute terms, Russia, Turkey, Ukraine, Moldova, Bulgaria, Croatia, Greece, Italy, Hungary and Azerbaijan are the top 10 countries with standard supervision cases pending for five or more years. In enhanced supervision, the ranking is not dissimilar. Russia, Turkey, Ukraine, Moldova, Bulgaria, Italy, Azerbaijan, Romania, Greece and Serbia have the highest number of enhanced cases pending for implementation for five or more years. Future Reports need, however, to provide the number of pending cases for five or more years both in terms of the percentage of those cases and their thematic coverage. For example, looking at the statistics provided, we do not get a clear understanding of why some cases take over five years to implement or whether there are discerning patterns for this degree of delayed implementation.

What is missing in the Report? A comprehensive thematic approach to human rights judgment implementation

The Report successfully presents a picture of the state of implementation with regard to absolute improvements in numbers and over time. What the Report does not explain, however, is what the level of implementation as a whole means for the health of the Convention system, and the core human rights values it stands for. The only related information in this regard about the types of cases facing implementation challenges is on page 63 under the title of ‘main themes under enhanced supervision’. Here we see the respective percentages under the themes: actions of security forces; conditions of detention - medical care; lawfulness of detention and related issues; right to life - protection against ill-treatment: specific situations; length of judicial proceedings; execution of domestic judicial decisions; other interferences with property rights; home / private and family life; lawfulness of expulsion or extradition; and freedom of assembly and association. However, 22 per cent of cases under enhanced supervision are shown as ‘other.’

This presentation does offer us some clues as to the thematic areas where implementation challenges or indifference are most concentrated in any given year. It does not, however, offer an account of which thematic areas have proven harder to implement over time. Undoubtedly, given the range of human rights issues that are brought forward by the European Court of Human Rights cases, it is difficult to present a comprehensive thematic view of where the most significant challenges of implementation lie. Future Annual reports may be able to overcome this problem by identifying which thematic areas remain unimplemented for five or more years. What is more, a comprehensive thematic reporting can enable us to see how a multiple number of States are faring on the same human rights issue, be it lawfulness of expulsion or extradition or domestic violence.

Linking delays, challenges and push-backs in implementation with thematic areas would allow more concerted effort not only on the part of civil society, but also on the part of Committee of Ministers and the Council of Europe organs. Human rights implementation is more than absolute number of cases closed.

The role of civil society in the implementation process

The Report notes the establishment of EIN and recognises the important role of civil society in facilitating implementation and acting as a public watchdog to monitor cases of non-implementation and under-implementation. The Committee of Ministers now publicises the cases that it will review in its quarterly sessions ahead of time. This is an important window of opportunity for civil society to offer critical input. EIN will continue to monitor these cases and enable domestic NGOs to offer meaningful input through quarterly briefings. In gearing up to the final stocktaking of the “Interlaken-Izmir-Brighton-Brussels Process” in 2019, EIN will also continue to monitor the effectiveness of the supervision system and promote increased NGO input into the system.

Compared to 2015, the Report notes that NGO interventions under Rule 9 increased from 80 in 2015 to 90 in 2016. Considering the number of cases that need to be implemented hovers around 10,000, this figure can clearly be improved. EIN will thus seek to realise this objective and also focus on the content of the Rule 9 Submissions of our Network members in 2017 and beyond.