An assessment of NGO impact on ECtHR judgment implementation
/Implementing judgments of the European Court of Human Rights: An assessment of the impact achieved through NGO engagement with the Council of Europe’s judgment execution process in three cases on the rights of LGBTI persons
By Nigel Warner, ILGA Europe and EIN Bureau member
This article is a summary. The full version of the paper can be found here.
Since 2009 the Council of Europe (CoE) has made specific provision for engagement by NGOs in its process for ensuring implementation of judgments of the European Court of Human Rights (ECtHR). The purpose of this paper is to illustrate the impact that such engagement can achieve with a view to encouraging further NGO involvement.
Many judgments of the ECtHR are implemented by the respondent state without a need for engagement by NGOs with the judgment execution process.[1] However, in a significant proportion a respondent state may be slow – or even resist – putting in place the measures required. Where there is resistance to implementation, the CoE has limited opportunities for obtaining the information it needs to verify that provided by the national authorities. NGOs have a critical role to play in providing this information. The potential for impact is indeed very high, provided they stay the course until implementation is finally achieved.
This paper illustrates the impact achieved through NGO involvement by analysing developments in the implementation of three cases in the field of sexual orientation and gender identity (SOGI), which address three distinct types of violation:
- denial of the right to peaceful assembly (GENDERDOC-M v. Moldova - “the Moldovan freedom of assembly case”);
- failure of the authorities to conduct effective investigations into possible hate crimes (M.C. & A.C. v. Romania - “the Romanian hate crime case”);
- and the absence of effective procedures governing gender reassignment treatment (L v. Lithuania – “the Lithuanian trans rights case”).
Different degrees of impact are assessed to arise at four distinct levels within the course of the judgment execution process, from the lowest level of impact (1) to the highest level (4), as follows:
“Recognition by the Committee of Ministers (CM)[2]”: The extent to which the NGO’s recommendations and/or evidence are acknowledged implicitly or explicitly by the CoE, in a Decision of the CM, or by the Department for the Execution of Judgments (DEJ) in communications with the respondent state.
“Engagement”: An increased willingness by the authorities to consult with NGOs making submissions to the CoE.
“Adoption”: The extent to which an NGO persuades the respondent state to adopt its recommendations in the Action Plan.
“Execution”: The extent to which an NGO contributes to ensuring that the Action Plan measures are implemented effectively. This is of course much the most significant level of impact. NGOs can support implementation by making available their expertise to the authorities.
[1] Recent SOGI cases implemented without a need for NGO engagement include: A.P., Garçon & Nicot v. France (79885/12) (requirement for trans persons to undergo sterilisation to obtain legal gender recognition in violation of Article 8); Orlandi and others v. Italy (26431/12) and Oliari v. Italy (18766/11) (legal recognition of same-sex partners); Pajic v. Croatia 68453/13 (discrimination in obtaining a residence permit on the ground of family reunification); Taddeucci & McCall v. Italy (51362/09) (discrimination in obtaining a residence permit on the ground of family reunification); Vallianatos & Mylonas v. Greece 29381/09 (legal recognition of same-sex partners).
[2] When a case succeeds before the ECtHR it is passed over to the Committee of Ministers, whose responsibility it is to ensure that the respondent state complies with its obligation to implement the judgment. The CM does this through a supervisory mechanism – the execution of judgments process – which allows, when needed, for the application of political pressure on the respondent state. The CM is supported in this work by the Department for the Execution of Judgments (DEJ).