Implementation of ECHR judgments – have we reached a crisis point?- Lucy Moxham

In recent years direct challenges to the authority of the Court within a handful of member states have also become more explicit and vocal” and “the Convention system crumbles when one member state, and then the next, and then the next, cherry pick which judgments to implement.

So said Nils Muižnieks, the Council of Europe’s Commissioner for Human Rights, last year. This raises the question of whether the Convention system is facing an implementation crisis and what more might be done by the Committee of Ministers, the regional body responsible for supervising the execution of judgments of the European Court of Human Rights.

Last month, the Bingham Centre for the Rule of Law and Leicester Law School convened a public event that asked an expert panel to consider these issues. Speakers included Merris Amos (Queen Mary University London); Dr Ed Bates (Leicester Law School); Eleanor Hourigan (Deputy Permanent Representative, UK Delegation to the Council of Europe); Nuala Mole (The AIRE Centre); and Prof Philip Leach (EHRAC, Middlesex University London and the European Implementation Network). Murray Hunt (Legal Adviser to the UK Joint Committee on Human Rights and incoming Director of the Bingham Centre) chaired the event.

While a detailed summary of the presentations is available on the Bingham Centre website, this post highlights some of the headline points from the conversation.

First, while the UK’s ongoing failure to implement certain groups of Strasbourg judgments is well-known (for example, those relating to the blanket ban on prisoner voting), there are also several broader threats to implementation in the UK. Merris Amos highlighted a number of challenges including government proposals to repeal the Human Rights Act 1998 and introduce a new British Bill of Rights (in its 2017 manifesto the Conservative Party says it will not do this while the Brexit process is underway); and the government’s recent announcement of its intention to “protect our Armed Forces from persistent legal claims by introducing a presumption to derogate from the European Convention on Human Rights (ECHR) in future conflicts”. Amos concluded that, while in some states non-implementation may be a question of a lack of resources, the UK grapples almost solely with political obstacles. She suggested that we need a new conversation in the UK about the place and role of international human rights law and international supervision.

Second, looking at the wider picture of implementation across the Council of Europe, there are grounds for serious concern. While the message from the Committee of Minister’s 2016 Annual Report is relatively positive (a record number of cases were closed in 2016), a different picture emerges when we look more closely at the statistics. In particular, Dr Ed Bates noted that the problem of prolonged implementation is a ground for serious concern with a growing number of leading cases pending for more than five years (in 2016, almost 50% of pending leading cases fell within this category).

Bates also referred to recent statements of concern from senior Council of Europe figures about a growing threat of resistance and direct challenges to the authority of the Court. For example, Thorbjørn Jagland, the Council of Europe’s Secretary General, recently stated, “There have always been those who challenge the authority of international institutions, but these forces have slipped into the mainstream – and they are gaining traction. When we join the dots, the danger to our Convention system begins to feel very real indeed”.

Third, as noted by both Nils Muižnieks and Thorbjørn Jagland, there have been a number of recent examples of member states directly challenging the Court’s authority and there is real concern about the risk of contagion from such anti-Strasbourg sentiment. For example, Prof Philip Leach noted that in 2015, Russia passed a law enabling the Russian Constitutional Court to declare the rulings of international bodies “impossible to implement”. He noted two examples of this new law being used in practice – in the Anchugov and Gladkov prisoner voting case and in the Yukos oil company case (as discussed here and here). The question then is how the Committee of Ministers and the Convention system should handle these threats of open conflict from some member states.

Fourth, one solution to non-implementation might be to look again at the Article 46(4) infringement procedure, introduced by Protocol No. 14 to the Convention. Nuala Mole highlighted the untapped potential of the infringement procedure, which has never been used – she suggested this may be because it is perceived as a “nuclear option”. Mole suggested that it might be seen as less targeted criticism if a number of cases were grouped together and referred back to the Court, and if this were to happen more or less automatically under certain conditions. Practically speaking, however, she noted that it is not clear from the text of the Convention what is required in order to trigger Article 46(4) – Is it enough that a state has failed to implement a judgment or must there be an explicit refusal to do so? The Explanatory Report to Protocol No. 14 sheds some light here. It explains (at para. 98) that

The Parties to the Convention have a collective duty to preserve the Court’s authority – and thus the Convention system’s credibility and effectiveness – whenever the Committee of Ministers considers that one of the High Contracting Parties refuses, expressly or through its conduct, to comply with the Court’s final judgment in a case to which it is party [emphasis added].

This theme was also picked up by Leach who noted that the Committee of Ministers has raised the possibility of invoking the infringement procedure for the first time in respect of Azerbaijan’s repeated refusal to release opposition politician, Ilgar Mammadov. However, this then raises the question, what are the consequences of an adverse judgment under Article 46(4), except issuing another judgment?

Finally, despite improvements in transparency and access to information about the execution process and the progression of individual cases, there have been calls for greater openness and accessibility. Against this backdrop, it was helpful to hear from Eleanor Hourigan who provided a government perspective “from the inside” on the execution process and the role of the Committee of Ministers (she spoke in her personal capacity). She cautioned against looking at the execution process in isolation from the Court and suggested implementation should be viewed in the context of a feedback loop which goes both ways – increased and better-quality implementation means fewer and less difficult cases coming to the Court; equally, well-reasoned, clear judgments were generally easier to implement. Hourigan also offered some reflections on what works well and some of the challenges. For example, she noted that the process can lead to the same cases being discussed at DH (human rights) meetings (to the exclusion of other deserving cases) which, in general, is inefficient and should be avoided. Hourigan also questioned whether it is helpful to focus on individual cases having very different natures or whether including a thematic focus would offer an opportunity to share best practice on particular issues. During the event, other speakers also put forward suggestions for reform.

Failing to implement judgments of the European Court of Human Rights in a timely and effective manner undermines the rule of law, and poses significant challenges for the credibility and legitimacy of the Convention system.

Since the event last month, the PACE Committee on Legal Affairs and Human Rights has published an important contribution to this conversation with its 9th report on the implementation of judgments, in which the Assembly “deplores the delays in implementing the Court’s judgments, the lack of political will to implement judgments on the part of certain States Parties and all the attempts made to undermine the Court’s authority and the Convention-based human rights protection system”.

Since 2010, there have been four major conferences on the future of the Court and Convention system (Interlaken, Izmir, Brighton and Brussels). Most recently, the Brussels Declaration 2015 emphasised the need for additional measures to guarantee full and effective supervision of execution of judgments by the Committee of Ministers. As the final evaluation of this reform process is due for 2019, the time is right to ask why, in spite of numerous efforts at reform, the Committee is still facing major challenges with implementation and what this means for the longer-term future of the Convention system.

The full summary of the Bingham Centre event is available on the Centre’s website.

Lucy Moxham is an Associate Senior Research Fellow at the Bingham Centre for the Rule of Law.