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The Execution of Judgments of the European and Inter-American Courts of Human Rights

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Abstract

In this paper, we are going to present the status of an ongoing research on the execution of judgments by the European and Inter-American Courts of Human Rights (hereinafter ECtHR and IACtHR). The Inter-American Human Rights Protection System was in large part built on the model of the European System, in particular in what concerns the composition of its institutions. The procedure before both systems was also quite similar until the European System abolished the Commission in the reform introduced by Protocol no. 11 and thus eliminated this filtering mechanism. Despite these similarities, the Courts' powers to award reparations and the executions procedure were conceived considerably different, which makes a comparison particularly valuable. Before we can dedicate ourselves to the question of how judgments are executed (section 2), we shall first have to conduct a brief analysis of the Courts' reparations practice (section 1).
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The execution of judgments of the European
and Inter-American Courts of Human Rights
A execução das sentenças das Cortes Europeia e Interamericana
de Direitos Humanos
Jan Schneider
Doctorate student at the Faculty of Law
of the Johannes-Gutenberg-Universität Mainz,
Research Assistant at the National Agency for the
Prevention of Torture (Doutorando da Faculdade de
Direito da Universidade Johannes-Gutenberg, Mainz, Alemanha)
jan.schneider@nationale-stelle.de
AbstrAct In this paper, we are going to present the status of an ongoing research
on the execution of judgments by the European and Inter-American Courts of Hu-
man Rights (hereinafter ECtHR and IACtHR). The Inter-American Human Rights
Protection System was in large part built on the model of the European System, in
particular in what concerns the composition of its institutions. The procedure before
both systems was also quite similar until the European System abolished the Com-
mission in the reform introduced by Protocol no. 11 and thus eliminated this lter-
ing mechanism. Despite these similarities, the Courts’ powers to award reparations
and the executions procedure were conceived considerably different, which makes
a comparison particularly valuable. Before we can dedicate ourselves to the ques-
tion of how judgments are executed (section 2), we shall rst have to conduct a brief
analysis of the Courts’ reparations practice (section 1).
Keywords: ecthr; iacthr; execution; reparationS; compariSon.
resumo Neste artigo, vamos apresentar o atual status de uma investigação em curso
sobre a execução de sentenças pelos Tribunais Europeu e Interamericano de Direitos
Humanos (doravante ECtHR e IACtHR). O Sistema de Proteção dos Direitos Hu-
manos Interamericano foi em grande parte construído sobre o modelo do Sistema
Europeu, em particular no que diz respeito à composição de suas instituições. O
processo perante os dois sistemas também foi bastante semelhante até que o Sistema
Europeu aboliu a Comissão no âmbito da reforma introduzida pelo Protocolo nº 11
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e, portanto, eliminando este mecanismo de ltragem. Apesar dessas semelhanças,
os poderes dos Tribunais para reparações de adjudicação e do processo de execução
foram concebidos de maneira consideravelmente diferente, o que torna a compara-
ção entre os dois sistemas algo particularmente valioso. Antes de nos dedicarmos
à questão de como as decisões são executadas (seção 2), primeiramente devemos
realizar uma breve análise das reparações praticadas pelos Tribunais (seção 1).
Palavras-chave: ecthr; iacthr; execução; reparaçõeS; comparação
repArAtion prActice
The European human rights system is governed by the principle of subsidiarity,
i.e., the Court shall only become active when national organs cannot or do not want
to resolve the consequences of violations of the European Convention on Human
Rights (hereinafter ECHR). Article 41 of the ECHR is a clear expression of this
principle. Basically, the Court shall only award compensation in the form of “just
satisfaction” if the responding state’s internal law does not permit full reparation.
The ECHR does not provide it with any further express authority in this area. The
IACtHR, on the other hand, may order much broader sets of measures. Nevertheless,
the constant struggle of the ECtHR against the ood of repetitive applications had it
sail into the uncharted seas of specic reparation orders, an area long known to the
IACtHR.
ECtHR
In most of the ECtHR’s cases, judgments are limited to awarding monetary sat-
isfaction to the applicant, and in general there is not a word to be found on the states’
obligation to take further measures to repair the harm caused, prevent repetition, or
rehabilitate the victim – in short to take any of the actions dened under international
law in case of human rights violations. Nevertheless, states are under an obligation
to provide restitutio in integrum to victims of violations of the ECHR, as has been
underlined by the Court in a number of decisions.1 The fact that this subject still
receives rather limited public attention may principally be explained with the fact
that reparations are dealt with behind closed doors by the Committee of Ministers
(hereinafter Committee), to which every ECtHR decision is transferred to supervise
1 Papamichalopoulos and others v. Greece (Just Satisfaction), ECtHR, no. 14556/89, 31 October 1995,
Series A no. 330-B, para. 34; Scozzari and Giunta v. Italy, ECtHR, nos. 39221/98 et al., 3 July 2000,
Reports 2000-VIII, paras. 249f.; Broniowski v. Poland [GC], ECtHR, no. 31443/96, 22 June 2004,
2004-V, concurring opinion of Judge Zupančič; VgT v. Switzerland (no. 2) [GC], ECtHR, no. 32772/02,
30 June 2009, paras. 85f. All judgments of the ECtHR are available from www.echr.coe.int.
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its execution and evaluate and eventually indicate specic reparation measures to be
adopted by the state. Nonetheless, there is no vivid and creative reparation practice
comparable to the IACtHR in Europe.
The ECHR does not dene “full reparation”. Guided by the principle of
subsidiarity,2 the Court concluded that the states are generally free to choose the
means that are necessary to obtain full reparation for the victims.3 A typical judg-
ment, i.e., the vast majority of cases except pilot judgments and cases where specic
measures have been ordered, thus creates an obligation for the state to achieve a
result (full reparation), but does not impose the means (LAMBERT, 1999, p. 100).
Just satisfaction
As a consequence of the unclear wording of the Convention and its restrictive
interpretation, the Court, having found a violation of the Convention, usually either
states that the judgment in itself is sufcient reparation, or awards monetary com-
pensation as just satisfaction under Article 41 of the ECHR. As the Court’s repara-
tion orders are not comprehensive, the state remains obliged to provide full repara-
tion for all damages as far as they were not covered by these orders (FROWEIN;
PEUKERT, 2009, p. 541; RUEDIN, 2009, p. 193).
Specic Reparation Measures
The repartition of competences under the ECHR, specically the Committee’s
competence for the supervision of judgments, which entails the denition of spe-
cic measures, explains the extensive absence of pronunciations on reparations by
the Court. Consequently, it is a Committee document – the Rules of the Committee
of Ministers for the supervision of the execution of judgments and of the terms of
friendly settlements of 2006 – that contains the only guideline as to what can be ex-
pected of a state in terms of reparations and compliance with a judgment according
to Articles 41 and 46 of the ECHR.
Guided by the main aim to control the growing caseload, the ECtHR started to
expand its remedial jurisprudence since 1995, indicating for the rst time that resti-
tution was the only appropriate way to repair an illegal expropriation, but still leav-
ing the state the possibility to replace restitution by monetary compensation. Finally,
in 2004, the Court for the rst time gave a direct order that could not be replaced by
2 See on this principle: Kudła v. Poland, ECtHR, no. 30210/96, 26 October 2000, 2000-XI, para. 152.
3 M.S.S. v. Belgium and Greece [GC], ECtHR, no. 30696/09, 21 January 2011, para. 398; Papam-
ichalopoulos and others v. Greece (Just Satisfaction), ECtHR, para. 34; Janis, Kay, and Bradley,
European Human Rights Law, p. 834, with reference to Ireland v. United Kingdom (Merits and Just
Satisfaction), ECtHR, no. 5310/71, 18 January 1978, Series A no. 25.
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the payment of a sum of money, ordering a state to release the victim at the earli-
est possible date.4 The Court, in subsequent decisions, recurred to ordering specic
measures of reparation in a variety of ways, although there is no apparent pattern
according to which it selects the cases in which it makes specic orders.
General Reparation Measures
Beyond specic measures, the Court has also begun to order states to adopt
general measures in repetitive cases where it could identify systemic problems un-
derlying a huge number of similar human rights violations. In a pilot judgment the
Court identies the systemic problem in one exemplary case that has been given
priority treatment over other pending cases and indicates to the state what general
measures must be adopted to resolve the situation.
The idea behind the pilot judgment procedure is that the Committee does not
necessarily have an overview of the number of applications the Court receives con-
cerning similar issues and thus cannot easily identify by itself if there are systemic
problems underlying a situation, which is an important information for the execu-
tions procedure (SZKLANNA, 2010, p. 226). It therefore invited the Court in 2004
to indicate systemic problems and the general measures it deems appropriate for the
state to adopt in order to prevent similar violations from recurring.5 The Court em-
braced Resolution Res(2004)3 immediately and issued the rst pilot judgment in the
case of Broniowski v. Poland on 22 June 2004.
No punitive measures are ordered in the judgment if the state fails to comply
within the stipulated deadline. The only consequence with respect of the Court is that
adjourned similar cases will be reopened and the execution of each case will be put
again into the hands of the Committee.6 The pilot judgment procedure was nally for-
malized with the entry into force of Rule 61 of the ECtHR Rules on 21 February 2011.
IACtHR
The American Convention on Human Rights (hereinafter ACHR) provides the
IACtHR with much broader reparation competences than those given to the ECtHR.
Particularly, the IACtHR is not subject to a principle of subsidiarity which would
make its competence depend on the question whether national law allows complete
4 Assanidze v. Georgia [GC], ECtHR, no. 71503/01, 8 April 2004, 2004-II, paras. 198ff., in particular
para. 202., and oper. para. 14(a).
5 Resolution Res(2004)3, adopted by the Committee of Ministers at its 114th Session, 12 May 2004.
Committee documents are available from www.coe.int/cm.
6 E.G. v. Poland (dec.), ECtHR, no. 50425/99, 23 September 2008, para. 28.
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reparation.7 Although Article 63(1) of the ACHR only names three of the ve ways
of reparations known under international law, namely the insurance of enjoyment of
the violated right or freedom, remedies, and fair compensation, the Court makes broad
use of its remedial powers.8 The IACtHR orders reparations under the heads of restora-
tion (“enjoyment of the violated right or freedom”), remedies and compensation.
Restoration
The restorative injunction is described in Article 63(1) of the ACHR as “enjoy-
ment of the right or freedom that was violated”. The Court has to make use of its
restorative powers (“shall rule”), while remedial and compensatory orders depend
on appropriateness.
Restoration mainly consists in the cessation of a continuing human rights viola-
tion and the re-establishment of the victim to the status quo ante. It has been ordered
in particular in the form of immediate liberation9 or the right to appeal a judgment10
in cases of illegal detention or violation of the rules of due process.
Remedy
Remedial measures clearly stand back to restitution and their application is only
alternative. Besides awarding remedies for injuries suffered by the victim because of
the violation, the Court today orders states to grant access to justice, investigate the
facts of the violation, bring perpetrators to court and take other remedial measures
directed at preventing the repetition of similar cases, such as amendments of domes-
tic laws or symbolic measures. Based on Article 2 of the ACHR, the Court orders
legal and judicial measures to ensure non-repetition of similar violations (PASQUA-
LUCCI, 2003, p. 245). Failure to investigate the facts and identify, prosecute and
punish the responsible persons is a recurring fault of the states whose responsibility
for human rights violations has been established by the Court. The Court ordered in
several cases the non-applicability of amnesty laws.11 Other legislative or symbolic
reparation measures are frequently ordered, too.
7 Velásquez Rodríguez v. Honduras (Reparations and Costs), IACtHR, 21 July 1989, Series C no. 7,
para. 30. All IACtHR judgments are available from www.corteidh.or.cr. See also García Ramirez
(2009, p. 130).
8 According to García Ramírez (2009, p. 190) the IACtHR can order at least 30 kinds of reparations.
9 Loayza Tamayo v. Peru (Merits), IACtHR, 17 September 1997, Series C no. 33, para. 84; hereon:
Acevedo (1998).
10 Barreto Leiva v. Venezuela (Merits, Reparations and Costs), IACtHR, 17 November 2009, Series C
no. 206, paras. 128ff.
11 Almonacid-Arellano et al. v. Chile (Merits, Reparations and Costs), IACtHR, 26 September 2006,
Series C no. 154, paras. 152f.
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Compensation
Economic loss, which comprises the immediate reduction of economic pos-
sessions (damnum emergens) and the future reduction of possessions or economic
possibilities, including lost salaries and other income (lucrum cessans), is awarded
under the concept of pecuniary (also called material) damages, compensation for the
moral consequences of the human rights violation as non-pecuniary (or immaterial)
damages (GARCÍA RAMÍREZ, 2009, p. 145).12
If necessary, the ensuing topic under the Court’s scrutiny are consequential dam-
ages. These damages comprehend any deterioration of patrimony or belongings of the
victim or its relatives or any other costs incurred in direct consequence of the viola-
tion. Consequential damages cannot be estimated but must be proven.13 Non-pecuni-
ary or moral damages are reparation for all consequences of human rights violations
that do not have a commercial value. Such damages may include both the suffering
and distress caused to the direct victims and their next of kin, and the impairment
of values that are highly signicant to them, as well as other sufferings, of a non-
pecuniary nature, related to the conditions of existence of the victim or their family.14
Litigation expenses are not part of the compensation for the victims but “must
be granted directly to the person or organization that represented the victim”.15
execution procedures
Judgments of both human rights Courts in principle have to be executed by the
state without further intervention by any international organ.16 The systems rely inso-
far on the principle of good will, common to public international law.17 While in Eu-
rope the Committee of Ministers was appointed as the monitoring body, the designa-
tion of competences in the phase of execution is so ambiguous in the Americas that it
has even been challenged by a state. In practice, however, the role of the IACtHR is
predominant. We shall now examine the differences between the political execution
system of the Council of Europe and the judicial procedure under the ACHR.
12 Aloeboetoe et al. v. Suriname (Reparations and Costs), IACtHR, 10 September 1993, Series C no.
15, para. 50.
13 Radilla-Pacheco v. Mexico (Merits, Reparations and Costs), IACtHR, 23 November 2009, Series C
no. 209, para. 369.
14 “Street Children” (Villagrán-Morales et al.) v. Guatemala (Reparations and Costs), IACtHR, 26
May 2005, Series C no. 77, para. 84, cited in “Las Dos Erres” Massacre v. Guatemala (Merits,
Reparations and Costs), IACtHR, 24 November 2009, Series C no. 211, para. 275, fn. 276.
15 “Cotton Field” v. Mexico (Merits, Reparations and Costs), IACtHR, 16 November 2009, Series C
no. 205, para. 594.
16 Article 46(1) of the ECHR and Article 68(1) of the ACHR.
17 Hereon: Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) (Judgment),
ICJ, 13 July 2009, ICJ Reports 2009, p. 213, p. 267 indicating further sources.
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EuRopE
The ECHR, unlike the ACHR, contains a clear assignation of the supervisory
competence to the Committee of Ministers in Article 46. Nevertheless, almost all
organs of the Council of Europe play a role in the monitoring, the most important
ones being the Court and the Parliamentary Assembly.
The Council of Ministers
The Committee is the Council of Europe’s decision-making body (DE VEL,
1995). It consists of the ministers of foreign affairs of all member states or their
representatives, which in general are the country’s permanent representatives to the
Council of Europe. The Committee is not a judicial body but a political one. It ac-
complishes its human rights-related duties in special human rights meetings (DH/
HR). In its day to day business, the Committee is supported by the Execution Depart-
ment of the Secretariat of the Council of Europe. It is a collegiate organ in which the
states sit together as peers. This also applies to the human rights meetings where the
state that has failed to observe its obligations under the ECHR participates as a full
member even in the sessions concerning itself. The concept of peer review presup-
poses that, in the spirit of Article 1(a) of the Statute of the Council of Europe, states
are generally willing to comply with the Court’s judgments (RUEDIN, 2009, p. 7).
In such a situation, the peer states help the failing member to implement the neces-
sary reparation measures and resolve disputes on a collective basis. Should a mem-
ber be unwilling to implement a judgment, the others could mount political pressure
and thus push it towards compliance without having to recur to ofcial means of
force such as the suspension of the member from the Council.
Due to the high overall number of cases pending execution – 10,689 at the end
of 2011, 1,337 of which were leading cases, the rest repetitive ones – (COMMITTEE
OF MINISTERS, 2012, p. 34), the Committee focuses its work on the leading cases,
in which the adoption of general measures usually entails the execution of several
other clone cases and thus signicantly reduces the number of pending cases.
Procedure
Once a judgment of the Court has become nal, it is transmitted to the Com-
mittee which inscribes it on its agenda for DH/HR meetings.18 Cases are then treated
according to their pertinence. The basic rules for the Committee’s monitoring proce-
dure date from 2006, an extensive reforms package having been adopted in 2010 in
line with the reforms decided at the Interlaken Conference of 2010 wherein the States
called the CM to pay greater respect to the priorities each case requires (DIRECTO-
18 Article 46 of the ECHR, Rule 3 of the CM Rules for the Supervision of the Execution of Judgments.
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RATE GENERAL OF HUMAN RIGHTS AND LEGAL AFFAIRS, 2010; MOW-
BRAY IR, 2010, p. 519-528).19 The Committee adopted a twin-track approach to su-
pervision, sorting cases according to their importance into a standard or an enhanced
supervision category.20 Thus, judgments requiring urgent individual measures, pilot
judgments, judgments identifying major structural or complex problems, or interstate
cases shall be treated under the enhanced procedure. The enhanced procedure may
also be proposed by member states or the Secretariat in other specic cases.21
The applicant does not directly participate in the supervision process, but may
send communications of any kind during the supervision phase to the Committee in
order to inform it about the state of execution of the judgment. Non-Governmental
Organizations or national institutions have a broader possibility to make submissions
on every aspect related to the execution of a judgment.22 Apart from this possibility,
they may not participate in the Committee’s sessions either, as the deliberations are
generally held in private.
Action plans or reports are the basis of the new working methods. Under either
of the two supervision modalities, the Committee relies principally on the informa-
tion provided by the state.23 The Committee requires submission of such documents
within six months after a judgment has become nal.24 An action plan is “[a] plan
setting out the measures the respondent State intends to take to implement a judg-
ment of the Court, including an indicative timetable.”25 Upon culmination of the
state’s efforts, it submits an action report, which has been dened as “[a] report by
the respondent State setting out all the measures taken to implement a judgment of
the European Court of Human Rights, and/or an explanation of why no measures, or
no further measures, are necessary.”26
The Committee’s activity under the standard procedure is limited to the con-
rmation of reception of these documents.27 In case an action report is presented,
the state applies for closure of the supervision process at the next DH/HR meeting
19 Extract of decisions taken during 1100th CM DH meeting - Item e.
20 No. 6 of CM/Inf(2010)37 “Supervision of the execution of judgments and decisions of the European
Court of Human Rights: implementation of the Interlaken Action Plan – Modalities for a twin-track
supervision system”, 6 September 2010.
21 Nos. 8 and 9 of CM/Inf(2010)37 (supra fn. 28) and no. 10 of CM/Inf(2010)45 “Supervision of the
execution of judgments and decisions of the European Court of Human Rights: implementation of
the Interlaken Action Plan – Outstanding issues concerning the practical modalities of implementa-
tion of the new twin track supervision system”, 6 September 2010.
22 Rule 9 of the CM Rules for the Supervision of the Execution of Judgments.
23 Rule 6 of the CM Rules for the Supervision of the Execution of Judgments.
24 No. 3 of CM/Inf(2010)37 (supra fn. 28).
25 Appendix I no. 5 of CM/Inf(2010)37 (supra fn. 28).
26 Appendix I no. 7 of CM/Inf(2010)37 (supra fn. 28).
27 No. 12 of CM/Inf(2010)37 (supra fn. 28).
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or within six months from the presentation of the report. In case an action plan is
presented, more complex activity has to be developed by the Council of Europe’s
organs: The Execution Department of the Secretary will make a preliminary evalua-
tion of the plan and the measures proposed therein, before the Committee, at the next
DH/HR meeting or no later than six months after submission of the plan, accepts the
plan and invites the state to keep it updated on the measures adopted in conformity
with the plan. Once the state considers to have adopted all measures, it presents a
nal action report and requests the closure of the case.28 If a case is transferred to
enhanced supervision, the Execution Department is working more closely with the
state to adopt the measures required, and in particular provides assistance in the
preparation and/or implementation of action plans, expertise assistance as regards
the type of measures envisaged, and bilateral/multilateral cooperation programmes
(e.g. seminars, round-tables) in case of complex and substantive issues.29 The Com-
mittee would, however, not debate the case at each DH/HR meeting but only if it is
worthwhile to present developments in the case or outline shortcomings to the pub-
lic. Both supervision methods are not supposed to be exclusive but shall rather be
applied in a exible way, depending on the progress in the specic case. Enhanced
supervision should thus be envisaged in cases where the state does not comply with
its obligation to submit an action plan or if there are differences of opinion between
the state and the Department of Execution of the Secretariat General. It might serve
as a rst signal that the Committee is considering the case with higher priority and
might consider discussion of the case in a future meeting particularly if slow imple-
mentation of action plans persists.30
The CM supervises execution under three topics: payment of just satisfaction,
general measures and individual measures.
Just Satisfaction
The ECHR does not contain a norm similar to Article 68(2) of the ACHR that
stipulates that compensatory damages are to be executed according to the states’ na-
tional proceedings concerning judgments against the state. Compensatory orders under
the ECHR are purely international and it is up to the states to determine the procedure
of compliance. Consequently, applicants in Europe do not necessarily have an estab-
lished procedure to claim just satisfaction awarded by the Court from the state.
In the 2010 Working Methods, the Committee has mostly relinquished control
of the payment of just satisfaction and placed it into the hands of the applicants. Ap-
28 Nos. 16f of CM/Inf(2010)37 (supra fn. 28).
29 No. 20 of CM/Inf(2010)37 (supra fn. 28).
30 No. 11 of CM/Inf(2010)28rev; nos. 24ff of CM/Inf(2010)37 (supra fn. 28).
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plicants are henceforth informed by the Court in letters accompanying the judgment
that it is their responsibility to contest information submitted by the state to the Com-
mittee concerning payment of just satisfaction (COMMITTEE OF MINISTERS,
2011, p. 19). It is up to the applicant to verify the information submitted by the state,
because the Execution Department’s activity is limited to registering and publishing
payment notices on the Council of Europe’s website.31 The applicant has two months
to contest the payment. Beyond this term they are supposed to have accepted the
payment and the issue will be closed (COMMITTEE OF MINISTERS, 2011, p. 19).
As set out in no. 11 of appendix II to CM/Inf(2010)37, the Committee nevertheless
reserves the right to reopen cases “if necessary”. Although payment of just satisfac-
tion should be the easiest form of reparation to be complied with, the Committee’s
Annual Report on Execution for 2010 (2011, p. 49) indicates that payments were
made on time only in 28% of all judgments pending execution (a decrease from 37%
in 2009) and in 13% of all judgments after the deadline. The number of cases pend-
ing for control of more than six months has increased by 20% from 29% in 2009 to
35% in 2010.
The supervision of execution of individual and general measures is followed
more closely by the Committee, as the Court does not usually indicate which measures
are to be adopted by the state. It is therefore principally the Committee’s task to decide
whether the state has fullled the obligations emanating from the Court’s judgments.
Individual Measures
We have seen the scope of what may be required as individual reparation from
the reparation practices of the IACtHR. Nonetheless, due to the prevalence of the
principle of subsidiarity in Europe, the European human rights organs usually do not
impose specic measures on the states. The Committee therefore is not in a position
to dene specic measures and acts very cautiously on the supervising stage. If,
however, monetary compensation awarded is insufcient or inappropriate to entirely
remedy the violation, it insists that the state take further measures. It has received
support in making such requests to the states by the Court, that, as we have seen, has
begun to require the adoption of specic measures by the states. The further the Court
extends this practice, the more will the Committee’s work be facilitated by reducing
the states’ leeway to determine how to discharge their obligation to provide restitu-
tio in integrum. The Committee’s supervisory responsibilities will consequently be
reduced to discussing only measures within the leeway determined by the Court and
spare it from general discussion over whether certain measures are required or not.
31 http://www.coe.int/t/dghl/monitoring/execution/Themes/Satisfaction_equitable/SE_EN.asp.
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Individual measures are of much less importance to the European organs than
they are in Latin America. Symbolic measures have never been ordered. We can only
speculate whether this is caused by a general reluctance of the European organs or
whether due to cultural differences monetary reparation plays a much more impor-
tant role, replacing other more symbolic acts.
General Measures.
While individual measures ensure relief in the specic case, general measures are
paramount to prevent the recurrence of similar cases and are an important instrument
in the European System’s ght against suffocation. It is therefore in this area that Court
and Committee are most effectively exerting pressure on the states. Systemic problems
are nowadays being tackled under the pilot judgment procedure; but also in cases that
were not decided in this way, the adoption of general measures is of great concern to
the Committee. Typical general measures are legislative modications, adaptations in
the domestic courts’ interpretation of the laws, allocation of funds to improve the func-
tioning of the public or judicial administration, training of public servants etc. Most of
these measures require complex processes and political discussions, postponing their
adoption and extending the Committee’s supervisory activities in time.
According to information available from the Committee, the execution rate of
general measures ordered by the Court in the framework of the pilot judgment proce-
dure has been satisfactory, with all but one decision having been implemented within
the timeframe established (COMMITTEE OF MINISTERS, 2012, p. 10). The huge
number of cases resulting from the Chechen war, in which the Court has found un-
lawful killings, the disappearing of persons and other severe violations, and in al-
most all of which the state had failed to establish a proper investigation of the facts,
is a good example that the pilot judgment procedure in fact is not applied to all cases
presenting massive violations and obvious systemic dysfunctions (LEACH, 2011).
Instruments
The Committee may make use of several instruments during the monitoring
phase, particularly interim and nal resolutions. Interim resolutions, according to
Rule 16 of the CM Rules for the Supervision of the Execution of Judgments, serve
“notably in order to provide information on the state of progress of the execution or,
where appropriate, to express concern and/or to make suggestions with respect to the
execution”. Final resolutions, according to Rule 17 of the CM Rules for the Super-
vision of the Execution of Judgments, formally nish the Committee’s monitoring.
The Committee makes use of interim resolutions to give public notice of ad-
vances and shortcomings in the execution of judgments, thus encouraging the state to
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continue its efforts on outstanding issues. In case of recalcitrant states, interim resolu-
tions may also be used to threaten with further measures, particularly suspension from
the Council according to Article 8 of the Statute of the CoE. This threat usually comes
accompanied by a call to the other members to take all measures against the state as
they deem appropriate.32 Only after just satisfaction has been paid or sufcient other
individual measures have been taken, is the case deleted from the Committee’s agenda
by way of a nal resolution concluding that the Committee has exercised its functions
under Article 46(2) of the ECHR. Resolutions are adopted by a two-thirds majority of
all members on the Committee, including the affected state.33
Infringement Proceedings
Protocol no. 14 has introduced two new instruments for the Committee: a re-
quest for interpretation and an infringement procedure in case of non-execution of a
judgment.34 Both procedures shall have an extraordinary character. Consequently, the
Committee may launch them only if two-thirds of its members are in support. This is
consistent given that the aim of Protocol no. 14 is to resolve the problem of the Court’s
caseload, not add new cases to it. In the rst case, the Committee may, “if [it] considers
that supervision is hindered by a problem of interpretation, refer the case to the Court
for a ruling on the question of interpretation”. The particularity of the new request for
interpretation in the execution phase is that, unlike the request for interpretation a party
to the case may lodge under Rule 79 of the Rules of the ECtHR, the Committee’s com-
petence is not subject to temporal limitation. Interpretation shall facilitate supervision
by nally settling differences between the state and the Committee as to the obligations
arising from the judgment. It shall explicitly not be used to evaluate measures already
taken by the state (DOCUMENTATION, 2005, p. 100).
In the second case, upon serving the recalcitrant state a formal notice as a last
warning, the Committee may “refer to the Court the question whether that Party has
failed to full its obligation under paragraph 1”. This possibility was introduced as
an answer to the cases where states consistently refuse to implement a judgment and,
hitherto, the only possibility available to the Committee was suspension or exclu-
sion from the Council – an undesired consequence given its exclusive character. The
infringement proceeding, which is held before the Grand Chamber,35 shall cause
additional publicity to the case and thus press the state to implement the judgment.
32 Cfr. Loizidou v. Turkey, CM, 15318/89, 26 June 2001, ResDH(2001)80; Ilaşcu and others v. Mol-
dova and Russia, CM, 48787/99, 12 July 2007, CM/ResDH(2007)106. All CM resolutions are avail-
able from HUDOC at www.echr.coe.int.
33 Article 20(c) of the Statute of the Council of Europe.
34 Article 46(3)–(5) of the ECHR.
35 Article 31(b) of the ECHR.
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The member states assumed that the mere existence and the threat of applying the
procedure should be sufcient to have states comply with their obligations (DOM-
CUMENTATION, 2005, p. 100).
Neither of the two proceedings has so far been applied, so that their effective-
ness remains to be seen.
Expulsion from the Council of Europe.
The Committee’s last remedy against states that constantly deny to execute
judgments is suspension or expulsion according to Article 8 of the Statute of the
CoE, which states that the Committee may suspend any member state that has seri-
ously violated the principles of the Council from being represented on the Council
and ask it to withdraw in the terms of Article 7 of the Statute of the Council of Eu-
rope. If the member state concerned does not withdraw by itself, the Committee may,
as an ultima ratio, expel the member from the Council.
Article 8 has never been applied, but was at issue within the context of the
Greek coup d’état in 1967, but the Greek Government preceded its exclusion from
the Council by denouncing the Statute and the Convention and withdrawing (GOV-
ERNMENT OF GREECE, 1970). In Loizidou v. Turkey, the Committee indirectly
threatened Turkey with expulsion, declaring “the Committee’s resolve to ensure,
with all means available to the Organisation, Turkey’s compliance with its obliga-
tions under this judgment”.36
Recommendations.
On a general level, the Committee can issue recommendations to the member
states on how better implementation of the Court’s judgments should be ensured.37
These recommendations do not have binding force, nonetheless the Committee fre-
quently refers to them in resolutions concerning specic cases. According to the
Committee, these recommendations may have positive effects on the development
of the issue they address in the states and serve as a basis for bilateral relations
maintained between the Department of Execution and the states (COMMITTEE OF
MINISTERS, 2012, p. 28).
Non-formalized Measures.
On a lower scale, the Committee has also acted through non-ofcial means,
such as communications by its President to the respondent state. This has the ad-
36 Loizidou v. Turkey, CM, 15318/89, 26 June 2001, ResDH(2001)80.
37 Article 15(b) of the Statute of the CoE. Recommendations are available from https://www.coe.int/t/
dghl/monitoring/execution/Documents/CMRec_en.asp.
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vantage that issues can be addressed informally on a bilateral level, without raising
public attention, so that the ground for viable solutions can be probed or the par-
ticular determination of the Committee be underlined.38 Applying other means than
resolutions also bears the advantage that the Committee can react quickly to specic
problems or positive aspects in the execution process. In such cases, a simple deci-
sion can be adopted in the DH/HR meeting, accompanied by the subsequent issue of
a press release.39 The presentation of the status of pending cases on the website of the
Department of Execution is another way to make the execution process more trans-
parent.40 The publication of the DH/HR meetings’ annotated agendas which contain
information not cast into resolutions, information received by the state (action plans,
action reports) and by the party, reports elaborated by the Department of Execution,
as well as summaries of the current status of execution for each case makes it easy
for the interested public, press and the party to quickly get an overview of the pro-
gress of each case or group of cases. Additionally, each year in April, since 2006, the
Committee publishes an Annual Report.
The Court
The Court does not have, apart from the aforementioned applications by the
Committee under Article 46(3)–(5) of the ECHR, an original competence to review
cases on the execution stage for failure to execute them.41 The question persists
whether in cases where the violation continues after a judgment has been handed
down because no or insufcient individual measures have been adopted, the situa-
tion may be brought before the Court again in a new application. This depends on
whether, according to Article 35(2)(b) of the ECHR, an application “is substantially
the same as a matter that has already been examined by the Court […]”.
In VgT v. Switzerland (no. 2), the Committee had ofcially terminated its super-
vision of the case satisfying itself with the mere reopening of domestic procedures
instead of awaiting the outcome. As the domestic court maintained the decision un-
der attack, the applicant brought the case again to Strasbourg. The Court admitted
the case holding that it had to receive the case as it was originating in facts that had
occurred after the Committee had adopted a nal resolution because otherwise there
would be no opportunity to scrutinize such facts under the Convention.42
It may be concluded that the Court assumes competence ratione materiae for
cases presenting continuing violations.
38 Cfr. Loizidou v. Turkey, CM, 15318/89, 24 July 2000, DH (2000) 105.
39 Information Document CM/Inf(2006)9 revised 3, no. III.2.
40 http://www.coe.int/t/dghl/monitoring/execution/default_en.asp.
41 See VgT v. Switzerland (no. 2), ECtHR, no. 32772/02, 4 October 2007, para. 43.
42 Ibid., para. 67.
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The situation is different when a state does not implement general measures.
These situations may give rise to high numbers of parallel similar applications by
different applicants in the same situation as the original applicant. As these situations
are never exactly the same, they are not likely to fall under Article 35(2)(b) of the
ECHR, but must be treated by the Court. The measure of choice introduced for these
cases is the pilot judgment procedure that has already been explained supra.
The Parliamentary Assembly
The Parliamentary Assembly is a relatively new actor in the eld of monitoring
which can intervene in a variety of ways in the execution process. It can pose oral
or written questions to the Committee either on specic cases or in relation to more
general matters such as the execution of judgments in a certain country or area or the
state of compliance with certain measures such as the payment of just satisfaction.
Being composed of members of the national parliaments,43 it can also make use of
the national parliaments’ possibilities to control their respective governments.44 The
Assembly has designated the Committee on Legal Affairs and Human Rights (AS/
Jur) to monitor the implementation of judgments and report to the Assembly when
considered appropriate.45 AS/Jur’s activity has resulted in a number of reports, reso-
lutions and recommendations, which focus on specic states where the most serious
execution-related problems persist (DRZEMCZEWSKI, 2010, p. 170).46 Its means
of action are in situ visits and a continuing dialogue with the parliaments there on
the problems encountered, and cooperation with national parliaments.47 Although
the Parliamentary Assembly’s intervention in the monitoring process was not taken
seriously by the states at the beginning and was met with rejection by the Committee
as an interference with its dominion (JURGENS, 2010, pp. 844f.), a viable practice
of support for monitoring has evolved. It is based on the one hand on the fact that the
Assembly is tackling the issue of non-execution on the parliamentary level, while
the Committee is working on the governmental level, and that the deputies in the
Assembly, due to their liberties as members of parliament, can act with less restric-
tions. Thus, an essential axis of the Assembly’s work is “naming and shaming”, a
practice unthinkable for the diplomats on the Committee.48 But also the inuence
by the rapporteur on the national parliaments either directly or through the national
43 Article 25(a) of the Statute of the Council of Europe.
44 Explanatory Memorandum no. 18ff of the Doc. 8808 - Execution of Judgments of the European
Court of Human Rights.
45 Parliamentary Assembly, Resolution 1268 (2002).
46 See also the Parliamentary Assembly’s homepage at http://assembly.coe.int.
47 No. 10 of Doc. 12455: Implementation of Judgments of the European Court of Human Rights.
48 Ibid., p. 843.
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delegation in the Parliamentary Assembly may (and has) taken execution in several
cases decisive steps forward.49
tHE AmERICAs
As the principle of subsidiarity does not apply on the reparations stage in the
inter-American system, the IACtHR can resolve some of the issues the Committee
of Ministers has to deal with in cooperation with the states during the monitoring
process in the judicial phase, namely determine the reparation modalities and the
beneciaries. Furthermore, the very absence of subsidiarity and the detailed repara-
tion practices by the IACtHR leaves almost no margin of appreciation to the states.
The ACHR, unlike the ECHR, does not provide for a dedicated monitoring
system.50 Article 65 of the ACHR is the only hard-law rule that makes an allusion to
non-compliance. The General Assembly’s obvious lack of interest in the IACtHR’s
reports induced the latter to derive from the ACHR a proper monitoring competence
that, despite having been challenged by Panama, is nowadays a generally accepted
practice and has even been introduced into the Rules of Procedure of the IACtHR.
The supreme organ of the Organization of American States (hereinafter OAS)
is the General Assembly. Unlike the Parliamentary Assembly of the Council of Eu-
rope, the General Assembly is an executive organ that is governed by the “one state
one vote” principle. In order to assure the day-to-day business in periods when the
General Assembly is not in session and to prepare the Assembly’s sessions, the Char-
ter of the OAS has instituted the Permanent Council. The Assembly’s jurisdiction in
the monitoring process derives from the already mentioned Article 65 of the ACHR.
In practice, however, it is not the Assembly itself but the Permanent Council’s Com-
mittee of Juridical and Political Affairs (hereinafter CAJP) that takes notice of the
report and submits a proposal resolution to the Assembly at its following session.
Although the IACtHR, in a variety of annual reports to the Assembly, has men-
tioned cases in which states were not complying with judgments and did not inform
the IACtHR about what plans they had to full their obligations, the Assembly hard-
ly ever commented on the issue. There has never been a political will of the General
Assembly to support the IACtHR. The IACtHR assumed that it had to nd proper
solutions to the issue of non-execution and developed proper strategies. A rst step
was a round of discussions on the effectiveness of the IACtHR’s jurisprudence held
under the presidency of Judge Cançado Trindade. He defended in several articles and
speeches the position that Article 65 of the ACHR should be amended as to contain
a new sentence according to which reports of cases of non-execution that are sub-
49 See examples at ibid., pp. 847ff.
50 Baena-Ricardo et al. v. Panama (Competence), IACtHR, 28 November 2003, Series C no. 104, para. 88.
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mitted by the IACtHR to the Assembly were presented to the CAJP for it to study
the matter and inform the Assembly. This way, permanent supervision of execution
could be assured. The proposal did not nd support in the OAS. Next, the IACtHR
had the possibility to develop in detail the legal grounds of a proper supervisory
function when Panama in 2002 challenged its competence to remain seized of a case
after the judgment on reparations was handed down.51 On 29 June 2005 it adopted
a general resolution on execution wherein it announced to stop requesting informa-
tion on execution from the member states in cases where it decided to apply Article
65 of the ACHR. As long as it was not informed by the state of the full compliance
with the judgment, it would include the case under Article 65 of the ACHR in every
subsequent annual report. Nevertheless, as of October 2012, Article 65 of the ACHR
has not been applied again. In 2007, the IACtHR for the rst time applied the instru-
ment of hearings on monitoring, conducting the rst such private hearing in the case
of Bulacio v. Argentina. It extended the practice to public hearings in 2009 in the
Sawhoyamaxa Indigenous Community v. Paraguay case, applying since then public
and private hearings according to the case.52 In 2010 it then began to join hearings on
different cases per country that present similar problems of execution.
summAry
The subject of execution of judgments, even more so on a comparative level,
is a very complex one, including a variety of actors in the Council of Europe and
the OAS. The increasing case-load of both the ECtHR and the IACtHR also requires
constant review of the procedures under the aspect of effectivity. This article could
therefore not be more than a mere tour de force of the subject. A number of issues
could only be touched upon supercially and require further investigation.
The organizational differences within the Council of Europe and the OAS and
the broader competences of the IACtHR on the reparations stage lead to fundamen-
tally different approaches to reparations as well as to the implementation of judg-
ments by the states. Interestingly, while subsidiarity is paramount to the procedure
before the ECtHR, execution of judgments is much more formalized and has been
put on stronger foots by the authors of the ECHR. The situation is completely op-
posite in the Americas, where the IACtHR was endowed with the competence to
develop a very detailed reparations practice, but no procedure was foreseen to ef-
fectively supervise the implementation of its judgments. A supervisory competence
effectively had to be created by the Court from the ACHR.
51 Baena-Ricardo et al. v. Panama (Competence), IACtHR (supra fn. 68).
52 IACtHR, Annual Report of the Inter-American Court of Human Rights 2009, p. 65.
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It remains to be seen, which approach proves to be more effective. Dealing with
reluctant states might become the litmus test for both systems. The Ukraine crisis in
Europe and dealings with Venezuela in South-America might already be providing
the settings for this test.
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Book
avant-propos de G. Cohen-Jonathan, préface de J. F. Flauss, postface de A. J. Arnaud, Prix de thèse de la Faculté de droit de Strasbourg, Mention spéciale du Prix droits de l'homme de la Société Française pour le Droit International, Ouvrage couronné par le Groupe Européen de Droit Public et honoré d'une subvention de la Maison des Sciences de l'Homme de Strasbourg
Article
Even though the Committee of Ministers of the Council of Europe has primary responsibility to supervise the execution of the judgments of the European Court of Human Rights, by virtue of Article 46(2) of the European Convention on Human Rights, the Parliamentary Assembly has increasingly contributed to the process of implementation of the Strasbourg Court's judgments. Composed of national parliamentarians, the Assembly can put pressure on States parties to the Convention to help ensure - through appropriate national parliamentary oversight procedures and mechanisms - rapid and complete implementation of Strasbourg Court judgments. This important parliamentary dimension should be taken into account when the 2010 Interlaken Declaration and Action Plan are implemented.
Article
In a thoroughly revised second edition that incorporates the major changes made in the procedures and practice of the Inter-American Court. She analyzes all aspects of the Court's advisory jurisdiction, contentious jurisdiction and provisional measures orders through 2011. She also compares the practice and procedure of the Inter-American Court with that of the European Court of Human Rights, the Permanent Court of Justice and the United Nations Human Rights Committee. She evaluates changes in the Rules of Procedure of the Inter-American Court that entered into force on January 1, 2010, and which substantially change the role of the Inter-American Commission in contentious cases before the Court. She also evaluates the challenges and means of State compliance with the Court's innovative reparations orders. Featuring revisions to every chapter to address the major changes, this book will provide an important and updated resource for scholars, practitioners and students of international human rights law.
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  • Committee
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  • De Vel
DE VEL, G. The Committee of Ministers of the Council of Europe. Strasbourg: Council of Europe, 1995.
Interlaken Declaration. In: _______. High Level Conference on the Future of the European Court of Human Rights
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DIRECTORATE GENERAL OF HUMAN RIGHTS AND LEGAL AFFAIRS. Interlaken Declaration. In: _______. High Level Conference on the Future of the European Court of Human Rights. Strasbourg: Council of Europe, 19 February 2010, p. 119–125.
Advocacy before Regional Human Rights Bodies: A Cross- Regional Agenda
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________. Conference: Advocacy before Regional Human Rights Bodies: A Cross- Regional Agenda. American University International Law Review, n. 59, p. 187- 191, 2009.
Note Verbale dated 12 December 1969 from the Government of Greece informing the Secretary General of Greece's denunciation of the Statute and of its withdrawal from the Council of Europe. 2 International Legal Materials, n
  • Government Of Greece
GOVERNMENT OF GREECE. Note Verbale dated 12 December 1969 from the Government of Greece informing the Secretary General of Greece's denunciation of the Statute and of its withdrawal from the Council of Europe. 2 International Legal Materials, n. 9, p. 408-410, 1970. (Herein: Government of Greece, " Note Verbale " ).