EIN contributes to debate on the developing remedial practice of the European Court

Photo credit: George Stafford

On 8 November 2017, the Director of the European Implementation Network (EIN), Kevin Steeves, participated as a panellist in a seminar entitled ‘The Developing Remedial Practice of the European Court of Human Rights’.

The seminar took place in the Palais de l’Europe at the Council of Europe and was organised within the framework of the Human Rights Law Implementation Project. Participants included judges and registry officials of the European Court of Human Rights (ECtHR), representatives of the Directorate General Human Rights and Rule of Law of the Council of Europe (CoE), representatives of CoE member States and civil society organisations, and others.

The event was chaired by Philip Leach, Professor of Human Rights at Middlesex University, and began with a presentation by Alice Donald and Anne-Katrin Speck of the Middlesex University team. Other panellists included: Isabelle Niedlispacher, Government Agent in respect of Belgium and Chair of the Committee of Experts on the System of the European Convention on European Rights (DH-SYSC); Pavlo Pushkar, Head of Division, Department for the Execution of Judgments of the ECtHR; and Robert Spano, Judge of the ECtHR elected in respect of Iceland.

The Middlesex team presented a framework for analysing and debating the question of how far the ECtHR should recommend or even prescribe certain measures to be taken by CoE member States after the finding of a violation of the European Convention on Human Rights (ECHR). The question is very relevant to EIN and others who work to support implementation of human rights judgments. Due in particular to member States’ failures to implement ECtHR judgments, the Court has experienced some degree of shifting from its cautious, purely declaratory approach to remedies to sometimes indicating specific measures for national authorities to undertake, notably non-monetary individual measures and general measures.

The follow-on debate among the seminar participants touched on a number of central themes underpinning the developing remedial practice of the ECtHR. One was the division of labour between the ECtHR and the CoE’s decision-making body, the Committee of Ministers (CM). Given the CM’s responsibility under the ECHR for ensuring implementation of judgments, some participants noted how greater specificity and prescriptiveness in judgments could either positively or negatively affect the CM’s political-level activities – including the monitoring and evaluation of the respective respondent States’ action plans and reports.

Another theme debated was the degree to which the ECtHR should provide remedial indications in the operative part of judgments. For example, there was a general consensus that there were sometimes clear violations that leave no possible doubt as to what should be done and judgments should reflect this fact, such as in cases related to property restitution or the release of individuals from detention and prison.

In his presentation, the EIN Director addressed the developing remedial practice of the ECtHR from the perspective of the work of the Network and the role of civil society organisations in Europe today. Among other points noted, the added clarity that stems from greater specificity and prescriptiveness is positive overall, especially in comparison to the normal levels of ambiguity, uncertainty and resistance that surround many cases of non-implementation. Non-governmental organisations and other civil society organisations can apply more pressure through the added leverage that is provided and this allows them to engage more actively and constructively in support of the promotion and protection of human rights.

The well-attended seminar was important and useful for EIN and others on a number of fronts including advocacy on implementation. While judgments with specific and prescriptive measures are still only a small fraction of the ECtHR’s case law, they represent an interesting trend for further analysis and monitoring in the years to come. This is particularly in relation to recent ECtHR decisions such as Burmych v. Ukraine. Here the Court decided that the issue of granting specific relief to victims in this and related cases affecting many thousands of individuals who are owed long-standing pension-related payments must instead to be addressed and specified in the context of the execution process that is supervised by the CM and not the ECtHR.