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Home EJIL Analysis Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?

Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?

Published on April 28, 2017        Author: 

Slow, partial or sometimes even non-implementation of judgments of the European Court of Human Rights is the Achilles heel of the European Convention system. The latest annual report of the Council of Europe’s Committee of Ministers attests to some positive trends — a record number of cases closed in a single year and a decrease in the number of pending cases revealing systemic or structural problems — yet still 9,944 judgments remain unimplemented. While this is the first time since 2010 that the figure has dipped below 10,000, it remains a substantial caseload for the Committee of Ministers, the body formally tasked with monitoring implementation.

How, then, to tackle the problem? A thought-provoking contribution to this debate has been made by Kanstantsin Dzehtsiarou and Fiona de Londras in their article, ‘Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights’.

Infringement proceedings under Article 46(4) of the Convention were introduced by Protocol No. 14 to the Convention in order to provide a means of increasing pressure on obstructive states short of the extreme sanction of suspension or expulsion. This — as yet unused — mechanism empowers the Committee of Ministers to refer a state back before the Court if it refuses to implement a judgment.

Dzehtsiarou and de Londras argue that invoking Article 46(4) would be ‘futile and counterproductive’ because, among other reasons, it risks overburdening the Court (specifically its Grand Chamber, which would consider any referrals) and further delaying implementation while proceedings are pending. Moreover, they venture, infringement proceedings would do nothing to address the root causes of non-execution and could provoke a backlash by impugned states, potentially damaging both the effectiveness and legitimacy of the Convention system.

Root causes

The causes of non-execution are identified as falling into two categories: ‘principled’ and ‘dilatory’ non-execution. ‘Principled’ non-execution, the authors suggest, occurs (rarely) when states resist execution because of ‘deep-seated politico-philosophical disagreements with the Court’s interpretation of a particular provision, or with the concept of international supervision per se’. The UK’s protracted resistance to implementing judgments requiring reform of the blanket ban on the right of convicted prisoners to vote is presented as a paradigmatic example of principled non-execution.

‘Dilatory’ non-execution, on the other hand, covers a much broader category of cases in which there is no dispute as to principle but rather ‘problematic attitudinal and/or organisational resistance’ to implementation and failure to organise the organs of the state in an ‘effective, accountable, and rights-respecting way’. Azerbaijan is identified as a quintessentially dilatory state. This category is, I submit, overly broad to have explanatory force since it includes a spectrum of cases from wilful and persistent failure (or refusal) to implement through to slow or partial implementation which may be attributable to a state’s lack of capacity or resources and/or the sheer complexity of the measures required. The term dilatory implies a more casual approach to implementation than warranted by the outright obstructiveness and manipulation of the Strasbourg system evinced by the Azerbaijani authorities in case after case.

I wish in particular, however, to take issue with the notion of ‘principled’ non-execution identified by Dzehtsiarou and de Londras — and to suggest that the questionable nature of both categories means that their caution about the potential use of infringement proceedings is overstated.

‘Principled’ non-execution – wrong in principle

The authors acknowledge that the mere fact that non-execution emanates from principle (as they see it) ‘does not rid it of its deeply problematic nature’. I would go further and argue, first, that the concept of principled non-execution is unhelpful as an explanatory category and, secondly, that it risks dignifying behaviour which is severely and insouciantly corrosive of respect for the Convention system.

On the first point, Dzehtsiarou and de Londras appear to overlook the emerging consensus in empirically-informed academic debate which argues that states are not unitary actors when it comes to the implementation of international human rights norms. To be sure, executives are the principal interlocutors of supranational human rights bodies. Yet research informed by the disciplines of international law, international relations and political science (for example, here and here) reveals that states are, in reality, collections of actors which, through their relative strengths and interactions, both collaborative and competitive, determine whether, and to what extent, implementation occurs. If we wish to understand the causes of slow, partial or non-implementation, this insight is crucial — and points to the conclusion that states, as such, are incapable of reaching a stable, ‘principled’ view of whether a judgment is unreasonable to the extent that it should not be implemented.

To take prisoner voting as an example, while a backbench parliamentary vote defied the Strasbourg judgments, and successive UK governments have failed (without definitively refusing) to implement them, the majority report of the cross-party parliamentary committee formed to scrutinise draft legislative proposals advocated implementation — and proposed a specific remedy. The Joint Committee on Human Rights has also repeatedly called for implementation (as far back as 2006 (paras 1.40–1.42) and as recently as 2015 (paras 3.15-3.26)). Organisations including Her Majesty’s Inspectorate of Prisons, the Prison Governors’ Association, the crime reduction charity Nacro and a range of other civil society and faith groups have called for at least some convicted prisoners to be enfranchised in keeping with the judgments.

In such instances, in which the domestic forces ranged against implementation have thus far prevailed over pro-implementation actors — but are not monolithic — can the protracted failure to implement be labelled as ‘principled’, as opposed to simply the outcome of political bargaining at a particular point in time? Let us not forget the many judgments in the Court’s history that provoked controversy at the time, even though the principles they enshrined later gained wide acceptance (such as those challenging the criminalisation of homosexual acts and inhuman and degrading interrogation techniques in Northern Ireland).

Moreover, how — within a system of 47 states at uneven levels of democratic development — are we to distinguish behaviour which is truly ‘principled’ from that which is opportunistic? Are only certain states capable of acting on principle, and if so, which ones? The authors appear to acknowledge the difficulties implied by these questions when they observe that the law which permits Russia’s Constitutional Court to declare rulings from international human rights bodies impossible to implement in Russia due to their incompatibility with the Constitution is intended to ‘provide the appearance of a principled non-execution’ (my emphasis).

Parochialism

On the second point, the dictionary definition of the term ‘principled’ is ‘acting in accordance with morality and showing recognition of right and wrong’. Thus, it is incapable of having a pejorative meaning. To be clear, Dzehtsiarou and de Londras do not advocate non-execution on the basis of principled disagreement. Yet the mere use of this term inescapably lends such behaviour legitimacy, even if it is acknowledged to have negative consequences for other states and for the Convention system (as the UK’s stance on prisoner voting undoubtedly has).

Unsurprisingly, when the notion of principled non-execution surfaced in the context of inter-governmental discussion about reform of the Convention system, it was comprehensively rejected since it would ‘involve problems of incompatibility with the principle of the rule of law’ (see here, para 42). This reminds us of the damage done by parochially developed notions of ‘principled’ resistance when transposed to the international level. Defiance of the Court’s adjudicatory authority ignores the collective value of Convention standards, enriched by the Court’s case law, which binds states to a body of law reflecting common European standards. There is a consequent obligation on states to constrain their own power in the interests of strengthening the system overall, since the legitimacy of domestic political institutions, severally and collectively, depends upon that outcome.

Infringement proceedings – misplaced caution?

To return to the issue of infringement proceedings, the practical difficulty and potential consequences of using the mechanism do, indeed, require careful consideration. Yet the hesitancy of Dzehtsiarou and de Londras is at odds with calls for the mechanism to be used — and made easier to use — by non-government organisations (see here, here and here), judges of the Court (see here, p. 148) and the Parliamentary Assembly of the Council of Europe (see here, para 49; and here, para 1.1).

The Committee of Ministers has for the first time raised the possibility of invoking Article 46(4) in respect of Azerbaijan’s protracted refusal to release opposition leader Ilgar Mammadov who has served four years of a seven year sentence following his politically-motivated prosecution for criticising corrupt officials. The Director of the Human Rights Directorate of the Council of Europe has lent his weight to the idea, while the Council of Europe’s Commissioner for Human Rights, Nils Muižnieks, stated at the recent launch of the European Implementation Network that using the infringement procedure would ‘send a very strong signal that Azerbaijan is beyond the pale’, adding that he was ‘pleased that the temperature at the Committee of Ministers is rising’ on the Mammadov case. It is indeed hard to imagine a more egregious — as opposed to merely dilatory — instance of refusal to comply for which Article 46(4) was designed.

Certainly, the mechanism is no panacea for the problem of non-implementation, since it is intended for use only in ‘exceptional circumstances’ (para. 100). Other solutions must be found, such as greater transparency and accessibility to civil society at the Committee of Ministers and the creation of an independent expert advisory group to support its work (as argued here).

Yet the efficacy of the infringement procedure can scarcely be assessed unless and until it is used. Moreover, the risk of provoking accusations of illegitimacy is surely mitigated by the fact that the 47 Council of Europe member states themselves introduced this weapon into the Committee of Minsters’ armoury (see here, para. 98), recognising the collective duty on states to ‘preserve the Court’s authority — and thus the Convention system’s credibility and effectiveness’ in cases where a state, expressly or through its conduct, refuses to comply with a judgment of the Court.

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5 Responses

  1. Ed Bates

    Much food for thou here, thank you, especially on how we may approach ‘principled resistance’.
    I guess another Achilles heel of the system is that it is indeed one of ‘collective enforcement’ (see Preamble) and relies on the peer pressure States generate. So, if there becomes a type of silent pact amongst the States to not to properly live up to the ideal of collective enforcement, then the system will start to look very fragile. There may be a parallel as regards the failure of uninterested cases to resort inter-state cases when there is a general human rights interest at stake?
    Ed Bates.

  2. Ed Bates

    With a General Election soon to be held in the UK, it may be worth adding that this will be another election held in circumstances incompatible with Hirst judgment (prisoner voting).
    So, one may expect many more such applications to Strasbourg after June 8th. Will the Court change its approach to handling them, or, as I would expect, hold that this is now within the Committee of Ministers’ domain. (Question: has the UK ever actually properly complied with the order made by the Court in Greens and MT to bring forward legislative proposals? The Draft Bill (connected to the Committee with you refer to) was never actually voted on in Parliament, which has never considered the matter since the Joint Committee’s Report.

  3. Dapo Akande Dapo Akande

    While I can see that the expression “principled” non-execution is problematic (in that it might suggest that there are good reasons for the failure to implement the judgment), I do think that when one is assessing the usefulness of the non-implementation procedure there is merit in the distinction drawn between two types of failure to implement a judgment.

    It seems to me that in the event of a “non-implementation” of a decision of a judicial body, further judicial proceedings are only useful in order to confirm that there has indeed been such non-implementation. Such a further decision may clarify not only the original decision, but also clarify that the actions taken do not suffice in implementing the prior judicial decision. Such clarification is useful where there is some dispute as to the meaning or scope of the prior judgment, or some question as to whether the actions of the state amount to implementation. However, where the state bound by the prior decision does not contest either the meaning of the decision, nor does it contest it’s failure to implement the decision, then further judicial procedures do not really advance matters. They only confirm what is already known, and, since the second judgment is no more binding than the first, one might argue that the further procedures are wasteful.

    Nonetheless, in the particular case of the ECHR one might argue that the utility of the further judicial procedures under Art. 46(4) are not to be considered in isolation but rather are to be regarded as what opens the door to what one would hope would be more significant political action under Art. 46(5) by the Committee of Ministers. After all, judicial organs cannot enforce their own decisions. Enforcement is always the job of other actors. In this case, all that the Art. 46(4) procedure can do is to confirm that there is indeed a case for enforcement.

  4. Jakob Cornides Jakob Cornides

    I politely disagree, and am wondering why contributors here are not somewhat more critical of the ECtHR.

    Certainly the non-respect, or non-implementation of its judgments has a potential of weakening the Court. But is the deeper root, or at least one of the deeper roots, of the problem not the Court’s well-documented (and thus undeniable) penchant for judicial activism?

    In that context, it could even be helpful to establish an explicit right for State Parties to express their “principled disagreement” to a judgment – be it addressed to themselves or to another Party.
    They could submit a formal protest against a judgment in which they elaborate in detail on the reasons why they find it wrong.

    I trust that such a possibility, if it existed, would not often be used: States would not endanger their own reputation by putting in careless protests. On the other hand, it would become much less defendable for them to simply not implement a judgment they have not protested against. And at the same time, such a system would create somewhat of a pressure on the Court to abstain from activist interpretations of the Convention, and to offer sound arguments for its decisions.

  5. Mark Villiger

    Dear Jakob Cornides

    Sorry not to have replied earlier to your contribution – and sorry to have to completely disagree with what you say.

    You write about the Court’s penchant for judicial activism – which is undeniable, as you write, because it is well-documented.

    Sorry, but I don’t know any work which has looked at the Court’s case-law as a whole to be able to come to such a conclusion. In fact, this would be a very difficult task. Just to give you an example: Since 1959 the Court has pronounced over 10’000 judgments alone on Article 6 (finding a violation).

    How in all the world would you, would any one, be able to conclude that the Court has a penchant for being judicially active in respect of Article 6? Not to mention all the other provisions of the Convention.