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. Read the rest of this entry…