The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 2: The Hole in the Roof

Part 1 of this blog post addressed the current narratives concerning the implementation of ECtHR judgments. Part 2 below attempts to set out what the current state of implementation might really be.

Imagine you are told that there is a hole in the roof of your house. You go out to buy the materials to fix it, come home and begin work. However, half-way through the repairs you realise that the hole is far larger than you thought. It turns out that you do not have enough materials to mend it properly.

If we are not careful, this is what is going to happen with the challenge of non-implementation of ECtHR judgments and the response that is made towards it in the next era of the Convention system. The scale of the problem is being underestimated – so there is a serious danger that the response will be insufficient. The scale of non-implementation can be demonstrated by looking at the best metrics available to assess the issue.

Overall judgments vs. Leading judgments

The number of overall pending ECtHR judgments is mostly filled by repetitive cases. In order for these to be closed, justice has to be carried out for the individual applicant in the case. This usually involves the payment of compensation; or perhaps a retrial or proper investigation into the relevant events.

It is vitally important for these individual measures to be carried out and for them to be measured. However, the statistics based on them are not the best indicator of the overall effectiveness of the ECHR system.

If the system is to function effectively, judgments from the Strasbourg Court need to result not just in justice for the individual, but in the legal or practical reforms necessary to ensure that the same violation does not happen again in the society as a whole.

The best way to measure whether such reforms are happening is by looking at statistics on leading cases. As a reminder, leading judgments are those that identify a new significant or systemic problem in a country. Each leading judgment therefore represents a human rights issue that needs resolving – a wider problem that affects a society. If leading judgments are not being closed, that means the underlying human rights issues are not being dealt with. Each unimplemented leading judgment represents an ethical problem for Europe (because of the ongoing violation of human rights); and a practical problem for the Court (because they can lead to repeat applications, which increase the backlog and threaten its ongoing viability).

Therefore, a good way to measure the effectiveness of the ECHR system is by analysing how well states are implementing leading judgments.

Proportion of Leading Cases Implemented 

A useful place to start is the proportion of leading cases from the last ten years that are still pending implementation.

This chart is based on figures of 1208 leading cases implemented, with 987 pending implementation. Figures were obtained using the database Hudoc-EXEC.

As the chart shows, 45% of leading cases from the last ten years remain pending implementation. This is a very worrying figure, but it deserves closer examination.

It is important to bear in mind that in many of these cases there is some progress being made. In certain cases reforms are underway, but the case remains open because the problem at hand is not yet resolved. However, it is equally important to bear in mind that there are many, many other cases where nothing seems to be being done at all. Governments are often failing to address serious and systemic human rights issues. Reforms in these cases are not incomplete: they are non-existent.

It is impossible to know for sure how many pending leading cases fall into each of these two categories. This is because the Council of Europe does not keep data about the number of pending cases where credible reforms have begun. Unlike in the Inter-American and UN systems, there is currently no “grading” of partially implemented cases. However, it is possible to have some indication of the number of cases where little to no progress is being made, by looking at another set of data.

Proportion of pending leading cases over 5 years old

A representative from the Committee of Ministers once told me that some delays in implementation were inevitable: however, in general there should be no excuse for a case to take longer than five years to be executed. There are a minority of cases that do actually require longer. However, for the vast majority, five years should be more than enough time to change a law and/or bring in new practices. If a case stays pending for longer than five years, it may mean that the government is unable or unwilling to carry out the necessary reforms.

As this chart demonstrates, 44% of pending leading cases are now over five years old. Only a minority of these problems require five years to be resolved. For the others, the fact that they are pending may mean that the relevant government is failing to act. These cases reflect the fact that the high number of pending leading judgments are not simply cases of “incomplete reforms”. The majority of them are likely to be cases of “failure to reform”. There are hundreds and hundreds of systemic human rights issues – identified by the ECtHR in leading cases – which are simply not being addressed.

The reaction of many to this is that, whilst it is concerning, it is presumably a result of the poor behaviour of just a few states. Most assume that it reflects problems in some repeat offenders – perhaps Russia, Turkey, Azerbaijan and Ukraine – rather than a failure to implement in the continent as a whole.

This is a misconception. Whilst the non-implementation problem is particularly acute in a few countries, it is by no means limited to them.

Country-by-Country

These figures were obtained using the database Hudoc-EXEC in July 2019. They show a list of 12 Council of Europe member states, selected because they have a notable proportion of their leading cases from the last 10 years still pending, plus a high overall number of leading cases still pending. There are other countries which are of note: this is just a selection of the those with the highest numbers. They demonstrate that the problem is far more widespread than many believe.

The big picture

Given the problems with the statistics, it is impossible to give a straightforward assessment of the state of implementation of ECtHR judgments with any confidence. However, I would cautiously assert the following.

Let’s start with the positives. The ECHR system does a huge amount of good in a huge number of cases (such as freedom of assembly in Moldova; or protections against human trafficking in Cyprus). When it comes to structural problems represented by pending leading cases, the number of these is no longer rising dramatically, as it was in the 2000s. Reforms from the Interlaken Process seem to have prevented non-implementation from rising even more, and this has involved the execution of many hundreds of leading cases. This is a noteworthy achievement.

Nevertheless, we have to accept that the non-implementation of leading cases is around as bad as it was when the Interlaken Process began. This means that it is still at crisis level. Although some changes have been made – including a moderate growth in the Council of Europe’s execution budget and some steps towards greater transparency in the system – the remedies have not yet matched the scale of the problem. Having nearly half of the leading judgments from the last ten years still pending implementation is a very significant issue. This manifests itself in concerning ways.

Many might look to the humanitarian cost of non-implementation as the most shocking aspect. For example, in Greece, ill-treatment and torture carried out by police and coast guard officers has not been resolved, despite the ECtHR first identifying the problem back in 2006. Meanwhile, in Poland women are effectively denied the right to have an abortion, with tragic consequences for a huge number of people – despite the issue first being identified by the ECtHR over seven years ago, in a case involving a victim of rape.

In addition to the humanitarian concerns, many will be concerned that non-implementation is so rife at a time when the rule of law and democratic freedoms are so under threat. The ECHR system was meant to prevent a return to authoritarianism. Yet cases which identify authoritarian tendencies have not led to those tendencies being properly challenged or reversed. Most will think of Russia and Turkey as obvious examples, which is entirely correct. However, the failure to implement cases that might reverse authoritarian tendencies is spread much further than these well-known examples.

For instance, the ECtHR found a clear example of judicial independence being undermined in Hungary, dating from the period of 2011/2012 when the Hungarian legal system was being transformed. The Committee of Ministers requested reforms to protect judicial independence. There is no sign that such changes will take place. In Poland, Croatia and many other states, the ECtHR has identified that defamation is being used as a weapon to silence legitimate public discussion – but nothing is being done to effectively address this. Freedom of assembly is still not properly protected in Ukraine or Bulgaria. There are dozens of other examples that could be pointed to which illustrate this problem. Governments intent on hollowing out public institutions and limiting public debate have been able to avoid the international accountability and responsibilities that the ECHR system was meant to impose.

Shared responsibility

There is not space here to properly explore the steps that could be taken to address the non-implementation issue. Yet, given the scale of the problem, it can be said that the solutions need to be radical. It would not be sufficient to provide another (welcome) funding increase to the hardworking and under-resourced CoE Department for the Execution of judgments.

The implementation of judgments is best driven forward by activity within each particular country. Given this, institutions and funders should consider widespread and substantial support for civil society advocacy work at the national level to implement ECtHR judgments. Journalists could also be trained and informed about the non-implementation issue, how it impacts lives, and how they can bring pressure for change. Additional pressure can be exerted on countries to set up effective parliamentary mechanisms for monitoring ECtHR implementation.

The international mechanisms can also be strengthened. At the moment, the EU’s Rule of Law reviews take little to no account of non-implementation of ECtHR judgments. It is bizarre that, though states have to be a signatory to the ECHR in order to be a member of the EU, they can fail to implement the vast majority of ECtHR judgments against them and face no consequences with the EU. This should change.

At the Council of Europe, the Committee of Ministers could be made publicly accessible, review judgment implementation for more than just 12 days per year, and be given powers to apply more effective sanctions for non-implementation.

Solutions such as these will require a significant investment of time, resources, and political will.

This is why the statistics are important. A large-scale response can only be organised through recognition of a large-scale problem.

Whilst there is generally recognition that the implementation of ECtHR judgments is a problem, there is little recognition of the scale of the problem. The overall message is largely one of “we have made huge leaps forward in addressing this issue, though it still remains in some respects”; rather than “this is a massive problem and our efforts have had only a negligible impact”. Neither of these statements is absolutely true: the system is too complex, and the records too incomplete, to make such sweeping assertions. However, the latter statement is far closer to the truth than the former. We need to come to terms with that and respond accordingly. The hole in the roof is far larger than we thought.