The Involvement of the European Court of Human Rights in the Implementation of its Judgments: Recent Developments under Article 46 ECHR
| DOI | 10.1177/016934411403200303 |
| Author | Linos-Alexander Sicilianos |
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Subject Matter | Part A: Article |
Netherlands Qu arterly of Human Ri ghts, Vol. 32/3, 235–262, 2014.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 235
PART A: ARTICLES
THE INVOLVEMENT OF THE EUROPEAN
COURT OF HUMAN RIGHTS IN
THE IMPLEMENTATION OF ITS
JUDGMENTS: RECENT DEVELOPMENTS
UNDER ARTICLE46 ECHR
L-A S*
Abstract
Over the last decade the Court has been progressively involved in the execution of its
judgments. e traditional approach, according to which the judgments of the Court
are only of a declaratory nature and the Committee of Ministers has an exclusive
competence to supervise their execution, does not correspond to recent practice. e
Court has repeatedly recommended or e ven prescribed general or individual measures
in the framework not only of pilot or quasi-pilot judgments , but also of “ordinary” ones.
It is uncontestable that the Committee of Ministers bears the primary responsibility
in the eld of execution. Nevertheless, its powers are not exclusive. e Court has a
complementary competence in this respect. e relevant case l aw has a solid legal basis
in the Convention, as well as in instruments recently adopted by the Committee of
Ministers. However, when indicating execution meas ures it is necessary for the Court to
maintain and respect the institutional ba lance provided in the Convention and to leave,
as a matter of principle , a more or less wide margin of appreciation to States.
Keywords: Committee of Ministers; European Court of Human Rights; execution;
execution measures; judg ments
Mots-clés: C omité des ministres; Cour européenne des d roits de l’homme; exécution;
mesures d’exécut ion; arrêts
1. BACKGROUND
Over the last decade the C ourt has been progressively involved in the implementation
of its own judgments. is important trend constitutes a de parture from the t raditional
* Judge at the Europea n Court of Human Rig hts, Associate Member, Instit ut de droit international.
Linos-Alexander Sicilianos
236 Intersentia
literal interpretation of Article46 para. 2 of the European Convention on Human
Rights, according to which the European Court of Human Rights did not seem to
have any role to play in relation to the execution of its judgments.1 e Commit tee of
Ministers was considered to be the only responsible organ of the Council of Europe
in this respect. Undoubtedly, the practice of the Committee of Ministers has been
extensive and its methods of work have been continually developed far beyond the
expectations of the dra ers of Article46 para. 2 so as to cope with contemporary
realities and to ma ximize the impact of the Convention at the national le vel.2
Nevertheless, since t he establishment of the “new Court” and the entr y into force
of Protocol No. 11, this clear “division of work” has begun to change. Despite its
restricted role in the Convention system, con ned to the election of judges of the
Court (Article 22 ECHR), the Parliamentary Assembly of the Cou ncil of Europe has
been progressively involved in the execution of t he Court’s judgments, exercising a sort
of “parliamentary control ” over the relevant activities of the C ommittee of Ministers.3
Furthermore, Protocol No. 14 has amended Ar ticle46 by giving a particu lar role to the
Court in the exec ution process.4 In parallel, a closer look at the case law of the Cou rt
during the last decade revea ls that the traditional institut ional equilibrium, provided
for in the Convention, has gradual ly changed. Today, more t han 160 judgments of the
Court explicit ly rely on Article46 of the Convention in order to indicate the individua l
and/or general measures to be ta ken by the respondent State in the execution process.
e Cour t’s backlog and the necessity to deal more e ciently w ith systemic problems
which produce numerous repetitive cases constitute important factors in explaining
this development. e density of such a practice seems to put into question the
traditional “separation of powers” between the judiciary and the “executive” and to
contribute to a “jurisd ictionalization” of the execution process.5
1 According to this provision: “ e nal judgment of the Cour t shall be tr ansmitted to t he Committee
of Ministers, which shall super vise its execution”. See also, European Cour t of Human Rights,
Seminar back ground paper, “Implementation of the judgments of t he European Court of Human
Rights: a shared judicial responsibility?”, .int/Documents/Seminar_background_
paper_2014_ENG .pdf>, p.2.
2 For a critical a nalysis of the releva nt recent activities of t he Committee of Min isters see E. Lambe rt
Abdelgawad, “L’exécution des arrêts de la Cour européenne des droits de l’homme (2010)”, RTDH,
Vol. 21, No. 88, 2011, pp. 939–958, especially pp. 940–951; E. La mbert Abdelgawad, “L’exécution des
arrêts de la Cour européenne des droits de l’homme (2011)”, RTDH, Vol. 23, No. 92, 2012, pp. 861–
886, especia lly pp. 862–871; and A.C. Fortas, La surveillance de l’exécution des arrêts et décisions
des Cours europé enne et interaméricaine d es droits de l’hom me, esis, University Panthéon-As sas
(Paris-II) (2013) 181 and following. For an over view of such activ ities in 2013 see Superv ision of the
Execution of Ju dgments and Deci sions of the European Cou rt of Human Rights, 7th Annual Repor t of
the Committee of Mini sters 2013, Council of Europe , 2014.
3 See A. Drzemczewski, “ e Parliamentary Assembly’s involvement in the supervision of the
judgments of the Str asbourg Court” (2010) 28(2) Netherland s Quarterly of Human Rig hts, 164–178.
4 See Article4 6, paras 3–5. See a lso below n 99 and the releva nt text.
5 Such “jurisdictionalization” already exists in the Inter-American human rights system. In the
absence of a superv isory organ ana logous to the Committee of Ministers, t he Inter-American
Court (hereina er “IACtHR”) has taken this task upon itself by indic ating a wide varie ty of
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