Justice Delayed and Justice Denied: Report on the Non-Implementation of European Judgments and the Rule of Law
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The European Implementation Network (EIN) and Democracy Reporting International (DRI) are delighted to present the third edition of our flagship report “Justice Delayed and Justice Denied: Non-Implementation of European Courts’ Judgments and the Rule of Law,” a joint report on the non-implementation of European Court judgments in EU states.
The attacks on fundamental European values in recent years have continued to raise concern for European stakeholders – governments, the media, and citizens alike. The EU has introduced a series of policy measures designed to halt and reverse this phenomenon, ranging from the new annual rule of law review cycle, to targeted measures, such as withholding structural funds from countries with severe infringements of the rule of law.
In 2022, following civil society calls for the EU’s rule of law reporting to take into account the non-implementation of judgments from the two key European courts – the ECtHR and the CJEU (hereafter, “the European Courts”) – the EU Commission has included this type of data in its annual Rule of Law Report. This development allowed the EU to identify longer-term problems with the rule of law across all Member States that had previously been overlooked.
Summary of our findings
A Systemic Rule of Law Problem in the European Union
The non-implementation of European courts' rulings by EU member states, which has long been growing into a systemic problem, is now unequivocally recognised as a rule of law matter. Non-implementation undermines the authority and effectiveness of both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The EU member states are bound by the rulings of these courts. Yet, national authorities fail to make their laws and practices consistent with the European Convention on Human Rights and EU law requirements respectively.
Implementation Delays Lead to Human Rights Infringements
“Behind these statistics are numerous individual stories of people who found relief in Europe’s highest courts, only to realise that, all too often, states do not implement these decisions. Major themes of concern are conditions of detention, police ill-treatment; mental disability rights and psychiatry; LGBTIQ+ rights and discrimination; asylum and migration.”
Significant gains for the upholding of democratic principles and the rule of law provenly result from effectively implementing the European Courts’ rulings. That notwithstanding, governments' responses to the non-implementation crisis fall short of expectations, often ranging from sluggishness in following the European Courts’ guidance to active resistance thereto and extreme attempts to undermine these courts’ authority. These delays in implementing judgments lead to prolonged rule of law and human rights infringements and have far-reaching consequences for individuals who are denied timely justice.
State Compliance Record with the European Court of Human Rights (ECtHR) Judgments
As of January 1 2024, 624 leading ECtHR judgments were awaiting implementation across the EU, slightly up from 616 in 2022 and 602 in 2021. Each of these represents a human rights problem that has not been resolved – and which, therefore, is likely to recur.
Currently, 44% of the leading judgments from the past decade remain unimplemented, compared to 40% in 2022 and 37.5% in 2021. This means that the systemic human rights issues these judgments identify have not yet been resolved; it indicates that national authorities in Europe are not sufficiently active in dealing with a significant proportion of human rights issues identified by the ECtHR.
In 2023, the average length of time leading ECtHR judgments concerning EU states had been pending implementation for was 5 years and 2 months, compared to 5 years and 1 month in 2022 and 4 years and 4 months in 2021. Some cases require extensive reforms that can – and should – take many years to implement. It should, however, be possible to implement the majority of leading judgments in a relatively short period of time. The longer leading judgments have been pending, the greater the concern that implementation is not being carried out.
Bulgaria, Finland, Greece, Hungary, Ireland, Italy, Malta, Poland, Portugal and Romania have leading judgments that have not been implemented for more than five years. In Bulgaria, Cyprus, Hungary, Italy, Malta, Poland, Romania, Slovakia, and Spain, over 50% of the leading judgments rendered against them in the last ten years are yet to be implemented. In Bulgaria and Romania, more than 85 leading judgments are pending implementation.
In 2023, Hungary remained the state with the highest percentage of ECtHR rulings issued in the last ten years that await implementation – 76%. But when we look at the highest absolute number of the same type of judgements, it is Romania, with 115 unimplemented rulings, that leads the count.
Sweden, Luxembourg, Denmark, Estonia are among the top performers in terms of implementation of ECtHR rulings, whereas Finland recorded an impressive progress in clearing its backlog of non-implemented judgments in the course of 2023.
State Compliance Record with the Court of Justice of the European Union (CJEU) Rulings Related to the Rule of Law
Our analysis of state compliance reveals that some EU member states comply with the CJEU rulings only partially – they follow the CJEU guidance to some extent but fall short of achieving full compliance. A significant portion of those rulings have been pending for two years or more. We label those states as "struggling compliers". These include Romania and Hungary, which have 83.33% and 52.6% of rulings partly complied with, respectively. 50% of rulings with respect to Romania have been pending compliance for two years or more. For Hungary, that number is 66%.
For Bulgaria, in 31.8% of cases, compliance has been partial, but 25% of the rulings have not been complied with at all. This results in an overall non-compliance rate of 56.8%. 56% of those pending rulings have been awaiting compliance for two years or more. Similarly to Bulgaria, Poland has failed to fully comply with 50% of the rulings and 75% of those rulings have been pending compliance for two years or more.
We define ‘moderate compliers’ (Portugal, Croatia, Estonia among others) as those who have fully complied with somewhere between 50% and 80% of the rulings. Good compliers (Luxembourg, Germany, France, among others) have complied with over 80% of the rulings. Neither moderate nor good compliers are immune to occasional legislative delays or judicial misgivings, even though it does not occur so routinely as in struggling compliers.
Constitutional courts in ‘struggling complier’ countries have systematically challenged the CJEU's authority and hindered compliance – some openly and some more discreetly. Good complier countries (for example, German and French top courts) have also challenged the primacy of EU law and the CJEU authority, though the challenges have been isolated and non-systematic. The poor record of compliance with the CJEU's rulings related to access to justice, including judicial and prosecutorial independence, remains a major area of concern, alongside those related to asylum and migration.
Other themes involved include general and indiscriminate retention of personal data and authorities' access to such data. Similarly, access to information and the appropriateness of restricting such access invoking national security concerns, has also been an area where states failed to comply with CJEU rulings. Finally, the same is the case for rulings on civil society organisations and academic institutions.
Report recommendations
EIN and DRI set out the following recommendations to the European Commission and to EU institutions:
1. Integration of Implementation Data: The Commission should continue incorporating ECtHR judgment implementation data into its annual Rule of Law Report, and systematically analyse and prominently feature compliance with CJEU rulings.
2. Targeted Recommendations: The Commission should issue specific recommendations to states based on their implementation records of ECtHR and CJEU judgments related to the rule of law, and expand its reports to cover democracy and systemic fundamental rights violations, urging immediate action from states with recurring issues.
3. Utilisation of Enforcement Tools: The Commission should use all available tools, including infringement procedures and financial pressure, to address member states’ failures to implement CJEU judgments, leveraging related ECtHR judgments as additional evidence.
4. Enhanced Monitoring: The Commission should consider closer monitoring of the implementation of CJEU judgments, including preliminary rulings, and explore ways to support national-level mechanisms for their implementation.
5. Prioritisation in EU Discussions: EU institutions should highlight the non-implementation of ECtHR and CJEU judgments as a priority rule of law issue in discussions with member state governments and parliaments.
6. Funding for Implementation Activities: The EU should fund initiatives to enhance the implementation of ECtHR and CJEU judgments, particularly those led by civil society organisations and the Council of Europe.
For more on individual countries’ implementation records, see our implementation country map.
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