Change for the Implementation of Judgments of the European Court of Human Rights

EIN Director George Stafford

It is now three years since the European Implementation Network became fully operational. During that time, civil society’s work on the implementation of European Court of Human Rights Judgments has hugely increased. However, it is important to also note how the work of the Council of Europe is developing – and what this means for us.

Strategic Prioritisation of the Council of Europe 

At the start of 2021, the Secretary General of the Council of Europe circulated a strategy document to the Strasbourg delegations. This listed the priorities of the Council of Europe for the next four years, 2021-2024. The number one priority is the implementation of judgments of the European Court of Human Rights.

For everyone working on this issue, this strategic prioritisation is very welcome news.

It is not yet clear exactly what additional activities will happen in practice. However, it seems likely they will include more co-operation projects aimed at promoting implementation through joint events and activities between the Council of Europe and national governments. There is also likely to be an increased focus on implementation during high-level visits.

EIN has contributed to this prioritisation through our mapping of the scale of non-implementation; network members promoting the issue on television (see here, here and here) , in newspapers (see here, and here), and on social media; EIN reporting on overly-optimistic Council of Europe implementation statistics; and briefings to members of the Committee of Ministers about the overall state of implementation.

What this means for civil society

First of all, it is important to welcome the increase in Council of Europe and government activity – and be proud that the work of civil society has contributed to this. However, we also need to recognise the opportunities and risks involved.  

The next four years are likely to be critical for ECtHR implementation. The Council of Europe is likely to increase efforts to meet internal targets of bringing down the number of pending leading cases by a certain amount every year. Governments will be encouraged to submit more and more Action Plans/Reports.

It is therefore a time when many important implementation reforms will be drafted – and many cases will be closed. Members of the network might worry that, without adequate civil society involvement, some reform plans will be insufficient – and cases might be closed prematurely.

It is encouraging that there will be a greater focus on implementation. However, civil society will want to ensure that this focus leads to real changes.  

Looking ahead

We would therefore encourage the network to be particularly active in ECtHR implementation during this time. This will involve responding to important case developments – but also planning ahead. As all EIN members will know, effective work on implementation can take a lot of time. We therefore hope that the likely need for additional implementation work can be taken into account in the drafting of workplans and fundraising proposals for the years ahead. This could include EIN members co-operating in joint bids for large-scale fundraising calls.  

We also hope that our members and partners can increase their impact through promoting implementation work in their own country. I take this opportunity to highlight a recently published EIN guide on Implementation Hubs. This showcases the work of organisations across our network in engaging other groups, in order to make a bigger impact on implementation. We hope that it can serve as a source of inspiration for your activities going forward. As ever, the EIN Secretariat stands ready to assist you in your important work. The increased Council of Europe activity provides a welcome opportunity. We encourage our network to seize it!

Implementation and Covid-19

by George Stafford, EIN Director

EIN Director George Stafford

Covid-19 has placed a significant strain on the human rights community across Europe. With limited resources, NGOs are struggling to react to the virus and all of its consequences. At the same time, Covid-19 has had a serious impact on the implementation monitoring process in Strasbourg.

Below is a summary of the main impacts of the virus so far – and some reflections about what they mean for the implementation of judgments of the European Court of Human Rights.

NGOs stretched thin

Source: shearman.com

The coronavirus has presented European civil society with a huge challenge. The impact of the virus itself has led to very serious human rights situations – such as terrible conditions in prisons, as one example. Meanwhile, the reactions of governments have often constituted threats to human rights in themselves – ranging from containment measures that are not compliant with international standards, to full-blown assaults on the country’s constitutional order. All of this leaves aside the personal challenges of the virus, including family tragedies, ill-health and the closure of offices.

In these circumstances, the commitment shown by many colleagues in maintaining their implementation work has been extraordinary. We know of a number of EIN network members and partners who have been overrun by additional virus-related challenges, but have chosen to address them in addition to their other work (including implementation activities), rather than instead of them.

It is a testament to the passion and professionalism of our network that it has been able to continue its work on ECHR implementation, despite the challenges of the virus. Indeed, this year has seen more Rule 9s than the same period in any previous year. We continue to be inspired by the hard work and dedication of our colleagues from across Europe.

Delays in the implementation monitoring process

Another impact of the coronavirus on our work has been the changes to the June CM/DH meeting. The meeting did not take place in person and there was no oral debate. CM Decisions were issued in only around half of the cases scheduled to be considered, which were those cases where the government agreed with the proposed Decision put forward by the Council of Europe Secretariat. The other half of the cases were postponed to an additional ad hoc meeting scheduled for 1-3 September. The usual September meeting was delayed to 29 September–1 October. EIN repeatedly pushed for this development to be properly communicated to civil society, in advance of the June meeting.

The reasons for the delay which have been provided to us are as follows. It is said that it was impossible to hold the meeting in-person, due to the restrictions on movement and gatherings in France imposed at the time, as well as international travel. Meanwhile, certain member states objected to the meeting being carried out over video call, because of alleged security concerns about the privacy of the communications.

The delay is very unfortunate for those eagerly awaiting Decisions or Resolutions from the Committee of Ministers, requiring important changes to take place. To take one example of many, campaigners for the release of Turkish philanthropist Osman Kavala will have to wait until September for a decision requiring that he be set free, whilst he remains imprisoned on false charges designed to punish him for his human rights activities.

EIN will continue to monitor the situation closely in regard to the postponement of any future meetings. We will call clearly for the CM/DH meeting to take place whenever this is possible, and request that any future delays to be communicated to civil society well in advance of them taking place.

Government reporting delayed

Turning again to CM/DH meetings, we have seen numerous government Action Plans and Action Reports which state that it is not possible for the government concerned to make progress with implementation of a judgment or properly report on it, due to the virus.

There are without doubt many cases where proper activities or reporting have been curtailed by the deadly challenge of Covid-19. It continues to be a huge strain on governments and public servants.

Nevertheless, many of the cases where governments have pointed most strongly to the virus as a reason for inactivity, are those where there has been a failure to take steps to implement the judgment for a very long period of time. In the next briefing to representatives of the Committee of Ministers, EIN will raise this issue and ask the Committee of Ministers to properly examine such explanations when they are given, in the context of each particular case.

There is no way to know how long Covid-19 will continue for and what impact it will eventually have. For the time being, we send our warmest wishes to all of those who have been touched by the virus. We will be happy to respond to any of your enquiries about the impact of the virus on ECHR implementation.

New Council of Europe Webpage on the Implementation Process

The Council of Europe’s Department for the Execution of Judgments has launched a new webpage, to inform NGOs/NHRIs about how to engage with the implementation monitoring process. Previously there was no accessible information published by the Council of Europe about the existence of the Rule 9 system and how it should be used. EIN saw this as a barrier to NGO/NHRI engagement with the process. The new webpage is a direct result of advocacy efforts by the network’s secretariat, which called for this resource.

The webpage provides information about the basic principles of the execution process, tips for drafting submissions, and some guidance on timing. It provides a useful overview on these issues and some informative guidance. It is particularly helpful to have such information on the institution’s website, so that newcomers to the execution process see that their contributions are welcomed and facilitated by the institution. For more extensive information on these topics, we would direct readers to EIN’s quick guide to writing submissions and our Handbook.

The new website also contains an RSS feed that users can sign up to, in order to get updates about cases involving a particular country. If you would like to stay informed about developments in cases relevant to you -which is vital for any engagement with the implementation monitoring process - we encourage you to use this helpful resource.

A note on timings

When it comes to submitting Rule 9s, the question of timing is an important one. It is welcome that the new Council of Europe webpage does address this issue. However, it concentrates only on one aspect of the timing question, which is the timetable for the enhanced procedure.

In our experience, there are four important things to bear in mind when it comes to the timing of NGO submissions.

1) First and most importantly, it is best for NGOs/NHRIs to make their first submission on any type of case is as early as possible. This could either be in response to a government’s first Action Plan, or maybe even before in order highlight the scope of the case and the need for certain reforms. Early submissions will give you the best chance possible to shape the implementation process.

2) Rule 9s should be made on an ongoing basis either in response to government communications (or indeed lack of them) or to draw attention to new developments. Ideally, this monitoring of government activities should carry on independent of the Committee of Ministers schedule.

3) Cases under the standard procedure are not reviewed by the Committee of Ministers (they are instead dealt with by the Department for the Execution of Judgments). For cases under the standard procedure, the CM’s review schedule should not determine the timing of submissions.

4) Cases under the enhanced procedure are reviewed by the Committee of Ministers, which holds meetings to address certain cases on a quarterly basis. If NGOs/NHRIs wish for the submissions about such cases to be taken into account by the Committee of Ministers, the submissions must be sent in six weeks before the meeting in which the relevant case is scheduled to be debated. This will allow for information included in submissions to be taken into consideration by the DEJ when preparing the briefing notes provided to the Committee of Ministers.

The new Council of Europe website currently addresses number (4) of these points. However, it does not address the first three. The EIN secretariat is currently in discussions with the Council of Europe in the hope of addressing this.