Strasbourg Observers

Back-up plans in pilot-judgments?

October 25, 2010

The Court has delivered a pilot-judgment last week in the case of Maria Atanasiu and Others v. Romania. In completing the requirements of the pilot-judgment procedure the Court also decided to adjourn consideration of all the applications stemming from the same general problem for eighteen months from the date on which the present judgment becomes final, pending the adoption by the Romanian authorities of measures capable of offering adequate redress to all the persons affected.

As I understand, with the eighteen months limit the Court tries to ensure the access of the applicants to the Court in case the state doesn’t implement the general measures. In that event the Court will restart examining the cases that were adjourned. To my mind, it is nice that the Court is willing to take care of access concerns, but this praxis has some very negative aspects.

To my mind, it does no good to the compliance with the judgments if the Court envisages in the judgment a possibility that the very same judgment will not be complied with, nor it is appropriate to be done in a judgemnt if the time limit and restart of examination is meant as a little threat to speed up the process and make the state to be more alert to the problem.

The Court simply shouldn’t address issues like that in judgments, because such an approach is in contradiction with the idea enshrined in the Article 46 of the Convention where the states have agreed to comply with the judgments.

There is a mechanism established by the Convention for implementation of the judgments. Committee of Ministers is supervising the execution of the judgments. The Committee is assisted by a special department of the Council of Europe’s Secretariat – the Department for the Execution of judgments of the European Court of Human Rights. Also the Directorate General of Human Rights assists the Committee of Ministers in exercising this responsibility under the Convention. In close co-operation with the authorities of the state concerned, the Directorate considers the measures that should be taken to comply with the Court’s judgment. At the Committee of Ministers’ request, the Directorate offers its opinion and advice, which are based on the experience and practice of the Convention bodies.

In accordance with its well-established practice, until the state in question has adopted satisfactory measures, the Committee of Ministers does not adopt a final resolution striking the judgment off its list of cases, and the state continues to be required to provide explanations or to take the necessary action. During the examination of the case, the Committee may take various measures to facilitate execution of the judgment. It may adopt interim resolutions, which usually contain information concerning the interim measures already taken and set a provisional calendar for the reforms to be undertaken or encourage the respondent state to pursue certain reforms or insist that it take the measures needed to comply with the judgment.

If difficulties are encountered in executing the judgment, the Directorate General of Human Rights often examines possible solutions in greater detail with the authorities concerned.[1]

The Committee of Ministers has also invited the Court to notify the pilot-judgment not only to the state concerned and to the Committee, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights.[2]

The mechanism is clear, and if it is not working good enough or fast enough it should be improved. This is the path the Court should be taking, encouraging and be strict about. The Court should not include any kind of back-up plans in the pilot-judgments. I think that an example should be followed set by the Grand Chamber in the pilot judgment Broniowski v. Poland, where adjournment is made with no time limit, thus clearly indicating no difference with other judgments in terms of obligatory implementation of everything that has been held by the Court.

By Maris Burbergs

[2] Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem

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  • Stijn Smet says:

    I understand your point, taking a principled stance. But also after we discussed it, you do not manage to convince me. Reading this pilot judgment, I do not see the inclusion of a time limit of 18 months as leaving leeway to Romania or weakening the implementation of judgments. On the contrary, I read it as putting pressure on the Romanian government to make the changes within that period, or else new convictions will follow.

    It is true that, ideally, all the Court’s judgments should be complied with automatically by the state that has been found in violation of the Convention. But the reality is often different. And that’s the whole idea behind the pilot judgments: instead of finding a violation of the same issue time and again, without anything actually changing and thus leaving the applicants’ rights de facto unprotected, the Court declares clearly which changes to the national system need to be made. Obviously, it then needs to grant an amount of time to the state to make those changes.

    But introducing a time limit on those changes and acknowledging the possibility that new violations will be found if that time limit expires without the state acting upon its obligations, does not weaken the judgment in any sense. Rather on the contrary, I think it strengthens it: the finding of new violations after the time limit expires is the stick the Court keeps at hand in case the carrot does not take root.

    In that respect, including a time limit is in my opinion actually better than not indicating one, because in the latter case, if the government does nothing the applicants’ rights remain unprotected ánd they do not know when they can expect protection at the national level, nor when their application will be further examined at the level of the Court. This to me sounds more like something the state might abuse to not implement the measures in a timely fashion.

    I also see no reason why the Committee of Ministers could in this case not still put pressure on Romania to make the changes as fast as possible. I would only have a problem with the Court imposing a time limit of 18 months for making changes to the national system if those changes could for instance be made within three months, ánd if there would be no way to put pressure on the state to implement the measures before that time limit expires. But I do not see why this would be the case here.

  • Maris Burbergs says:

    I agree that the applications should be dealt with in the case of non-compliance. But it is ideologically wrong, in my view, to include in any way into a judgment a probability that the Committee of Ministers and other COE organs will not be able to deal with the situation and execute the judgment, and the Court will have to examine the cases.
    Any other procedure outside the judgment and I am satisfied 🙂