Judges at odds over Court’s authority to order remedies

By Dr Alice Donald, Senior Lecturer and Anne-Katrin Speck, Research Associate  School of Law, Middlesex University, London

How far can – and should – the European Court of Human Rights recommend, or even compel, states to take certain measures after the finding of a violation of the European Convention on Human Rights? This question is increasingly debated as the Court, driven by states’ failure to implement judgments, has moved away from its formerly strictly limited, declaratory approach to remedial measures by sometimes indicating specific non-monetary individual measures or general measures.

This debate has come into sharp focus with the judgment in Moreira Ferreira (No. 2) v. Portugal, issued by the Grand Chamber on 11 July 2017, the case having been relinquished by the Chamber in an early clue as to its contentiousness. The judgment, in which the Grand Chamber was split 9-8, lays bare the divergence of judicial views on the Court’s evolving remedial practice, containing no fewer than four strongly-worded dissenting opinions.

It is this broader debate on which this blog focuses, drawing on research by the Human Rights Law Implementation Project (HRLIP), including interviews with Judges and staff of the Court’s Registry, the  Execution Department and the Secretariat of the Committee of Ministers. A key finding is that the Court’s current remedial practice is fluid and inconsistent.

The facts

The case concerns the rejection by the Portuguese Supreme Court judgment in March 2012 of the applicant’s request for the reopening of criminal proceedings following a Chamber judgment (Moreira Ferreira v. Portugal, 5 July 2011) which found a violation of Article 6(1) of the Convention (the right to a fair hearing) on the basis that she had not been heard in person by the Oporto Court of Appeal in a hearing which upheld her conviction for threatening and insulting conduct.

The Chamber judgment (para 41) invoked the well-known Oçalan clause, according to which, when an individual has been convicted after proceedings that entail breaches of Article 6, “a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation”.

The Supreme Court found, however, that the Strasbourg judgment was not irreconcilable with the judgment convicting the applicant and did not raise serious doubts as to the merits of the conviction, as required by the Portuguese Code of Criminal Procedure for a reopening of proceedings. On the basis of that refusal to reopen the proceedings, the applicant made a second application to Strasbourg, relying on Article 46 of the Convention (binding force and execution of judgments) and alleging a new violation of Article 6(1).

The majority’s opinion  

At the time of that application – and still today – the Chamber judgment of 2011 was pending before the Committee of Ministers, the body tasked with supervising the execution of judgments. Accordingly, the majority in the Grand Chamber held that it could not deal with the applicant’s complaint under Article 46 because questions relating to the execution of its judgments fell outside its jurisdiction.

However, the majority declared the complaint under Article 6 admissible (para 74), notwithstanding the Portuguese government’s argument (paras 41-44) that the new application contained no new facts and was solely concerned with the execution of the Court’s 2011 judgment. It then went on to hold by nine votes to eight that there had been no violation of Article 6(1). For Judge Pinto de Albuquerque, joined by six others who would have found a violation of Article 6(1), “[t]he frustration could not be greater” since the majority’s “promised human rights-friendly approach at the admissibility stage is frustrated at the merits stage” (para 55).

The dissents

The dissenters frame the case as one that could determine the future direction of the Court’s remedial practice, with significant implications for the respective roles of the Court and the Committee of Ministers. The tone of their respective opinions reflects how different the visions are on this matter. Notably, Judge Kūris, joined by three others, uses emotive, even dismissive language, condemning the majority’s findings as a “major embarrassment” (para 4), “distressing” (para 12), “bewildering” (para 17) and “pussycat-like” (para 25). “Now these illogicalities are carved in the stone of the law of the Convention”, he laments (para 12).

Declaratory or not declaratory?

One faultline between the Judges is the Court’s power to issue binding orders in its judgments. Specifically, the majority “reiterates that that it does not have jurisdiction to order, in particular, the reopening of proceedings” (para 48), but omits to mention cases in which the Court has done exactly that in the operative part of the judgment (see here and here) – an inconsistency that Judge Pinto de Albuquerque points out in para 11 of his dissent.

Further inconsistencies in the Court’s case law relate to the use of language, and where in the judgment remedial indications are given. As to the former, Judge Kūris ventures that the Court “has often been too tentative and therefore somewhat uneven, confusing and inconsistent with the substance of the message it wished to convey to the States concerned” (para 2). Confusion can only be increased by the sheer range of terms used to characterise the Court’s approach. The present judgment alone refers (in ascending order of imperativeness) to the Court’s competence to “[issue] less assertive suggestions”, “engineer”, “recommend”, “indirectly compel”, “impose”, “order”, “oblige” or “dictate” remedial measures. Reference is also made to the “explicitness” or degree of ambiguity of judgments. These distinctions highlight the need for a less equivocal use of terminology.

In respect of the placement within the judgment, most notable is Judge Pinto de Albuquerque’s dissent. On the basis of an exhaustive review of the Court’s “rich case law” (para 2) on individual measures of redress – including, but not limited to, cases concerning the reopening of proceedings – he overturns the oft-repeated axiom that the Court’s judgments are “essentially declaratory in nature” (para 3) and argues, to the contrary, that “judgments of the Court are not merely declaratory” (para 57, emphasis added).

He arrives at this conclusion by stating that the majority underestimated the “binding meaning” (para 53) of the Oçalan clause, as invoked by the Chamber in 2011, which should have been interpreted in the light of the Court’s evolving case law on Article 46; this case law “did not remain fossilised in the past, providing today, when appropriate, for the imperative, individual legal effects of the Court’s judgments in the domestic legal order of the respondent state” (para 57, emphasis added).

Judge Pinto de Albuquerque goes even further, by stating that the Court’s judgments are binding in their entirety, irrespective of the place in the judgment where remedial indications are made:

[I]t is undeniable that, in the long-standing practice of the Court, obligations imposed in the operative part and those included only in the reasoning part of the judgment have the same legal force, in spite of the different formulation given to them (para 17).

This position is at odds with the views of other senior figures within the Court, including Judges, who told the HRLIP that only indications in the operative part were binding. This is an issue on which it would be desirable for the Court to be consistent, not least because of the implications that the present inconsistency has for the domestic response to judgments as well as for the supervision process by the Committee of Ministers.

Risk of encroachment?

Judge Raimondi, joined by six others, expressly frames this case as one relating to this distribution of competences between the Court and the Committee of Ministers (paras 3 and 4). He opines that, in the absence (as he sees it) of any new facts, the application “lies outside the supervision of the Court” and should thus have been declared inadmissible because

the wording of Article 46 makes the Committee of Ministers, as a political organ, the sole depositary of competence in terms of executing the Court’s judgments… Accordingly, and conversely, the Court is invested with no competence, of any kind, in the field of the execution of judgments. (para 4; emphasis added)

Such a sweeping assertion is unfortunate, if not misleading, as it appears to contradict, without explanation, the Court’s own case law under Article 46 stipulating legal or policy changes in a range of areas. The position of Judges Raimondi et al. is also fundamentally at odds with that of Judge Pinto de Albuquerque, who criticises the majority for its “self-imposed limitation of the interpretative powers of the Court” (para 55) on the basis that the Grand Chamber engaged in a purely “formalistic verification” of the Portuguese Supreme Court’s interpretation of the Chamber judgment. “One would have to conclude”, Judge Pinto de Albuquerque ventures, that

according to the majority, the Court is not a judicial body, because it does not even have competence to order an individual measure to redress a Convention violation, such as reopening the domestic proceedings, and to interpret its own judgment when a new application is lodged on the basis that the Court’s order has not been complied with (para 56).

He generally seems less concerned, then, about potential encroachment by the Court into the domain of the Committee of Ministers than Judge Raimondi et al., who stress that “[a] balance must be maintained in this sphere, which necessitates compliance with the distribution of powers under the Convention” (para 30).

Interestingly, our research suggests that this concern is not shared by the Committee of Ministers and the Execution Department who would in fact welcome more specific directions in the Court’s judgments, since, in the words of one senior official, it has “a tremendous effect in framing the discussion within the Committee of Ministers” and reduces the risk of obfuscation or minimalist implementation. At the same time, we found little if any empirical evidence for states perceiving greater directiveness as unduly undermining the principle of subsidiarity. On the contrary, (certain) domestic actors welcome a more directive approach as providing leverage to advance implementation.

Future direction

The fundamental disagreements highlighted in this blog will have to be resolved in the context of mounting pressures on the Court, both caseload-related and political.

As the Court charts its future direction, law and politics inevitably intertwine. Post Brighton and Brussels, domestic implementation of Convention standards and Strasbourg judgments has been centre stage. A key question, then, is how far Strasbourg Judges should think pragmatically about the potential political consequences of how a judgment is drafted, which may lead them to be selective about their choice of remedial strategy. Our research suggests that Judges, vigilant about the need to preserve the Court’s authority and legitimacy, do see themselves as navigating the tension between legal certainty and sensitivity to political context. The backlog of unimplemented judgments surely calls for the Court to continue to be directive in its approach, as and when it considers that doing so would assist implementation.

Unfortunately, Moreira Ferreira (No. 2) provides a set of competing directions, rather than a clear compass, for navigating the choppy waters ahead.