By Lucy Moxham, Associate Senior Research Fellow at the Bingham Centre for the Rule of Law
In April 2018, the Committee of Ministers (the regional body responsible for supervising the execution of judgments of the European Court of Human Rights) published its 11th Annual Report. The Committee’s Annual Report 2017 is available in full here. This post highlights some of the headline statistics in the Report and what they tell us about the overall state of play with respect to the implementation of the Court’s judgments. A closer look reveals several areas for concern behind some of the positive statistics.
First, the number of new cases transmitted from the Court remained fairly stable in 2017. The number of new cases coming before the Committee for supervision of their execution has generally been falling since a high of 1710 at the start of the reform process in 2010. Over recent years however, the number of new cases has remained fairly stable at around 1300.
However, repetitive cases – cases defined in the Report as “relating to a structural and/or general problem already raised before the Committee in the context of one or several leading cases” – continue to account for the vast majority of new cases coming from the Court. In 2017, 87% of the 1333 new cases were classified as repetitive cases. This number has remained fairly stable at around the 85% mark over recent years. In the Annual Report, Christos Giakoumopoulos (Directorate General of Human Rights and Rule of Law) places the responsibility firmly on the Member States: “The Court has marked in different ways, notably through the pilot judgment procedure, that it is not its role to provide redress in face of great numbers of repetitive cases. That responsibility lies on domestic authorities”.
Second, in 2017, there was a substantial reduction in the number of pending cases, where execution is ongoing. In 2017, the number of cases currently under the Committee’s supervision fell significantly to 7584, down from 9941 in 2016. This number has been falling since a high of 11099 in 2012, but this 24% decrease represents a much steeper drop than in recent years. A press release states that “on-going reforms, improved cooperation with national authorities and changes to the policy for closing cases contributed to the high number of closures in 2017”.
However, the proportion of pending cases classified as leading cases – cases defined in the Report as “revealing new structural and/or systemic problems” and which require “the adoption of new general measures to prevent similar violations in the future” – has remained fairly steady, slowly increasing from 13% to 15% over recent years. There was a slight increase again in 2017 with 18% of cases under the Committee’s supervision classified as leading cases. The non-implementation of leading judgments increases the likelihood of overburdening the Convention system with repetitive cases.
Third, a record number of cases were closed in 2017. The total number of cases closed increased significantly, from 2066 in 2016 to 3691 in 2017. This continued a trend of improving closure rates since the reform process began in 2010. A lower proportion of closed cases were leading cases, even though the numbers were slightly higher – 8% (311) of the cases closed in 2017 were leading cases as compared to 14% (282) in 2016. However, there was a small improvement in the number of older leading cases closed – In 2017, 48% of the leading cases closed had been pending for more than five years, as compared to 40% in 2016.
What accounts for the high number of cases closed? The Report suggests this resulted from improved dialogue with the Member States. It also mentions the policy of “partial closure”, which is defined in the Report as allowing the Committee to close certain cases in a group where adequate individual measures have been taken or where one of the structural problems in the group has been solved (p. 55). The Report also notes that the policy was extended in 2017 and now the Committee can close repetitive cases where all individual measures have been adopted, though possibly with comments regarding outstanding general measures (p. 14). It is reported that the policy allowed the Committee to close 1700 Italian cases, 250 Hungarian cases and 100 Polish cases (p. 14). This suggests that the policy accounted for approximately 55% of cases closed in 2017.
The policy is aimed at improving the visibility of progress achieved. However, in order to avoid creating a misleading picture, it is important to make clear where measures remain to be implemented. This is done to an extent in the Committee’s resolutions. However, transparency would be further enhanced by providing more detailed information about the policy and when it is applied. Several examples are given in the Annual Report which provide some insight.
These include the Hungarian cases referred to above. The Committee closed its examination of 253 cases against Hungary, including the leading case Tímár v. Hungary (36186/97), having decided that the individual measures had been resolved. The Committee stated that “the general measures required to respond to the shortcomings established by the Court in the present judgments continue to be examined within the framework of the pilot judgment in the case of Gazsó (Application No. 48322/12) and the other cases belonging to this group”. In fact, it emphasised that closure of these cases “in no way prejudges the Committee’s evaluation of the general measures in relation to the excessive length of civil and criminal proceedings and the lack of an effective remedy in this respect”.
While applying this policy increases dialogue with the Member States and demonstrates where progress has been made, it does perhaps muddy the waters for those seeking to monitor or trace compliance in a particular case. That said, where all individual measures have been resolved and the outstanding measures relate for example to the need for legislative or structural reforms, which will continue to be examined in the context of other judgments, applying this policy does perhaps more accurately reflect the situation on the ground. It will be interesting to monitor the use of this policy as the full implications of it become clearer.
Fourth, prolonged non-implementation of judgments remains a concern. The Annual Report highlights a decrease of 20% in leading cases pending for 2-5 years. Looking at the data, in 2017 there were 344 leading cases pending before the Committee for 2-5 years and in 2016, the figure was 431. However, in percentage terms the numbers, while still showing a decrease, are perhaps less striking – In 2017, 25% of leading cases pending before the Committee had been pending for 2-5 years, as compared to 29% in 2016.
However, it is concerning that the number of leading cases pending before the Committee for more than five years has continued to rise over recent years and remained high in 2017. The Report states that “For the first time for quite some years there is even a decrease, even if very small”. However, looking more closely at the statistics, we see that the number of leading cases pending for more than five years was almost identical last year – 718 in 2017 and 720 in 2016. Moreover, in percentage terms there was actually a small increase – In 2017, 52% of leading cases pending before the Committee had been pending for more than five years, whereas this figure was 48% in 2016. In fact, this number has been rising since 2010, when the figure was only 7%.
Fifth, three-quarters of just satisfaction payments were made within the deadline in 2017. The rate of payment of just satisfaction outside the deadline remained almost the same last year. In 2017, there were 1033 payments, with 25% of these being made outside the deadline (as compared to 1272 payments in 2016, with 26% outside the deadline). However, this is higher than in earlier years and the rate has generally been increasing since 2013 when only 14% of payments were made outside the deadline.
Finally, the Committee is continuing to seek ways to support Member States dealing with complex execution processes. In 2011, the Committee adopted new working methods which introduced a twin-track supervision system. This was aimed at prioritising the Committee’s support for execution by allowing it to focus on deserving cases under “enhanced supervision”, with a more limited role for the Committee in cases allocated to “standard supervision”. Enhanced supervision is defined in the Report as applying to cases requiring closer supervision by the Committee, including for example cases needing urgent individual measures, pilot judgments, and judgments revealing important structural and/or complex problems.
In 2017, there was a significant increase in the proportion of closed cases under enhanced supervision – from approximately 40% in 2015 and 2016, to 68% in 2017. However, there continues to be a high proportion of pending cases under enhanced supervision – 51% of all pending cases were under enhanced supervision in 2017; the figure has been around 60% each year since 2011.
The Report identifies the main themes under enhanced supervision and in need of closer attention, including the actions of security forces, conditions of detention, the lawfulness of detention, protection against ill-treatment, and length of judicial proceedings. In addition, the Chairs of the Human Rights meetings emphasised in the Report that the Convention system must establish improved mechanisms to surmount situations of resistance and to support Member States with complex execution processes, including in the context of unresolved conflict zones.
What do the statistics reveal about implementation across the region and the hurdles that remain?
While there have been significant improvements in the number of cases closed and in the number of pending cases, a closer look at the statistics reveals several areas for concern. These include the continued high number of cases pending before the Committee; a significant problem of prolonged non-implementation, with growing numbers of leading cases pending for more than five years; a quarter of payments of just satisfaction being made outside the deadlines; a high proportion of repetitive cases coming before the Committee, with an associated burden on the Court itself; and difficulties managing cases concerning structural and/or complex problems.
Other significant developments
Looking to the implementation of judgment more generally, it is worth mentioning two key developments in 2017.
First, on 5 December 2017, the Committee of Ministers launched infringement proceedings for the first time in respect of Azerbaijan’s repeated refusal to release opposition politician, Ilgar Mammadov. This procedure, contained in Article 46(4) of the Convention, was introduced by Protocol No. 14 and allows the Committee of Ministers to refer to the Court the question whether a Member State has failed to fulfil its obligation under Article 46(1) to abide by the final judgment of the Court. If the Court finds a violation of Article 46(1), “it shall refer the case to the Committee of Ministers for consideration of the measures to be taken”. The use of the infringement procedure for the first time is significant and shows the Committee using all the tools at its disposal. A judgment is expected in 2018 and it will be interesting to see both how the Grand Chamber responds in this case and how this development affects the Committee’s approach to the execution of judgments going forward. (For further discussion of the Mammadov case, see e.g., here, here and here.)
Second, on 7 December 2017, the Committee of Ministers accepted the UK government’s proposed package of measures in relation to the prisoner voting group of cases. The announcement by the UK government of its plans to allow some offenders to vote came some 12 years after the Grand Chamber’s judgment in Hirst No 2 v. The United Kingdom (Application No. 74025/01), which found that the blanket ban on prisoner voting violated Article 3 of Protocol No. 1. The proposed measures are very limited in effect and it has been observed that “of the more than 75,000 prisoners serving a sentence, around 100 (those on temporary licence) will now enjoy the right to vote”. Some will see this as an important compromise for the Committee as the UK’s continued non-implementation undermined the rule of law and posed significant challenges for the credibility and legitimacy of the wider Convention system. Others however, will question whether the government’s proposals go far enough and whether this compromise risks further undermining the Court’s authority. The Committee has urged the UK to implement the proposals as soon as possible and to provide an update by 1 September 2018.
In addition, the forthcoming entry into force for some states on 1 August 2018 of Protocol No. 16 – which allows the highest domestic courts to request advisory opinions from the European Court – is another important development which will assist in dialogue between the national and regional levels.
The Chairs of the Human Rights meetings stressed in the Annual Report “the importance of the basic principle of shared responsibilities upon which respect of the Convention rests” and emphasised the need to ensure “constructive dialogue, supported by expert advice, between all those capable of providing solutions to the identified problems and the development of further synergies between all Council of Europe bodies”.
Going forward, therefore, it will be important to continue this multi-institutional approach, to improve the engagement of NGOs with the execution process and to consider what more other Strasbourg institutions – including the Department for the Execution of Judgments, the Parliamentary Assembly, the Commissioner for Human Rights, the Secretary General and the Court itself – can do to assist the Committee’s supervision process and to support timely, full and effective national implementation.
* Some of the figures here are taken from earlier annual reports, in particular where there appeared to be a discrepancy in the 2017 report. Statistics are also available on the website of the Department for the Execution of Judgments here.
* I am grateful to Dr Ed Bates (Leicester Law School) for his comments on this post, which draws on a presentation by him at the Bingham Centre last year, available here. Of course any errors remain my own.