March 03, 2021
Dr. Aysel Küçüksu, Postdoctoral Fellow, iCourts, University of Copenhagen
NGOs and NHRIs – collectively referred to as human rights organisations (HROs) – have long enjoyed a certain celebrity for impactful litigation at the European Court of Human Rights (ECtHR), but what do they do once the desired judgment has been handed down? Do they disperse or do they follow up, and if the latter, what does their follow-up look like? These and similar questions demarcate the largely uncharted territory that is HRO participation in the ECtHR execution process. As elusive as their responses might appear, the data to formulate them is all there, publicly available and easily accessible on the Court’s HUDOC-EXEC website in the form of Rule 9 communications. Yet, despite their power to improve our understanding of human rights’ judgments implementation, those communications have largely escaped scholarly attention. This can be attributed to the fact that, until recently, focus on HRO mobilisation within the ECtHR context has concentrated on the period preceding the delivery of a judgment. Though this trend is slowly changing, and studies of HRO participation in ECtHR post-judgment universe are steadily multiplying, attention to the Rule 9 procedure remains scarce.
This has left a huge gap in the scholarship on the invaluable monitoring role NGOs and NHRIs have been afforded with since the introduction of Rule 9 to the Rules of the Committee of Ministers (CM) in 2006. In an effort to address the gap, this entry will focus on explaining the Rule 9 procedure and increase both knowledge of, and recourse to it. Governing the involvement of NGOs in the execution phase of ECtHR judgments, the Rule 9 procedure has done wonders to diversify and democratize access to the accountability mechanisms offered by the ECtHR and Council of Europe (CoE) more generally, and created an unprecedented feedback mechanism that allows the CM, as the relevant supervisory body, to receive valuable, contextualized assessments of the execution process from HROs. Despite that, recourse to the procedure remains low, with studies showing that limited HRO engagement with the implementation process is partly due to lack of awareness as to how to do so. The aim of this post is help address this issue by spreading awareness of this formal avenue. In this way, every HRO which has a stake in the implementation of a particular ECtHR judgment would have the tools to harness its potential. In a time when 43% of all the leading cases delivered by the Court are still pending implementation, Rule 9 communications can help achieve full compliance by engaging domestic actors with an insider understanding of what home-grown remedies need to look like in order to work.
What is the Judgment Supervision Process?
The Committee of Ministers is the Council of Europe’s decision-making body, comprising of the Foreign Affairs Ministers of all the member states, or their permanent diplomatic representatives in Strasbourg. Amongst other things, the CM is tasked with supervising the execution of each Court judgment until it is satisfied by the measures taken by the respective state to implement it. Only then does the CM issue a final resolution and thereby close the case supervision.
The whole process before the Committee of Ministers is riddled with its own idiosyncrasies. As soon as the ECtHR delivers its final judgment or decision, a supervision case is opened by the CM, which is to decide whether the implementation of a judgment necessitates ‘standard’ or ‘enhanced’ supervision, depending on the structural complexity of the issues established in the case. Thereafter, the respondent state is required to submit a so-called ‘action plan’ to the CM, where it is to specify the ‘individual’ and ‘general’ measures it will take to implement the judgment in question. Throughout the supervision process, the state is also allowed to submit ‘action reports’ to indicate its progress on the matter. The ‘action plans’ and the ‘action reports’ are a function of the margin of appreciation doctrine in the post-judgment supervision process. They give the respective states the opportunity to formulate contextualised, domestic solutions to how the human rights breaches found in the judgment can be remedied in a manner that prevents the repetition of similar violations in the future. Since 2006, these ‘action plans’ and ‘action reports’ have also been the focal point of a lot of Rule 9 communications which have thereby sought to aid the CM in its supervision.
What is the Rule 9 Procedure?
In 2006, Rule 9 of the Rules of the Committee of Ministers was amended so as to allow NGOs and NHRIs to participate in the judgment implementation process by submitting written communications to the CM. These written communications are not only considered by the CM, but are also then brought to the attention of the state concerned, which is allowed to respond to the communication within a short time span. Despite its relative obscurity, the procedure has resulted in more than 880 Rule 9 communications reaching the CM and the respective state, and inspired more than 340 replies by the latter. The communications are authored by a very diverse set of HROs, both in terms of size and resources, a significant portion of which have not participated in ECtHR litigation before their Rule 9 submissions. A plausible explanation for this is that unlike the litigation process before the Court, where standing rules significantly limit access to it, the supervision procedure imposes no limits on which NGO or NHRI can submit a Rule 9 communication to the CM and what it should look like (though an excellent guide on the topic exists).
Why is the Rule 9 procedure important?
There are many official roles afforded to NGOs and NHRIs in the legal process before the ECtHR. They can bring a claim, represent a claimant and even submit written briefs (amicus curiae) as third parties. These paths have allowed these organizations to participate in rights development and protection. And yet, as recourse to these avenues has unfolded in practice, the scales have overwhelmingly tipped in favour of those repeat players with the standing, resources, networks, and expertise necessary to utilise them. In contrast, the Rule 9 procedure has truly democratised access to the accountability mechanisms that the ECtHR provides for all human rights organisations. It allows HROs to enter into a constructive dialogue with both the CM and the respective state and meaningfully participate in the execution of ECtHR judgments. Today, it is especially relevant for those HROs, which might not have the means to submit amicus curiae briefs to the ECtHR, but which nonetheless have a stake in the long-term resolution of a particular matter that has come before the Court. Professional networks such as the European Implementation Network and the European Network of National Human Rights Institutions are also working tirelessly to equip their members with the tools to make effective use of the procedure. Now, more than ever before, small NGOs and NHRIs who are familiar with a particular state’s context have the chance to influence the odds and ends of the implementation of ECtHR judgments. Indeed, the Rule 9 avenue for communicating with the CM is not only potent in shaping the consequences of the international human rights regime, but also inclusive, both in substance and in practice.
What is the intended impact of the Rule 9 communications?
Empirical evidence shows that the impact which is pursued through recourse to the Rule 9 procedure can be divided into formal and substantive impact. On the formal level, HROs often seek to incite the adoption of what can be roughly termed as ‘escalation’ measures. Those range from calls to the CM to include the case on the agenda for its next meeting or intensify the supervision of a case from the standard to the enhanced procedure, to arguing that the commencement of infringement proceedings is the only viable way towards ensuring the implementation of a judgment. For example, in a Rule 9 submission following the judgment in Winterstein and Others v. France,the European Roma Right Centre (ERRC) phrased its escalation request as follows,
‘We believe there are major structural problems in France, which are set out clearly in our census reports… The ERRC has lodged another application against France in a similar matter, and we expect that the Court will see many more similar cases if the French authorities do not take the general measures which are required… We therefore respectfully request that the Committee switches this case from the normal supervision track to the enhanced supervision track.’
In this example, we see the ERRC offering evidence in its ‘census reports’ to support its request. Such reasoned arguments add to the weight of the demand which, in turn, adds to the power of the argument. The same approach is usually followed in other types of escalation requests too. For example, in calling for an interim resolution in its Rule 9 communication in the case of Al Nashiri v Romania, the Open Society Justice Initiative argued,
‘[t]he communications provided by Romanian authorities… indicate that the Romanian government has grievously failed to take seriously its obligation to conduct an effective investigation. This failure, combined with Romania’s shockingly inadequate concern for Mr. Al Nashiri’s fundamental rights, requires the Committee of Ministers’ ongoing, enhanced supervision of this judgment. The Justice Initiative further respectfully requests that the Committee issue an interim resolution in this matter.’
Similar calls to escalation appear in many of the Rule 9 communications that reach the CM and the CM is known to give the supporting arguments visible, probative value. Thus, they not only make for an impactful reading, but might affect the course of subsequent events.
HROs often also resort to a Rule 9 communication in order to maintain the international supervision of a case. In those instances, it is not uncommon that the respondent state would argue for the exact opposite. For example, following the judgment in D.G. v Poland, the Helsinki Foundation for Human Rights phrased its demand as follows,
‘[h]aving regard to the abovementioned argumentation, the HFHR requests that the Committee of Ministers continues its scrupulous supervision in Kaprykowski group of cases, including the supervision of the execution of D.G. judgment. In our opinion, the general measures taken by the Polish authorities… are promising but not sufficient to limit the possibilities of further violations of the Convention similar as those found in the D.G. judgment.’
The governmental opinion on the matter was diametrically opposite, arguing that the supervision of the case should be closed instead,
‘[w]ith reference to the above the Government believes that all its undertakings, efforts and measures adopted will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 3 of the Convention and will allow the Committee of Ministers to close the examination of the execution process of the above group of cases.’
The governmental engagement with the argument of the NGO in order to oppose its appeal for continued supervision shows that both parties have a stake in the matter. Though establishing causation is beyond the remits of this blog post, the excerpt from the conversation between the NGO and the respondent state shows that the Rule 9 avenue can, amongst other things, be leveraged by HROs to keep the international supervision of judgment implementation alive. Indeed, the power of Rule 9 communications can be yielded in the service of various noteworthy requests of a similar nature. The options are many, and the HROs are not afraid to resort to them, even if they might antagonize the target state. Either way, the HRO communications contribute to the deliberation process at the CM.
On the substantive level, HROs, big and small, seek to aid the Committee of Ministers in understanding the idiosyncrasies of the local context where it would really make a difference. As the CM is neither an expert on the domestic situation in each CoE member state, nor on all of the human rights issues that come before the ECtHR, certain HROs are in the rare position of having the ear of the CM by virtue of their distinct expertise. Not only that, but HROs often offer a unique perspective on the feasibility and potential efficacy of the ‘individual’ and ‘general’ measures proposed in the ‘action plan’ of a respondent state. In particular situations, HROs can corroborate a state’s claim as to the utility of proposed measures, whilst in others, they can warn the CM against accepting certain state claims. For example, in the case of Avilkina and Others v Russia, in which the ECtHR found that the collection of sensitive medical data concerning the applicants was unlawful, the Russian government submitted information that ‘a number of measures to improve the legislation and law enforcement practice in line with the Court’s findings’ and that ‘all necessary measures have been taken to prevent further violations.’ What the European Association of Jehovah’s Christian Witnesses was able to show through its Rule 9 communication, however, was that ‘government actions in various parts of Russia tell a completely different story.’ It submitted letters circulated between the domestic health authorities as evidence that the forbidden practice continued past the delivery of the judgment, thereby disproving the execution claims made by the target government. It is not clear whether, in the absence of the Rule 9 procedure, the NGO would have been able to bring this sensitive piece of information, which went to the core of Russia’s implementation obligations, to the attention of the CM. What is clear, however, is that the Rule 9 procedure has been a game-changer for HROs, which now have a formal avenue to do so. Indeed, the Rule 9 procedure gives HROs the opportunity to nuance the accounts offered by states in their ‘action reports’ – a power especially relevant for a system, whose legitimacy is suffering under the strain of unimplemented jurisprudence of noteworthy dimensions. No matter the angle one chooses to look at the issue from, HRO participation in the ECtHR judgment execution process only helps improve it. It helps the CM, it activates the state, and it amplifies the voice of HROs that might otherwise not have been heard. In all of these scenarios, the weight of the HROs’ claims before the respondent state are greater by virtue of the CM’s awareness of them. Indeed, when it comes to the dialogue with the respondent state, the Rule 9 procedure allows HROs to leverage the international oversight their communications attract in its conversation with the state. Not only can recourse to the CM incite an otherwise unresponsive state to reply, but it can also lead to a more constructive dialogue than otherwise would have been.
Thanks to the adoption of the Rule 9 procedure, every NGO and NHRI has the opportunity to formally engage with the execution of an ECtHR judgment and act as an amicus to the Committee of Ministers. One need not look further than the Rule 9 communications that have since made it to the CM to comprehend the procedure’s great, though as of yet unharnessed, potential. The direct line between interested HROs and the Committee of Ministers that this rule has established is an unprecedented opportunity for HROs of all shapes and sizes to join the ECtHR execution process, and thereby truly diversify and democratise it. Indeed, the Rule 9 avenue to HRO participation in the implementation of ECtHR judgments is a low-hanging fruit on the tree of accountability that is there for the taking.
 This research is part of the Human Rights Nudge Project led by Dr. Veronika Fikfak that has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No. 803981).
Dr Küçüksu is right to underline the potential for HRO’s to make submissions under Rule 9 of the Committee of Ministers’ Rules and more generally to urge more academic investigation of the judgment execution process and its supervision by the Committee of Ministers. It is true that despite the submissions which are made, many more could be and their effect would probably be beneficial.
Three points of caution may be merited nevertheless.
First, HROs may make submissions on the general measures arising from a judgment of the Court, but that opportunity is not provided to the applicant or their lawyer, who are confined to commenting on individual measures. This distinction is absurd. After exhausting domestic remedies and in the case of the lawyer probably having extensive experience of similar cases, the Committee of Ministers is depriving itself of a useful source of information as well as someone with a close knowledge of the actual scope of the judgment.
Secondly, bar associations and law societies do not even have the opportunity to make submissions on individual measures. Their omission from the scope of Rule 9 is inexplicable, given their frequent role in reviewing and proposing legal reform in their domestic jurisdictions.
The Council of the Bars and Law Societies of Europe (CCBE: https://www.ccbe.eu/) is actively pursuing these issues through its PD Stras committee. It is a worthwhile effort.
Thirdly, the general issue of the comparative lack of study and debate about the actual effectiveness of the execution process is in marked contrast to the close attention given to the accurate interpretation of each change of emphasis in the Court’s interpretation of the Convention in its judgments. A major means to achieve the effective implementation of the Convention is achieved if domestic courts follow and apply the Court’s case law, but spare a thought for the original applicant.
As Dr Küçüksu mentions, an alarming proportion of judgments remain unexecuted. Worse, the Committee of Ministers has a stubborn list of over 600 judgments which are unexecuted over five years after becoming final: given that the Court’s judgment will typically have taken seven years, sometimes ten and was preceded by perhaps lengthy domestic remedies, justice is truly being denied in those cases.
Again the CCBE has joined the debate, with practical proposals to reform the working practices of the Committee of Ministers, where the capacity to supervise execution is plainly insufficient. Among more prosaic, but necessary, amendments to working practices, the CCBE Is exploring the possibility of the recognition and enforcement of monetary awards of just satisfaction by the domestic courts. Strasbourg may not be the best venue for debt collection.
These ideas and more deserve closer scrutiny and development by practitioners and academics alike.
Dr Küçüksu provides a helpful summary of the Council of Europe’s implementation monitoring process, as well as the opportunities it affords human rights organisations. As noted in the article, one of the most significant reasons for lack of engagement in the implementation process among HROs is a lack of information about the system.
The European Implementation Network runs a programme to spread awarenes of developments in the implementation process – most importantly, providing alerts about government submissions of Action Plans (identifying how a government plans to implement a case) or Action Reports (in which governments call for the closure of cases). After NGOs, NHRIs or individuals let us know that they are interested in developments in the implementation of cases concerning a certain country or theme – or just one case in particular – we provide them with emails to let them know when Action Plans/Reports are submitted which are relevant to them, and help them with next steps.
Since this programme began in January 2019, the annual number of Rule 9.2 submissions has almost tripled (there were 68 Rule 9.2 submissions in 2018; 133 in 2019; and 168 in 2020).
EIN provides support for these submissions through its training programmes and resources. We also provide advice to HROs on an ongoing basis, and feedback on draft Rule 9 submissions.
We are happy to help with any requests for information or assistance in engaging with the implementation monitoring process. We are also open to discussing partnerships to provide training on implementation to HROs in a particular country/region, or working in a particular field. If you would like to get in touch, please email email@example.com.
– EIN Handbook on the monitoring process for the implementation of judgments: https://www.einnetwork.org/ein-handbooks/#Handbook
– Information about EIN training: https://www.einnetwork.org/training-page
– Data about the ECtHR judgments pending in different Council of Europe states: https://www.einnetwork.org/countries-overview
Well are grateful to Dr Küçüksu for publishing a useful overview of the implementation process and for helping to highlight its importance to readers of this blog.