In the Aftermath of a Judgment: Why Human Rights Organisations Should Harness the Potential of Rule 9

Dr. Aysel Küçüksu, Postdoctoral Fellow, iCourts, University of Copenhagen[1]

Introduction

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.

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