Reconceptualizing Implementation: The
The European Journal of International Law Vol. 26 no. 4
© The Author, 2016. Published by Oxford University Press on behalf of EJIL Ltd.
All rights reserved. For Permissions, please email: [email protected]
The Judicialization of the Execution
of the European Court of Human
Helen Keller* and Cedric Marti** Abstract
This article proposes a shift of perspective concerning the implementation of European Court
of Human Rights (ECtHR) judgments. Acknowledging that implementation of the Court’s
judgments is primarily of a political and domestic nature, the authors argue that the process has become increasingly internationalized and judicialized by the ECtHR in recent years.
Taking a broad, three-tiered perspective that distinguishes between the pre-judgment stage,
the judgment itself and the post-judgment stage, the authors analyse the means by which the
ECtHR has engaged in implementation of its judgments and explore the benefits of judicialization in this area to secure a key aspect in guaranteeing effective protection and the longterm future of the European Convention on Human Rights system, namely full and timely
The latest statistical figures on the European Court of Human Rights (ECtHR) have
given rise to cautious optimism in Strasbourg. After years of continuous increase in the
Court’s workload, the number of incoming applications finally seems to have stabilized,
and the different mechanisms introduced by Protocol 14 have enabled the Court to
dispose of a considerable part of its notorious backlog.1 However, the execution of the
Judge at the European Court of Human Rights, Professor of Public International Law, European Law and
Constitutional Law, University of Zurich, Zurich, Switzerland. Email: [email protected] The views
and statements expressed in this article are strictly personal.
** PhD Candidate and Research Associate, University of Zurich, Zurich, Switzerland. Email: [email protected]
See the analysis of European Court of Human Rights (ECtHR) statistics of 2013 and 2014, available at
www.echr.coe.int (last visited 1 September 2015). Protocol 14 to the ECHR 2004, ETS 194.
EJIL (2015), Vol. 26 No. 4, 829–850
EJIL 26 (2015), 829–850
Court’s judgments remains cause for concern in guaranteeing the long-time effectiveness of the European Convention on Human Rights (ECHR) system.2 In any adjudicatory system, judgment compliance is the very cornerstone of legality.3 With respect to
national legal systems, the ECtHR has found that the right of access to a court guaranteed in Article 6 of the ECHR would be illusory if a contracting state’s domestic legal
system allowed a final, binding judicial decision to remain inoperative.4 The same must
apply to the international judiciary. Abidance with judgments of the ECtHR is not only
pivotal for the effectiveness of the protection afforded by the Court but also for the
Court’s legitimacy and authority.5 Yet, official statistics6 and recent empirical studies7
confirm that compliance is often slow or only partial. The sheer numbers are telling.
At the end of 2014, no less than 10,904 cases were pending before the Committee of
Ministers, the political body that supervises the execution of judgments and that now
threatens to become overburdened in its own right.8 At the same time, a great part of
the Court’s remaining docket still stems from repetitive cases and the failure of states
to execute leading judgments. In the Brighton Declaration of 2012, the Committee of
Ministers was explicitly invited ‘to consider whether more effective measures are needed
in respect of States that fail to implement judgments of the Court in a timely manner’.9
It is an inherent characteristic of international law and international adjudication that judgments are usually not directly enforceable but must be translated into
the national legal order. This domestic process leading to compliance can be defined
as implementation.10 Implementation of the ECtHR’s rulings is complex and multifaceted. There is no single model of implementation but, instead, a wide variance
in how judgments are implemented, not only between but also within contracting
states. It depends on how the ECHR is incorporated in the national legal order and may
involve a plurality of actors such as the government, the judiciary, local authorities
or even the legislative branch.11 Often, implementation has therefore been described
High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 20
April 2012, at 26–29.
Huneeus, ‘Compliance with International Court Judgments and Decisions’, in K.J. Alter, C. Romano and
Y. Shany (eds), Oxford Handbook of International Adjudication (2013) 437, at 440.
Hornsby v. Greece, Appl. no. 18357/91, Judgment of 19 March 1997, at 40.
Hillebrecht, ‘Rethinking Compliance: The Challenges and Prospects of Measuring Compliance with
International Human Rights Tribunals’, 1(3) Journal of Human Rights Practice (2009) 362; Committee
of Ministers, Reply to Parliamentary Assembly Recommendation 1576 (2002), Doc. CM/AS(2013)
Rec1576 final, 26 March 2003.
Report of the Steering Committee for Human Rights on Whether More Effective Measures Are Needed
in Respect of States That Fail to Implement Court Judgments in a Timely Manner (CDDH Report), Doc.
CDDH(2013)R79, 29 November 2013, Addendum I, at 1ff.
Anagnostou and Mungiu-Pippidi, ‘Domestic Implementation of Human Rights Judgments in Europe:
Legal Infrastructure and Government Effectiveness Matter’, 25(1) European Journal of International Law
(EJIL) (2014) 205; Hillebrecht, ‘The Power of Human Rights Tribunals: Compliance and Domestic Policy
Change’, 2 European Journal of International Relations (2014) 1.
Committee of Ministers, Eighth Annual Report: Supervision of the Execution of Judgments and Decisions
of the European Court of Human Rights (2014), at 27.
Brighton Declaration, supra note 2, at 29(d).
Huneeus, supra note 3, at 442, 461.
H. Keller and A. Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems (2008).
as ‘an inherently political process that plays out on the domestic level’,12 and recent
(interdisciplinary) literature has focused on empirically determining the domestic factors that account for variation in compliance performance.13
This article proposes a shift of perspective concerning the implementation of ECtHR
judgments. Although acknowledging that implementation remains political and
domestic in nature, it is a process, it is argued, that is increasingly subjected to judicialization at the international level. The Court can provide guidance for implementation – it occasionally renders so-called consequential orders as a remedy for a specific
violation, or it may, although to a very limited extent, inquire into how a judgment
was implemented. In parallel, one can also witness a rhetorical shift in Strasbourg.
Increasingly, the execution of the Court’s judgments is no longer understood as a matter exclusive to member states or to the Committee of Ministers,14 but it is rather being
perceived as a shared responsibility15 of a multitude of actors, including the Court.16
The aim of this article is to conceptualize and analyse the Court’s shared respons
ibility in the implementation of its judgments and the complementary role that it can
play in this regard in the future. The article discusses the potential of the judicialization of implementation for securing compliance and puts forward proposals that aim
at strengthening the Court’s current practice, both with respect to its legitimacy and
its effectiveness. In doing so, the authors do not seek to make an empirical argument
but, rather, must limit themselves to working with hypotheses and relying on existing research in regard to the causal effects between the Court’s function and state
We propose a holistic, three-tiered perspective on implementation distinguishing
between the pre-judgment stage, the judgment itself and the post-judgment phase
in order to provide a comprehensive analysis of the means by which the ECtHR has
engaged in assisting implementation. After recalling the secondary obligations arising from a breach of the ECHR (2), we discuss the use of interim measures to secure
Hillebrecht, ‘Implementing International Human Rights Law at Home: Domestic Politics and the
European Court of Human Rights’, 13 Human Rights Law Review (HRLR) (2012) 279, at 280.
C. Hillebrecht, Domestic Politics and International Human Rights Tribunals: The Problem of Compliance
(2014); D. Anagnostou, The European Court of Human Rights Implementing Strasbourg’s Judgments
on Domestic Policy (2013); Voeten, ‘Domestic Implementation of European Court of Human Rights
Judgments: Legal Infrastructure and Government Effectiveness Matter: A Reply to Dia Anagnostou and
Alina Mungiu-Pippidi’, 25(1) EJIL (2014) 229.
Arts 46(1) and (2) ECHR.
The concept of shared responsibility has a different meaning under international law. Compare
Nollkaemper and Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’, 34
Michigan Journal of International Law (2013) 359.
High-level Conference on the Implementation of the European Convention on Human Rights, Our Shared
Responsibility, Brussels Declaration, 27 March 2015, at 3; Background Paper prepared by the Organising
Committee for the Opening Seminar of the Judicial Year of the ECtHR (Background Paper), 31 January
2014; Implementation of the Judgments of the European Court of Human Rights: A Shared Judicial
Responsibility?, at 1ff, available at www.echr.coe.int (last visited 1 September 2015); see also Lambert
Abdelgawad, ‘The Execution of the Judgments of the European Court of Human Rights: Towards a NonCoercive and Participatory Model of Accountability’, 69 Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht (ZaöRV) (2009) 471, at 474ff. The Steering Committee for Human Rights, on the other hand,
still seems to consider the Court’s role in this area to be rather limited. CDDH Report, supra note 6, at 6, 7.
EJIL 26 (2015), 829–850
restitution (3) and suggest revisiting and consolidating the Court’s current remedial
approach (4). We argue that this, in turn, may call for stronger judicial review of compliance in the post-judgment phase (5). Lastly, a conclusion sums up the findings (6).
2 Secondary Obligations Arising from a Breach of the
The ECHR establishes a special regime of responsibility – not only for determining and
invoking breaches of the Convention but also for the legal consequences of such a
breach. In the embodiment of the principle of res judicata inter partes, the high contracting parties undertake to abide by the final judgment of the ECtHR in any case to
which they are parties by virtue of Article 46(1) of the ECHR. The Court has interpreted Article 46(1) and the effect of its judgments in line with the lex generalis codified
in the International Law Commission’s (ILC) Articles on Responsibility of States for
Internationally Wrongful Acts (ILC Articles).17 Accordingly, whenever the Court finds
a violation of the Convention, Article 46(1) of the ECHR imposes a threefold obligation on the respondent state to cease the breach, make reparation for it and ensure
non-repetition of similar violations in the future.18 The Court has held that:
[a] judgment in which the Court finds a breach imposes on the respondent State a legal obligation to pay those concerned the sums awarded by way of just satisfaction, but also to choose,
subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found
by the Court and to redress so far as possible the effects.19
Spelling out the prevailing hierarchy between the different forms of reparation in general international law,20 the Court further held, under reference to ILC Article 3521
and the Chorzów Factory case,22 that the obligation of reparation usually requires restitution, which means putting the applicant in the position that he or she was in prior
to the breach. The Court has regularly held that ‘if the nature of the breach allows of
restitutio in integrum, it is for the respondent State to effect it’.23 It has also found that:
International Law Commission (ILC), Articles on Responsibility of States for Internationally Wrongful
Acts, UN Doc A/56/83, 3 August 2001, Arts 30, 31, 55.
Papamichalopoulos and Others v. Greece (former Art. 50), Appl. no. 14556/89, Judgment of 31 October
1995, at 34; Scozzari and Giunta v. Italy, Appl. nos. 39221/98 and 41963/98, Judgment of 13 July 2000,
at 249; X.-B. Ruedin, Exécution des arrêts de la Cour européenne des droits de l’homme (2009), at 123.
Scozzari and Giunta, supra note 18, at 249.
Buyse, ‘Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of
International Law’, 68 ZaöRV (2008) 129, at 132.
ILC Articles, supra note 17, Art. 35 provides: ‘A State responsible for an internationally wrongful act is
under an obligation to make restitution, that is, to re-establish the situation which existed before the
wrongful act was committed, provided and to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of
Case Concerning the Factory at Chorzów (Claim for Indemnity) (Merits), 1928, PCIJ Series A, No. 17.
Papamichalopoulos and Others, supra note 18, at 34.
a judgment in which it finds a breach imposes on the respondent State a legal obligation under
that provision to put an end to the breach and to make reparation for its consequences in such
a way as to restore as far as possible the situation existing before the breach.24
According to the Court:
[t]hese obligations reflect the principles of international law whereby a State responsible for a
wrongful act is under an obligation to make restitution, consisting in restoring the situation
which existed before the wrongful act was committed, provided that restitution is not ‘materially impossible’ and ‘does not involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation’. ... In other words, while restitution is the rule, there may
be circumstances in which the State responsible is exempted – fully or in part – from this obligation, provided that it can show that such circumstances obtain.25
3 Securing Restitution (Pre-Judgment Stage)
Usually, implementation is seen as an issue that arises after, or simultaneously with,
the rendering of a judgment. It is often forgotten, however, that the ECtHR can already
take action with a view to securing implementation before deciding on the merits (or
even the admissibility) of an application. Under Rule 39 of the Rules of Court, it can
indicate to the parties any interim measure that it considers should be adopted in their
interests or in the interest of the proper conduct of the proceedings. Interim measures
have binding force, and, if not exceptionally justified, non-compliance with them
leads to an autonomous violation of Article 34 of the ECHR.26
The Court has reiterated on multiple occasions that the primary purpose of interim
measures under the ECHR system – as well as under international human rights law
in general27 – is to prevent irreparable damage to the enjoyment of the applicant’s
rights.28 Of course, the term ‘irreparable’ has an autonomous meaning in the context
of interim measures and cannot be equated with reparation in the sense of the secondary obligation owed subsequent to a breach of the Convention. That is to say, that even
if the Court’s order of interim measures is not complied with, and irreparable damage
occurs, there is still an obligation of the state concerned to make reparation. With
respect to the International Court of Justice, Sztucki therefore aptly observed that:
to say that provisional measures should not be indicated when the prejudice in question might
be capable of reparation by some appropriate means would amount to the proposition that
such measures should not be indicated at all, except when it is shown with substantial credibility that the magnitude of the prejudice in a given case would exceed the respondent’s resources
available for reparation or would cause a total collapse and disappearance of the actual beneficiary of the prospective reparation.29
Guiso-Gallisay v. Italy, Appl. no. 58858/00, Judgment of 22 December 2009, at 90 (just satisfaction).
Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2), Appl. no. 32772/02, Judgment of 30 June
2009, at 86.
Paladi v. Moldova, Appl. no. 39806/05, Judgment of 10 March 2009, at 88.
E. Rieter, Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication
(2010), at 1088.
Mamatkulov and Askarov v. Turkey, Appl. nos. 46827/99 and 46951/99, Judgment of 4 February 2005, at 108.
J. Sztucki, Interim Measures in The Hague Court (1983), at 109–110.
EJIL 26 (2015), 829–850
However, looking at the instrument of interim measures through the prism of
implementation, one notices that this instrument may be a means for the adjudicator
to secure restitution, which, as noted above, ought to be the primary form of reparation.30 By indicating interim measures, the ECtHR may prevent damage to the rights
of the applicants for which restitution would prove impossible at a later stage. If, for
instance, a state defies an order under Rule 39 and removes an applicant to a country
where he or she is subsequently tortured, restitution for mental and physical harm
under Article 3 of the ECHR will be difficult, and reparation can most likely only consist of secondary forms, such as monetary compensation.31
Interestingly, the Court has never explicitly emphasized this link between the indication of interim measures and securing restitution. This is contrary to the stance of
the Human Rights Committee, which has held that:
[t]he essential criterion is indeed the irreversibility of the consequences, in the sense of the
inability of the author to secure his rights, should there later be a finding of a violation of the
Covenant on the merits. The Committee may decide, in any given case, not to issue a request
under rule 86 where it believes that compensation would be an adequate remedy.32
In addition, if one assesses current practice, the field of application of Rule 39 is – compared with the situations in which the ECtHR could secure restitution – rather limited.
The Court understands interim measures as an exceptional instrument and almost
exclusively provides interim relief with respect to risks for life and limb that may raise
an issue under Articles 2 or 3 of the ECHR.33 Requests for the protection of property
under Article 1 of Protocol 1, for instance, have not led to the adoption of interim measures, although the destruction of property, for instance, does not usually allow for restitution.34 In light of the general principle established by the Court, according to which
the applicant should be placed in a situation as close as possible to the one existing
before the breach, it may be surprising that the Court has not yet explicitly recognized
the potential of the instrument of interim measures to secure restitution.
4 Setting the Parameters for Implementation (Judgment)
A The Indication of Individual and General Measures
After finding a violation of the ECHR in a specific case, the ECtHR can neither nullify
or invalidate the national legislation of the state concerned nor quash the respective
See the second section of this article.
For an example of an interim measure suspending a removal and of the general principles under the Court’s
case law in this field, see Saadi v. Italy, Appl. no. 37201/06, Judgment of 28 February 2008, at 124–133.
Human Rights Committee, Charles E. Stewart v. Canada, Communication no. 538/1993, 1 November
1996, at 7.7. For a detailed comparison of the two adjudicators’ practice, see Keller and Marti, ‘Interim
Relief Compared: Use of Interim Measures by the UN Human Rights Committee and the European Court
of Human Rights’, 73(3) ZaöRV (2013) 325.
Savriddin Dzhurayev v. Russia, Appl. no. 71386/10, Judgment of 25 April 2013, at 213; Practice Direction,
Requests for Interim Measures issued by the President of the Court in Accordance with Rule 32 of the
Rules of Proceduce and Evidence, 5 March 2003 (amended on 16 November 2009 and 7 July 2011,
available at www.echr.coe.int (last visited 1 September 2015)).
Keller and Marti, supra note 32, at 360.
domestic decisions.35 The execution of the Court’s judgments is therefore subject to,
and dependent on, the adoption of implementing measures by the domestic authorities. From the perspective of the Court, the implementation of its judgments has traditionally entailed judicial restraint and deference vis-à-vis the domestic level. Thus,
aside from construing the effects of its judgments in accordance with international
law, the Court has located the concretization of the threefold obligation arising from
a violation of the Convention at the national level. Consequently, it has in principle
– except by the award of financial compensation under Article 41 of the ECHR –
abstained from determining specific remedies itself.36 In this vein, since the Marckx
case,37 the Court has repeatedly held:
that its judgments are essentially declaratory in nature and that, in general, it is primarily for
the State concerned to choose, subject to supervision by the Committee of Ministers, the means
to be used in its domestic legal order in order to discharge its obligation under Article 46 of
the Convention, provided that such means are compatible with the conclusions set out in the
This formula is said to reflect the principle of subsidiarity,39 which underpins the ECHR
system and according to which it is presumed that the national authorities are, in
principle, better placed than the ECtHR to identify and decide on implementing measures.40 The Court has therefore regularly stated that contracting states’ freedom in
choosing the means for fulfilling their primary obligation under Article 1 of the ECHR
to secure the rights and freedoms guaranteed under the Convention equally applies to
the secondary obligations arising from a breach of the ECHR.41
For a while now, the Court’s remedial practice has been undergoing significant
changes.42 In employing what can overall be termed a hybrid approach to remedies,43
The contracting states explicitly rejected a proposal vesting the Court with such powers. Council of
Europe, Collected Edition of the Travaux Préparatoires of the European Convention on Human Rights, vol. 1
(1975), at 45; Le Compte, Van Leuven and De Meyere (former Art. 50), Appl. nos. 6878/75 and 7238/75,
Judgment of 18 October 1982, at 13.
With the exception of awarding just satisfaction pursuant to Art. 41 ECHR.
Marckx v. Belgium, Appl. no. 6833/74, Judgment of 13 June 1979, at 58.
Instead of many, see Oleksandr Volkov v. Ukraine, Appl. no. 21722/11, Judgment of 9 January 2013, at 194.
Handyside v. the United Kingdom, Appl. no. 5493/72, Judgment of 7 December 1976, at 48; Brighton
Declaration, supra note 2, at 3.
Greens and M.T. v. the United Kingdom, Appl. nos. 60041/08 and 60054/08, Judgment of 23 November
2010, at 113.
Papamichalopoulos and Others, supra note 18, at 34.
For a general overview, see Colandrea, ‘On the Power of the European Court of Human Rights to Order
Specific Non-Monetary Measures: Some Remarks in Light of the Assanidze, Broniowski and Sejdovic
Cases’, 7(2) HRLR (2007) 396; Leach, ‘No Longer Offering Fine Mantras to a Parched Child? The
European Court’s Developing Approach to Remedies’, in A. Føllesdal, B. Peters and G. Ulfstein (eds),
Constituting Europe: The European Court of Human Rights in a National, European and Global Context (2013)
142; Jahn, ‘Ruling (In)directly through Individual Measures?: Effect and Legitimacy of the ECtHR’s New
Remedial Power’, 74(1) ZaöRV (2014) 1; Sicilianos, ‘The Role of the European Court of Human Rights in
the Execution of Its Own Judgments: Reflections on Article 46 ECHR’, in A. Seibert-Fohr and M.E. Villiger
(eds), Judgments of the European Court of Human Rights: Effects and Implementation (2014) 285.
Compare Neuman, ‘Bi-Level Remedies for Human Rights Violations’, 55(2) Harvard International Law
Journal (2014) 323, at 350, 352. Innovations such as unilateral declarations or friendly settlements, in
the context of which remedies are, to a certain extent, open to negotiation, do not form this contribution.
EJIL 26 (2015), 829–850
it is striking that, over the last two decades, the Court has become increasingly willing
to occasionally give up its declaratory approach and, instead, spell out in the judgment, in a more or less detailed manner, what measures are required of the respondent
state in order to repair the violation inflicted and fulfil its obligation of compliance.
Although it still maintains that its judgments are essentially declaratory, the Court’s
standard formulation now reads as follows:
Exceptionally, with a view to helping the respondent State to fulfil its obligations under Article
46, the Court will seek to indicate the type of measure that might be taken in order to put an
end to a violation it has found to exist. In such circumstances, it may propose various options
and leave the choice of measure and its implementation to the discretion of the State concerned. ... In certain cases, the nature of the violation found may be such as to leave no real
choice as to the measures required to remedy it and the Court may decide to indicate a specific
Similarly, the Practice Direction on Just Satisfaction issued by the Court holds that:
[t]he Court’s awards, if any, will normally be in the form of a sum of money to be paid by
the respondent Contracting Party to the victim or victims of the violations found. Only in
extremely rare cases can the Court consider a consequential order aimed at putting an end or
remedying the violation in question. The Court may, however, decide at its discretion to offer
guidance for the execution of its judgment (Article 46 of the Convention).45
Individual measures find their origin in a line of jurisprudence developed under
Article 41 that was initiated in the case of Papamichalopoulos and Others v. Greece, in
which the Court, for the first time, departed from the principle of the declaratory
character of its judgments.46 Alongside the usual declaration that the ECHR was violated – in the case at hand, a de facto expropriation was found to be incompatible with
Article 1 of Protocol 1 – the Court went a step further and held in the operative part
of the judgment that Greece was to return the land in issue to the applicants within
six months. Requiring an action as specific as the return of the land was a novelty in
that, until that time, the Court had refrained from specifying what form restitution
Another well-known early example is Assanidze v. Georgia, where the Court held that
an unlawful detention under Articles 5 and 6 of the ECHR should be remedied by
securing ‘the applicant’s release at the earliest possible date’.47 In this case, the Court
justified its deviation from its practice of providing declaratory relief in more detail. It
held that ‘by its very nature, the violation found in the instant case does not leave any
real choice as to the measures required to remedy it’.48 A similar practice emerged with
respect to situations in which the guarantees under Article 6 have not been respected.
The Court has held that the re-opening of criminal proceedings that it found to be
contrary to Article 6 would be the most adequate form of redress for the applicant
Instead of many, see Volkov, supra note 38, at 195.
President of the ECtHR, Practice Direction on Just Satisfaction Claims, in accordance with Rule 32 of the
Rules of Court, 28 March 2007, at 23.
Papamichalopoulos, supra note 18.
Assanidze v. Georgia, Appl. no. 71503/01, Judgment of 8 April 2004, point 14(a) of the operative
Ibid., at 202.
concerned under Article 41 of the ECHR.49 While, initially, the Court confined itself
to merely identifying, and thereby recommending, the re-opening of the procedure as
the most adequate form of restitution, it later also ordered such measures in the operative provisions of its judgments.50
In a second line of case law, the Court further broadened the scope of its indication
of specific individual measures; however, it did so under Article 46 instead of, as it had
done previously, under Article 41 of the ECHR.51 In response to a continuing violation
under Articles 3 and 5(3) of the ECHR in the context of detention, the Court held in
its reasoning in the judgment in Aleksanyan v. Russia that ‘in view of the gravity of
the applicant’s illnesses, ... continuous detention is inacceptable’ and that, therefore,
‘the Russian Government, in order to discharge its legal obligation under Article 46
of the Convention, must replace detention on remand with other, reasonable and less
stringent, measure[s] of restraint, or with a combination of such measures, provided
by Russian law’.52
In Sławomir Musiał v. Poland, it held similarly, albeit in the operative provisions, that
the respondent state was to secure, at the earliest possible date, adequate conditions of
the applicant’s detention in a specialized institution capable of providing him with the
necessary psychiatric treatment and constant medical supervision.53 More recently, in
Oleksandr Volkov v. Ukraine, the ECtHR went so far as to find that the respondent state had
an obligation under Article 46 to secure the applicant’s reinstatement at the earliest possible date in order to provide redress for his dismissal as a Supreme Court judge, which
had occurred in disregard of Articles 6 and 8 of the ECHR.54 Given the systemic domestic
deficiencies with respect to the independence of the judiciary, the Court found that the
re-opening of the procedure would not afford adequate redress and, therefore, requested
the reinstatement of the applicant.55 In early 2014, in Pelipenko v. Russia (just satisfaction), the Court held that the respondent state had to secure, by appropriate means, the
enforcement of a domestic judgment that ordered the resettlement of unlawfully evicted
applicants. Since the applicants did not have any other place of residence, the Court
even ordered the state to bear the costs of the applicants’ accommodation, be it in a hotel
or a rented flat, for the period during which the judgment remained unenforced.56
See, e.g., Gençel v. Turkey, Appl. no. 53431/99, Judgment of 23 October 2003, at 27.
Lungoci v. Romania, Appl. no. 62710/00, Judgment of 26 January 2006, point 3(a) of the operative provisions. The introduction of these re-trial or re-opening clauses was based on the prior practice of the
Committee of Ministers and followed the encouragement of the contracting parties ‘to examine their
national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of
the case, including reopening of proceedings, in instances where the Court has found a violation of the
Convention’. Committee of Ministers, Recommendation no. R (2000) 19 January 2000, 2.
The change of legal basis can presumably be explained by the introduction of the pilot judgment procedure
and the indication of so-called general measures, which will be discussed in more detail later in this article.
Aleksanyan v. Russia, Appl no. 46468/06, Judgment of 22 December 2008, at 240.
Sławomir Musiał v. Poland, Appl. no. 28300/06, Judgment of 20 January 2009, point 4(a) of the operative
Volkov, supra note 38, at 208 and point 9 of the operative provisions.
Pelipenko v. Russia, Appl. no. 69037/10, Judgment of 16 January 2014, at 30 and point 1 of the operative
provisions (just satisfaction).
EJIL 26 (2015), 829–850
In parallel to the ECtHR’s evolving practice on individual measures, it also began
adopting so-called general measures under Article 46 of the ECHR. General measures
were introduced by the Court in the context of the well-known pilot judgment procedure, which today is codified in the Rules of Court.57 While individual measures aim at
cessation and reparation, general measures primarily concern the state’s obligation to
prevent future violations, which in terms of the ILC corresponds to assurances of nonrepetition.58 In this sense, general measures transcend the individual case and are also
aimed at protecting persons who are in a situation similar to that of the applicant by
ensuring that domestic legislation is in conformity with the Convention.59
Currently, the adoption of general measures is no longer limited to pilot judgments.
Whenever a case reveals problems of a systemic nature in the domestic legal order,
though these need not necessarily be of a large scale, the ECtHR may indicate general
measures under Article 46.60 Coupled with time limits, the resulting judgments usually call for legislative reforms or policy change,61 but they may also require administrative measures62 or changes of jurisprudence.63 In the context of pilot judgments,
the introduction of an effective remedy at the national level is a typical measure that
has been indicated.64 The specificity of such general measures has varied.65 In Greens
and M.T., for instance, the Court requested that the United Kingdom bring forward,
within six months, legislative proposals intended to amend existing electoral law without considering it appropriate to specify what the content of future legislative proposals should be.66 In other cases – for instance, concerning the unreasonable length of
See, e.g., Broniowski v. Poland, Appl. no. 31443/96, Judgment of 22 June 2004, at 188–194; Rule
61 ECtHR Rules of Court. The pilot judgment procedure goes back to a recommendation made to the
Court by the Committee of Ministers, suggesting that the former, in its judgments finding a violation of
the ECHR, identify what it considers underlying systemic problems and the source of these problems,
in particular when they are likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments.
Committee of Ministers, Resolution (2004)3, 12 May 2004.
Nollkaemper, ‘Constitutionalization and the Unity of the Law of International Responsibility’, 16(2)
Indiana Journal of Global Legal Studies (2009) 2, at 16; Colandrea, supra note 42, at 409; although, as
Besson rightly points out, general measures can simultaneously put an end to the breach of the individual applicant’s rights. Besson, ‘Les effets et l’exécution des arrêts de la Cour européenne des droits de
l’homme: Le cas de la Suisse’, in B. Ehrenzeller and S. Breitenmoser (eds), EMRK und die Schweiz (2010)
125, at 158.
Taken together, individual and general measures reflect the Court’s dual judicial function, which – alongside the delivery of individual justice – also presents a constitutional dimension. See Colandrea, supra
note 42, at 406. These measures, of course, also present an innovative mechanism for more efficiently
managing the increased workload stemming from repetitive cases having their root cause in systemic
deficiencies in the domestic legal order.
See, e.g., Volkov, supra note 38; these are so-called Art. 46 cases or quasi-pilot judgments.
Greens and M.T., supra note 40, point 6(a) of the operative provisions.
Kurić and Others v. Slovenia, Appl. no. 26828/06, Judgment of 26 June 2012, point 9 of the operative
Broniowski, supra note 57, point 4 of the operative provisions.
Rumpf v. Germany, Appl. no. 46344/06, Judgment of 2 September 2010, point 5 of the operative
Leach, supra note 42, at 163.
Greens and M.T., supra note 40, at 115.
criminal proceedings – the Court set out a detailed description of the key features that
the effective compensatory remedy demanded at the domestic level was required to
exhibit.67 If adopted in a pilot judgement, these general measures are included in the
operative provisions of the judgment. If adopted outside the pilot judgment procedure,
they usually only appear in the reasoning of the Court’s judgment.68 However, even in
these so-called Article 46 or quasi-pilot judgments, the call for the adoption of general
measures may be formulated in mandatory terms.69
Finally, in a recent judgment against Russia, the ECtHR examined the applicant’s
complaints under Article 46 of the ECHR without, however, ordering any type of measures.70 In this enforced disappearance case, the Russian government failed to comply
with the interim measures indicated by the Court, and at the time of the delivery of
the judgment, the whereabouts of the applicant were still unknown. Probably fearing
that its judgment will also not be duly executed, the Court felt ‘compelled to examine
certain aspects of the case ... under Article 46 of the Convention’.71
This short survey of the ECtHR’s evolving case law on remedies illustrates the
Court’s increased endeavour to exert influence on the execution of its judgments.
By occasionally going beyond its usual declaration that the ECHR has been violated
and, in addition, directing the respondent state to take or abstain from specific action,
the Court has complemented implementation (as a domestic and political process)
through either guidance or orders. As the more recent judgments discussed above
show, judicialization in this area is an ongoing phenomenon. The Court has not only
expanded the scope of application of both individual measures and general measures,
but it has also bolstered their legal effect and more often issues them in mandatory
It would go beyond the scope of this article to empirically investigate the complex
causal effects of the ECtHR’s current hybrid remedial practice on compliance with
its judgments.72 In order to discuss the potential benefits and drawbacks of indicating specific performance for implementation, the authors must therefore limit themselves to laying out the assumptions that underlie the Court’s evolving jurisprudence.
According to the Court’s standard formula, providing performance-specific remedies
is a means for helping the respondent state fulfil its obligations to abide by a judgment
and facilitate the monitoring task of the Committee of Ministers.73 In other words,
Dimitrov and Hamanov v. Bulgaria, Appl. nos. 48059/06 and 2708/09, Judgment of 10 May 2011, at
125; Ananyev and Others v. Russia, Appl. nos. 42525/07 and 60800/08, Judgment of 10 January 2012,
For an exception, see Lukenda v. Slovenia, Appl. no. 23032/02, Judgment of 6 October 2005, point 5 of the
Dybeku v. Albania, Appl. no. 41153/06, Judgment of 18 December 2007, at 64.
Mukhitdinov v. Russia, Appl. no. 20999/14, Judgment of 21 May 2015.
Ibid., paras 107–109.
In general, it seems that further research is needed on how remedy design affects implementation in
order to identify practices that most effectively facilitate the implementation process without, of course,
compromising the result pursued by the measure in question. For a good overview, see Neuman, supra
Volkov, supra note 38, at 195; Greens and M.T., supra note 40, at 107.
EJIL 26 (2015), 829–850
the Court’s role or responsibility when delivering a judgment can be seen in facilitating and supporting the implementation process by setting clear parameters for the
latter. The first step for implementation is always to identify what a judgment actually demands.74 Whereas declaratory relief remains vague and ambiguous in this
respect, indicating specific measures concretizes what cessation or reparation actually
entails and thereby sets a clear starting point as well as a result to be achieved through
implementation.75 This aspect seems of particular relevance with respect to states possessing weak enforcement structures. As Dia Anagnostou and Alina Mungiu-Pippidi
have demonstrated, these states may be ‘unable to amass the necessary human rights
knowledge and expertise to define the implications of these judgments and to formulate the most effective measures to remedy the respective violations’.76
Recommending or ordering specific implementing measures, of course, does not
guarantee that they will actually be adopted at the domestic level. Yet clarity as to
the precise obligations arising out of an adverse judgment may have positive effects
on compliance. It has been shown, for instance, that the more clearly an obligation
is formulated, the higher the political costs of not abiding by it are for a state.77 In
addition, concrete remedies deliver an important point of reference in terms of evaluating implementation through which non-compliance becomes easier to establish.
This action, in turn, improves accountability: in the Committee of Ministers, the diplomatic or political leeway for justifying non- or partial compliance shrinks and, in the
domestic sphere, the government is more easily exposed to pressure from civil society.
In certain constellations, the specification of remedies by the ECtHR may also be
counter-productive for compliance purposes. For instance, measures perceived as
overly intrusive may raise objections by and within domestic authorities or the Court
may demand measures that are not feasible to implement in the domestic system due
to their form, content or the time frame set. In other cases, a certain measure may
have negative impacts on third parties or even on the applicant himself or herself.78
However, it seems that such drawbacks can be minimized by having regard to two
Huneeus, supra note 3, at 443.
Leach, supra note 42, at 160; Sitaropoulos, ‘Implementation of the European Court of Human Rights’
Judgments Concerning National Minorities or Why Declaratory Adjudication Does Not Help’, European
Society of International Law Conference Paper Series, No. 4/2011 (2011), at 16ff.
Anagnostou and Mungiu-Pippidi, supra note 7, at 223.
Staton and Vanberg, ‘The Value of Vagueness: Delegation, Defiance, and Judicial Opinions’, 3 American
Journal of Political Science (2008) 504, at 504; Helfer, ‘Redesigning the European Court of Human Rights:
Embeddedness As a Deep Structural Principle of the European Human Rights Regime’, 19(1) EJIL (2008)
125, at 156.
The individual measure in Volkov is quite illustrative, as the applicant had for two years not been reinstated
despite vacancies at the Supreme Court of Ukraine. Case no. 22, 1222nd DH meeting of the Ministers’
Deputies, 12 March 2015, and Case no. 2, 1186 DH meeting, 3 December 2013; see also the dissenting
opinion of Judge Yudkivska in Volkov, supra note 38. With respect to the inter-American system, Huneeus
found that, if different actors at domestic level are called upon to take implementing measures, compliance is less likely than if only one authority is involved. Huneeus, ‘Courts Resisting Courts: Lessons
from the Inter-American Court’s Struggle to Enforce Human Rights’, 44 Cornell International Law Journal
(2011) 493, at 508; see also Huneeus, supra note 3, at 448. This may stem from the fact that responsibility at the domestic level is dispersed. Voeten found that states with weak implementing structures attract
more demanding judgments. Voeten, supra note 13, at 233.
points. First, when indicating a specific measure, the Court should carefully assess
whether the measures indicated are actually mandatory or whether they represent
recommendations that the State may or may not follow. Second, possible negative
effects on compliance or for the situation of the applicant could, to a certain extent,
be anticipated by allowing both the applicant and the responding state to comment on
the issue of remedies. These points are discussed in more detail below in the context
of subsidiarity and the legal nature of individual and general measures. Lastly, it must
also be recalled that a state found to be in violation of the ECHR has the secondary
obligation to provide full reparation, which not only comprises the payment of the
satisfaction awarded but also the adoption of individual and/or general measures if
necessary. To that extent, the Court never imposes new obligations but only clarifies
existing secondary obligations, the implementation of which might have caused problems either way.79
B Consolidating and Advancing Current Practice
In the following discussion, the authors raise five points they consider crucial with a
view to consolidating, strengthening and legitimizing current practice, which, in turn,
may further induce better implementation. First, the ambiguity as to the capacity of
the ECtHR for the adoption of specific non-monetary measures could be remedied.
As discussed, the Court initially recommended individual measures under Article 41,
whereas today it invokes Article 46 for individual and general measures alike. Both
provisions, however, at least in a literal reading, do not provide for the indication of
specific non-monetary remedies.80 In our view, the Court’s capacity to decide on remedies (including the performance of specific actions) can be construed as an implied
power of an adjudicator such as the ECtHR.81 So far, the Court has not advanced such
an argument. It has therefore been demanded that the Court be given a legal basis for
the indication of such measures.82 These concerns become even more relevant in light
of the recent trend to increase the use of mandatory language. As has already been
done for the adoption of general measures in the context of pilot judgments, the Court
could amend its Rules of Court to that effect.83
Second, the current scope of application of individual measures is somewhat lacking in consistency.84 Whereas the ECtHR applies general measures if a case reveals
structural problems, the relevant criteria for the adoption of individual measures are
less clear. In the context of mandatory individual measures, the Court usually refers
to the self-evidence of the measures by holding that ‘by its very nature, the violation
Lambert, supra note 16, at 480.
Compare, e.g., the argument of the Italian government in Sejdovic v. Italy, Appl. no. 56581/00, Judgment
of 1 March 2006, at 115; for a critical analysis on the Court’s power to adopt prescriptive orders, see
Cremer, ‘Prescriptive Orders in the Operative Provisions of Judgments by the European Court of Human
Rights: Beyond res judicanda?’, in Seibert-Fohr and Villiger, supra note 42, 39.
C. Brown, A Common Law of International Adjudication (2007), at 54, 66, 75; Gray, ‘Remedies’, in K.J.
Alter, C. Romano and Y. Shany (eds), Oxford Handbook of International Adjudication (2013) 871, at 874.
Besson, supra note 58, at 178.
See Rule 61 ECtHR Rules of Court.
For a similar assessment, see Leach, supra note 42, at 160.
EJIL 26 (2015), 829–850
found in the instant case does not leave any real choice as to the measures required
to remedy it’.85 Other criteria, however, such as the gravity of the violation and the
urgency of redress for, in particular, continuing violations, seem equally important.86
Furthermore, as Volkov shows, the existence of systemic deficiencies may also call
for specific individual measures.87 In terms of the rights concerned, it seems that the
Court is more likely to indicate individual measures in the context of unlawful detention (Article 5), unfair legal proceedings (Article 6) or property cases (Article 1 of
Protocol 1), than it is, for instance, to redress (continuing) violations of Article 2 or 3
of the ECHR – gross human rights violations – or violations of any other Convention
The Court’s rather reluctant use of its power to indicate individual measures in
Article 3 cases may lead to a discrepancy between the pre-judgment and judgment
stages. Thus, it might well be that specific protection afforded through interim measures ends with the judgment, as the finding of a violation is deemed to be sufficient.
In light of these inconsistencies, but also given the potential benefits of setting clear
parameters for implementation, one may legitimately raise the question whether the
Court should not abandon its current position according to which it indicates specific
non-monetary measures only exceptionally. With a view to clarifying the respondent
state’s obligations under Article 46 and facilitating the implementation of judgments,
the Court could indicate on a regular basis whether individual or general measures
should be taken and, if yes, what type of measures. In any case, it is very much an
open question whether the Court’s standard formulation and its practice direction
referring to the exceptionalism of conduct-specific measures still accurately reflect
current case law.
The question then remains whether, and in which circumstances, the ECtHR
should be able to indicate specific remedial conduct in mandatory terms as opposed to
mere recommendations. As discussed earlier, in its current practice, the legal nature
of the indicated measure is not always straightforward but often a matter of literal and
systematic interpretation of the judgment. For the sake of transparency and clarity,
it seems advisable to distinguish more clearly between recommendations and consequential orders and to always include the latter in the operative part of judgments.
Whether, and in which cases, the Court should resort to the latter is a question that
needs to be resolved with reference to the principle of subsidiarity. As mentioned earlier, the authors argue that the Court has, as part of its judicial function, the capacity
to decide on remedies necessary for repairing a violation of the ECHR, even if that
includes issuing conduct-specific orders.
It is, however, the principle of subsidiarity that should guide the Court in using
these powers and with respect to which it needs to legitimize orders superimposing the
See Assanidze, supra note 48.
Leach, supra note 42, at 160; Colandrea, supra note 42, at 400ff; Volkov, supra note 38, at 208.
Volkov, supra note 38.
Nifosi-Sutton, ‘The Power of the European Court of Human Rights to Order Specific Non-Monetary
Relief: A Critical Appraisal from a Right to Health Perspective’, 23 Harvard Human Rights Journal (2010)
51, at 62ff.
domestic level. In the context of remedies, subsidiarity is largely the result of judicial
self-restraint by the Court. The principle has generally been understood as meaning
that the domestic authorities are usually in a better position to decide on remedies
than the Court. This general presumption should remain applicable, as it accounts for
the fact that implementing measures of a certain complexity requires a balancing of
interests, which can be performed better by the domestic authorities. However, subsidiarity not only creates a presumption locating primary responsibility at the domestic level but also entails a corresponding duty of the Court to step in where shared
responsibility – that is, the effective implementation of the judgment and granting
full reparation to the applicant – is likely to be compromised.89 Thus, in less complex
cases, it would seem that the Court, which decided the case and found a violation of
the ECHR, is in a better position to determine the content of restitution than the government, which was the defendant in the Strasbourg proceedings. We would therefore
advocate in favour of a flexible and nuanced operationalization of subsidiarity in the
context of remedies.
In our view, the determination of the level on which the final say in determining
remedies should be retained is a question that is very much dependent on the circumstances of the case at hand, requiring a case-by-case balancing by the ECtHR.90
Reasons for the Court to order specific measures may lie, for instance, in the urgency
of providing redress for a continuing violation, the nature or gravity of a specific violation, the character of the ECHR’s right that is breached (core or absolute right) or
the (systemic) deficiencies in providing reparation for human rights violations at the
domestic level. In contrast, multi-polar (human) rights situations (for example, cases
where third party rights must be accommodated), the impossibility for the Court to
fully grasp the implications of the case at hand or the need for legislative action may
speak for deference to the domestic level. Where deference is indicated, the Court
would be required to recommend specific measures – so that it ultimately remains for
the state concerned to decide whether it wants to follow the guidance provided by
the Court – or to formulate mandatory measures – especially general measures – in a
rather broad manner allowing domestic authorities enough leeway in implementing
them. In order to foster the legitimacy and also the effectiveness of the Court’s balancing exercise with respect to subsidiarity, it is further suggested that the Court provide
Helfer, supra note 77, at 149; Leach, supra note 42, at 178; Jahn, supra note 42, at 22ff. In addition, it
must also be kept in mind that, in the context of implementation, the principle of subsidiarity has served
the Court as a doctrinal guideline for imposing particular self-restraint on itself. Deciding on remedies
is, in reality, a genuine judicial task of any adjudicator. See sources in note 81 in this article. Certain
remedial measures may also directly aim at strengthening the subsidiary role of the domestic system:
‘The Court would add that the introduction of an effective compensatory remedy would be particularly
important in view of the subsidiarity principle, so that individuals are not systematically forced to refer to
the Court in Strasbourg complaints that require the finding of basic facts or the calculation of monetary
compensation – both of which should, as a matter of principle and effective practice, be the domain of
domestic jurisdictions.’ Ananyev, supra note 67, at 221.
Interestingly, Jahn speaks of a balancing exercise between the principles of effectiveness and subsidiarity
by the Court. Jahn, supra note 42, at 28. In our view, the operationalization of the principle of subsidiarity
itself already requires such a balancing.
EJIL 26 (2015), 829–850
reasons as to why it considers it necessary to intervene either by orders or by recommendations and allow both the applicant and the responding state to submit observations on the issue of remedies.
Third, we propose that the ECtHR should expand its practice of setting binding time
frames for implementation. Delay is a key problem, and binding time limits may countervail procrastination by domestic authorities. The Court already imposes time limits
with respect to the adoption of general measures in the context of pilot judgments as
well as for the payment of just satisfaction,91 and its orders of conduct-specific individual measures have sometimes displayed a temporal indication such as ‘as soon as possible’ or ‘immediately’. The Court could therefore amend its Rules of Court to include
the possibility of setting a binding time frame for implementation and the adoption of
the different measures.
Fourth, the ECtHR should correlate its new approach on affording non-monetary remedies with its long-standing practice under Article 41. Under this
provision, the Court may, in the operative part of its judgments, direct the respondent state to award the applicant just satisfaction – a sum of money intended
to compensate, inter alia, for the pecuniary and non-pecuniary damages suffered.92 Having identified restitution as the primary form of reparation, the Court
acknowledged that compensation for damages under Article 41 is, in principle,
only a subsidiary form of reparation. Hence, just satisfaction should come into
play where restitution is impossible or only partly possible and a violation cannot
otherwise be remedied.93
Current practice, however, does not accurately reflect the fact that just satisfaction is
only a subsidiary aspect of a wider obligation to repair. Often, the prevailing approach
of the ECtHR is to assume primary and sole competence in deciding on compensation,
usually without coordinating this sum with the (partial) restitution to be granted on
the national level at a later stage.94 In the case of some consequences of violations of
the ECHR, it may be clear, given their nature, that restitution by national authorities
will not be possible at all. In these situations, and as long as no monetary compensation can be sought at the domestic level,95 the Court may afford just satisfaction
in its judgments on the merits. In other cases, however, (partial) restitution remains
possible and may be expressly indicated in a specific individual and/or general measure. This must be taken into account by the Court when deciding on just satisfaction,
either by increasingly reserving (at least partially) the issue of compensation pending
As already done in practice, it should be possible for the Court to extend such time limits in certain circumstances. Compare Greens and M.T., supra note 40; Background Paper, supra note 16.
Art. 41 ECHR reads: ‘If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to
be made, the Court shall, if necessary, afford just satisfaction to the injured party.’
Scozzari and Giunta, supra note 18, at 250.
Lambert Abdelgawad, ‘Is There a Need to Advance the Jurisprudence of the European Court of Human
Rights with Regard to the Award of Damages?’, in Seibert-Fohr and Villiger, supra note 42, 115, at 119.
According to the wording of Art. 41, it was originally intended that the Court should afford compensation ‘only if domestic law does not allow complete reparation to be made’. The Court has, however, not
applied this requirement consistently. Abdelgawad, supra note 94, at 119.
implementation96 or by ordering it alternatively to specific non-monetary measures.97
Such an approach could also counteract the practice of certain states to only partially
comply with judgments by paying the sums awarded under Article 41 without adopting additional individual measures or addressing the underlying problems.98
Finally, in a broader context, the judicialization of the execution phase by the Court
also raises the question of the respective role of the parties to the proceedings and
whether they should be granted greater involvement in this area. With submissions
under Article 46 of the ECHR, for instance, both the applicant and the respondent
government could contribute to further consolidation, advancement and legitimization of the current practice.
5 Reviewing Implementation (Post-Judgment Phase)
Compared to the pre-judgment phase and to the judgment itself, judicialization
with respect to the post-judgment phase has remained more limited. This is due to
the ECtHR’s respect for the institutional balance set up by the ECHR, particularly its
Article 46(2), which places the execution of judgments under the political oversight
of the Committee of Ministers. Once the Court delivers its judgment, it is transmitted to the Committee of Ministers. At special human rights meetings, the respondent
state is invited to provide information about the measures taken in consequence of the
judgment, and the Committee of Ministers subsequently establishes whether the high
contracting party concerned has taken all of the necessary measures to abide by the
Only recently, in Kurić and Others v. Slovenia (just satisfaction), did the Court
[b]y virtue of Article 46 of the Convention, it will be for the Committee of Ministers to evaluate
the general measures adopted by the Republic of Slovenia and their implementation as far as
the supervision of the execution of the Court’s principal judgment is concerned. The Court has
consistently ruled that it does not have jurisdiction to verify, by reference to Article 46, whether
a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments unless Article 46 § 4 of the Convention, as it stands since the entry into force of Protocol
No. 14, applies.100
Rule 75 ECtHR Rules of Court, which reads: ‘[I]f the question is not ready for decision, the Chamber or
the Committee shall reserve it in whole or in part and shall fix the further procedure.’ See infra notes 116
E.g., see Papamichalopoulos and Others, supra note 18.
On the problem of partial compliance, see Hillebrecht, supra note 12, at 285ff; Jacoby and Hawkins,
‘Partial Compliance: A Comparison of the European and Inter-American Courts of Human Rights’, 6
Journal of International Law and International Relations (2010–2011) 35.
If this is the case, it adopts a resolution concluding that its functions have been exercised. Committee of
Ministers, Rules of the Committee of Ministers for the Supervision of the Execution of Judgments and of
the Terms of Friendly Settlements, 964th Meeting of the Ministers’ Deputies, 10 May 2006; Supervision
of the Execution of Judgments and Decisions of the European Court of Human Rights: Implementation of
the Interlaken Action Plan – Modalities for a Twin-Track Supervision System, Doc. CM/Inf/DH(2010)37)
Kurić and Others v. Slovenia, Appl. no. 26828/06, Judgment of 12 March 2014, at 142 (just satisfaction).
EJIL 26 (2015), 829–850
Hence, as a matter of principle, the Court stressed that the supervisory power of
the Committee of Ministers precluded it from verifying whether a contracting party
has complied with the obligations imposed on it by one of the Court’s judgments.101
Complaints brought under Article 46 of the ECHR and alleging a state’s failure to
execute a judgment have therefore systematically been declared inadmissible with
the provisions of the Convention’s ratione materiae.102 Most recently, the Court therefore held that ‘[t]he question of compliance by the High Contracting Parties with the
Court’s judgments falls outside its jurisdiction if it is not raised in the context of the
“infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention’.103
Yet, as the ECtHR held in Lyons and Others v. the United Kingdom, for instance, this
has not meant ‘that measures taken by a respondent State in the post-judgment phase
to afford redress ... of violations found fall outside the jurisdiction of the Court’.104
Put differently, the Court has acknowledged that it may – though to a variable degree
and only in certain situations – intervene in the post-judgment stage. To date, four
constellations may be distinguished, some of which show weak evidence for a sort of
incidental review of compliance.
First, the Court has held that it has jurisdiction to entertain follow-up applications
raising relevant new information not heard by the Court in its first judgment.105 In VgT
(No. 2), for instance, the Court emphasized that in examining whether there has been a
fresh violation of Article 10, it must take ‘into account the importance in the Convention
system of effective execution of the Court’s judgments in accordance with Article 46 of
the Convention’.106 The Court itself, however, admitted that the question whether there
is relevant new information allowing the Court to establish competence ratione materiae
without encroaching on the powers of the Committee of Ministers requires a case-bycase analysis, which is sometimes difficult and certainly not always clear-cut.107
This point is well illustrated by the Bochan v. Ukraine (No. 2) judgment.108 Relying on
the ECtHR’s first judgment of 3 May 2007, the applicant asked the Ukrainian Supreme
Court to reconsider her case. After her appeal was dismissed, she re-petitioned the
ECtHR and alleged, among other things, that the reasoning of the Ukrainian Supreme
Court contradicted manifestly with the ECtHR’s findings in its previous judgment. The
ECtHR considered that this particular grievance is not about ‘the outcome as such’
or the ‘effectiveness of the national courts’ implementation’ of the Court’s earlier
judgment but, rather, about ‘the manner in which the decision had been reached in
Times Newspaper Ltd., Giles, Knightley and Potter v. The United Kingdom, Appl. no. 10243/83, Commission
Decision of 6 March 1985, at 129; Haase and Others v. Germany (dec.), Appl. no. 34499/04, Judgment of
12 February 2008.
Bochan v. Ukraine (No. 2), Appl. no. 22251/08, Judgment of 5 February 2015, para. 33; on the infringement procedure, see discussion later in this article.
Lyons and Others v. the United Kingdom (dec.), Appl. no. 15227/03, Judgment of 8 July 2003.
Art. 35(2)(b) ECHR; Olsson v. Sweden (no. 2), Appl. no. 13441/87, Judgment of 27 November 1992, at
VgT (No. 2), supra note 25, at 83; see also Greens and M.T., supra note 40, point 5 of the operative
Egmez v. Cyprus (dec.), Appl. no. 12214/07, Judgment of 18 September 2012, at 54.
Bochan, supra note 104, at 20ff, 29.
the proceedings’. This sufficed for the Court to find that the applicant’s application
raised a ‘new issue’ under Article 6, section 1, of the ECHR, which it is competent to
examine.109 In other cases, the Court drew support for a finding that new information existed from the fact that the Committee of Ministers ended its supervision of the
execution and had not considered a certain development, which, if the Court were
unable to examine it, would have escaped all scrutiny under the Convention.110
This practice arguably culminated in the peculiar Emre (No. 2) judgment, in which
the ECtHR found not only a fresh violation of the Convention but also non-compliance
with the conclusions and the spirit of Emre (No. 1) by concluding that there had been
a violation of Article 8 in conjunction with Article 46. It held that:
[i]n view of the foregoing, the Court finds that the most natural execution of its judgment, and
that which would best correspond to the principle of restitutio in integrum, would have been
to annul purely and simply, with immediate effect, the exclusion measure ordered against the
applicant. Even assuming that another result would have been acceptable, the Court is of the
view that the binding force of its judgments under Article 46 § 1 and the importance of their
effective execution, in good faith and in a manner compatible with the ‘conclusions and spirit’
of the judgment, necessarily required, in the circumstances of the case, a more in-depth exam
ination of the considerations set out in the Court’s first judgment.111
To date, Emre (No. 2) remains the only judgment in which the Court actually found a
violation of Article 46 of the ECHR with respect to a follow-up application. Arguably,
the subsequent case law has limited the potential scope of application and, therefore,
also the significance of the judgment.
In United Macedonian Organisation Ilinden PIRIN and Others v. Bulgaria (No. 2), for example, invoking both Articles 11 and 46 of the ECHR, the applicants alleged that the refusals of domestic courts to register their political party had been in breach of their right to
freedom of association and of the Bulgarian State’s duty to abide by the Court’s prior judgment.112 Although the Chamber acknowledged that the issues under Article 46, section 1,
of the Convention were ‘closely intertwined’ with those arising under Article 11, it stated
that it is ‘very doubtful whether 46 § 1 may be regarded as conferring upon an applicant
a right that can be asserted in proceedings originating in an individual application’, and it
decided to examine the applicants complaints solely by reference to Article 11. Recently, in
Sidabras and others v. Lithuania, the ECtHR followed the same approach and found, in addition, that Emre (No. 2) was not pertinent for follow-up applications, which ‘only’ concern
the non-execution of general measures.113 The two concurring opinions in this judgment
clearly suggest that there is to some extent disagreement within the Court on which circumstances, and whether at all, Emre (No. 2) should remain a valid precedent.114
Ibid., at 35–39.
See, e.g., VgT (No. 2), supra note 25, at 67.
Emre v. Switzerland (No. 2), Appl. no. 5056/10, Judgment of 11 October 2011, at 75, 77.
United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (No. 2), Appl. nos. 41561/07 and
20972/08, Judgment of 18 October 2011, at 66.
Sidabras and Others v. Lithuania, Appl. nos. 50421/08 and 56213/08, Judgment of 23 June 2015, at 104
and 105 (not yet final at the time of writing).
Ibid. Compare the joint concurring opinion of Judges Spano and Kjølbro with the concurring opinion of
EJIL 26 (2015), 829–850
Second, dissociating the issue of just satisfaction under Article 41 from the judgment on the merits has equally enabled the ECtHR to inquire into how the latter
has been implemented.115 For instance, in the early case of De Cubber v. Belgium, the
Court found, after an analysis of the measures adopted by Belgium, that the domestic authorities had ‘not redressed the violation found in its judgment’ and ‘that they
have not brought about a result as close to restitutio in integrum as was possible in
the nature of things’.116 Only recently in the context of a judgment on just satisfaction following the adoption of a pilot judgment, the Court noted that ‘the respondent
Government had failed to set up an ad hoc domestic compensation scheme by 26 June
2013, when the one-year period referred to in the principal judgment expired’.117 The
Court made this statement under the heading of Article 46, and although it did not
find a violation of that provision, it nonetheless held that ‘there are currently some
sixty-five cases lodged by “erased” persons pending before the Court, involving more
than 1,000 applicants’, and it stressed that ‘swift implementation of the Kurić and
Others judgment is therefore of the utmost importance’.118
Third, a similar practice emerged with respect to examining whether friendly settlements reached after the adoption of a pilot judgment were based on the respect for
human rights required by Article 37(1) of the ECHR and Rule 62(3) of the Rules of
Court. In Hutten-Czapska v. Poland (friendly settlement), the Court approved a settlement ‘having regard to both the general measures for addressing the systemic problem that had been identified and the individual measures afforded to the applicant
under the agreement’.119 However, the depth of review exercised by the Court in such
cases, particularly with respect to the implementation of general measures, seems
rather limited. The Court emphasized that:
in exercising its own competence to decide whether or not to strike the case out of its list following the friendly settlement, it would take into account the active commitment that had been
demonstrated by the Government to take measures aimed at resolving the systemic problem
and rely on the actual and promised remedial action.120
As to further, more in-depth supervision, the Court explicitly referred to the competence and task of the Committee of Ministers.121
Fourth and lastly, the re-opening of clone cases, which had been frozen pending the
adoption of a pilot judgment, offers a similar means by which the ECtHR can review
and respond to the non-adoption of implementing measures indicated in a pilot
Barberà, Messegué and Jabardo v. Spain (former Art. 50), Appl. nos. 10588/83, 10589/83 and 10590/83,
Judgment of 13 June 1994; Pelipenko, supra note 56.
De Cubber v. Belgium (former Art. 50), Appl. no. 9186/80, Judgment of 14 September 1987, at 21.
Kurić and Others, supra note 100, at 138.
Ibid., at 144.
Hutten-Czapska v. Poland, Appl. no. 35014/97, Judgment of 28 April 2008, at 45 (friendly settlement).
Ibid., at 43.
Rule 61(8) ECtHR Rules of Court: ‘Subject to any decision to the contrary, in the event of the failure of the
Contracting Party concerned to comply with the operative provisions of a pilot judgment, the Court shall
resume its examination of the applications which have been adjourned in accordance with paragraph 6 above.’
Aside from these four constellations, which have emerged from the Court’s case law,
the contracting parties themselves have broadened the competence of the Court in
the post-judgment phase. Protocol 14 introduced a new form of direct judicial review
of compliance, the so-called infringement procedure under paragraphs 4 and 5 of
amended Article 46 of the ECHR.123 Modelled after EU law, the infringement procedure allows the Committee of Ministers to seize the Court if it considers that a high
contracting party is refusing to abide by a final judgment in a case to which it is a party.
Once it is seized, the Court has competence to directly review whether a judgment was
complied with and, if this is not the case, find a violation of Article 46(1). According to
the explanatory report to Protocol 14, the Committee of Ministers should only make
use of the infringement proceedings in exceptional circumstances.124 This is also
reflected by the high hurdle for triggering the referral to the Court, which requires a
qualified majority of two-thirds of the representatives entitled to sit on the Committee
of Ministers. Unsurprisingly, the Committee of Ministers has not resorted to the procedure in practice to date.
In conclusion, one observes that whereas incidental review of compliance by the
Court has remained weak and fragmented, its new power to directly review the execution of judgments is merely of a symbolic nature and has so far remained dead letter. Moreover, the initiation of both forms of review essentially depends on factors
that fall outside of the sphere of influence of the applicant.125 The Court’s position
in the post-judgment phase is clearly weaker than the execution-ordering role that
it can potentially assume in the previous two stages. By indicating, sometimes even
ordering, interim and specific individual and/or general measures, a judgment can
now bring more or less clearly defined obligations with it. This has bearing on the
supervision process: with more precise obligations, measuring compliance becomes
a question more of legal interpretation than of political or diplomatic nature and, in
turn, calls for a final judicial determination.126 We therefore argue that the Court’s
competence to review compliance with its judgments should be further strengthened.
A judicial finding on compliance can bring clarity and legal certainty as to whether
a state has duly executed a judgment, and a finding of non-compliance by the Court
may put additional pressure on the state concerned to secure execution of the initial
Extending the ECtHR’s jurisdiction in such a way may require amending the ECHR.
However, it could still be accommodated within the concept of shared responsibility
and be introduced without overthrowing the current institutional balance set up by the
For a recent analysis, see Mujezinović, ‘Compliance with Judgments from the European Court of Human
Rights: The Court’s Call for Legislative Reforms’, 31(4) Nordic Journal of Human Rights (2013) 496.
It was felt, maybe too naively, that ‘(t)he procedure’s mere existence, and the threat of using it, should act
as an effective new incentive to execute the Court’s judgments’. Explanatory Report to Protocol No. 14,
available at www.echr.coe.int (last visited 1 September 2015), at 100; see also CDDH Report, supra note
6, at 9.
See Sidabras and Others, supra note 113.
Huneeus, supra note 3, at 444.
See Explanatory Report to Protocol No. 14, supra note 124, at 99; CDDH Report, supra note 6, at 9;
Mujezinović, supra note 123, at 501.
EJIL 26 (2015), 829–850
Convention. One suggestion would be for the Committee of Ministers to retain the primary
responsibility to supervise the implementation of judgments within a binding time frame
provided by the Court. The latter could, however – upon the request of the applicant – review
compliance after the expiration of the period set for implementation. Thereby, the system of
political oversight that has proven useful for facilitating compliance through diplomatic dialogue and peer pressure would be complemented by a scheme of legal accountability, which
would step in if the former fails.128 After all, the preamble of the ECHR mentions collective
enforcement, and it is the task of the Court ‘to ensure the observance of the engagements
undertaken by the High Contracting Parties in the Convention and the Protocols thereto’.129
There is no reason why this task should not also include ensuring the observance of the
contracting parties’ engagement to fully comply with the Court’s judgments as required by
The need to ensure the implementation of judgments issued by the ECtHR, understood today as a responsibility shared between domestic actors and the organs of the
Council of Europe, has led the Court to reconsider its role and become more involved
in this area. This has marked an important step forward. However, there is potential
for improving the Court’s complementary function through the adoption of a more
holistic approach to implementation. The proposal of this article is to reconceptualize
implementation as a process that begins and ends in Strasbourg.130 In the pre-judgment stage, the Court can more effectively intervene with a view to securing restitution as the primary form of reparation. In its judgments, the Court can make it the
rule, rather than the exception, to set clear parameters for implementation by indicating specific non-monetary measures and a time frame for implementation. As to
the post-judgment phase, the contracting parties should ensure that the Court can
fully activate its complementary potential in the implementation process by extending
the Court’s judicial function to include a broader possibility for reviewing compliance.
Such comprehensive interlocking of the implementation process on the Convention
level may provide this same process with a legal framework and help achieve its overall
goal, which is full compliance with the Court’s judgments. Of course, adding to the
Court’s function may result in an increased workload in the short run. Provided, however, that judicialization has the desired effect on implementation, the Court’s case
load could potentially further decrease in the mid and long run, as a great deal of the
existing workload stems from repetitive cases and the lack of compliance with judgments in leading cases.
Çali and Koch, ‘Foxes Guarding the Foxes? The Peer Review of Human Rights Judgments by the Committee
of Ministers of the Council of Europe’, 14(2) HRLR (2014) 301.
Art. 19 ECHR.
In contrast to Hillebrecht, supra note 12, at 283, who found that implementation ‘neither begins nor ends