‘Fluid and evolving’: The European Court of Human Rights’ approach to specifying remedies
How far does—or should—the European Court of Human Rights recommend, or require, states to take specific non-monetary measures after the finding of a violation of the European Convention on Human Rights (ECHR)? This is a live debate within the Council of Europe (CoE) and one on which Judges of the Court do not always agree. It is also a debate that has implications for civil society and litigators and, since specificity may alter the prospects of a judgment getting implemented, for the overall functioning of the Convention system.
The Court’s approach to specifying remedies is in flux. An official of the Court’s Registry describes its remedial practice as “a learning process for everybody”: states, the Court and the Committee of Ministers (CM, the inter-governmental arm of the CoE, which under Article 46(2) of the Convention is tasked with supervising the execution of judgments). The official is quoted in an article we co-authored as part of the Human Rights Law Implementation Project, which (like this blog) draws on interviews with, among others, Judges of the Court, Council of Europe officials, government agents and civil society organisations, as well as a statistical analysis of judgments indicating non-monetary remedies between 2004-16.
Before the mid-2000s, the Court very rarely gave any indication of what a respondent state should do to remedy any violations found, whether in terms of adopting individual measures aimed at providing redress to the victim, or general measures to prevent similar violations from occurring in the future. Almost invariably, the Court would simply declare a violation, possibly award compensation, and then leave it to the state, supervised by the CM, to design the remedy.
This declaratory approach began to change in 2004 when states themselves, represented in the CM, invited the Court to assist them to find “appropriate solutions” to systemic problems. From then on, the Court became more directive. It used the pilot judgment procedure to identify the structural problem underlying repetitive cases and prescribe, with a deadline, measures to resolve it. Also, the Court invoked Article 46 ECHR (on the binding force and execution of judgments) to indicate remedial measures, without applying the pilot judgment procedure. Such indications in either type of judgment may be precise (e.g. Youth Initiative for Human Rights v Serbia; see paragraph 32) or expressed as guiding principles or desired outcomes (e.g. Samaras and others v Greece; see paragraph 73), with discretion left to the respondent state, under the CM’s supervision, to determine the means to be used.
The Court’s current practice
While pilot judgments are codified in the Rules of Court, there are no stated criteria for when Judges invoke Article 46. Judge Sicilianos observes extra-judicially that the Court generally recommends remedial measures having considered three factors: the existence of an underlying structural or systemic problem; the type and scale of the measure required; and the nature, seriousness and/or persistence of the violation. Judges feel especially emboldened to prescribe a remedy in cases in which there is only one possible response to the violation (as argued here). A notable example was Del Río Prada v Spain, in which the Court ordered Spain to release “at the earliest possible date” a woman convicted of terrorist offences on the basis of violations of Article 7 (No punishment without law) and Article 5(1) (Right to liberty).
How frequently does the Court order remedies? Contrary to some perceptions, directive judgments are still a tiny fraction of the Court’s case law and their use has not increased in recent years. Between 2004 and 2016, the Court issued 29 pilot judgments and 170 Article 46 judgments. These judgments constituted on average only 2% of all judgments finding a violation of the Convention, the vast majority of which are still declaratory.
Our statistical analysis also reveals that the Court indicates general measures more often than individual measures. This reflects its concern to aid states in remedying structural problems that give rise to repetitive cases and thereby safeguard the effectiveness of the Convention system.
It does not appear that any state has been singled out by the Court in respect of its decision to order specific remedies—or, conversely, has disproportionately escaped the use of such judgments. Eight of the ten states that received the highest number of directive judgments between 2004 and 2016 are also among the ten highest count states for the total number of judgments finding a violation during that period. In other words, the number of directive judgments is roughly in line with the overall number of judgments finding violations per state. Former Soviet states in that list include Russia (with a combined total of 22 pilot or Article 46 judgments) and Ukraine (11).
It may seem surprising that a state like Russia, with the second worst record in the CoE in terms of the number of violations found, including many with systemic causes, is not more frequently directed by the Court as to exactly what remedy is required. One explanation is that, in deciding on their remedial strategy, Judges seek, case-by-case, to anticipate whether indicating a particular remedy will, in practice, encourage implementation—and there may be pragmatic considerations for refraining from, or deferring, doing so.
Such considerations include the possibility that states resist remedial indications that are viewed as unrealistic or as interfering unduly with domestic decision-making. One Judge explained that the Court would usually refrain from issuing a pilot judgment unless the state has signalled its willingness to cooperate. Judges sometimes adopt an Article 46 judgment as a precursor to a pilot judgment, highlighting an emerging systemic problem, and putting the government ‘on notice’ that the Court may later escalate the matter.
In making such calculations, Judges are mindful of the political nature of the implementation process. One Judge told us that, in an enforcement system based upon “political will and pressure”, it is justifiable for a supranational court to take into account the need for remedial measures to be “persuasive and acceptable” to those that must implement them. The use of a variety of remedial strategies is indeed defensible if it meets the overriding purpose of achieving the best possible outcome for the victim (and potential future victims). As Judges develop their remedial practice, this imperative must prevail, lest pragmatism lead to different levels of redress for applicants in different states.
In designing appropriate remedies, Judges and drafting lawyers have been aided in recent years by an increased flow of both information (notably by means of the HUDOC-EXEC database) and personnel between the Court and the CM. The Court has thus become more sensitised to matters relating to execution, and better able to assess the state of implementation of earlier judgments relating to a question before them.
Reasons for caution
The Court’s greater engagement with execution matters—as noted above—has not led to a dramatic rise in directive judgments. This is partly because the Court is acutely aware of its limitations when it comes to specifying remedial measures. These include its geographical distance from the events on the ground and the lapse in time between the facts at the origin of an application and—often years later—judicial determination of the case. Judges are especially wary of indicating general measures which involve policy-based analysis requiring deep understanding of the political and legal environment in the respondent state.
The Court is also wary not to be seen as encroaching upon or undermining the supervisory role of the CM. Judges and officials recognise that the CM provides assistance drawn from good practice across states and hence is better placed than the Court to assess the ramifications of remedial indications on the domestic plane.
Government agents we interviewed also emphasised the value of dialogue during the execution process, both between domestic stakeholders and between the domestic and supranational levels. Combined with technical assistance from the Department for the Execution of Judgments (DEJ), such dialogue may yield solutions that are not initially apparent. This is one reason why government agents we spoke to did not express a wish for the Court to become significantly more directive than it currently is. The same caution is reflected in the report by the CM’s Steering Committee for Human Rights in 2015 on the longer-term future of the Convention system, which rejected proposals for more regular or formalised recourse to the indication of general measures (see paragraphs 145 and 163).
Impact on implementation
At the same time, there is no pattern of ‘pushback’ by states against the Court’s occasionally intrusive remedial practice. The issue has simply not featured in the contentious debate—which flared up before the Copenhagen conference in 2018—about the Court’s proper role vis-à-vis the principle of subsidiarity.
Indeed, CM officials who have daily contact with states said they would welcome, if anything, more frequent directive rulings. This message has been heard by at least some Judges, one of whom told us that the DEJ “would of course welcome more prescriptive-type reasoning—it … helps them in their work and we are well aware of that.”
Well-designed remedial indications can both provide guidance to states that are willing to give effect to the Court’s findings, and reduce the scope for unwilling actors to frustrate implementation, by making non-implementation easier to identify. This renders states more susceptible to pressure not only from the supranational level, but also domestically, since one effect of specificity is to strengthen the hand of conscientious domestic actors, particularly civil society, pushing for implementation. Indeed, the Court is aware of the need to identify ‘allies’ in the respondent state. As one Judge argued: “I think this is a legitimate strategy of the Court: giving some impetus to the implementation process and [helping] … groups on the national level to have some political force.”
The role of civil society
Strasbourg’s search for pro-implementation allies provides an opening for civil society actors and national human rights institutions (NHRIs) to become more involved at the implementation stage. This opportunity is not exploited to the full; NGOs and NHRIs make submissions to the CM in only five per cent of leading cases (see here, para. 17), and this figure is in fact decreasing.
Civil society actors who are attuned to execution matters acknowledge the value of greater direction from the Court for encouraging implementation. A representative of the Georgian Young Lawyers’ Association ventured that specificity “makes our work easier because … the government has no discretion whether to apply this measure or that.”
At the same time, an activist involved in the case of Identoba and Others v Georgia, concerning the state’s failure to protect demonstrators from, and effectively investigate, homophobic violence, argued that it would have been unrealistic for the Court to specify the general measures required to, for example, change prejudicial attitudes, which was a question best left to the CM’s supervision process. This observation captures the pragmatic approach of the civil society actors we interviewed, who sought clarity about the non-monetary remedies required either from the Court or the CM.
One Judge ventured that the Court’s “already rich” case law on remedies would benefit from consolidation. This in turn requires Judges to agree on areas of contention, including the Court’s very authority to issue binding orders in its judgments, which was exposed in the Grand Chamber judgment of Moreira Ferreira (No. 2) v. Portugal in 2017. In our interviews, the unusually prescriptive judgment in Oleksandr Volkov v Ukraine, which ordered the reinstatement of an unfairly dismissed Supreme Court judge, was the only judgment which some Judges regarded as having gone “too far”, although it was ultimately successful.
Another challenge for the future is to eliminate inconsistency in the Court’s remedial practice whereby Judges do not always stipulate specific, non-monetary individual measures even when there appears to be only one possible form of redress. In such cases, states might wilfully misinterpret the absence of remedial indications as suggesting that no such measures are required, as exemplified by the authorities’ protracted resistance to the judgment in Ilgar Mammadov v Azerbaijan, which omitted to explicitly order the release of the unlawfully detained opposition leader.
A concrete proposal for reform identified by some Judges is to institutionalise a process whereby the parties to a case would routinely be invited to make submissions on remedies. This would create a more informed basis for the Court’s assessment of possible measures in Article 46 cases in which, unlike in pilot judgments, the issue of remedies is almost never part of the pleadings before the Court.
On those rare occasions when applicants do invite the Court to specify remedies, the Court has shown that it is prepared to listen (see, for example, the detailed Article 46 chapter in Aslakhanova v Russia, concerning systemic problems with criminal investigations into disappeared persons from the North Caucasus, which appears to have been substantially informed by the applicants’ pleadings). However, Aslakhanova may prove to have been the high water mark in such cases from the North Caucasus in terms of the Court making detailed indications under Article 46 when urged by the applicants to do so; in its recent judgments in Kukurkhoyeva and Others and Yandayeva and Others, the Court preferred to leave it to the Russian Government to choose the means to be used in the domestic legal order with a view to discharging its legal obligation under Article 46. In other instances, too, Judges have rejected the applicants’ suggested remedies or have (as happened in Abu Zubaydah v Lithuania, concerning Lithuania’s involvement in a CIA secret detention programme; see paragraph 683) endorsed only some of them.
Nevertheless, judicial appetite for submissions on remedies creates every incentive now for applicants to indicate proactively, from the start of the litigation process, what measures they deem necessary—and for civil society actors to consider this dimension not only in their Rule 9 submissions to the CM, but also in third-party interventions before the Court.
Will Strasbourg move in the direction of the Inter-American Court of Human Rights, which takes the boldest approach of all supranational human rights bodies to stipulating reparations, or will those forces prevail that want to see Judges exercise more, not less, restraint?
Our research suggests that the Court is likely to chart a middle course, neither foreclosing the evolution of this aspect of its case law, nor accelerating the pace of change. Encouragement from the DEJ and the absence of any sustained challenge by states suggest that Judges enjoy a wider political latitude than they might suppose—space that they may well use to promote execution in the interests of actual and potential victims.