Execution of the ECtHR judgements Štefica Stažnik Representative of the Republic of Croatia before the European Court of Human Rights Zagreb, November 2017

Obligation to execute judgments Judgments of domestic courts as well as judgments of the ECtHR must be executed. „Right to access to a court would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party…” (judgement Budrov v Russia) Article 46 of the Convention on Human Rights and Fundamental Freedoms (Binding force and execution of judgments) The High Contracting parties undertake to abide by the final judgments of the Court in any case to which they are parties. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. Execution of a judgment – integral part of the right to fair trial (Article 6. Convention on Human Rights and Fundamental Freedoms) The Strasbourg Court infers the right of execution from the “principle of the rule of law” Respecting judgments of the Court –condition for membership of the Council of Europe (Res DH (2001)80 interim resolution in cases Loizidou v Turkey)

Two main processes take place in order to execute the ECtHR judgements: In a respondent State: A respondent State/Government which lost the case before the ECtHR has to execute the judgement. Its task is to undertake all necessary measures to promptly and effectively execute the judgement in every case to which it is the party. 2) In the Committee of Ministers of the Council of Europe (CM CoE): The CM CoE collectively supervise execution of every judgement of the Court. Its task is to ensure that member states comply with the judgments and certain decisions of the European Court of Human Rights. Third possible players in the execution process: Applicants may inform CM CoE of any problems related to obtaining the reparation NGOs may communicate with the CM CoE concerning the execution of a particular judgement.

Supervision of execution of the ECtHR judgments WHO? Supervision of the execution of the Court’s judgments and decisions continuously performs the Committee of Ministers of the CoE (CM CoE) CM CoE - members are Ministers of Foreign Affaires represented by their Deputies, Ambassadors at Permanent Representations of States Parties to COE in Strasbourg) CM CoE - collective supervision – each State has to justify its execution measures to all other States, members of Council of Europe in CM CoE. In the CoE – CM CoE supported by the Secreteriat, Department for Execution of Judgements (lawyers experts who prepare each case file for DH meetings and advise the CM during process of execution of every judgment)

HOW? The Court’s judgements and decisions are transmitted to the CM CoE upon their finality. 4 times in a year meetings of Minister’s Deputies devoted to execution of judgments and decisions of the Court (DH-HR meetings) DH-HR considers all cases and decides on the progress of execution – not all cases are systematically debated but all cases are on the agenda of all meetings. Within 6 months after the judgment becomes final, respondent State should deliver first information to the CM CoE on measures taken and/or envisaged in order to execute a judgement with a clear timetable. A respondent State should at least ones a year inform CM CoE on state of execution of every judgement under the supervision.

A respondent State delivers info on execution to the CM CoE in the form of Action Plans/Action Reports. - An Action Plan contains info on measures envisaged to execute a judgement. An Action Report contains all the measures a state has taken in order to execute certain judgement. A state delivers an Action report when considers that it has taken all measures and proposes to the CM CoE to end the supervision of the judgement. If satisfied with Action report the CM CoE accepts it and adopts a final resolution by which it closes the case. During the process of supervision CM CoE adopts interim resolutions (assessment of the progress achieved in execution –positive/negative).

Execution of judgments in a respondent State A respondent State should organise its system in a way to enables rapid execution of the ECtHR judgements (there is no reference to this issue in the text of the Convention or Rules of the Court). Case law of the Court: “the Court judgment leaves to the State the choice of the means to be used in its domestic legal system to give effect to the obligation under Art. 53” (judgement Scordino v Italy) „State must execute the judgment, domestic courts must apply the requirements of the European judgment directly and hold that domestic law is non-applicable pending amendment of the legislation” (judgement Vermeire v Belgium). States members of CoE have various models. Most states designated a coordinator for execution of judgments at the national level, with reference contacts in the relevant national authorities. Coordinating authority on national level: Office of the Agent before the Court, or specialized body (Intergovernmental Committee - Poland) or authorized ministry - (Netherlands)

Recommendation of the CoM to member states on efficient domestic capacity for rapid execution of judgments of the ECtHR (Rec CM CoE 2008/2) The co-ordinator should have powers and authority to: acquire relevant information; liaise with persons or bodies responsible at the national level for deciding on the measures necessary to execute the judgment and if need be, take or initiate relevant measures to accelerate the execution process; ensure the existence of appropriate mechanisms for effective dialogue and transmission of relevant information between the co-ordinator and the CM CoE; take the necessary steps to ensure that all judgments to be executed, as well as all relevant decisions and resolutions of the CoM related to those judgments are duly and rapidly disseminated to relevant actors in the execution process; identify as early as possible the measures which may be required in order to ensure rapid execution; facilitate the adoption of any useful measures to develop effective synergies between relevant actors in the execution process either generally or in response to a specific judgment and to identify their respective competences; rapidly prepare action plans on the measures envisaged to execute judgments with indicative timetable; take the necessary steps to ensure that relevant actors in the execution process are sufficiently acquainted with the Court’s case law as well as with the relevant CM recommendations and practice; keep their parliaments informed of the situation concerning execution of judgments and the measures being taken in this regard; where required by a significant persistent problem in the execution process, ensure that all necessary remedial action be taken at high level, political if need be.

Croatia – execution of the ECtHR judgments Provisions on process of execution of the ECHR judgments and decisions in Decree on the Office of the Agent of the Republic of Croatia before the European Court of Human Rights, (Official Gazette No 18/12) Article 3 Croatian Agent before the ECHR has authority …. -to coordinate execution of judgments and decisions of the European Court of Human Rights. … Article 10 All administrative bodies and other bodies of state authority shall cooperate fully with the Agent and enable her /him to perform her/his duties. ...

Croatia – execution of the ECtHR judgments Article 8 Department for coordination of execution of judgments and decisions of the ECHR in the Office of the Agent (identifies problematic areas in domestic system that caused violation of Convention, framework in which execution will take place and coordinates execution activities of competent state authorities). Article 12 Expert Advisory Group is established within the Agent Office as an interdepartmental body with the aim to establish measures of execution of every judgment and decision of the ECHR and to follow their implementation The Group consists of experts appointed from ministries, state agencies, Constitutional Court of RoC, Supreme Court of RoC and State Prosecutor Office.

Individual measures – to remedy violation established by the Court related to the applicant Measures applied: length of proceedings if the case is still pending - request for acceleration of proceedings, attn. Ministry of Justice & Supreme Court, the domestic authority reports to the coordinator (Representative) of work done other cases reopening of proceedings possible in civil, criminal and some administrative matters (Bistrović (Art.1.P.1.), Hanževački (Art.6.1.), Brezovec (Art.6..1.), Orlić (Art.8.), restitutio in integrum Urgent individual measurees (Gluhaković v Croatia)

General measures –- to prevent similar violations in future In all cases: Representative - analysis of the judgment presented to all authorities that contributed to violation explaining judgment & its consequences (prevention) + Parliament’s Committees, Supreme Court, Constitutional Court Possible measures: (e.g. policy changes, change of national case-law in court and administrative proceedings, legislation changes). Length of proceedings: 2002 Law on Changes of the Constitutional Court’s Law, Horvat v. Croatia, till 2004 Const. Court overloaded with applications; 2005 Law on Courts – length of proceedings cases decided by ordinary courts following ECHR jurisprudence + MoJ measures to speed up proceedings (new procedural instruments, more judicial staff to assist judge, delegation of cases to less busy courts, regular statistics on length of cases, case flow management, IT technologies).

Further measures applied: Translation of every judgment of the ECtHR against Croatia into Croatian language published regularly on web page of the Office of Representative of the Republic of Croatia before the ECtHR. Periodical translation and publication of other landmark judgments of the Court into Croatian language. - participation in training of legal professionals if invatied.

Thank you for your attention! Further info on process of execution of the ECtHR judgements is available on web page of the Committee of Ministers of Council of Europe: http://www.coe.int/en/web/cm/execution-judgments Thank you for your attention!