Rethinking The Mechanisms For Judgement Compliance In The Council Of Europe And Eliminating The 'Legal/Political Gap

Author:Anthanasia Hadjigeorgiou
Position:LLB (Hons) Univeristy College London and currently pursuing the LLM degree at Cambridge University
Pages:128-145
[2010] COLR
RETHINKING THE MECHANISMS FOR JUDGEMENT COMPLIANCE IN THE
COUNCIL OF EUROPE AND ELIMINATING THE ‘LEGAL/POLITICAL GAP’
Anthanasia Hadjigeorgiou *
ABSTRACT
This article examines the mechanisms through which the Committee of Ministers ensures tha t
the Council of Europe Member States comply with the decisions of the European Court of
Human Rights. It then offers new ideas as to how these mechanisms can be improved and
evaluates the organisation’s attempt to deal with non-compliance problems through Protocol
14. It concludes that only by eliminating what has been termed the ‘legal/political gap’, will
the organisation be truly effective in policing human rights abuses in Europe. This should be
done through a series of changes, namely a more dynamic approach by the Committee,
greater involvement of the court in the implementation process and better cooperation with
the European Union and the European Commissioner for Human Rights. The organisation’s
nature has changed from a group of self-policing States to largely a training centre for new
democracies. The Council needs to adapt quickly: unless its authority is firmly established in
this new state of affairs, its ineffectiveness will encourage further non-compliance by the
newer Member States.
A INTRODUCTION
The Council of Europe is the most renowned human rights organisation worldwide.
Nonetheless, following its enlargement in the 1990s and its failure to adapt accordingly, its
reputation and effectiveness in terms of judgment compliance are being compromised daily.
The Council has traditionally relied on a combination of legal and political pressures for the
implementation of judgments. The legal mechanisms include the influence of the European
Court of Human Rights1 in domestic legal systems and the fact that the European Convention
on Human Rights has been nationally implemented by all Member States, while political
mechanisms mostly rely on pressure from the Committee of Ministers and national
organisations. The court and the Committee function independently from each other, both
formally and behind the scenes; however, implementation mechanisms can only achieve their
true potential if the gap between the organisation‟s legal and political bodies is reduced as
much as possible. By drawing a clear dividing line between the legally binding judgments of
the ECtHR and the political statements of the Committee, the system is downplaying the
importance of the latter and harms the organisation‟s overall efficiency. This article does not
focus on the Committee or on the ECtHR in particular; its aim is to discuss the relationship
between the two bodies and suggest ways in which their cooperation can be improved.
The paper begins by examining the Council‟s characteristics which transformed it into
a uniquely respected organisation and questions whether they remain helpful in the post-1990
era. It then proposes necessary reforms to avoid the organisation‟s decline: greater
involvement of the ECtHR in the execution process and a more robust attitude against
violators in the Committee. Only by making the Council‟s bodies more aware of their
common goals and their relationship to each other and to other international organisations,
can the currently failing implementation mechanisms regain their effectiveness.
*LLB (Hons) Univeristy College London and currently pursuing the LLM degree at Cambridge University.
1 Henceforth, „ECtHR‟ or „Court‟.
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B THE WORKING MECHANISMS OF THE COUNCIL OF EUROPE
Unlike most types of international treaties, human rights treaties are non-reciprocal: the State
has no incentive to abide by the limitations on its sovereign power apart from good will since
other Member States have no reason to force it to do so.2 Thus, most human rights bodies are
unknown to the general public and their decisions are largely ignored by governments,3 a
situation which can be contrasted with the European Union or the World Trade Organisation,
organisations whose primary concern is the States‟ economies. The exception to this is the
Council of Europe: it consists of 47 Member States, yet it is compared to the German Federal
and US Supreme Courts rather than other international bodies.
Despite the well accepted recognition of the Council‟s effectiveness, if its aim is truly
to secure „the universal and effective recognition and observance of the Rights therein
declared,‟4 the statistics show a less satisfactory picture. The more rapidly general measures
are taken by States to execute judgments, the fewer repetitive applications there will be,‟5 yet
60% of the court‟s judgments concern violations already condemned in the respondent State.6
This is at a time when cases reaching the ECtHR have increased by 15% between 2006 and
2007 and just 4 States generate half of the court‟s case load (Russia, Romania, Turkey and
Ukraine).7 That is partly because of the individual complaints procedure, but it must also
indicate that the Committee is in some ways failing its task. If the Council is to avoid the
„ultimate asphyxiation of the system and a steady, painful loss of credibility,‟8 its working
procedures must be reconsidered.
The organisation‟s legal and political processes are largely distinct: on the legal level,
the ECtHR decides whether a violation has taken place, and if it has, the case is sent to the
political body of the Council, the Committee of Ministers, through which diplomatic pressure
is exerted on the respondent State.9 The gap between these two procedures (what will be
termed in this article as the „legal/political gap‟) determines the effectiveness of the
organisation as a whole. It affects each State to a different extent, since pressure for
implementation works not only on a European, but on a national level as well. However, the
smaller the gap, the less likely a State is to take advantage of it and stray from its
responsibilities. It is suggested that the mechanism operating in the Committee ensures that a
small individual improvement in compliance by many States cumulatively increases the
overall pressure on those few non-compliant Parties. However, bridging the gap by
unilaterally increasing the powers of only one body is impossible in an organisation that
works by unanimity. Thus, all mechanisms need to be slightly modified, since the change has
to be subtle enough for the States to agree to, but effective enough to make a difference in
compliance. The next four sections will discuss the existing mechanisms of the Council, the
extent to which they are helpful today and how they can be improved. The mechanisms are:
2 R Provost „Reciprocity in Human Rights and Humanitarian Law‟ (1994) 65 British Year Book of International
Law 383.
3 For example, the European Committee for the Prevention of Torture, carried out as of 2/12/2008 260 visits in
all Member States and published 210 reports, but does not mention in how many situations action was taken
following the report http://cpt.coe.int/en/ (2 March 2010).
4 European Convention of Human Rights, preamble para 3.
5 Explanatory Report of Protocol 14 para 16.
6 ibid para 68.
7 M Boyle „On Reforming the Operation of the European Court of Human Rights‟ (2008) Europe an Human
Rights Law Review 1, 4.
8 ibid.
9 E Lambert-Abdelgawad The Execution of J udgments of the ECHR (Human Rights Files No 19 2002); E
Lambert-Abdelgawad The Execution of Judgements of the ECHR (2nd edn Human Rights Files No 19 2008).
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