Measuring and improving engagement by NGOs in the Committee of Ministers’ execution of judgments process

In this article EIN’s Treasurer, Nigel Warner, explores how to measure the level of engagement of NGOs in the Committee of Ministers’ execution of judgments process, and what that level of engagement might, ideally, be. [1] He also sets out some practical steps for increasing this level of engagement, as suggested by his analysis. The article is intended to encourage discussion and thinking about these questions and is very far from definitive.[2]

EIN Treasurer Nigel Warner

EIN Treasurer Nigel Warner

The Council of Europe’s process for ensuring execution of judgments of the European Court of Human Rights is arguably the most developed and rigorous international system for enforcing compliance with human rights in existence. The Committee of Ministers’ procedural rules give NGOs the unfettered right to make submissions. In many cases these submissions can make a vital contribution to the process’s effectiveness. Indeed, without them the Committee of Ministers can be put in a position where it hears only one side of the argument. An analogy – if inexact – is that of a trial where only one party is represented.   

A relative newcomer to this topic, I have gained first-hand experience of the merits of the process through my work for ILGA-Europe (the European Region of the International, Lesbian, Gay, Bisexual,Trans and Intersex Association) supporting implementation of cases relating to the LGBTI community. I therefore find myself both baffled by the extent of the under-engagement of civil society, and intrigued by the question as to what the level of engagement should be. The headline figures could not be starker: in recent years the number of cases pending before the Committee of Ministers has been running at approximately 10,000.[3] Yet NGOs and NHRIs together (the figures are not collected or published separately) make only 80 or 90 submissions a year.[4]

So how can we get the 10,000 cases down to a realistic figure for the number meriting NGO intervention? The first step is straight forward: many cases raise identical issues, and would not of themselves merit separate submissions. The execution of judgments process deals with this problem by making a distinction between these “repetitive cases” and “leading cases”. The latter are defined as cases which give rise to new structural and/or systemic problems, and therefore require new general measures for effective implementation.[5] It seems clear that these are the cases which civil society should generally be targeting. In recent years the number of pending leading cases has been stable at around the 1500 level.[6]

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But this figure also overstates the number of cases civil society should address, since some leading cases are implemented straightforwardly and promptly without the need for submissions.[7] Quantifying these cases would require a detailed study. However, the proportion of cases resolved relatively quickly by the Committee of Ministers provides a rough surrogate for this figure. Of leading cases closed in 2015 and 2016, approximately 30% were closed within two years, reducing the proportion we need to consider – in very approximate terms – to perhaps 70%.

This may also be too high. For example, some leading cases may not raise issues of such general concern as to merit intervention by civil society. In others, the facts as to whether or not implementation has taken place may be sufficiently clear without civil society intervention. Again, detailed studies would be required to quantify these and other factors. In the absence of such research, or any other way of quantifying this figure, let us – for the sake of argument - assume this reduces the proportion needing consideration to an entirely hypothetical figure of 50%.

Turning now to the figures for current NGO involvement, what follows is based on data accessible for the first time because of the launch in March 2017 by the Department for the Execution of Judgments of its database, HUDOC-EXEC.

As noted above, the combined figure for submissions by NGOs and NHRIs is only 80 to 90 a year. Further research shows that this is not a useful metric because some cases – particularly property related cases - attract a disproportionately high number of submissions, leaving the number of cases addressed much lower: HUDOC-EXEC data that I have analysed manually shows that NGOs made 182 submissions over the 2 ½ year period from January 2015 to June 2017, but only addressed 95 cases.

So far I have tried to identify the number of cases meriting NGO intervention by starting from the total population of cases - and eliminating categories of case based on increasingly wild assumptions. Another – very pragmatic – approach to try to reach a figure is by taking the intervention rate in the country where NGOs have achieved the highest rate of engagement, and assuming this, or something not too different, is feasible across all countries.  Based on my analysis of HUDOC-EXEC data, this is Poland, where NGOs have engaged with 10 leading cases over the last two and half years, compared to 34 such cases pending at the end of 2016. In very approximate terms, a 25% level of engagement was achieved.

However, even this approach runs into problems because many states have excessively high levels of leading cases. The chart below compares leading cases by country pending at the end of 2016 with the number of cases addressed by civil society submissions over the two and half years up to June 2017. Bulgaria, Croatia, Italy, Moldova, Romania, Russia, Turkey, and Ukraine all had between 60 and (in the case of Russia) 204 leading cases pending at the end of 2016. It is perhaps too much to expect that NGOs in all these countries can be resourced to the point where they can engage effectively with a significant proportion of these cases.

In summary, it will have become evident that there is no easy answer to the question “what should be the level of engagement of NGOs in the execution of judgments process?”. The best that can be said is that, based on the (admittedly very broad) assumptions I have made above, in those countries where the number of leading cases is not excessive, a target level might be somewhere between 25% and 50%.

A by-product of my analysis of the HUDOC-EXEC data was to reveal the extent of involvement of NHRIs.This turned out – to me at least – to be inexplicably low. In the whole of the 2 ½ year period, NHRIs made nine submissions addressing just eight cases. Just eight.[8]

So what lies behind this under-engagement by NGOs and the NHRIs in the execution of judgments process? So far as NGOs are concerned, some reasons generally recognised are: a lack of knowledge about the execution of judgments process; the lack of transparency and remoteness of the process; and the fact that many cases are initiated by individuals without civil society support, so that NGOs may not be aware of them, or may not feel ownership of them. A further – and very important - factor is lack of resources. While no doubt a problem in most countries, lack of resources is likely to be a particularly serious concern for NGOs in those states with an excessive number of leading cases.

These explanations all no doubt also apply in the case of NHRIs. To them can probably be added, in some countries, a reluctance to challenge their national authorities in a high-profile international forum.

EIN will shortly be starting a programme of work addressing some of the concerns relating to NGOs, including training seminars, a handbook for civil society on engaging with the execution of judgments process, and outreach to civil society. The information assembled in this article suggests a number of further initiatives:

·       The low engagement by NHRIs is a major issue. The European Network of National Human Rights institutions has Observer Status at the Steering Group for Human Rights (CDDH), and has published guidelines for its members on implementing ECtHR judgments. More is needed. The Office of the Commissioner for Human Rights has a mandate to “facilitate the activities of national ombudsperson institutions and other human rights structures” and would therefore seem to be the appropriate Council of Europe institution to encourage further involvement by NHRIs. So far as HUDOC-EXEC is concerned, the fact that statistics for NGO and NHRI submissions are shown as one figure conceals the extent of the latter’s under-engagement. Identifying NHRI submissions separately would be a useful step towards their greater engagement.

·       As noted, increased resourcing for NGOs is very important, particularly in those countries with high levels of leading cases. There is a need to raise the awareness of funders of the strengths of the execution of judgments process, and the merits of targeting funding to support NGOs in this work. NGOs can play their part by including work on the implementation of judgments in their funding applications.

·       HUDOC-EXEC makes it possible to identify new leading cases entering the execution of judgments process. This offers a mechanism for alerting domestic NGOs to new cases so that they can assess whether a particular case merits intervention in domestic and Council of Europe implementation processes, and if so, how this can be resourced. Recent statistics suggest new leading cases come through at the rate of approximately 20 per month.

 

 

[1] Throughout this article the term "execution of judgments" refers to the Committee of Ministers’ execution of judgments process. "Implementation of judgments" is used to refer to implementation at the domestic level, or the combined domestic and Strasbourg processes.

[2] The article is written in a personal capacity, and does not necessarily reflect the views of EIN.

[3] Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights - 10th Annual Report of the Committee of Ministers – page 50.

[4] Ibid. – page 66.

[5] Ibid. – page 43.

[6] Ibid – page 47.

[7] This statement is based on my experience of cases involving the LGBTI community such as: Vallianatos and Others v. Greece  (29381/09); Oliari and Others v. Italy (Application nos. 18766/11; Taddeucci and McCall v. Italy; and A.P. v. France (App. no. 79885/12).

[8] The NHRIs were as follows: Czech Republic - Public Defender of Rights; France - Commission Nationale Consultative des Droits de l'homme; Georgia - Public Defender of Georgia; Ireland - Irish Human Rights and Equality Commission; Serbia - Mediator; Slovenia - Ombudsman; United Kingdom - Northern Ireland Human Rights Commission; United Kingdom - Equality and Human Rights Commission.

EIN contributes to debate on the developing remedial practice of the European Court

Photo credit: George Stafford

Photo credit: George Stafford

On 8 November 2017, the Director of the European Implementation Network (EIN), Kevin Steeves, participated as a panellist in a seminar entitled ‘The Developing Remedial Practice of the European Court of Human Rights’.

The seminar took place in the Palais de l’Europe at the Council of Europe and was organised within the framework of the Human Rights Law Implementation Project. Participants included judges and registry officials of the European Court of Human Rights (ECtHR), representatives of the Directorate General Human Rights and Rule of Law of the Council of Europe (CoE), representatives of CoE member States and civil society organisations, and others.

The event was chaired by Philip Leach, Professor of Human Rights at Middlesex University, and began with a presentation by Alice Donald and Anne-Katrin Speck of the Middlesex University team. Other panellists included: Isabelle Niedlispacher, Government Agent in respect of Belgium and Chair of the Committee of Experts on the System of the European Convention on European Rights (DH-SYSC); Pavlo Pushkar, Head of Division, Department for the Execution of Judgments of the ECtHR; and Robert Spano, Judge of the ECtHR elected in respect of Iceland.

The Middlesex team presented a framework for analysing and debating the question of how far the ECtHR should recommend or even prescribe certain measures to be taken by CoE member States after the finding of a violation of the European Convention on Human Rights (ECHR). The question is very relevant to EIN and others who work to support implementation of human rights judgments. Due in particular to member States’ failures to implement ECtHR judgments, the Court has experienced some degree of shifting from its cautious, purely declaratory approach to remedies to sometimes indicating specific measures for national authorities to undertake, notably non-monetary individual measures and general measures.

The follow-on debate among the seminar participants touched on a number of central themes underpinning the developing remedial practice of the ECtHR. One was the division of labour between the ECtHR and the CoE’s decision-making body, the Committee of Ministers (CM). Given the CM’s responsibility under the ECHR for ensuring implementation of judgments, some participants noted how greater specificity and prescriptiveness in judgments could either positively or negatively affect the CM’s political-level activities – including the monitoring and evaluation of the respective respondent States’ action plans and reports.

Another theme debated was the degree to which the ECtHR should provide remedial indications in the operative part of judgments. For example, there was a general consensus that there were sometimes clear violations that leave no possible doubt as to what should be done and judgments should reflect this fact, such as in cases related to property restitution or the release of individuals from detention and prison.

In his presentation, the EIN Director addressed the developing remedial practice of the ECtHR from the perspective of the work of the Network and the role of civil society organisations in Europe today. Among other points noted, the added clarity that stems from greater specificity and prescriptiveness is positive overall, especially in comparison to the normal levels of ambiguity, uncertainty and resistance that surround many cases of non-implementation. Non-governmental organisations and other civil society organisations can apply more pressure through the added leverage that is provided and this allows them to engage more actively and constructively in support of the promotion and protection of human rights.

The well-attended seminar was important and useful for EIN and others on a number of fronts including advocacy on implementation. While judgments with specific and prescriptive measures are still only a small fraction of the ECtHR’s case law, they represent an interesting trend for further analysis and monitoring in the years to come. This is particularly in relation to recent ECtHR decisions such as Burmych v. Ukraine. Here the Court decided that the issue of granting specific relief to victims in this and related cases affecting many thousands of individuals who are owed long-standing pension-related payments must instead to be addressed and specified in the context of the execution process that is supervised by the CM and not the ECtHR.

 

Statement following the Danish Chairmanship’s High-Level Expert Conference

EIN and 5 other NGOs have adopted a joint statement on the High-Level Expert Conference ‘2019 and Beyond: Taking Stock and Moving Forward from the Interlaken Process’, held in Kokkedal, Denmark from 22-24 November 2017. This is the first of the events to be held within the framework of the Danish Chairmanship of the Council of Europe. The undersigned organizations commended the Danish Chairmanship for its stated commitment to involving civil society throughout the process leading up to the adoption of a political Declaration on the European Convention on Human Rights’ system in April 2018 and urged it to focus on meeting existing legal and political commitments on national implementation, including those in the Brussels Declaration. A full text of the letter with the NGO recommendations can be found here.

The undersigned organizations:

Open Society Justice Initiative 

Amnesty International 

European Human Rights Advocacy Centre 

European Implementation Network 

International Commission of Jurists 

World Organisation Against Torture