The European Court of Human Rights: Improving implementation of judgements

A team of European researchers has published a catalogue of policy recommendations aimed at improving the way countries implement judgements by the European Court of Human Rights (ECtHR). After examining implementation issues in eight EU Member States and one candidate country (Turkey), the JURISTRAS consortium concludes that while serious shortcomings exist, these failings can be addressed through various administrative, legislative and judicial reforms at the national level. The consortium argues that the ability of the ECtHR judgements to enhance human rights protection in Europe ultimately depends on the democratic commitment of national governments. Implementing the proposed reforms, the researchers suggest, could enhance protection of human rights and help reverse the dramatic rise in case loads at the Strasbourg Court.

Taking an interdisciplinary approach, JURISTRAS looked at legal cases originating from nine countries: Austria, Bulgaria, France, Germany, Greece, Italy, Romania, Turkey and the United Kingdom. These countries were selected because they have generated the largest number of ECtHR judgements in the specific areas under examination (discrimination, privacy, religious freedom, and freedoms of expression and assembly; as well as cases concerning minorities and vulnerable groups). In carrying out their empirical studies in each of the focus countries, the researchers were guided by three basic questions:

  • Does the state implement ECtHR judgements and under what conditions does it do so?
  • What is the impact of ECtHR case-law on the legal norms, institutional structures and policies of the state?
  • Do ECtHR judgements influence rights-expansive policy change and reform at the national level?

The country case studies revealed significant differences in how effectively the Strasbourg Court's judgements are implemented. In Bulgaria and Turkey, for example, the data showed that 60 per cent of cases remained unresolved. Germany, by contrast, managed to close 80 per cent of its cases, even if judgements took longer to implement. Meanwhile, the UK, Austria and France (to a lesser extent) achieved relatively large degrees of implementation relatively quickly. Italy and Greece, on the other hand, did not fare well with respect to either speed or volume of implementation.

In seeking to explain such variation across countries, the researchers found “a robust correlation” between government effectiveness and prompt implementation of the ECtHR judgements. The project utilised a World Bank definition of ‘government effectiveness’ measuring quality of public services and civil service, degree of independence from political pressures, quality of policy formulation and implementation, and credibility of government commitment to such policies. The consortium also identified a “statistically significant” relationship between the rule of law and implementation of judgements. With respect to the highly politicised topic of immigration, JURISTRAS found that, for the most part, national authorities have “strongly resisted changing their immigration laws” in response to the ECtHR’s case law. A full copy of the study can be accessed at: http://www.juristras.eliamep.gr/wp-content/uploads/2009/12/mainstreaming-european-human-rights-case-law-domestically.pdf

To help policy makers improve implementation of judgements from the Strasbourg Court, the researchers offer a wide range of recommendations, most of them aimed at national authorities. The project's key recommendations can be summarised as follows:

Boost institutional effectiveness as well as rights awareness among implementation actors.

  • Reform and improve existing executive-centred institutional arrangements responsible for implementation by bolstering their political independence and legal expertise and, if necessary, by augmenting their infrastructure and financial resources.
  • Centre responsibility for implementation on the Ministry of Justice or other branches of the executive (not the Foreign Ministry) that are concerned with internal affairs and issues of rights.

Diversify the involvement of social and political actors in domestic implementation and rights protection.

  • Promote awareness among parliamentary representatives of human rights case law.
  • Strengthen involvement of National Human Rights Institutions (NHRIs) in implementation of ECtHR judgements.
  • Establish and sustain channels of regular communication between parliamentary representatives, NHRIs and civil society organisations.

Strengthen the role of national judges in implementation and rights protection.

  • Disseminate to national courts selective translations of judgements that concern not only their own state but other states and parties as well.
  • Promote awareness among national judges with legal commentary by human rights experts.
  • Create an electronic repository with all translated ECtHR case law and relevant commentary, and provide website access for national judges.

Diffuse ECtHR legal norms.

  • Oblige lawmakers and government officials to consult with NHRIs about compatibility of draft bills or administrative measures.
  • Entitle NHRIs to provide legal aid to minority members and immigrants who are victims of discrimination.
  • Systematically familiarise administrative personnel with rights issues related to minorities, immigrants and asylum seekers.

JURISTRAS - The Strasbourg Court, democracy and the human rights of individuals and communities: patterns of litigation, state implementation and domestic reform (duration: 1/9/2006 – 31/8/2009) was a Specific Targeted Research Project funded under the 6th Framework Programme for Research of the European Union, Thematic Priority 7 – Citizens and governance in a knowledge-based society.

See: http://www.juristras.eliamep.gr

Contact: Dr. Dia Anagnostou, Dia.Anagnostou@EUI.eu; danagnos@eliamep.gr