Invitation‎ > ‎Conference‎ > ‎Conference 2013‎ > ‎

Final resolution

FINAL RESOLUTION
Second International Scientific and Practical Conference
"Legal ensuring of the effective execution of judgments and implementation of practice of the European Court of Human Rights"
(20-21 September 2013, Odesa, Ukraine)

 

National University "Odessa Academy of Law" in cooperation with the Committee of the Verkhovna Rada of Ukraine on the Rule of Law and Justice and the Southern Regional Center of the National Academy of Legal Sciences of Ukraine under the auspices of the Secretary General of the Council of Europe Mr. Thorbjørn Jagland held the Second International Scientific and Practical Conference "Legal ensuring of the effective execution of judgments and implementation of practice of the European Court of Human Rights", dedicated to the 60th anniversary of the entry into force of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Chairman of the Organizing Committee - Serhiy Kivalov, Chairman of the Committee of the Verkhovna Rada of Ukraine on the Rule of Law and Justice, a member of the PACE Committee on Legal Affairs and Human Rights, member of the Venice Commission, President of the National University "Odessa Academy of Law", Doctor of legal sciences, Professor, Academician of the National Academy of Legal Sciences of Ukraine, Academician of the National Academy of Pedagogical Sciences of Ukraine.

 

The scientific forum brought together the prominent political figures, scholars  and practitioners from Azerbaijan, Armenia, Germany, Poland, Russia, Turkey, Ukraine, USA and other countries.

The conference was attended by President of the Parliamentary Assembly of the Council of Europe Mr. Jean-Claude Mignon; Ambassador at Large of the Ministry of Foreign Affairs of Ukraine Mr. Igor Sagach; UNHCR Regional Representative in Belarus, Moldova and Ukraine Mr. Andrysek Oldrich; Representative of the Secretary General of the Council of Europe in charge of the co-ordination of the Council of Europe cooperation programmes, Head of the Council of Europe Office in Ukraine Mr. Vladimir Ristovsky; the Human Rights Adviser of the UN Office in Ukraine, Office of the UN Resident Coordinator Mr. Marc Bojanic, Consul General of the Republic of Turkey in Odessa Mrs. Nur Sagman; the Governor of the Odeesa Oblast Mr. Eduard Matviichuk.

The conference was participated by judges of the European Court of Human Rights Alvinа Gyulumyan (Republic of Armenia); Dmitry Dedov (Russian Federation); Ganna Yudkivska (Ukraine); a member of the PACE Committee on Legal Affairs and Human Rights and the PACE Committee of the Political Affairs, Member of the Grand National Assembly of Turkey, the former President of the Parliamentary Assembly of the Council of Europe Mevlüt Çavuşoğlu.

More than a hundred of participants had the opportunity to discuss the most pressing issues related to the legal ensuring of the effective execution of judgments and implementation of practice of the European Court of Human Rights (hereinafter - the Strasbourg Court, the ECtHR, the Court):

 - on the implementation of practice of the European Court of Human Rights (in particular, the principles of the Strasbourg Court practice; means to ensure legal certainty and consistency of the Court’s practice; the evolutionary nature of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - the Convention), and the dynamics of the Court’s practice; technique to implement the European Court of Human Rights practice (issues of accessibility, translation, systematization and selection of the Court’s practice), the place of the European Court of Human Rights’ case law in the system of sources of the Council of Europe law and national system of sources of law, public policy and the mechanisms to implement the Strasbourg Court practice);

- on execution of judgments of the European Court of Human Rights and taking general and individual measures (in particular, the issues of international legal standards of human rights and fundamental freedoms and their implementation to the national legal systems, national mechanisms to enforce the Court’s judgments in State-Parties to the Convention as to taking measures of a general nature; effective mechanisms to execute the European Court of Human Rights’ judgments as an effective means to overcome structural deficiencies).

Following the Conference, the collection of more than 40 papers was published.

The participants welcome the continuation of the discussion of problematic issues of execution of judgments and implementation of practice of the European Court of Human Rights in the format of the annual conference at the National University "Odessa Law Academy".

Having discussed the problems and prospects of effective execution of judgments and implementation of practice of the European Court of Human Rights, the participants pay attention to the following:

1. Interlaken Declaration (2010) and the corresponding Action Plan states that priority should be given to the full and rapid execution of judgments of the European Court of Human Rights. As highlighted in the Izmir Declaration (2011) and reaffirmed in Brighton Declaration on the Future of the European Court of Human Rights (2012), the viability of the Convention for the Protection of Human Rights and Fundamental Freedoms fall under the joint responsibility of the European Court of Human Rights and States Parties.

2. Taking into account the findings of the PACE Committee on Legal Affairs and Human Rights that: problems encountered by the Court's judgments, are significant and complex in nature, their solutions can sometimes go beyond the performance of a particular decision and can only be achieved by creating comprehensive strategy agreed at the highest political level, any delay in making such a strategy should be subject to scrutiny and oversight by the Parliament, which must have the power to force the Government to address these issues on a priority basis.

Participants of the Conference, noting the need to conduct an annual forum to discuss issues of legal ensuring of the effective execution of judgments and implementation of practice of the European Court of Human Rights, assume:

1. The question of implementation of the ECtHR’s practice and execution of its judgments are interrelated, their solution requires the adoption of comprehensive measures both at the national legislative level and at the national level of law enforcement, implementation of these measures requires a scientific support.

2. The viability of the European Court of Human Rights depends not only on its internal reforms, but on the actions of States Parties.

3. The main external factor that undermines the viability of the "Convention – Court system" is the lack of adequate and timely response to the identified by the Court structural/systemic deficiencies within the legal systems of States Parties to the Convention, in order to eliminate them.

In the course of the discussion the following questions arose:

1. What exact rapid and effective measures should be taken by States Parties to execute the judgments of the European Court of Human Rights and eliminate structural deficiencies of the national legal systems and what difficulties they are facing on this way?

2. What are the possibilities of Parliaments of the States Parties to effectively influence on the effective execution of judgments and implementation of practice of the European Court of Human Rights?

3. How to summarize the principles and methods used by the Strasbourg Court in the decision-making process?

4. What mechanisms for execution of judgments of the European Court of Human Rights are the most effective?

5. How to properly and effectively implement the Strasbourg Court practice?

Following the discussion on the abovementioned and other questions,

the participants came to the conclusions:

1. The doctrine of positive obligations leads to increased requirements to the State Parties in the implementation of the Convention.

The general legal basis of positive State Parties obligations within the Convention system of human rights protection is Article 1 "Obligation to respect human rights" of the Convention. It should also be noted the current trend, which appeared in the recent practice of the Court to withdraw the positive obligations from the "combination" of specific human rights provisions of the Convention and the general principle of "rule of law", which the Court regards as one of the fundamental principles of a democratic society, naturally inherent to all articles of the Convention.

2. Implementation of the European Court of Human Rights practice in some cases is complicated by the use of Court’s "autonomous approach" that can occur, particularly, in the evaluation approach to the interpretation of the Convention. "Autonomy" of some concepts of the Convention means that they have a different meaning and scope from the national legislation. In this regard, creation of a Thesaurus of the Strasbourg Court practice, concluded by the Court or a competent team of scholars and practitioners translated in all (at least) work languages of the Council of Europe -  is the case of particular importance.

3. An important indicator of the state of effective execution of judgments and implementation of practice of the European Court of Human Rights in national legal systems is the number of Pilot judgments and the number of “clone cases” regarding a certain States Party.

The first preventive measure to reduce the number of “clone cases” is more effective implementation of the Convention at the national level.

4. For those who claim that their rights guaranteed by the Convention are violated shall be available effective remedies at national level. Introducing of the effective mechanisms to preventive solution by the respondent states of the individual complains to the Court declared admissible should be carefully considered. States Parties should pay attention to the so-called "third party effect" in the cases considered by the Strasbourg Court. According to Recommendation (2004) 5 of the Committee of Ministers to Member States on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights, adopted on 12 May 2004: “further efforts should be made by member states to give full effect to the convention, in particular through a continuous  adaptation of national standards in accordance with those of the Convention, in the light of the case-law of the Court”.

5. Any mechanism for human rights protection is ineffective without control instruments, including the national ones.

The role of Parliamentary control over the execution of judgments and implementation of practice of the European Court of Human Rights is important. The control may be carried out by a separate committee or subcommittee of Parliament (Poland, Romania, Ukraine), or a joint parliamentary-governmental entity - a joint standing committee (Italy). Concerning Ukraine, in 2009, a joint memorandum of understanding between the Committee on Justice of the Verkhovna Rada of Ukraine and the PACE Committee on Legal Affairs and Human Rights was signed. It introduced the experimental mechanism to control the Parliamentary Committee for the implementation of the Strasbourg Court judgments. This mechanism involves the meetings of the Committee on Justice (now - the Committee on the Rule of Law and Justice) with the Government Agent before the European Court of Human Rights, the Ministry of Justice representatives, approving  the recommendations to government agencies; preparing corresponding draft bills based on the information and recommendations of the participants of the meetings.

To all intents and purposes, accountability of the Government on execution of judgments and implementation of practice of the European Court of Human Rights to the Parliament should be ensured.

Parliamentary control should be addressed, primarily, to the “leading cases”, which were first considered by the Court, or raise the systemic/structural deficiencies in the States Parties to the Convention.

6. The efficiency of representative functions of Government to the European Court of Human Rights and the enforcement of judgments in the national legal system, possibly may be in conflict of duties and requires to be studied, since the execution of judgments involves measures both individual and general.

7. The additional study requires the proposal, which discussed in doctrine as to develop standards that would be imposed personal responsibility for illegal actions or inaction of officials, which led to the further applying to the European Court of Human Rights, and on which the Court delivered the judgment in favour of the applicant.

8. Implementation of individual measures in nature has its limits. Practical application of these measures may result in injury to others, especially in civil disputes. The cases of reopening of the criminal proceedings raise the question on the fate of sentences to persons who were brought to justice, but did not apply to the European Court. Moreover, such measures inevitably entail a change in the timing of the final hearing in the courts. Another controversy is the question of the resumption of the proceedings ex officio on the basis of the ECtHR final decision.

9. Providing a retrial in the national court following the European Court of Human Rights judgment against Ukraine is one of the individual measures. In this direction the Supreme Court of Ukraine should be allowed to make new decisions based on such review, as well as broaden the grounds to review cases.

10. Of particular importance is awareness of the Convention and the ECtHR by enforcers, forming their respective occupational justice, which requires taking a number of measures.

The governing bodies (high specialized courts, central authorities, etc.) should formulate the common criteria for the implementation of the Convention and the ECtHR’s judgments, in particular clarified what is the legal status of such application, the limits of such application, specifying correlation of the ECtHR’s judgments to the national law and circumstances of the particular case. It has to be noted that the proper implementation of the European Court of Human Rights practice in domestic law may have a significant preventive effect on inadmissible appeals to the Strasbourg Court.

Informational support of enforcers requires the creation of information-analysis electronic resource available via the Internet. This should solve a complex issue on affordability of judgments for enforcers in official translations.

As regards general measures - translation and publication of ECtHR judgments in legal journals or central print, distribution of judgments to the relevant authorities and institutions may sometimes be sufficient to meet them, because usually the authorities should take note of published decision and take measures to prevent similar violations in their practice.

An important factor in reducing the number of inadmissible individual appeals to the European Court of Human Rights is conducting an appropriate legal educational work among the population and strengthening the role of the legal professionals to process such applications and further legal support before the Court. One of the methods to ensure such measures is to create expert advisory centers (non-governmental centers for applications analysis). 

Comments