This page has been left blank intentionally

Studies of the Max Planck Institute Luxembourg for

International, European and Regulatory Procedural Law

edited by
Prof. Dr. Burkhard Hess

Volume 2

BUT_Seibert Fohr_1869-6.indd 2 30.04.15 10:44

 Prof. Dr. Anja Seibert-Fohr and Prof. Dr. Mark E. Villiger (eds.)

Judgments of the European

Court of Human Rights –
Effects and Implementation

Nomos

BUT_Seibert Fohr_1869-6.indd 3 30.04.15 10:44

 © Titelbild: Council of Europe Credits

Die Deutsche Nationalbibliothek lists this publication in the

Deutsche Nationalbibliografie; detailed bibliographic data
is available in the Internet at http://dnb.d-nb.de
ISBN: HB (Nomos) 978-3-8487-1869-6
ePDF (Nomos) 978-3-8452-5934-5

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.
ISBN: HB (Ashgate): 978-1-4724-5975-6
ePDF (Ashgate): 978-1-4724-5976-3
ePub (Ashgate): 978-1-4724-5977-0

Library of Congress Cataloging-in-Publication Data

Judgments of the European Court of Human Rights – effects and implementation /
edited by Anja Seibert-Fohr and Mark E. Villiger.
pages cm
Includes bibliographical references and index.
ISBN 978-1-4724-5975-6 (hardback : alk. paper) -- ISBN 978-1-4724-5976-3 (ebook) --
ISBN 978-1-4724-5977-0 (epub) 1. European Court of Human Rights--Congresses.
2. International human rights courts--Europe--Congresses. 3. International and
municipal law--Europe--Congresses. 4. Jurisdiction (International law)--Congresses.
5. Judicial assistance--Europe--Congresses. I. Seibert-Fohr, Anja, editor. II. Villiger,
Mark Eugen, editor.
KJC5138.J83 2015
342.2408'50269--dc23
2014043798

1. Edition 2014
© Nomos Verlagsgesellschaft, Baden-Baden, Germany 2014. Printed and bound in Germany.
This work is subject to copyright. All rights reserved. No part of this publication may be
reproduced or transmitted in any form or by any means, electronic or mechanical, includ-
ing photocopying, re-cording, or any information storage or retrieval system, without
prior permission in writing from the publishers. Under § 54 of the German Copyright
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No responsibility for loss caused to any individual or organization acting on or refraining
from action as a result of the material in this publication can be accepted by Nomos or
the editors.

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Foreword

In September 2012, the Max Planck Institute for International, European and
Regulatory Procedural Law took up its work in Luxembourg. Since Septem-
ber 2014, the Institute comprises two departments: for European procedural
Law and comparative civil procedure and for dispute resolution in interna-
tional law. One of the Institute’s main research fields relates to dispute res-
olution and proceedings before international courts and tribunals. Therefore,
the Institute is pleased that the second volume of its books series addresses
the effect and implementation of the judgments of the European Court of
Human Rights. This topic is of great importance, not only for the effective-
ness of the system of the European Convention on Human Rights, but also
for the efficiency of international courts and tribunals in general. The Stras-
burg Court has developed innovative practices and the Court’s awareness
for the implementation of its judgments is outstanding and should be taken
as a model by other international institutions.
This book is the second publication of the book series of the Max Planck
Institute Luxembourg for International, European and Regulatory Procedu-
ral Law which comprises books on research performed by the Institute and
its collaborators as well as studies on dispute resolution which have a strong
affiliation with the research profile of the Institute. When Professor Seibert-
Fohr and Professor Villiger proposed to publish the papers of the Göttingen
conference of 2013 in the book series of the Institute, I immediately agreed.
Today, I would like to express my gratitude to the editors and the contributors
of the volume, but also to the collaborators of the Max Planck Institute Lux-
embourg, Edith Wagner and Brian Alexander McCafferty for assisting the
editors in the publication process.

Luxembourg, 22 October 2014 Burkhard Hess

5
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Preface

In recent years the effects and the implementation of judgments of the Euro-
pean Court of Human Rights have attracted increasing interest among prac-
titioners and academics alike. The more the Court deals with cases which
are relevant not only for the individual applicant but which also arise due to
structural defects of States’ legislation, the more the domestic legal order at
large is implicated and questions about the effects of the Court’s judgments
arise. This leads to the following examination: Can the Court play a role in
the implementation of its holdings at all? How far should the Court go in
managing the effects of its own jurisprudence?
These are only two of the issues which we began to discuss some time
ago. What started as an informal academic interchange between us, over time
became a broader undertaking leading to an international conference at
Göttingen University in September 2013. The conference discussed and tried
to devise future strategies to facilitate the dialogue between the European
Court of Human Rights and national stakeholders. With the most distin-
guished experts among the speakers of the conference, a high-level transna-
tional dialogue ensued. Each panel was composed of a judge of the European
Court of Human Rights, a judge from a domestic Constitutional or Supreme
Court, an experienced practitioner and a renowned academic, the ensemble
of which represented different stakeholders and various European jurisdic-
tions. We are genuinely and sincerely indebted to Dean Spielmann, the
President of the European Court of Human Rights, for his inspiring keynote
speech, our speakers and panel chairs for their intriguing contributions as
well as to the Fritz Thyssen Foundation for the generous funding of the
conference. The staff of the Göttingen Institute for International Law and
European Law and the Georg August University were of great help in or-
ganizing this event. Most of all we would like to express our gratitude to
Torsten Stirner for his dedicated research assistance, and to him, Christian
Jelinsky and Florina Nessmann for their highly efficient editing assistance.
Finally, we are grateful to Professor Burkhard Hess and his research assistant
Edith Wagner of the Max Planck Institute Luxembourg for International,
European and Regulatory Procedural Law for publishing this volume in the
Institute’s newly established series “Studies on International, European and
Regulatory Procedural Law”.

7
Preface

Our dialogue on the effects and implementation of the European Court of

Human Rights’ jurisprudence merely started at the Göttingen conference.
To open it to a wide audience and to engage all those interested in this un-
dertaking we are publishing the conference presentations in this edited vol-
ume. It is our sincere hope to stimulate further debate on these issues so that
the protection of human rights in Europe can further be enhanced.

Göttingen and Strasbourg, Anja Seibert-Fohr and Mark E. Villiger

July 2014

8
Contents

I. Introduction

Current Challenges in European Multilevel Human Rights Protection 13

Anja Seibert-Fohr & Mark E. Villiger

Keynote Address 25
Dean Spielmann

II. Binding Effects and Declaratory Nature of ECtHR

Judgments

Binding Effect and Declaratory Nature of the Judgments of the

European Court of Human Rights: An Overview 33
Mark E. Villiger

Prescriptive Orders in the Operative Provisions of Judgments by the

European Court of Human Rights: Beyond res judicanda? 39
Hans-Joachim Cremer

The Role of the Legislative Branch in the Implementation of the

Judgments of the European Court of Human Rights 59
Almut Wittling-Vogel

III. Award of Damages

Can’t Get Just Satisfaction 75

Julia Laffranque

9
Contents

Is There a Need to Advance the Jurisprudence of the European Court

of Human Rights with Regard to the Award of Damages? 115
Elisabeth Lambert Abdelgawad

France and the Award of Damages: The Payment of Just Satisfaction

and Costs and Expenses in France 137
Michel Puéchavy

IV. Subsidiarity

The Constellation of Global and National Courts: Jurisdictional

Redundancy and Interchange 151
Sabino Cassese

Subsidiarity in the Control of Decisions Based on Proportionality: An

Analysis of the Basis of the Implementation of ECtHR Judgments into
German Law 165
Angelika Nußberger

Are Human Rights Undemocratic? 187

John Laws

Subsidiarity and the Brighton Declaration 193

Derek Walton

V. The Role of National Courts in the Implementation of

ECtHR Judgments

The Struggle by the German Courts and Legislature to Transpose the

Strasbourg Case Law on Preventive Detention into German Law 207
Thomas Giegerich

10
 Contents

How a National Judge Implements Judgments of the Strasbourg Court 237

Jacek Chlebny

International Law in the Recent Jurisprudence of the Hungarian

Constitutional Court: Opening of a New Tendency? 251
Péter Kovács

VI. The Future Role of the ECtHR and National Courts in

Implementation

From Implementation to Translation: Applying the ECtHR Judgments

in the Domestic Legal Orders 267
Andreas Paulus

The Role of the European Court of Human Rights in the Execution of

its own Judgments: Reflections on Article 46 ECHR 285
Linos-Alexander Sicilianos

List of contributors 317

11
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Current Challenges in European Multilevel Human Rights
Protection

Anja Seibert-Fohr & Mark E. Villiger

The European Court of Human Rights (ECtHR) is mandated to ensure that

states parties to the European Convention on Human Rights (ECHR) observe
their engagements. The ECtHR is competent to interpret and find violations
of the ECHR on the basis of individual complaints, but the significance of
these findings often goes beyond an individual case, particularly if the vio-
lation is based on legislation. States are then confronted not only with pro-
viding individual remedies but also with preventing similar future violations:
a question relevant for the executive, legislature and judiciary alike. Pre-
vention of future violations is also in the interest of the ECtHR which faces
more than sixty-five-thousand new applications each year.1
An effective implementation thus requires a constructive dialogue be-
tween the Court and the states parties to the Convention. Since this is an
ongoing process the question is how this process can be further enhanced.
Legal literature focuses on whether states comply with ECtHR orders with-
out giving equal consideration to the role of the Court; and it is concerned
mostly with individual states parties to the ECHR.2 This volume, however,
takes a broader perspective by addressing generic implementation issues and
by including experts from various Council of Europe (CoE) member states.
Together they evaluate the role played and to be played by the ECtHR in the
implementation of its judgments.

1 The European Court of Human Rights – In Facts and Figures (31 December 2013),
available at http://www.echr.coe.int/Documents/Facts_Figures_2013_ENG.pdf (last
visited 13 February 2014), 5.
2 See, e.g., H. Keller & A. Stone Sweet (eds.), Europe of Rights (2008); R. Blackburn
& J. Polakiewicz (eds.), Fundamental Right in Europe (2001); P. Popelier et al. (eds.),
Human Rights Protection in the European Legal Order: The Interaction between the
European and the National Courts (2011), Ch. 5 et seq.; D. Anagnostou (ed.), The
European Court of Human Rights: Implementing Strasbourg’s Judgments on Domes-
tic Policy (2013); T. Barkhuysen et al. (eds.), The Execution of Strasbourg and Geneva
Human Rights Decisions in the Domestic Legal Order (1999).

13
Anja Seibert-Fohr & Mark E. Villiger

A. Jurisdictional Developments

The implementation of the European Convention has traditionally been con-

sidered as a matter conducted exclusively through the execution of judg-
ments supervised by the CoE Committee of Ministers under Article 46 of
the European Convention. The role of the ECtHR has not been given equal
attention. This volume offers a closer look at the Court’s jurisprudence on
effects and implementation and reveals considerable development beyond
its traditional dualist approach.3 In recent years the ECtHR has been more
prepared to elaborate on how to implement its judgments and specified nec-
essary measures of redress and prevention.4 Its national State counterparts,
however, have been reluctant to follow this advice wishing to maintain a
sovereign right to choose among different means of implementation. The
ensuing tension has attracted attention not only in new member states but
also in established democracies which emphasise the principle of subsidiar-
ity.
This volume provides a fresh look at the relationship between national
jurisdictions and the ECtHR. Mutual consideration between the national and
European levels is clearly indispensable to improve cooperation: competent
national institutions need to consider ECtHR jurisprudence while the ECtHR
needs to reflect on the potential effects of its judgments within the domestic

3 For the Court’s traditional understanding according to which “the Court’s judgment
is essentially declaratory and leaves to the State the choice of the means to be utilised
in its domestic legal system for performance of its obligation under Article 53 (art.
53)”, see Marckx v. Belgium, ECtHR Application No. 6833/74, Judgment of 13 June
1979, para. 58. See also Airey v. Ireland, ECtHR Application No. 6289/73, Judgment
of 8 October 1979, para. 26, which stipulated that “it is not the Court’s function to
indicate, let alone dictate, which measures should be taken” in order to give effect to
the rights of the ECHR.
4 See, e.g., M. E. Villiger, Binding Effect and Declaratory Nature of the Judgments of
the European Court of Human Rights: An Overview, in this volume; J. Laffranque,
Can’t Get Just Satisfaction, in this volume, Ch. H.; H.-J. Cremer, Prescriptive Orders
in the Operative Provisions of Judgments by the European Court of Human Rights:
Beyond res judicanda? in this volume, Ch. A.; L.-A. Sicilianos, The Role of the
European Court of Human Rights in the Execution of its own Judgments: Reflections
on Article 46 ECHR, in this volume, Ch. B. II & III. See also G. Nicolaou, The New
Perspective of the European Court of Human Rights on the Effectiveness of its Judge-
ments, in C. Hohmann-Dennhardt et al. (eds.), Grundrechte und Solidarität – Durch-
setzung und Verfahren: Festschrift für Renate Jaeger (2011), 163, 167. For the need
to adopt general measures to prevent further violations see, e.g., Fabris v. France,
ECtHR Application No. 16574/08, Judgment (GC) of 7 February 2013, para. 75.

14
 Current Challenges in European Multilevel Human Rights Protection

sphere. An impact assessment allowing the ECtHR to consider these effects

could be an option. This and other means of legal interaction are evaluated
by academics and practitioners in the following chapters with the intent to
give practically relevant advice.
The compilation of their reflections on the implementation of ECtHR
judgments is focused on the changing role of the ECtHR in the area of im-
plementation and on the implications for the domestic level. The role of the
Committee of Ministers in the execution of judgments has been extensively
addressed elsewhere.5
This volume, instead, assesses the binding effects of ECtHR judgments
(Part II) and the scope and reach of damages (Part III). Both these aspects
determine to what extent further action is required by national authorities.
Subsequently we evaluate the competences of the ECtHR and national in-
stitutions respectively by considering the principle of subsidiarity (Part IV)
and the role domestic courts play in implementing ECtHR judgments (Part
V). Finally, suggestions are made for the future roles of the ECtHR and
domestic courts in implementation (Part VI). The remainder of this intro-
duction gives an overview of the issues addressed in the respective parts.

5 The role of the Committee of Ministers is outlined by Sicilianos, supra note 4, Ch. C.
II. See also, e.g., E. Bates, Supervising the Execution of Judgments Delivered by the
European Court of Human Rights: The Challenges Facing the Committee of Ministers,
in T. A. Christou & J. P. Raymond (eds.), The European Court of Human Rights:
Remedies and Execution of Judgments (2005), 49; L. Zwaak, The Supervisory Task
of the Committee of Ministers, in P. v. Dijk et al. (eds.), Theory and Practice of the
European Convention on Human Rights (2006), 291; E. Lambert Abdelgawad, The
Execution of Judgments of the European Court of Human Rights, 2nd ed. (2008); J.
Polakiewicz, The Obligation of States Arising from the Judgments of the European
Court of Human Rights (1993); P. Leach, The Effectiveness of the Committee of
Ministers in Supervising the Enforcement of Judgments of the European Court of
Human Rights, Public Law (2006) 2, 443; A. Drzemczewski, Monitoring by the
Committee of Ministers of the Council of Europe, 2 Baltic Yearbook of International
Law (2002), 83; X.-B. Ruedin, Exécution des arrêts de la Cour européenne des droits
de l’homme (2009), 5 et seq. For the introduction of the “twin-track system” see P.
Leach, Taking a Case to the European Court of Human Rights, 3rd ed. (2011), 98 et
seq.; A. Mowbray, European Convention on Human Rights, 3rd ed. (2012), 58 et seq.

15
Anja Seibert-Fohr & Mark E. Villiger

B. Binding Effects and Declaratory Nature of ECtHR Judgments

Implementation is determined by the binding effects of ECtHR judgments.

In general, pursuant to Article 46 of the ECHR, the binding force of ECtHR
judgments is limited to the individual adjudicated case. Nevertheless, judg-
ments have relevance beyond an individual case. For example, even though
not formally bound by precedent, the ECtHR regularly considers its previous
jurisprudence in the interest of legal certainty. This has a bearing, particu-
larly if the ECtHR finds legislation in violation of the ECHR, not only on
similar cases within a respondent state but also for other CoE states with
comparable structural problems.
In this context, the questions arise: Are the traditional exigencies of public
international law regarding the effects of international judgments sufficient
and appropriate for modern human rights courts? Or is it necessary to adjust
these rules in the context of the ECHR to allow for more effective human
rights protection? Does the Convention permit such changes? What require-
ments does the ECtHR set as regards the effects of its judgments? What
should governments do to comply with a series of judgments all finding the
same violation (e.g., undue length of proceedings; conditions of detention)?
To what extent do the judgments involve erga omnes effects? How much
freedom does the judgments’ declaratory nature leave to governments – and
where are the limits? To what extent can time limits for the implementation
be established?
In an effort to tackle structural violations the European Court of Human
Rights introduced the procedural device of pilot judgments.6 The ECtHR
had been invited by the Committee of Ministers “to identify, in its judgments
finding a violation of the Convention, what it considers to be an underlying
systemic problem and the source of this problem […] so as to assist States

6 See Broniowski v. Poland, ECtHR Application No. 31443/96, Judgment of 22 June

2004, paras. 188-194; ECtHR, Rules of Court, Rule 61, available at http://
www.echr.coe.int/Documents/Rules_Court_ENG.pdf (last visited 14 February
2014), 34-35. For an evolution of this procedure and its critique see Sicilianos, supra
note 4, Ch. B. I. 2, C. I & C. III. 2. a). See also M. Fyrnys, Expanding Competences
by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Hu-
man Rights, 12 German Law Journal (2011), 1231; E. Fribergh, Pilot Judgments from
the Courts Perspective, in Council of Europe (ed.), Towards Stronger Implementation
of the European Convention on Human Rights (2008), 86.

16
 Current Challenges in European Multilevel Human Rights Protection

in finding the appropriate solution”.7 The new approach has led to a dimin-
ishing leeway in the implementation of ECtHR judgments. This, together
with the trend to ask for specific measures of implementation in individual
cases, has been met with mixed reactions because Article 46 ECHR suggests
a broad scope of implementation. Given this backdrop it is appropriate to
take a fresh look at the Court’s judgments.8 With its focus on the binding
effects and the declaratory nature of the judgments Part II considers inter
alia to what extent the prescriptive orders of the ECtHR are included in the
binding force of the judgment9 and to what extent and how the ECtHR can
exercise restraint in favour of national parliaments.10

C. Award of Damages

Part III discusses another aspect which informs the scope of implementation:
ECtHR competence to award compensation for damages to the plaintiff pur-
suant to Article 41 ECHR and the scope for restitution. While the Inter-
American Court of Human Rights has broadly interpreted a similar provision
in the American Convention,11 the ECtHR has focused traditionally on the
individual case at hand. The respondent state is thus asked to provide resti-
tution. Apart from restitution the respondent government should ensure that
the same violation will no longer occur. In most cases restitution requires
the annulment of the Act contravening the Convention. The Court in its
consequential orders also awards material and/or immaterial damages if
restitution is unfeasible.
The ECtHR determines damages based on considerations of equity. Ar-
ticle 41 ECHR refers to ‘just satisfaction’ to be afforded to the victim of a

7 Council of Europe (Committee of Ministers) (CM), Resolution CM/Res.(2004)3, 12

May 2004 on judgments revealing an underlying systemic problem.
8 See Villiger, supra note 4.
9 See Cremer, supra note 4.
10 A. Wittling-Vogel, The Role of the Legislative Branch in the Implementation of the
Judgments of the European Court of Human Rights, in this volume.
11 D. Shelton, Remedies in International Human Rights Law, 2nd ed. (2005), 216 et
seq.; D. C. Grossman, Reparations in the Inter-American System: A Comparative
Approach, 56 American University Law Review (2007) 6, 1375, 1376. See also E.
Lambert Abdelgawad, Is There a Need to Advance the Jurisprudence of the European
Court of Human Rights With Regard to the Award of Damages?, in this volume, Ch.
C.

17
Anja Seibert-Fohr & Mark E. Villiger

violation. But the term ‘just satisfaction’ is open to interpretation and its
exact scope is yet to be clarified. In this context, the questions arise: Can the
suffering of individuals be compensated at all in monetary terms? Doesn’t
the award of damages by the Court lead to a monetarisation of human rights?
Can the award of damages be used to pressure a respondent government
(retribution v. compensation)? Should the ECtHR be more innovative by
indicating other remedies? What are the relevant criteria for the award of
material and immaterial damages?
These are some of the issues when we consider the question of what dam-
ages are necessary to effectively protect ECHR rights. Part III of this volume
demonstrates that the ECtHR has gradually extended its jurisprudence be-
yond its traditional approach of pronouncing declaratory judgments and
leaving the supervision of their execution to the exclusive competence of the
Committee of Ministers. The ECtHR now goes beyond the award of satis-
faction by issuing consequential orders and asking the defendant state to
provide specified measures of redress.12 A recent example is the ECtHR
order of 9 January 2013 in Volkov v. Ukraine to reinstate a Supreme Court
judge who had been removed from office in violation of Article 6
ECHR.13 But with this extended approach the question arises as to how far
the ECtHR can go to influence the implementation of its judgments in the
award of damages and how Article 41 and Article 46 ECHR relate to each
other.
With its overview of evolving ECtHR jurisprudence on damages Part III
illustrates that there is already a vast array of both individual and general
measures which the Court has indicated or even prescribed, from different
forms of satisfaction to the re-opening of domestic proceedings.14 Part III
considers whether there is a pattern in the award of damages.15 It also eval-
uates to what extent this practice can be based on the powers accorded to the
Court by the ECHR and whether there is even a need to advance its ju-

12 See e.g. Assanidze v. Georgia, ECtHR Application No. 71503/01, Judgment (GC)
of 8 April 2004, para. 202-203 & esp. operative part, para. 14 (a). For an account of
this development see Laffranque, supra note 4.
13 Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11, Judgment of 9 Jan-
uary 2013, para. 208 & operative part, para. 9.
14 Laffranque, supra note 4. See also Sicilianos, supra note 4, Ch. B. II. et seq.
15 Ibid.

18
 Current Challenges in European Multilevel Human Rights Protection

risprudence with regard to the award of damages.16 Finally, state compliance

with the award of damages is examined taking the example of France.17

D. The Role of Subsidiarity

Part IV turns to the relationship of the ECtHR to the states parties of the
ECHR.18 The responsibility to protect human rights is primarily with the
states parties. They may even go beyond the Convention by establishing
higher domestic standards for the protection of human rights. The subsidiary
role of the ECtHR is emphasised by the exhaustion of local remedies rule:
the ECtHR is only competent to hear cases if remedies provided for at the
national level have failed. Nevertheless, the ECtHR claims a strong standard-
setting function which often conflicts with domestic statutes.
The question arises how far the ECtHR may go in its jurisprudence and
whether it should defer more to democratically elected parliaments. This
question has attracted increasing attention leading to the adoption of Protocol
No.15 which will formally add the principle of subsidiarity to the ECHR
when it enters into force. But what is required from the ECtHR in the interest
of subsidiarity and how can this be achieved? What impact does the principle
of subsidiarity have procedurally and what standard of review should the
ECtHR employ to effectuate subsidiarity? Subsidiarity also becomes rele-
vant in the context of damages: to what extent should subsidiarity influence
the Court’s jurisprudence?19 On the other hand, what are the limits of sub-
sidiarity and what role should subsidiarity play in the domestic implemen-
tation of ECtHR judgments?
Part IV, dealing with these matters, considers various mechanisms for the
implementation and fine-tuning of the subsidiarity principle which shapes
the mutual European and national relationship.20 Among these mechanisms
are the application of proportionality review and the scope of the margin of

16 Lambert Abdelgawad, supra note 11.

17 M. Puéchavy, France and the Award of Damages: The Payment of Just Satisfaction
and Costs and Expenses in France, in this volume.
18 S. Cassese, The Constellation of Global and National Courts: Jurisdictional Redun-
dancy and Interchange, in this volume.
19 Laffranque, supra note 4, Ch. B & K.
20 Cassese, supra note 18, Ch. C. & D.

19
Anja Seibert-Fohr & Mark E. Villiger

appreciation.21 These principles are of particular interest in cases of multi-

polar human rights conflicts where subsidiarity demands particular attention.
To guide ECtHR jurisprudence, concrete suggestions are given on how to
procedurally examine domestic court balancing decisions in cases of con-
flicting rights in order to achieve an appropriate level of control.22 Several
contributions also consider the question of in which cases and to what extent
the ECtHR should defer to domestic legislatures in the interest of democra-
cy.23 The case is made that the margin of appreciation doctrine should be
applied as a medium through which the ECtHR can alleviate the tension
between the claims of fundamental rights and the democratic will.24 Finally,
reference is made to the Brighton Declaration which underlines the signifi-
cance of the subsidiarity principle in the ECHR system and provides for
several other procedural and institutional measures reinforcing the applica-
tion of the subsidiarity principle.25

E. The Role of National Courts in the Implementation of ECtHR Judgments

Part V turns to the role of domestic courts in the implementation of ECtHR

judgments using three exemplary case studies. Though under Article 46 (1)
ECHR, ECtHR judgments are binding on the respondent government, the
ECtHR is not empowered to annul the decisions of domestic courts, even
less to decide in their stead. ECtHR judgments declare whether or not there
has been a violation of the ECHR. Therefore, domestic courts are regularly
seized to follow up on these holdings. In this context the questions arise:
What does the binding nature of an ECtHR judgment imply for domestic
courts? Are domestic courts as organs of the states parties to the ECHR
bound by ECtHR decisions? How do domestic courts deal with potential

21 A. Nußberger, Subsidiarity in the Control of Decisions Based on Proportionality: An

Analysis on the Basis of the Implementation of ECtHR Judgments into German Law,
in this volume, Ch. B. II. & C. II.; Cassese, supra note 18, Ch. D. See also A. Paulus,
From Implementation to Translation: Applying the ECtHR Judgments in the Do-
mestic Legal Orders, in this volume, Ch. C. I.
22 Nußberger, supra note 21, Ch. C. II. See also Paulus, supra note 21, Ch. C. I.
23 J. Laws, Are Human Rights Undemocratic?, in this volume; Wittling-Vogel, supra
note 10, Ch. A. I.
24 Laws, supra note 23.
25 This contribution was written by an insider who actively participated in this process:
D. Walton, Subsidiarity and the Brighton Declaration Beitrag, in this volume.

20
 Current Challenges in European Multilevel Human Rights Protection

conflicts between ECtHR decisions and national constitutional law? What

are feasible strategies to mediate conflicts between national and European
human rights jurisdiction?
Referring to the most recent jurisprudential developments in Germany,
Poland and Hungary Part V considers what concrete role national courts can
and do play in the implementation of ECtHR judgments. Without claiming
to give a comprehensive overview, these examples allude to the challenges
and advancements of national judicial implementation. The German exam-
ple of preventive detention was chosen because of the different scope of
protection of the right of liberty of person under the ECHR and national
constitutional law. The study shows how the German Federal Constitutional
Court and the ECtHR in an ongoing dialogue have dealt with this difference
in an effort to reconcile their interpretation of the respective guarantees.26
This is illustrated by the ECtHR decision which attracted considerable do-
mestic attention. The Strasbourg judgment in M. v. Germany led to some
irritation in Germany because it differed from established constitutional case
law. But this case finally led to a reconsideration of constitutional interpre-
tation and to a statutory reform.27 Based on the experience gained in this
case suggestions are made for how domestic courts and the ECtHR can fa-
cilitate national implementation in the future.
The Polish and the Hungarian studies, too, show how domestic courts can
give effect to ECtHR jurisprudence and how procedurally domestic courts
seek to harmonize national law with ECtHR case law. Based on a broad
interpretation of implementation the authors of these contributions, both
high-level national judges, explain how their jurisdictions engage with
ECtHR judgments in terms of statutory and constitutional interpretation and
what obstacles they face. The Polish contribution illustrates current imple-
mentation practice with a reference to several administrative law cases,28
whereas the Hungarian contribution points to recent developments in the
jurisprudence of the Hungarian Constitutional Court.29 The Hungarian ex-

26 T. Giegerich, The Struggle by the German Courts and Legislature to Transpose the
Strasbourg Court’s Case-Law on Preventive Detention into German Law, in this
volume.
27 For the characterisation of the ECtHR judgment in M. v. Germany as a “legal irritant”
see Nußberger, supra note 21, Ch. A. II.
28 J. Chlebny, How a National Judge Implements Judgments of the Strasbourg Court,
in this volume.
29 P. Kovács, International Law in the Recent Jurisprudence of the Hungarian Consti-
tutional Court: Opening of a New Tendency?, in this volume.

21
Anja Seibert-Fohr & Mark E. Villiger

ample demonstrates that ECtHR jurisprudence can even be relied on by do-

mestic courts as a safeguard against constitutional changes in order to
counter governmental efforts which seek to lower national human rights
standards and to limit judicial review.30

F. The Future Role of the ECtHR and National Courts in Implementation

Part VI again takes a general perspective in considering the future role of

both European and national jurisdictions with regard to implementation. In
this context the pertinent questions are: Should the ECtHR develop a more
proactive role with regard to the effects and the implementation of its judg-
ments? To what extent should ECtHR judgments be more than declaratory
and to what extent may the award of damages go beyond individual restitu-
tion? How can further changes be implemented? Can this be done de lege
lata or de lege ferenda? In other words, is the ECtHR empowered under the
ECHR as it stands to manage the effects of its judgments or is a formal
amendment to the ECHR required? Can a more progressive reading of the
ECHR be reconciled with the principle of subsidiarity? How can a more
activist approach be reconciled with the CoE’s commitment to democratic
government? What are the implications for the supervisory powers of the
Council of Ministers over the execution of judgments? How would it influ-
ence the proceedings, if the ECtHR manages the effects of its judgments
more dynamically? Is there a need to develop additional procedural steps
(e.g. impact assessments)? What would be the impact on the structure and
substance of judgments?
Based on Parts I-V and on lessons learned from recent cases, Part VI
evaluates reform proposals and their feasible implementation. It asks about
the advantages and disadvantages of maintaining the present system (Arti-
cles 41 and 46 ECHR) as regards binding, yet declaratory judgments and the
award of damages.31 It reflects on the future implementation of ECtHR
judgments in national legal orders, considering implementation not as a mere
mechanical application but as a process of “translating” an ECtHR decision
into a national legal order.32 The ECtHR is cautioned to exercise its com-
petences reasonably and complimentary without being excessively prescrip-

30 For the latter issue, see ibid., Ch. C.

31 Paulus, supra note 21, Ch. B. II.
32 Paulus, supra note 21.

22
 Current Challenges in European Multilevel Human Rights Protection

tive so as to maintain an institutional equilibrium with the Committee of

Ministers while leaving states a margin of appreciation in the implementa-
tion of the Convention and the execution of judgments.33

G. Multipolar Engagement

While the individual parts of this volume focus on specific aspects of im-
plementation, they nevertheless show a common understanding. Instead of
considering European human rights protection within the confines of a static
legal hierarchy and searching for a final authority, the contributions to this
volume emphasise jurisdictional interchange.34 The ECtHR and national ju-
risdictions take part in the joint endeavour of the Council of Europe. They
share responsibility for the protection of human rights in Europe.35 This
responsibility requires active engagement by all relevant institutions,
whether national or international, whether legislative, executive or judicial.
Accordingly the authors refer to a “multipolar college of human rights pro-
tectors”36 and call for a “constructive cooperation” between them.37 Obvi-
ously this interchange leads to tensions and irritations; but they can also be
futile.38
To facilitate and shape this jurisdictional interchange and to develop a
cooperative approach, various legal devices are referred to: the consensus
doctrine39, the subsidiarity principle40, the margin of appreciation41, proce-

33 Sicilianos, supra note 4, Ch. C. II. & IV.; Paulus, supra note 21, Ch. C. II. & III. See
also Nußberger, supra note 21, Ch. C. II. 2.
34 For this term see Cassese, supra note 18, Ch. C. According to Paulus, human rights
protection in Europe is more than a simple ‘command and obey’- relationship.
Paulus, supra note 21, Ch. D.
35 D. Spielmann, Keynote Address, in this volume.
36 Giegerich, supra note 26, Ch. C. II.
37 Ibid., Ch. C. III.; Wittling-Vogel, supra note 10, Ch. C. For the call for mutual respect
see Paulus, supra note 21, Ch. D.
38 Nußberger, supra note 21, Ch. A. II.
39 Cassese, supra note 18, Ch. C.
40 See Part IV on subsidiarity, in this volume.
41 Paulus, supra note 21, Ch. C. I; Sicilianos, supra note 4, Ch. C. II. & IV.; Laws,
supra note 23; Cassese, supra note 18, Ch. C; Wittling-Vogel, supra note 10, Ch. A.
II & D.; Walton, supra note 25, Ch. B. II.

23
Anja Seibert-Fohr & Mark E. Villiger

dural instruments42, the principle of bona fide43 and judicial self-restraint44.

These devices are meant to be complementary and counterbalancing. For
example, the margin of appreciation accorded to the states parties to translate
ECtHR judgments into the national legal order45 has its counterpart in the
bona fide approach which requires domestic institutions to give due weight
to ECtHR jurisprudence in implementation. Readers will find additional as-
pects of this multipolar engagement in this book.
It is beyond the scope of this introduction to go beyond an overview. In
preparing this project we have identified and specified pertinent considera-
tions regarding the effects and implementation of ECtHR judgments. Read-
ers will find these and other issues addressed in this volume. Nevertheless
this can only be a beginning. The challenge of implementation is ongoing
and can neither be dealt with exhaustively nor finally settled solely in this
volume. Therefore the issues raised and their discussion are intended to trig-
ger further reflection. We invite readers to follow-up and consider these
issues from yet different angles.

42 Nußberger, supra note 21, Ch. C. II. See also the reference to infringement proceed-
ings in Lambert Abdelgawad, supra note 11, Ch. C.; Cremer, supra note 4, Ch. C.
III.
43 Cremer, supra note 4, Ch. C. III.
44 Wittling-Vogel, supra note 10, Ch. A.
45 Paulus, supra note 21, Ch. B. II.

24
Keynote Address

Dean Spielmann

I would like to preface my address to this conference with some words of

well-deserved gratitude.
My thanks first of all to the conference organizers, Professor Anja Seibert-
Fohr and Judge Mark E. Villiger. It is because of Professor Seibert-Fohr that
we have gathered here in Göttingen. With the help of her team, she has dealt
with the myriad details that go along with the organizing of international
events such as this, and we owe them a debt of gratitude. My thanks also to
Professor Frank Schorkopf for his kind words of welcome, and of course to
the University of Göttingen for hosting this event.
Given the subject-matter of this conference – the Judgments of the Euro-
pean Court of Human Rights – it was only natural for me to accept the in-
vitation to deliver the keynote address. As you can see, Mark Villiger and I
are not the only ones to have travelled from Strasbourg. Other members of
the Court, present and past, appear on the programme and will be contribut-
ing to the discussions over the course of today and tomorrow. Our presence
here marks the importance that the Court attaches to this event.
I would like to begin by emphasising the timeliness of this event. It is
timely in the general context of Convention reform. The Interlaken process
(to use its original name) is now in its fourth year. It is far from over – indeed,
it has not yet reached its mid-point, since the timeframe envisaged at Inter-
laken reaches to 2019.1 Nevertheless, the focus of the reform discussions is
about to shift, from the near future to the longer term. As you know, the first
wave of Convention reform is now accomplished. Protocols 15 and 16 exist
and will enter into force in due course.
This second stage of the reform process has a dual focus. First there is
continuous observation and assessment of the situation of the Court, which
has managed to greatly increase its capacity. The number of cases decided

1 See the High Level Conference on the Future of the European Court of Human Rights,
Interlaken Declaration (19 February 2010), available at http://www.coe.int/t/dghl/co-
operation/capacitybuilding/Source/interlaken_declaration_en.pdf (last visited 31 Jan-
uary 2014).

25
Dean Spielmann

at Strasbourg annually has more than doubled since the Interlaken confer-
ence. That is a truly remarkable feat. It is due mainly to the Single Judge
formation, although there have been significant increases in other areas too.
One might say that the Court has found the accelerator.
However, the longstanding problem of an excessive number of pending
cases persists. The effectiveness of the new filtering system has changed the
physiognomy of the Court’s docket. It is now clearer than ever where the
real weight of the burden lies. It is above all composed of repetitive cases
stemming from unsolved problems, structural or systemic, in a number of
European States. There are over 47,000 of these cases pending before the
Court. It poses a major difficulty for the Convention system, and we must
continue to seek solutions. These concerns coincide precisely with the theme
of this conference. As has been said often, repetitive applications are the
consequence of inadequate implementation of previous judgments.
Then there is the second focus which, as I have mentioned, is on the long-
term future of the Convention system. This is contained in Part G of the
Brighton Declaration, which calls for a comprehensive analysis of potential
options for the role of the Court in future.
This will include the option of preserving the Court’s current role, which
– I would stress – is unique in the world. The significance of this exercise is
self-evident, and will soon begin. The first step is the creation of a hybrid
group of State representatives and independent experts. Their task will be to
aid the Committee of Ministers reach an interim view in 2015.
I believe that the proceedings of this conference will be of great assistance
to the group when it begins its work in a few months’ time, and indeed to all
those who take part in the process.
The reform discussions can only be enriched by the contributions of gath-
erings such as this.
There is no doubting the impact that an event of this sort can have on
political decision-making, as the Convention’s history shows. The great re-
form of Protocol 11 was foreshadowed some years before by the Neuchâtel
conference. Let the Göttingen conference make a similar mark.
Clearly, it is not our task today to try to reach any sort of political con-
sensus – we can leave that to the diplomats. Instead, with a spirit of academic
freedom and scientific rigour, our task is to look closely and critically at the
judgments of the Court, their effects and their implementation. I applaud the
organizers’ desire to have a transnational perspective on the subject, which
is entirely in keeping with the character of human rights law as part of Eu-

26
 Keynote Address

rope’s ius commune. And the cornerstone of that system of protection is the
right of individual petition.
Likewise I welcome the involvement in these proceedings of three very
important “constituencies”:
• the judicial constituency, domestic and European;
• the professional constituency, in the sense of legal practitioners;
• the academic constituency, with well-known, established scholars from
the fields of international law and human rights law
I come now to the substance of the conference. It pertains to the very bedrock
of the Convention system. Through its judgments, the Court weaves the
threads of the Convention into the fabric of European human rights law. The
Court’s judgments concretize the guarantees of the Convention and the Pro-
tocols.
From the substantive viewpoint, this is a very familiar area – there is no
shortage of commentary on the Strasbourg case-law. But our programme
comes at this familiar subject from another angle, inviting us to shift to a
perspective that is systemic and strategic. That perspective rests on the reality
of the Convention system today, sixty years after the treaty entered into force.
In two key ways, the system in practice has developed beyond the original
schema. First, as regards the place of the Court, while it is external to the
legal systems of the Contracting States, to see it only as such is to overlook
the fact that the Convention machinery is part of a multi-level system of law.
The European Court is not the sole judicial actor in the field, and the Con-
vention system is not limited to what takes place in Strasbourg. It follows
that the effectiveness of the Convention system is best served by the com-
bined and co-ordinated actions of a plurality of actors.
What does that look like? And how often is that achieved?
It clearly involves communication between the different actors, and in
particular judicial dialogue, which, may I say, is practised with conviction
by the European Court. This publication anticipates new strategies of com-
munication between the national judge and the European judge. I find that
an enticing idea. While the Convention gives to the European Court the
final say, that is not the only say in a case. The culture of the Convention
system is, by design, a pluralist one. Subject always to meeting the minimum
standard of protection, it accommodates the great diversity of 47 European
States. The paramount concern is effectiveness, not uniformity. And so there
is an important place for dialogue within the system, among its multiple
levels. I simply note in passing that Protocol 16, opened for signature on 2

27
Dean Spielmann

October 2013, will open a formal and direct channel for dialogue between
the national and European judge. I have long believed in the value of such
a procedure, and I am convinced of its potential to improve the implemen-
tation of the Convention.
The second way in which the reality of the Convention mechanism sur-
passes the original model is in the impact of the Court’s judgments. The
States’ express obligation to abide by judgments only concerns judgments
delivered against them, as Article 46 (1) provides. Yet that fails to capture
the true potency of the Court’s rulings. Its binding determinations in a case,
contained in the operative provisions of the judgment, rest upon its authori-
tative interpretation of the text of the Convention. To put it another way, res
judicata is paired with res interpretata (or “l’autorité de la chose inter-
prétée”). Those interpretations are closely studied and followed by domestic
courts.
I would observe here that the European Court is very conscious of this
broad impact of its judgments. From this follows the need for a case-law that
meets a high degree of consistency, and develops in an orderly and persua-
sive manner. You will be aware that this is the objective pursued by one of
the amendments included in Protocol 15. This will amend Article 30 of the
Convention so as to remove the parties’ veto over the sending of a case to
the Grand Chamber of the Court. The amendment was in fact proposed by
the Court, signalling its desire to further improve the means of ensuring
consistency in the Strasbourg jurisprudence.
Underpinning our discussions will be the notion of subsidiarity. There is
a broad consensus nowadays about the significance and legitimacy of this
concept. It is a key structural principle for the Convention system and a
leitmotif in the reform discussions. While its origins lie in the Court’s case-
law, Protocol 15, as you know, will bring the term into the text of the Con-
vention, placing it in the Preamble. It is a rather flexible concept, carrying
different shades of meaning. From the perspective of the Court, subsidiarity
implies careful application by the domestic authorities of the relevant Con-
vention standard, as elucidated in the Court’s case-law. Where this is done,
it has the effect of – if I can put it this way – lowering the centre of gravity
of the Convention system, meaning greater balance and stability. One avoids
the problem of “top-heaviness”, meaning excessive weight and over-depen-
dence on the European Court. As the reform declarations have put it, very
simply and very well, subsidiarity means shared responsibility.
Even if subsidiarity is more often thought of in terms of “before”, i.e.
before judgment, it is also relevant to the “after”, that is to the execution or

28
 Keynote Address

implementation of judgments. As the Court has put it in a great many cases,

“a State remains free to choose the means by which it will discharge its legal
obligation under Article 46 of the Convention, provided that such means are
compatible with the conclusions set out in the Court’s judgment”.2
This statement has been qualified to a certain extent in the Court’s recent
practice. The prime example of this is pilot judgments. For the defining
characteristic of a pilot judgment is an indication – or even an instruction –
in the operative provisions to the State to take specified remedial steps (Rule
63 (3) of the Rules of Court). There have been relatively few such cases so
far, however. While the pilot procedure was an innovation on the part of the
Court, it has enjoyed the support of States, who subscribe to the Court’s
objective of addressing the underlying cause of repetitive cases. It must be
stressed that this is not an inroad into the principle of subsidiarity – on the
contrary, the Court has stated that the aim of a pilot judgment is, and I quote,
“implementing the principle of subsidiarity which underpins the Convention
system”.3
The pilot-judgment procedure is the clearest example of the Court seeking
to manage the effects of its judgments. This involves a shift of tone, from
the declaratory to the directive. I think it true to say that the procedure has
proven its effectiveness. It has allowed the Court to dispose of thousands of
repetitive applications, either by sending them back to new domestic reme-
dies, or on the basis of mass settlements offered by the respondent State.
I have called it an innovation, but I would also say that the Court has
applied the procedure with caution and circumspection. In some cases, the
Court has been quite detailed regarding the type of measure required and the
timeframe for action. In others, it has acknowledged the limits of the judicial
role, and deferred to the expertise available to the Committee of Ministers
to assess complex reforms. A broad margin of appreciation is another reason
for the Court to refrain from indicating how exactly its judgment should be
implemented. I give the example here of the pilot judgment about prisoner
voting, Greens and M.T. v. United Kingdom.4 Regarding this case, I observe
with the deepest dismay the lack of any significant progress in executing this

2 See, e.g., Scozzari and Giunta v. Italy, ECtHR Application Nos. 39221/98 &
41963/98, Judgment of 13 July 2000, para. 249.
3 See, e.g., Burdov v. Russia (No. 2), ECtHR Application No. 33509/04, Judgment of
15 January 2009, para. 127.
4 Greens and M.T. v. United Kingdom, ECtHR Application Nos. 60041/08 & 60054/08,
Judgment of 23 November 2010.

29
Dean Spielmann

judgment, notwithstanding the margin of appreciation allowed to the re-

spondent State.
As I have already said, the pilot procedure has been used quite selectively.
More frequently, the Court has preferred a softer approach, relying on
Article 46 and/or Article 41 to suggest to the respondent State the type of
measures that would be appropriate to implement the judgment. Typically,
the operative provisions remain silent on the point, although on occasion the
Court will take that further step. As I have made clear in a number of separate
opinions, I belong to the school of thought at the Court that wished to see
some of these judgments go further than Article 46 dicta, and place an ex-
press obligation on the State to achieve restitutio in integrum. I refer in par-
ticular to judgments finding a violation of the right to a fair criminal trial.
The Court’s settled position is that, in such cases, the applicant should be
granted a retrial if that is their wish. The view I expressed was that the point
was so important that it deserved inclusion in the operative provisions of the
judgment. In this way, the State would be formally bound to provide the
most adequate redress to the applicant for a serious violation of the Con-
vention.
That is what the Court did in the different context of the case Oleksandr
Volkov v. Ukraine.5 I have some familiarity with the judgment, since I was
the presiding judge, and confirm that it is a noteworthy one. As regards
implementation, the judgment embraces the softer approach for general
measures that Ukraine will have to take. For individual measures, it ex-
pressly requires the domestic authorities to secure the applicant’s reinstate-
ment as a judge of the Supreme Court of Ukraine. A precedent, undoubtedly,
but one based on “very exceptional circumstances”, justifying departure
from the habitual declaratory style of judgment. One can find some other
examples in the case-law of “injunctions” to the respondent State. But they
remain rare – one might say that there are the beginnings of a pattern, but
not yet a practice.
It may be that the distinction between “Article 46” judgments and those
in which the Court makes use of the operative provisions to oblige the re-
spondent State to take certain measures is less significant in practice than in
theory. The Court has used very clear, imperative language under Article 46.
I cite as an example of this the recent judgment Savriddin Dzhurayev v.

5 Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11, Judgment of 9 Jan-

uary 2013.

30
 Keynote Address

Russia,6 which has just become final. It includes a lengthy passage under
Article 46 on the measures needed to prevent similar violations (the problem
being the removal of applicants to a third country notwithstanding the ap-
plication of Rule 39 of the Rules of Court). The reasoning here is remarkably
detailed, so that it is clear to the respondent State, the Committee of Ministers
and, no less important, to the domestic judiciary, what type of response is
required. The possibility of going further if need be in a future case is left
open, the Court stating that it “will abstain at this stage from formulating
specific orders”.7
The last panel discussion will ask: what will be the future role of the Court
in the implementation of its judgments? I shall be very interested to hear the
predictions made by the members of that panel and from the conference
floor. For myself, I prefer to be cautious in predicting what the Court might
do in future as regards implementation. That said, it appears to me that Pro-
tocol No. 16 – once it takes effect – may be relevant here. I would not rule
out the possibility of a supreme court seeking an advisory opinion from the
European Court regarding the implications of a judgment that has already
been delivered. Surely this too could be a “question of principle”, which is
the term used in Article 1 of the Protocol. While this particular scenario is
not envisaged in the Explanatory Report, would it not be (and here I para-
phrase the Preamble) a form of interaction between the domestic and Euro-
pean levels, reinforcing implementation of the Convention in accordance
with the principle of subsidiarity? I leave the suggestion for your consider-
ation.
And I would add a second remark, which concerns the role of the Com-
mittee of Ministers. Two weeks ago I had a meeting with all ambassadors at
Strasbourg, as part of the Court’s ongoing contact and dialogue with the
States Parties. I was impressed to hear how many delegations took the floor
to call for more vigorous supervision of the execution of judgments. This
has been a major theme of the reform discussions, and I have the sense that
State thinking is evolving. My point is the following – just as the Court may
devise some further practices or procedures in order to boost the implemen-
tation of its judgments, so the Committee of Ministers must find its way
towards more effective action. That is the logic of the Convention mecha-
nism, and we should deepen it, not depart from it.

6 Savriddin Dzhurayev v. Russia, ECHR Application No. 71386/10, Judgment of 25

April 2013.
7 Ibid., para. 264 (emphasis added).

31
Dean Spielmann

I see the task of the keynote speaker as sounding the note that allows the
whole ensemble to find the right pitch so the performance may commence.
I hope I have managed this, although I am aware that I have sounded essen-
tially a Strasbourg note. This is just one element of a richer, more elaborate
work. I look to the solistes and to the chef d’orchestre to give it its full
rendering. It is on this note that I shall draw my remarks to a close, and I
thank you for your attention.

32
Binding Effect and Declaratory Nature of the Judgments of the
European Court of Human Rights: An Overview

Mark E. Villiger

The contributions to this volume all concern specific aspects of the effects
and the implementation of the judgments of the European Court of Human
Rights regarding violations of the European Convention on Human Rights.
The starting points are the binding effects and the declaratory nature of the
Court’s judgments.
Once the Court has issued a judgment, the main obligation falling upon
a respondent state derives from Article 46 (1) of the Convention, namely
that convention states “undertake to abide by the final judgment of the court
in any case to which they are parties”. In other words, the judgment is binding
on the respondent state concerned. Article 46 (2) complements this obliga-
tion by providing that the Committee of Ministers of the Council of Europe
shall supervise the execution of the judgment. According to Article 41, the
Court may also award compensation for pecuniary and non-pecuniary (im-
material) damage.
And this is all – this is where, according to the Convention, a respondent
state’s obligations end. In particular, the Court cannot annul the domestic
act concerned, nor can it decide in lieu of the domestic authority. The judg-
ments are merely declaratory: they hold whether or not a state has breached
its obligations under the Convention.
Thus, if the Court finds a Convention violation by a particular respondent
government¸ the latter enjoys a certain margin of appreciation. While the
government knows that it must implement a particular judgment, it is in
principle free how it implements. There are many ways how national au-
thorities can implement the Court’s judgments: Will it be necessary to enact
a new statute, or revise an existing law? Should the judicial interpretation of
a particular legal provision be changed? Are structural changes in the ad-
ministration (e.g., of the Public Prosecutor’s Office) called for? Should a
new domestic remedy be introduced? Should instructions be issued to prison
staff, to teachers, to the police? Indeed, implementation may raise particu-
larly complex difficulties, for instance where courts in a convention state are
completely overburdened but are nevertheless called upon to conduct court

33
Mark E. Villiger

proceedings within a reasonable time (Article 6 (1) of the Convention).

Throughout, domestic courts, in particular the highest courts, of a convention
state enjoy a particular role in ensuring the implementation of the Court’s
judgments in the domestic sphere.
The Committee of Ministers, which examines compliance with these
obligations, has limited powers. Apart from requesting a state to provide
further information as to implementation of a particular judgment, the Com-
mittee of Ministers has no other means of enforcement, except of course the
so-far theoretical possibility of expelling a state from the Council of Europe.
Looking at the Committee of Ministers’ website on the execution of judg-
ments, one is struck by the thoroughness with which it approaches its task;
indeed, one is reminded of an accountancy exercise.1 But it is no secret that
when cases – and the ensuing judgments – have political connotations dis-
cussions in the Committee of Ministers on their execution may be protracted
and even tough – which is not what the protection of human rights is actually
about.
This situation as to the nature and effects of the Court’s judgments is a
reflection of international law in 1950 when the Convention was adopted.
Whether these effects are still appropriate more than 60 years later in the
21st century is an issue; whether these effects hinder – or maybe, to the
contrary, in their flexibility further – the effective protection of human rights;
or whether the Convention should reflect that the Court’s judgments may
exercise an erga omnes effect by also affecting third States. These are highly
important and fascinating questions which cannot be resolved once and for
all. The Convention is a “living instrument”, and so are also the effects of
its judgments.
Of course, the Court in its judgment may also order a state to pay material
and immaterial damages as well as costs and expenses according to Article
41 of the Convention. This is a direct reflection of public international law
both in 1950 and today. But there is hardly a topic so disputed as the award
of money by the Court and issues which arise in connection are whether the
Court should afford higher or lower sums; whether it should present and
publish tables of awards; whether money can at all remedy a human rights
violation; whether the Court – as in the case of the Inter-American Court of
Human Rights – should offer forms of just satisfaction other than money;

1 See the Committee of Ministers’ website, available at http://www.coe.int/t/dghl/

monitoring/execution (last visited 31 January 2014).

34
 Binding Effect and Declaratory Nature of the Judgments of the ECtHR: An Overview

and whether these awards are actually the reason why certain persons file
applications – in which case the awards no longer have anything to do with
human rights and should be abolished?
I questioned above whether the Convention’s regulation of effects of the
Court’s judgments in 1950 is still adequate today. Clearly, one reason why
the Convention fathers and mothers chose this approach is because they
placed considerable importance on the principle of subsidiarity in the im-
plementation of these judgments.2 Convention states have different consti-
tutional systems and traditions – written and unwritten – and will encounter
varying difficulties when implementing an international decision. One and
the same judgment may mean different things to different states. For in-
stance, the judiciary and the administration may have different roles to play.
There are also varying relations between international and domestic law.
Finally, federal states are confronted with the particular problem of a sepa-
ration of powers on various levels. In 1950 it was thought that states should
have a certain leeway in deciding how to implement the Court’s judgments.
A recent and central aspect of the effects and implementation of the
Court’s judgments concerns the future role of the Court. While different roles
may be considered, one has certainly become clear – that the Court will give
advice in its judgments as to how judgments could and should be imple-
mented. It has done so first under Article 41 of the Convention, and now
regularly under Article 46.3
This role started very inconspicuously some years ago when the Court in
certain judgments came to the finding of a violation because it had concluded
that criminal proceedings had not been fair according to Article 6 (1) of the
Convention. The first case in which this arose was Gencel v. Turkey where
the Court, after finding a breach of Article 6 (1) inasmuch as the Turkish
State Security Courts lacked sufficient independence and impartiality in the
applicant’s criminal proceedings, went on to state that the most appropriate

2 See on the subject M. E. Villiger, The Principle of Subsidiarity in the European Con-
vention on Human Rights, in M. G. Cohen (ed.), Promoting Justice, Human Rights
and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch
(2007), 623.
3 See on the subject among the small but growing literature, including within this vol-
ume, inter alia, G. Nicolaou, The New Perspective of the European Court of Human
Rights on the Effectiveness of its Judgments, in Christine Hohmann-Dennhardt et
al. (eds.), Grundrechte und Solidarität – Durchsetzung und Verfahren: Festschrift für
Renate Jaeger (2011), 163.

35
Mark E. Villiger

redress would be to reopen the proceedings.4 This so-called Gencel formula

became widely known when it was applied in Öcalan v. Turkey.5 Since then,
the Court has become more proactive – there are over 200 Gencel-type
judgments – and the Court has indeed now also become clearer in its advice
to respondent governments. For instance, in Oleksandr Volkov v. Ukraine,
the Court considered that the applicant’s dismissal as a Supreme Court judge
breached his Convention rights; as a result, it found that there was no other
way to comply with the judgment than for the respondent government to
reinstate the applicant as a judge of the Supreme Court.6 The limits of such
counsel under Article 46 are also clear: as the Court found in Iskandarov v.
Russia, it could not indicate to a respondent government to interfere with the
affairs of another sovereign state.7
Government reactions to the Court’s up-dated role have been surprisingly
muted. It is true that in the case of Konstantin Markin v. Russia, concerning
the discrimination of male Russian soldiers as regards parental leave, the
Court was criticised for overstepping its boundaries when the Chamber
judgment recommended as being desirable certain changes in the domestic
legislation.8 Interestingly, the subsequent Grand Chamber judgment no
longer gave such advice.9
There are clearly good reasons why the Court issues such advice. There
is the practical reason: the Court has carefully examined the case and is in a
very good position to make such proposals. And respondent governments,
even more so domestic courts, are grateful for indications as to how they
should proceed when implementing the judgment – they wish to do suffi-

4 Gencel v. Turkey, ECtHR Application No. 53431/99, Judgment of 23 October 2003,

para 27: “Lorsque la Cour conclut que la condamnation d’un requérant a été prononcée
par un tribunal qui n’était pas indépendant et impartial au sens de l’article 6 § 1, elle
estime qu’en principe le redressement le plus approprié serait de faire rejuger le re-
quérant en temps utile par un tribunal indépendant et impartial.”
5 Öcalan v. Turkey, ECtHR Application No. 46221/99, Judgment (GC) of 12 May 2005,
para. 210.
6 Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11, Judgment of 9 Jan-
uary 2013, para. 208.
7 Iskandarov v. Russia, ECtHR Application No. 17185/05, Judgment of 23 September
2010, para. 161.
8 Konstantin Markin v. Russia, ECtHR Application No. 30078/06, Judgment of 7 Oc-
tober 2010, para. 67: “[T]he Court would recommend [...].”
9 Konstantin Markin v. Russia, ECtHR Application No. 30078/06, Judgment (GC) of
22 March 2012, para. 118. With the Government’s criticism about the Chamber judg-
ment’s “order”, ibid., under Article 46 of the Convention.

36
 Binding Effect and Declaratory Nature of the Judgments of the ECtHR: An Overview

cient, yet not too much. There is some positive feedback in this respect. There
is also the reason that the Court is thereby complementing – or should one
say, assisting – the Committee of Ministers in its supervision of the imple-
mentation of Court’s judgments.
These developments in the Court’s case-law must be analysed, tested and
challenged. They are open to both criticism and praise. While the Court
appears, at least for the time being, to be set on its course, the criticism must
certainly be discussed seriously and thoroughly.

37
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Prescriptive Orders in the Operative Provisions of Judgments by
the European Court of Human Rights: Beyond res judicanda?

Hans-Joachim Cremer

Does the European Court of Human Rights (the Court) have the power to
include in the operative provisions of its judgments prescriptions as to how
a respondent State is to act in order to discontinue an on-going violation of
a guarantee of the European Convention of Human Rights (the Conven-
tion)1 and/or to redress the situation?
Wouldn’t any person committed to promoting human rights spontaneous-
ly answer in the affirmative? To effectively protect human rights, the Court
seems to need the competence to make a ‘consequential order’ and thereby
determine with binding force how a respondent State shall react to the finding
that it is responsible for a violation of a Convention right. But could it be
that to give such an order is not included in the Court’s powers? Could it be
that prescriptive orders would therefore not share the binding force of a
judgment because they do not belong to the res judicanda,2 the matters the
Court is called upon to decide?
The following contribution will explore whether the Court is overstepping
the limits of its powers by making prescriptive (or consequential) orders.
This investigation will start with a sketch of how the Court’s practice has
evolved (A.), before assessing the relevance of the question whether the
Court might be exceeding the limits of its powers (B.). The examination of
the scope of the Court’s powers in making a decision on a violation of the
Convention and on the consequences to be drawn from such a violation (C.)
will show the Assanidze judgment as the point of reference for the Court’s
recent practice (C. I.), highlighting both what it means that the respondent
State is to abide by a Court judgment finding a violation, although such a

1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4

November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14) [ECHR].
2 Using the gerundive ‘judicanda’ is not common; it is used here to show that we are
concerned with the matters upon which the Court can pronounce with the effect that
a case or controversy is settled with binding judicial force – i.e., by a judgment having
res judicata effect.

39
Hans-Joachim Cremer

judgment is no more than declaratory, and which tasks are entrusted to the
Committee of Ministers (C. II.). The critical issues of whether, and if so,
how the Convention can be interpreted as providing the Court with the power
to include prescriptive orders in the operative part of its judgments will be
explored (C. III.). Although the conclusion will be that the Convention can
be interpreted in this way, the recent judgment in the case of Volkov sheds
some doubt at least on the extent of the Court’s power to prescribe (D.).

A. The Development of the Court’s Practice

Nowadays we see the Court exercising such powers, although the develop-
ment began slowly. First, during a long period, the Court completely ab-
stained from giving a respondent State found to have violated the Conven-
tion, in the operative provisions of a judgment, any binding direction as to
how to repair the situation. 3 In a second phase, there was an initially rather
hesitant move to indicate how to put an end to a violation, albeit in the reasons
of the judgment, before, finally, prescriptive orders in the operative provi-
sions of its judgments have multiplied – with the judgments, as described by
Marten Breuer in his fine analysis of the Court’s case-law, oscillating be-
tween Article 41 (on just satisfaction) and Article 46 (on the binding force
and execution of judgments) of the Convention.4
Famously, in 1995,5 in the Papamichalopoulos case6 the Court, in decid-
ing on claims of just satisfaction, held that Greece was to return land expro-
priated de facto to the applicants within six months and, failing restitution,
was to pay the applicants pecuniary damages. Ordering the land to be re-
turned could in the context of the judgment well be regarded as an aspect

3 This is not to say that the Court remained silent on the effects of its judgments. Con-
sider Marckx v. Belgium, ECtHR Application 6833/74, Judgment of 13 June 1979,
para. 58.
4 M. Breuer, Article 46, in U. Karpenstein & F. C. Mayer (eds.), EMRK Kommentar
(2012), 596, 599-606, paras. 5-30 [Breuer, Article 46].
5 Protocol No. 11 to the Convention for the Protection of Human Rights and Funda-
mental Freedoms (CETS No. 155), available at http://conventions.coe.int/Treaty/en/
Treaties/Word/155.doc (last visited 31 January 2014) had not yet entered into force.
This was only the case on 1 November 1998.
6 Papamichalopoulos and Others v. Greece (Article 50), ECtHR Application No.
14556/89, Judgment of 31 October 1995.

40
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

solely of just satisfaction7 – especially as payment in compensation of pe-

cuniary damage was dependent on Greece’s failing to return the land. How-
ever, the Court did address questions of Greece’s obligation to abide by the
principal judgment, which had found a violation of the right to the protection
of property.8
In 2004, in the Assanidze case, the Grand Chamber held unanimously that
Georgia “must secure the applicant’s release at the earliest possible date”.9
It ordered Georgia to stop an on-going violation by releasing the applicant
from detention. Georgia was held to be violating Article 5 (1) of the Con-
vention as the Supreme Court of Georgia had ordered the applicant’s re-
lease;10 the non-execution of this decision was considered incompatible with
Article 6 (1) of the Convention.11 Although under the heading of “Article
41 of the Convention” and the sub-heading “Damages”, the Court in its “re-
lease order” clearly refers to Article 46 of the Convention.12
The Grand Chamber decided similarly in Ilaşcu and Others v. Moldova
and Russia only a few months later13 – the Chambers following in line in
other cases.14

7 Cf. ibid., paras. 38-39.

8 Ibid., para. 34.
9 Assanidze v. Georgia, ECtHR Application No. 71503/01, Judgment (GC) of 8 April
2004, paras. 202-203 & esp. operative part, para. 14 (a).
10 Ibid., paras. 172-176: There had been no statutory or judicial basis for the applicant’s
deprivation of liberty since 29 January 2001.
11 Ibid., paras. 181-184.
12 See the reference to paras. 202-203 in ibid., operative part, para. 14 (a).
13 Ilaşcu and Others v. Moldova and Russia, ECtHR Application No. 48787/99, Judg-
ment (GC) of 8 July 2004, para. 490 & operative part, para. 22.
14 See Charahili v. Turkey, ECtHR Application No. 46605/07, Judgment of 13 April
2010, para. 85 & operative part, para. 7 (a); Tehrani and Others v. Turkey, ECtHR
Application No. 32940/08, Judgment of 13 April 2010, para. 107 & operative part,
para. 10 (a); Fatullayev v. Azerbaijan, ECtHR Application No. 40984/07, Judgment
of 22 April 2010, para. 177 & operative part, para. 6; Del Rio Prada v. Spain, ECtHR,
Application No. 42750/09, Judgment of 10 July 2012, paras. 81-83 & operative part,
para. 5. See the careful wording in Aleksanyan v. Russia, ECtHR Application No.
46468/06, Judgment of 22 December 2008, operative part, para. 9: (“[...] [h]olds that
the applicant’s detention on remand should be discontinued”. See also ibid., paras.
238-240). Breuer, Article 46, supra note 4, 600-601, para. 11 (in combination with
602, para. 17), criticizes that the Court does not give due consideration to questions
of the incontestability of judgments by domestic courts, although the Court does not
have the power to lift, quash or annul such domestic judgments.

41
Hans-Joachim Cremer

In the Ghavtadze case the Court held that Georgia was to ensure that the
applicant, who was serving a prison sentence, was promptly to be placed in
an establishment capable of administering adequate medical treatment for
his viral hepatitis C and his pulmonary tuberculosis.15 In the Sławomir Mu-
siał case the Court ordered that Poland was to secure at the earliest possible
date adequate conditions of the applicant’s detention in a specialized insti-
tution capable of providing psychiatric treatment and constant medical su-
pervision for the serious mental disorders the applicant had been diagnosed
with.16
In other cases the Court has ordered respondent States to ensure the en-
forcement of decisions given by domestic authorities,17 especially
courts,18 in favour of the applicants. In Youth Initiative for Human Rights v.
Serbia, for example, the Court found that “the obstinate reluctance of the
intelligence agency of Serbia to comply with the order of the Information
Commissioner”, “the domestic body set up precisely to ensure the obser-
vance of the Freedom of Information Act 2004”, “was in defiance of do-
mestic law and tantamount to arbitrariness”19 and constituted a violation of
Article 10 of the Convention; it ordered the respondent State to ensure that
the agency provide the applicant with the requested information.20
With regard in particular to the reopening of (judicial) proceedings as a
very special means of redressing violations in domestic court proceedings,
the Grand Chamber in Verein gegen Tierfabriken (No. 2) in 2009 pointed

15 Ghavtadze v. Georgia, ECtHR Application No. 23204/07, Judgment of 3 March

2009, para. 106 & operative part, para. 3 (a).
16 Sławomir Musiał v. Poland, ECtHR Application No. 28300/06, Judgment of 20 Jan-
uary 2009, para. 108 & operative part, para. 4 (a).
17 See, e.g., Ilić v. Serbia, ECtHR Application No. 30132/04, Judgment of 9 October
2007, para. 112 & operative part, para. 6 (a).
18 See, e.g., Karanovic v. Bosnia and Herzegovina, ECtHR Application No. 39462/03,
Judgment of 20 November 2007, paras. 28-30 & operative part, para. 3 (a) (i);
Poznakhirina v. Russia, ECtHR Application No. 25964/02, Judgment of 24 February
2005, para. 33 & operative part, para. 4 (a).
19 Youth Initiative for Human Rights v. Serbia, ECtHR Application No. 48135/06,
Judgment of 25 June 2013, paras. 25 & 26.
20 Ibid., operative part, para. 4. See also ibid., paras. 31-32.

42
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

out that “the Court clearly does not have jurisdiction to order such mea-
sures”.21 Nevertheless, it is common for judgments – especially in cases of
procedural defects violating Convention rights – to point out, though only
in the reasons, that the reopening of proceedings would in principle be the
most appropriate way of redress.22 Where, in the Lungoci case, the Court for
once did order a reopening, the domestic law of civil procedure provided
that proceedings be reopened if the European Court of Human Rights found
a violation of the Convention.23
Finally, in Oleksandr Volkov in 2013, the Court dramatically ordered
Ukraine to reinstate the applicant in the post of judge of the Supreme Court
of Ukraine at the earliest possible date.24
Let me mention in parentheses the ‘pilot judgment procedure’ in which
the Court will, in the operative provisions of its judgment, order a respondent
State to correct a systemic problem of its legal order through appropriate
legal measures and administrative practices, the judgment thereby reaching

21 Verein gegen Tierfabriken Schweiz (VgT) (No. 2) v. Switzerland, ECtHR Application

No. 32772/02, Judgment (GC) of 30 June 2009, para. 89 with reference to Saïdi v.
France, ECtHR Application No. 14647/89, Judgment of 20 September 1993, para.
47 and Pelladoah v. The Netherlands, ECtHR Application No. 16737/90, Judgment
of 22 September 1994, para. 44. For further information, see H.-J. Cremer, Recht-
skraft und Bindungswirkung von Urteilen des EGMR / Problematik der Zulässigkeit
einer Zweitbeschwerde an den EGMR nach Urteilsumsetzung durch Wiederauf-
nahme, 39 Europäische Grundrechte-Zeitschrift (2012) 17-19, 493.
22 See, e.g., Gençel v. Turkey, ECtHR Application No. 53431/99, Judgment of 23 Oc-
tober 2003, para. 27.
23 Lungoci v. Romania, ECtHR Application No. 62710/00, Judgment of 26 January
2006, para. 56 & operative part, para. 3 (a). Cf. also Huseyn and Others v. Azerbai-
jan, ECtHR Application Nos. 35485/05 et al., Judgment of 26 July 2011, para. 262,
where a consequential order, however, is not made although the Court finds that “the
most appropriate form of redress would, in principle, be the reopening of the pro-
ceedings in order to guarantee the conduct of the trial in accordance with the re-
quirements of Article 6 of the Convention”. Cf. Claes and Others v. Belgium, ECtHR
Application Nos. 46825/99 et al., Judgment of 6 June 2005, operative part, para. 5
(a).
Cf. also Calmanovici v. Romania, ECtHR Application No. 42250/02, Judgment of
1 July 2008, paras. 162-163, where the Court obviously considers several possibil-
ities of redressing the situation to exist. Breuer, Article 46, supra note 4, 603, para.
19, points to para. 10 of the Joint Concurring Opinion of Judges Rozakis, Spielmann,
Ziemele and Lazarova Trajkovska, Salduz v. Turkey, ECtHR Application No.
36391/02, Judgment (GC) of 27 November 2008.
24 Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11, Judgment of 9
January 2013, para. 208 & operative part, para. 9.

43
Hans-Joachim Cremer

beyond the applicant’s specific case.25 In its very first ‘pilot judgment’, the
Court in Broniowski v. Poland demanded Poland to “secure the implemen-
tation of the property right in question in respect of the remaining Bug River
claimants [i.e. other than Mr Broniowski] or provide them with equivalent
redress”.26
These cases together seem to support a statement by Judge Pinto de Al-
buquerque in his concurring opinion in Fabris v. France that “[t]he Court’s
judgments are no longer purely declaratory, but prescriptive”.27 However,
we should not ignore that this is no more than a picture of the Court’s prac-
tice. We might want to leave it at that, simply taking note of this practice.
That picture, however, is not yet complete. Often the Court refrains from
making a ‘consequential order’ and instead only recommends28 or merely
‘indicates’29 which measure a respondent State ought to take in order to stop
and make good a violation of the Convention. The Court may also spell out
a respondent State’s legal obligation under Article 46 (1) of the Conven-
tion30, confining this explanation to the reasons of the judgment rather than

25 Cf. Broniowski v. Poland, ECtHR Application No. 31443/96, Judgment (GC) of 22

June 2004; Hutten-Czapska v. Poland, ECtHR Application No. 35014/97, Judgment
(GC) of 19 June 2006; Kurić and Others v. Solvenia, ECtHR Application No.
26828/06, Judgment (GC) of 26 June 2012.
26 Broniowski v. Poland, ECtHR Judgment, supra note 25, operative part, esp. para. 4.
27 Fabris v. France, ECtHR Application No. 16574/08, Judgment (GC) of 7 February
2013.
28 Gatt v. Malta, ECtHR Application No. 28221/08, Judgment of 27 July 2010, para.
59.
29 Verein gegen Tierfabriken Schweiz (VgT) (No. 2) v. Switzerland, ECtHR Judgment,
supra note 21, para. 88-89 with reference to Öcalan v. Turkey, ECtHR Application
No. 46221/99, Judgment (GC) of 12 May 2005, para. 210 in fine; Broniowski v.
Poland, ECtHR Judgment, supra note 25, para. 194 and Popov v. Russia, ECtHR
Application No. 26853/04, Judgment of 13 July 2006, para. 263.
30 Al-Saadoon and Mufdhi v. United Kingdom, ECtHR Application No. 61498/08,
Judgment of 2 March 2010, para. 171; Abuyeva and Others v. Russia, ECtHR Ap-
plication No. 27065/05, Judgment of 2 December 2010.

44
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

including it in the operative part.31 Such an indication has the nature of a

recommendation, thus going ‘beyond res judicata’.32
Sometimes the Court after a thorough discussion comes to the conclusion
that there is no need for a consequential order.33 In Iskandarov v. Russia a
consequential order was even considered to be excluded: The applicant sub-
mitted that the respondent Russian Government should be required to ensure
his release from the Tajik prison and his return to the Russian Federation.
The Court, however, observed “that the individual measure sought by the
applicant would require the respondent Government to interfere with the
internal affairs of a sovereign State”,34 thus pointing to the legal impossi-
bility of what was sought to be required of the Russian Government.

B. Does Adding Prescriptive Orders to the Operative Provisions of a

Judgment Exceed the Court’s Powers?

I. Placing Prescriptive Orders in the Held as a Question of Judicial Power

From a purely pragmatic point of view, it seems interesting to know which

rules guide the Court in choosing whether to make a consequential order or
not, even if only for the reason of predicting decisions. Extending the cat-
egories of pronouncements in the operative provisions of judgments, how-
ever, also poses a serious legal problem: Will a judgment containing con-
sequential orders in its operative provisions go beyond what the Court is
allowed to decide? Do prescriptive orders in the held go beyond the res
judicanda? Does the Court truly as of law have the power to make conse-
quential orders at all?

31 This is demonstrated by Breuer, Article 46, supra note 4, 600-601, paras. 10, 12, 14
& 15, whose reference of cases I have used above.
32 As in recent judgments by the Grand Chamber in dramatic cases, in which measures
of redress were merely indicated in the reasons of the judgment. See M.S.S. v. Bel-
gium and Greece, ECtHR Application No. 30696/09, Judgment (GC) of 21 January
2011, paras. 399-402; Hirsi Jamaa and Others v. Italy, ECtHR Application No.
27765/09, Judgment (GC) of 23 February 2012, paras. 209-211.
33 See, e.g., O.H. v. Germany, ECtHR Application No. 4646/08, Judgment of 24
November 2011, paras. 113-119.
34 Iskandarov v. Russia, Application No. 17185/05, Judgment of 23 September 2010,
para. 161 (for the applicant’s submission see ibid., para. 153).

45
Hans-Joachim Cremer

For it makes a difference if a judgment goes beyond merely ‘indicating’

measures which a respondent State might take and places, in its operative
part, an order specifying the measures to be taken in order to redress the
violation of a Convention right: Whatever is included in the operative pro-
visions shares the binding force of the judgment. Consequently, when a
judgment does not, as was the consistent practice up until Papamichalopou-
los, restrict its holding to there being a violation of the Convention,35 the
Court seems to be extending its powers. Can it do so on its own? Do not its
powers reach only so far as the States Parties have submitted to the Court’s
jurisdiction? Might there be a case of assumption of powers ultra vires?

II. The Legal and Practical Relevance of the Court’s Respecting the Limits
of its Powers

This is more than an interesting theoretical question. Despite any enthusiasm

about ‘constitutional’ traits, the Convention still is a treaty of public inter-
national law, albeit a traité loi, the foundation of which continues to be the
consensus (though not in a psychological sense) of the States Parties.36 Con-
sensus as the basis of treaty obligation is – though only negatively – mirrored
by the possibility of denouncing the Convention, which its Article 58 con-
cedes to every High Contracting Party.37
For an international tribunal it is essential how far States have submitted
to its jurisdiction, thereby accepting the Court’s powers and establishing
their obligation to abide by the Court’s judgments. Therefore, it is hardly
amazing that the Court’s judgments themselves have been sensitive to this
legal issue and will in any case of a prescriptive order explicitly give reasons

35 Apart from granting just satisfaction and deciding on costs and expenses.
36 However, according to M. Koskenniemi, From Apology to Utopia (2005), 333, “[t]he
conflict between consensualism and non-consensualism and the ultimately unsatis-
factory nature of both is clearly visible in two competing understandings of why
treaties bind. According to a subjective approach treaties bind because they express
consent. An objective approach assumes that they bind because considerations of
teleology, utility, reciprocity, good faith or justice require this.”
37 From here there is also a link to the possibility of a State’s ceasing to be a member
of the Council of Europe according to the Statute of the Council of Europe, 5 May
1949, Arts. 7 & 8, 87 UNTS 103, 108 – as the case may be, either by withdrawal or
by a decision of the Committee of Ministers –, which also ends the State’s being a
party to the Convention (Art. 58 (3) of the Convention (supra note 1)).

46
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

of a general kind for including it in the operative provisions of the judgment.

In the case of Oleksandr Volkov v. Ukraine it was Judge Yudkivska, the
Judge sitting for Ukraine, herself who addressed the question of the legal
basis for prescriptive orders supportively in her Concurring Opinion.38
What is more, the true ‘power’ of the judgments by the Court may very
well lie in the moral pressure they exert: The eyes of people in the States
Parties rest on the government of a State found to have violated the Con-
vention. But does not the moral appeal of the Court’s judgments decisively
depend on the Court’s being an international court of law and thus on the
people’s conviction that its decisions, both as to substance and as to proce-
dure, are strictly based on law?39 Does not the moral pressure thus depend
on the Court’s strictly abiding by the law?
So, let us look at the law governing the Court’s powers ‘to decide’.

C. The Scope of the Court’s Powers to Pronounce on the Question of a

Violation of the Convention and its Consequences

I. The Assanidze Judgment as the Point of Reference

Recently, in Oleksandr Volkov v. Ukraine40, the Court has included an ex-

press order of how to repair a situation in conflict with the Convention. What
echoes in the reasons and seems essentially to form the point of reference
for the Court’s case law up until today is the Grand Chamber’s Assanidze

38 Concurring Opinion of Judge Yudkivska, Oleksandr Volkov v. Ukraine, ECtHR

Judgment, supra note 24.
39 Cf. High Level Conference on the Future of the European Court of Human Rights,
Brighton Declaration (20 April 2012), available at http://hub.coe.int/20120419-
brighton-declaration (last visited 31 January 2014), para. 21: “The authority and
credibility of the Court depend in large part on the quality of its judges and the
judgments they deliver.” See also ibid., para. 25 (c) whereby the Conference “[w]el-
comes the steps that the Court is taking to maintain and enhance the high quality of
its judgments and in particular to ensure that the clarity and consistency of judgments
are increased even further; welcomes the Court’s long-standing recognition that it is
in the interests of legal certainty, foreseeability and equality before the law that it
should not depart without cogent reason from precedents laid down in previous cases;
and in particular, invites the Court to have regard to the importance of consistency
where judgments relate to aspects of the same issue, so as to ensure their cumulative
effect continues to afford States Parties an appropriate margin of appreciation”.
40 Oleksandr Volkov v. Ukraine, ECtHR Judgment, supra note 24, paras. 193-195.

47
Hans-Joachim Cremer

judgment,41 which itself draws on Papamichalopoulos and Others v. Greece

(Article 50),42 as refined through the case law developed in between.43 In
the Volkov judgment, however, a clear sub-heading appears: “A. Indication
of general and individual measures”, albeit placed under the overall heading:
“IV. Application of Articles 41 and 46 of the Convention”.44 Nevertheless,
there is reason to believe that the Court regards its consequential orders to
stand in the context of Article 46 of the Convention.
The relevant part of the Volkov judgment reads:
“193. In the context of the execution of judgments in accordance with Article
46 of the Convention, a judgment in which the Court finds a breach of the Con-
vention imposes on the respondent State a legal obligation under that provision
to put an end to the breach and to make reparation for its consequences in such
a way as to restore as far as possible the situation existing before the breach. If,
on the other hand, national law does not allow – or allows only partial – repa-
ration to be made for the consequences of the breach, Article 41 empowers the
Court to afford the injured party such satisfaction as appears to it to be appro-
priate. It follows, inter alia, that a judgment in which the Court finds a violation
of the Convention or its Protocols imposes on the respondent State a legal obli-
gation not just to pay those concerned the sums awarded by way of just satis-
faction, but also to choose, subject to supervision by the Committee of Ministers,
the general and/or, if appropriate, individual measures to be adopted in its
domestic legal order to put an end to the violation found by the Court and make
all feasible reparation for its consequences in such a way as to restore as far
as possible the situation existing before the breach [...].
194. The Court reiterates that its judgments are essentially declaratory in na-
ture and that, in general, it is primarily for the State concerned to choose, subject
to supervision by the Committee of Ministers, the means to be used in its do-
mestic legal order in order to discharge its obligation under Article 46 of the
Convention, provided that such means are compatible with the conclusions set
out in the Court’s judgment [...]. This discretion as to the manner of execution
of a judgment reflects the freedom of choice attached to the primary obligation
of the Contracting States to secure the rights and freedoms guaranteed under
the Convention (Article 1) [...].

41 Assanidze v. Georgia, ECtHR Judgment, supra note 9, paras. 198 & 202-203.
42 Papamichalopoulos and Others v. Greece (Article 50), ECtHR Judgment, supra note
6.
43 See, i.e., Maestri v. Italy, ECtHR Application No. 39748/98, Judgment (GC) of 31
October 1995, para. 47; Menteş and Others v. Turkey, ECtHR Application No.
23186/94, Judgment of 24 July 1998, para. 24 and Scozzari and Giunta v. Italy,
ECtHR Application Nos. 39221/98 & 41963/98, Judgment (GC) of 13 July 2000,
para. 249.
44 Oleksandr Volkov v. Ukraine, ECtHR Judgment, supra note 24.

48
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

195. However, exceptionally, with a view to helping the respondent State to

fulfil its obligations under Article 46, the Court will seek to indicate the type of
measure that might be taken in order to put an end to a violation it has found to
exist. In such circumstances, it may propose various options and leave the choice
of measure and its implementation to the discretion of the State concerned [...].
In certain cases, the nature of the violation found may be such as to leave no
real choice as to the measures required to remedy it and the Court may decide
to indicate a specific measure [...].”45

II. The Finding of a Violation of the Convention by the Court, Abiding by

a Judgment by the Respondent State and Supervising the Execution of
the Judgment by the Committee of Ministers

A central point is that the Court regards its judgments to be “essentially

declaratory in nature”.46 The Convention itself contains no provision ex-
pressly defining which categories of pronouncements can be in the operative
provisions of a judgment.47 Only from Article 41 of the Convention can we
derive that where the application is well-founded the Court, as to the sub-
stance of an admissible application, will ‘find’ that there has been a violation
of the Convention or its protocols. In practice, such findings are specified
by naming the Convention article and sometimes by saying how it was vi-

45 Ibid., paras. 193-195 (emphasis added).

46 See, e.g., Verein gegen Tierfabriken Schweiz (VgT) (No. 2) v. Switzerland, ECtHR
Judgment, supra note 21, para. 61.
47 We might expect more information from the Rules of Court, available at http://
www.echr.coe.int/Documents/Rules_Court_ENG.pdf (last visited 31 January 2014).
These (see Rule 74 (1) (i), ibid., 40), however, do not specify which ‘operative pro-
visions’ can be included in a judgment (although some detail is given by Rule 61 (3)
& (4) (ibid., 34) to the operative part of pilot judgments). Only the Practice Direc-
tions, issued by the President of the Court according to Rule 32 of the Rules of Court
(ibid., 18) on 28 March 2007, contain a paragraph, which stands under the heading
of “Just Satisfaction Claims” and reads: “The Court’s awards, if any, will normally
be in the form of a sum of money to be paid by the respondent Contracting Party to
the victim or victims of the violations found. Only in extremely rare cases can the
Court consider a consequential order aimed at putting an end or remedying the
violation in question. The Court may, however, decide at its discretion to offer guid-
ance for the execution of its judgment (Article 46 of the Convention).” President of
the ECtHR, Practice Direction: Just Satisfaction Claims, available at http://
www.echr.coe.int/Documents/PD_satisfaction_claims_ENG.pdf (last visited 31
January 2014), 4, para. 23 (emphasis added).

49
Hans-Joachim Cremer

olated. The Court is obviously addressing this kind of finding when it char-
acterizes its judgments as declaratory.
Early on in its case history, the Court pronounced that a decision cannot
of itself annul or repeal provisions of law48 or the judgment of a domestic
court.49 The Court will not require a respondent State to annul disciplinary
sanctions imposed on applicants.50 Nor will it even direct a respondent State
to make a mere formal declaration, as requested in the Dudgeon case, that
the applicant, if he were to apply for civil service employment in Northern
Ireland, “would not be discriminated against either on grounds of homosex-
uality or for having lodged his petition with the Commission”.51 Insofar, the
Court has no power to issue injunctions.
However, if the Court’s judgments are declaratory, the meaning of Article
46 (1) of the Convention might seem unclear when it says: “The High Con-
tracting Parties undertake to abide by the final judgment of the Court in any
case to which they are parties.” But, as the Papamichalopoulos judgment
tells us,52 this must be read in the light of general principles of public inter-
national law.53 Thus the respondent State has “a legal obligation under that
provision to put an end to the breach54 and to make reparation for its con-
sequences in such a way as to restore as far as possible the situation existing

48 Marckx v. Belgium, ECtHR Judgment, supra note 3, para. 58.

49 Pakelli v. Germany, ECtHR Application No. 8398/74, Judgment of 25 April 1983,
para. 45.
50 Le Compte, Van Leuven and De Meyere v. Belgium, ECtHR Application Nos.
6878/75 et al., Judgment of 18 October, para. 13 (also dealing with sentences passed
in criminal proceedings).
51 Dudgeon v. United Kingdom, ECtHR Application No. 7572/76, Judgment of 24
February 1983, para. 15.
52 Papamichalopoulos and Others v. Greece (Article 50), ECtHR Judgment, supra note
6, para. 34. Very clearly addressed by Verein gegen Tierfabriken (VgT) v. Switzer-
land (No. 2), ECtHR Judgment, supra note 21, para. 86.
53 As to this, see Breuer, Article 46, supra note 4, 598, para. 2.
54 Articles on Responsibility of States for Internationally Wrongful Acts, November
2001, Art. 30 (a), Yearbook of the International Law Commission (2001), Vol. II
(2), 26, 28. The Commentary (para. 2 concerning Art. 29, ibid., 88) shows that the
obligation of cessation is connected to, one might even say: has its root in, the “con-
tinuing obligation to perform an international obligation”; it can therefore be seen as
part of the ‘primary’ obligation, although there “simply a function of the duty to
comply with the primary obligation”, i.e., that “the question of cessation only arises
in the event of a breach” and that “[w]hat must then occur depends not only on the
interpretation of the primary obligation but also on the secondary rules relating to
remedies” (para. 6 concerning Art. 30, ibid., 89).

50
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

before the breach”.55 This is what to ‘abide by’ a judgment means. And this
is what is to be supervised by the Committee of Ministers as the ‘execution’
of the judgment (Article 46 (2) of the Convention).56
What is more, the Court considers that “in general, it is primarily for the
State concerned to choose the means to be used in its domestic legal order
in order to discharge its legal obligation under Article 46 of the Convention,
provided that such means are compatible with the conclusions set out in the
Court’s judgment”57 and accepts that the Contracting States have “discre-
tion as to the manner of execution of a judgment”.58 Such discretion, one
might say, turns the execution of a judgment into something ‘political’ –
which makes it all the more conclusive for the Convention to place the task
of ‘supervising execution’ in the hands of the ‘political’ institution of the
Committee of Ministers. This is an element of a kind of ‘separation of pow-
ers’ between the Committee and the Court59 – with the consequence that,
whenever the Court makes a consequential order directed at specifying a
respondent State’s obligation under Article 46 (1) of the Convention, it is
reaching over into the ‘realm’ assigned to the Committee (which the Ex-
planatory Report to the 14th Protocol to the Convention characterizes as “the
competent organ for supervising execution of the Court’s judgments”)60 –
if you will: reaching beyond res judicanda into the sphere of execution. Is
the Court thereby overstepping its limits?

55 Assanidze v. Georgia, ECtHR Judgment, supra note 9, para. 198 (emphasis added).
56 Cf. ibid.
57 Thus the obligation to abide by the judgment is interpreted as an obligation of result.
58 Assanidze v. Georgia, ECtHR Judgment, supra note 9, para. 202 (emphasis added).
59 Cf., with a view to the pilot judgment procedure, the Separate Opinion of Judge
Zagrebelsky, joined by Judge Jaeger, Hutten-Czapska v. Poland, ECtHR Application
No. 35014/97, Judgment (GC) [Friendly Settlement] of 28 April 2008 (speaking of
“the balance provided in the Convention system between its own role and that of the
Committee of Ministers”), and the Concurring Opinion of Judge Ziemele, Hutten-
Czapska v. Poland, ECtHR Judgment, supra note 59 (stating “that the Committee of
Ministers is much better equipped to monitor than the Court”).
60 Explanatory Report to Protocol No. 14 to the Convention for the Protection of Human
Rights and Fundamental Freedoms, reprinted in Council of Europe (Steering Com-
mittee for Human Rights) (ed.), Reforming the European Convention on Human
Rights: A Work in Progress (2009), 693, 709-710, para. 100. See also Verein gegen
Tierfabriken Schweiz (VgT) (No. 2) v. Switzerland, ECtHR Judgment, supra note 21,
para. 84.

51
Hans-Joachim Cremer

III. A Critical Approach to an Expansive Interpretation of the Court’s

Powers under the Convention

There would be no assumption of powers ultra vires if we could find con-

vincing legal arguments in favour of the Court’s competence to include con-
sequential orders in the operative part of its judgments.
Although we cannot find such a competence in the wording of the Con-
vention, we might point to the general function of the Court according to
Article 19 of the Convention: The Court is set up “[t]o ensure the observance
of the engagements undertaken by the High Contracting Parties in the Con-
vention and the Protocols thereto”.61 But Article 19 does not of itself estab-
lish powers of the Court. It gives no more than a guideline for the interpre-
tation of existing powers. The object and purpose of setting up the Court is
no ‘undetectable extension charm’ (which only Harry Potter’s friend,
Hermione Granger, could provide us with).62 Teleological interpretation is
no magic box from which we can draw rules of law as we like. Article 19
alone is not the foundation of the power to issue consequential orders.
Perhaps a systematic or context argument might help. The 14th Protocol
to the Convention introduced infringement proceedings by which the ques-
tion whether a respondent State has failed to abide by a final judgment can
be referred to the Court. The Explanatory Report reveals the idea behind
this: The obstinate High Contracting Party “continues to need, far more than
others, the discipline of the Council of Europe”.63 And infringement pro-
ceedings are a new possibility “of bringing pressure to bear”.64 However,
this instrument is placed in the hands of the Committee of Ministers, who
may call upon the Court only after serving formal notice on that party and
by a decision adopted by a majority vote of two thirds of the representatives

61 ECHR, Art. 19, supra note 1.

62 J. K. Rowling, Harry Potter and the Deathly Hallows (2007), 134-145 (Ch. 19).
63 Explanatory Report to Protocol No. 14 to the Convention, supra note 60, 709-710,
para. 100.
64 Ibid.

52
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

entitled to sit on the Committee.65 Only the Committee of Ministers can

trigger infringement proceedings; the Court cannot act on its own initiative!
The Court can only react.
In terms of context, Article 41 of the Convention shows that the Court
may scrutinize a case also as to the ‘reparation’ of a violation in the internal
law of the respondent State. Though only with a view to awarding just sat-
isfaction, the Court thus nevertheless is allowed to assess the legal situation
in the respondent State in terms of what possibilities there are to redress the
situation (in order to find out whether the internal law of the respondent State
allows only partial reparation to be made).
It does not seem accidental that the Court – first in Papamichalopoulos66
– has made ‘indications’ of how to redress a violation in the reasons of judg-
ments concerning questions of just satisfaction. The Court, however, will
order a respondent State to take certain measures in the operative part of a
judgment if the Court has found the nature of the violation to “be such as to
leave no real choice as to the measures required to remedy it”.67 Only if the
scope of measures narrows down to one, does the Court assert the compe-
tence “to indicate a specific measure”68 in the held of the judgment.
Thus we might, methodologically, think of the Court’s power to make
consequential orders as implied by the Convention – whether we describe
such a power as inherent in the power to give a judgment69 or as a supple-

65 Ibid. recommends that the Committee of Ministers bring infringement proceedings

only in exceptional circumstances. The Explanatory Report continues saying that it
appeared necessary to give the Committee of Ministers, as the competent organ for
supervising execution of the Court’s judgments, a wider range of means of pressure
to secure execution of judgments as up until the 14th Protocol the ultimate measure
available to the Committee of Ministers was recourse to Art. 8 of the Council of
Europe’s Statute (suspension of voting rights in the Committee of Ministers, or even
expulsion from the Organisation), which was “an extreme measure, which would
prove counter-productive in most cases”.
66 Papamichalopoulos and Others v. Greece (Article 50), ECtHR Judgment, supra note
6.
67 Oleksandr Volkov v. Ukraine, ECtHR Judgment, supra note 24, para. 195.
68 Ibid.
69 Cf. M. E. Villiger, Handbuch der Europäischen Menschenrechtskonvention (EM-
RK), 2nd ed. (1999), 149, para. 233.

53
Hans-Joachim Cremer

mentary power (‘Annexkompetenz’).70 Since, in the cases in which the Court

will make a consequential order, the respondent State has no choice other
than to take one form of action, the Court seems neither to be adding anything
to the respondent State’s obligations under Article 46 (1) of the Convention
nor to be ‘usurping’ any power which might belong to the Committee of
Ministers, but rather assisting it in its task of supervising the execution of
the judgment. On the other hand, if there is but one solution to repairing the
violation, pointing it out could just as well be done by the Committee of
Ministers – so the implication is not a necessary one.71 Nevertheless, the
Court might be regarded as better suited to ‘ensure’ the observance of the
obligation to abide by the judgment (remember Article 19!), having the
greater authority – or should we more precisely say ‘moral’ authority?
Another argument reinforcing the Court’s capacity to issue consequential
orders is what I call the dialogical method of developing the law of the
Convention.72 It has to do with ‘evolutive interpretation’ and is inspired by
the writings of former Judge Rudolf Bernhardt.73 It has two starting points.
Firstly, the distinction between an interpretation of the law and the making
of new law is not seldom difficult to make. The second has to do with the
creation of an international court within a treaty system: If in the interpre-

70 M. Breuer, Zur Anordnung konkreter Abhilfemaßnahmen durch den EGMR, 31 Eu-

ropäische Grundrechte-Zeitschrift (2004) 9-12, 257, 261; M. Breuer, Urteilsfolgen
bei strukturellen Problemen – Das erste „Piloturteil“ des EGMR, 31 Europäische
Grundrechte-Zeitschrift (2004) 16-18, 445, 449.
71 In terms of strict logic. Dissenting Opinion of Judge Sir Gerald Fitzmaurice, Golder
v. United Kingdom, ECtHR Application No. 4451/70, Judgment of 21 February
1975, para. 34: “Generally speaking, at least in this type of provision, an inference
or implication can only be regarded as a ‘necessary’ one if the provision cannot
operate, or will not function, without it.”
72 See H.-J. Cremer, Regeln der Konventionsinterpretation, in O. Dörr et al. (eds.),
Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz, Vol.
I, 2nd ed. (2013), 162, 205-206, para. 58 [Cremer, Regeln der Konventionsinterpre-
tation].
73 R. Bernhardt, Evolutive Treaty Interpretation, Especially of the European Conven-
tion on Human Rights, 42 German Yearbook of International Law (1999), 11, 23;
R. Bernhardt, Die Entscheidungen des Europäischen Gerichtshofs für Menschen-
rechte im deutschen Rechtsraum, in R. Geiger (ed.), Völkerrechtlicher Vertrag und
staatliches Recht vor dem Hintergrund zunehmender Verdichtung der interna-
tionalen Beziehungen (2000), 147, 154.

54
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

tation of treaties “subsequent practice in the application of the treaty”74 is of

relevance, for a traité loi which installs an international tribunal for deciding
single cases, the case-law of such a tribunal needs to be taken into account
when searching for the present meaning of treaty provisions. This case-law
shapes the treaty’s interpretation – and rightly so, if we adopt the position
of the German Federal Constitutional Court: With a view to the Luxembourg
European Court of Justice, the German Bundesverfassungsgericht in 1987
pointed out that, in Europe, the judge has never merely been “la bouche qui
prononce les paroles de la loi”.75 The Constitutional Court found that in the
light of common European legal tradition it would be wrong to deny the
Luxembourg Court the power of ‘Rechtsfortbildung’, i.e., of – evolutively
– developing the law. No less can hold true for the European Court of Human
Rights in Strasbourg.
The Court76 may thus interpret the Convention in a dynamic way, pressing
forward, taking the lead – albeit in a methodologically sound way, i.e. by
means of judicial arguments and within the limit that the Court’s “normative
innovations” must not go beyond what the States Parties can, under the prin-
ciple of bona fides, be assumed to have agreed to as the normative contents
of the Convention.77 Here, once again, consensus proves relevant, although
the question is whether the States Parties can in good faith be thought of as

74 Cf. Vienna Convention on the Law of Treaties, 23 May 1969, Art. 31 (3) (b), 1155
UNTS 331, 340 according to which there shall be taken into account, together with
the context of a treaty, “any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation”. The Vienna
Convention was first argumentatively used in Golder v. United Kingdom, ECtHR
Judgment, supra note 71, para. 29.
75 Kloppenburg, German Federal Constitutional Court, Case No. 2 BvR 687/85, De-
cision of 8 April 1987, 75 BVerfGE 223, 243-244 (para. 57): “Roman law, English
common law, the Gemeine Recht [in Germany] were, in large parts, legal creations
by the judges, just as in more recent times the development of general principles of
administrative law by the Conseil d’Ètat in France or in Germany the general rules
of administrative law, large parts of labour law and the security rights in private
transactions.” (translation by the author).
76 Although it has no power of authentic interpretation.
77 Cf., as to the methodological Unschärfe of treaty interpretation, M. Koskenniemi,
supra note 36, 333, 342. Using the principle of bona fides, as proposed here, to define
the outer limits of what can be assumed to have been agreed by the parties, might be
paradigmatic of exactly this constant shifting between a subjective and an objective
approach to treaty interpretation.

55
Hans-Joachim Cremer

having agreed to what the Court develops, a question to which there is no

factual, no psychological, but only a normative answer.78
When the Court gives the Convention an evolutive interpretation which
appears as essentially ‘new’ and cannot – even reconstructively – be thought
of as derived from the Convention with the instruments of traditional
methodology,79 it becomes relevant whether or not the States Parties follow
and accept the ‘new’ contents which the Court has acknowledged the Con-
vention to contain. Should the States be unwilling to do so, they can, in cases
concerning them, whether as a respondent State or by way of a third party
intervention according to Article 36 of the Convention, oppose the new in-
terpretation – from which the Court ought to back off if no consensus comes
about (consensus remaining the necessary basis of Convention law).
This might be more easily accepted where the substantive contents of
individual human rights guarantees are concerned (the classical example
being the right of access to a court read into Article 6 (1) by the Golder
judgment) – rather than in the field of procedural law. However, when we
take the creation of the pilot judgment procedure, one of the most dramatic
moves by the Court, which considerably extends the prescriptive content of
the operative part of judgments, we see that it was the Member States who,
through recommendations by the Committee of Ministers, induced the Court
to take this evolutionary step.80 Here a consensus of the High Contracting
Parties further to develop the Convention’s procedural law seems to show
clearly.
But what about individual consequential or prescriptive orders? Has the
Court’s capacity, where there is only one way to correct a violation, to in-
clude such an order in the operative part of a judgment ever been contested
by a High Contracting Party? If not (and this seems to be the case as Judge
Villiger has just pointed out in his contribution),81 this practice of the ap-
plication of the Convention has obviously been accepted – at least inciden-

78 See Cremer, Regeln der Konventionsinterpretation, supra note 72, 177-178, para.
24.
79 See ibid., 210-243, paras. 60-109, arguing that in many cases allegedly ‘evolutive’
interpretation can be regarded as no more than consistent state-of-the-art-legal in-
terpretation of the Convention guarantees, the ‘dynamic’ impression rooting less in
expansive interpretation of norms than in the application of ‘familiar’ human rights
provisions to dramatically new factual situations.
80 See Broniowski v. Poland, ECtHR Judgment, supra note 25, paras. 191-192.
81 M. E. Villiger, Binding Effect and Declaratory Nature of the Judgments of the Euro-
pean Court of Human Rights: An Overview, in this volume.

56
 Prescriptive Orders in the Operative Provisions of Judgments by the ECtHR

tally, perhaps even by a consistent pattern of acceptance and thus to the effect
that there has been dynamic Rechtsfortbildung creating new law. The Con-
vention’s procedural rules have been evolutively developed and expanded.

D. Need for More Contemplation Shown by the Prescriptive Order in the

Volkov Case

From the outside, it is unclear whether Ukraine’s request for the Volkov case
to be referred to the Grand Chamber according to Article 43 (1) of the Con-
vention addressed the question of the Court’s competence to issue conse-
quential orders. However, the Grand Chamber’s panel rejected the re-
quest.82 Obviously the five judges on the panel were not of the opinion that
the case raised any “serious question affecting the interpretation or applica-
tion of the Convention or the protocols thereto, or a serious issue of general
importance”.83
In a way this is puzzling. Does the Volkov case not give good reason to
reconsider consequential orders in individual cases? Remember: The Court
unanimously held “that Ukraine shall secure the applicant’s reinstatement
in the post of judge of the Supreme Court at the earliest possible date”.84
This was done because the applicant’s dismissal was judged to be a violation
of his fair-trial rights under Article 6 (1)85 as applied not under its “criminal
head”86 but as to the determination of the applicant’s civil rights. The case
fell within the scope of Article 6 (1) because the Court regarded the Ukraini-
an High Council of Justice, the parliamentary committee, and the plenary
meeting of Parliament, in combination, to be performing a judicial func-
tion.87
Furthermore, the Court saw an unjustified88 interference with the appli-
cant’s private life, understood as his social, especially professional, rela-

82 Registrar of the ECtHR, Ten Requests for Referral to the Grand Chamber Rejected,
Press Release ECHR 161 (2013), 28 May 2013, available at hudoc.echr.coe.int/
webservices/content/pdf/003-4372554-5248315 (last visited 31 January 2014), 1.
83 ECHR, Art. 43 (2), supra note 1.
84 Oleksandr Volkov v. Ukraine, ECtHR Judgment, supra note 24, operative part, para.
9.
85 Ibid., paras. 103-131, 135-140, 143-147, 150-159.
86 Ibid., paras. 92-95.
87 Ibid., para. 90.
88 Ibid., paras. 166-187.

57
Hans-Joachim Cremer

tionships with other persons, having “tangible consequences for material

well-being of the applicant and his family”.89 The applicant’s reinstatement
in the post of judge of the Supreme Court ordered on these grounds amounts
to restoring the original composition of a domestic court of law, deciding
who is to be a judge, and who is to participate in the exercise of domestic
judicial power. Is it really for the Court to reach so far down into the insti-
tutional settings in the domestic sphere of a State Party?
For the sake of human rights and for the sake of the rule of law, I – how-
ever, not without hesitation and the impression that there is some judicial
brainwork and critical thinking to be done – tend to say: Yes.

89 Ibid., para. 166.

58
The Role of the Legislative Branch in the Implementation of the
Judgments of the European Court of Human Rights

Almut Wittling-Vogel*

We normally talk about the governments who are obligated to implement

the judgments of the European Court of Human Rights in Strasbourg (there-
inafter: ‘ECtHR’). However, Article 46 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (thereinafter: ‘the Conven-
tion’)1 correctly identifies the High Contracting Parties as those who under-
take to abide by the final judgment of the Court. In fact, not only the gov-
ernments but many organs of the Contracting Parties are affected as well. I
shall address the role of the legislative branch in implementing the judgments
of the ECtHR.

* This article reflects only the personal opinion of the author. Translated by the Federal
Ministry of Justice Language Service, Berlin, Barbara Agnes Reeves.
1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14) [ECHR].

59
Almut Wittling-Vogel

We are all familiar with cases where the parliament must take action so
that a judgment can be implemented. This is quite typical for pilot judg-
ments.2 But other judgments also make legislative implementation neces-
sary.3

2 Good overviews are provided by P. Leach et al., Responding to Systemic Human

Rights Violations: An Analysis of ‘Pilot Judgments’ of the European Court of Human
Rights and Their Impact at National Level (2010) [Leach et al., Systemic Violations];
P. Leach, Taking a Case to the European Court of Human Rights, 3rd ed. (2011),
85-88, paras. 3.27-3.32, with a list of judgments (89, para. 3.36) which clearly re-
commend the national legislation to be amended [Leach, Taking a Case] and M.
Breuer, Zur Fortentwicklung der Piloturteilstechnik durch den EGMR, 39 Europäis-
che Grundrechte-Zeitschrift a(2012) 1-4, 1, 5 [Breuer, Piloturteilstechnik], with a list
of pilot judgments in note 8. Cf. also M. Breuer, Urteilsfolgen bei strukturellen Prob-
lemen: Das erste „Piloturteil“ des EGMR, 31 Europäische Grundrechte-Zeitschrift
(2004), 445-451; S. Schmahl, Piloturteile des EGMR als Mittel der Verfahrens-
beschleunigung, 35 Europäische Grundrechte-Zeitschrift (2008), 369-380. See for
general information ECtHR, Factsheet: Pilot Judgment, available at http://
www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf (last visited 31 January
2014) [ECtHR, Factsheet: Pilot Judgment] and ECtHR, Rules of Court, Rule 61,
available at http://www.echr.coe.int/Documents/Rules_Court_ENG.pdf (last visited
31 January 2014) [Rules of Court]. By 2013, the only pilot judgment against Germany
is Rumpf v. Germany, ECtHR Application No. 46344/06, Judgment of 2 September
2010. However, not every pilot judgment indicates the necessity of legislation. See
Breuer, Piloturteilstechnik, supra this note, who discusses Ananyev and Others v.
Russia, ECtHR Application Nos. 42525/07 & 60800/08, Judgment of 10 January
2012. See further P. Mahoney, in R. Wolfrum & U. Deutsch (eds.), The European
Court of Human Rights Overwhelmed by Applications: Problems and Possible So-
lutions (2009), 84
3 Examples in German cases are Luedicke Belkacem and Koç v. Germany, ECtHR Ap-
plication Nos. 6210/73 et al., Judgment of 10 March 1980; Öztürk v. Germany,
ECtHR Application No. 8544/79, Judgment of 21 February 1984; Okpiesz v. Ger-
many, ECtHR Application No. 59140/00, Judgment of 25 October 2005; Niedzwiecki
v. Germany, ECtHR Application No. 58453/00, Judgment of 25 October 2005;
Sürmeli v. Germany, ECtHR Application No. 75529/01, Judgment (GC) of 8 June
2006 (plus additional judgments concerning the same matter – length of proceedings
– and a pilot judgment, see supra note 2); Brauer v. Germany, ECtHR Application
No. 1479/08, Judgment of 28 May 2009; Zaunegger v. Germany, ECtHR Application
No. 22028/04, Judgment of 3 December 2009; M. v. Germany, ECtHR Application
No. 19359/04, Judgment of 17 December 2009 (plus additional judgments concerning
the same matter – preventive detention); Anayo v. Germany, ECtHR Application No.
20578/07, Judgment of 21 December 2010; Herrmann v. Germany, ECtHR Applica-
tion No. 9300/07, Judgment (GC) of 26 June 2012; Neziraj v. Germany, ECtHR
Application No. 30804/07, Judgment of 8 November 2012.

60
 The Role of the Legislative Branch in the Implementation of Judgments of the ECtHR

A. Special Restraint by the European Court of Human Rights with Regard

to the Legislature

The first question with respect to legislative implementation of judgments

is whether the ECtHR has to exercise special restraint with regard to the
legislature.

I. Due to the Direct Democratic Legitimacy of the Parliaments?

When we talk about the legislature in our constitutional systems we are pri-
marily talking about parliaments. Parliaments are accustomed to being the
highest representative of their people, and they are rightly proud of their
independence. Instructions for action by a court are therefore not only dis-
liked by parliamentarians. They are often viewed with a certain mistrust as
well. And if they come from a European court they might be perceived as
intervention by a foreign and distant level.4 In Germany this might lead to
declarations of politicians and parliamentarians that the German Constitu-
tion is paramount and has the “last word”.5
In contrast, however, legal scholars do not have very much compassion
for the parliaments in this respect. They conclude quite soberly that the obli-

4 Cf. M. O’Boyle, Electoral Disputes and the ECHR: An Overview, 30 Human Rights
Law Journal (2009-2010) 1-12, 1, 5.
5 Following the judgment M. v. Germany, see supra note 3, this was expressed by
Bavarian Minister of Justice B. Merk. See D. Hipp, Streit über Sicherungsverwahrung:
Im Zweifel für die Dauerhaft (8 February 2011), available at http://www.spiegel.de/
panorama/justiz/streit-ueber-sicherungsverwahrung-im-zweifel-fuer-die-dauerhaft-
a-744298-7.html (last visited 31 January 2014) (translation by the author), with an
obvious reference to Görgülü, German Federal Constitutional Court, Case No. 2 BvR
1481/04, Decision of 14 October 2004, 111 BVerfGE 307, 319 (para. 35). On this
point cf. A. Zimmermann, Grundrechtsschutz zwischen Karlsruhe und Straßburg
(2012), 27 & 31-32 concerning new developments in the case law of the German
Federal Constitutional Court.

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Almut Wittling-Vogel

gation to implement judgments applies to all State organs – meaning the

parliaments as well.6
Indeed, the Convention does not provide for any exceptions for certain
organs – no matter how important and respectable they may be. It does not
refer at all to any particular national organs, but rather addresses the High
Contracting Parties. This is the appropriate solution. An obligation of special
restraint with respect to the legislature, which goes beyond that regarding
the government or the courts, would have as a precondition that the ECtHR
would be able to look into the national constitutional order and recognize
which organ is competent for any given issue. But it cannot do that, and
neither is it allowed to do so. In some cases, of course, it is completely clear
that the parliament must take action;7 in other cases it can be just as com-

6 C. Grabenwarter & K. Pabel, Europäische Menschenrechtskonvention: Ein Studien-

buch, 5th ed. (2012), 104; J. A. Frowein, Article 46, in J. A. Frowein & W. Peukert,
Europäische Menschrechtskonvention: EMRK-Kommentar, 3rd ed. (2009), 602, 604,
para. 7 and J. A. Frowein, The Binding Force of ECHR Judgments and its Limits, in
S. Breitenmoser et al. (eds.), Human Rights, Democracy and the Rule of Law: Liber
Amicorum Luzius Wildhaber (2007), 261, 262 [Frowein, ECHR Judgments]; J. Mey-
er-Ladewig, Europäische Menschenrechtskonvention, 3rd ed. (2011), Article 46, 388,
400-401, para. 41; M. Breuer, Article 46, in U. Karpenstein & F. C. Mayer (eds.),
EMRK Kommentar (2012), 596, 607, para. 34. Schmahl, supra note 2, 370, points
out the control by the Committee of Ministers with regard to necessary legislation.
7 This will e.g. normally be the case if the introduction of a new remedy is inevitable.
For length of proceedings cases see Kudla v. Poland, ECtHR Application No.
30210/96, Judgment (GC) of 26 October 2000, for Germany Sürmeli v. Germany,
ECtHR Judgment, supra note 3 and Rumpf v. Germany, ECtHR Judgment, supra note
2. For the non-execution of national judgments see Burdov v. Russia (No. 2), ECtHR
Application No. 33509/04, Judgment of 15 January 2009. Quite particular Xenides-
Arestis v. Turkey, ECtHR Application No. 46347/99, Judgment [Just Satisfaction] of
22 December 2005 and Xenides-Arestis v. Turkey, ECtHR Application No. 46347/99,
Judgment [Merits] of 7 December 2006. A different matter which obviously needs
new legislation for execution is treated in Hirst v. United Kingdom (No. 2), ECtHR
Application No. 74025/01, Judgment of 6 October 2005 and Greens and M.T. v.
United Kingdom, ECtHR Application Nos. 60041/08 & 60054/08, Judgment of 23
November 2010, namely the introduction of the right to vote for prisoners in the United
Kingdom. The problems connected to these cases are discussed by O’Boyle, supra
note 4. Messina v. Italy (No. 2), ECtHR Application No. 25498/94, Judgment of 28
September 2000, is another example, see esp. paras. 81-82 with reference to previous
judgments.

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 The Role of the Legislative Branch in the Implementation of Judgments of the ECtHR

pletely unclear.8 But the restraint of the Convention is not only the response
to the rather practical difficulty of recognizing competence at the national
level. Above all, it is an expression of respect for the national order in which
it does not want to interfere.
However, parliamentarians would also demand respect for the special
position of the national parliaments.
The most obvious difference between the parliament and other State or-
gans is direct democratic legitimacy. This is one advantage of parliaments
over the government and the courts, including the ECtHR. In the United
Kingdom some even assume that a ‘democratic deficit’ exists in terms of
human rights.9 In a parliamentary debate in Germany, it was explained that
a new legal remedy against excessively long court proceedings should not
be introduced because this would be mere action for its own sake. Parlia-
mentarians must “call the government to reason”, the explanation continued,

8 For instance, if the adaptation of national law can be done by way of new legislation
or by new case law, which was the case in Von Hannover v. Germany, ECtHR Ap-
plication No. 59320/00, Judgment of 24 June 2004. Concerning M. v. Germany, supra
note 3, some national courts were of the opinion that implementation of the judgment
would be possible by developing new case law, until the Bundesverfassungsgericht
(Sicherungsverwahrung, German Federal Constitutional Court, Case Nos. 2 BvR
2365/09 et al., Decision of 4 May 2011, 128 BVerfGE 326, 400-403, paras. 159-165)
made clear that this was not the case. In Jalloh v. Germany, ECtHR Application No.
54810/00, Judgment of 11 July 2006, it was part of the judgment’s implementation
that administrative regulations were abolished, but it also could have been done by
legislation. The implementation of Stambuk v. Germany, ECtHR Application No.
37928/97, Judgment of 17 October 2002 made it necessary to introduce the possibility
of reopening a case in proceedings concerning legal supervision of medical doctors
at the Constituent States [Länder] level in Germany, something which is difficult to
see from the European level.
9 ‘Redressing the Democratic Deficit in Human Rights’ is the name of an Arts and
Humanities Council Conference in London, 17-18 April 2012. A summary is available
at http://www.ukhumanrightsblog.com/2012/04/20/redressing-the-democratic-defici
t-in-human-rights (last visited 31 January 2014). Cf. M. Hunt et al., Parliaments and
Human Rights: Redressing the Democratic Deficit (forthcoming 2014). Cf. United
Kingdom Prime Minister Cameron, Speech before the Parliamentary Assembly of the
Council of Europe of 25 January 2012, available at http://www.number10.gov.uk/
news/european-court-of-human-rights (last visited 31 January 2014), who expressed
clear reservation concerning certain judgments of the ECtHR. Cf. also O’Boyle, supra
note 4.

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Almut Wittling-Vogel

“and then a draft bill could be abandoned.”10 The speaker did not even men-
tion that this type of law was necessary in order to implement several judg-
ments by the ECtHR. The result of this attitude of some parliamentarians
was that one judgment from 2006 was not implemented until 2011.11
But human rights is not a concept which would lose its effectiveness in a
democratic system vis-à-vis a democratically directly legitimized body.
Rather, the role of human rights is to protect the rights of the individual vis-
à-vis those organs that can issue laws and regulations. When democratic
developments began, human rights stood firmly on the side of the people
and the parliament when the key was to counterbalance the absolute power
of the king or other sovereign power.12 In a parliamentary democracy, how-
ever, this power of the king is transferred to the parliament and the govern-
ment it supports. Today, the majority of the parliament and the democrati-
cally legitimized government are responsible for legislation and other deci-
sions. Human rights are supposed to effectively counterbalance this exten-
sive competence of the government and parliamentary majority, thereby
protecting the individual. Therefore, the focus today is on court protection

10 J. Gehb, in German Federal Parliament [Bundestag], 65th Sitting of 21 November

2006 (16th legislative term), Plenary Protocol 16/65, available at http://
www.dip21.bundestag.de/dip21/btp/16/16065.pdf (last visited 31 January 2014),
6502 (translation by the author). The draft bill was not tabled. See Frowein, ECHR
Judgments, supra note 6, 267. This attitude occasioned ECtHR Judge Renate Jaeger
to remark in her lecture to open the 39th Judges’ Week at the Federal Social Court
on 23 October 2007 that “parliamentarians, no matter what colour” are apparently
of the view in this matter that the case law of the ECtHR was not binding on them.
Cf. C. Steinbeiß-Winkelmann & G. Ott, Rechtsschutz bei überlangen Verfahren:
Kommentar zu dem Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren
und strafrechtlichen Ermittlungsverfahren (2013), 93, para. 211.
11 Sürmeli v. Germany, supra note 3. Due to the long period of time for implementation,
the ECtHR issued a pilot judgment, Rumpf v. Germany, supra note 2, with an express
demand upon the legislature including a deadline; the Act on Legal Protection in the
Case of Court Proceedings of Excessive Length [Gesetz über den Rechtsschutz bei
überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren] entered
into force on 3 December 2011 (Bundesgesetzblatt [Federal Law Gazette] 2011, Vol.
I, 2302).
12 K. Schlaich, Die Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen, 39
Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (1981), 101,
119 (note 64).

64
 The Role of the Legislative Branch in the Implementation of Judgments of the ECtHR

from a majority that has, for one reason or another, not taken the individual
and his rights adequately into account.13
The representation of the people by the parliament, which also includes
the opposition, as well as the public nature of parliamentary negotiations,
will reduce the number of cases in which human rights are endangered by
the government and the parliamentary majority. Public debate can have a
positive effect in such cases. To that extent, pointing out the particularities
of the parliament also in connection with the protection of human rights is
justified. But neither the special democratic legitimacy and representation
of the people nor the parliamentary process can form the basis of having a
lower level of protection existing with respect to parliament than with respect
to the government or the courts. There still remain the cases in which indi-
viduals require additional protection. They often affect minorities who do
not have a lobby, such as, in Germany, criminal offenders in preventive
detention.14 But others are affected as well.15 In democratic systems, the

13 C. Walter, Hüter oder Wandler der Verfassung?, 125 Archiv des öffentlichen Rechts
(2000) 4, 517, 545: “The self-restriction by the majority as intended by the Consti-
tution, can be maintained only if supervision is placed in the hands of individuals
who are not dependent upon that majority.” (translation by the author). In this respect,
the Convention plays the same role as a national constitution. See also U. R. Haltern,
Verfassungsgerichtsbarkeit, Demokratie und Mißtrauen: Das Bundesverfassungs-
gericht in einer Verfassungstheorie zwischen Populismus und Progressivismus
(1998), 21, 392-398, esp. 397: “Only constitutional court jurisdiction as a lateral
control mechanism for keeping the risks of democracy in check will allow the scope
for experimentation that keeps democracy capable of development [...].” (translation
by the author); F. Ossenbühl, Bundesverfassungsgericht und Gesetzgebung, in P.
Badura & H. Dreier (eds.), Festschrift 50 Jahre Bundesverfassungsgericht, Vol. 1
(2001), 33, 34: “Seeking to legitimize the Federal Constitutional Court through the
act of voting or the ‘proximity to the people’ established through the act of voting is
the wrong approach.” (translation by the author). The judges of the German Federal
Constitutional Court are elected by the Federal Parliament [Bundestag] and the Fed-
eral Council [Bundesrat], which represents the Constituent States [Länder].
14 Cf. M. v. Germany, ECtHR Judgment, supra note 3.
15 In German cases, there were, e.g., several judgments benefiting fathers not living
with their children, such as Elsholz v. Germany, ECtHR Application No. 25735/94,
Judgment of 13 July 2000; Sahin v. Germany, ECtHR Application No. 30943/95,
Judgment (GC) of 8 July 2003; Sommer v. Germany, ECtHR Application No.
31871/96, Judgment (GC) of 8 July 2003; Hoffmann v. Germany, ECtHR Applica-
tion No. 34045/96, Judgment of 11 October 2001; Görgülü v. Germany, ECtHR
Application No. 74969/01, 26 February 2004; Zaunegger v. Germany, ECtHR Judg-
ment, supra note 3 and Anayo v. Germany, ECtHR Judgment, supra note 3.

65
Almut Wittling-Vogel

necessary supervision of the first and second powers can be performed only
by the third power, the courts.16
Based upon that recognition, the Convention created a court to ensure
respect for human rights; and this court can also assert itself against the
national parliaments.

II. Due to the Number of Affected Cases?

Another aspect must be considered. The parliament typically makes the

laws; and the executive and judicial branches generally apply the laws. As
such, the relevant difference is not between the parliament and the other State
organs, but rather between making and applying the law.
The task of the ECtHR is to resolve specific cases and hand down judg-
ments. Its instruments are tailored to such cases. In this respect, it is able to
gauge the effects of its decision. It is neither empowered to do more, nor
would it be capable of doing so. Even if many comparable cases are pending
or have already been decided by the Court, it cannot be sure that it captures
all possible aspects of a subject-matter in order to create a future rule.17 A
court is able to determine and identify only the law violations in an instant
case – or sometimes in numerous instant cases. This limitation applies even
more to an international court, which necessarily has a certain distance from
the State concerned, more than a national court. It is not the task of the ECtHR
to draft legislative programmes.18
For that reason, precisely when the implementation of a judgment will
recognizably involve legislation, the ECtHR must take special care to leave
untouched the national margin of appreciation for implementing the judg-
ment. If the case is about a general rule that will cover many cases in the
future, the Court has the difficult task of explaining in its judgment the issues

16 Walter, supra note 13.

17 Breuer, Piloturteilstechnik, supra note 2, 5.
18 Critical voices are cited in Leach et al., Systemic Violations, supra note 2, 33. Breuer,
Piloturteilstechnik, supra note 2, 5, believes conflicts with the democratically legit-
imized legislatures to be possible. Cf. Schlaich, supra note 12, 117, who recommends
that the German Federal Constitutional Court more often, when laws are challenged,
restricts itself to remanding the case to the legislature. The ECtHR gives an example
of such restriction in Burdov v. Russia (No. 2), ECtHR Judgment, supra note 7, para.
137.

66
 The Role of the Legislative Branch in the Implementation of Judgments of the ECtHR

relevant to the Convention – and only those issues. It traditionally does this
by pointing out the Convention violations.
However, it can also attempt to reformulate its result into a list of indis-
pensable rules of a statute complying with the Convention. This positive
listing of indispensable elements, which a new law must include, is actually
the new aspect of pilot judgments.19 In contrast, a real restriction of the
legislative margin of appreciation is not possible.20 Rather, the Court’s dif-
ficult exercise involves correctly describing the restriction of the legislative
margin of appreciation due to human rights. Everything else remains
open.
This also means that an erga omnes effect of judgments is not possible.
Only the Convention has an erga omnes effect. The ECtHR is competent to
place this effect into concrete terms only if a corresponding case is submitted
to it. This applies not only to the issues involved in the case, but to the
respondent State as well. Proceedings before the ECtHR are not suited to
clearly identifying a problem for all 47 legal orders of the Contracting States
and explaining the necessary measures for all of them. The legal systems are
too different for that to be possible. Enormous procedural effects would en-
sue as well. In order to truly clarify a problem for all Contracting States,
every possibly affected State would have to intervene, and the Court would
have to review its judgment with regard to all legal systems. The results of

19 For literature concerning pilot procedures, see supra note 2. Leach, Systemic Vio-
lations, supra note 2, 172, refers to ‘full’ pilot judgments which stipulate general
measures in the operative part of the judgment. L. Garlicki, Broniowski and After:
On the Dual Nature of “Pilot Judgments”, in L. Caflisch et al. (eds.), Human Rights
– Strasbourg Views: Liber Amicorum Luzius Wildhaber (2007), 177, 186, mentions
the combination of individual and general effects. On the other hand, in very specific
cases the ECtHR has ordered individual measures as well, e.g., release from prison,
for the first time in Assanidze v. Georgia, ECtHR Application No. 71403/01, Judg-
ment of 8 April 2004 and in additional cases. On this point see Leach, Taking a Case,
supra note 2, 84 & 91-92, paras. 3.21 & 3.42-3.45.
20 Possibly contrary position Schmahl, supra note 2, 374. See also Grabenwarter &
Pabel, supra note 6, 105. According to H. Keller & M. Bertschi, Erfolgspotential des
14. Protokolls zur Europäischen Menschenrechtskonvention, 33 Europäische Grund-
rechte-Zeitschrift (2005) 8-10, 204, 210, however, the key is that there is not any
margin of appreciation left as to which remedial measures are to take. Cf. ECtHR,
Factsheet: Pilot Judgment, supra note 2, 1, which mentions that the Court will “give
the Government clear indications of the type of remedial measures needed to resolve”
the systemic problem and will “give Governments guidance with a view to solving
a systemic or structural problem”.

67
Almut Wittling-Vogel

that review could differ from State to State.21 This scenario shows that the
idea of an erga omnes effect goes too far.22 In advocating the opposing po-
sition, one should not argue that the Court is overburdened. This burden is
not due to having a legal issue being answered in a respective individual
proceeding applying to each Contracting Party. After all, this could result in
a maximum of 46 additional proceedings, which is a small number compared
with current caseload numbers. The actual burden comes to some extent from
the Contracting States not always implementing the first leading judgment
against them; rather, additional proceedings in Strasbourg are necessary be-
fore national law is adapted accordingly.23 This could not be prevented by
taking on an erga omnes effect.
Every Contracting State must itself recognize and decide whether a judg-
ment against another State must also have consequences for its own law. If
it makes the wrong decision, the individuals affected can make their way to
Strasbourg.

B. Deadlines

Especially in pilot proceedings, the ECtHR has now established the practice
of imposing deadlines on the respondent State for implementation of the

21 For example, the chamber in the case of Herrmann v. Germany, ECtHR Judgment,
supra note 3, determined that the argument in the cases of Chassagnou and Others
v. France, ECtHR Application Nos. 25088/94 et al., Judgment (GC) of 29 April 1999
and Schneider v. Luxembourg, ECtHR Application No. 2113/03, Judgment of 10
July 2007, could not be applied to Germany. In this case, the Grand Chamber came
to the opposite conclusion.
22 Cf. R. Bernhardt, in Wolfrum & Deutsch (eds.), supra note 2, 87-88.
23 This was the case in Germany when the issue was a remedy against judicial pro-
ceedings of excessive length. Following Kudla v. Poland, ECtHR Judgment, supra
note 7, it was recognized that action needed to be taken in Germany, but its scope
was still uncertain. This had to do with the different remedies that already existed in
Germany, not with anything the ECtHR could have said in the Kudla judgment. The
matter became clear through the Sürmeli v. Germany judgment (supra note 3). But
before legislative reforms were undertaken, several judgments in repetitive cases,
including a pilot judgment (Rumpf v. Germany, supra note 2) were necessary. Cf.
also D. Milner, in Wolfrum & Deutsch (eds.), supra note 2, 105-106 concerning the
difficulty of identifying what an effective remedy is. See also Leach et al., Systemic
Violations, supra note 2, 32, relying on an interview with Erik Fribergh, Registrar
of the ECtHR.

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 The Role of the Legislative Branch in the Implementation of Judgments of the ECtHR

judgment.24 In all cases in which implementation requires legislation, one

might be tempted to see herein a restriction on the legislative organs.
In principle, it is certainly not within the competence of the ECtHR to
influence the legislative process. The Court is actually only allowed to be
interested in the outcome – or more specifically: whether the outcome com-
plies with the Convention. But the deadlines do not really address the legis-
lative process itself. Rather, the question is when a situation that complies
with the Convention will be achieved.
With regard to the obligation of the States arising from Article 1 to “secure
to everyone within their jurisdiction the rights and freedoms defined in [...]”
the Convention, it cannot be left to the Contracting State when this is to be
the case. Rather, the intention is surely that this condition should already
have been achieved upon the entry into force of the Convention.25 So when
the ECtHR sets deadlines for the achievement of conformity with the Con-
vention, this is actually an exception from the Convention’s call to offer
comprehensive protection of human rights now and immediately.
The result of this is that a deadline can be permissible only when it is
impossible to immediately create compliance with the Convention. But this
is exactly the case when new legislation is necessary in a parliamentary
democracy. The Court’s deadlines attempt to provide the necessary balance
between the human rights demand for immediate implementation on the one
hand, and the democratic demand of providing legislators with adequate
consultation time on the other. Therefore, if it is measured aptly it is an
appropriate and good instrument in the interplay between the Court and the
lawmakers.

24 Rules of Court, Rule 61 (4), supra note 2. Breuer, Piloturteilstechnik, supra note 2,
6, including a list of judgments in note 77.
25 In developing the Convention however, the founding members were of the opinion
that their legal orders were consistent with the demands. See E. Bates, The Evolution
of the European Convention on Human Rights: From its Inception to the Creation
of a Permanent Court of Human Rights (2010), 6 with note 6. Regarding (West)Ger-
many, see German Federal Parliament [Bundestag], Written Report of the Committee
for the Occupation Statute and Foreign Affairs [Schriftlicher Bericht des Ausschusses
für das Besatzungsstatut und auswärtige Angelegenheiten], 1st legislative term 1949,
Printed Matter 3338, 5, pointing out that the fundamental rights of the new German
Basic Law [Grundgesetz] went farther in most cases than the Convention, and that
problems were considered possible only with regard to Article 5 (5) of the Conven-
tion. The ECtHR’s later case law showed the Contracting States how wrong they had
been.

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Deadlines have a second advantage. In setting deadlines, the ECtHR rec-

ognizes that compliance with the Convention cannot be in place on the day
that its judgment becomes final and binding. It sees the necessity of a par-
liamentary process in order to create the necessary legislative basis or of
another time consuming process.26 With this, it recognizes a transition period
for the affected organs of the obligated State. During that period, those or-
gans fulfil their obligation as long as they are working on bringing about
compliance with the Convention. This means that the Convention is not re-
violated if the conditions in contravention of the Convention are not allevi-
ated immediately.
The Convention does not expressly provide for either such a transition
period or the setting of a deadline. But it is the necessary consequence in
cases which involve implementation of judgments by the legislature.
Only on a case-by-case basis can it be judged whether a deadline has been
correctly calculated. In pilot procedures, the ECtHR has thus far imposed
deadlines of between three27 and eighteen28 months. There are examples of
such deadlines being extended.29 Lawmaking requires a process of demo-
cratic formation of will, and this takes time. The one-year deadline imposed
by the Court in the Rumpf case30 against Germany could be met only because
draft legislation already existed (of which the Court was aware). In other

26 For example, to improve preventive detention in Germany in order to implement the

judgments of the ECtHR (M. v. Germany, ECtHR Judgment, supra note 3) and the
German Federal Constitutional Court (supra note 8), 17 laws (one federal law and
one law in each of the 16 Constituent States) were necessary. Further, extensive
construction measures were necessary and additional qualified personnel needed to
be recruited and hired. This occasioned the German Federal Constitutional Court to
impose a (tight) deadline of approximately one year and one month, during which
the old law – albeit with certain modifications determined by the court – continued
to apply.
27 Xenides-Arestis v. Turkey, ECtHR Judgment [Merits], supra note 7. See J. A.
Frowein, in Wolfrum & Deutsch (eds.), supra note 2, 79-80.
28 Maria Atanasiu and Others v. Romania, ECtHR Application Nos. 30767/05 &
33800/06, Judgment of 12 October 2010; Manushaqe Puto and Others v. Albania,
ECtHR Application Nos. 604/07 et al., Judgment of 31 July 2012. See Breuer, Pi-
loturteilstechnik, supra note 2, 6 (note 77).
29 Michelioudakis v. Greece, ECtHR Application No. 54447/10, Judgment of 3 April
2012 and adoption of a proposal of 18 June 2013. See ECtHR, Information Note on
the Court’s Case-law No. 164 (June 2013), available at http://www.echr.coe.Int/
Documents/CLIN_2013_06_164_ENG.pdf (last visited 31 January 2014), 30. Cf.
Breuer, Piloturteilstechnik, supra note 2, 6 (note 84).
30 Rumpf v. Germany, ECtHR Judgment, supra note 2.

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 The Role of the Legislative Branch in the Implementation of Judgments of the ECtHR

cases the deadlines are very short.31 If the legislative process, including all
preparatory activities, does not begin in the Contracting State until after the
judgment has been rendered, longer deadlines are required for a democratic
legislative procedure.

C. Shared Responsibility – Motivation of the Legislative Branch to

Implement ECtHR Judgments

In the year 2006, the Parliamentary Assembly of the Council of Europe

(PACE) called upon all parliaments in the Member States to monitor im-
plementation of ECtHR judgments in their country.32 Apparently, the PACE
trusts that the parliaments will act as friends and supporters of human rights
and the Strasbourg system in their own countries.33 In Germany the result
of this is that the government reports annually to the parliament about what
judgments have been issued by the Court in German proceedings, and what
has been done for their implementation.34 Should there be problems, that
report makes it recognizable to all parliamentarians including the parlia-

31 Xenides-Arestis v. Turkey, ECtHR Judgment [Merits], supra note 7. Cf. Frowein, in

Wolfrum & Deutsch (eds.), supra note 2, 79-80 and Breuer, Piloturteilstechnik, supra
note 2, 6. In the Xenides-Arestis case, the new legislation was already on its way so
that Turkey was able to meet the deadline. See Xenides-Arestis v. Turkey, ECtHR
Judgment [Just Satisfaction], supra note 7, paras. 10 & 37.
32 Council of Europe (Parliamentary Assembly) (PACE), Resolution 1516 (2006) on
the Implementation of Judgments of the European Court of Human Rights, available
at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta06/ERES151
6.htm (last visited 31 January 2014), para. 22.1. See also PACE, Doc. 11020 on the
Implementation of Judgments of the European Court of Human Rights, available at
http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=11344&Language=
en (last visited 31 January 2014).
33 However, there seems to be room for further development, see Leach, Systemic
Violations, supra note 2, 179.
34 See, e.g., German Federal Ministry of Justice and Consumer Protection [Bundesmin-
isterium der Justiz und für Verbraucherschutz], Report on the Case-law of the ECtHR
and the Execution of its Judgments in Proceedings Against the Federal Republic of
Germany in the Year 2013 [Bericht über die Rechtsprechung des Europäischen
Gerichtshofs für Menschenrechte und die Umsetzung seiner Urteile in Verfahren
gegen die Bundesrepublik Deutschland im Jahr 2013], available at http://www.bm
j.de/SharedDocs/Downloads/DE/pdfs/Bericht_ueber_die_Rechtsprechung_des_E

71
Almut Wittling-Vogel

mentary opposition. Any problem can be raised in public debates. This is a

clear advantage of parliamentary control.
The initiative by the PACE is an example of shared responsibility between
a Council of Europe organ and national organs, namely the national parlia-
ments. One could imagine building on this, for example by having the Com-
mittee of Ministers inform the PACE in certain cases, thereby de facto re-
questing assistance. It might also occur to the competent PACE committee
to request a position from the government concerned, not only in writing but
also orally by a high-ranking representative of the State in question.35 Moni-
toring governments is certainly among the tasks and the self-image of par-
liamentarians and, in fact, it makes a difference to the government whether
the Minister him/herself or a mere official must justify policy before a par-
liamentary body.
Of course, shared responsibility is also a catchword for the division of
tasks and cooperation between the Strasbourg Court and national organs. It
can be assumed that part of the self-understanding of all parliaments in Eu-
rope is respecting and defending human rights. A judgment from Strasbourg
should thus be seen as a reminder of one’s own standards rather than an
imposition of foreign ideas.
However, experience shows that being reminded of one’s own standards
or one’s own conscience is not always enough. Immediate effects are not
always apparent when the Committee of Ministers monitors implementation

GMR_2012_deutsche_Faelle.pdf?__blob=publicationFile (last visited 31 January

2014). This is done on the basis of a resolution of the German Federal Parliament.
See German Federal Parliament [Bundestag], Printed Matter 16/5734 of 20 June
2007, 16th legislative term, available at http://dip21.bundestag.de/dip21/btd/
16/057/1605734.pdf (last visited 31 January 2014), 5.
35 In the Committee of Ministers, it occasionally happens that a Minister him/herself
takes a position on the (stagnant) implementation of a judgment, e.g. in the 1179th
meeting of the Committee of Ministers, 24- 26 September 2013, Bosnia-Herzegovina
was represented by its Justice Minister and Slovenia was represented by its Minster
for Home Affairs.

72
 The Role of the Legislative Branch in the Implementation of Judgments of the ECtHR

of judgments.36 In principle, though, the Committee of Ministers should not

be underestimated. It has resolved its cases – even if this has sometimes taken
a long time. However, it is required to find a consensus. The principle of
consensus is a guiding principle of the Council of Europe that should not be
readily abandoned; the functioning of the organization depends on it. That
means, of course, that the pressure Member States can put on certain States
is limited.
But in addition to the Committee of Ministers there is something else that
helps in implementing judgments: Repetitive cases and repetitive judg-
ments.
Such cases, which are a burden on the Court, are nonetheless indispens-
able. They are rightly employed in a targeted manner by the Court in pilot
procedures.37 Repetitive judgments enable the ECtHR to constantly issue
reminders about the unresolved problem. They support the State organs that
are working on implementation. They prevent legislators from procrastinat-
ing because they think that the problem is no longer acute. And new parallel
cases also allow the Court to monitor domestic solutions and laws with re-
spect to their compliance with the Convention.

36 Examples of judgments that took years to implement or have not yet been imple-
mented include, for instance Loizidou v. Turkey, ECtHR Application No. 15318/89,
Judgment of 28 July 1998 (payment of just satisfaction after 5 years, the rest of the
execution still pending); Gunes v. Turkey, ECtHR Application No. 28490/95, Judg-
ment of 19 June 2003 (execution completed after 10 years); Zhovner v. Ukraine,
ECtHR Application No. 56848/00, Judgment of 29 June 2004, and Ivanov v. Ukraine,
ECtHR Application No. 40450/04, Judgment of 15 October 2009 (pilot judgment)
(execution still pending); Ilascu and Others v. Republic of Moldova and Russia,
ECtHR Application No. 48787/99, Judgment of 8 July 2004 (execution (release from
detention) completed after 3 years); Hirst v. United Kingdom (No. 2), ECtHR Judg-
ment, supra note 7 (execution still pending). For all examples see Council of Europe,
Pending Cases: Current State of Execution, available at http://www.coe.int/t/dghl/
monitoring/execution/Reports/pendingCases_en.asp?Case (last visited 31 January
2014). Cf. also Sürmeli v. Germany, ECtHR Judgment, supra note 3.
37 For example, in the cases of Zhovner v. Ukraine, ECtHR Judgment, supra note 36
and Ivanov v. Ukraine, ECtHR Judgment, supra note 36, the ECtHR decided to
resume and decide on the temporarily ‘frozen’ repetitive cases in order to increase
the pressure to implement the pilot judgment. This is enough work for four lawyers
in the office of the Ukrainian agent at the ECtHR.

73
Almut Wittling-Vogel

D. Conclusion

There is no obligation for special restraint by the ECtHR in favour of the

legislative branch because of its direct democratic legitimacy. But the Court
must take care to leave untouched the national margin of appreciation. How-
ever, the Court has the difficult task of correctly describing the restriction
of the legislative margin of appreciation due to human rights. It can do this
by formulating a list of indispensable rules of a statute complying with the
Convention. This is the core of the new pilot procedures.
Deadlines are an appropriate and good instrument in the interplay between
the ECtHR and lawmakers. They can provide the necessary balance between
the human rights’ demand for immediate implementation on the one hand,
and the democratic demand of providing legislators with adequate consul-
tation time on the other. They also illustrate the ECtHR’s awareness of
problems in those cases where an immediate implementation of the judgment
is simply impossible although the Contracting State has been bound pursuant
to Article 46 (1) of the Convention.
The motivation for national legislators to implement human rights, in-
cluding the judgments of the Strasbourg Court, belongs to the self-under-
standing of all parliaments in Europe. In cases where this is not sufficient,
repetitive judgments are needed.

74
Can’t Get Just Satisfaction

Julia Laffranque

The literally awarding article, namely Article 41 of the European Convention

on Human Rights (thereinafter: ‘the Convention’)1 constitutes an intriguing
subject that fully deserves a stimulating title inspired by the hit of the Rolling
Stones released in 1965.
According to Article 41 of the Convention, if the European Court of Hu-
man Rights (thereinafter ‘the Court’ or ‘Strasbourg Court’) finds that there
has been a violation of the Convention and/or its protocols, and if the do-
mestic law of the Contracting Party to the Convention concerned allows only
partial reparation to be made, the Court shall – if necessary – afford just
satisfaction to the injured party.
The topic of just satisfaction is much more sophisticated and the award
of satisfaction is far more important and influential for the implementation
of the Convention as well as for the case law, the credibility, acceptance and
consequence of the judgments of the Court than could perhaps be seen at
first.
To demonstrate this, ten aspects that are of pertinent relevance to just
satisfaction will be analysed below. However it will only be possible to
elaborate on very few and mostly more recent cases of the Court’s extensive
practice on just satisfaction, as examples. Obviously they will not cover the
whole range and variety of problems, but perhaps even these quite random
illustrations will shed some light on a pattern or respectively a bit of an
absence of it in the Court’s case law regarding the damages.
A main question remains: is the ‘just satisfaction’ (French: ‘satisfaction
équitable’) always satisfactory and just? Wolfram Karl has pointed out that
as an exception to general international law (where the rule of just satisfac-
tion resides and has become a customary international law), a State under
the Convention system may step back from fulfilling its obligation to provide
restitution in kind, if national law does not allow for it and that in such a case

1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4

November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14) [ECHR].

75
Julia Laffranque

‘just satisfaction’ is owed, which has nothing or little to do with ‘satisfaction’

in the more restricted sense of a mere apology (i.e. as a symbolic act destined
to restore the injured party’s honour as understood in international law); what
is meant by this instead seems to be near the full range of remedies.2

A. Importance of Just Satisfaction

The issue of just satisfaction has significant features both for the parties of
an actual litigation, for the concrete people, the victims of Convention vio-
lations, as well as for the development of human rights law in Europe in
general.
One example of the importance of this theme is the fact that the question
of just satisfaction has caused the panel of the Grand Chamber of the Court
to accept a request to refer a case to the Grand Chamber only to decide upon
Article 41 of the Convention dispute.3
However, the case of Guiso-Gallisay v. Italy, in which the main question
submitted to the Grand Chamber was the pecuniary damage suffered by the
applicants following the unlawful expropriation of their land, can be con-
sidered as an exception. In principle the award at issue constitutes an appli-
cation of Article 41 of the Convention to the nature of the violation found
and may be seen as a factual assessment. Moreover, in many cases the
Chamber of the Court decides the amount of just satisfaction on an ‘equitable
basis’ and such an assessment does not, by its very nature, lend itself to a
review by the Grand Chamber.4
Correspondingly in the case of Guiso-Gallisay v. Italy the Grand Chamber
was not called upon to review the assessment of the amount of the losses at
stake (and indeed it came to the conclusion that it was appropriate to change
the Court’s position, to avoid the application of the previous Pa-

2 W. Karl, ‘Just Satisfaction’ in Art 41 ECHR and Public International Law – Issues of
Interpretation and Review of International Materials, in A. Fenyves et al. (eds.), Tort
Law in the Jurisprudence of the European Court of Human Rights (2011), 345,
385-386, para. 4/86.
3 Guiso-Gallisay v. Italy, ECtHR Application No. 58858/00, Judgment (GC) of 22 De-
cember 2009.
4 ECtHR, The General Practice Followed by the Panel of the Grand Chamber when
Deciding on Requests for Referral in Accordance with Article 43 of the Convention
(October 2011), available at http://www.echr.coe.int/Documents/Note_GC_ENG.pdf
(last visited 31 January 2014), 12.

76
 Can’t Get Just Satisfaction

pamichalopoulos5 case law to cases of constructive expropriation and to

adopt a new approach); there was, rather a ‘serious question affecting the
interpretation of [Article 41 of] the Convention’.
In Arvanitaki-Roboti and Others v. Greece6 and in Kakamoukas v.
Greece7 the main, although not the only, question addressed by the Grand
Chamber was the amount of the award to be made in cases of excessive
length of proceedings. In both cases the Grand Chamber considered for the
reasons set out by the Chamber that there had been a violation of Article 6
(1)1 of the Convention and then went on to assess the issue of Article 41 of
the Convention.
Another example of the significance of just satisfaction issues is that de-
ciding upon Article 41 of the Convention has also generated various dis-
senting opinions of judges.
Yet another example of how substantial the matter of just satisfaction is,
is proved by the Court’s working procedure according to which a case that
would require a departure from the established case law, even in the context
of just satisfaction, should be forwarded from the Committee to the Cham-
ber.
Awarding just satisfaction under Article 41 of the Convention bears logic-
ally a close relation to the violation of the relevant Article of the Convention
found in the case at hand and also to Article 46 of the Convention which
provides that the Contracting Parties undertake to abide by the final judg-
ment of the Court in any case to which they are parties and that the final
judgment of the Court shall be transmitted to the Committee of Ministers,
which shall supervise its execution.
Also the issue of the relations between the articles of the Convention (their
possible hierarchy) and the importance of the rights that they protect is rel-
evant when analysing just satisfaction under Article 41 of the Convention.
Furthermore, application of Article 41 and awarding of damages, costs
and expenses involves many technical aspects and issues that would merit a
separate elaboration on its own, such as awards under Article 1 of Protocol
No. 1 to the Convention.

5 Papamichalopoulos v. Greece (Article 50), ECtHR Application No. 14556/89, Judg-

ment of 31 October 1995.
6 Arvanitaki-Roboti and Others v. Greece, ECtHR Application No. 27278/03, Judgment
(GC) of 15 February 2008.
7 Kakamoukas v. Greece, ECtHR Application No. 38311/02, Judgment (GC) of 15
February 2008.

77
Julia Laffranque

A further topic not to be discussed in detail here is the issue of just satis-
faction in relation to unilateral declarations and friendly settlements. The
Court has not clearly defined policy on this point. In repetitive cases the
strike of a case out of the Court’s list of cases refers to the ‘amounts awarded
in similar cases’ or to the amount of compensation ‘proposed’. The expres-
sion ‘amounts awarded in similar cases’ points out the awards made by way
of just satisfaction fixed by the Court in regular proceedings. Reference to
the ‘amount of compensation proposed’ on the other hand suggests that the
Court wishes to retain certain discretion in assessing the amount. There are
differences within the case law of the Court as to the amount included in
unilateral declarations; some have simply repeated the sum proposed in the
context of unfruitful negotiations for a friendly settlement, if such existed,
while others have reduced the quantity in the event of unreasonable refusal
by the applicant or as encouragement to choose the friendly settlement route.
According to Rule 62 A of Rules of Court,8 the unilateral declaration will
contain an undertaking of the respondent Government to provide adequate
redress and, as appropriate, to take necessary remedial measures.
And last, but not least, an example of the impact of just satisfaction is that,
in 2012 the Court awarded a total amount of 176,798,888 euros for just
satisfaction; the highest awards concerned Italy, Turkey and the Russian
Federation.9

B. The Essence, Purpose and Scope of Just Satisfaction: Article 41 (Former

50) of the Convention and Rules of the Court: The Living Instrument
and its Interpretation in Practice

The first judgment in which the Court awarded just satisfaction under the
former Article 50 of the Convention was the judgment of 10 March 1972 in
the case De Wilde, Ooms and Versyp v. Belgium (“Vagrancy Cases”). The
meaning of just satisfaction was considered by the Court as follows:
“No doubt, the treaties from which the text of Article 50 was borrowed had more
particularly in view cases where the nature of the injury would make it possible

8 ECtHR, Rules of Court, Rule 62 A, available at http://www.echr.coe.int/Documents/

Rules_Court_ENG.pdf (last visited 31 January 2014), 35-36.
9 Council of Europe (Committee of Ministers), Supervision of the Execution of Judg-
ments and Decisions of the European Court of Human Rights: 6th Annual Report of
the Committee of Ministers (2012), 57-59.

78
 Can’t Get Just Satisfaction

to wipe out entirely the consequences of a violation but where the internal law
of the State involved precludes this being done. Nevertheless, the provisions of
Article 50 which recognise the Court’s competence to grant to the injured party
a just satisfaction also cover the case where the impossibility of restitutio in
integrum follows from the very nature of the injury; indeed, common sense
suggests that this must be so a fortiori. The Court sees no reason why, in the
latter case just as in the former, it should not have the right to award to the injured
persons the just satisfaction that they had not obtained from the Government of
the respondent State.”10
“Where the consequences of a violation are only capable of being wiped out
partially, the affording of ‘just satisfaction’ in application of Article 50 requires
that:
(i) the Court has found ‘a decision or measure taken’ by an authority of a Con-
tracting State to be ‘in conflict with the obligations arising from the [...] Con-
vention’;
(ii) there is an ‘injured party’;
(iii) the Court considers it ‘necessary’ to afford just satisfaction.”11
This judgment was accompanied by numerous separate opinions on former
Article 50 and its application, which shows that the subject raised heavy
disputes.
Also, according to the present Article 41 of the Convention granting the
satisfaction is dependent on finding a violation and absence of total repara-
tion in domestic law. It is remarkable that, in essence, the text of the ‘just
satisfaction’ article of the Convention has not been substantially changed,
although as far as the subsidiary character of its application is concerned,
the aspect of whether the reparation in internal law is possible or not in
practice seems to be losing its initial meaning.
The term ‘injured party’ is fairly clear in the Courts view; it is a synonym
for ‘victim’ in Article 34 of the Convention and this also includes legal per-
sons.12 Furthermore, the Court has awarded damages to the next of kin, for
example to the relatives of persons who were unlawfully killed by State
agents or where the respondent State was held responsible for the disap-
pearance of their relatives13, and heirs of the victims when the applicant had

10 De Wilde, Ooms and Versyp v. Belgium, ECtHR Application Nos. 2832/66 et al.,
Judgment of 10 March 1972, para. 20.
11 Ibid., para. 21.
12 L. Zwaak, The Procedure Before the European Court of Human Rights, in P. van
Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights,
4th ed. (2006), 95, 258.
13 Aslakhanova and Others v. Russia, ECtHR Application Nos. 2944/06 et al., Judg-
ment of 18 December 2012.

79
Julia Laffranque

died in the course of proceedings and the Court allowed the heirs to step
in.14
According to the Practice Directions of the Court, the award of just sat-
isfaction is not an automatic consequence of a finding of a violation by the
Court. This is clear from the Convention wording ‘if necessary’. Further-
more, the Court will award only satisfaction that is considered to be ‘just’
and regard will be had to the particular features of each case.15 Thus the
Court enjoys certain discretion in the exercise of the power conferred by
Article 41 of the Convention.
The purpose of just satisfaction is to compensate the injured party for the
actual harmful consequences of the violation of the Convention and not as
such to punish the Contracting State responsible (no punitive damages and
no exemplary damages),16 although the awarding of damages is often re-
garded as a sanction for the Convention to be respected. This had been the
topic of discussions in the travaux préparatoires of the Convention when
Denis de Rougemont read out the Congress of Europe message on 11 May
1948 which included the statement: “We want a Court of Justice which can
apply the necessary sanctions for the Covenant to be respected”;17 but was
not as such followed in the draft of the Convention.
Thus, the Court is not empowered with similar mechanisms to the Court
of Justice of the European Union to enable sanctioning the Contracting Party
in breach of its Convention obligations. And even in a concrete case, despite
its own well-established finding that a fair trial does not end with a judgment,
because it covers also the enforcement of judgments and the constant case
law that the rights need to be practical and effective, not theoretical and

14 See in detail, H. C. Krüger, Reflections on Some Aspects of Just Satisfaction under

the European Convention on Human Rights, in G. Cohen-Jonathan et al. (eds.), Liber
Amicorum Marc-André Eissen (1995), 255.
15 President of the ECtHR, Practice Direction: Just Satisfaction Claims, available at
http://www.echr.coe.int/Documents/PD_satisfaction_claims_ENG.pdf (last visited
31 January 2014), 1, paras. 1-2 [President of the ECtHR, Practice Direction].
16 The Court has rejected claims for punitive damages. See e.g. Akdivar v. Turkey,
ECtHR Application No. 21893/93, Judgment of 4 April 1998, para. 38 and Varnava
v. Turkey, ECtHR Application Nos. 16064/90 et al., Judgment of 18 September 2009,
para. 223.
17 Cf. E. Steiner, Just Satisfaction under Art 41 ECHR: A Compromise in 1950 – Prob-
lematic Now, in Fenyves et al. (eds.)., supra note 2, 3, 5, para. 1/9.

80
 Can’t Get Just Satisfaction

illusory,18 the Court is confronted with the situation that the national courts
have much wider enforcement powers over their judgments than those pro-
vided for the Court by the Convention. Although Protocol No. 14 to the
Convention19 added a new element, namely to institute proceedings before
the Court to determine whether the respondent State has complied with a
judgment, a majority of two-thirds of the Committee of Ministers is required,
so that this procedure has so far never been used.20 By reason of its mission
the Court has a very real interest in the result of its judgments and has in-
creasingly expressed interest in this via its case law by addressing which
measures, individual and general, should be taken to comply with its judg-
ments.21

18 See, e.g., Case Relating to Certain Aspects of the Laws on the Use of Languages in
Education in Belgium, ECtHR Application Nos. 1474/62 et al., Judgment of 23 July
1968, paras. 3 & 4; Marckx v. Belgium, ECtHR Application No. 6833/74, Judgment
of 13 June 1979, para. 31.
19 Protocol No. 14 to the Convention for the Protection of Human Rights and Funda-
mental Freedoms, 13 May 2004, reprinted in Council of Europe (Steering Committee
for Human Rights) (ed.), Reforming the European Convention on Human Rights: A
Work in Progress (2009), 688-692.
20 ECHR, Art. 46 paras. 4 & 5, supra note 1. However, following the Court’s judgment
in Abuyeva and Others v. Russia, ECtHR Application No. 27065/05, Judgment of 2
December 2010, two NGOs, Memorial and EHRAC (European Human Rights Ad-
vocacy Centre), submitted an application for the initiation of infringement proceed-
ings under Article 46 in relation to an earlier judgment Isayeva v. Russia, ECtHR
Application No. 27065/05, Judgment of 24 February 2005. In their Partly Concurring
Opinion to the Court’s Grand Chamber judgment in the case Cyprus v. Turkey (just
satisfaction), ECtHR Application No. 25781/94, Judgment of 12 May 2014, Judges
Tulkens, Vajic, Raimondi and Bianku joined by Judge Karakas expressed their con-
cern about the extension of powers of the Court running counter to Article 46 (2) of
the Convention by encroaching on the powers of the Committee of Ministers which
has the task to supervise the execution of judgments and found that the Court does
not have jurisdiction to verify whether a Contracting Party has complied with the
judgment and that the initiative of Article 46 (4) must come from the Committee of
Ministers and that is not open to a party to refer a matter directly to the Court.
21 See G. Nicolau, The New Perspective of the European Court of Human Rights in the
Effectiveness of its Judgments, in C. Hohmann-Dennhardt et al. (eds.), Grundrechte
und Solidarität – Durchsetzung und Verfahren: Festschrift für Renate Jaeger (2011),
163, 164.
.

81
Julia Laffranque

C. Equity as a Governing Principle under all Components of Just

Satisfaction: Pecuniary and Non-Pecuniary Damages; Costs and
Expenses; Requirements for Just Satisfaction Claims

Awards of just satisfaction can be awarded under three heads: pecuniary

damages, non-pecuniary damages, costs and expenses. The Court decides
on the pecuniary and non-pecuniary damages, the latter on the basis of eq-
uity; as well as determining the costs and expenses if there has been a claim.
Actually, the governing principle under all three heads is ‘equity’.
Reasons of equity can cause the Court to award less than asked. The Court
can never award more than the applicant has claimed, even if in the same
case there are multiple applicants and for the same violation some will even-
tually receive more compensation than others who have asked less.
Rule 75 of the Rules of Court codifies that the Court shall give in the same
judgment with merits the ruling on just satisfaction if a violation is found, if
a specific claim following the Rules of the Court has been submitted and if
the question is ready for decision.
There are quite strict formal and substantial requirements to the claim,
such as: documentary evidence, claims made in time and causal link.
The applicant must submit itemized particulars of all claims, together with
any relevant supporting documents, within the time-limit fixed for the sub-
mission of the applicants’ observations on the merits, unless the President
of the Chamber decides otherwise. Detailed claims are to be expected. The
applicant’s claim will be sent to the Contracting Party for comment. The
failure to comply with these requirements may result in rejecting the claims
in whole or in part.
The Court will award damages only in respect of losses which can be
shown to have been caused by the violation in question.22

I. Pecuniary Damages

Pecuniary damages can include both the loss that was actually suffered
damnum emergens and the loss or diminished gain expected in the future
lucrum cessans if precise calculation is possible. But the main requirement
under pecuniary damages is the causal link between the violation and dam-

22 F. Jacobs et al., The European Convention on Human Rights, 5th ed. (2010), 44-45.

82
 Can’t Get Just Satisfaction

ages; the Court will give the applicant the benefit of the doubt where the
claims are prima facie reasonable. The pecuniary damages could also be, for
example, funeral expenses which in that case require substantiation.23
The Court differentiates between lawful and unlawful deprivation or dis-
possession of property: in the first case, the sum should be reasonably related
to the value of the property,24 whereas when manifest unlawfulness of de-
privation occurs a full restitution is needed and the return of property would
be the best.25 The date of the value of property is the date of loss of ownership
and the value of the public works built on the land is taken into account.26
In connection with violations of Article 6 of the Convention concerning
fair trial, the Court rarely awards pecuniary damages, because the Court does
not like to speculate how the outcome of the national proceedings compa-
rable with Article 6 (1) of the Convention would have been; however it
makes awards as regards non-pecuniary damages.27
Sometimes due to the length of proceedings, cases involve property issues
and different damages to be awarded under both pecuniary and non-pecu-
niary heads. For example, in the case Gera de Petri Testaferrata Bonici
Ghaxaq v. Malta, the Court held in a principal judgment that there had been
a violation of Article 6 and Article 1 of Protocol No. 1 to the Convention in
the light of unreasonable length of proceedings, the inadequacy of the com-
pensation offered to the applicant and the fact that she was deprived of her
property for nearly fifty years.28 The costs and non-pecuniary damages were
decided together with the principal judgment. The issue of Article 41 of the
Convention, as far as pecuniary damages were concerned, was reserved and

23 Bektas and Özalp v. Turkey, ECtHR Application No. 10036/03, Judgment of 20 April
2010, para. 74; Abdulkhanov and Others v. Russia, ECtHR Application No.
22782/06, Judgment of 3 October 2013, para. 68.
24 See, e.g., Beyeler v. Italy, ECtHR Application No. 33202/96, Judgment of 28 May
2002; Sovtransavto Holding v. Ukraine, ECtHR Application No. 48553/99, Judg-
ment of 2 October 2003.
25 Iatridis v. Greece, ECtHR Application No. 31107/96, Judgment of 19 October 2000,
para. 35.
26 Guiso-Gallisay v. Italy, ECtHR Judgment, supra note 3, paras. 102-107.
27 Esim v. Turkey, ECtHR Application No. 59601/09, Judgment of 17 September 2013,
para. 29. For instance in a length of proceedings case the Court – despite finding
Article 6 (1) of the Convention violated – did not see a causal link between the 4,4
million euro loss of income requested by the applicant. Roduit v. Switzerland, ECtHR
Application No. 6586/06, Judgment of 3 September 2013, paras. 53-55.
28 Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, ECtHR Application
No. 26771/07, Judgment of 5 April 2011, paras. 46 & 59-60.

83
Julia Laffranque

decided later, whereas the ad hoc Maltese judge expressed the view that the
damages awarded by the Court of Appeal in Malta earlier the same year
consisted of adequate and reasonable compensation. The Court however
found that if the Government used the property on commercial purposes then
the private owner could have also done this, and awarded as pecuniary dam-
ages 160,000 euros.29

II. Non-Pecuniary Damages

The non-pecuniary damage awarded by the Court constitutes financial com-

pensation for non-material harm, physical or mental injury, pain and suffer-
ing, feelings of anxiety, distress, injustice, humiliation, stress, helplessness
or frustration. Here again a causal link with the violations found is needed.
This often involves a moral stance, as here no precise calculation of non-
pecuniary damage is possible. The Court uses frequently, especially for non-
pecuniary damages, uniform lump sums, rather than seeking to compensate
losses minutely and exhaustively. Sums are normally rounded up. This is
also because the Court makes awards on an equitable basis, generally without
any explanation of its quantification or more than brief reasoning.30 It has
been argued that the Court awards compensation for non-pecuniary loss even
in cases in which no or nearly no national court would be prepared to do so
on the basis of the national legal system.31
According to the case law of the Court a family member of a ‘disappeared
person’ can claim to be a victim of treatment contrary to Article 3 of the
Convention and thus receive non-pecuniary damages;32 however, the same
principle would not usually apply to situations where the person (family
member of the applicant) taken into custody has later been found dead.33
The applicants who are close relatives of the disappeared are considered

29 Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, ECtHR Application No.

267710/07, Judgment [Just Satisfaction] of 3 September 2013.
30 K. Reid, A Practitioner’s Guide to the European Convention on Human Rights, 4th
ed. (2011), 847.
31 H. Koziol, Concluding Remarks on Compensatory and Non-Compensatory Reme-
dies, in Fenyves et al. (eds.), supra note 2, 863, 867-868, para. 22/13.
32 See, e.g., Kurt v. Turkey, ECtHR Application No. 24276/94, Judgment of 25 May
1998, paras. 130-134.
33 See, e.g., Tanli v. Turkey, ECtHR Application No. 26129/95, Judgment of 10 April
2001, para. 159.

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victims of a violation of Article 3 of the Convention on account of the distress

and anguish which they suffered, and continue to suffer as a result of their
inability to ascertain the fate of their family members and of the manner in
which their complaints have been dealt with.34 The person who witnesses
their relative’s violent death before their eyes can also resort to Article 3 and
be awarded respectively non-pecuniary damages35; however in contrast the
Court has found that a person who was locked in the room and heard behind
the door gunfire and how her husband was taken by what she believed the
authorities’ servicemen to the courtyard, where she was later on also taken
and saw her husband lying still and bloody on the ground and was not let to
approach him, has not reached the level of mental suffering in terms of Ar-
ticle 3 of the Convention.36
Some other features relating to non-pecuniary damages can be detected
in the Court’s case law: for example, in length of proceedings cases, where
violations are found, the sums awarded as non-pecuniary damages reflect
the length of the proceedings. The fact that there are many applicants in one
case may bring down the amount of non-pecuniary damages of individual
awards.37
Furthermore, a legal person could also suffer moral damage to a compa-
ny’s reputation, thus the Court has not excluded that a commercial company
may be awarded pecuniary compensation for non-pecuniary damage. Non-
pecuniary damage suffered by such companies may include heads of claim
that are to a greater or lesser extent ‘objective’ or ‘subjective’. Among these,
account is taken of the company’s reputation, uncertainty in decision-plan-
ning, disruption in the management of the company (for which there is no
precise method of calculating the consequences) and lastly, albeit to a lesser
degree, the anxiety and inconvenience caused to the members of the man-
agement team.38
It is interesting that the Court may award a sum of pecuniary and non-
pecuniary damages together, as this could cause sometimes problems of im-

34 See, e.g., Gakayeva and Others v. Russia, ECtHR Application Nos. 51534/08 et
al., Judgment of 10 October 2013, para. 375.
35 Esmukhambetov and Others v. Russia, ECtHR Application No. 23445/03, Judgment
of 29 March 2011.
36 Arapkhanovy v. Russia, ECtHR Application No. 2215/05, Judgment of 3 October
2013, para. 152.
37 Reid, supra note 30, 848.
38 Comingersoll S. A. v. Portugal, ECtHR Application No. 35382/97, Judgment (GC)
of 6 April 2000, para. 35.

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Julia Laffranque

plementation of the Court’s judgment at the national level, e.g. in the judg-
ment in the case Allenet de Ribemont v. France where the Court did not feel
bound to identify proportions of different damages.39
Furthermore, the calculation of just satisfaction in cases of more than one
violation should not be mechanical, since awarding additional sums is a
matter of judicial decision.

III. Costs and Expenses

As far as costs and expenses are concerned, then hereunder both, the costs
and expenses at national level, as well as of course at the Court’s level will
be covered, covering mostly legal aid, but also costs for travel to Strasbourg
if necessary.40 The Court is not bound by domestic scales and practices in
assessing what are reasonable by way of fees. Only the costs and expenses
linked to violations found will be awarded. The costs and expenses incurred
in the case must have been actually necessarily incurred to prevent or redress
the breach of the Convention and reasonable as to quantum.41 Evidence of
bills and invoices is expected from the applicants. The applicant must also
identify the bank account where the damage is to be transferred.
When one or more complaints are unfounded, the sum is decreased and
reduced from the award. Legal aid granted by the Council of Europe will be
deducted from the award. The Court may pay costs and expenses directly on
the bank account of the lawyer.42
Damages will be awarded mostly as a sum of money; since 2002 all
awards have been made in euro, so this enables comparison. Euros are to be
converted, if necessary, according to the exchange rate applicable on the date
of payment. The Court gives a time limit for payments and applies three
months default interest if exceeded. The Court considers it appropriate that

39 Allenet de Ribemont v. France, ECtHR Application No. 15175/89, Judgment of 10

February 1995. See also Allenet de Ribemont v. France, ECtHR Application No.
15175/89, Judgment of 7 August 1996 concerning the request of European Com-
mission of Human Rights for interpretation of the judgment which was however
rejected by majority.
40 See, e.g., Vilnes and Others v. Norway, ECtHR Application Nos. 52806/09 &
22703/10, Judgment of 5 December 2013, paras. 274 & 279.
41 Kingsley v. United Kingdom, ECtHR Application No. 35605/97, Judgment (GC) of
28 May 2002, para. 49.
42 President of the ECtHR, Practice Direction, supra note 15, 3-4, para. 22.

86
 Can’t Get Just Satisfaction

the default interest should be based on the marginal lending rate of the Euro-
pean Central Bank, to which should be added three percentage points.43
As far as taxes are concerned, applicants who are afforded damages after
the Court has found a violation are not automatically exempted from taxa-
tion. In each case the Court needs to decide which parts are tax exempt and
which not. Non-pecuniary damages are always exempt from taxation, but
pecuniary damages may or may not be exempted depending on their na-
ture.44 Costs and expenses are tax exempt for the applicant, who is spared
value-added tax, but for the applicants’ lawyers they constitute taxable in-
come.

D. No Possibility for the Court to Grant Damages Ex Officio

The Court as a rule does not award ex officio just satisfaction if the applicant
has not asked for it. However, it has previously happened that the Court has
raised the just satisfaction issue of its own motion. In the case Borodin v.
Russia45 the Court found a violation of Article 3 of the Convention under its
procedural limb on account of the authorities’ failure to carry out an effective
and thorough investigation into the applicant’s allegations of ill-treatment
in police custody and the use of force against him and a violation of the same
Article under its substantive limb on account of the excessive use of force
against the applicant and on account of the applicant’s solitary confinement.
As far as Article 41 of the Convention was concerned, the Court pointed out
that according to the Rules of Court any claim for just satisfaction must be
itemized and submitted in writing together with the relevant supporting doc-
uments or vouchers, “failing which the Chamber may reject the claim in
whole or in part”.46 It further described that the Court invited the applicant
to submit a claim for just satisfaction and reiterated the request later on. The
applicant did not submit any such claim. The Court went on to say that in
such circumstances the Court would usually make no award:

43 Ibid., 4, para. 25.

44 For example in a case where the Court awards damages for the loss of salary or
commercial profits – the applicant is expected to pay tax.
45 Borodin v. Russia, ECtHR Application No. 41867/04, Judgment of 6 November
2012.
46 Ibid., para. 164.

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Julia Laffranque

“In the present case, however, the Court has found a violation of the applicant’s
right not to be subjected to inhuman and degrading treatment. This right is of
an absolute character and the Court exceptionally finds it possible to award the
applicant 7,500 euros [EUR] in respect of non-pecuniary damage.”47
This judgment caused the Court internally to review its position and to con-
clude that the practice should be not to make any award if the applicant has
not expressly requested it; the Court has ever since tried to follow this pos-
ition.
In some cases where the Court has found violations of Article 6 and Article
1 Protocol 1 to the Convention, for example for failure to ensure the execu-
tion of national judgments, but the applicants have not submitted a claim for
just satisfaction, the Court considers that therefore there is no call to award
them any sum on that account. However, as regards Article 41 of the Con-
vention, the Court notes that in so far as the judgments remain in force, the
State’s outstanding obligation to enforce them cannot be disputed and ac-
cordingly, the applicants are still entitled to the enforcement of those judg-
ments and the Government needs to secure this.48 For example in the judg-
ment of the case Mijanovic v. Montenegro49, where the applicant had sought
the payment of the national judgment debt, the Court was more concrete and
reiterated that the most appropriate form of redress in respect of a violation
of Article 6 of the Convention is to ensure that applicants as far as possible
are put in the position in which they would have been had the requirements
of Article 6 not been disregarded and considered that the respondent Gov-
ernment should pay the applicant, in respect of pecuniary damage, the award
made by the domestic courts including the statutory interest and the legal
costs referred to therein.

E. Criteria or Rather the Absence of it in Awarding Damages

The relevant criteria for the award of damages and the amount of compen-
sation are open for interpretation and debate. The Court’s case law under

47 Ibid., para. 166.

48 Israfilova and Agalarov v. Azerbaijan, ECtHR Application Nos. 16806/11 &
61696/11, Judgment of 10 October 2013, para. 23.
49 Mijanovic v. Montenegro, ECtHR Application No. 19580/06, Judgment of 17
September 2013, para. 95. See mutatis mutandis Pejaković and Others v. Bosnia and
Herzegovina, ECtHR Application Nos. 337/04 et al., Judgment of 18 December
2007, paras. 31-32.

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 Can’t Get Just Satisfaction

Article 41 of the Convention has been criticized for its non-transparent prac-
tice, the lack of clear principles and consistency as to when damages should
be awarded and how they should be measured and for exceeding its limits
in granting damages.50 But most of the Convention rights carry a value that
cannot be calculated to the last cent. Are the differences between awards
indicative of the relative importance which the Court ascribes to any partic-
ular right?
Judge Helen Keller has, in her Partly Dissenting Opinion, disagreed on
the amount granted under Article 41 of the Convention in respect of non-
pecuniary damage in the Court’s judgment in case of Bozkir and Others v.
Turkey.51 To Keller it seems a logical imperative that, where violations of
several substantive provisions of the Convention have been found (multiple
violations), these should be taken into consideration under Article 41. How-
ever, according to Keller all attempts at a systematic comparison of the
amounts granted under Article 41 have failed for various reasons: differences
in living costs and currencies, inflation, time and last but not least – the ex
aequo et bono nature of the compensation awarded under Article 41 of the
Convention.52 In her Partly Dissenting Opinion she advocated for Article 13
of the Convention to be conceived as a fully-fledged human rights guarantee
under the Convention and that the failure to provide an effective remedy
should be considered as an additional violation of the Convention for the
purposes of Article 41.
On the other hand it is indeed very difficult to find a category and scale
for damages for all possible violations of the Convention and apply them
automatically. Of course the specificities of the case at hand should be taken
into consideration, as well as seriousness and duration of the violation. One
additional aspect that sometimes complicates matters is that, although the
Court is not and should not be the fourth instance, just as it should not be the
first instance, it sometimes needs to act as a first instance court in cases were

50 D. Harris et al., Law of the European Convention on Human Rights, 2nd ed. (2009),
856; L. Loucaides, Reparation for Violations of Human Rights under the European
Convention and Resitutio in Integrum, 13 European Human Rights Law Review
(2008) 2, 182, 182; L. Wildhaber, Reparations for Internationally Wrongful Acts of
States – Article 41 of the European Convention on Human Rights: Just Satisfaction
under the European Convention on Human Rights, 3 Baltic Yearbook of International
Law (2003), 1.
51 Partly Dissenting Opinion of Judge Keller, Bozkir and Others v. Turkey, ECtHR
Application No. 24589/04, Judgment of 26 February 2013.
52 Ibid., para. 4.

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Julia Laffranque

no effective remedies were available to exhaust at domestic level and there-

fore also award just satisfaction accordingly.
These issues of just satisfaction like in general matters where money is
involved, create emotions and problems of acceptance of the judgments of
the Court at national level, especially in the societies as such in general,
where people sometimes have difficulties to understand why a convicted
prisoner will receive thousands of euros of compensation even if it is for
absolutely devastating and inhuman prison conditions.
Questions such as: Are financial awards made after the finding of viola-
tions of core Articles of the Convention and of other Articles comparable?
How much does a human life cost and is it different in various parts of Eu-
rope, for example in Western Europe and in Chechnya, depending on the
respective State’s budget?
Certainly the cases are complicated if one thinks of the most serious vi-
olations of human rights and whether the suffering of individuals can at all
and to what extent be compensated in monetary terms.
Many have expressed doubts in that respect. For example, according to
Christian Tomuschat
“[i]t is obvious that financial compensation provided to a woman remaining
under conditions of forced prostitution or to a prisoner under abject prison con-
ditions of neglect and torture could never amount to `satisfaction´; [which is
why] it is necessary to recall that one and the same legal provision may have to
be interpreted differently in a different context.”53
Or as expressed by Egbert Myjer:
“Even in plain property cases the facts often refuse to subordinate themselves
conveniently to legal doctrine. Every case has its own specific features, neces-
sitating an individual assessment and often a balancing of comparing interests.
[…] Awards in respect of pecuniary damage are sometimes astronomical com-
pared to awards under the same head in cases of violation of other Convention
rights. But that is a logical consequence of the inclusion of a right to the pro-
tection of property among the rights guaranteed in the Convention system. […]
Nonetheless, I sometimes wonder, how many applicants would be left if the
Court stopped awarding just satisfaction. This is of course no more than a flight

53 C. Tomuschat, Just Satisfaction under Article 50 of the European Convention on

Human Rights, in P. Mahoney et al. (eds.), Protecting Human Rights: The European
Perspective (2000), 1409, 1429-1430.

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 Can’t Get Just Satisfaction

of fancy, if only because the obligation to pay just satisfaction has a salutary
effect on some States. But even so, what if?”54
Yet, the award of damages does to not lead necessarily to the monetisation
of human rights. The Court is making a lot of effort to work hard on the
judgments and their reasoning, as well as on the prioritization of cases and
pilot judgments in repetitive cases and in awarding damages to strive towards
a balanced approach between ‘mercantile’ and symbolic satisfaction.

F. Pecuniary Impact of the Damages to the Responsible State: Should the

Court Take into Account Financial Situation and Economic Crisis?

According to the Court’s Practice Direction the Court will normally take into
account the local economic circumstances.55 Indeed, to some extent the
awards are geared to cost of living increases or decreases and the standard
of living is reasonably taken into account. The Court recently revised its
internal scales to render them more consistent after years of varying prac-
tices.
In the judgment in the case Ioannis Anastasiadis and Others v. Greece56
the Court decided that finding a violation is sufficient in respect of non-
pecuniary damage. In that case the administrative-law proceedings brought
by the applicants against their State employer lasted almost twelve and a half
years. The Court held that there had been a violation of Articles 6 and 13 of
the Convention on account of the length of the domestic proceedings. How-
ever, as far as Article 41 was concerned, the Court noted that it had previ-
ously, on several occasions, declared inadmissible applications complaining
of the length of domestic proceedings on the grounds that there was no rea-
sonable relationship of proportionality between the stakes involved in the
domestic proceedings and those involved in the proceedings brought before
the Court, having regard in particular to the fact that several applications
raising serious human-rights issues were pending before the Court. It had
observed, inter alia, in inadmissibility decisions, that the applicants in ques-
tion, on account of their litigiousness – going as far as applying to an inter-

54 E. Myjer, Article 1 Protocol 1 and the Entitlement of Just Satisfaction, in H. Van-

denberghe (ed.), Property and Human Rights (2006), 101, 128.
55 President of the ECtHR, Practice Direction, supra note 15, 1, para. 2.
56 Ioannis Anastasiadis and Others v. Greece, ECtHR Application No. 45823/08,
Judgment of 18 April 2013.

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Julia Laffranque

national court – had contributed in particular to cluttering up the domestic

courts’ dockets.57 In the discussed case the sum originally claimed by the
applicants had been 554,65 euros and that sum had been awarded by a judg-
ment of the Administrative Court of Appeal and paid to the applicants fol-
lowing the dismissal by the Supreme Administrative Court of an appeal
lodged by the State. For the Court it was clear that the sum claimed by the
applicants before the Court under the head of non-pecuniary damage (6,000
euros each) was disproportionate to the sum awarded in the domestic pro-
ceedings.58
But the Court might not limit itself to an award for damages and might in
leading cases make recommendations on how systemic or structural prob-
lems should be alleviated in a particular State. These solutions might include,
for example, the construction of more prisons to ensure the treatment of
prisoners in accordance with Convention standards. It may happen that a
State prefers both politically and economically to pay the compensation
awarded in a specific judgment instead of building new prison facilities or
taking other measures foreseen in the decisions of the Court. A one-off so-
lution ‘evading by paying’ to a structural problem is clearly short-sighted.
Such issues need to be resolved systematically if further violations are to be
prevented.

G. Finding of a Violation as a Just Satisfaction?

As seen above, in some cases even the finding of a violation is considered

to be sufficient just satisfaction itself. This relates to the question of necessity
of damages and to the issue of State responsibility: in what cases and if at
all finding of a violation can constitute sufficient just satisfaction, in a way
of a “moral judgment”? Perhaps some more coherent approach of the Court
would be welcome in this respect.
Judge Ineta Ziemele has made clear her unease with the long-lasting ap-
proach of the Court to use the wording and to say that ‘the finding of a
violation of [the particular Article] constitutes sufficient just satisfaction’.
In her Concurring Opinion to the Court’s Grand Chamber judgment in the

57 Ibid., para. 42.

58 Ibid., para. 43.

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 Can’t Get Just Satisfaction

case of Vinter and Others v. United Kingdom,59 Ziemele has elaborated on

the issue of State responsibility under international law and has stated as
follows:
“Considering that Article 41 indeed addresses the competence of the Court to
determine the remedy for a violation, where a human rights court, in a dispute
between a State and an individual, establishes a violation and where the indi-
vidual concerned, an injured party, has claimed damages, the declaration that a
finding of a violation is sufficient satisfaction does not answer that claim. It may
well be that the Court considers that the compensation sought is unjustified and
thus decides not to award it. The Court should therefore say exactly that. The
finding of a violation will remain and will not go away with the decision not to
make an award in respect of damage. These will be very rare cases and there
might still be remedies available at domestic level. I therefore consider that the
Court needs to disentangle its language in situations in which it does not consider
it appropriate to make an award for damages.”60
In some delicate cases, e.g. concerning terrorists, this issue has come up, for
example in the case Maskhadova and Others v. Russia61 which concerned
the application to the Court of the wife and children of Aslan Maskhadov,
the military and political leader of the Chechen separatist movement, whose
body was found during one of the special operations conducted by Russian
Federal Security Service (FSB), complaining inter alia about the refusal of
the authorities to return the body of Maskhadov and claiming both pecuniary
and non-pecuniary damages. Furthermore, the applicants also requested that
the Court order the respondent Government to hand over the remains of
Aslan Maskhadov to his family or to disclose information regarding the cir-
cumstances of his burial, including the whereabouts of his grave. The Court
found a violation of the applicants’ right to protection of private and family
life and a violation for not providing effective remedy for the applicant, thus
of Article 8 of the Convention, taken alone and in conjunction with Article
13, but the Court dismissed the pecuniary claim by stating that it did not find
any causal link between the alleged pecuniary losses and the violations
found. As regards the applicants claim in respect of non-pecuniary damage,
the Court considered that, in the circumstances of the present case, the find-
ing of a violation constituted sufficient just satisfaction for the applicants

59 Concurring Opinion of Judge Ziemele, Vinter and Others v. United Kingdom, ECtHR
Application Nos. 66069/09 et al., Judgment (GC) of 9 July 2013.
60 Ibid., para. 6.
61 Maskhadova and Others v. Russia, ECtHR Application No. 18071/05, Judgment of
6 June 2013.

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Julia Laffranque

and did not elaborate on any of the other requests of applicants as far as the
body and burial of Maskhadov were concerned.62 However, costs and ex-
penses were still awarded, although not all of them, but reduced. There are
other examples of judgments where the award of damages has been made
dependent on the characteristics and behaviour of the applicants/their rela-
tives; for instance in an IRA case, where the Court found a violation of
Article 2 of the Convention, it observed that it was not clear from the appli-
cants’ submissions whether their claim for financial compensation was under
the head of pecuniary or non-pecuniary damages or both, but that in any
event, having regard to the fact that the three terrorist suspects who were
killed had been intending to plant a bomb in Gibraltar, the Court did not
consider it appropriate to make an award under this head and therefore dis-
missed the applicants’ claim for damages.63

H. Applicant in the Legal Bermuda Triangle: The Court, the National

Authorities Including Jurisdictions and the Council of Europe
Committee of Ministers

I. Restitutio in Integrum and Other Questions to be Answered Besides

Awarding Purely Damages: Issues Related to the Court’s (Active) Role
Under Article 46 of the Convention

In general, a judgment in which the Court finds a breach imposes a legal

obligation on the respondent State to put an end to the breach and make
reparation for its consequences in such a way as to restore the situation ex-
isting before the breach as much as possible.64
The principle of international law on reparation, restitutio in integrum,
initiated in 1928 by the Permanent Court of International Justice, confirmed
by the Court in its judgment in the case of Papamichalopoulos v. Greece65
(which has been re-elaborated in Guiso-Gallisay v. Italy66), enshrines the

62 Ibid., para. 258.

63 McCann and Others v. United Kingdom, ECtHR Application No. 18984/91, Judg-
ment (GC) of 27 September 1995, para. 219.
64 Brumărescu v. Romania, ECtHR Application No. 28342/95, Judgment (GC) [Just
Satisfaction] of 23 January 2001, para. 19.
65 Papamichalopoulos v. Greece (Article 50), ECtHR Judgment, supra note 5.
66 Guiso-Gallisay v. Italy, ECtHR Judgment, supra note 3.

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 Can’t Get Just Satisfaction

obligation on a State, that is responsible for a violation, to make reparation

for the consequences of the violation found. The importance of restitutio in
integrum has been addressed in the Dissenting Opinion of Judge Dean Spiel-
mann, current President of the Court, to the Grand Chamber judgment in
Guiso-Gallisay.67
Over time various questions related to restitutio in integrum have
emerged: The violation of which rights lead to restitutio in integrum or to
partial restitution, and in what situations? What are the limits of ‘possible’
in the process of restitution, and how should the restitution and compensation
relate to each other? Where should the relevant criteria be found and what
are the responsibilities of the Court and the Committee of Ministers in this
respect? What is the role played by the domestic authorities, notably courts
in this process?68
In this connection, one should not lose sight of that finding the right repa-
ration is in the discretion of the States as to the means, with freedom of choice
thereof and that the Court has limited powers in this respect.
Nevertheless the Court reiterates in its judgments that the most appropri-
ate form of redress in respect of a violation of Article 6 of the Convention
is to ensure that the applicants, as far as possible, are put in the position they
would have been in, had the requirements of Article 6 not been disregard-
ed.69
However, sometimes restitutio in integrum is impossible. The Court has
for instance considered that restitutio in integrum is prevented by the intrin-
sic nature of ‘wrong’ that consists of a deprivation of liberty contrary to
Article 5 paragraph 1.70
Sometimes the applicants themselves do not wish restitutio in integrum,
for example, in a case concerning internally displaced people, it appeared
from the parties’ submissions that the applicants were no longer willing to
return to their homes and land; thus, in these circumstances, the award of

67 Dissenting Opinion of Judge Spielmann, Guiso-Gallisay v. Italy, ECtHR Judgment,

supra note 3.
68 M. Lobov, Restitutio in Integrum in the System of the European Convention on
Human Rights, in O. Chernishova & M. Lobov (eds.), Russia and the European Court
of Human Rights: A Decade of Change (2014), 77, 81.
69 Piersack v. Belgium, ECtHR Application No. 8692/79, Judgment of 26 October
1984; Ayangil v. Turkey, ECtHR Application No. 33294/03, Judgment [Just Satis-
faction] of 24 September 2013, para. 12 (not entire restitution).
70 Guzzardi v. Italy, ECtHR Application No. 7367/76, Judgment of 6 November 1980,
para. 113.

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Julia Laffranque

compensation for the pecuniary loss in question seemed for the Court to be
the most appropriate just satisfaction for the applicants.71
In many judgments the Court confines itself to awarding just satisfaction
if it has found a violation of the Convention. But is this enough?
Sometimes the applicants themselves ask for something more than ‘just’
financial awards, such as seen above in Maskhadova72 for the return of the
body of their relative, or in Henry Kismoun v. France73 where the applicant
said that the only restitution would be to change his name. In situations like
this the Court might not always feel fit to answer to these kinds of requests
which lie out of its competences or which may be subject to many possible
solutions better chosen by the respondent State. For instance, the Court has
denied to order a fresh investigation when there has been lack of effective
investigation for breach of Article 2 of the Convention,74 because the Court
has no jurisdiction to issue directions, such as it cannot acquit persons con-
victed in domestic courts, but has only the possibility to find that they have
had no fair trial within the meaning of Article 6 of the Convention.
But sometimes the Court may itself feel a need to react promptly. Thus
granting of just satisfaction does not necessarily mean that the case is closed,
as damages are also not able to prevent violations in the future. Therefore
the Court is to award not just only satisfaction to the injured party for the
satisfaction to be ‘just’.
Under Article 46 of the Convention, the High Contracting Parties under-
took to abide by the final judgments of the Court in any case to which they
are parties, execution being supervised by the Committee of Ministers. It
follows, inter alia, that a judgment in which the Court finds a breach imposes
a legal obligation on the respondent State not only to pay those concerned
the sums awarded by way of just satisfaction, but also to choose – subject to
supervision by the Committee of Ministers – the general and/or, if appro-
priate, individual measures to be adopted in their domestic legal order to put

71 Doğan and Others v. Turkey, ECtHR Application Nos. 8803/02 et al., Judgment [Just
Satisfaction] of 13 July 2006, para. 49.
72 Maskhadova and Others v. Russia, ECtHR Judgment, supra note 61.
73 Henry Kismoun v. France, ECtHR Application No. 32265/10, Judgment of 5 De-
cember 2013, paras. 42-46.
74 Ülkü Ekinci v. Turkey, ECtHR Application No. 27601/95, Judgment of 16 July 2002,
para. 179.

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 Can’t Get Just Satisfaction

an end to the violation found by the Court and to redress, in so far as possible,
the effects thereof.75
The implementation of a judgment could also call for the adoption of
general measures by the respondent State, which remains, subject to moni-
toring by the Committee of Ministers, free to choose the means by which it
will discharge its legal obligation under Article 46 of the Convention, pro-
vided that such means are compatible with the conclusions set out in the
Court’s judgment.76
The Court has moved from an initially modest conception of its remedial
powers to an expansion of its authorities concerning non-pecuniary repara-
tions and pilot judgments.77 For the first forty years of the Court’s existence,
the more traditional approach, that the judgments of the Court are in principle
declaratory,78 functioned, broadly speaking, successfully. While execution
was not always rapid, there were very few examples of the process failing
completely. However, as the effects of the enlargement of the Council of
Europe began to be felt and following the entry into force of Protocol
No. 11,79 new problems emerged for which the traditional mechanism
seemed not always sufficiently well-equipped. Deep-seated structural prob-
lems and very serious violations of core rights became more frequent and
the repetitive issues had to be dealt with by means of pilot judgments.80 At
the same time, in a new political climate, there appeared to be growing re-
luctance on the part of some States (among them the ‘old democracies’) to
accept rulings by the Court on certain politically sensitive issues.81 These

75 See Scozzari and Giunta v. Italy, ECtHR Application Nos. 39221/98 & 41963/98,
Judgment (GC) of 13 July 2000, para. 249 and Nasrulloyev v. Russia, ECtHR Ap-
plication No. 656/06, Judgment of 11 October 2007, para. 95.
76 See Scozzari and Giunta v. Italy, ECtHR Judgment, supra note 75, para. 249 and
Broniowski v. Poland, ECtHR Application No. 31443/96, Judgment (GC) of 22 June
2004, para. 192.
77 Steiner, supra note 17, 18-19, paras. 1/42-1/45.
78 Marckx v. Belgium, ECtHR Judgment, supra note 18, para. 58.
79 Protocol No. 11 amending the Convention for the Protection of Human Rights and
Fundamental Freedoms (1 November 1998), reprinted in Council of Europe (ed.),
Non-Discrimination: A Human Right – Seminar to Mark the Entry Into Force of
Protocol No. 12 (2006), 113-116.
80 Broniowski v. Poland, ECtHR Judgment, supra note 76.
81 ECtHR, Seminar Background Paper – Implementation of the Judgments of the Euro-
pean Court of Human Rights: A Shared Judicial Responsibility? (2014), available at
http://www.echr.coe.int/Documents/Seminar_background_paper_2014_ENG.pdf
(last visited 31 January 2014), 2-3, para. 4.

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phenomena led the Court to envisage new solutions and to take a more
proactive role also in specifying concrete measures that should be taken in
cases of particular gravity or urgency.
Thus, although, in general, most of the time the Court has refused to in-
dicate concrete measures sought by applicants, there are however also cases
in which the Court has identified concrete measures. These specific measures
are then mainly stated under Article 46 of the Convention, rarely under an
operative part of a judgment.
In exceptional cases the nature of the violation found may be such that an
individual measure required to remedy it may be indicated by the Court. For
example the Court has prescribed very specific measures: in a case of med-
ical urgency it has ordered under Article 3 of the Convention a prisoner to
be released from unlawful and arbitrary detention at the earliest possible
date, because by its very nature, the violation found in the instant case did
not leave any real choice as to the measures required to remedy it,82 or be-
cause of finding a violation of a postponement of the date of the applicant’s
release following a change in case law after she was sentenced, the Court
considered it incumbent on the respondent State to ensure that the applicant
was released at the earliest possible date,83 or to release a newspaper editor
locked up in violation of freedom of expression84 or to obtain assurances
that prisoners transferred by the British army to the Iraqi authorities would
not face the death penalty.85
In the Grand Chamber judgment in the case Stanev v. Bulgaria the Court,
after finding a violation of Article 5 of the Convention (on account of the
failure of the respondent State to comply with the requirement that any de-
privation of liberty must be ‘in accordance with a procedure prescribed by
law’ and the lack of justification for the mentally ill applicant’s deprivation
of liberty and deficiencies in the assessment of the presence and persistence
of any disorders warranting placement in a social care home) stressed that
the authorities should ascertain whether the applicant wishes to remain in

82 Assanidze v. Georgia, ECtHR Application No. 71503/01, Judgment (GC) of 8 April

2004, paras. 202-203.
83 Del Rio Prada v. Spain, ECtHR Application No. 42750/09, Judgment of 21 October
2013, para. 138.
84 Fatullayev v. Azerbaijan, ECtHR Application No. 40984/07, Judgment (GC) of 22
April 2010, para. 177.
85 Al-Sadoon and Al-Mufdhi v. United Kingdom, ECtHR Application No. 61498/08,
Judgment (GC) of 2 March 2010, paras. 170-171.

98
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the home in question and in that case continue the placement in the social
care home in question or any other home for people with mental disorders
if it is established that the applicant consents to the placement. However,
should the applicant object to such placement, the authorities should re-ex-
amine his situation without delay in the light of the findings of the Court’s
judgment.86
In very exceptional circumstances of manifest illegality the Court has
been compelled to be imperative and to require specific individual measures
even under the operative head of its judgment, for instance in the case of
Oleksandr Volkov v. Ukraine where the Court in the operative part of its
judgment held that Ukraine shall secure the applicant’s reinstatement in the
post of judge of the Supreme Court at the earliest possible date.87
In some cases concerning family matters, specific measures are needed.
For example in the judgment in the case Gluhaković v. Croatia, the Court
under Article 46 of the Convention exceptionally, and given the urgent need
to put an end to the violation of the applicant’s right to respect for his family
life, also decided to issue the direction that Croatia had to ensure effective
contact between the applicant and his daughter at a time compatible with his
work schedule and on suitable premises.88
Another bundle of cases where specificities were made either under Ar-
ticle 41 or 46 of the Convention concern housing and eviction issues. In the
judgment in the case of Gladysheva v. Russia the Court ordered a specific
form of reparation and held under Article 41 of the Convention that the most
appropriate way of redressing the violations – specifically because no coun-
tervailing third-party individual interest was at stake – was to simply restore
the title of ownership to the applicant and to reverse the eviction order.89 As
well, the Court ordered 9,000 euros for non-pecuniary damages. In the part
of the judgment on just satisfaction, the Court re-emphasized specifically
the “central importance of the right to home in the Convention hierarchy of
rights”.90

86 Stanev v. Bulgaria, ECtHR Application No. 36760/06, Judgment (GC) of 17 January

2012, paras. 255-258.
87 Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11, Judgment of 9
January 2013, operative part, para. 9.
88 Gluhaković v. Croatia, ECtHR Application No. 21188/09, Judgment of 12 April
2011, paras. 87-89.
89 Gladysheva v. Russia, ECtHR Application No. 7097/10, Judgment of 6 December
2011, para. 106.
90 Ibid., para. 105.

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Julia Laffranque

In the case Iskandarov v. Russia the applicant submitted that the respon-
dent Government should be required to ensure his release from the Tajik
prison and his return to the Russian Federation; the Court however observed
in its judgment that the individual measure sought by the applicant would
require the respondent Government to interfere with the internal affairs of
another sovereign State and having regard to the circumstances of the case
at hand, the Court did not find it appropriate to indicate any individual mea-
sures to be adopted in order to redress the violations found.91
However, in its judgment in the case of Savriddin Dzhurayev v. Russia,
the Court indicated not only individual measures concerning the applicant,
who had been abducted and transferred to Tajikistan, but also emphasized
the need for general measures to prevent similar violations.92 While high-
lighting some specific areas of particular concern, the Court did not exclude
other avenues for adoption of general measures, some of which have already
been outlined in Council of Europe texts. The Court stated however that a
thorough assessment of all such matters goes beyond the Court’s judicial
function in view of the numerous legal, administrative, practical and security
issues involved. The Court therefore abstained at this stage from formulating
specific orders, considering that the indications provided would help to en-
sure the proper execution of the judgment under the supervision of the Com-
mittee of Ministers:
“It is for the Russian authorities to propose to the Committee of Ministers
concrete steps to secure the Convention rights concerned, and for the latter
to assess the effectiveness of the measures proposed and to follow up their
subsequent implementation in line with the Convention requirements, as
highlighted by the present judgment.” 93
Another example of the balanced approach of the Court is the pilot judg-
ment in the case concerning remand prison conditions, Ananyev and Others
v. Russia, where the Court instead of fixing for the respondent State a strict
time-limit to adopt the remedial measures, required the respondent govern-

91 Iskandarov v. Russia, ECtHR Application No. 17185/05, Judgment of 23 September

2010, paras. 160-162.
92 Savriddin Dzhurayev v. Russia, ECtHR Application No. 71386/10, Judgment of 25
April 2013.
93 Ibid., para. 264.

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 Can’t Get Just Satisfaction

ment to produce in a fixed time in co-operation with the Committee of Min-

isters a binding time-frame within which to adopt necessary measures.94
In the judgment in the case of Aslakhanova and Others v. Russia where
the Court found that the problem of non-investigation of disappearances
which had occurred in particular in Chechnya and Ingushetia between 1999
and 2006 was of a systematic nature, the Court left it to the Committee of
Ministers acting under Article 46 of the Convention to address the issue of
what and when in practical terms may be required of the respondent State
by way of compliance and also provided some guidance on the measures to
be taken.95
In the judgment in the case of Gülay Çetin v. Turkey, the respondent State
was required to take general measures to alleviate problems concerning
health-care for remand prisoners suffering from serious illness.96
The regular reports of the Parliamentary Assembly of the Council of Eu-
rope and its debates on the execution of the Court’s judgments contribute to
the implementation of the Court’s judgments, including awarding just sat-
isfaction, and of course above all the Committee of Ministers has an impor-
tant role in supervising the implementation of the Court’s judgments. The
Committee of Ministers has recognized that speedy and essential execution
of judgments of the Court is essential for the credibility and efficiency of the
Convention protection system as a whole,97 however, the Committee of
Ministers has the inherent limits of a political institution.
In some Contracting States steps have been taken to introduce special
mechanisms on the national level to ensure the implementation of the judg-
ments of the Court, e.g. the Justice and Human Rights Committee and the
Foreign Affairs Committee of the Polish Sejm agreed to set up a permanent
Subcommittee at their joint meeting on 5 February 2014 to deal with the
execution by Poland of the European Court of Human Rights’ judgments.98

94 Ananyev and Others v. Russia, ECtHR Application Nos. 42525/07 & 60800/08,
Judgment of 10 January 2012, operative part, para. 7.
95 Aslakhanova and Others v. Russia, ECtHR Judgment, supra note 13, para. 238.
96 Gülay Çetin v. Turkey, ECtHR Application No. 44084/10, Judgment of 5 March
2013.
97 Council of Europe (Committee of Ministers), Implementation of Decisions of the
European Court of Human Rights by Turkey, Communication Doc. 9754, 31 March
2003.
98 News at the website of the Ministry of Foreign Affairs of Poland http://mfa.gov.pl
(last visited 31 May 2014).

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Julia Laffranque

Pierre-Henri Teitgen had doubts during the drafting of the Convention

whether the “graver form of violation which consists in removing a funda-
mental law guaranteeing a specific freedom for the whole nation, from the
laws of a country in virtue of some law or decree, be redressed by awarding
a symbolic farthing damages to the citizens of the country?”.99
Although the Court does not act as a court of cassation and cannot send
a case ‘back’ to domestic courts or annul State action or national laws which
contradict with the Convention, it has given directions or even orders how
to amend/modify domestic legislation100 or how to interpret a national Con-
stitution in harmony with the Convention.101 In some cases the applicants
request the Court to order the respondent State to amend the law, for example
in Vallianatos and Others v. Greece, to extend the law on registered part-
nerships to the same-sex couples; the Court however awarded non-pecuniary
damages, but dismissed the remainder of the applicants’ claims for just sat-
isfaction.102

II. The Open-Ended Discussions on the Issue of Re-Opening

In many recent Turkish cases the Court has further considered under Article
41 of the Convention that the most appropriate form of redress would be the
retrial of the applicant in accordance with the requirements of Article 6 of
the Convention, should the applicant so request.103
However, re-opening is not always mentioned under the heading of Ar-
ticle 41 in the judgments of the Court: sometimes it is stipulated under the
relevant domestic law, sometimes it is mentioned under Article 41 with a
precision, if the applicant so wishes.

99 Verbatim Reports, 1950, 512. See Steiner, supra note 17, 8, para. 1/14.
100 Greens and M.T. v. United Kingdom, ECtHR Application Nos. 60041/08 &
60054/08, Judgment of 23 November 2010, operative part, para. 6.
101 Anchugov and Gladkov v. Russia, ECtHR Application Nos. 11157/04 & 15162/05,
Judgment of 4 July 2013, para. 111.
102 Vallianatos and Others v. Greece, ECtHR Application Nos. 29381/09 & 32684/09,
Judgment of 7 November 2013, para. 96.
103 Fazli Kaya v. Turkey, ECtHR Application No. 24820/05, Judgment of 17 September
2013, where the applicant’s right to legal assistance was violated, findings similar
to Dayanan v. Turkey, ECtHR Application No. 7377/03, Judgment of 13 October
2009.

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 Can’t Get Just Satisfaction

Indeed, re-opening of proceedings may represent the most efficient, how-

ever if not the only means of achieving restitutio in integrum; this applies
irrespective of whether a violation found by the Court concerns a substantive
Convention right or the right to a fair hearing104, thus also other Articles, not
as is the most general perception only Article 6 of the Convention. For ex-
ample the Russian courts have re-opened a case after a violation of Article
11 of the Convention was found in the Court’s judgment Republican Party
of Russia v. Russia,105 but on the contrary have not done so in an Article 10
violation case.106
Completely different approaches can also be taken depending on the case:
in Kudeshkina v. Russia107 the Court found a violation of Article 10 of the
Convention on account of freedom of expression of a judge who was dis-
missed, however no re-opening or reinstatement was mentioned in any part
of the Court’s judgment. On the other hand, in Oleksandr Volkov v.
Ukraine,108 where the Court found Articles 6, 8 and 13 of the Convention
violations, the judgment said expressis verbis in its operative part that
Ukraine shall secure the applicant’s reinstatement in the post of Supreme
Court judge.
Although in most of the Convention Contracting States re-opening is
possible, at least in criminal cases, unfortunately re-opening still remains
impossible in some Contracting States which do not have special or even
general rules interpreted in allowing the case to be re-opened if the Stras-
bourg Court finds a violation.109
Wherever it is possible the question of re-opening raises what counts in
the end effect: that the national courts have re-opened a case or that the
applicant has had access to national courts on the issue of re-opening and
that the domestic courts have decided whether to reopen or not and have
reasoned their decision well, even if it is negative.

104 See further Committee of Ministers, Recommendation No. R (2000) 2, 19 January

2000, reprinted in Council of Europe (Steering Committee for Human Rights) (ed.),
supra note 19, 651-652.
105 Republican Party of Russia v. Russia, ECtHR Application No. 12976/07, Judgment
of 12 April 2011; Russian Supreme Court, Decision of 23 January 2012.
106 Kudeshkina v. Russia, ECtHR Application No. 29492/05, Judgment of 26 February
2009.
107 Ibid.
108 Oleksandr Volkov v. Ukraine, ECtHR Judgment, supra note 87.
109 See Lobov, supra note 68, 97-100.

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Julia Laffranque

Another related issue is whether the applicants will come back if the case
was not re-opened on domestic level, which would start an endless story: a
ping-pong between the Court and domestic courts, noting that at the same
time re-opening cannot be regarded as a remedy to be exhausted at the
Court.
Sometimes measures taken by the respondent State to remedy a violation
found by the Court can raise a new problem undecided by the original judg-
ment.110 The Court has found that it was competent to examine a complaint
that a domestic court had dismissed an application to re-open proceedings
following the Court’s judgment because the dismissal constituted relevant
new information capable of giving rise to a fresh violation of the Conven-
tion,111 but this cannot be the case if the matter is substantially the same as
what has already been examined by the Court.
A separate topic is also the relationship between the Court and the Com-
mittee of Ministers, especially if a case is still pending before the Committee
and the applicant comes renewed to the Court arguing that the initial judg-
ment has not been complied with.
In an Estonian case, Veeber v. Estonia, where the applicant had been
convicted of tax evasion on the basis of provisions that had not yet been in
force at the time of the acts and which the Strasbourg Court found were in
violation of the Convention, the Supreme Court of Estonia recognized the
direct effect of the Court’s judgment, the applicant was retried and acquit-
ted.112 The legislation was amended afterwards to give the legal base in all
procedural laws for re-opening a case after a violation has been found in a
same or similar case by the Court.
Other positive examples of a dialogue between the Court and national
courts can be found in Estonia. In the judgment in the case Andreyev v.
Estonia the Court found that the applicant was deprived of his right to appeal
in the criminal proceedings directed against him as his legal-aid lawyer had
failed to lodge an appeal within the applicable time-limit and no subsequent

110 Emre v. Switzerland (No. 2), ECtHR Application No. 5056/10, Judgment of 11
October 2011; Mehemi v. France, ECtHR Application No. 53470/99, Judgment of
10 April 2003.
111 Verein gegen Tierfabriken Schweitz (VgT) v. Switzerland (No. 2), ECtHR Appli-
cation No. 32772/02, Judgment (GC) of 30 June 2009.
112 Veeber v. Estonia (No. 2), ECtHR Application No. 45771/99, Judgment of 21 Jan-
uary 2003; Estonian Supreme Court, Case No. 3-3-2-1-04, Judgment of 6 January
2004.

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measures adequately remedied the situation and found therefore a violation

of Article 6 (1) of the Convention on account of access to court.113 After-
wards the Supreme Court of Estonia in review proceedings decided to grant
the application to re-open the above-mentioned criminal case.114 The
Supreme Court in its judgment referred expressly to the Strasbourg Court’s
judgment. In the course of the re-opened criminal proceedings the Supreme
Court established that the additional punishment to expel the applicant was
invalid. In another case the Supreme Court re-opened the proceedings with
reference to the Andreyev judgment because there as well the applicant had
missed the cassation deadline due to the failure of a legal aid appointed
lawyer.115 This case had never gone to the Court, but the Criminal Law
Chamber of the Supreme Court of Estonia found that this case was similar
to the case of Andreyev and thus fell within the application of Article 367
(2) of the Estonian Code of Criminal Procedure which gives the right to ask
for a review of a case in a similar matter where the Court has found a vio-
lation. Also the Administrative Law Chamber of the Supreme Court of Es-
tonia has re-opened a case on the same grounds, referring in its decision
explicitly to the Andreyev judgment of the Court.116 In another administra-
tive law case the Supreme Court analysed whether the finding of a violation
by the Court in a particular case influenced the outcome of the case and
whether the situation can be remedied by other means than re-opening and
agreed in substance with the Court that the applicant, a prisoner, did exhaust
the pre-judicial remedy and his complaint to the prison authorities was suf-
ficiently clear. Therefore the Supreme Court decided that the re-opening was
well-founded and remitted the case to the court of first instance.117 However,
sometimes the Supreme Court of Estonia, although it does analyse in a de-
tailed way whether there are grounds for re-opening, refuses to re-open a

113 Andreyev v. Estonia, ECtHR Application No. 48132/07, Judgment of 22 November

2011.
114 Estonian Supreme Court, Case No. 3-1-2-2-12, Decision of 9 May 2012.
115 Estonian Supreme Court, Case No. 3-1-2-3-13, Decison of 14 March 2013.
116 Estonian Supreme Court, Case No. 3-3-1-61-12, Decision of 3 December 2012.
117 Estonian Supreme Court, Case No. 3-3-2-2-12, Decision of 18 March 2013 (con-
cerned the judgment of the Court in the case of Julin v. Estonia, ECtHR Application
No. 16563/08, Judgment of 29 May 2012).

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Julia Laffranque

case, stressing that re-opening will only be justified if the violation found by
the Court could influence the outcome of the criminal case.118
The Court is currently faced with the problem of re-opening in the case
Bochan v. Ukraine (No. 2), pending before the Grand Chamber, which con-
cerns a violation of Article 6 (1) of the Convention.

I. Peculiarities of Inter-State Cases

The applicability of the just satisfaction rule of Article 41 of the Convention

to inter-State applications lodged under Article 33 of the Convention is a
delicate and complicated question. In the case of Ireland v. United King-
dom the Court in its judgment indirectly admitted that Article 50 (now 41)
of the Convention could be applicable in certain terms, although it was not
dealt with in this case, because the applicant Government did not request the
Court to award monetary compensation.119 The Court has never expressly
declared that the just satisfaction rule does not apply to inter-State cases,
neither has it declared the opposite, yet the drafting history of the Conven-
tion, some scholarly opinions, general principles of diplomatic protection
and of reparations in public international law, as well as the Rules of the
Court (which invite the applicant State to indicate any claims of just satis-
faction (Rules 46 (e) and 60)) indicate that in principle Article 41 of the
Convention should apply also to inter-State cases, although the issue remains
open.120 But even in inter-State cases Article 41 of the Convention should
serve for the benefit of individuals, not of a State, so even if just satisfaction
would be afforded to a State, it should be done for the assistance of individual
victims. In some cases the applicant State might complain about the viola-
tions of basic human rights of its nationals, one or more concrete, namely
identified persons by another Contracting Party with the primary goal to
vindicate individual rights and legitimate interests of the persons concerned
and fall thus under the traditional logic of diplomatic protection. In some

118 See, e.g., Estonian Supreme Court, Case No. 3-1-2-1-13, Decision of 11 April 2013
(request to re-open the case after the violation was found In Leas v. Estonia, ECtHR
Application No. 59577/08, Judgment of 6 March 2012 was not accepted).
119 Ireland v. United Kingdom, ECtHR Application No. 5310/71, Judgment of 18 Jan-
uary 1978, paras. 245-246.
120 See, J.-P. Costa, The Provision of Compensation under Article 41 of the European
Convention on Human Rights, in D. Fairgrieve et al. (eds.), Tort Liability of Public
Authorities in Comparative Perspective (2002), 3, 6.

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 Can’t Get Just Satisfaction

other cases the applicant State might complain about more general issues,
e.g. systemic problems in another Contracting Party with the primary goal
to vindicate the public order of Europe.
The Court was deliberating for one of the first times about the issue of
just satisfaction in an inter-State case in Cyprus v. Turkey which in the main
judgment was adjourned since the issue of Article 41 was then not ready for
decision.121 On 12 May 2014 the Court delivered its Grand Chamber judg-
ment on the question of just satisfaction in the case Cyprus v. Turkey and
held by majority that Turkey was to pay Cyprus 30,000,000 euros in respect
of the non-pecuniary damage suffered by the relatives of the missing persons,
and 60,000,000 euros in respect of the non-pecuniary damage suffered by
the enclaved Greek-Cypriot residents of the Karpas peninsula. These
amounts are to be distributed by the Cypriot Government to the individual
victims under the supervision of the Committee of Ministers. Thus the Court
applied just satisfaction in an inter-State case observing that the logic of just
satisfaction rule derived from the principles of public international law re-
lating to State liability and the obligation of the violating State to make
reparation in an adequate form. Bearing in mind the specific nature of Article
41 of the Convention in relation to the general rules and principles of inter-
national law, the Court could not interpret that provision in such a narrow
and restrictive way as to exclude inter-State applications from its scope. The
overall logic of Article 41 of the Convention was not substantially different
from the logic of reparations in public international law. However, according
to the very nature of the Convention, it was the individual and not the State
who was directly or indirectly harmed and primarily ‘injured’ by a violation
of one or several Convention rights which is why just satisfaction afforded
in an inter-State case had always to be done for the benefit of individual
victims.122
Another interesting example of a situation where many States could be
involved in awarding damages is to be found in the judgment of the Court
in the case Trevalec v. Belgium.123 The Court found that there had been a

121 Cyprus v. Turkey, ECtHR Application No. 25781/94, Judgment of 10 May 2001.
122 Cyprus v. Turkey , ECtHR Application No. 25781/94, Judgment (GC) [Just Satis-
faction] of 12 May 2014. Judge Casadevall in his Partly Concurring and Partly
Dissenting Opinion questioned the applicability of Article 41 on inter-State cases.
123 Trévalec v. Belgium, ECtHR Application No. 30812/07, Judgment of 14 June 2011
and Trévalec v. Belgium, ECtHR Application No. 30812/07, Judgment [Just Satis-
faction] of 25 June 2013.

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Julia Laffranque

substantive violation of Article 2 of the Convention as Belgium had failed

in its positive obligation to protect the right to life of the applicant, a French
national. The matter of Article 41 of the Convention was reserved. The ap-
plicant obtained compensation from a French compensation fund for victims
of terrorism and other offences. The Court, coming back to the just satis-
faction issue, had thus to determine its approach to the award of just satis-
faction, given that reparation had been paid by a third-party State, which had
covered both pecuniary and non-pecuniary damage sustained as a results of
the acts for which Belgium had been held liable. The Court found this French
award reasonable, however, it awarded in addition 50,000 euros and stipu-
lated that that sum could not be recovered by the French authorities, thus the
Court directed that a Contracting State, not party to the proceedings, should
not claim back the award made to the applicant even though the applicant
had received compensation from that State.124

J. Save the Best for Last or Even Better for Others to Decide

We have seen that awarding damages can be very complicated indeed.

Therefore, when it comes to the point that the Court after having on the one
hand found no problem to find a violation, and on the other hand struggles
to find how to decide on damages, its practice is to reserve the question of
damages for later, also hoping sometimes that the parties will in the mean-
time agree themselves upon the award in the framework of a friendly set-
tlement. Thus, occasionally, if the Court finds that the question of damages
is not ready for decision at the time when the judgment about the violation
is made, the Court reserves the decision on damages to a later stage also
enabling the parties to find a solution if possible.
Where difficult questions of assessment arise, it may be adjourned for
further consideration; it can also be adjourned when the applicant pursues
redress at a domestic level. The applicant cannot however be required to
institute further domestic proceedings in order to obtain just satisfaction for
a violation found by the Court.
The Court, has for example in the case of Barberà, Messegué and Jabardo
v. Spain, noted that there existed under Spanish law a remedy making it

124 Trévalec v. Belgium, ECtHR Judgment [Just Satisfaction], supra note 123, para.
27.

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possible to obtain compensation in the event of the malfunctioning of the

system of justice. However the Court did not hold itself bound to stay the
proceedings relating to the applicants’ claims since if the internal law of the
respondent State ‘allows only partial reparation to be made’ for the conse-
quences of the violation found, and if after having exhausted domestic reme-
dies without success before complaining in Strasbourg of a violation of their
rights, then doing so a second time, successfully, to secure the setting aside
of the convictions, and finally going through a new trial, the applicants were
required to exhaust domestic remedies a third time in order to be able to
obtain just satisfaction from the Court, the total duration of the proceedings
would be hardly consistent with the effective protection of human rights and
would lead to a situation incompatible with the aim and object of the Con-
vention.125
In another case the Court found that Italian domestic law allows reparation
to be made for the pecuniary consequences of the breach found by the Court
and considered that the claim of just satisfaction should be dismissed in
respect of pecuniary damage.126
If a friendly settlement has been reached, the Court will verify that the
settlement has been reached on the basis of respect for human rights ac-
cording to Article 37 (1) of the Convention.
In the judgment in the case Fabris v. France the Grand Chamber held on
the merits that there had been a violation of Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1, concerning the heritage rights
of a person born of adultery. At that time the question of just satisfaction had
not been ready for decision and the Court reserved it for decision at a later
stage and invited the Government and applicant to submit their observa-
tions.127 On 3 May 2013 the Government informed of an agreement reached
between the parties for the sum of 165,097.77 euros, and on 28 June 2013
the Court found the agreement equitable.128

125 Barberà, Messegué and Jabardo v. Spain, ECtHR Application Nos. 10588/83 et
al., Judgment of 13 June 1994, para. 17.
126 Lo Tufo v. Italy, ECtHR Application No. 64663/01, Judgment of 21 April 2005,
paras. 66-69 and Concurring Opinion of Judge Spielmann, joined by Judge Lou-
caides.
127 Fabris v. France, ECtHR Application No. 16574/08, Judgment (GC) of 7 February
2013.
128 Fabris v. France, ECtHR Application No. 16574/08, Judgment (GC) [Just Satis-
faction and Striking Out] of 28 June 2013.

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Julia Laffranque

As far as e.g. pilot judgments are concerned, reserving the question of

Article 41 of the Convention is an option; the Court has done both: decided
in the principal judgment and reserved. Here much depends on the nature of
individual measures required by the Court and how these relate to the general
measures foreseen in the judgment. When the applicant’s just satisfaction
claim relates to money, there has been seen no reason why the matter has to
be reserved, however if an applicant’s situation is linked to the need for the
adoption of a remedy at the domestic level, Article 41 of the Convention
issue could be reserved.
Further examples of recent cases where a just satisfaction issue has been
reserved and later solved by the Court include the judgments made in Ayangil
v. Turkey129, Négrépontis-Giannisis v. Greece130 and Pelipenko v. Rus-
sia131; in the latter the Court held that within three months from the date on
which the judgment becomes final, the respondent State shall secure, by
appropriate means, the enforcement of the judgment of 25 July 2012 made
by the respective Russian Town Court in the applicants’ favour, and to bear
the costs of the applicants’ accommodation, pending the enforcement of that
judgment.

K. Conclusions and Vision for the Future

Just satisfaction is not a right, it is the Court’s discretion. The emphasis is

not on providing a mechanism for enriching successful applicants but rather
on the Court’s role in making public and binding findings of applicable hu-
man rights standards.
The award of damages is not purely of a technical nature. Besides the
concrete compensation for the applicant, it could also be seen as a message
from the Court of how important the protected right – which was violated –
is. How serious was the violation, how long did it take, and also many other

129 Ayangil v. Turkey and Others, ECtHR Application No. 33294/03, Judgment of 6
December 2011 and Ayangil v. Turkey and Others, ECtHR Judgment [Just Satis-
faction], supra note 69 (not entire restitution).
130 Négrépontis-Giannisis v. Greece, ECtHR Application No. 56759/08, Judgment of
3 May 2011 and Négrépontis-Giannisis v. Greece, ECtHR Application No.
56759/08, Judgment [Just Satisfaction] of 5 December 2013.
131 Pelipenko v. Russia, ECtHR Application No. 69037/10, Judgment of 2 October
2012 and Pelipenko v. Russia, ECtHR Application No. 69037/10, Judgment [Just
Satisfaction] of 16 January 2014.

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factors such as what is the position/relation of victims in the case and the
victims’ own behaviour could be taken into account. Therefore it is no sur-
prise that one can also find Separate Opinions of judges of the Court con-
cerning the award of damages.
Moreover, sometimes it seems as if the issue of just satisfaction goes
beyond the case at hand and the awarding of damages or remedying the
situation could also have a preventive aspect to a certain extent to exert
certain pressure to the respondent State or any other State with similar prob-
lems in order to solve their issues for the future. On the other hand the Court
will take into account the real ability of the respondent State to fulfil its
financial obligations in favour of the applicant and this also in terms of the
global crisis; nevertheless there are no concessions as far as the level of
human rights protection is concerned.
Furthermore, the execution of the judgments of the Court does have a
much greater significance than merely the paying of compensation. The
Court has for some years now taken a new proactive approach and has found
it increasingly necessary to assist the Committee of Ministers of the Council
of Europe and the respondent Government in the identification of the reme-
dial action required by its judgment. Therefore one can see many new cat-
egories emerging under Article 41 of the Convention, even if the possibility
of re-opening for instance is not always directly mentioned; and there is a
link between Articles 41 and 46 of the Convention in cases calling for spe-
cific and general measures to e.g. overcome structural problems.
In more general terms: the awarding of damages policy certainly has an
impact on the Court’s authority. National courts have much wider enforce-
ment powers than those provided by the Convention, even though the courts
in democratic States, where rule of law prevails, do not really need to worry
about the enforcement of their judgments as this is done self-evidently with-
out necessarily requiring the interference of a court.
Whether any improvement is needed can be decided by evaluating how
the case law of the Court concerning Article 41 of the Convention has been
understood by the parties, implemented by the States and accepted by the
domestic courts.
Some suggestions have been made that the Strasbourg Court would have
more time for other cases and therefore would no longer be under criticism
concerning lacking Convention criteria for granting compensation, if it
would shift the responsibility to the national legal order, national courts and
relieve the Court of the functions of awarding compensation and making
detailed, individualized financial assessments of actual prejudice in each

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case, especially in property cases.132 This has been recommended to be ac-

complished by writing into the Convention an obligation for the Contracting
States to make available at national level some easily accessible mechanism
for making full and rapid reparation for any violation of the Convention that
has been found in a judgment by the Court. To remove, in principle, the
exercise of assessment of just satisfaction from the remit of the Court, has
been seen as a means of discouraging the large numbers of applicants who
are motivated by the prospect of obtaining full financial compensation and
in order to divest the Court of a heavy and time-consuming task that serves
no good purpose in the general interest.133
Of course all new ideas that would serve above all the better protection
of rights guaranteed by the Convention and perhaps less or only as far as this
is for that purpose necessary, the convenience of the Court by managing with
its caseload and effectiveness of its work, merit detailed thought and further
reflection, also as far as the principle of subsidiarity is concerned.
A move in that direction has been made on the initiative of the Court in
relation to one category of cases, namely repetitive applications, in the form
of the pilot judgment procedure.
However, despite the difficulties the Court is facing in terms of just sat-
isfaction questions and because of the ten points raised above, the Court
should not delegate all of its powers in respect of awarding damages, as this
would reduce somehow the impact of the judgments and make its judgments
to a certain extent toothless, even more so because many times Articles 41
and 46 of the Convention are inter-related and should be discussed together.
The national courts, especially the highest courts, are not necessarily better-
equipped to undertake the kind of valuation exercise necessary to make
awards in the sense of Article 41 of the Convention; they also are faced with
similar problems to the Court and would seek help and guidance, and they
do not have the same position and Convention background as the Court, even
if technically they might be better placed.

132 For example, post-Loizidou cases, Loizidou v. Turkey (Article 50), ECtHR Appli-
cation No. 15318/89, Judgment (GC) of 18 December 1996 and Loizidou v.
Turkey, ECtHR Application No. 15318/89, Judgment (GC) [Just Satisfaction] of
28 July 1998. See European Law Institute, Statement on Case-Overload at the
European Court of Human Rights (2012), available at http://www.europeanlawin
stitute.eu/fileadmin/user_upload/p_eli/Publications/S-1-2012_Statement_on_Cas
e_Overload_at_the_European_Court_of_Human_Rights.pdf (last visited 31
January 2014), 47.
133 European Law Institute, supra note 132, 47.

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A less radical solution has been proposed that a special section at the Court
would deal only with the issues of just satisfaction separately from the judg-
ments.134 There is already a just satisfaction division at the Court, but the
judgments on merits and just satisfaction are usually not decided separately
by separate judges.
For example, in Estonia, on the national level in civil proceedings the
separation of the decision of costs resulted in amendments to the Code of
Civil Procedure according to which there are two possibilities to solve the
issue of costs: either the first instance court decides on the amount of the
procedural expenses to be compensated for in money together with the merits
and the next court levels will deal also with the costs in their respective
judgments or the first instance court decides the division of procedural ex-
penses and leaves the issue on the amount of the procedural expenses to be
decided once the judgments are in force. Then the first instance court deter-
mines the costs of the whole proceedings within a reasonable time.135
Some fruitful thoughts were exchanged also at the Court’s annual seminar
in the framework of the opening of the new judicial year on 31 January 2014
which concentrated on the implementation of the judgments of the Court and
considered it as a shared judicial responsibility between the Court and the
national courts. The implementation of judgments including the issue of Ar-
ticle 41 of the Convention was also extensively discussed at the Conference
on the long-term future of the European Court of Human Rights in Oslo, 7-8
April 2014.136

134 E. Lambert Abdelgawad, Is There a Need to Advance the Jurisprudence of the

European Court of Human Rights With Regard to the Award of Damages, in this
volume, Ch. B. I.
135 Law on Amendments to the Code of Civil Procedure and other Laws No. 545
[Tsiviilkohtumenetluse seadustiku ja teiste seaduste muutmise seadus, 545 SE],
adopted 7 May 2014, published at e-RT on 21 May 2014, with entry into force on
1 January 2015. It is also important to note that the Supreme Court of Estonia has
decided on 4 February 2014 (Case No. 3-4-1-29-13) that it is unconstitutional to
leave the decision making on the costs to assistant judges/judicial clerks because
according to Article 146 of the Estonian Constitution justice shall be administered
solely by the courts and deciding about the costs is part of rendering justice and
should be done by the judges themselves.
136 See Council of Europe, Proceedings of the Oslo Conference, Directorate General
of Human Rights and Rule of Law (2014), esp. 113-188.

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Julia Laffranque

Nevertheless the Court will itself need to contribute through its clear and
consistent judgments as an effective international court to a real just satis-
faction which could serve as an enriching example for national courts.

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Is There a Need to Advance the Jurisprudence of the European
Court of Human Rights with Regard to the Award of Damages?

Elisabeth Lambert Abdelgawad

A. Introduction

According to Article 41 of the European Convention of Human Rights

(ECHR), “[i]f the Court finds that there has been a violation of the Conven-
tion or the Protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court shall,
if necessary, afford just satisfaction to the injured party”.1 As the European
Court of Human Rights (thereinafter: ‘ECtHR’ or ‘the Court’) has repeated
in many cases, “[t]he Court enjoys a certain discretion in the exercise of that
power, as the adjective ‘just’ and the phrase ‘if necessary’ attest”.2 The pri-
ority of the obligation to restore the status quo ante, in accordance with the
Articles on Responsibility of States for Internationally Wrongful Acts of the
International Law Commission,3 has been underlined in the Scozzari and
Giunta v. Italy case:
“[U]nder Article 41 of the Convention the purpose of awarding sums by way of
just satisfaction is to provide reparation solely for damage suffered by those
concerned to the extent that such events constitute a consequence of the violation
that cannot otherwise be remedied”.4

1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4

November 1950, Art. 41, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14)
[ECHR].
2 The Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and
Others v. Bulgaria, ECtHR Application Nos. 412/03 & 35677/04, Judgment [Just
Satisfaction] of 16 September 2010, para. 23.
3 Articles on Responsibility of States for Internationally Wrongful Acts, November
2001, Art. 36, Yearbook of the International Law Commission (2001), Vol. II (2), 26,
28.
4 Scozzari and Giunta v. Italy, ECtHR Application Nos. 39221/98 & 41963/98, Judg-
ment of 13 July 2000, para. 250 (emphasis by the author). See also Savriddin Dzhu-
rayev v. Russia, ECtHR Application No. 71386/10, Judgment of 25 April 2013, para.
252: “Article 41, [...] is only designed to make reparation for such consequences of a
violation that cannot otherwise be remedied.”

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Elisabeth Lambert Abdelgawad

The importance of the restitutio in integrum and likewise the subsidiary na-
ture of the financial compensation to be awarded under Article 41 are also
subjects of consensus. Yet, Article 41 is probably one of the provisions which
have raised the most important difficulties to judges over the years. Because
of the ever-increasing number of cases submitted to the Court (the total sum
awarded in the judgments delivered in 2012 amounted to 176,798,888 euros,
including nearly 120 million for Italy), and because of the evolving case-law
on Article 46, the determination of the financial compensation to be awarded
has become a new, fundamental judicial and economic concern. What needs
to be noted at this stage is that applicants, probably more so than in the past,
try to convince the Court to order the government to adopt individual mea-
sures in addition to awarding just satisfaction. Recent examples of this in-
clude the Kurić and Others v. Slovenia and the Oleksandr Volkov v.
Ukraine cases.5
First, several paradoxes deserve consideration. Particularly paradoxical
is the fact that the Court has considerably changed its jurisprudence on Ar-
ticle 46 during the last fifteen years, noting that in some cases, in order to
help the State to redress the violation or because there is no freedom of choice
for the State to implement the judgment, or due to the urgency of the mea-
sures to be adopted, it may recommend some individual and/or general mea-
sures. Regarding individual measures, this was the case in only very few
cases under Article 41 (former Article 50) for some 50 years.6 Moreover,
although the European system is under constant reform, Article 41 does not
seem to be a concern today for the Registrar, the majority of the judges and
the States. It has become obvious that the Court tends to consider its mission
under Article 41 to be essentially secondary.7 Tellingly, the Registrar of the
Court adopted a very low profile after the Group of Wise Persons’ Report
recommended setting up a full-fledged department in charge of Article 41,

5 Kurić and Others v. Slovenia, ECtHR Application No. 26828/06, Judgment of 26 June
2012, para. 401; Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11,
Judgment of 9 January 2013.
6 See, for instance, Yakisan v. Turkey, ECtHR Application No. 11339/03, Judgment of
6 March 2007.
7 The Court noted that “the awarding of sums of money to applicants by way of just
satisfaction is not one of the Court’s main duties but is incidental to its task of ensuring
the observance by States of their obligations under the Convention. Seen in this light,
there can be no doubt of the greater importance of Article 46 of the Convention in
comparison with Article 41.” Salah v. The Netherlands, ECtHR Application No.
8196/02, Judgment of 6 July 2006, para. 50.

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 Is There a Need to Advance with Regard to the Award of Damages?

and that never happened. Today only one person is responsible for giving
assistance and expertise to lawyers preparing the judgments and the role of
this administrator is not at all to advance the jurisprudence of the Court on
this matter; he sees his mission as making sure that the Court’s current prac-
tice on Article 41 has been followed in all judgments.
Nevertheless, it is worth noting that all recent studies on just satisfaction
have unanimously criticized the Court’s practice for its lack of coherence,
transparency, predictability, and even for being unjust and arbitrary.8 This
dissatisfaction has been voiced not only by researchers but also by judges of
the Strasbourg Court in many of their separate opinions. In the Guiso-Gal-
lisay v. Italy case, Judge Spielmann interpreted the Court’s practice under
Article 41 as “reduced in an arbitrary fashion”.9 The Department in charge
of the implementation of the judgments shares the view that some reforms
are needed. While the diagnosis appears to be clear, few suggestions for
change have been put forward until now.
However, it is important to mention that at least three changes have been
brought to the case-law of the Court regarding Article 41 during the last 15
years. Firstly, regarding the rates of compensation, the practice has evolved
so that the sums awarded have been increased with regard to Articles 2, 3,
4 (the core rights), while rates have decreased with regard to other Articles,
in particular Article 6. Secondly, when dealing with cases brought by many
applicants at the same time, the Court has considered it useful to establish
proportionate levels of compensation, and therefore to decrease the sum
awarded to each applicant,10 on the grounds that the damage suffered by each
individual is reduced when they bring their case collectively. Thirdly, the

8 J.-F. Flauss, Conclusion générale, in J.-F. Flauss & E. Lambert Abdelgawad (eds),
La Pratique d’indemnisation par la Cour européenne des droits de l’homme (2011),
329, 331 [Flauss, Conclusion générale]; P. Tavernier, La contribution de la Cour
européenne des droits de l’homme relative au droit de la responsabilité internationale
en matière de réparation – Une remise en cause nécessaire, Revue trimestrielle des
droits de l’homme (2007) 72, 945, 952.
9 Dissenting Opinion of Judge Spielmann, Guiso-Gallisay v. Italy, ECtHR Application
No. 58858/00, Judgment [Just Satisfaction] of 22 December 2009, para. 16.
10 Arvanitaki-Roboti and Others v. Greece, ECtHR Application No. 27278/03, Judg-
ment of 18 May 2006; Arvanitaki-Roboti and Others v. Greece, ECtHR Application
No. 27278/03, Judgment (GC) of 15 February 2008; Kakamoukas and Others v.
Greece, ECtHR Application No. 38311/02, Judgment of 22 June 2006 and
Kakamoukas and Others v. Greece, ECtHR Application No. 38311/02, Judgment
(GC) of 15 February 2008.

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Elisabeth Lambert Abdelgawad

other change is connected to the transparency of the Court’s practice; indeed,

while the Court has not published guidelines on rates of compensation, as it
had been recommended in Lord Woolf’s 2005 report,11 it has, in some cases
(Article 6: length of proceedings; Article 5: length of arbitrary detention),
indicated to the States how the sums should be calculated. This practice
needs to be supported as it is in conformity with the principle of subsidiarity;
it helps States and other actors (in particular the applicant and his/her rep-
resentative) to better understand and therefore abide by the judgment, which
makes it a valuable tool to improve the legitimacy and implementation of
the judgments.
As the award of damages is an extremely broad topic, this chapter will
neither address costs and expenses nor discuss the potential impact the EU’s
adhesion to the ECHR may have on Article 41. I take as an assumption that
Articles 41 and 46 are closely interconnected and that the amounts of money
awarded are only one of numerous measures that can be adopted in order to
redress the violation. When considering whether changes should occur re-
garding Article 41, the Court’s vision is important; on this matter, I do not
question the current view of some judges who argue that the judgments must
be implemented in order to redress the victim’s damages and to avoid the
repetition of the same infringements. But whereas the Court has developed
a new jurisprudence on Article 46 in the last few years, it appears that these
changes have had no impact on the way the Court determines itself under
Article 41. It seems that a better correlation between Article 41 and Article
46 is urgently needed. This chapter will therefore concentrate on two main
questions: first, how can a better correlation between Articles 41 and 46 be
achieved? Second, how can the award of damages be adjusted to the evolving
economic and political environment?

11 The Right Honourable The Lord Woolf et al., Review of the Working Methods of
the European Court of Human Rights, available at http://www.echr.coe.int/Library-
Docs/Lord%20Woolf-2005-EN1587818.PDF (last visited 31 January 2014), 68:
“The Court should also publish guidelines as to rates of compensation. This will
assist and encourage Parties to resolve cases domestically.”

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 Is There a Need to Advance with Regard to the Award of Damages?

B. How to Better Correlate Articles 41 and 46: A Need for some

Institutional and Substantial Changes

It is very well known that the wording and the spirit of Article 41 have not
been very often complied with, except with regard to Article 1 Protocol 1,
and that the Court, when considering whether it is going to award a sum of
money, takes as a hypothesis that a restitutio in integrum should be possible
and that the impossibility of restitutio in integrum follows from the very
nature of the injury.12 Moreover, it does not take into account the opportunity
for the applicant to get a partial or an absolute restitutio in integrum. It is
true that such an assessment is difficult to be made in each case. The possi-
bility to get a form of restitutio in integrum might emerge only at the stage
of the implementation of the judgment and will be more easily assessed by
the Department in charge of supervising this implementation.13 The other
reasons relate both to the institutional architecture, the Committee of Min-
isters (thereinafter: ‘CM’) being in charge of supervising the implementation
of the judgment in general, and to the reluctance of the Court to ask the State
details about the possibility to adopt measures in order to redress the viola-
tion. The only practice in conformity with the wording and spirit of Article
41 is the one developed in connection with Article 1 Protocol 1, by which
the Court orders either the restitution of the land/property or financial com-
pensation in case the former is impossible. But the Guiso-Gallisay v. Italy
judgment has departed from this case law irrespective of the principles of
international law, as Judge Spielmann very clearly argued in his Dissenting
Opinion.
This practice was also the one adopted by the former European Commis-
sion facing an increasing number of applications; the European Commission
started recommending some financial compensation even before the CM
could examine the case.14 The practice in other matters ever since is such
that the reasoning has been reversed.15 This case-law, which has been crit-

12 De Wilde, Ooms and Versyp (Vagrancy) v. Belgium, ECtHR Application Nos.

2832/66 et al., Judgment [Just Satisfaction] of 10 March 1972, para. 20; M. de Salvia,
Le principe de l’octroi subsidiaire des dommages-intérêts: d’une morale des droits
de l’homme à une morale simplement indemnitaire?, in Flauss & Lambert Abdel-
gawad (eds.), supra note 8, 11.
13 F. Sundberg, Le principe de l’octroi subsidiaire des dommages-intérêts – côté Comité
des ministres, in Flauss & Lambert Abdelgawad (eds.), supra note 8, 31.
14 Sundberg, supra note 13, 34.
15 Ibid., 39.

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Elisabeth Lambert Abdelgawad

icized for many years, becomes more problematic and irrelevant today as
the Court has developed a new jurisprudence under Article 46 recommend-
ing individual and general measures. Thus some institutional and substantial
changes need to occur because no real correlation exists when considering
Articles 41 and 46. Even the practice direction on just satisfaction claims
issued on 28 March 2007 does not mention the other individual measures
the victim may be offered in order to redress his/her damage when deciding
to award a just satisfaction.16

I. Institutional Changes

Firstly, the assessment of the level of compensation must not be performed

by a national organ, but still by the Court itself, mainly for two reasons: the
State has already been given the opportunity to compensate the victim but
has failed to do so; there also exists a risk that the national compensation
would be considered as insufficient by the victim. When delivering its opin-
ion on the Wise Persons’ Report, the Court explained its reluctance towards
the idea of having this task performed by a national organ: “The Court is not
persuaded, however, that this is a task that would as a rule, be more efficiently
handled by a judicial body at national level”, because of the complexity of
the matter and the Court “recalls that a specialized just satisfaction division
was established towards the end of 2006 in order to assist the Court with this
aspect of its jurisdiction”.17
Secondly, would it be adequate or not to have one separate section spe-
cialized in deciding on the award of damages (what the Report of the Group
of Wise Persons18 recommended and what was supposed to happen at the
Court from 2006) instead of the current Service inside the Registrar with one
administrator? Or would it be more appropriate to have the question dealt

16 President of the ECtHR, Practice Direction: Just Satisfaction Claims, available at

http://www.echr.coe.int/Documents/PD_satisfaction_claims_ENG.pdf (last visited
31 January 2014), 1, para. 2 [President of the ECtHR, Practice Direction].
17 ECtHR, Opinion of the Court on the Wise Persons’ Report, available at http://
www.echr.coe.int/Documents/2007_Wise_Person_Opinion_ENG.pdf (last visited
31 January 2014), 4, para. 6.
18 Council of Europe (Committee of Ministers) (CM), Report of the Group of Wise
Persons to the Committee of Ministers (November 2006), reprinted in Council of
Europe (Steering Committee for Human Rights) (ed.), Reforming the European
Convention on Human Rights: A Work in Progress (2009), 609, 621, para. 94.

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 Is There a Need to Advance with Regard to the Award of Damages?

by the same section, or by his/her President, and if need be, in a separate

judgment? Rule 75 (1) of the Rules of the Court is general enough to cover
various procedures as the Court is free to “fix the further procedure” after
noting that the question is not ready for decision under Article 41.19 The first
option is arguably better in that it would ensure more coherence. This leads
to the third aspect.
Thirdly, should we support the practice of the ECtHR separating its judg-
ment on the violation in one judgment, and deciding on Articles 41 and 46
in another judgment? The position adopted by the majority of the Court and
the registrar is that the Court has neither time nor means to proceed this way.
Historically the Court has seemed to be very sensitive to the individual mea-
sures the State would adopt before deciding on just satisfaction, as is attested
by the Piersack and De Cubber v. Belgium cases.20 But then such a practice
was more grounded on the lack of information available in order to calculate
the pecuniary damage, in particular in cases concerning Article 1 Protocol
1. This point relates to the former one, as should one section of the Court be
dedicated to Articles 41 and 46, such a practice would certainly be extended
to more cases. It is not unusual that the Court decides to reserve the case
only with regard to the calculation of the pecuniary damage.21 In the same
vein, why couldn’t it decide on Article 46 (general and individual measures
of restitution) and reserve the examination of the case on Article 41?
It is obvious that the decision of the Strasbourg Court to reserve the ex-
amination of the question concerning just satisfaction may have various
grounds. For instance, in the Muminov v. Russia case, the Court reported
having
“no means of renewing contact with the applicant. Nor was there any prospect
of making any other arrangements which would allow execution of any just
satisfaction award made by the Court. Indeed, since the applicant was and re-
mains within the jurisdiction of another State, which is not a High Contracting

19 ECtHR, Rules of Court, Rule 75 (1), available at http://www.echr.coe.int/Docu-

ments/Rules_Court_ENG.pdf (last visited 31 January 2014), 40.
20 Piersack v. Belgium, ECtHR Application No. 8692/79, Judgment [Just Satisfaction]
of 26 October 1984; De Cubber v. Belgium, ECtHR Application No. 9186/80, Judg-
ment [Just Satisfaction] of 14 September 1987.
21 In Oleksandr Volkov v. Ukraine, ECtHR Judgment, supra note 5, para. 211, the Court
considers that “the question of compensation for pecuniary damage is not ready for
decision” while, at the same time, awarding the applicant the sum of 6,000 euros for
non-pecuniary damage. See also Kurić v. Slovenia, ECtHR Judgment, supra note 5,
operative part, para. 10.

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Elisabeth Lambert Abdelgawad

Party to the Convention, the execution of a just satisfaction award may prove
difficult in the circumstances of the case.”22
The terms of Article 75 of the Rules of the Court are general enough in order
to cover events in which the Court considers that the procedure should be
reopened or that another individual measure should be taken and that, were
such a measure not taken by the State, the financial compensation awarded
by the Court could be increased. What Judge Mosler suggested in his Sepa-
rate Opinion under the Vagrancy case in 1972 was that the Court “decide[s]
according to the circumstances of each individual case to what extent it will
await the result of the applicants’ claim before the national authorities”.23
The report of the examination under Article 41 should at least occur when
the applicants have brought their financial request before national organs
and when such proceedings are still pending in accordance with the principle
of subsidiarity. The reply given by the Court in the Salah v. The Nether-
lands case seemed clear.24 According to the principle of subsidiarity, it seems
that the Court in Strasbourg should suspend its decision on Article 41 as long
as the national procedure for receiving compensation has not been complet-
ed. In the Lo Tufo v. Italy case, the Court, with regard to the pecuniary dam-
age, concludes that “Italian domestic law allows reparation to be made for
the pecuniary consequences of the breach and considers that the claim of
just satisfaction should be dismissed in respect of pecuniary damage”.25 But
other judgments delivered in particular in the Josan v. Moldova case (with
the Dissenting Opinion of Judge Pavlovschi26), and in the Ernst and Others

22 Muminov v. Russia, ECtHR Application No. 42502/06, Judgment [Just Satisfaction]

of 4 November 2010, paras. 14 & 15.
23 Separate Opinion of Judge Mosler, De Wilde et al. v. Belgium, ECtHR Judgment,
supra note 12, para. 7.
24 See Salah v. The Netherlands, ECtHR Judgment, supra note 7, paras. 66 & 81. The
applicant finally received 2,500 euros.
25 Lo Tufo v. Italy, ECtHR Application No. 64663/01, Judgment of 21 April 2005, para.
69.
26 Judge Pavlovschi considers that the Court should have suspended its decision on
Article 41 in the light of what the Grand Chamber did in the similar Brumarescu
case: “[t]his decision makes the national judicial proceedings devoid of purpose and
in my view constitutes both a serious deviation from the principle of ‘subsidiarity’
and interference with the proper administration of justice in Moldova.” See Partly
Dissenting Opinion of Judge Pavlovschi, Josan v. Moldova, ECtHR Application No.
37431/02, Judgment of 21 March 2006.

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 Is There a Need to Advance with Regard to the Award of Damages?

v. Belgium case27 (with the Separate Opinion of Judge Lemmens) did not go
in the same direction. On this aspect, it seems obvious that the ECtHR has
not always had a coherent attitude.28 In the Dacia S.R.L. v. Moldova case,
despite the fact that proceedings were currently pending at the domestic lev-
el, the Court noted that “the Supreme Court of Justice, without giving any
reasons in this respect, decided to send the case back for a full re-hearing,
rather than annulling the impugned judgments and itself making orders con-
sequential on the annulment” and for these reasons decided to proceed with
the case.29
Nevertheless the fact that the applicants do not always inform the CM or
the Court of proceedings launched at the national level in order to get redress
may be problematic. Cooperation would thus be necessary not only between
the CM and the Court but also between the European and the national organs.
In addition to these institutional reforms, I will now suggest a number of
substantial changes.

II. Substantial Changes

Firstly, how shall we proceed when the expected individual measures have
not been adopted by the respondent State, or have been adopted after a con-
siderable delay? An example of this is the Hulki Gunes case, where reopen-
ing the case proved impossible.30 Should the State allow another individual

27 Ernst and Others v. Belgium, ECtHR Application No. 33400/96, Judgment of 15

July 2003.
28 Iatridis v. Greece, ECtHR Application No. 31107/96, Judgment of 25 March 1999;
Iatridis v. Greece, ECtHR Application No. 31107/96, Judgment [Just Satisfaction]
of 19 October 2000; Baybasin v. The Netherlands, ECtHR Application No. 13600/02,
Judgment of 6 July 2006 and Baybasin v. The Netherlands, ECtHR Application No.
13600/02, Judgment [Just Satisfaction] of 7 June 2007. In the opposite direction,
Mikheyev v. Russia, ECtHR Application No. 77617/01, Judgment of 26 January
2006.
29 Dacia S.R.L. v. Moldova, ECtHR Application No. 3052/04, Judgment [Just Satis-
faction] of 24 February 2009, 10, para. 45.
30 Sundberg, supra note 13, 43-44, discussing this case, writes: “La mesure individuelle
recommandée dans Gencel (ou une autre mesure semblable) est-elle à la fin échange-
able contre un dédommagement pour tort moral comme dans l’affaire De Cubber
[...], ou est-elle à la place indispensable? Si elle est indispensable, mais n’intervient
qu’après une longue attente, cela affecte-t-il le tort moral occasionné? A qui de
décider ces questions et en vertu de quelle procédure? Quel rôle pour le CM?”

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measure and/or financial compensation as things did not happen as previ-

ously scheduled? If the Court reserves its judgment on Article 41 after rec-
ommending reopening under Article 46, this setback may be counterbal-
anced by the increase of the financial compensation and the pressure put on
the State to reopen the case. Another solution would consist in repeating the
method adopted in the Claes v. Belgium case, where the Court ordered either
the reopening of the case or the payment of a certain amount, an alternative
more in conformity with international law and the reading of Article 41
ECHR; such an alternative had already been offered in the field of Article 1
Protocol 1.31 As the Court has increasingly developed the recommendations
under Article 46 regarding both individual and general measures, as a result
of such changes, the Court should consider measures to be allowed both
under Articles 41 and 46. A specialized section of the Court (as suggested
in the preceding section) could request additional notes in particular by
NGOs and other actors in order to better consider which measures could be
adopted by the State to compensate the victims. The L. v. Lituania case is
also interesting in terms of coordinating measures to be adopted under Ar-
ticles 41 and 46 as
“[t]he Court [...] considers that the applicant’s claim for pecuniary damage
would be satisfied by the enactment of the subsidiary legislation at issue in the
present case within three months of the present judgment becoming final in
accordance with Article 44 § 2 of the Convention. However, should that prove
impossible, and in view of the uncertainty about the medical expertise currently
available in Lithuania, the Court is of the view that this aspect of the applicant’s
claim could be satisfied by his having the final stages of the necessary surgery
performed abroad and financed, at least in part, by the respondent State. Con-
sequently, as an alternative in the absence of any such subsidiary legislation,
the Court would award the applicant EUR 40,000 in pecuniary damage.”32

31 Papamichalopoulos v. Greece (Article 50), ECtHR Application No. 14556/89, Judg-

ment of 31 October 1995. More recently: Brumarescu v. Romania, ECtHR Appli-
cation No. 28342/95, Judgment [Just Satisfaction] of 23 January 2001 and Dacia
S.R.L. v. Moldova, ECtHR Judgment, supra note 29, para. 40.
32 L. v. Lituania, ECtHR Application No. 27527/03, Judgment of 11 September 2007,
para. 74.

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Although I remain unconvinced that the pecuniary damage of the applicant

could be compensated by adopting the required legislation,33 I consider this
approach relevant with regard to a global overview of the measures to be
adopted by the Court in order to permit restitutio in integrum and with regard
to a better correlation between Articles 41 and 46. Indeed, in practice, the
applicant was awarded the sum of money and the case is still pending as the
law has not yet been changed. Actually, such a coordination also occurs when
the Court has to approve friendly settlements and unilateral declarations; the
literature on this topic has revealed that “a wide variety of individual non-
pecuniary measures were agreed on by the parties”, so “when properly han-
dled, friendly settlements offer to the parties much more flexibility than or-
dinary proceedings”.34 It is worth adding that the Court previously refused
to close a case on the grounds that the unilateral declaration limited itself to
compensating the victim without foreseeing the reopening of the case, so
that the applicant was refused the restitutio in integrum.35
In the same vein, I suggest that the Court should broaden the range of
measures recommended to States in light of the Inter-American Court of
Human Rights’ response to very serious cases of violations.36

33 This opinion is shared by Judge Fura-Sandström: “Looking at the case at hand, I

would make the following observations. The applicant claimed the amount of 57,408
euros for pecuniary damage in respect of medical fees, loss of earnings, hormone
treatment and the cost of the eventual completion of gender reassignment surgery
abroad [...]. The applicant further alleged that, even if the legal gaps in Lithuanian
law were eventually filled, there would still be no prospect of completing the gender
reassignment surgery in Lithuania within a reasonable time.” Partly Dissenting
Opinion of Judge Fura-Sandström, L. v. Lituania, ECtHR Judgment, supra note 32.
She opposes the recommendation made by the Court to the State to pass such legis-
lation. “For these reasons I would have preferred the Court simply to order a payment
in respect of pecuniary damage, and only as a secondary measure to indicate the need
to pass new legislation.” Ibid.
34 H. Keller et al., Friendly Settlements Before the European Court of Human Rights,
Theory and Practice (2010), 11.
35 Vojtechova v. Slovakia, ECtHR Application No. 59102/08, Judgment of 25 Septem-
ber 2012, para. 48: “The Court notes that, following its above finding under Article
6 § 1, the domestic law entitles the applicant to challenge the conclusions of domestic
courts by a request for a reopening of the proceedings. That possibility constitutes
the most appropriate redress in the circumstances of the case.”
36 See E. Lambert Abdelgawad & K. Martin-Chenut (eds.), Réparer les violations
graves et massives des droits de l’homme: la Cour interaméricaine, pionnière et
modèle? (2010).

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Secondly, there is a lack of coherence in the judgments where the Court

refuses to award just satisfaction arguing that concluding to a violation of
the ECHR is enough to remedy the damage; this case-law has been heavily
criticized in the literature, in particular in the study I co-supervised with Prof.
Jean-François Flauss;37 more transparency is needed and the Court would
gain in legitimacy by making its strategy/policy in this matter explicit. As
Judge Casadevall rightly noted in his Partly Dissenting Opinion in the
Swierzko v. Poland case, as an exception this position must be justified:
“d’un côté, les requérants ont le droit à quelque chose de plus qu’à une simple
victoire morale ou à la satisfaction d’avoir participé à l’enrichissement de la
jurisprudence de la Cour et, de l’autre côté, la violation constatée doit comporter
aussi un avertissement pour l’État qui a enfreint la Convention. Pour cela la voie
adéquate est l’application de l’article 41”.38
Such a practice is probably more relevant in interstate cases. In some cases,
in connection with the violation of Article 6 (1) because of a condemnation
of the applicant by a dependent and/or partial Tribunal, the Court adopted
such an approach by considering that a reopening of the case in that particular
instance should restore the victims’ rights.39 But there is absolutely no cer-
tainty for the victim that the case will actually be reopened. This position is
also similar to the one adopted in cases where the Court found a substantial
violation of Articles 8, 9, 10 or 11, considering that measures have to be

37 S. Touzé, Les limites de l’indemnisation devant la Cour EDH: le constat de violation

comme satisfaction équitable suffisante, in Flauss & Lambert Abdelgawad (eds.),
supra note 8, 127, 129. See also Partly Dissenting Opinion of Judge Bonnello,
Aquilina v. Malta, ECtHR Application No. 25642/94, Judgment of 29 April 1999.
38 Partly Dissenting Opinion of Judge Casadevall, Swierzko v. Poland, ECtHR Appli-
cation No. 9013/02, Judgment of 10 January 2006, para. 2. Moreover, the same day,
the Court awarded Just Satisfaction for a victim of the same violation.
39 Han v. Turkey, ECtHR Application No. 50997/99, Judgment of 13 September 2005,
para. 40. See also SC Marolux SRL and Jacobs v. Romania, ECtHR Application No.
29419/02, Judgment of 21 February 2008, para. 52; Lungoci v. Romania, ECtHR
Application No. 62710/00, Judgment of 26 January 2006, para. 56; Popovitsi v.
Greece, ECtHR Application No. 53451/07, Judgment of 14 January 2010. Judges
Spielmann and Malinverni share the view that the best redress would be to reopen
the case and that the Court should have recommended it. Partly Dissenting Opinion
of Judge Spielmann & Malinverni, Popovitsi v. Greece, ECtHR Judgment, supra
this note.

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taken by the State,40 or even have already been promised by the State. It is
worth adding that this practice of the Court occurs in connection with non-
pecuniary damage, without any link with the position adopted with regard
to pecuniary damage.41
What also seems problematic is the position adopted by the Court, for
instance in the Paudicio v. Italy case, refusing to suspend the proceedings
but awarding no compensation for the non-pecuniary damage under the
grounds that a financial compensation is possible under national law.42
Thirdly, the Court should always take into account the remedies already
offered by the national organs, and should consequently reduce the amount
of compensation required in order to avoid illegal enrichment of the appli-
cant, as it did in Tomasic v. Croatia.43 This conclusion should be extended
to the award of other measures of restitutio in integrum. If the Court usually
refers to the sums already paid to the applicant, the impact on the calculation
of the compensation is not always clear. The Court gives the impression that
it wants to remain completely free to award just satisfaction. In the Trevalec
v. Belgium case, the Court, considering the sums already awarded by the
national organs, awarded the applicant an additional sum of 50,000 euros
for non-pecuniary damage.44 In this case, two Judges (Jociene and Raimon-
di), in their Dissenting Opinion, shared the view that the Court did not have
to award an additional sum of money. In the Ioannis Anastasiadis and Others

40 In particular Yasar Kemal Gökceli v. Turkey, ECtHR Application Nos. 27215/95 &
36194/97, Judgment of 4 March 2003. See also S. and Marper v. United Kingdom,
Application Nos. 30562/04 & 30566/04, Judgment of 4 December 2008. Touzé,
supra note 37, 143.
41 Touzé, supra note 37, 150.
42 Paudicio v. Italy, ECtHR Application No. 77606/01, Judgment of 24 May 2007, para.
59.
43 Tomasic v. Croatia, ECtHR Application No. 21753/02, Judgment of 19 October
2006, para. 13.
44 Trevalec v. Belgium, ECtHR Application No. 30812/07, Judgment [Just Satisfaction]
of 25 June 2013, para. 25-27.

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v. Greece case,45 the Court revealed that the applicants had received the sum
awarded by the national Courts and refused to allow an additional sum. Nev-
ertheless, the refusal of the Court was based on other arguments, so the Court
left the door open to the possibility of obtaining an additional compensation.
In this judgment the Court explained that the sum requested was dispropor-
tionate to the sums allocated by Greek courts; it added that the case con-
cerned well-established case-law on duration of procedure under Article 6
(1). Another case is also worth mentioning: in the Oyal v. Turkey application,
the government opposed the applicants’ request of financial compensation
for pecuniary damages on the grounds that “the domestic courts had already
awarded the applicants sufficient compensation for the damage incurred by
them”.46 Nevertheless, no reference was made by the ECtHR to the sum
awarded by the Court of Cassation for non-pecuniary damage and the Court
awarded 300,000 euros in respect of past pecuniary damage. The applicants
had requested the sum of 300,000 euros for non-pecuniary damage at the
European level.47 What seems important to be noted in this recent case is
that, as Judge Sajó mentioned in his Opinion,
“[c]ontrary to G.N. v. Italy, the present judgment goes into an evaluation of the
redress provided. It finds that the non-pecuniary damage awards received by the
applicants covered only one year’s treatment and medication for the first appli-
cant.”48
Fourthly, the Court should in more and more cases indicate the obligation
for the State to take individual (and not only general) measures when re-

45 Ioannis Anastasiadis and Others v. Greece, ECtHR Application No. 45823/08,

Judgment of 18 April 2013, para. 43. “En l’espèce, la Cour note que la somme
réclamée à l’origine par les requérants était de 554,65 euros, et que cette somme a
été effectivement allouée par l’arrêt no 10053/2004 de la cour administrative d’appel,
et versée aux requérants suite au rejet du pourvoi de l’Etat par le Conseil d’Etat [...].
Malgré cela, les requérants ont saisi la Cour d’une requête uniquement fondée, sous
deux aspects, sur la durée de la procédure, une question tranchée à maintes reprises
par la Cour y compris en ce qui concerne l’Etat défendeur. Il est, de plus, évident
que la somme réclamée par les requérants devant la Cour au titre du dommage moral
est sans proportion avec la somme allouée dans la procédure interne [...]. Partant, la
Cour considère que le constat de la violation des articles 6 § 1 et 13 constitue en
l’espèce une satisfaction équitable suffisante.”
46 Oyal v. Turkey, ECtHR Application No. 4864/05, Judgment of 23 March 2010, para.
100.
47 Ibid., paras. 71-73.
48 Partly Concurring and Party Dissenting Opinion of Judge Sajó, Oyal v. Turkey,
ECtHR Judgment, supra note 46.

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quired in addition to the payment of just satisfaction, without expressly in-

dicating which measure is required in conformity with the principle of sub-
sidiarity and the freedom of means for the State to implement the judgment.
It has done so in very few cases and usually says nothing, so that a State may
infer from the lack of recommendation or order (for instance to reopen a
case) that no individual measure is required. Such an indication would help
the CM to supervise the implementation of the judgment and leave the door
open to several options as the implementation process may evolve after the
Court has delivered its judgment.
In addition to these changes, this author would also like to stress the im-
portance of reconsidering the amounts of money allocated to applicants.

C. Some Changes Needed with Regard to the Amount of Money to be Paid

by the States

First, the practice of the ECtHR shows clearly that the Strasbourg Court has
not been very generous or coherent regarding the compensation of non-pe-
cuniary damage, thus strongly contrasting with the practice of the Inter-
American Court of Human Rights. Regarding non-pecuniary damage, the
ECtHR should be less strict in considering the causal link between the vio-
lation and the damage. On these aspects, the author would like to refer to the
book published under the supervision of Professor Flauss and herself. It is
obvious that the ECtHR has a wider margin of appreciation with regard to
evaluating the non-pecuniary damage, but it should nevertheless justify and
explain how the assessment is made. It is also true that as the Court held in
a recent judgment (Oyal v. Turkey) by reference to the national judgment in
the same case, “the sorrow and pain suffered by the [applicants] cannot be
compensated even if huge amounts were awarded”.49 In this case, where the
Court found a violation of Articles 2, 6 (1) and 13 ECHR, the Court awarded
the applicants, jointly, 78,000 euros for non-pecuniary damage (the case
concerning the first applicant’s infection with the HIV virus during blood
transfusions at a State hospital when he was a newborn). At the same time,
the Court awarded the sum of 300,000 euros for pecuniary damage; in his
Partly Dissenting and Partly Concurring Opinion, Judge Sajó considered that
“[i]t is hard to determine what is covered by the EUR 300,000 pecuniary

49 Oyal v. Turkey, ECtHR Judgment, supra note 46, para. 106.

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Elisabeth Lambert Abdelgawad

award of the Court, but in view of the claim for medical treatment it looks
ultra petitum”.50
Second, more consistency in the case-law of the Court would be wel-
comed. As the Court held in the Guiso-Gallisay v. Italy judgment,
“[t]he criteria to be used in assessing damages for the purposes of Article 41
should satisfy the requirements of uniformity, simplicity, clarity and foresee-
ability. In particular, they must be such as to create a serious and effective means
of dissuasion with regard to the repetition of unlawful conduct of the same type,
without however assuming a punitive function.”51
Some authors have already urged the Court to publish the method it uses to
calculate the financial just satisfaction.52 The Court has started disclosing
some scales, following a recommendation made in the report of the Group
of Wise Persons in 2005. However, there remains a need for more trans-
parency in order to make judgments more legitimate and therefore easily
accepted and implemented by the States, even if in some circumstances, as
the Court held in the Mikheyev v. Russia case, a “precise calculation”, even
regarding pecuniary damage, may be difficult to assess.53
Third, it seems that the Court should decrease the financial burden for
some States in light of the economic and financial crisis; the award of dam-
ages should be proportioned to the GDP of the country. It is obvious that
15,000 euros for an applicant living in Moldova and 15,000 euros awarded
to an applicant in France do not have the same meaning. Regarding this
matter, Paul Tavernier wonders whether the introduction of proportionality
might contradict the principle of human dignity as stated in the UDHR.54
Introducing such a proportionality does not contradict the fact that violations
of the prohibition of torture in France and in Moldova have the same value
in Europe, which means that the Court must keep the same standard for all
States when deciding whether there has been an infringement of Article 3
and whether the classification of torture is relevant or not, which it precisely
does. But remedying torture in Moldova and in France certainly does not

50 Partly Concurring and Party Dissenting Opinion of Judge Sajó, Oyal v. Turkey,
ECtHR Judgment, supra note 46 & 48 (note 4).
51 Guiso-Gallisay v. Italy, ECtHR Judgment, supra note 9, para. 85.
52 Tavernier, supra note 8, 961-962.
53 Mikheyev v. Russia, ECtHR Judgment, supra note 28, para. 158.
54 Tavernier, supra note 8, 953.

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involve exactly the same amounts of money under Article 41.55 Some States
and judges have already asked the Court to proportionate the just satisfaction
to the country’s economic environment, a position which has not really been
supported by the Court until now.56 But the time has come to reconsider this
position as the economic and financial crisis poses a new challenge to the
European system. Indeed, the fairer the rules, the better they are implement-
ed.
In addition to this suggestion, my earlier recommendation on broadening
the range of measures suggested or ordered by the Court under Article 46 in
connection with serious violations also applies here. I would strongly urge
the ECtHR to consider other general measures under Article 46 in light of
the case-law developed by the Inter-American Court of Human Rights, for
at least two reasons: – the ECtHR has to face increasing numbers of massive
and/or serious violations; – following the economic and financial crisis in
Europe, some States have been experiencing very serious difficulties and
could more easily adopt symbolic measures. I have in mind the following
measures: apologies by the State in interstate cases; and when it is respon-
sible for committing serious violations under Articles 2, 3, 4 and 5 (public
apologies in the media), renaming places or streets in memory of the victims;
rehabilitative measures for victims of serious violations such as torture. This
is what the Court appeared to do in the Alakhanova and Others v. Russia
case concerning the lack of investigation of enforced disappearances in the
Northern Caucasus. But measures such as medical or psychological rehabil-
itation have never been taken into serious consideration by the Court.
Fourth, and this is certainly a more controversial issue, is there a need to
put pressure on a respondent government with exemplary damages?
Awards of damages are normally limited to fulfilling the purpose of com-
pensating the victim for an infringement of the law. The question to be ad-
dressed here is whether an additional mechanism should be put in place to
impose financial sanctions on States which consistently fail to implement

55 See Dissenting Opinion of Judge Pavlovschi, Halomiov v. Moldova, ECtHR Appli-

cation No. 30649/05, Judgment of 7 November 2006: “I consider that this amount,
25,000 euro is far too excessive and does not take into consideration either the real-
ities of life in the Republic of Moldova or our previous case-law.”
56 Swierzko v. Poland, ECtHR Judgment, supra note 38, para. 37: “A titre subsidiaire,
il demande à la Cour d’apprécier le montant de la satisfaction équitable sur la base
de sa jurisprudence dans des affaires similaires et à la lumière de la conjoncture
économique interne.”

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Elisabeth Lambert Abdelgawad

Strasbourg Court judgments. The aim of such financial sanctions (exemplary

damages or penalties) would be to sanction the wrongdoer and, as a deterrent
measure, to prevent non-compliance with judgments. The finality is to safe-
guard the erga omnes effect and continued effectiveness of the ECHR sys-
tem. The CM is overburdened by more and more repetitive cases, because
of the reluctance of some States to implement a previous judgment delivered
by the Court. This is the reason why such a measure must clearly be distin-
guished from the award of a just satisfaction to the applicant, and why the
concept of aggravated damages is not appropriate.57 As the term ‘punitive’
seems to have a criminal dimension, the concept of exemplary damages will
be used here.
The exemplary amount would have to be paid by the State not to the
victim, but to the Human Rights Trust Fund; otherwise, the victim of an
infringement could be unjustifiably enriched, given that he/she will already
be receiving compensation through the amount of just satisfaction. It clearly
seems that whereas just satisfaction is decided on the legal basis of Article
41, Article 46 may give the Court the implied competence to condemn the
State to pay exemplary damages when the State refuses to abide by a judg-
ment. The extra sum of money could be paid by the State to the Fiduciary/
Trust Fund on Human Rights. This has its own logic as such a Fund is used
to assist States which have difficulties in implementing structural cases.
Historically the ECtHR has always refused to condemn States to pay
‘punitive damages’, despite requests to that effect by applicants.58 The Prac-
tice Direction on Just Satisfaction Claims Issues in 2007 repeats that
“the purpose of the Court’s award in respect of damage is to compensate the
applicant for the actual harmful consequences of a violation. It is not intended
to punish the Contracting State responsible. The Court has therefore, until now,
considered it inappropriate to accept claims for damages with labels such as
‘punitive’, ‘aggravated’, or ‘exemplary’.”59

57 Albert Dawson and Dudley Dawson v. Irish Brokers Association, Irish Supreme
Court, Decision of 6 November 1998, 8: [W]hile aggravated damages are distinct,
they are still meant to compensate the plaintiff and so they should be regarded as a
sub-head of compensatory damages awarded to the plaintiff. On the other hand, ex-
emplary (or punitive) damages are a separate category. They are not compensatory
at all.”
58 Lustig-Prean and Beckett v. United Kingdom, ECtHR Application Nos. 31417/96 &
32377/96, Judgment of 27 September 1999, paras. 22-23; İkincisoy v. Turkey, ECtHR
Application No. 26144/95, Judgment of 27 July 2004, para. 149.
59 President of the ECtHR, Practice Direction, supra note 16, 2, para. 9.

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The ECtHR reaffirmed its reluctance to order ‘punitive damages’ in the

Guiso-Gallisay v. Italy case, stating that damages under Article 41 must
“create a serious and effective means of dissuasion with regard to the repe-
tition of unlawful conduct of the same type, without however assuming a
punitive function”. 60 It nevertheless admits that damages must have a dis-
suasive effect, which leaves the door open to the payment of increased
amounts of money. In the Dacia SRL v. Moldova case, it held, in response
to the applicants, that
“[t]he Court must proceed on the assumption that the Government will comply
with its judgment in good faith. For that reason it cannot accept the applicant
company’s claim that it should be awarded daily and monthly damages to be
paid by the Government for the period between the adoption of the present
judgment and its full enforcement. Instead, the Court will apply its standard
approach.”61
In the Trevalec v. Belgium case, Judge Pinto de Albuquerque interpreted the
award of 50,000 euros for non-pecuniary damages in addition to the sums
awarded at the national level, as ‘punitive damages’, adding that the ECtHR
was right to award such ‘punitive damages’. According to this judge, the just
satisfaction under Article 41, per se, has a punitive finality. In the Oferta
Pius SRL v. Moldova case, the amount of the just satisfaction seems to have
been increased because of aggravated circumstances.62
In 2000 the Assembly made the proposal to introduce a system of as-
treintes to be imposed on States that persistently fail to execute Strasbourg
Court judgments. Such fines could be imposed regularly on a daily, weekly
or monthly basis for a delay in performing their obligation under Article 46.
In its Report on Execution of Judgments of the ECtHR, the rapporteur Erik
Jurgens clearly advised that astreintes would be an adequate measure:

60 Guiso-Gallisay v. Italy, ECtHR Judgment, supra note 9, para. 85.

61 Dacia S.R.L. v. Moldova, ECtHR Judgment, supra note 29, para. 57.
62 Oferta Pius SRL v. Moldova, ECtHR Application No. 14385/04, Judgment [Just
Satisfaction] of 12 February 2008. See the comment made by Flauss, Conclusion
générale, supra note 8, 336 (note 36): “[A] l’appui de la réparation de 25.000 euros
accordée au titre du préjudice moral, la Cour européenne met en exergue, non seule-
ment l’aggravation de la situation de la société requérante résultant de l’attitude
désinvolte de la Cour suprême considérant qu’il n’y avait plus lieu d’exécuter un
jugement définitif rendu en faveur de ladite société, mais aussi la violation de l’article
34 de la Convention à raison de la tentative de l’Etat défendeur d’empêcher la société
requérante d’agir à Strasbourg en déclenchant contre elle des poursuites pénales.”

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Elisabeth Lambert Abdelgawad

“[i]n order to avoid having recourse to the supreme sanction and to suspension
and withdrawal of membership, one could foresee, either by revising the Con-
vention or simply by a resolution of the Committee of Ministers, [...] which the
Committee of Ministers, after formal notice, could decide to apply to a State
which persistently refused to execute a judgment of the Court.”63
The Parliamentary Assembly of the Council of Europe reiterated this opinion
several times.64 According to Mr Christopher Chope, the newly appointed
Rapporteur, the current intergovernmental work, which has to consider the
introduction of “more effective measures” for the “non-timely implementa-
tion of Court judgments would represent a good opportunity for the States
Parties to properly examine the Assembly’s proposal”.65 This proposal has
ever since been supported by other actors. The Parliamentary Assembly’s
proposal to introduce a system of astreintes, as summarized in document
GT-GDR-E (2013) 002, may be read in conjunction with the imposition of
daily penalties in the EU law. Such a parallel makes sense today as the EU
should be a party to the ECHR in the coming months. Indeed Article 260 (2)
of the Treaty on the Functioning of the European Union (TFEU)66 provides
for a mechanism which imposes financial sanctions on Member States that
do not implement judgments of the CJEU. Article 260 (3) provides the same
for failure to transpose Directives. These provisions have been revealed to
be very effective in practice and in a large majority of cases they have even
had a dissuasive effect.
The current system has in my opinion shown its limitations in its inability
to put pressure on States that refuse to implement a judgment. Additional

63 Council of Europe (Parliamentary Assembly) (PACE), Execution of Judgments of

the European Court of Human Rights, Doc. 8808, available at http://assem-
bly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=9013&Language=en 8 (last vis-
ited 31 January 2014), para. 94.
64 PACE, Implementation of Decisions of the European Court of Human Rights, Rec-
ommendation 1546 (2002), available at http://assembly.coe.int/Main.asp?link=/
Documents/AdoptedText/ta02/EREC1546.htm (last visited 31 January 2014);
PACE, The Future of the Strasbourg Court and Enforcement of ECHR Standards:
Reflections on the Interlaken Process, Doc. AS/Jur (2010) 06, 21 January 2010). In
this last document (3, para. 10), Mrs Herta Däubler-Gmelin noted once more: “And
what about the introduction of the system of ‘astreintes’ (a fine for delay in perfor-
mance of a legal obligation) to be imposed on states that persistently fail to comply
with Court judgments.”
65 PACE, Draft Protocol No. 15 amending the Convention for the Protection of Human
Rights and Fundamental Freedoms, Doc. 13154, 28 March 2013, 4-5, para. 3.
66 The consolidated version of the TFEU can be found in OJ C 115/47 (9 May 2008).

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 Is There a Need to Advance with Regard to the Award of Damages?

measures therefore need to be adopted. Sociologists of international relations

have developed diverse approaches and put the emphasis on several factors
explaining why States agree or refuse to comply with international obliga-
tions.67 The type of domestic regime is important; in particular, the States in
which the implementation of the ECtHR’s judgments is supervised by the
parliament have generally shown a better level of compliance. According to
the realist, rational, functionalist and interest-driven approaches, incentives
play a crucial role. The European system, as it currently works, tends to be
based on positive incentives and negotiation, the question being whether
sanctions are necessary. As non-compliance is very costly to the organization
and that the cooperation between the Department for the implementation of
the judgments and the reluctant State is no more fruitful, it is my view that
a more sanctions-based approach is required. At least three types of cases
could be covered by exemplary damages: when the Court uses the new in-
fringement proceedings, which is today still unthinkable; when it concludes
to a violation of Article 46 (1) without using the formal infringement pro-
ceedings (Emre v. Switzerland (No. 2) case)68; or when the Court launches
the pilot procedure because of a previous similar judgment which has not
been implemented yet (such as the pilot judgments adopted in 2002 against
Greece with regard to the duration of judicial procedures).
To be more concrete, the CM could adopt an interim resolution threaten-
ing the State to initiate infringement proceedings after a period of six months
if no sufficient measures of compliance have been adopted; the sanction
should then be decided in a judgment of the Court and the payment super-
vised by the Committee of Ministers in line with the current distribution of
powers between the judicial and the executive organs. States could, in such
circumstances, be asked to pay the sum due to the Organisation’s Human
Rights Trust Fund or to the Council of Europe’s budget (budget of the
Court).69

67 B. A. Simmons, Compliance with International Agreements, 1 Annual Review of

Political Science (1998), 75; K. Raustiala & A.-M. Slaughter, International Law,
International Relations and Compliance, in W. Carlsnaes et al. (eds.), Handbook of
International Relations (2000), 538.
68 Emre v. Switzerland (No. 2), ECtHR Application No. 5056/10, Judgment of 11 Oc-
tober 2011.
69 See E. Lambert Abdelgawad, Les recours en manquement et en interprétation depuis
l’entrée en vigueur du Protocole 14, in S. Besson (ed.), La Cour Européenne des
droits de l’homme après le Protocole 14: Premier bilan et perspectives (2011), 99.

135
Elisabeth Lambert Abdelgawad

In a document enacted by the Steering Committee for Human Rights of

the Council of Europe (CDDH) in January 2013, “[...] some delegations
underlined that the tools should not be used to stigmatise states or take puni-
tive measures against them, but rather to encourage execution processes”.70
In its reply to the Parliamentary Assembly’s proposal, the CM had only
appended the opinion made by the CDDH, where it noted that
“the European Union has already introduced a system of this kind, with the
safeguard that a financial penalty can only be imposed after a second judicial
decision (Article 228, paragraph 2, of the Treaty on European Union). Also the
Human Rights Chamber for Bosnia-Herzegovina has ordered financial penalties
in certain cases where it had known from previous experience that execution
might be difficult. [...] In any event, persistent failure to execute judgments
already carries financial consequences: the risk of being obliged to award just
satisfaction to other persons affected by a persistent violation of the Convention
may already bring with it a considerable economic pressure on the respondent
State.” 71
However it is clear today, if we consider the British cases on the prisoners’
right to vote, that more strict measures must be adopted.
In conclusion, this author would like to emphasize the fact that in light of
the Court’s recent practice on Article 46 and of the current pressure on the
system due to ever increasing numbers of repetitive cases and cases pending
at the implementation stage, urgent reforms in the award of damages are
necessary. Yet, somewhat paradoxically, judges and the Registrar have been
reluctant to proceed – some have expressed concerns that the ECtHR might
become a claims Court. This chapter has explored various avenues and given
recommendations to avoid such a risk, including proportioning damages to
the countries’ GDPs and introducing more symbolic measures with regard
to very serious violations, by correlating Article 41 with the measures rec-
ommended under Article 46. These substantial measures should be accom-
panied by institutional changes, such as delegating the judgment under Ar-
ticles 41 and 46 to a specific section in cooperation with the Committee of
Ministers.

70 Council of Europe (Steering Committee for Human Rights), Measures to Improve

the Execution of the Judgments and Decisions of the European Court of Human
Rights: Information on Recent Decisions of the Ministers’ Deputies on the Issue,
Doc. CDDH(2013)002, 24 January 2013, 3.
71 CM, Reply from Committee of Ministers to Recommendation 1477 (2000), available
at http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=9590&Language
=EN9 (last visited at 31 January 2014), para. 9.

136
France and the Award of Damages: The Payment of Just
Satisfaction and Costs and Expenses in France

Michel Puéchavy

If we consider the period between 1959 (when the first judgment of the
European Court of Human Rights (thereinafter: ‘the Court’, ‘ECtHR’, ‘the
European Court’, ‘the Strasbourg Court’) was pronounced) and 2012, the
States most frequently held to be in violation of the Convention were Turkey
(2,870), Italy (2,229), Russia (1,346), Poland (1,019), Romania (938),
Ukraine (893) and France (877). This last country is a good ‘client’ of the
European Court although in recent years it tends to be overshadowed by the
worst performers of the Council of Europe, especially belonging to the for-
mer countries of the Eastern bloc.1 It went from the 4th to 7th position be-
tween 2009 and 2012. If we stick to the figures for the ‘new’ Court installed
in 1998, they are as follows (for a total 14,529 judgments for the period
between 1 November 1998 and 31 December 2012): Turkey (2,830), Italy
(1,997), Russia (1,334). France had 726 judgments for this period.2 For
comparison it may be noted that during the same period (1998-2012) there
are only 190 German cases, 226 Austrian cases, 124 Belgian cases, 80 from
Spain, 36 from Luxembourg and 66 from Switzerland. For the United King-
dom, another traditional country of human rights, there are 342 cases, that
is to say less than half compared to France. It may be recalled that the ‘old’
Court delivered 837 judgments in nearly forty years (1959-1998).3

1 D. Szymczack, Approches nationales: France, in P. Dourneau-Josette & E. Lambert

Abdelgawad (eds.), Quel filtrage des requêtes par la Cour européenne des droits de
l’homme? (2011), 343, 346.
2 ECtHR, Annual Report 2012 (2013), 149-164. While all ‘Russian’ judgments concern
the new Court, the ‘French’ judgments were delivered by the former Court (117) and
the ‘new’ Court (726).
3 P. Tavernier, Panorama de la jurisprudence française à Strasbourg en 2009 et 2010
dans la jurisprudence de la Cour européenne des droits de l’homme (aspects quanti-
tatifs et qualificatifs), in P. Tavernier & C. Pettiti (eds.), La France devant la Cour
européenne des droits de l’homme (2013), 53 et seq.

137
Michel Puéchavy

It therefore seems important to study first the execution of judgments of

the ECtHR at national level, by the payment procedure, and secondly, to
examine the difficulties that have arisen in some cases.

A. The Procedure of Payment of Just Satisfaction

I. The Procedure

In France, the defence of the French Government before the Strasbourg

Court is provided by the sub-department of Human Rights, Ministry of For-
eign Affairs. The staff is made up of judges. When a judgment of the Court
includes an order of payment, the Ministry requests bank details to make the
transfer of sums due. If failure of the applicant to respond to numerous re-
quests by the Government to obtain the necessary documents for the payment
of the sum occurs, the sums are recorded with the Caisse des Dépôts et
Consignations.4 If the applicant is assisted by a lawyer, the money must go
through a sub-account specifically opened for this purpose, the Caisse de
Règlements pécuniaires des Avocats (CARPA).5
The Ministry of Foreign Affairs does not control the payment of amounts
due. The Minister of Justice (Garde des Sceaux) makes an order for the
payment of principal and, if necessary, a second order for the payment of
interest. The amounts due are then subject to a payment order issued by the
Ministry of Justice (Department of Legal Services, Sub-Directorate of the
Judiciary, Office of the Status of Judges and Litigation) to the Paymaster
General of the Treasury, who shall review and close the file according to the
rules of public accounting. The amounts are allocated to the chapter ‘civil
remedies’ of the budget of the Ministry of Justice. Given all the successive
operations by the General Peerage Treasury (Paierie générale du Trésor),
the Bank of France and the bank of the applicant (or CARPA), the payment
is effective within six weeks from the date of payment order. Finally, national
authorities ask the applicant if the transferred amounts have been received.

4 Council of Europe (Committee of Ministers) (CM), Resolution CM/Res.

DH(2012)175 (follow-up to Chatellier v. France, ECtHR Judgment of 31 March
2011).
5 In France, it is forbidden for a lawyer to have a personal bank account to manage funds
for clients.

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 France and the Award of Damages

Resolutions of the Committee of Ministers on the execution of judgments

generally include the date of dispatch of transfer. The amounts paid to a
CARPA sub-account are generally available twelve days after receipt.

II. Consideration of Resolutions

Between 9 November 1988 and 31 December 2012, 329 resolutions were

adopted by the Committee of Ministers concerning the execution of judg-
ments against France. It is difficult to compile statistics due to lack of uni-
formity in the presentation of resolutions. For example, some do not mention
the date of payment and only indicate that the sum was paid within the
“deadline”6 others give no indication.7 However, because of their number,
resolutions reveal trends in the execution of judgments of the Court. It was
found, in a study of 338 judgments between 1989 and 2011, that the time
limit set by the Court for the payment of just satisfaction was not respected
by the French State. From 18 December 1987, the date of the first ruling
against France with an order of payment by the Court, until the spring of
2000, the term of payment was three months after the judgment, but the
execution of only fifteen cases met this deadline. In 2000, the Court changed
its case law in a favourable direction to the respondent State to take into
account the possibility of referral to the Grand Chamber within three months
of delivery of the Chamber judgment. Thus, the time within which the State
had to pay became three months from the date on which the judgment was
final, equivalent, in general, to a period of six months from the delivery of
the judgment chamber. Despite this, the average time for the 338 cases is 6
months and 22 days. In this calculation we took into consideration the con-
secutive times after Grand Chamber judgments (which are shorter) and the
period of the ‘old Court’, which means that for the period 2000 to 2011, the
average payment term was more than seven months.

6 See, for instance, CM, Resolution CM/Res. DH(99)349 (follow-up to F.E. v.

France, ECtHR Judgment of 30 October 1998); CM, Resolution CM/Res.
DH(2001)167 (follow-up to Castell v. France, ECtHR Judgment of 21 March 2000).
7 See, for instance, CM, Resolution CM/Res. DH(2006)31 (follow-up to S.A. Cabinet
Diot & S.A. Gras Savoye v. France, ECtHR Judgment of 22 July 2003); CM, Reso-
lution CM/Res. DH(2010)94 (follow-up to Palau-Martinez v. France, ECtHR Judg-
ment of 16 December 2003); CM, Resolution CM/Res. DH(2010)191 (follow-up to
ten cases against France).

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Michel Puéchavy

For the interest, the situation is even worse.8 For example, in the case
Matheus v. France, the payment of 3,000 euros was made after 14 months
and two days (2 June 2006) but the interest was not paid until 17 November
2008.9 This case is unfortunately not unique.10
For the payment of principal sums a summary table (dates of judgments
on the abscissa and dates of payments on ordinate) shows that if the execution
of a number of judgments respected the deadlines, a large quantity of judg-
ments were carried out with an unreasonable delay.11

8 According to the 599th meeting of the Committee of Ministers, dated 5 September

1997, interest shall be payable for each month of delay, a month is defined as a month
gone after the deadline for payment.
9 CM, Resolution CM/Res. DH(2011)207 (follow-up to Matheus v. France, ECtHR
Judgment of 31 March 2005).
10 See, for instance, CM, Resolution CM/Res. DH(98)74 (follow-up to Duclos v.
France, ECtHR Judgment of 17 December 1996) (payment on 28 May 1997, interest
paid on 14 May 1998); CM, Resolution CM/Res. DH(2007)42 (follow-up to Laidin
v. France, ECtHR Judgment of 5 November 2002) (payment on 10 June 2003, inter-
est paid on 20 April 2004); CM, Resolution CM/Res. DH(2008)41 (follow-up to
G.B. v. France, ECtHR Judgment of 2 October 2001) (payment on 29 August 2002,
interest paid on 5 November 2003); CM, Resolution CM/Res. DH(2008)85 (follow-
up to Authouart v. France, ECtHR Judgment of 8 November 2005) (payment on 27
September 2006, interest paid on 21 June 2007); CM, Resolution CM/Res.
DH(2008)85 (follow-up to Bozon v. France, ECtHR Judgment of 8 November 2005)
(payment on 22 September 2006, interest paid on 21 June 2007); CM, Resolution
CM/Res. DH(2010)92 (follow-up to Lallement v. France, ECtHR Judgment of 11
April 2002) (payment on 8 November 2002, interest paid on 14 November 2003).
11 CM, Resolution CM/Res. DH(2008)71 (follow-up to M.B. v. France, ECtHR Judg-
ment of 13 September 2005) (paid on 13 November 2008, 38 months); CM, Reso-
lution CM/Res. DH(2012)77 (follow-up to Clinique des Acacias v. France, ECtHR
Judgment of 13 October 2005) (paid on 27 November 2008, 37 months and 14 days);
CM, Resolution CM/Res. DH(2007)4 (follow-up to Motais de Narbonne v. France,
ECtHR Judgment of 27 May 2003) (paid on 23 May 2005, 23 months and 27 days,
the amount of just satisfaction was 3,299,797.96 euros (violation of Article 1 of
Additional Protocol 1)); CM; Resolution CM/Res. DH(2010)85 (follow-up to
Mazelié v. France, ECtHR Judgment of 27 May 2006) (paid on 25 March 2008, 20
months and 26 days).

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 France and the Award of Damages

Sixteen cases were settled between one and two years.12

There were also 138 cases whose resolution ranges within more than six
months to a year.

12 CM, Resolution CM/Res. DH(2008)14 (follow-up to Vaudelle v. France, ECtHR

Judgment of 30 January 2001) (paid on 21 June 2002, a total of 17 months and 22
days); CM, Resolution CM/Res. DH(1992)41 (follow-up to Kruslin v. France,
ECtHR Judgment of 24 April 1990) (payment on 30 August 1991, 16 months and 5
days); CM, Resolution CM/Res. DH(2008)8 (follow-up to Colombani v. France,
ECtHR Judgment of 25 June 2002) (paid on 16 October 2003, 15 months and 21
days); CM, Resolution CM/Res. DH(2005)63 (follow-up to Racinet v. France,
ECtHR Judgment of 23 September 2003) (paid on 3 December 2004, 14 months and
10 days); CM, Resolution CM/Res. DH(2010)125 (follow-up to Company Lilly
France, ECtHR Judgment of 4 October 2003) (paid on 22 December 2005, 14 months
and eight days); CM, Resolution CM/Res. CM/Res. DH(2011)207 (follow-up to
Matheus v. France, ECtHR Judgment, supra note 9) (paid on 2 June 2006, 14 months
and 2 days); CM, Resolution CM/Res. DH(2009)59 (follow-up to SIES v. France,
ECtHR Judgment of 19 March 2002) (payment on 23 April 2003, 13 months and 4
days); CM, Resolution CM/Res. DH(2009)3 (follow-up to Piron v. France,

141
Michel Puéchavy

These waiting times exasperate the applicants. Thus, in the case Pascaud
v. France,13 the applicant issued on 23 May 2013, through a bailiff, a sum-
mons to the agent of the French government as the deadline for the respon-
dent State had expired. The act stated that
“the non-execution of the sentence under Article 41, credit which is analysed
as a patrimonial value and has the character of a property [...] is a further vio-
lation of the applicant’s rights under Article 1 of protocol No. 1 to the European
Convention on Human Rights since he has on the State a demandable and un-
doubted credit”.
The summons was delivered to the Committee of Ministers of the Council
of Europe and the Directorate General of Human Rights and the Rule of Law,
Just Satisfaction unit, Service Execution of Judgments of the Court. Ulti-
mately, the amounts due were paid a few days later.
This analysis is corroborated by the statistics of the Council of Europe.
The annual reports of the Committee of Ministers in 2011 and 2012 show
that in 2011, for France, 63 per cent of the payments were made past the time
limit (14 payments within the deadline against 24 payments beyond the
deadline). For 2012, 56 per cent of payments were made out of time (17
payments on time against 22 payments beyond the deadline). If we take the

ECtHR Judgment of 14 November 2000) (payment on 17 December 2001, 13 months

and 3 days); CM, Resolution CM/Res. DH(2008)39 (follow-up to Versini v.
France, ECtHR Judgment of 10 July 2001) (payment on 8 February 2002, 12 months
29 days); CM, Resolution CM/Res. DH(2011)61 (follow-up to Zervudacki v.
France, ECtHR Judgment of 27 July 2006) (paid on 14 August 2007, a year and 18
days); CM, Resolution CM/Res. DH(2011)212 (follow-up to Krombach v. France,
ECtHR Judgment of 13 February 2001) (paid on 1 March 2002, a year and 16 days);
CM, Resolution CM/Res. DH(2004)49 (follow-up to Lacombe v. France, ECtHR
Judgment of 7 November 2000) (payment on 20 November 2001, a year and thirteen
days); CM, Resolution CM/Res. DH(2008)7 (follow-up to Caloc v. France, ECtHR
Judgment of 20 July 2000) (paid on 30 July 2001, a year and 10 days); CM, Reso-
lution CM/Res. DH(2009)79 (follow-up to Vincent v. France, ECtHR Judgment of
24 October 2006) (paid on 28 October 2007, a year and 4 days); CM, Resolution
CM/Res. DH(2010)160 (follow-up to Mokrani v. France, ECtHR Judgment of 15
July 2003) (paid on 19 July 2004, a year and 4 days); CM, Resolution CM/Res.
DH(2009)55 (follow-up to Poulain de Saint-Père v. France, ECtHR Judgment of 28
November 2006) (payment on 28 November 2007, a year later).
13 Pauscaud v. France, ECtHR Application No. 19535/08, Judgment of 16 June 2011.
The Court ruled that Art. 8 had been violated by the refusal to legally recognize the
affiliation of the applicant with respect to his biological father. Acting on Art. 41,
the Court granted, unanimously, a sum of 2,750,000 euro in respect of just satisfac-
tion.

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 France and the Award of Damages

total of 47 member States in 2011, only 16.5 per cent of payments were made
past the time limit (300 to 1811) and in 2012, 18 per cent of payments were
made beyond the deadline (254 to 1617).
These data are provisional as many pending cases were awaiting confir-
mation of payment.

B. The Difficulties related to the Payment of Just Satisfaction

I. Exceeding the Time Limit and the Question of Payment of Default

Interest

Due to the delay in payment by the French authorities, the European Com-
mission of Human Rights submitted to the Court, on 10 July 1996, pursuant
to Rule 57 A, a request for the interpretation of the judgment delivered on 3
July 1995 on the application of Article 50 of the Convention in the case
Hentrich v. France,14 in which it held
“1. that the respondent State was to pay the applicant, within three months,
800,000 (eight hundred thousand) French francs in respect of pecuniary damage;
2. that the respondent State was to pay the applicant, within three months, 20,000
(twenty thousand) francs in respect of costs and expenses relating to the pro-
ceedings under Article 50;
3. that the respondent State is to pay the applicant, within three months, the
statutory interest from 22 December 1994 on the sum of 56,075 francs awarded
by the principal judgment”.15

14 Hentrich v. France (Article 50), ECtHR Application No. 13616/88, Judgment of 3

July 1995. Previously, the Court found a violation of Art. 1 of the First Protocol (the
applicant could not effectively challenge the refusal of his property by the Tax Ad-
ministration) and Art. 6 (1) (for lack of a fair trial and excessive length of the pro-
ceedings). See Hentrich v. France, ECtHR Application No. 13616/88, Judgment of
22 September 1994, operative part, paras. 2-4. According to Jean-François Flauss:
“The Hentrich case is the first illustration of the award of default interest to punish
non-compliance by the State within three months which had been prescribed to pay
the victim the amount due in respect of costs and expenses. As a means of coercion
in the service of execution of Court judgments, the payment of interest therefore is
gradually set a-going.” J.-F. Flauss, La banalisation du contentieux indemnitaire de-
vant la Cour Européenne des Droits de l’Homme, Revue trimestrielle des droits de
l’homme (1996) 25, 93, 94 (translation by the author).
15 Hentrich v. France (Article 50), ECtHR Judgment, supra note 14, operative part,
paras. 1-3.

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Michel Puéchavy

Accordingly, the Commission asked the following question:

“In view of point 3 of the operative provisions of the judgment of 3 July 1995
and the practice followed by the Court since January 1996, are points 1 and 2
of that judgment to be interpreted as necessarily entailing an obligation on the
French Government to pay statutory interest in the event of failure to pay within
the three-month period laid down by the Court the total sum of 820,558 francs
awarded as just satisfaction?”16
The Government argued that the request for interpretation was inadmissible.
It related to difficulties with the execution of a judgment of the Court, which
came within the exclusive competence of the Committee of Ministers of the
Council of Europe, and was in reality designed to secure a variation of the
clear, precise operative provisions of the judgment of the 3 July 1995 and
thus amounted to a request for revision in disguise.
The award made to the applicant in the Judgment of 3 July 1995 had been
paid on 1 December 1995 albeit after the deadline set for 3 October 1995.
The Court observed in the first place that, under the terms of its judgment
of 3 July 1995 and in accordance with Article 53 of the Convention, the
respondent State was required to pay the applicant the sums awarded within
three months. However, these sums were not paid until 1 December 1995,
that is nearly two months after expiry of the time-limit. The Court further
noted that it did not stipulate in its judgment that default interest was to be
paid in the event of delayed settlement. It accordingly dismissed the request
for interpretation.
In his Dissenting Opinion Judge De Meyer pointed out that:
“In its judgment of 3 July 1995 the Court did not expressly rule on the question
of any interest that might have been due on the amounts awarded for [...] pecu-
niary damage and [...] costs and expenses relating to the Article 50 [...] pro-
ceedings, but clearly stated that those amounts had to be paid ‘within three
months’, that is to say before 3 October 1995. [...] In accordance with the general
principles on this subject, which have been explicitly applied by the Court in all
its judgments on Article 50 [...] since January 1996, and which, moreover, were
applied in the judgment of 3 July 1995 itself with respect to the costs and ex-
penses of the judgment on the merits, my view is that the judgment of 3 July
1995 must be construed as containing an implied award in favour of the applicant
of interest at the statutory rate to run from 3 October 1995 on both the sum of

16 Hentrich v. France, ECtHR Judment, supra note 14, para. 9.

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 France and the Award of Damages

FRF 800,000 awarded for pecuniary damage and the sum of FRF 20,000 relating
to the Article 50 proceedings [...].”17

II. The Attachment of Just Satisfaction by Third Parties

In Allenet de Ribemont v. France, the applicant was informed that the sums
paid by the French government had been seized pursuant to a final judgment
rendered by the ‘Tribunal de Grande Instance’ of Paris.18 The Commission
submitted to the Court a request for interpretation by asking the following
questions:
“Firstly: Is it to be understood that Article 50 of the Convention [...], which
provides for an award of just satisfaction to the injured party if the domestic law
of the High Contracting Party allows only partial reparation to be made for the
consequences of the decision or measure held to be in conflict with the obliga-
tions arising from the Convention, means that any sum awarded under this head
must be paid to the injured party personally and be exempt from attachment?
Secondly: In respect of sums subject to legal claims under French law, should
a distinction be made between the part of the sum awarded under the head of
pecuniary damage and the part awarded under the head of non-pecuniary dam-
age? andThirdly: If so, what were the sums which the Court intended to grant
the applicant in respect of pecuniary damage and non-pecuniary damage re-
spectively?”19
The Court responded by eight votes to one that it had no jurisdiction to
answer the first question posed by the Commission and, therefore, rejected
the request for interpretation of this point and said, unanimously, that there
was no need to answer the second and third questions posed by the Com-

17 Dissenting Opinion of Judge De Meyer, Hentrich v. France, ECtHR Judgment, supra

note 14.
18 Allenet de Ribemont v. France, ECtHR Application No. 15175/89, Judgment [In-
terpretation] of 7 August 1996, para. 10. Previously, the Court found a violation of
Art. 6 (2) (right to the presumption of innocence because of remarks made by the
Minister of the Interior) and Article 6 (1) because of the excessive length of pro-
ceedings for redress. The Court granted in respect of just satisfaction, for ‘damage’,
the sum of 2,000,000 francs for costs and expenses, that of 100,000 francs. Allenet
de Ribemont v. France, ECtHR Application No. 15175/89, Judgment of 10 February
1995, operative part, paras. 1-4.
19 Allenet de Ribemont v. France, ECtHR Judgment [Interpretation], supra note 18,
para. 12.

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Michel Puéchavy

mission and, therefore, rejected the request for interpretation on these is-
sues.20
The Court understood the first question as an invitation to interpret Article
50 in a general, abstract way. That, however, went outside not only the
bounds laid down by Rule 57 A Rules of Court but also those of the Court’s
contentious jurisdiction under the Convention. It recalled that it had not ruled
in this case that any amount paid to Mr Allenet de Ribemont would be free
from attachment.21
In his Dissenting Opinion, the Belgian Judge De Meyer criticized the
position of the Court on the first question. In fact, he noted,
“the Commission was asking us to say, in concrete terms and in the particular
case of Mr Allenet de Ribemont, whether the ‘just satisfaction’ awarded him in
the judgment of 10 February 1995 had or had not to be ‘paid to [him] personally
and be exempt from attachment’”.22
Judge De Meyer argued that
“it is just as hard to accept that the right to compensation for a breach of fun-
damental rights recognised by the Convention may be frustrated by an ordinary
debt arising under national law. This is particularly offensive in the instant case
as the claim against the applicant arose, at least indirectly, from a breach of such
rights in regard to him”.23
In conclusion, Jan De Meyer advocated a solution that had prevailed in the
Ringeisen case in response to a similar question.24

20 Ibid., para. 19 & operative part, paras. 1 & 2.

21 Ibid., para. 19.
22 Dissenting Opinion of Judge De Meyer, Allenet de Ribemont v. France, ECtHR
Judgment [Interpretation], supra note 18, para. 1.
23 Ibid.
24 In Ringeisen v. Austria, the Court delivered a judgment to interpret the judgment of
the 22 June 1972 in which it said that the just satisfaction is free from attachment
(Ringeisen v. Austria, ECtHR Application No. 2614/65, Judgment [Interpretation]
of 23 June 1973, operative part, para. 2). However, the judgment stated that “[i]f
mention was made of Section 2 of the Austrian Act of 18 August 1918 and of Section
4 of the Act of 8 July 1969, it was to indicate that it was all the more justifiable to
order a direct payment to the beneficiary in that the principle whereby debts of this
kind are free from attachment applied also in Austrian law in analogous cases. What
was entrusted to the discretion of the Austrian authorities is the practical execution
of the measures ordered by the Court in conformity with this principle.” Ibid., para.
15.

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 France and the Award of Damages

III. Attachment of Costs and Expenses by the Customs Administration

In Jamil v. France,25 the applicant, a Brazilian national, was arrested at the

airport of Roissy as he removed a package containing more than 2 kg of
cocaine. He was sentenced to eight years in prison, banned from French
territory and a customs fine of 2,091,200 French francs, subject to enforce-
ment by imprisonment for debt. The fine was set by the judge and corre-
sponded to the price of prohibited and imported goods. The Court found a
violation of Article 7 (1) of the issue of imprisonment for debt. It awarded
the applicant the sum of 50,000 francs for costs and expenses which was
seized by the Customs Administration. As the Commission had submitted
to the Court, on September 19, 1995, a request for interpretation regarding
the attachment of just satisfaction in Allenet de Ribemont, which raised sim-
ilar issues in the present case, the Committee of Ministers waited for the
delivery of the judgment of interpretation before making a resolution on the
execution.26
The seizure of the just satisfaction awarded to the applicant in payment
of a fiscal debt due to the State did not constitute an unjustified interference
in the applicant’s rights according to the Convention and, in addition, the
applicant had authorised this seizure.27

IV. The Applicant’s Request to Prevent Attachment

In Selmouni v. France,28 the applicant asked the Court to hold that the seizure
of money that he was likely to receive should be forbidden. The applicant
pointed out that he had been ordered to pay, jointly and severally with the
other persons convicted in the proceedings against them, a customs fine of
twelve million French francs. Accordingly, the applicant asked the Court to
specify in its judgment that the sums awarded under Article 41 should be
exempt from attachment. In its judgment

25 Jamil v. France, ECtHR Application No. 15917/89, Judgment of 8 June 1995.

26 CM, Resolution CM/Res. DH(96)675 (follow-up to Jamil v. France, ECtHR Judg-
ment of 8 June 1995).
27 CM, Resolution CM/Res. DH(2007)162 (follow-up to Papon v. France, ECtHR
Judgment of 25 July 2002).
28 Selmouni v. France, ECtHR Application No. 25802/94, Judgment (GC) of 28 July
1999. The Court found a violation of Article 3 on account of ill-treatment at the
applicant’s arrest for drug trafficking.

147
Michel Puéchavy

“the Court considers that the compensation fixed pursuant to Article 41 and due
by virtue of a judgment of the Court should be exempt from attachment. It would
be incongruous to award the applicant an amount in compensation for, inter
alia, ill-treatment constituting a violation of Article 3 of the Convention and
costs and expenses incurred in securing that finding if the State itself were then
to be both the debtor and creditor in respect of that amount. Although the sums
at stake were different in kind, the Court considers that the purpose of compen-
sation for non-pecuniary damage would inevitably be frustrated and the Article
41 system perverted if such a situation were to be deemed satisfactory. However,
the Court does not have jurisdiction to accede to such a request [...]. It must
therefore leave this point to the discretion of the French authorities.”29

C. Conclusion

If obstacles faced by some applicants for the award of just satisfaction are
in accordance with international law, the excessive time of payment remains
a concern. This slowness of the French government may be by creating a
unique service for processing cases (whereas now both departments are in
charge of payment). The public accounting rules require that the service
which orders the payment (Ordonnancement) is different from the one which
makes the payment. In addition, procedures for payment (bank account, etc.)
should be performed before the decision is final for most Chamber judg-
ments are not brought before a Grand Chamber.
But, as my colleague Pierre Lambert said, the fundamental right of appeal
to a judge will be an illusion in the absence of execution of the decision.30
The principle of the rule of law leads to the conclusion that the execution of
a judgment is a component of the right to a fair trial and it is valid for any
jurisdiction, even for the European Court. The enforcement of its judgments
represents, as Elisabeth Lambert-Abdelgawad pointed out pertinently, “the
cornerstone and the most basic aspect of the effectiveness of the European
system of protection of Human Rights”.31

29 Ibid., para. 132-133.

30 P. Lambert, Propos conclusifs, in N.N. (ed.), Les mutations de l’activité du Comité
des ministres: La surveillance de l’exécution des arrêts de la Cour européenne des
droits de l’homme par cet organe du Conseil de l’Europe (2012), 165.
31 E. Lambert Abdelgawad, L’exécution des arrêts de la Cour européenne des droits de
l’homme (2012), Revue trimestrielle des droits de l’homme (2013) 95, 635, 650-651
(translation by the author)

148
 France and the Award of Damages

“One might suggest to the Court, as to the Committee of Ministers, to threaten

explicitly [the State] of infringement proceedings for breach of the judgment
within the time fixed by the Court, the interim resolution formally constituting
the notice [...]. The risk of obsolescence of infringement proceedings is great
[...] a new step needs to be made, it is to say to condemn the State, because of
previous cases poorly executed or not, it is condemned by frequent judgments,
to pay penalties with just satisfaction, which would not be paid to the applicant,
but for the Human Rights Trust Fund”.32
Would these measures be sufficient? France is ordered to pay substantial
fines and penalties by the Court of Justice of the European Union for breach
of Community law in the field of water quality. But the State prefers to pay
substantial sums rather than to comply with these rules thereby upsetting the
farmers.

32 Ibid. (translation by the author).

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The Constellation of Global and National Courts: Jurisdictional
Redundancy and Interchange

Sabino Cassese

“Á l’échelon de la Communauté européenne, il ne doit y avoir

ni gouvernement des juges, ni guerre des juges.
Il doit y avoir place pour le dialogue des juges.”1

A. Judicial Globalization and its Diversity

According to the ‘Project on International Tribunals and Courts’, there are

125 supranational and international courts. To these, one must add an equiva-
lent number of quasi-judicial bodies – ‘Compliance Committees’, ‘Inspec-
tion Panels’, ‘Article 1904 NAFTA Binational Panels’, ‘Administrative
Panels of the WIPO Arbitration and Mediation Centre for Uniform Domain
Name Dispute Resolution’, and the like. If one compares these numbers with
the number of States (the Member States of the UN are currently 193), it can
be noticed that courts are more numerous than States.
The great majority of these courts was established in the last twenty years.
Since the 1990s, the number of international courts and tribunals has grown
rapidly2: compulsory means of quasi-judicial dispute settlement have been
developed, whereby the complaining party can bring his case before an im-
partial body and the party against whom the complaint is brought cannot
avoid a third party decision. Not long before, there were only six operative
international courts. In the last fifteen years of the 20th century, fifteen new
permanent adjudicative mechanisms and eight quasi-judicial procedures

1 Conclusions of Bruno Genevois, French Council of State, Ministre de l’intérieur

[French Minister of the Interior] v. Cohn-Bendit, Case No. 11604, Decision of 22
December 1978, Recueil Dalloz Sirey 1979, 155, 161.
2 For more details, see R. Mackenzie et al., The Manual on International Courts and
Tribunals, 2nd ed. (2010), esp. vii & ix-xvi.

151
Sabino Cassese

were introduced.3 In previous times, it was generally agreed that “law with-
out adjudication is [...] the normal situation in international affairs”;4 and,
according to Article 33 (1) of the Charter of the United Nations, parties can
choose any means they wish for the peaceful settlement of disputes.
Supranational and international courts challenge some of the most basic
principles of the long-established Community of Nations: the principle that
disputes between States should be solved through negotiations or conflicts,
and not through recourse to a third party; that States hold a monopolistic
jurisdiction over disputes between their associates; and that decisions given
by States’ higher courts are final.
The judicialization of the global polity has attracted much criticism. It
has, for example, been pointed out that there is the “risk [of] substituting the
tyranny of judges for that of governments”5 and that “effective courts cannot
exist without supporting government institutions, no such institutions exist
at the international level”.6 But global courts and quasi-judicial bodies are
pale imitations of national courts: therefore, one cannot simply transplant
national paradigms into the global space.
The family of global courts and quasi-judicial bodies includes very di-
verse institutions, such as the World Trade Organization’s (thereinafter:
‘WTO’) Dispute Settlement Body, the European Union’s (thereinafter:
‘EU’) Court of Justice (thereinafter: ‘ECJ’), the Court of Arbitration for
Sport, the World Bank’s Inspection Panel, the Aarhus Convention Compli-
ance Committee, the International Criminal Tribunal for the former Yu-
goslavia, the International Criminal Court. The latter does not judge cases
or controversies, but ‘situations’; the WTO Appellate Body can authorize
retaliatory measures, i.e. judge-controlled infringements of the law; the
Aarhus Convention Compliance Committee can impose obligations for the
future, and therefore is not only a ‘re-active’ body, but also a ‘pro-active’
body.7

3 Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003),

3, 5, 7-8 and, more recently, Y. Shany, Regulating Jurisdictional Relations Between
National and International Courts (2007).
4 J. G. Merrills, International Dispute Settlement, 5th ed. (2011), 291.
5 H. A. Kissinger, Does America Need a Foreign Policy? Toward a Diplomacy for the
21st Century (2001), 273 & 279.
6 E. A. Posner, The Perils of Global Legalism (2009), 207.
7 In other words, a quasi-judicial global body possesses a law-making function: this
situation presents the benefit of an expert and impartial law-maker, but the cost of an
absence of division of powers.

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 Jurisdictional Redundancy and Interchange

According to Kingsbury, the global space presents an “uneven judiciali-

sation”.8 First, there are specialized tribunals: the “[n]ew global tribunals
have almost all been created as parts of specialised regimes, rather than as
courts of general jurisdiction”.9 Second: there are “uneven rates of accep-
tance in advance of jurisdiction of international tribunals” (the most popu-
lated States tend to not accept in advance the jurisdiction of human rights
courts, but accept that of economic courts; the same is true of the world’s
largest economies, which also tend to accept economic courts and not those
of human rights).10
Global courts exercise public authority through judicial law-making,11
but their power can be justified neither by the traditional basis of State con-
sent, nor by functionalist narrative. In democratic contexts, judicial law-
making is embedded in a political system in which a democratic legislature
holds the central role in creating norms: there is no such equivalent in the
global space. Therefore, global courts are not indirectly legitimated in this
manner. This argument, however, underestimates the existence of a large
mass of global legislation (treaties, ‘constitutions’, regulations, by-laws,
‘policies’). For every topic, there are rules; some ‘soft’, others ‘hard’.12 This
legislation establishes the framework in which global courts operate. There-
fore, courts do not act in a vacuum.

8 B. Kingsbury, International Courts: Uneven Judicialisation in Global Order, in J.

Crawford & M. Koskenniemi (eds.), The Cambridge Companion to International
Law (2012), 203.
9 Ibid., 211.
10 Ibid., 212.
11 See, e.g., A. von Bogdandy & I. Venzke, Beyond Dispute: International Judicial
Institutions as Lawmakers, in A. von Bogdandy & I. Venzke (eds.), International
Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global
Governance (2012), 3, 15 et seq.
12 According to J. E. Alvarez, “[t]he picture that emerges is of many [International
Organization] organs, not just a select few, acting as law-makers in some sense, even
though few of them are given explicit authority to legislate or to recommend, and
even though much of their work product does not fit easily into the classic sources
of international obligation. [...] In many, perhaps most ways, IOs do not subdue
governments as much as assist them. Yet IOs are regarded, simultaneously, as the
servants, agents, or instruments of governments and as a challenge to their authority.”
J. E. Alvarez, International Organizations as Law-makers (2005), 262.

153
Sabino Cassese

B. Why Judicial Globalization is Rising

Why have so many new bodies been created, in such a short span of time,
and with such a revolutionary character?
The reasons why judicial institutions and policies have been spreading
are manifold.
A first set of reasons derives from the global space: global institutions
need ‘fire alarm’ systems, and the judicial mechanism is an effective system
to obtain the cooperation of the population.
For example, which system can best protect the environment? According
to the Rio Declaration, it is citizens’ participation.13 The Aarhus Convention
Compliance Committee rules allow a Kazakh environmental association to
obtain information on the importation of nuclear waste by a Kazakh author-
ity, Kazatomprom.14
A second set of reasons derive from the Nation States.
First: Courts and court-like bodies can reduce tensions between national
governments. The latter can find it useful to delegate power to courts, instead
of negotiating with other governments. Therefore, courts can act as shock
absorbers.
Second: States and institutions are utility maximizers that select their
course of action on the basis of cost/benefit calculations and of the lessons
learnt. Therefore, they adopt ‘best practices’ that can attract foreign direct
investments, provide competitive advantages and increase their legitimacy
as members of the international community (think of Myanmar’s participa-
tion in the ILO, in relation to the procedure to sanction forced labor in that
country).15
Third: emulation. Currently, four international economic systems emulate
the WTO dispute resolution system. Eleven regional supranational bodies

13 Rio Declaration on Environment and Development, 14 June 1992, Principle 10, 31

ILM 874, 878.
14 Aarhus Convention Compliance Committee, Communication by Green Salvation
(Kazakhstan) regarding Compliance by Kazakhstan with the Obligations under the
Aarhus Convention in the Case of Information Requested from Kazatomprom, Doc.
ACCC/C/2004/01, 31 January 2005.
15 International Labour Organization, Report of the Commission of Inquiry Appointed
under Article 26 of the Constitution to Examine the Observance by Myanmar of the
Forced Labour Convention of 1930 (No. 29), available at http://www.ilo.org/dyn/
normlex/en/f?p=1000:50012:0::NO:50012:P50012_COMPLAINT_PROCE-
DURE_ID,P50012_LANG_CODE:2508280,en:NO (last visited 31 January 2014).

154
 Jurisdictional Redundancy and Interchange

have copied the ECJ introducing compulsory supranational oversight of

State action which private parties, too, may access.16
Fourth: the emergence of facilitating structural conditions, such as major
international crises, the demand for institutional change and rights protec-
tion, and the need to sanction war crimes.

C. Judicial Interchange

The first outcome of judicial globalization is a growing ‘dialogue’ between

national, supranational and global judges. Judges come to know each other
better through the translation of the most important judgments into English,
the organization of bilateral or multilateral seminars, informal consultations,
and even actions such as the drafting and issuance of ‘joint communications’,
like that of 17 January 2011, by Presidents Costa and Skouris of the Stras-
bourg and Luxembourg Courts respectively, where a “parallel interpreta-
tion” of the Charter of Fundamental Rights of the EU and of the European
Convention on Human Rights (thereinafter: ‘the Convention’) by the two
courts was envisaged.17 A visible outcome of this dialogue is the growing
number of citations of foreign (national, supranational and global) legisla-

16 K. J. Alter, The Global Spread of European Style International Courts, 35 West

European Politics (2012) 1, 135, 135.
The importance of the ‘market of institutions’ has been always neglected or even
overlooked. Successful national models, such as British self-government, the Scan-
dinavian Ombudsman, British nationalized enterprises, and American federalism,
have been widely adopted in other countries. The same can be said for supranational
models, such as the European Court of Justice.
This ‘market’, in which institutions are exchanged, has become even more dynamic
since the use of two new instruments has proliferated in the efforts to reduce uncer-
tainties at the global level: indicators, measuring development, integrity, democracy,
rule of law, and the like; and conditionality, i.e. the creation of positive and negative
incentives to spur adaptation to or adjustment of national governments or other in-
stitutions to specific models.
At the global level, this ‘market’ ensures unilateral adjustments and produces self-
harmonization.
17 Joint Communication from Presidents Costa (ECtHR) and Skouris (ECJ) (24 January
2011), available at http://curia.europa.eu/jcms/upload/docs/application/pdf/
2011-02/cedh_cjue_english.pdf (last visited 31 January 2014), 1, para. 1.

155
Sabino Cassese

tion and foreign (national, supranational and global) jurisprudence by na-

tional courts.18
But the most important outcome of the spreading of courts beyond the
State is inter-judicial interchange, at both horizontal and vertical levels.
At the horizontal level, each court or quasi-judicial body beyond the State
belongs to a single regulatory regime: the WTO has a court, the EU has a
court, the Law of the Sea system has a court, the Aarhus Convention has a
Compliance Committee. Therefore, there is not only one global judicial sys-
tem. But the courts, at this level, are overcoming fragmentation by devel-
oping common legal principles, by making references to the jurisprudence
of other courts, by using previous judgments of other courts as precedents,
or by applying general principles, as did the International Tribunal for the
Law of the Sea, in the Juno Trader case, by establishing that
“[t]he obligation of prompt release of vessels and crews includes elementary
considerations of humanity and due process of law. The requirement that the
bond or other financial security must be reasonable indicates that a concern for
fairness is one of the purposes of this provision.”19
Through horizontal judicial interchange, supranational courts, on the one
hand, make interconnections between regulatory regimes possible, thus re-
ducing the fragmentation of international law; on the other, they increase the
horizontal accountability of each regime towards each other.20
Horizontal judicial interchange occurs at the national level too, as a result
of supranational adjudication. One development to this effect can be seen
when countries that were not parties to a dispute before the European Court
of Human Rights (thereinafter: ‘ECtHR’ or ‘the Strasbourg Court’) apply
the judgments issued by that Court, as if the Strasbourg Court were an in-

18 On cross-citation, see B. Kingsbury & R. Stewart, Administrative Tribunals of In-

ternational Organizations from the Perspective of the Emerging Global Administra-
tive Law, in O. Elias (ed.), The Development and Effectiveness of International Ad-
ministrative Law (2012), 69, 94-95 [Kingsbury & Stewart, Administrative Tribunals
of International Organizations].
19 Juno Trader, International Tribunal for the Law of the Sea, Case No. 13, Decision
of 18 December 2004, para. 77.
20 This kind of accountability is quite different from vertical accountability, which does
not exist for courts: we do not ask for democratic justification of courts, but want
them to be accountable to the law and to other courts, not to the People. We should
not therefore pose the question of how the power of international courts relates to
the principle of democracy.

156
 Jurisdictional Redundancy and Interchange

ternational regulator that provides solutions that can be applied in all Con-
tracting States, rather than a judge that decides on a case-by-case basis.
As noted above, national implementation may affect the relationship of
other jurisdictions with the Strasbourg Court:
“The compliance of one State with the international human rights of its citizens
can affect the compliance of other States with rights of their citizens”; “[t]he
opening up of national and international legal systems is a complex process,
where ‘dialogues’ may turn from ways of taking due account of Strasbourg
jurisprudence to strategies of national resistance against the implementation of
international human rights standards.”21
There is a more subtle and widespread influence of the Strasbourg Court’s
jurisprudence, that may be seen when national courts – and constitutional
courts especially – before taking their own decisions, must consider similar
issues already decided by that Court to avoid conflicts or clashes between
legal orders. As similar questions arise in countries that are party to the
Convention, all neighbouring legal systems become important for each na-
tional legal order and each judge. This increases interdependence, adding an
horizontal link to the vertical relations that already exist.
Judicial interchange at the vertical level is functional to the insertion of
global regimes into national legal orders, and vice versa.
Contrary to a widely held point of view, globalization and global courts
do not have exclusive jurisdiction. Supranational courts and national courts
(mainly, constitutional courts) seek to adjust each other’s competences, in
the attempt to find a solution to the problem of contemporaneous allocation
of authority. In this exercise of ‘dialogue’, there are several experiences.
Bottom-up, national courts accept supranational primacy, but with some
exceptions, such as in the cases Solange I22 and II23 (the ECJ has not yet
developed a measure of protection equivalent to that provided by national
law), and in the controlimiti (‘counter-limits’) doctrine developed by some
European national constitutional courts (i.e. granting national courts the
power to review whether higher law is inconsistent with either the basic

21 M. Andenas & E. Bjorge, The External Effects of National ECHR Judgments, Jean
Monnet Working Paper 07/12, available at http://www.jeanmonnetprogram.org/pa-
pers/12/documents/JMWP07AndenasandBjorge.pdf (last visited 31 January 2014),
4 & 9.
22 Solange I, German Federal Constitutional Court, Case No. 2 BvL 52/71, Decision
of 29 May 1974, 37 BVerfGE 271.
23 Solange II, German Federal Constitutional Court, Case No. 2 BvR 197/83, Decision
of 22 October 1986, 73 BVerfGE 339.

157
Sabino Cassese

principles of the constitution or with the constitution itself).24 In these cases,

national courts, while accepting the primacy of a supranational court, declare
themselves to be courts of last resort, and establish their power to review
acts of the higher legal order (two paradoxes).
A rather different reaction by a national court is that of opposition, as
operated by the US Supreme Court in the Medellin judgment: in that case,
the national court refused to recognize the superiority of the international
court vis-à-vis the national court.25
In the opposite direction, top-down, supranational courts, while assuming
their superiority over national legal orders and national courts, recognize
some room for manoeuvering to national legal orders and courts, by resorting
to doctrines of deference, subsidiarity, or to the margin of appreciation. The
crucial problem is, then, how supranational courts exercise their powers of
control on the use of discretion by subordinate legal orders and courts.
In this field, the richest experience is that of the ECtHR, which has de-
veloped a test of proportionality based on counting (the doctrine of consen-
sus). This technique recalls Article 38 of the Statute of the International
Court of Justice, which refers to the “general principles of law recognized
by the civilized nations”.26
According to the consensus doctrine, the proportionality test is integrated
with a ‘horizontal’ test, as occurred in the case on abortion in Ireland, where
the court also tested the coherence of national law to a common, recognized
standard (i.e. the ‘consensus standard’).27 In this case, the ‘higher’ court must
analyse and compare many different national legal orders, ascertain whether
a ‘consensus’ may be found, and balance the ‘superior’ rule with these;
therefore, the proportionality principle also acts as a facilitator in a process
of reception-circulation of legal rules among parallel national legal orders;
the job of courts is to evaluate the relevance of the context of each national

24 On the recent developments of the ‘counter-limits’ doctrine, see P. Mengozzi, Corte

di giustizia, giudici nazionali e tutela dei principi fondamentali degli Stati membri,
Il diritto dell’Unione Europea (2012) 3, 563 and G. Scaccia, “Rottamare” la teoria
dei controlimiti, 33 Quaderni costituzionali (2013) 1, 141.
25 José Ernesto Medellín v. Texas, United States Supreme Court, Case No. 06-984,
Decision of 25 March 2008, 552 U.S. 491.
26 Statute of the International Court of Justice, 26 June 1945, Art. 38 (1) (c), 1 UNTS
XVI.
27 G. Repetto, Argomenti comparativi e diritti fondamentali in Europa: Teorie
dell’argomentazione e giurisprudenza sovranazionale (2011), 129, 134, 144 & 184.

158
 Jurisdictional Redundancy and Interchange

provision28 and establish the relevant standard (consensus inquiry) through

a comparative process that leaves room for a choice among options (“wer-
tende Rechtsvergleichung”).29 Integration of the principle of proportionality,
which operates ‘vertically’, with the ‘consensus’ doctrine, which operates
‘horizontally’, is extremely important. If the latter predominates, the prin-
ciple of proportionality can lose its importance, as agreement among differ-
ent legal orders becomes the parameter against which to evaluate State ac-
tion.
But counting too has presented some problems. One is that, in counting,
the ECtHR has resorted to legal solutions adopted in countries that are not
among the 47 members of the Council of Europe, such as Canada or South
Africa. Another is that the ECtHR traces a difference between relevant and
non-relevant consensus.
In these cases, national and supranational courts try to balance national
legal orders – that is, diversity – and supranational legal orders – that is,
uniformity.
In conclusion, the creation of a constellation of global and national courts
and the subsequent jurisdictional redundancy has the benefit of bringing the
rule of law into the global realm,30 thus challenging the supremacy of the
political process within the global arena, but also the cost of constructing an
order of which the ultimate dimension is unclear and in which uncertainty
prevails, as there is no final authority or there are competing claims to final
authority. This fluidity may be an important feature of judicial globalization,
as a new hierarchy is difficult to establish in a short period of time and it
may be better to leave the door open to experimentation.

D. Courts as Mediators: The Case of Proportionality

I shall now return to the use of proportionality in judicial interchange, and

examine two European cases. Alec Stone Sweet has written: “constitutional
judges have adopted [proportionality] to manage intra-constitutional con-

28 Ibid., 127.
29 Ibid., 259 & 264.
30 A. Nollkaemper, The Internationalized Rule of Law, 1 Hague Journal on the Rule of
Law (2009) 1, 74, 74 and A. Nollkaemper, National Courts and the International
Rule of Law (2011), e.g. 1, notes that the rule of law is increasingly defined by the
interaction and interface between international and national law.

159
Sabino Cassese

flicts associated with rights”.31 How has proportionality been used to solve
inter-constitutional conflicts (i.e. conflicts between different legal orders and
courts)?
The ECJ, in the Groener case, referred by the Irish High Court, established
that a requirement of linguistic knowledge imposed by the Irish government
is justified if it is applied in a proportionate manner: it is not disproportionate
if it is applied to permanent, full-time posts of lecturer in public vocational
education institutions.32 In that case, the requirement imposed on teachers
to have an adequate knowledge of a given language is not disproportionate
in relation to the objective pursued.33
The ECtHR, in the Handyside case, concluded that the seizure and con-
fiscation of a book by the British government, upheld by a Magistrates’ Court
and, on appeal, by the Inner London Quarter Sessions, does not violate Ar-
ticle 10 of the Convention (which guarantees freedom of expression), be-
cause it is “necessary in a democratic society” “for the protection of
morals”.34 Each government – according to the Court – has a margin of
appreciation in evaluating the necessity of a given measure for the protection
of morals; however, such a margin is not unlimited, because the restriction
must be proportionate to the legitimate aim pursued.35
In both cases mentioned, the principle of proportionality is judge-made
(the principle of proportionality was eventually codified in EU law, but only
following the Groener case).36
The proportionality principle is used in a legal space that is not uniform
and unitary, but, on the contrary, pluralist and diverse, in order to ‘balance’
two or more opposed interests, located at different levels of government:

31 A. Stone Sweet & J. Mathews, Proportionality Balancing and Global Constitution-

alism, 47 Columbia Journal of Transnational Law (2008) 1, 72, 91.
32 Anita Groener v. Minister for Education and the City of Dublin Vocational Educa-
tional Committee, ECJ Case No. C-379/87, Decision of 28 November 1989, [1989]
ECR 3967, 3994, para. 24.
33 Ibid.
34 Handyside v. United Kingdom, ECtHR Application No. 5493/72, Decision of 7 De-
cember 1976, para. 47.
35 Ibid., para. 49.
36 Treaty Establishing the European Community, Art. 5 (now: Treaty on European
Union (TEU), Art. 5. The consolidated version of the TEU can be found in OJ C
83/13 (30 March 2010)). See also Charter of Fundamental Rights of the European
Union, Art. 49 (3). The consolidated version can be found in OJ C 326/391 (26 Oc-
tober 2012).

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 Jurisdictional Redundancy and Interchange

protection or promotion of language (a national interest) and freedom of

movement of workers (a European interest); protection of morals (national)
and freedom of expression (European). In this context, the function of pro-
portionality is more complex than that of merely “balancing”,37 as it must
reconcile values and principles that are different and allocated to authorities
at different levels of government, to give rise to a unitary framework (or
identify the right measure of State limitations on certain rights). Therefore,
proportionality is instrumental both to the protection of rights and to the
allocation of tasks among different levels of government.38
Courts resort to the proportionality test in conjunction with another doc-
trine, that of the margin of appreciation, or discretion. Proportionality and
the ‘margin of appreciation’ reciprocally reinforce each other: the more dis-
cretion is left to the ‘lower’ level, the more the ‘higher’ level has to resort
to proportionality checks. Proportionality is instrumental to the purpose of
adjusting two sets of legal orders, to recognize the primacy of the ‘superior’
versus the ‘inferior’, while leaving manoeuvering room to the latter.39 Pro-
portionality is, in other words, a part of a more complex mechanism designed
to establish indirect rule.

37 On balancing by the ECJ, J. Schwarze, Balancing EU Integration and National In-

terests in the Case-Law of the Court of Justice, in Court of Justice of the European
Union (ed.), The Court of Justice and the Construction of Europe: Analyses and
Perspectives on Sixty Years of Case Law (2012), 257.
38 E. Bjorge, National Supreme Courts and the Development of ECHR Rights, 9 In-
ternational Journal of Constitutional Law (2011) 1, 5, 30, notes that “[n]ational
judges in the U.K., France and Germany are fully aware that it is incumbent upon
them to not only to be led, but also to give a lead to Strasbourg”.
39 The term ‘primacy’ (and not ‘supremacy’), is purposely used, as the relationships
between supranational legal orders are not hierarchical. See Spanish Constitutional
Court, Case No. 1/2004, Decision of 13 December 2004: “Supremacy and primacy
are categories which are developed in differentiated orders. The former, in that of
the application of valid regulations; the latter, in that of regulatory procedures.
Supremacy is sustained in the higher hierarchical character of a regulation and,
therefore, is a source of validity of the lower regulations, leading to the consequent
invalidity of the latter if they contravene the provisions set forth imperatively in the
former. Primacy, however, is not necessarily sustained on hierarchy, but rather on
the distinction between the scopes of application of different regulations, principally
valid, of which, however, one or more of them have the capacity for displacing others
by virtue of their preferential or prevalent application due to various reasons. In
principle, all supremacy implies primacy (which leads to its occasional equiva-
lence,

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Sabino Cassese

Proportionality requires comparison between two distinct legal orders and

public interests. Comparison is an essential aspect of this use of proportion-
ality. Proportionality is an important instrument for globalization, as it al-
lows global regulators to find their way in the global space, and to establish
their primacy (not supremacy), while at the same time respecting pre-exist-
ing national legal orders. Compatibility and tolerance of different values and
rules can be established through a mixture of ‘delegated’ power or discretion
left to the latter, while the former retain their power to measure and balance
‘higher’ principles with ‘lower’ rules. Indirect rule was instrumental for the
expansion of the British empire. Likewise, proportionality is instrumental to
globalization. Such an arrangement has the benefit of constituting an adap-
tive evolutionary process, as standards can change over time.

E. ‘Verallgemeinerungsfähigkeit’ and comparison

The proliferation of national, supranational and global courts obliges judges

to attend to their respective and reciprocal interaction. Consequently, judges
take on two new tasks. First, they necessarily become ‘sewers’, as they must
establish an interchange with other courts. Second, they become instrumen-
tal to the ‘Verallgemeinerungsfähigkeit’ or ‘universalisability’40 of certain
basic legal principles and values. As observed by Kingsbury and Stewart,
“the design, work and future evolution of international administrative tri-
bunals is both subject to and a creative influence on the development of,

as in our DTC 1/1992, FJ 1), unless the same supreme regulation has set forth, in
some scope, its own displacement or non-application. The supremacy of the Con-
stitution is therefore compatible with application systems which award applicative
preference to regulations of another legislation other than the national legislation as
long as the Constitution itself has set forth said provision, which is what happens
exactly with the provision set forth in Art. 93, which enables the transfer of compe-
tences resulting from the Constitution in favour of an international institution thus
enabled constitutionally for the regulatory provision of matters until then reserved
for constituted internal powers and the application thereto. In short, the Constitution
has accepted, by virtue of Art. 93, the primacy of the Union legislation in the scope
inherent to said Law, as now recognized expressly in Art. I-6 of the Treaty” (official
translation).
40 A. von Bogdandy, Prinzipien der Rechtsfortbildung im europäischen Rechtsraum:
Überlegungen zum Lissabon-Urteil des Bundesverfassungsgerichts und gegen den
methodischen Nationalismus, in C. Franzius et al. (eds.), Strukturfragen der Eu-
ropäischen Union (2010), 340, 341 and Andenas & Bjorge, supra note 21, 4 et seq.

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 Jurisdictional Redundancy and Interchange

global administrative law”.41 International administrative courts “strike bal-

ances between demands for generality in the enunciation and application of
core principles, and the need for contextualization in specific institutional
and socio-cultural settings”.42
This universalisability has a significant impact on legal scholarship, as it
adds a new quantitative and qualitative dimension to comparison. Legal
scholars cannot compare one legal system to another, nor one ‘family’ of
legal systems to another; they must move towards a more complex scheme
for comparison, where there are global, supranational, national, individual
and set-based categories.

41 Kingsbury & Stewart, Administrative Tribunals of International Organizations,

supra note 18, 103.
42 Ibid., 104 et seq.

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Subsidiarity in the Control of Decisions Based on Proportionality:
An Analysis of the Basis of the Implementation of ECtHR
Judgments into German Law

Angelika Nußberger

A. Judgments of the ECtHR as ‘Legal Irritants’ in National Legal Systems

I. Theory of ‘Legal Irritants’ in Comparative Law

Legal theory has invested a lot of effort in understanding the effects of the
transfer of legal concepts from one legal system to another one. The discus-
sion is based on different metaphors1 describing this process, the most
prominent being “legal transplants”2 and “legal irritants”.3 While Watson’s
theory of legal transplants is based on a technical understanding of law4 and
holds that the process of reception is either successful or not, Teubner’s
concept of legal irritants is more differentiated and allows a better under-
standing of the variety of effects of the integration of new elements into a
legal system from outside. Thus he argues that the transfer of a legal concept
from one legal system to another one starts a process in which the results
achieved cannot be easily foreseen.
“‘Legal irritants’ cannot be domesticated; they are not transformed from some-
thing alien into something familiar, not adapted to a new cultural context, rather
they will unleash an evolutionary dynamic in which the external rule’s meaning

1 Cf. C. Varga, Transfers of Law: A Conceptual Analysis, in N.N. (ed.), Hungary’s

Legal Assistance: Experience in the Age of Globalization (2006), 21, 24: “[...] that
the word-magic in the way we cultivate scholarship is strong enough to generate de-
bates, contradictions, negations [...].”
2 A. Watson, Legal Transplants: An Approach to Comparative Law (1974).
3 G. Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends
up in New Divergences, 61 The Modern Law Review (1998) 1, 11.
4 “[...] law like technology is very much the fruit of human experience. Just as very few
people have thought of the wheel yet once invented its advantage can be seen and the
wheel used by many, some important legal rules are invented by a few people or
nations, and once invented their value can readily be appreciated, and the rules them-
selves adopted for the needs of many nations.” Watson, supra note 2, 95.

165
Angelika Nußberger

will be reconstructed and the internal context will undergo fundamental

change.”5
In Teubner’s view, there is no “narrow alternative” between “repulsion and
integration” of a foreign rule. On the contrary, such rules irritate not only
“the minds and emotions of tradition-bound lawyers”, but also “law’s bind-
ing arrangements”; their original meaning is transformed and newly set up
in a different context.6

II. Judgments of the ECtHR as ‘Legal Irritants’ in National Legal Systems

Similarly, the effects of the rulings of the European Court of Human Rights
(thereinafter: ‘the Court’, ‘Strasbourg Court’ or ‘ECtHR’) on national legal
orders have been described as “troubles féconds” (fertile troubles) upsetting
legal certainty based on long-term legislation and jurisprudence.7 If the
Court finds a violation of the European Convention of Human Rights (there-
inafter: ‘the Convention’ or ‘ECHR’)8 the State concerned has a duty under
international law to change its legal system (Article 46 ECHR). This can be
troublesome if traditionally accepted structures of a legal system are called
into question. At the same time it can be fertile as it may lead to regulations
which are more human rights friendly. Problems arise if the new legal rule
cannot be easily integrated into the existing legal framework. The difficulties
in this context seem to be directly linked to the complexity of the legal system
under supervision: The more elaborated the legal doctrine9 is in a given sys-
tem, the more obstacles will hinder the implementation of case law de-
veloped on the basis of single cases. The obstacles are not insurmountable,
but nevertheless not to be neglected. National courts claim the right to ‘au-
tonomous integration’ of new solutions into the respective legal systems and

5 Teubner, supra note 3, 12.

6 Ibid.
7 Oral contribution of André Potocki in a workshop on ‘Legal security’ organized by
Cambridge University in September 2013.
8 Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14).
9 On different perceptions of the role of legal doctrine in German law on the one hand
and in ECHR law on the other hand see A. Nußberger, Zivilrechtliche Dogmatik und
Europäische Menschenrechtskonvention, in T. Lobinger et al. (eds.), Zur Integra-
tionskraft zivilrechtlicher Dogmatik (2014), 99.

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 Subsidiarity in the Control of Decisions Based on Proportionality

legal cultures.10 This shall be shortly explained on the basis of the imple-
mentation of the ECtHR’s jurisprudence on security detention into German
law.
In 2009 the ECtHR declared the system of preventive detention as it had
been developed on the basis of new legislation after 1998 incompatible with
Article 5 and Article 7 ECHR.11 As Germany was bound on the basis of
international law not only to implement the Court’s judgment in the concrete
case, i.e. to free the applicant and pay him the relevant compensation, but
also to bring its jurisprudence and legislation in accordance with the Con-
vention, the German Federal Constitutional Court accepted to revise its own
former jurisprudence which had denied any incompatibility of the system of
preventive detention with the German Constitution.12 In its new judgment
in 2011 the Constitutional Court adopted the same position as the ECtHR
and declared the relevant regulations in the Criminal Code unconstitution-
al.13
Although the result of the interaction between the two courts seems to be
straightforward and exemplary, an analysis of the Constitutional Court’s
approach reveals how far the ECtHR’s legal reasoning has had the effect of
a ‘legal irritant’ in the German legal system.
The two courts differ over the understanding of the legal concept of ‘pre-
ventive detention’. In its pleading in the case M. v. Germany the Government
based its argumentation on the ‘twin-track system of sanctions’ which made
a strict distinction between ‘penalties’ and ‘measures of correction and pre-
vention’, such as preventive detention . The Government highlighted that
penalties were of a punitive nature and were fixed with regard to the of-
fender’s personal guilt, whereas measures of correction and prevention were

10 This is one of the basic requests in the famous Görgülü judgment of the Federal
Constitutional Court. Cf. Görgülü, German Federal Constitutional Court, Case No.
2 BvR 1481/04, Decision of 14 October 2004, 111 BVerfGE 307. An English version
of the judgment is available at https://www.bundesverfassungsgericht.de/entschei-
dungen/rs20041014_2bvr148104en.html (last visited 27 February 2014). See W.
Hoffmann-Riem, Die Caroline II-Entscheidung des BVerfG: Ein Zwischenschritt
bei der Konkretisierung des Kooperationsverhältnisses zwischen den verschiedenen
betroffenen Gerichten, 62 Neue Juristische Wochenschrift (2009) 1, 20, 22.
11 M. v. Germany, ECtHR Application No. 19359/04, Judgment of 17 December 2009.
12 Sicherungsverwahrung, German Federal Constitutional Court, Case No. 2 BvR
2029/01, Decision of 5 February 2004, 109 BVerfGE 133.
13 Sicherungsverwahrung II, German Federal Constitutional Court, Case Nos. 2 BvR
2333/08 et al., Decision of 4 May 2011, 128 BVerfGE 326.

167
Angelika Nußberger

of a preventive nature and were ordered because of the danger presented by

the offender, irrespective of his or her guilt.14 The Court did not accept this
doctrinal distinction. It explained that ‘penalty’ as understood in the Con-
vention (Article 7) was an autonomous concept. The starting-point was
whether the measure in question was imposed following conviction for a
criminal offence. Furthermore its nature and purpose, the procedures in-
volved in its making and implementation, and its severity had to be taken
into account.15 Under all these criteria preventive detention as applied under
German law qualified as a penalty. Although the Court accepted that the
characterization of the measure under domestic law was a relevant factor as
well, it did not consider it as decisive. Thus the Court held that preventive
detention, even if it was qualified as a ‘measure of correction and prevention’
under German law was to be seen as a ‘penalty’ under European law.
The German Constitutional Court followed the Strasbourg Court’s ap-
proach in holding retroactive ordering of preventive detention to be a vio-
lation of human rights, but it did not accept the Court’s legal qualification.
On the contrary, in its leading judgment in 2011 it explained in a detailed
manner that the twin-track system of sanctions had to be upheld. The
ECtHR’s reasoning was thus conceived as an irritation within the German
system of penal sanctions as defined in the Penal Code. The alternative ap-
proach followed by the ECtHR was taken up and discussed, but the legal
doctrine was not changed. As a consequence the absolute ban on the retro-
spective application of criminal law under Article 103 (2) of the Basic Law
was considered not to cover preventive detention. The ‘traditional’ qualifi-
cation of preventive detention as a ‘measure of correction and prevention’
was, however, not only confirmed, but ‘reconstructed’ (in the sense of Teub-
ner’s theory), i.e. interpreted in a new way as an especially serious interfer-
ence in the right to liberty justifiable only under exceptional circum-
stances.16 On this basis the Constitutional Court developed the legal concept
of Abstandsgebot (requirement of establishing a difference between preven-

14 M. v. Germany, ECtHR Judgment, supra note 11, para. 113.

15 Ibid., para. 120.
16 Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra
note 13, 374-375 (paras. 100-101): “Der in der Sicherungsverwahrung liegende Ein-
griff in das Freiheitsgrundrecht ist daher auch deshalb äußerst schwerwiegend, weil
er ausschließlich präventiven Zwecken dient und dem Betroffenen – da der Frei-
heitsentzug stets nur auf einer Gefährlichkeitsprognose, nicht aber auf dem Beweis
begangener Straftaten beruht – im Interesse der Allgemeinheit gleichsam ein Son-
deropfer auferlegt.”

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 Subsidiarity in the Control of Decisions Based on Proportionality

tive detention and detention for serving a term of imprisonment) as a mea-

surement for the constitutionality of preventive detention. The Abstandsge-
bot had not been mentioned by the Strasbourg Court in its judgment M. v.
Germany. Nevertheless, the idea was taken up by the German legislator in
the Act on Establishment of a Difference in the Provisions on Preventive
Detention Compared to those on Prison Sentences (Gesetz zur bun-
desrechtlichen Umsetzung des Abstandsgebotes im Recht der
Sicherungsverwahrung).17
The Strasbourg Court acknowledged and commended the approach of the
German Constitutional Court in its later judgments:18
“[The Court] agrees with the Government that by its judgment, the Federal
Constitutional Court implemented this Court’s findings in its above-mentioned
judgments on German preventive detention in the domestic legal order. It gave
clear guidelines both to the domestic criminal courts and to the legislator on the
consequences to be drawn in the future from the fact that numerous provisions
of the Criminal Code on preventive detention were incompatible with the Basic
Law, interpreted, inter alia, in the light of the Convention. Its judgment thus
reflects and assumes the joint responsibility of the State Parties and this Court
in securing the rights set forth in the Convention.”19
Nevertheless, in the case Glien v. Germany the Court also highlighted the
differences in implementation without, however, criticizing them:
“[The Constitutional Court] considered that it was not necessary schematically
to align the meaning of the constitutional notion of ‘penalty’ to that under the
Convention. Recourse should rather be had to the valuations (Wertungen) under
the Convention in a result-oriented manner in order to prevent breaches of public
international law [...].”20
It is true that subsequently the Court found violations of the Convention in
the implementation of the new rules on preventive detention during the tran-
sitional period granted to the German legislator by the Constitutional
Court.21 But this was not due to conceptual differences. The problem was
that even those kept under preventive detention as “persons of unsound

17 Law adopted on 5 December 2012, Bundesgesetzblatt [Law Gazette] 2012, Vol. I,

2425.
18 Kronfeldner v. Germany, ECtHR Application No. 21906/09, Judgment of 19 January
2009, paras. 41 et seq.
19 Ibid., para. 59.
20 Glien v. Germany, ECtHR Application No. 7345/12, Judgment of 28 November
2013, para. 47.
21 Ibid.

169
Angelika Nußberger

mind” under Article 5 (1) (e) of the Convention remained in prison and were
not transferred to appropriate institutions for mental health patients.22
This example shows that the implementation of the Court’s jurisprudence
was a complex process which allowed the German legal system and its inner
logics to remain ‘intact’ while integrating the human rights message of the
judgment.
While this is a case of ‘smooth integration’ there are other examples where
the Court’s approach and German legal doctrine seem very difficult to rec-
oncile. One example that is yet unresolved is the follow-up to the judgment
Neziray v. Germany23 concerning the right to be heard in court (Article 6
(1)) and the right to defend oneself in person or through a lawyer (Article 6
(3) (c)). The German court had rejected the applicant’s appeal on formal
grounds due to his failure to attend the hearing in the second instance, despite
the fact that his counsel had been present and ready to defend him. The
Strasbourg Court based its finding of a violation on the long-standing, but
never uncontested24 interpretation of the ‘right to defend oneself in person
or through legal assistance of one’s own choosing’ as a ‘right to be replaced
by a lawyer’. This approach is deemed to be incompatible not only with the
German Code of Criminal Procedure as it stands,25 but also with the general
understanding of the lawyer’s role in criminal procedure. According to Ger-
man law the lawyer’s role is to assist the accused, but not to represent or
replace him or her. Contrary to that in the common law tradition self-defense

22 Ibid., paras. 92 et seq.

23 Neziraj v. Germany, ECtHR Application No. 30804/07, Judgment of 8 November
2012.
24 There is a long list of Dissenting and Concurring Opinions to the majority’s approach.
See for example Joint Dissenting Opinion of Judges Ryssdal, Freeland & Lopes
Rocha and Dissenting Opinion of Judge Pettiti, Poitrimol v. France, ECtHR Appli-
cation No. 14032/88, Judgment of 23 November 1993; Concurring Opinion of Judge
Ryssdal, joint by Judge Mifsud Bonnici and Dissenting Opinion of Judge Matscher,
Lala v. Netherlands, ECtHR Application No. 14861/89, Judgment of 22 September
1994.
25 Sec. 329 (1) (1) of the German Code of Criminal Procedure. See the judgments of
several German courts explicitly declaring not to follow the Court’s jurisprudence:
Düsseldorf Court of Appeal [Oberlandesgericht], Case Nos. III-2 RVs 11/12 & 2
RVs 11/12, Decision of 27 February 2012, 33 Strafverteidiger (2013) 5, 299, 301
(paras. 15-18); München Court of Appeal, Case No. 4 StRR (A) 18/12, Decision of
17 January 2013, 33 Strafverteidiger (2013) 5, 301, 303 (paras. 6-12); Hamm Court
of Appeal, Case Nos. III-1 RVs 41/12 & 1 RVs 41/12, Decision of 14 June 2012, 6
Strafrechtsreport (2012) 12, 463 (para. 11).

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 Subsidiarity in the Control of Decisions Based on Proportionality

and defense by a lawyer are possible at the same time.26 The judgment
Neziraj v. Germany is therefore taken as a pretext to bring about a funda-
mental change of the lawyer’s position in the German criminal procedure, a
change that is fiercely opposed by some. Thus it is obvious that the Stras-
bourg Court’s approach causes irritation. The legislator will be called upon
to solve the problem and to integrate the right of the accused to be absent in
the second instance into a system which is traditionally based on the accused
person’s presence during trial.

B. Specific Characteristics of Human Rights Jurisprudence in a Triangular

Setting

I. Conflicts between Non-Hierarchical and Equally Protected Human

Rights

The implementation of the Court’s judgments is even more difficult when

they are based on the application of the proportionality principle in a trian-
gular or multipolar conflict in which different human rights have to be bal-
anced. The German Constitutional Court has coined the expression of ‘mul-
tipolar conflicts’ for this phenomenon in its famous Görgülü judgment.
While this judgment has been heavily criticized for justifying in certain sit-
uations not following the ECtHR case law, the idea of the ‘multipolar con-
flict’ is helpful:
“Precisely in cases in which national courts, as in private law, have to structure
multipolar fundamental rights situations, it is always important that various
subjective legal positions are sensitively weighed against each other.”27
The concept is taken up in the Constitutional Court’s judgment on preventive
detention as well:
“The limits of the interpretation in a manner that is open to public international
law [völkerrechtsfreundliche Auslegung] are enshrined in the Basic Law. This
interpretation must not lead to a reduction of the human rights protection guar-

26 See the detailed analysis on this point T. Weigend, Das erledigt mein Anwalt für
mich: Hat der Angeklagte ein Recht darauf, sich in der Hauptverhandlung vertreten
zu lassen?, in M. Heger et al. (eds.), Festschrift für Kristian Kühl zum 70. Geburtstag
(2014), 947.
27 Görgülü, German Federal Constitutional Court Decision, supra note 10, 324 (para.
50) (translation provided by the Court).

171
Angelika Nußberger

anteed on the basis of the Basic Law; this is excluded by the European Con-
vention on Human Rights itself (Article 53 of the Convention). This inhibition
to reception can be especially relevant in multipolar human rights relationships
in which ‘more’ freedom for one person protected by human rights can be ‘less’
for the other one.”28
The concept is further elaborated in the German legal literature.29 The ex-
istence of multipolar conflicts is acknowledged by the ECtHR as well. It
accepts that the Court may be faced with a dilemma situation where the
protection of one right leads to the interference with another right. Famous
examples are conflicts between the freedom of the press (Article 10) on the
one hand and the protection of the reputation of the person whose private
life is covered by the press report (Article 8) on the other hand – all the three
Von Hannover judgments deal with this conflict.30 In the case Sindicatul v.
Romania31 the religious autonomy of the Orthodox Church (Article 9) and
the priests’ freedom to found a trade union (Article 11) are mutually exclu-
sive. In child abduction cases the right to family life (Article 8) can be in-
voked both for the position of the mother and for the position of the fa-
ther.32

28 Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra

note 13, 327, leading principle 2 (c) (translation by the author).
29 Cf. G. Lübbe-Wolff, Der Grundrechtsschutz nach der Europäischen Menschenrecht-
skonvention bei konfligierenden Individualrechten: Plädoyer für eine Korri-
dorlösung, in M. Hochhuth (ed.), Nachdenken über Staat und Recht: Kolloquium
zum 60. Geburtstag von Dietrich Murswiek (2010), 193; W. Hoffmann-Riem, Kon-
trolldichte und Kontrollfolgen beim nationalen und europäischen Schutz von Frei-
heitsrechten in mehrpoligen Rechtsverhältnissen: Aus der Sicht des Bundesverfas-
sungsgerichts, 33 Europäische Grundrechte-Zeitschrift (2006) 17-18, 492; C. Cal-
liess, Schutzpflichten, in D. Merten & H.-J. Papier (eds.), Handbuch der Grundrechte
in Deutschland und Europa, Vol. II (2006), 963, 979-983, paras. 18-22 with further
references; R. Wahl & J. Masing, Schutz durch Eingriff, 45 Juristenzeitung (1990)
12, 553.
30 Von Hannover v. Germany, ECtHR Application No. 59320/00, Judgment of 24 June
2004; Von Hannover v. Germany (No. 2), ECtHR Application Nos. 40660/08 &
60641/08, Judgment (GC) of 7 February 2012; Von Hannover v. Germany (No. 3),
ECtHR Application No. 8772/10, Judgment of 19 September 2013.
31 Sindicatul “Păstorul cel Bun” v. Romania, ECtHR Application No. 2330/09, Judg-
ment (GC) of 9 July 2013.
32 X. v. Latvia, ECtHR Application No. 27853/09, Judgment (GC) of 26 November
2013; Neulinger and Shuruk v. Switzerland, ECtHR Application No. 41615/07,
Judgment (GC) of 6 July 2010.

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 Subsidiarity in the Control of Decisions Based on Proportionality

However, the difference between multipolar human rights conflicts and

‘normal human rights conflicts’ is only a gradual, not a substantial one. Even
in a classical conflict opposing an individual and the State the infringement
of the relevant human right has to be justified on the basis of the ‘rights and
freedoms of others’, even if they may be hidden behind an abstract concept
such as ‘public safety’ or ‘prevention of disorder and crime’, or ‘health and
morals’. Every human rights conflict can thus be construed as ‘multipolar’:
If, for example, as a consequence of the protection of an accused person’s
procedural rights a perpetrator cannot be held criminally liable, the victim’s
rights under the procedural limb of Article 2 or 3 may be limited. This ar-
gument was also used by the German Government and taken up by the Court
in the preventive detention cases:
“The Court is aware of the fact that the domestic courts ordered the applicant’s
preventive detention beyond a period of ten years because they considered that
there was still a risk that the applicant might commit serious sexual offences, in
particular rape, if released. They thus acted in order to protect potential victims
from physical and psychological harm amounting to inhuman or degrading
treatment which might be caused by the applicant. Under the Court’s well-es-
tablished case law, States are indeed required under Article 3 to take measures
designed to ensure that individuals within their jurisdiction are not subjected to
torture or inhuman or degrading treatment, including such ill-treatment admin-
istered by private individuals.”33
In such cases, however, the Court considers positive obligations to be limi-
ted:
“[...] the Convention obliges State authorities to take reasonable steps within
the scope of their powers to prevent ill-treatment of which they had or ought to
have had knowledge, but it does not permit a State to protect individuals from
criminal acts of a person by measures which are in breach of that person’s Con-
vention rights, in particular the right to liberty as guaranteed by Article 5 § 1.”34
Thus, in these conflicts one right is not the flipside of the other right; the
protection of these Convention rights is not mutually exclusive, a balancing
exercise is not necessary.
The specificity of multipolar human rights conflicts is expressed very
clearly by the Court in the judgment Von Hannover v. Germany (No. 2):

33 Jendrowiak v. Germany, ECtHR Application No. 30060/04, Judgment of 14 April

2011, para. 36.
34 Ibid., para. 37.

173
Angelika Nußberger

“In cases such as the present one, which require the right to respect for private
life to be balanced against the right to freedom of expression, the Court considers
that the outcome of the application should not, in theory, vary according to
whether it has been lodged with the Court under Article 8 of the Convention,
by the person who was the subject of the article, or under Article 10 by the
publisher. Indeed, as a matter of principle these rights deserve equal respect
[...].”35

II. Conflict Solution on the Basis of the Principle of Proportionality

If, as the Court states, two different rights ‘deserve equal respect’ it is dif-
ficult to decide in the concrete case which right should prevail. The only
written criteria the Court can rely on are the words ‘necessary in a democratic
society’ describing restrictions to various rights such as Article 8, Article 9,
Article 10, and Article 11. The word ‘necessary’ is closely linked to the idea
of proportionality,36 the principle mostly relied on by the Court in solving
such multipolar conflicts.37
On this basis it is the Court’s task to define in each concrete case the
criteria applicable to ‘weigh’ or ‘balance’ the respective rights. In developing
and applying these criteria the jurisprudence has to be consistent. Neverthe-
less, each case is different. The possibility of different solutions on the basis
of the Convention is amply illustrated by the fact that, as a rule, such cases
are decided by a majority vote and not unanimously.
The national courts bound to implement such judgments are confronted
with the difficulty of deducing general principles from a judgment given in
one concrete case and applying them in different circumstances. This prob-
lem has been clearly articulated by the Federal Constitutional Court:
“The uncertainty about the result in solving multipolar conflicts which make
balancing necessary can be overcome by classifications, but generally only with

35 Von Hannover v. Germany (No. 2), ECtHR Judgment, supra note 30, para. 106.
36 See for a broad definition M. Andenas & S. Zleptnig, Proportionality: WTO Law in
Comparative Perspective, 42 Texas International Law Journal (2007) 3, 371, 375:
“Proportionality is a trade-off-device which helps resolve conflicts between different
norms, principles and values.”
37 See the comprehensive study by S. v. Droogenbroeck, La proportionnalité dans le
droit de la convention européenne des droits de l’homme (2001). See also A.
Nußberger, Das Verhältnismäßigkeitsprinzip als Strukturprinzip richterlichen
Entscheidens in Europa, 32 Neue Zeitschrift für Verwaltungsrecht - Beilage (2013)
1, 36.

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 Subsidiarity in the Control of Decisions Based on Proportionality

the risk of generalization which is contrary to the aim of considering the specific
circumstances of the case. It is therefore generally not possible to renounce on
the supplementary exercise of discretion in each specific case.” 38
The conflicts triggered by the development of such criteria are well illus-
trated by the case Von Hannover v. Germany (No. 1).
Before the adoption of the Von Hannover case in 2004 by the ECtHR
there was a long-standing jurisprudence of the German Federal Supreme
Court and the Federal Constitutional Court on how to solve conflicts between
freedom of the press and right to private life.39 The basic ideas were the
following: The level of protection may vary in relation to the famousness of
the person who is the object of (photo)reporting in the press. Celebrities have
to accept reports on and photos of their private life as long as those reports
are not connected with what has to be considered as an ‘intrusive approach’.
This does not apply to all celebrities, but only to ‘figures of contemporary
society par excellence’ (‘Personen der Zeitgeschichte’) because of the pub-
lic interest in their life and life-style. This interest is legitimate in view of
their influence and leading function in society.
In the first Von Hannover case the Federal Constitutional Court accepted
the Federal Supreme Court’s (Bundesgerichtshof) distinction between pho-
tos taken of Caroline von Hannover, who was considered to be a Person der
Zeitgeschichte, on the market place and photos taken in a moment of private
intimacy in a separate room in a public restaurant. While the former were
allowed to be published, the latter were not.
This approach was not accepted by the European Court of Human Rights.
Although it also took as the starting-point the necessity of balancing the right
to private life against the freedom of the press, it arrived at a different con-
clusion.
The argumentation of the two courts differed basically with respect to one
criterion: the contribution of reports and photos to the public debate in a
given society. While for the German Constitutional Court it was sufficient
to note the public interest in the lifestyle of celebrities because of their lead-

38 Caroline von Monaco IV, German Federal Constitutional Court, Case Nos. 1 BvR
1602/07 et al., Decision of 26 February 2008, 120 BVerfGE 180, 212-213 (para. 82)
(translation by the author).
39 The most important judgment summarizing the jurisprudence is the judgment Car-
oline von Monaco II, German Federal Constitutional Court, Case No. 1 BvR 653/96,
Decision of 15 December 1999, 101 BVerfGE 361, underlying the Von Hannover
case at the ECtHR.

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Angelika Nußberger

ing function and their influence, the Strasbourg Court held that the mere
desire to satisfy public curiosity did not justify the infringement of the right
to private life. In such a situation the protection of private life outweighed
the freedom of the press:
“The Court considers that a fundamental distinction needs to be made between
reporting facts – even controversial ones – capable of contributing to a debate
in a democratic society relating to politicians in the exercise of their functions,
for example, and reporting details of the private life of an individual who,
moreover, as in this case, does not exercise official functions. While in the for-
mer case the press exercises its vital role of ‘watchdog’ in a democracy by
contributing to ‘impart[ing] information and ideas on matters of public interest
[...] it does not do so in the latter case.”40
As a consequence the publication of the photos of Caroline von Hannover
on the market place was considered to violate her right to private life.
The gist of the Strasbourg Court’s jurisprudence is the development of an
additional criterion to be taken into account in balancing the right of freedom
of the press and protection of the private sphere: ‘the contribution to a public
debate’.41 This criterion had not existed as such in the German legal doc-
trine.
The Strasbourg Court did, however, not only focus on the contribution to
a public debate in balancing the rights at stake, but went even further and
criticized the conceptual basis of the German courts’ approach. It held that
the description of persons as ‘figures of contemporary society par excel-
lence’42 afforded them only very limited protection of their private lives and
of the right to control the use of their image. Furthermore, the Court argued
that the concepts developed in German doctrine were too vague and did not
give any legal security to the persons concerned as they could not predict

40 Von Hannover v. Germany, ECtHR Judgment, supra note 30, para. 63.
41 This criterion was, however, not new, but had already been put forward by the Court
in other cases. Cf. Tammer v. Estonia, ECtHR Application No. 41205/98, Judgment
of 6 February 2001, paras. 59 et seq.; News Verlags GmbH & Co. KG v. Austria,
ECtHR Application No. 31457/96, Judgment of 11 January 2000, paras. 52 et seq.;
Krone Verlag GmbH & Co. KG v. Austria, ECtHR Application No. 34315/96, Judg-
ment of 26 February 2002, paras. 33 et seq.
42 It should be clarified that this is not a constitutional concept in German law, but was
developed by the civil courts and accepted by the German Federal Constitutional
Court.

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how far their private sphere would be protected and when they would have
to tolerate intrusions.43
It is thus possible to identify three strands of criticism: the neglect of the
criterion of ‘contribution to a public debate’ in weighing the interests in-
volved, the vague and unforeseeable character of German law as interpreted
by the courts, and the ‘wrong’ result of the balancing exercise. With this
argumentation the Court initiated a shift in human rights protection under
Arts. 10 and 8 ECHR. While the protection of the tabloid press under Article
10 was considerably weakened, the protection of celebrities’ private life un-
der Article 8 was enhanced.
In implementing the judgment the German courts were confronted with
significant difficulties. First, they had to revise their jurisprudence on the
basis of indications in one single case solving a concrete problem in a mul-
tipolar conflict. As each new case would demand a new balancing exercise,
it would be difficult to guarantee legal security. Second, they had to avoid
lowering the standard of protection of the freedom of the press as this would
have been a problem under Article 53 of the Convention. Third, the criteria
developed by the European Court were vague and unpredictable. There was
no generally accepted definition of what could be understood as a ‘public
debate’ and what would ‘contribute’ to such a debate, especially taking into
account that the use of photos illustrating articles was the main issue. Fur-
thermore, it was unclear if the whole jurisprudence on protecting private
rights against media interferences had to be revised or if it was sufficient to
modify it slightly and to integrate as a new criterion the contribution of the
publication to a public debate.
This example shows the difficulties in implementing judgments of the
Court in multipolar conflicts in which solutions are found on the basis of
balancing the concrete rights and interests involved. The Court’s judgments
contain only one very specific message modeled on one very specific situ-
ation. It is unavoidable that such new case law has to be developed further
in the interplay between national courts and the ECtHR.
Therefore these cases fundamentally differ from cases where the result
does not depend on the application of the principle of proportionality such
as the preventive detention cases. If already in those cases the Strasbourg
jurisprudence upsets the national legal system as an ‘irritant’, a forteriori

43 Von Hannover v. Germany, ECtHR Judgment, supra note 30, para. 72.

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Angelika Nußberger

this is true in implementing Court judgments based on the proportionality

principle.

C. Follow-Up on Judgments Balancing Human Rights Positions

I. Role of National Courts

The follow-up to judgments based on proportionality is a continuous process

as each new case has to be assessed weighing the relevant criteria without a
prefixed result. Experience has shown that disputes in multipolar conflicts
are widespread, the national courts are uncertain how to apply the concepts
developed by the ECtHR, and the parties concerned have a tendency not to
accept the results found on the national level, but to test them on the European
level as well. It is worth illustrating this problem in the follow-up to the Von
Hannover case of 2004 which was not only a challenge for the courts, but
also triggered a very intense academic debate in Germany.44
In the aftermath of the first Von Hannover judgment the German courts
were confronted with several cases concerning photos and articles about the
private life of Caroline von Hannover. The different courts held different
views on how to integrate the new criteria into the jurisprudence of the Fed-
eral Supreme Court and the Federal Constitutional Court.
The Federal Supreme Court clearly accepted to change its case law with-
out, however, reversing it.45 It modified the idea of limited protection for
‘figures of contemporary society par excellence’ and replaced it by a concept
of graduated protection (abgestuftes Schutzkonzept). It took into account the
criteria developed by the Strasbourg Court and explained that, insofar as
‘figures of contemporary society’ were concerned, consideration had to be
given to the question whether the report contributed to a public debate and
whether the content went beyond a mere intention to satisfy curiosity. It also
did not insist any longer on the idea of protection confined to situations of
spatial isolation which the Strasbourg Court had criticized as too vague. At
the same time it stretched the interpretation of the notion of ‘public debate’

44 See, e.g., the contributions published immediately after the adoption of the judgment
in H. Prütting (ed.), Das Caroline-Urteil des EGMR und die Rechtsprechung des
Bundesverfassungsgerichts (2005).
45 Cf. German Federal Supreme Court, Case No. VI ZR 51/06, Decision of 6 March
2007, 171 BGHZ 275.

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very far and accepted quite a loose link between the subject of the article
and the photo. Thus, for publishing a photo of Caroline von Hannover during
her ski holidays it was considered sufficient to link it to an article about the
ill-health of the reigning Prince of Monaco.46
The Constitutional Court accepted the Federal Supreme Court’s interpre-
tation and explicitly referred to its restricted right to control the civil courts’
decisions in this respect:
“The fact that the court’s balancing exercise of the various rights in complex
multi-polar disputes can also result in a different outcome is not sufficient reason
for requiring the Federal Constitutional Court to correct a court decision. How-
ever, there would be a violation of the Constitution if the protective scope
(Schutzbereich) or extent of a fundamental right had been wrongly or incom-
pletely determined and the balancing exercise were accordingly flawed, or if
the requirements under constitutional law or the Convention had not been duly
taken into account. This is especially true for the constitutionally relevant di-
rectives (Maßgaben) of the European Convention on Human Rights.”47
Even if all the German courts dealing with the case explicitly engaged in a
dialogue with the ECtHR’s jurisprudence and reacted to the criticism ex-
pressed, the consequences of the new jurisprudence for the persons con-
cerned were ambiguous. While their protection was enhanced in some cases,
in other cases it was accepted that the interest of the press prevailed. That is
why the applicants complained that the new approach of the Federal
Supreme Court and the Federal Constitutional Court merely reproduced the
reasoning of the former case law using different terms.48
The case of Von Hannover v. Germany (No.3) was therefore a test for the
new approach. The complaint of the applicant concerned an article about a
house owned by the von Hannover family in Kenya including some reflec-
tions on a purportedly new development that rich people rented their holiday
houses to ‘normal people’. The article was accompanied by an unrelated
picture of Caroline of Hannover and her husband. In this case the Regional
Court prohibited in 2005 the publication as it considered it to be an unjus-
tified interference with private life. On the next level in 2006 the Court of
Appeal put more weight on the freedom of the press. The Federal Supreme
Court decided in 2007 that the criteria developed by the ECtHR had not been

46 Ibid.
47 Caroline von Monaco IV, German Federal Constitutional Court Decision, supra note
38, 210 (para. 76) (translation by the author).
48 Von Hannover v. Germany (No. 2), ECtHR Judgment, supra note 30, para. 84.

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Angelika Nußberger

respected in the court of appeal’s judgment as the article did not tackle any
subject of public interest. The Constitutional Court in 2008 saw it once more
differently and criticized the Federal Supreme Court for not applying the
Strasbourg Court’s jurisprudence correctly. In its view the report on renting
family houses could kick off a social debate and was therefore a subject of
public interest. When the Federal Supreme Court had to decide a second time
in 2008 it accepted the evaluation given by the Federal Constitutional Court,
which, in turn, did not find a violation of the Constitution and declined to
deal with the case once more without giving any motivation. That means
that 27 German judges had decided on the case. Their contradictory assess-
ments illustrate the difficulties in applying the vague criteria developed in
the Strasbourg Court’s jurisprudence. Several questions obviously remained
unclear: Which criteria should be applied, how they should be applied, how
the notion of a ‘public debate’ should be interpreted, and how the relation
between the written text and the photo should be assessed.
With a view to legal security the effects of the Strasbourg Court’s judg-
ment, even if seen as a trouble fécond, turned out to be more troublesome
than fruitful, at least for a transitory period until all the open questions would
be settled on a case-by-case basis.

II. Role of the ECtHR

1. Principle of Subsidiarity and Margin of Appreciation

It is obvious that the new jurisprudence had to be clarified and the German
courts’ position to be re-evaluated by the Strasbourg Court. The most im-
portant answers were given in the judgment Von Hannover v. Germany (No.
2) in 2012. The case Von Hannover v. Germany (No. 3) only helped to round
up and confirm the jurisprudence of the Grand Chamber.
On the basis of a thorough analysis of the German courts’ jurisprudential
developments the Strasbourg Court accepted the interpretation of the notion
of ‘debate of general interest’:
“The Court can therefore accept that the photos in question, considered in the
light of the accompanying articles, did contribute, at least to some degree, to a
debate of general interest.”49

49 Ibid., para. 118.

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As a consequence the Court also accepted the result of the balancing exercise
between freedom of expression and right to private life.50
Although the Court’s statement is rather cautious it can be interpreted as
a step towards the German courts in the debate. It evinces the main principles
in implementing ECtHR judgments based on the proportionality principle
in the national context, i.e. the principle of subsidiarity and the principle of
margin of appreciation.
The ‘subsidiarity principle’ has been the common thread in the reform
discussion about the Court.51 It generally applies to the interplay between
the ECtHR and national courts. It is, however, especially important in de-
ciding on multipolar conflicts brought to the Court as a follow-up to a judg-
ment based on the principle of proportionality.
The subsidiarity principle is intimately linked to the principle of a wide
margin of appreciation as it limits the intensity of the Court’s control of
national courts’ decision-making if different solutions to a conflict are pos-
sible under human rights law. As a rule this always applies to conflicts be-
tween different human rights positions which are all equally protected by
the Convention.52
While this is generally accepted the open question remains how to define
the exact level of control of the national courts’ decisions. Basically there
are three different approaches. First, it is possible for the Court to limit the
control to ascertaining that the respondent State has exercised its discretion
reasonably, carefully and in good faith and thus to focus only on the proce-
dural aspect (procedural approach). Second, the Court can adopt a formal
approach and make sure that the criteria used by the national authorities to
justify their decision are ‘relevant and sufficient’, i.e. that the criteria de-
veloped by the Court for conflict solution are applied (formal approach).

50 For a critique to the Court’s reconciliation with the position of the German courts
see J. Renucci, La CEDH et l’affaire «Von Hannover (n° 2)»: un recul for contestable
du droit au respect de la vie privée, 188 Recueil Dalloz (2012) 16, 1040.
51 High Level Conference on the Future of the European Court of Human Rights,
Brighton Declaration, available at http://hub.coe.int/20120419-brighton-declaration
(last visited 27 February 2014).
52 Cf. Sindicatul “Păstorul cel Bun” v. Romania, ECtHR Judgment, supra note 31;
Evans v. United Kingdom, ECtHR Application No. 6339/05, Judgment of 10 April
2007, para. 77; Von Hannover v. Germany (No. 2), ECtHR Judgment, supra note 30,
para. 106; Axel Springer AG v. Germany, ECtHR Application No. 39954/08, Judg-
ment of 7 February 2012, para. 82; Von Hannover v. Germany (No. 3), ECtHR Judg-
ment, supra note 30, para. 43.

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Angelika Nußberger

Third, the Court can go into a material assessment of the result of the bal-
ancing exercise and ask if the interference was ‘proportionate to the legiti-
mate aim pursued’. It would thus repeat the balancing exercise (substantial
approach).
Basically the Court is open to control all three levels:
“The Court’s task, in exercising its supervisory jurisdiction, is not to take the
place of the competent national authorities but rather to review under Article 10
the decisions they delivered pursuant to their power of appreciation. This does
not mean that the supervision is limited to ascertaining whether the respondent
State exercised its discretion reasonably, carefully and in good faith; what the
Court has to do is to look at the interference complained of in the light of the
case as a whole and determine whether it was ‘proportionate to the legitimate
aim pursued’ and whether the reasons adduced by the national authorities to
justify it are ‘relevant and sufficient’ [...]. In doing so, the Court has to satisfy
itself that the national authorities applied standards which were in conformity
with the principles embodied in Article 10 and, moreover, that they relied on an
acceptable assessment of the relevant facts [...].”53
The scope of control as outlined in the judgment Stoll v. Switzerland which
concerns the conviction of a journalist for the publication of a diplomatic
document on strategy classified as confidential is quite far-reaching.
In Von Hannover v. Germany (No. 2) the principle of subsidiarity gets
more weight in this context:
“Where the balancing exercise has been undertaken by the national authorities
in conformity with the criteria laid down in the Court’s case-law, the Court
would require strong reasons to substitute its view for that of the domestic courts
[...].”54
In the judgment Von Hannover v. Germany (No. 3) the control is intense on
the first and second level (procedural and formal approach). Concerning the
outcome of the balancing exercise based on the assessment of the existence
of a ‘debate of general interest’ (substantial approach) the Court seems to be
satisfied with a control on arbitrariness: “La qualification [...] de l’objet de
l’article d’événement d’intérêt général ne saurait passer pour
déraisonnable.”55
The statement is, however, preceded by an indication of the limits of in-
terpretation of ‘debate of general interest’. Thus the Court emphasizes that

53 Stoll v. Switzerland, ECtHR Application No. 69698/01, Judgment (GC) of 10 De-

cember 2007, para. 101.
54 Von Hannover v. Germany (No. 2), ECtHR Judgment, supra note 30, para. 107.
55 Von Hannover v. Germany (No. 3), ECtHR Judgment, supra note 30, para. 52.

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the text of the article must not be used as a mere pretext for publishing a
photo. Furthermore, there must not be an artificial link between the photo
and the text. Thus, the Court gives leeway to the national courts in applying
the relevant criteria, but not without any limits.

2. Obligation of Conduct vs. Obligation of Result

Based on the distinction between ‘obligations of conduct’ and ‘obligations

of result’ in general international law56 it may therefore be argued that the
national courts have basically an obligation of conduct in implementing the
Court’s judgments based on the principle of proportionality.
While the metaphor of balancing rights suggests that different interests
or different rights can be weighed with the effect that a clear result can be
read on the scale, John Bell is right in pointing at the incommensurability of
rights and interests:
“[...] proportionality is not about balancing advantages and disadvantages of a
decision on some scale. The problems are incommensurable. The benefit to the
public cannot be weighed directly against the detriment to the individual, and
the courts do not attempt to do so.”57
It might be fair to say that what courts do in the end is not balancing rights,
but choosing the right they find more important. Therefore personal prefe-
rences will unavoidably be involved in the process. This may also explain
the differences in the protection of freedom of the press and personality rights
in the jurisprudence of the Strasbourg Court on the one hand and in the
jurisprudence of the German courts on the other hand, differences which
basically persist even if all actors agree to apply the same criteria: The vision
of the role of the tabloid press in society is not the same. While in Germany
entertainment is seen as an important factor for the cohesion of society, the
Court seems to be rather reluctant to accept this assumption.58 As both ap-
proaches are defendable, the question is if the margin of appreciation allows
for such different visions or, on the contrary, a common approach is deemed

56 More specifically, this distinction is also applied in assessing State duties under the
procedural limb of Arts. 2 and 3 of the Convention. The duty to investigate a crime
is understood as an obligation of conduct and not of result.
57 J. Bell, unpublished manuscript, submitted at a colloquy on the principle of propor-
tionality.
58 Hoffmann-Riem, supra note 10, 23.

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Angelika Nußberger

necessary. To opt for a wide margin in these conflict situations seems to

facilitate the implementation of the Court’s judgments.
To limit the national courts’ obligation to an ‘obligation of conduct’ would
also be compatible with Article 53 of the Convention which clearly states
that the human rights standard in a Member State must not be lowered be-
cause of the application of the Convention. In conflict situations different
solutions are justifiable. This should not be ignored.
Thus, in multipolar conflicts the Court would only have to verify that the
national courts have duly taken into account all the different rights and in-
terests involved, have based their conclusions on the criteria developed by
the Court in its jurisprudence and have come to equitable results. Those
results could be criticized only if there were strong reasons to find them
unacceptable.
In conflicts between freedom of expression and the protection of the right
to privacy it seems that the Court has not yet clearly defined its line of rea-
soning. While the Von Hannover judgments No. 2 and No. 3 are illustrations
of the obligation-to-conduct-approach, the Grand Chamber judgment in the
Springer case, adopted on the same day as the Von Hannover (No. 2) judg-
ment, goes in a different direction and grants the Court the right to assess
the proportionality on its own:
“In conclusion, the grounds advanced by the respondent State, although rele-
vant, are not sufficient to establish that the interference complained of was nec-
essary in a democratic society. Despite the margin of appreciation enjoyed by
the Contracting States, the Court considers that there is no reasonable relation-
ship of proportionality between, on the one hand, the restrictions imposed by
the national courts on the applicant company’s right to freedom of expression
and, on the other hand, the legitimate aim pursued.”59
It was, however, adopted with a majority of 12 to five votes. The dissenting
judges clearly voiced their discontent with the more far-reaching approach
of the majority:
“In order to exercise this Court’s powers of review without becoming a fourth
instance, our task in guaranteeing respect for Convention rights in this type of
case is essentially to verify whether the domestic courts have duly balanced the
conflicting rights and have taken into account the relevant criteria established
in our case-law without any manifest error or omission of any important factor.
Where these prerequisites have been met, that is, the domestic courts have ex-
pressly weighed the conflicting rights and interests and applied the pertinent

59 Axel Springer AG v. Germany, ECtHR Judgment, supra note 52, para. 110.

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criteria established in our above-cited case-law, an additional assessment of the

competing interests by this Court, examining anew the facts and circumstances
of the case, is tantamount to acting as a fourth instance (or, as now, a fifth
instance).”60
It is clear that the last word has not yet been spoken in this conflict. The
Court will have to define its own position. It is important to have in mind
that while it is good to ‘irritate’ the national legal systems in order to find
adequate solutions for human rights problems in multipolar conflict situa-
tions, too much irritation could endanger legal certainty. Legal certainty is,
however, an important element in a government based on rule of law and
should not be ignored.

60 Dissenting Opinion of Judge Lopez Guerra joined by Judges Jungwiert, Jäger, Vil-
liger & Poealunghi, Axel Springer AG v. Germany, ECtHR Judgment, supra note 52.

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Are Human Rights Undemocratic?

John Laws

Are democratic government and human rights really functions of each other?
Or may they, sometimes at least, be enemies – sometimes implacable ene-
mies?
Reading the text of the European Convention of Human Rights (there-
inafter: ‘the Convention’),1 one might be forgiven for supposing that the
fundamental rights which it proclaims, and the ideal of democracy, are two
sides of the same coin: or at least, are allies in the same cause. Consider the
rights guaranteed by Articles 8 to 12: private and family life, religion, free
speech, and so forth. The second paragraph of each of these Articles permits
the State to derogate from the right in certain circumstances. In every such
case it must be shown that the derogation is ‘necessary in a democratic so-
ciety’: suggesting that democratic rule is the necessary matrix of human
rights. And historically, as everyone knows, the Convention (along with
other seminal human rights texts dating from the years after Second World
War) was intended as a bulwark against any resurgence of brutal dictator-
ship: a champion defender both of human rights and of democracy.
Moreover, this alignment of rights and democracy – putting the two into
the same bed – may claim a much older pedigree. Aristotle said:
“The democratic conception of justice [...] is the enjoyment of arithmetical
equality, and not the enjoyment of proportionate equality on the basis of desert.
On this arithmetical conception of justice the masses must necessarily be
sovereign; the will of the majority must be ultimate and must be the expression
of justice.” 2
“The will of the majority must be the expression of justice” – so that justice,
surely the Prince of human rights, and democracy are not merely yoked
together, but are actually the same thing. But human rights and democracy
– the will of the majority – are not always ready bedfellows: by no means.
Sometimes they are enemies.

1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4

November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14).
2 E. Barker (tr.), The Politics of Aristotle (1958), 258, para. 1317b.

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John Laws

Let me illustrate this from the pages of history. In 406 BC, towards the
end of the Peloponnesian War, the Athenians were victorious in a sea battle
at Arginusae, to the south of Lesbos. But twenty-five Athenian ships had
been lost, with their crews. A north wind, of the kind that still today blows
very strong in those beautiful but unpredictable waters, had hindered any
rescue. In Athens, still governed by its direct democracy, the eight com-
manders were blamed. In their turn they blamed the trierarchs, the captains
of individual ships. Proceedings were brought against the generals. The
Council of the Athenians, which prepared the case for trial before the As-
sembly of the people, had yielded to public anger and decided that they
would all be tried together, on a single motion. That was unfair and contrary
to the law: each was entitled to have his separate case judged on its merits.
A motion was brought to challenge the procedure as invalid. The presiding
committee had to decide whether to accept this motion, or to allow an im-
mediate vote on a resolution to try all the generals together. They were in-
timidated by the people, the democratic voice. There were threats of im-
peachment and arrest. The presiding committee gave way. The eight generals
were tried together on a single vote. They were condemned to death. Six
were executed: they included the son of the great statesman, Pericles. The
other two, as the historian Bury coyly puts it, “had prudently kept out of the
way”.3 But the presiding committee had not been unanimous. Unanimity
was not required for their ruling. One member, the philosopher Socrates, had
stood out against the illegal and unjust procedure for which the people bayed,
though he did so in vain. Afterwards the Athenians repented. They knew that
what had been done was illegal.4 Socrates had been right; though when,
seven years later, he reminded his own accusers of the fact, it did not save
him from sentence of death. Democrats, no doubt, do not like to be reminded
of democracy’s failings.
That was the direct democracy of ancient Athens; I should explain what
I mean by democracy today. I mean a form of government in which the
legislature is elected upon the basis of the universal franchise. Now, we have

3 J. B. Bury, A Students History of Greece (1907), 233.

4 Or at least some of them did. See K. Dover, Greek Popular Morality in the Time of
Plato and Aristotle (1974), 158 (note 17): “When Socrates resisted the pressure of the
assembly to put to the vote the proposal that the generals should be tried together after
the battle of Arginoussai (Xen. Hell. I 7.15), he acted with exemplary courage, but he
was not giving precedence to conscience over law; many people at the time, and most
people after the event, thought that the proposal was illegal.”

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 Are Human Rights Undemocratic?

to face the fact – for it is an obvious fact – that such a legislature is perfectly
capable of passing laws which violate human rights, sometimes to an ex-
treme degree. Professor Dunn of Cambridge has gone so far as to say:
“Even as an idea (let alone as a practical expedient) [democracy] wholly fails
to ensure any regular and reassuring relation to just outcomes over any issue at
all. As a structure of rule, within any actual society at any time, it makes it
overwhelmingly probable that many particular outcomes will turn out flagrantly
unjust. The idea of justice and the idea of democracy fit very precariously to-
gether.” 5
And if democracy may produce unjust outcomes, it may also produce arbi-
trary and discriminatory outcomes. However, you might try and define away
this uncomfortable fit by adopting a different meaning for democracy. We
can see that Aristotle’s approach simply treats justice as a function of the
popular will (and it would imply the same for other fundamental rights): so
there can be no conflict between rights and democracy. That is too rich meat
today: think what it would do for minorities. Is there a middle way? You
might, perhaps, define democracy as a form of government which is both
elected upon a universal franchise and respects human rights: so that we
would only call a State democratic if it respected both ideals. I think this was
the view taken by Professor Ronald Dworkin, though he would certainly
have described it in much more sophisticated terms. It is also, I think – and
this is where I began – implicit in the text of the Convention, not least Articles
8 to 12. On this approach, although human rights are not defined by the
popular will, they are part and parcel of democracy, so obviously they cannot
be in conflict with it.
But this approach fails to confront the core of the difficulty. It is of no
practical value whatever to withhold the name democracy from a State unless
it respects rights and votes on the basis of the universal franchise; for it
remains the fact that an elected legislature may pass laws which violate hu-
man rights. The reality is that the protection of human rights cannot be left
entirely in the hands of elected politicians. There is only one place where
their protection can be entrusted: the law.
Such a division of power – politics for elected governments, human rights
for the courts – would, perhaps, be unproblematic if the boundary between
these two empires were clear and well sign-posted. But it is not. In marginal
cases there is no consensus as to what is and what is not a human rights

5 J. Dunn, Setting the People Free: The Story of Democracy (2006), 149.

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John Laws

violation. Moreover claims of human rights persist in getting in the way of

government policy, and vice versa. The protagonists of a sensitive and con-
tentious public issue may press in opposite directions for its resolution. Take
the detention of a terrorist suspect. There may be insufficient admissible
evidence to bring him to trial, but hard information from the Security Service
that he is a danger to the public. Government policy may be to detain him
or at least confine his movements. But due process – a fundamental right –
says that if he cannot be put on trial he must be freed. Take the deportation
of an alien criminal. He has abused the hospitality of the host country by
committing serious crimes within its frontiers. The government moves to
deport him. But he has married here, and fathered children who are citizens
of the host State. He pleads Article 8 and asserts a right to remain. Take the
asylum claimant who makes his claim late, and in consequence has no access
to significant social security benefits. The government says that is well jus-
tified by the need to deter bogus asylum seekers. But the claimant says the
policy makes him all but destitute.
You can argue all these cases both ways. Sometimes it may be clear that
one side has the better argument, sometimes the other. But sometimes – quite
often – it will not be clear at all. Reasonable people may take either view.
There is certainly no presumption, in terms of reason or good sense, in favour
of the human rights side of the argument. How then to decide which view
shall prevail?
This is a constitutional challenge. In the UK it has been heightened and
sharpened by the enactment of the Human Rights Act 1998, which came into
force in October 2000. As is well known the Act of 1998 incorporated the
principal provisions of the Convention into our domestic law. We have not
yet resolved the challenge, nor answered the question, how to decide which
view shall prevail. There is a good deal of domestic case-law concerning the
tension between policy and rights. Sometimes it is expressed in terms of the
degree of deference – greater or lesser – which the courts should pay to the
legislature or the executive in deciding whether a particular measure which
interferes with a guaranteed right is nevertheless proportionate to a legiti-
mate aim. The deportation of foreign criminals who have family life in the
UK has in recent years been a pressing example.
However, this book’s main focus is the relationship between the ECtHR
and the national law of the Council of Europe’s Member States; and this part
of the book is to consider what is required from the Court in the interest of
subsidiarity and how this can be achieved. One aspect of this concerns sub-
stantive adjudication.

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 Are Human Rights Undemocratic?

It seems to me that the Strasbourg court owes an important duty to con-

front the challenge I have described: the conflict between the claims of
elected government and the demands of fundamental human rights. At the
level of the nation State, the conflict is, as I have said, a constitutional issue
concerning the relation between national judges and elected politicians. At
the level of the ECtHR, the issue is rather different. It concerns the relation
between international judges and the national State institutions. The question
is, how far should the ECtHR respect the nation State’s democracy?
The well-known doctrine of the margin of appreciation does not quite
capture the conflict which I have described. In Kebeline, Lord Hope of
Craighead stated:
“The European Court has acknowledged that, by reason of their direct and con-
tinuous contact with the vital forces of their countries, the national authorities
are in principle better placed to evaluate local needs and conditions than an
international court: Buckley v. United Kingdom (1996) 23 E.H.R.R. 101, 129,
paras. 74-75. Although this means that, as the European Court explained in
Handyside v. United Kingdom (1976) 1 E.H.R.R. 737, 753, para. 48, ‘the ma-
chinery of protection established by the Convention is subsidiary to the national
systems safeguarding human rights’, it goes hand in hand with a European su-
pervision.”6
But in my opinion a recognition that “the national authorities are better
placed to evaluate local needs and conditions than an international court” is
by no means the whole story, for it has nothing to say about two things. One
is the need to respect the courts of the Member States as the primary safe-
guard of human rights. The other is to acknowledge and give place to the
conflict, the tension, between the claims of fundamental rights and the
democratic will. This is not simply about better local knowledge in the na-
tional institutions. Such a point of view diminishes, greatly diminishes, the
importance and value of the margin of appreciation.
It may be that the conflict between rights and democracy has not played
its proper part in the jurisprudence of the Strasbourg Court because of what
I regard as a failure of language in the Convention: that is to say, the con-
flation of democracy and human rights, especially in the text of the political
rights guaranteed by Articles 8 to 12 to which I referred at the beginning.

6 Opinion of Lord Hope of Craighead, Regina v. Director of Public Prosecutions Ex

Parte Kebeline and Others, House of Lords, Decision of 28 October 1999, [1999] 3
WLR 972, 988, 993.

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John Laws

I appreciate, of course, that constitutional conditions – the authority and

quality of the legislature, executive and judiciary – differ from State to State,
and that cultural and historic factors may differ very markedly. And I rec-
ognize the obvious difficulty in any actual or apparent view being taken,
certainly expressed, in Strasbourg that the quality of such institutions is
higher in some States than in others.
All that said, I think there is an imperative need for a principled disavowal
by the ECtHR of the role of primary decision-maker. Without this, there is
a failure to respect the courts of the Member States as the primary safeguard
of human rights; and a failure to acknowledge and give place to the conflict,
the tension, between the claims of fundamental rights and the democratic
will. Where two views might reasonably be taken of a human rights problem,
and the Member State in question has opted for one, it should not be for
Strasbourg to opt for the other.
My sense is that the Strasbourg Court has not quite made up its own mind
about this question. The margin of appreciation is applied very variably.
There are some cases where the Court appears to take a distinctly ‘hands-
on’ approach, in situations where manifestly two opposing but reasonable
views are possible. That is, I think, what has happened in the cases about
prisoners’ votes.7
When the Court does that – when it chooses to endorse one of two rea-
sonable views, and denounce the other as a violation – it is not in truth ful-
filling its vital and historic role of protecting fundamental values. It is making
policy. But that is not the role of judges. It is the role of democratic govern-
ments. If the Strasbourg Court does that, it loses faith: the faith of its re-
sponsible members. And it damages the rule of law.

7 See Hirst v. United Kingdom (No. 2), ECtHR Application No. 74025/01, Judgment
of 6 October 2005; Frodl v. Austria, ECtHR Application No. 20201/04, Judgment of
8 April 2010 and Greens & MT v. United Kingdom, ECtHR Application Nos. 60041/08
& 60054/08, Judgment of 23 November 2010.

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Subsidiarity and the Brighton Declaration

Derek Walton*

In April 2012, the United Kingdom, as then Chair of the Committee of Min-
isters of the Council of Europe, convened a High Level Conference in
Brighton on the Future of the European Court of Human Rights (thereinafter:
‘the Court’). Each participant was given a stick of Brighton Rock (a tradi-
tional British seaside sweet) with the words ‘Council of Europe’ running
through it. Participants joked that, in a similar way, the resulting Declaration
on the Future of the European Court of Human Rights1 could be regarded as
having the word ‘subsidiarity’ running through it.
In the context of the European Convention of Human Rights (thereinafter:
‘the Convention’)2, the principle of subsidiarity describes the relationship
between the Court and the national authorities of the States Parties. It affirms
that decisions about the application of the Convention should be taken at the
appropriate level.
This principle does indeed lie at the heart of the Brighton Declaration.
The Declaration aims to set out a shared understanding of what the principle
means and to embed and reinforce the principle as it applies to all aspects of
the system set up to enforce the Convention. The Declaration is accordingly
key to understanding the central importance that subsidiarity has in the Con-
vention system.
This contribution assesses why the principle of subsidiarity became the
central theme of the Brighton Declaration. It then examines the various ways
in which the Declaration defines, embeds and reinforces the principle. Fi-
nally, it notes that work is already under way on the longer-term future of
the Court that may further develop the way the principle applies.

* The views expressed are the author’s own and should not be taken as necessarily
reflecting the views of the Government of the United Kingdom.
1 High Level Conference on the Future of the European Court of Human Rights,
Brighton Declaration (20 April 2012), available at http://www.echr.coe.int/Docu-
ments/2012_Brighton_FinalDeclaration_ENG.pdf (last visited 31 January 2014)
[Brighton Declaration].
2 Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14) [ECHR].

193
Derek Walton

A. The Reasons for the Brighton Declaration’s Focus on Subsidiarity

Why did the Brighton Declaration focus on subsidiarity? The answer is sim-
ple: the principle offers a way of addressing the two most pressing challenges
facing the Court.

I. The Rise in the Court’s Caseload

The first is the challenge posed by the steady rise in the Court’s caseload. In
1999 the Court received 8,400 new applications; by 2008 the annual number
of new cases had risen to 50,000.3 Inevitably, a backlog began to develop
and at its height in the run up to the Brighton conference that backlog reached
as high as 160,000 cases pending before the Court.4
A large portion of the cases comprising the backlog are unfounded ap-
plications.5 Protocol 14 had introduced changes to the Court’s procedures
designed to help it dispose of unfounded applications such as these more
efficiently.6 However the backlog also contains a significant number of po-
tentially well-founded cases. If the backlog was to be addressed effectively,
these cases also needed to be dealt with.
A key aspect of the principle of subsidiarity is that it affirms that the
primary responsibility for implementing the Convention falls on the States
Parties. A strong emphasis is therefore placed on the need for the Convention
to be implemented fully at the national level.

3 President of the ECtHR, Memorandum to the States with a View to Preparing the
Interlaken Conference (3 July 2009), available at http://www.echr.coe.int/Docu-
ments/Speech_20090703_Costa_Interlaken_ENG.pdf (last visited 31 January 2014),
2 [President of the ECtHR, Memorandum].
4 160,200 on 1 September 2011. See ECtHR, The Interlaken Process and the Court (16
October 2012), available at http://www.echr.coe.int/Documents/2012_Interlak-
en_Process_ENG.pdf (last visited 31 January 2014), 2 [ECtHR, The Interlaken Pro-
cess].
5 See President of the ECtHR, Memorandum, supra note 3, 2.
6 Protocol No. 14 to the Convention for the Protection of Human Rights and Funda-
mental Freedoms, 13 May 2004, Art. 7, reprinted in Council of Europe (Steering
Committee for Human Rights) (ed.), Reforming the European Convention on Human
Rights: A Work in Progress (2009), 688, 689 (amending Article 27 of the Convention
to provide for a single judge procedure).

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 Subsidiarity and the Brighton Declaration

Many of the potentially well-founded cases result from a failure at the

national level to fully implement the Convention.7 It follows that if States
were to implement the Convention more effectively, many of these cases
would no longer arise. This would lead to a significant reduction in the flow
of well-founded but avoidable cases to the Court.

II. Criticism of the Court

The second challenge is one of perceived legitimacy. There has been political
and public criticism of the Court both generally and in the context of par-
ticular judgments.8 Questions have been raised about the Court’s role and
function.9 These have included questions about:
democratic legitimacy: Whether ultimate decision-making authority on human
rights issues should lie with judicial or parliamentary authorities, e.g. whether
there should be provision for some form of ‘democratic override’ of Court de-
cisions;
national sovereignty: Whether decision-making authority should lie at the na-
tional or European level;
judicial activism: Whether, in discharging its role as the ultimate authority on
the correct interpretation of the Convention, the Court is too ready to extend the
meaning of certain aspects of the Convention; and
the judiciary: Who should be the judges in the Court and how should they be
selected?
Whether or not one accepts the validity of the criticisms of the Court, it is
clear that to be effective in safeguarding the longer-term future of the Court,
the reform agenda had to address not only the backlog of cases but also
restore confidence in the Convention system more generally.10 Again the

7 ECtHR, The Interlaken Process, supra note 4, 10-11.

8 The criticism has perhaps been most vocal in the United Kingdom, often focussing
on contentious judgments such as those relating to prisoner voting rights and depor-
tation in national security cases.
9 See M. Pinto-Duschinsky, Bringing Rights Back Home: Making Human Rights
Compatible with Parliamentary Democracy in the UK (2011).
10 The Steering Committee for Human Rights in its preparatory document for the
Brighton conference expressed the view that “the role of the Court and its relations
with national authorities have become important issues in discussions on the future
of the Court and the Convention system”. Council of Europe (Steering Committee
for Human Rights), Reform of the System of the European Convention on Human
Rights, Doc. CM(2012)39 add2, 17 February 2012, 5, para. 17.

195
Derek Walton

principle of subsidiarity offered a means of achieving this: as States do more

to implement the Convention effectively at the national level, the Court
should need to intervene less frequently.

B. The Approach of the Brighton Declaration: Defining, Embedding and

Reinforcing Subsidiarity

The approach taken to the principle of subsidiarity in the Brighton Declara-

tion was threefold. It first defined the principle; it then sought to embed the
principle in the Convention; and finally it reinforced its application through
a series of practical measures.

I. Defining Subsidiarity

The Brighton Declaration did not invent the idea of subsidiarity; far from it.
The principle is implicit in the Convention itself,11 although the word ‘sub-
sidiarity’ is never used, and it has been developed by the Court in a series of
judgments.12 The subsidiary nature of the Court’s relationship to national
authorities derives from the definition of their respective roles in the Con-
vention system.13 This understanding of the principle of subsidiarity was
reflected in the Brighton Declaration.14

11 Indeed the principle, or a variant of it, is well known in the context of other supra-
national organisations, such as the European Union.
12 The Court first set out the “subsidiary nature of the international machinery of col-
lective enforcement established by the Convention”. Case Relating to Certain As-
pects of the Laws on the Use of Languages in Education in Belgium, ECtHR Appli-
cation Nos. 1474/62 et al., Judgment of 23 July 1968, para. 10. Since then the prin-
ciple has been reiterated and elaborated in numerous judgments. For example in Von
Hannover v. Germany (No. 2), it was made clear that “[i]n exercising its supervisory
function, the Court’s task is not to take the place of the national courts, but rather to
review, in the light of the case as a whole, whether the decisions they have taken
pursuant to their power of appreciation are compatible with the provisions of the
Convention relied on”. Von Hannover v. Germany (No. 2), ECtHR Application Nos.
40660/08 & 60641/08, Judgment (GC) of 7 February 2012, para. 105.
13 As set out in Arts. 19 and 1 respectively. See Austin and Others v. United King-
dom, ECtHR Application Nos. 39692/09 et al., Judgment (GC) of 15 March 2012,
para. 61.
14 Brighton Declaration, supra note 1, 3, para. 10.

196
 Subsidiarity and the Brighton Declaration

The principle essentially describes the relationship between the Court and
national authorities in the Convention system. More specifically, the word
‘subsidiarity’ describes the nature of the Court’s role in that relationship.
The principle implies two inter-related concepts:
The national authorities of each State Party have the primary responsi-
bility for securing the Convention rights within their jurisdiction. This
flows directly from Article 1 and is reflected in paragraphs 9(a) and 10
of the Declaration; and
The role of the Court is subsidiary to the primary role of the national
authorities. This flows from Article 19 and is reflected in paragraph 10
of the Declaration. The Court only has a role to play when the national
authorities have either failed to implement the Convention fully or where
further guidance from the Court is needed in order to enable them to do
so properly. Thus the Court has a dual role:
a. to act as a safeguard for individuals whose rights and freedoms are not
secured at the national level; and
b. to act as the ultimate authority for interpreting
the Convention.
There have been voices calling for the Court to concentrate on the second
of these two roles, its interpretative or constitutional role.15 The Brighton
Declaration made clear that, whatever the merits of this as a model for the
longer-term, for the time-being this role has to be combined with the Court’s
continuing role as safety net for cases in which rights have not been secured
at the national level.

15 See, e.g., S. Greer & L. Wildhaber, Revisiting the Debate about ‘Constitutionalising’
the European Court of Human Rights, 12 Human Rights Law Review (2012) 4, 655.

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Derek Walton

II. Embedding Subsidiarity

Like the Interlaken16 and Izmir17 Declarations, the Brighton Declaration af-
firms the central importance of subsidiarity. It encourages the Court to give
great prominence to, and apply consistently, this principle (and the related
doctrine of margin of appreciation) in its judgments.18
The Brighton Declaration however went further than mere exhortation to
follow the principle of subsidiarity more closely. It provided for the princi-
ple, and the doctrine of the margin of appreciation, to be written into the
Preamble to the Convention itself. By writing these principles into the
Preamble, their centrality and fundamental importance is both acknowl-
edged and reinforced.
This provision of the Brighton Declaration was given effect by Protocol
15,19 which makes the amendments to the Convention agreed at Brighton.
In particular, a new recital is inserted at the end of the Preamble as follows:
“Affirming that the High Contracting Parties, in accordance with the principle
of subsidiarity, have the primary responsibility to secure the rights and freedom
defined in this Convention and the Protocols thereto, and that in doing so they
enjoy a margin of appreciation, subject to the supervisory jurisdiction of the
European Court of Human Rights established by this Convention.”
Protocol 15 was opened for signature in 2013 and will come into effect when
it has been ratified by all the States Parties.

16 High Level Conference on the Future of the European Court of Human Rights, In-
terlaken Declaration (19 February 2010), available at http://www.coe.int/t/dghl/co-
operation/capacitybuilding/Source/interlaken_declaration_en.pdf (last visited 31
January 2014), 2, para. 2.
17 High Level Conference on the Future of the European Court of Human Rights, Izmir
Declaration (27 April 2011), available at http://www.echr.coe.int/Documents/
2011_Izmir_FinalDeclaration_ENG.pdf (last visited 31 January 2014), 1, Preamble,
para. 5.
18 Brighton Declaration, supra note 1, 3, para. 12 (a).
19 Protocol No. 15 amending the Convention for the Protection of Human Rights and
Fundamental Freedoms (24 June 2013), available at http://www.echr.coe.int/Docu-
ments/Protocol_15_ENG.pdf (last visited 31 January 2014).

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 Subsidiarity and the Brighton Declaration

III. Reinforcing Subsidiarity

The Declaration goes on to identify a series of measures designed to reinforce

subsidiarity at the various stages of the Convention system process.

1. National Implementation

A key aim of the Declaration was to promote better implementation at the

national level so as to ensure more effective protection of human rights in
practice as well as to reduce the flow of well-founded but avoidable cases
to the Court. Section A of the Declaration sets out a series of measures de-
signed to improve national implementation of the Convention. Among the
more noteworthy are:
Setting up independent National Human Rights Institutions.20 These can
play a significant role in identifying areas in which the Convention has
not been fully implemented, and in particular in drawing attention to
systemic problems. They can also help identify solutions to these prob-
lems and, where necessary, help to build public support for taking the
necessary remedial action;
Scrutiny of primary legislation by national parliaments.21 Ensuring that
all new legislation complies with the Convention is an effective way of
preventing new breaches of the Convention from arising; and systematic
review of existing legislation can be a great help in ensuring compliance
overall; and
Introducing new domestic legal remedies.22 Specific human rights reme-
dies, where they have been introduced, have helped to embed human
rights into the legal framework and provide a convenient way of ad-
dressing human rights concerns in the legal system.

20 Brighton Declaration, supra note 1, 2, para. 9 (c) (i).

21 Ibid., 2, para. 9 (c) (ii).
22 Ibid., 2, para. 9 (c) (iii).

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Derek Walton

2. Application of Strasbourg Judgments by National Courts

One of the more significant of the measures set out in the Declaration is the
call for national courts and tribunals to take account not only of the Con-
vention but also of the case law of the Court.23
The Convention itself is binding on the States Parties. While it is for each
State Party to decide whether the Convention should be incorporated directly
into its legal order, in practice this has been done by all 47 State Parties.24
However, judgments of the Court are only binding in respect of the State
which is a party to the case in question. Thus judgments against one State,
while a strong indicator of the Court’s views, are not binding on the national
authorities of any other State. In principle, other States Parties could wait
until the issue that is the subject of the judgment arises in an application
against them before having any regard to the matter. Of course, if they do
so, this will distort the practical application of the Convention system, with
national courts applying the Convention without regard to how the Stras-
bourg Court will ultimately decide the issue. By taking account of judgments
against other States, national courts can more effectively give effect to the
Convention at the national level, and ensure that more cases are ultimately
resolved at the national level.
But that is not to say that there is, or should be, a system of precedent as
such. Taking account of judgments need not always mean slavishly follow-
ing those judgments. There may be good reason not to do so in a particular
case. For example, there may be specific considerations that apply to the
State in question that were not considered by the Court in the context of a
case against another State.25 Or the national courts may simply disagree with
the Court and wish to enter into a judicial dialogue on the point.26 Such
dialogue is welcomed and encouraged by the Declaration as a healthy part
of the principle of subsidiarity.27

23 Ibid., 2, para. 7 & 9 (c) (iv).

24 In the United Kingdom the 1998 Human Rights Act (reprinted in J. Wadham et al.,
Blackstone’s Guide to the Human Rights Act 1998, 6th ed. (2011), 335-358) effec-
tively incorporates into national law all the substantive rights in Section I of the
Convention except Article 13.
25 See, for example, the UK intervention in Taxquet v. Belgium, ECtHR Application
No. 926/05, Judgment (GC) of 16 November 2010.
26 See, e.g., Al-Khawaja and Tahery v. United Kingdom, ECtHR Application Nos.
26766/05 & 22228/06, Judgment (GC) of 15 December 2011.
27 Brighton Declaration, supra note 1, 3-4, para. 12 (c).

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 Subsidiarity and the Brighton Declaration

The Declaration sets out a number of measures for facilitating the appli-
cation of the Court’s jurisprudence in national courts. For example, States
are encouraged to ensure that significant judgments are translated (or at least
summarized) into national languages so that they can be applied more easily
by national courts,28 and to ensure that there are no unnecessary impediments
in national judicial procedures that would prevent litigants drawing the at-
tention of national courts to relevant jurisprudence of the Court.29
Perhaps most fundamentally, in order for judgments to be taken into ac-
count, they must be both clear and consistent. The principles that they lay
down must be expressed in terms that enable them to be applied to other
relevant situations with a reasonable degree of certainty. For this reason the
Declaration’s call for clarity and consistency in the Court’s judgments30 is
vital in helping national courts to give full effect to their role under the prin-
ciple of subsidiarity.
The Declaration endorsed the greater use of the Grand Chamber as a tool
for promoting consistency in the Court’s case law. The amendment to Article
30 of the Convention proposed in the Brighton Declaration31 was designed
to support the Court in its efforts to establish the Grand Chamber as a more
effective tool in ensuring consistency in the Court’s judgments. In its pre-
liminary opinion before the Brighton Conference, the Court had indicated
that it was considering an amendment to the Rules of Court making it obliga-
tory for a Chamber to relinquish jurisdiction where it envisages departing
from settled case-law.32 By removing the right of the parties to veto the
relinquishment of jurisdiction, the amendment to Article 30, together with
this revision of the Rules, should ensure that only the Grand Chamber departs
from settled case law. In effect this will introduce a kind of system of prece-
dent into the Court’s framework: Chambers will be obliged either to follow
or distinguish previous judgments of the Court if they deal with the matter
themselves or to relinquish the matter to the Grand Chamber for considera-

28 Ibid., 2, para. 9 (d) (i).

29 Ibid., 2, para. 9 (c) (iv).
30 Ibid., 7, para. 23.
31 Ibid., 7, para. 25 (d); given effect by Protocol 15, Art. 3, supra note 19, 3.
32 ECtHR, Rules of Court, Rule 72 (2), available at http://www.echr.coe.int/Docu-
ments/Rules_Court_ENG.pdf (last visited 31 January 2014), 39. This amendment
was in fact made in the version of the Rules of Court that came into effect on 1 July
2013.

201
Derek Walton

tion. What they will not be able to do in future is to decide cases inconsis-
tently with settled case law.

3. Advisory Opinions

The Declaration also seeks to reinforce the role that national courts play in
the Convention system through a new system of advisory opinions.33 The
idea is that, when considering a Convention issue, the highest national courts
will be empowered to ask the Court for a view on an issue of principle raised
in the case. Following the issue of such an advisory opinion, the national
court can then decide the case before it on the facts in light of the opinion
handed down by the Court.
The necessary arrangements to introduce this system were contained in
Protocol 16.34 This is an optional protocol, which will enter into force when
ten States have ratified it.
From the standpoint of subsidiarity, this system has two advantages:
Firstly, it transforms the relationship between the national courts and the
Court in a fundamental way. No longer is the Court simply acting as a re-
viewer of the national court’s decision. Instead it takes on the role of advisor
to the national court. The national court and the Court work together to de-
cide a case, rather than having the Court decide, in effect, whether the na-
tional court got it right.
Secondly, it distinguishes more sharply the differing roles of the national
courts and the Court in the Convention system: the Court decides on the
proper interpretation of the Convention; whereas the national courts decide
the facts and apply the principles (as decided by the Court) to those facts.

4. Admissibility

One of the ways in which the Convention system reflects the principle of
subsidiarity is through the admissibility criteria contained in Article 35. Cri-
teria such as the requirement for an applicant to exhaust domestic remedies

33 Brighton Declaration, supra note 1, 4, para. 12 (d).

34 Protocol No. 16 to the Convention for the Protection of Human Rights and Funda-
mental Freedoms (2 October 2013), available at http://www.echr.coe.int/Docu-
ments/Protocol_16_ENG.pdf (last visited 31 January 2014).

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 Subsidiarity and the Brighton Declaration

before an application can be brought successfully to the Court help to ensure

that cases are considered at the appropriate level.35
The Brighton Declaration called for the admissibility criteria to be fully,
consistently and foreseeably applied “both to ensure the efficient application
of justice and to safeguard the respective roles of the Court and national
authorities”.36 It also provided for amendments to tighten the way two of
them apply.37 Those amendments are now contained in Protocol 15.
Consideration was given during the preparations for the Brighton con-
ference as to whether a further admissibility criterion should be added to the
Convention, specifically to reinforce the principle of subsidiarity. One pro-
posal that made it into early drafts of the Declaration reflected the idea,
already developed to some extent in the Court’s case law, that where national
courts apply the Convention in the light of the Court’s case law and consider
cases fully and fairly, the circumstances where the Court should need to
reconsider the case and substitute its own view for that of the national court
should be relatively limited.38
The intention had been that the Court would apply the new criterion in
three stages.

35 The admissibility criteria are an essential tool “to ensure that [the Court] can con-
centrate on those cases in which the principle or significance of the violation warrants
its consideration”. Brighton Declaration, supra note 1, para. 14 and thus “in giving
practical effect to the principle of subsidiarity”. Izmir Declaration, supra note 17, 4,
para. 4.
36 Brighton Declaration, supra note 1, 4, para. 15 (b).
37 Ibid., 4, para. 15 (c), removing one of the limiting conditions of the de minimis
criterion that had been introduced by Protocol No. 14 amending the Convention for
the Protection of Human Rights and Fundamental Freedoms, 13 May 2004, reprinted
in Council of Europe (Steering Committee for Human Rights) (ed.), Reforming the
European Convention on Human Rights: A Work in Progress (2009), 688-692 and
Brighton Declaration, supra note 1, 4, para. 15 (a) reducing the time limit for bringing
an application from 6 months to 4.
38 The second draft of the Declaration included a provision concluding that “Article 35
of the Convention should further be amended to make clear that an application is
inadmissible to the extent that the complaint it raises has been duly examined in
substance by a national court expressly taking into account the rights guaranteed by
the Convention, in light of the case law of the Court. Such an application should not
be declared inadmissible if the Court considers that: The interpretation or application
of the Convention by the national court was unreasonable in the circumstances of
the case; or [t]he application raises a serious question affecting the interpretation or
application of the Convention.”

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Derek Walton

1. The Court would consider whether, on the face of its judgment, the na-
tional court had correctly identified and understood the relevant Con-
vention principles.
2. The Court would then consider whether the application of those princi-
ples to the facts had been carried out by the national court within the
range of possible approaches consistent with the Convention. The Court
would not assess whether the national court had reached the ‘right’ an-
swer but whether it had reached an answer that could reasonably be re-
garded as right by a competent court.
3. The Court would consider whether there was an overriding reason why
the case should be heard at the European level, possibly on the basis of
whether the application raises a serious question affecting the interpre-
tation or application of the Convention.
During the negotiations it became clear that the Court considered that the
principle underlying this proposal already governed its consideration of cas-
es under the existing admissibility criteria.39 As a result, what appears in the
Declaration40 is not a new admissibility criterion but a clarification of an
existing one. Applications that meet the conditions set out in the paragraph
are still to be regarded as inadmissible but this will be as part of the existing
‘manifestly ill-founded’ criterion rather than as part of a new free-standing
admissibility criterion.

5. Implementation of Judgments

The Brighton Declaration also makes clear,41 as the Izmir Declaration had
done,42 that the principle of subsidiarity applies as much to the final stage
of the Convention system, supervision of the implementation of judgments,
as it does to other stages. The Court’s judgments are essentially declaratory
in nature and it is for the State concerned to choose the means to be used in
order to discharge its obligations under the Convention.

39 ECtHR, Preliminary Opinion in Preparation for the Brighton Conference (20 Febru-
ary 2012), available at http://www.coe.int/t/dgi/brighton-conference/documents/
Court-Preliminary-opinion_en.pdf (last visited 31 January 2014), 7, para. 32.
40 Brighton Declaration, supra note 1, 5, para. 15 (d).
41 Ibid., 8, para. 29 (b).
42 Izmir Declaration, supra note 17, 6, para. H. 2.

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 Subsidiarity and the Brighton Declaration

In the context of the implementation of judgments, this implies that the

role of the Committee of Ministers, and indeed of the Court should the matter
come back before it under Article 46 (4), is not to insist on any particular
means or method of implementation but to assess whether the State Party
has adequately fulfilled its obligations under Article 46.
In this context, one development that has perhaps blurred these apparently
clear divisions of responsibility is the group of judgments in which the Court
has indicated a specific measure that a State should take to implement a
judgment.43 In making such an indication, the Court has made clear that it
is seeking to help the State Party fulfil its obligations under Article 46 and
that it is doing so because the nature of the violation is such as to leave no
real choice as to the measures required to remedy it.44 Nonetheless, it is on
the face of it not easy to reconcile this practice with the aspect of subsidiarity
emphasised in this part of the Brighton Declaration.

C. Work on the Longer-term Future of the Convention System

Finally, although the Brighton Declaration succeeds to a large extent in

maximizing the role of subsidiarity within the existing system, there remains
a question as to whether it will be necessary to go further in the longer term.
The arguments for the Court to focus exclusively on its interpretative or
constitutional role have not gone away. Accordingly, the Declaration called
for a process to consider the longer-term future of the Convention system.
All options remain on the table for this process, including “[c]onsideration
of more profound changes to how applications are resolved by the Conven-
tion system with the aim of reducing the number of cases that have to be
addressed by the Court”45.
This is the next challenge facing the Steering Committee for Human
Rights, which has been charged with examining the options for the longer-
term future of the Convention system in more detail. The Steering Commit-

43 See, e.g., Fatullayev v. Azerbaijan, ECtHR Application No. 40984/07, Judgment of

22 April 2010; Ghavtadze v. Georgia, ECtHR Application No. 23204/07, Judgment
of 3 March 2009; L. v. Lithuania, ECtHR Application No. 27527/03, Judgment of
11 September 2007; Oleksandr Volkov v. Ukraine, ECtHR Application No.
21722/11, Judgment of 9 January 2013.
44 See, e.g., Fatullayev v. Azerbaijan, ECtHR Judgment, supra note 43, para. 174.
45 Brighton Declaration, supra note 1, 9, para. 35 (e).

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Derek Walton

tee has launched a public consultation on this, the results of which will in-
form its work. It is anticipated that the Steering Committee’s recommenda-
tions will be presented to the Council of Europe’s Committee of Ministers
in the spring of 2015.

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The Struggle by the German Courts and Legislature to Transpose
the Strasbourg Case Law on Preventive Detention into German
Law

Thomas Giegerich

A. Introduction: The Peculiarities of the Convention Rights to Life and

Liberty of the Person

I. Hierarchy of Human Rights and Rigour of Limitation Provisions

If I had to rank the rights enshrined by the European Convention on Human

Rights (ECHR)1 in the order of their importance, my candidates for the first
and second rank would be the right to life and the right to liberty of the
person. My choice is based less on philosophical than on practical consid-
erations. Whoever is deprived of his or her life obviously also loses all the
other human rights with immediate effect.2 If the State detains someone, that
person becomes subject to the total control of public officials with regard to
the exercise of all his or her fundamental rights. The so-called “protective
custody”3 was the main instrument used in Nazi Germany to disenfranchise,
terrorize, torture, enslave and ultimately exterminate all those whom the
Nazis considered as their opponents.
It is therefore unsurprising that the Convention puts particular emphasis
on the protection of the rights to life and liberty of the person in Articles 2
and 5. While the Parties to the Convention retain the right to limit most of

1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4

November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14) [ECHR].
2 There is a certain exception in Germany in the sense of a postmortem personality right
which protects also the deceased from interferences with their dignity (Mephisto,
German Federal Constitutional Court, Case No. 1 BvR 435/68, Decision of 24 Febru-
ary 1971, 30 BVerfGE 173, 196 (para. 66); German Federal Constitutional Court,
Case No. 1 BvR 2707/95, Decision of 25 August 2000, 54 Neue Juristische Wochen-
schrift (2001) 8, 594, 594-595 (para. 8)). There is no equivalent in the case law of the
ECtHR (see C. Grabenwarter & K. Pabel, Europäische Menschenrechtskonvention,
5th ed. (2012), 113).
3 The German term was Schutzhaft.

207
Thomas Giegerich

the other rights for quite general purposes such as national security, public
safety, the protection of the rights and freedoms of others or even morals4
which cover practically limitations on any rational basis, both Articles 2 (2)
and 5 (1) ECHR operate with an exhaustive list of rather precise permissible
grounds for deprivation of life and liberty.5 Moreover, the European Court
of Human Rights (thereinafter: ‘the Court’ or ‘ECtHR’ or ‘Strasbourg
Court’) has interpreted those grounds quite narrowly and does not consider
any deprivation of life or liberty “as lawful unless it falls within one of those
grounds”.6 There are, however, also indications that the Court recognizes a
certain “rule of reason” exception to this rigidity in order to accommodate
public interests. Thus, the Court permitted the temporary detention of a
drunk person causing trouble under Article 5 (1) (e) ECHR, even though that
person was not an ‘alcoholic’ in the true sense of the word, i.e. a person
pathologically addicted to alcohol.7

4 See the second paragraphs of Arts. 8-11 ECHR (supra note 1).
5 With regard to Art. 2 (2) ECHR, see R. Alleweldt, Kapitel 10: Recht auf Leben, in O.
Dörr et al. (eds.), EMRK/GG – Konkordanzkommentar zum europäischen und
deutschen Grundrechtsschutz, Vol. I, 2nd ed. (2013), 491, 514-522, paras. 61-84. With
regard to Art. 5 (1) ECHR see, e.g., M. v. Germany, ECtHR Application No. 19359/04,
Judgment of 17 December 2009, para. 86. While Art. 2 (1) ECHR permits the death
penalty, that particular ground for deprivation of life may meanwhile have been ren-
dered obsolete by the legal developments since the adoption of the Convention in
1950, as the ECtHR indicated in Öcalan v. Turkey, Application No. 46221/99 (GC),
Judgment of 12 May 2005, paras. 163 et seq.).
6 With regard to Art. 5 (1) ECHR, see M. v. Germany, ECtHR Judgment, supra note 5,
para. 86.
7 Witold Litwa v. Poland, ECtHR Application No. 26629/95, Judgment of 4 April 2000.

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

II. The Convention’s Numerus Clausus of Permissible Limitations from a

Comparative Perspective

1. Other Human Rights Treaties

The Member States are thus left with only little margin of appreciation re-
garding interferences with the rights to life and liberty of the person.8 Al-
though this corresponds with the importance of those two rights, the Euro-
pean Convention is much stricter in this respect than any other universal or
regional human rights convention. The International Covenant on Civil and
Political Rights,9 the American Convention on Human Rights10 and the
African Charter of Human and Peoples’ Rights11 prohibit only arbitrary de-
privations of a person’s life12 and liberty13 and further provide that the States
Parties can by law define grounds for deprivation of liberty14 without being
subject to any exhaustive list of permissible grounds.15

8 Art. 15 ECHR permits no derogation from Art. 2 ECHR in cases of war or other
public emergencies, except in respect of deaths resulting from lawful acts of war.
Art. 5 ECHR is subject to derogations “strictly required by the exigencies of the
situation”. The ECtHR leaves the Member States a considerable, but not unlimited,
margin of appreciation in this regard (A. and Others v. United Kingdom, ECtHR
Application No. 3455/05 (GC), Judgment of 19 February 2009.
9 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS
171 [ICCPR].
10 American Convention on Human Rights, 22 November 1969, 1144 UNTS 123
[ACHR].
11 African Charter of Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217
[AfrCHPR].
12 Art. 6 (1) sentence 3 ICCPR (supra note 9); Art. 4 (1) sentence 3 ACHR (supra note
10); Art. 4 sentence 3 AfrCHPR (supra note 11).
13 Art. 9 (1) sentence 2 ICCPR (supra note 9); Art. 7 (3) ACHR (supra note 10);
Art. 6 sentence 3 AfrCHPR (supra note 11).
14 Art. 9 (1) sentence 3 ICCPR (supra note 9); Art. 7 (2) ACHR (supra note 10);
Art. 6 sentence 2 AfrCHPR (supra note 11) – the latter two provisions expressly
exclude the retroactive application of reasons for detention only subsequently es-
tablished by law.
15 See Human Rights Committee, Draft General Comment No. 35, Doc. CCPR/C/107/
R.3, 28 January 2013, 4-5, para. 15.

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Thomas Giegerich

2. The EU Charter of Fundamental Rights

The same seemingly applies to the Charter of Fundamental Rights of the

European Union (thereinafter: ‘Charter’)16 which guarantees the rights to
life (Article 2 (1)) and liberty of the person (Article 6), but in the general
provisions at the end includes a very general limitation clause (Article 52
(1)) applying to all the fundamental rights in the preceding articles. Article
52 (3) of the Charter, however, provides that
“[i]n so far as this Charter contains rights which correspond to rights guaranteed
by the Convention for the Protection of Human Rights and Fundamental Free-
doms, the meaning and scope of those rights shall be the same as those laid down
by the said Convention”.17
Since the purpose of that provision is to ensure consistency between Charter
rights and Convention rights, it also applies to authorized limitations whose
meaning and scope in both the Charter and the Convention are the same.18
Hence, the Charter ultimately assimilates the exhaustive and narrow cata-
logues of permissible interferences included in Article 2 (2) and Article 5
(1) ECHR.

3. National Constitutions

More importantly with respect to the topic of this book, the Convention is
also stricter with regard to limitations to the rights to life and liberty of the
person than the national constitutions of many, if not all Member States (and
thus the common European constitutional traditions),19 and in particular
stricter than the German Basic Law. Article 2 (2) and Article 104 Basic Law
protect both rights but quite generally permit governmental interferences

16 Charter of Fundamental Rights of the European Union, 12 December 2007, OJ 2007

C 303/1.
17 According to Art. 52 (3) sentence 2 of the Charter (supra note 16), EU law remains
free to provide more extensive protection.
18 See para. 3 of the Explanation on Art. 2 of the Charter and the third paragraph of the
Explanation on Art. 52 of the Charter in the Explanations Relating to the Charter of
Fundamental Rights (OJ 2007 C 303/17). According to Art. 6 (1) subpara. 3 of the
Treaty on European Union (TEU) (OJ 2012 C 326/13) and Art. 52 (7) of the Charter
(supra note 16), the rights in the Charter shall be interpreted with due regard to those
explanations.
19 See Art. 6 (3) of the TEU (supra note 18).

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

which are based on a law enacted by Parliament and compatible with the
principle of proportionality. Parliament can in other words formulate any
reason for interferences it pleases, provided that the underlying value is im-
portant enough to survive review by the German Federal Constitutional
Court under the principle of proportionality. The Court in such cases bal-
ances the right (such as life or liberty of the person) and the value promoted
by the law (such as the rights and freedoms of others) and permits the in-
terference when the latter outweighs the former and the interference is nec-
essary and proper to uphold the value. As the rights to life and liberty of the
person are particularly important, only very weighty reasons will pass
muster.
There thus is a difference with regard to the protection of the rights to life
and liberty of the person between the national, including the German, con-
stitutional systems (operating with general limitation provisions)20 and the
Convention system (operating with a casuistic limitation provision) which
does not exist with regard to the other fundamental rights. As far as the right
to liberty of the person is concerned, the rigid numerus clausus system of
the Convention has proved to be very demanding on the Member States’
courts and legislatures. On the other hand, the ECtHR has demonstrated its
readiness to take into account the legitimate interest of the Member States
to protect the general public from dangerous individuals. After all, the Con-
vention itself imposes a protective duty on them.
Here as in other areas, it is essential to strike a fair balance between the
rights of individuals and the general interests of society. One must in this
context keep in mind the special importance of the right to liberty of the
person on the one hand and, on the other hand, in addition to the value of
the particular conflicting societal interest in the concrete case, also the value
of democratic government as such, where the definition and appraisal of
public interests is primarily entrusted to the directly-elected parliament.21
That balancing challenge can best be mastered if the Strasbourg Court and
the national courts closely co-operate. While the national courts ‘at the front’

20 See, e.g., Art. 12 of the 1994 Belgian Constitution; Art. 6 & 8 of the 1992 Czech
Charter of Fundamental Rights and Freedoms; Art. 71 of the 1953 Danish Consti-
tution; Art. 13 of the 1947 Italian Constitution, Art. 38 & 41 of the 1997 Polish Con-
stitution; Art. 10, 31 & 36 of the 1999 Swiss Constitution. Translations of the con-
stitutions can be found in G. H. Flanz et al. (eds.), Constitutions of the World, Vol.
II, V, IX, XV & XVII (1971-).
21 See J. Laws, Are Human Rights Undemocratic?, in this book (pp. 185 et seq.).

211
Thomas Giegerich

are in a better position to assess the requirements of public security needs

and the dangerousness of the detainee, they may become routine-blinded.
The ECtHR is much more detached from the local realities, but that position
enables it to assess the proportionality of preventive detention decisions
more objectively, all the more since it can draw on pan-European experi-
ences concerning similar conflicts of interests.

B. The German Preventive Detention Regime Facing the Standards of

Article 5 ECHR

Leaving aside the right to life for now, I would like to concentrate on the
difficulties experienced by Germany in fulfilling her obligations under Ar-
ticle 5 ECHR with regard to preventive detention and in particular the prob-
lem of adapting her system to the exhaustive list of permissible detention
grounds in Article 5 (1) ECHR. In this area, a dialogue has developed be-
tween the ECtHR and the German courts as well as the German legislature.
The German authorities have sincerely tried to transpose the precepts of the
Convention, as interpreted by the Strasbourg Court, accurately into German
law. That Court has in turn recognized these efforts and the problems which
an overly rigid interpretation of the catalogue of Article 5 (1) ECHR can
cause, not least with regard to the public acceptance of the Convention sys-
tem in the Member States.

I. Purely Preventive Detention of Non-Criminals

(Unterbindungsgewahrsam)

The first area where such difficulties with the Convention’s numerus
clausus system have come up concerns the purely preventive and not pros-
ecutorial detention of suspected future offenders. Important examples are
football hooligans who, because of their history of violent behaviour, are
strongly suspected of being out for hooligan brawls again and therefore
temporarily detained by the police to prevent imminent clashes around a new
football match. In view of its purely preventive purpose, this type of deten-

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

tion is based on the police laws of the German States (Länder).22 Being
intended to avert imminent dangers, it often lasts only for some hours and
may not be extended beyond a few days at the most. It is also subject to strict
scrutiny by the courts as to its proportionality.

1. The Search for a Justification Permissible under the Convention

As this short preventive detention is completely detached from any preced-

ing conviction of a criminal offence, it does not fall within Art 5 (1) (a)
ECHR. Nor is the detention covered by the first alternative of Article 5 (1)
(c) ECHR, because it does not presuppose any suspicion that the detainee
has committed an offence.
It does not fit the second alternative of Article 5 (1) (c) ECHR either. This
is because the ECtHR has in the light of Article 5 (3) ECHR constantly
interpreted that alternative in the sense that the detention must be aimed at
committing the detainee for trial in the criminal courts (prosecution pur-
pose).23 And yet, the German Unterbindungsgewahrsam seems to be an ef-
fective and reasonable instrument for instance in the fight against the grow-
ing violence surrounding sports events – which has long been recognized as
a problem requiring the concerted efforts of the Member States of the Coun-
cil of Europe.24 Therefore in the most recent Schwabe case, the German
government tried to convince the Court to revise its long-standing case law
with regard to the second alternative of Article 5 (1) (c) ECHR and abandon
the prosecution purpose requirement. But the Court did not need to respond
to the government’s arguments in this respect because in that case the ap-

22 See, e.g., Saarland Police Act (Saarländisches Polizeigesetz), Sec. 13 (1) no. 2,
available at http://sl.juris.de/cgi-bin/landesrecht.py?d=http://sl.juris.de/sl/gesamt/
PolG_SL.htm#PolG_SL_rahmen (last visited 31 January 2014): “The police en-
forcement authority may detain a person, if that [...] 2. Is indispensable to prevent
the imminent commission or continuation of a crime or administrative offence of
substantial importance for the general public.” (translation by the author).
23 Schwabe and M.G. v. Germany, ECtHR Application No. 8080/08 & 8577/08, Judg-
ment of 1 December 2011, paras. 71-72. See also ECtHR, Epple v. Germany, Ap-
plication No. 77909/01, Judgment of 24 March 2005, para. 35.
24 See the European Convention on Spectator Violence and Misbehaviour at Sports
Events and in particular at Football Matches, 19 August 1985, 1496 UNTS 125,
which has been ratified by 42 Member States and Morocco.

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Thomas Giegerich

plicants’ detention could not reasonably be considered necessary so that it

clearly violated Article 5 (1) ECHR in any event.25

2. German Courts Suggest Article 5 (1) (c) (Second Alternative)

Given this background, several German courts have struggled to square the
German Unterbindungsgewahrsam with the precepts of Article 5 (1) ECHR.
One recent example is the judgment of the Hannover Administrative Court
of 4 July 2012 concerning the preventive detention of a football hooli-
gan.26 The Administrative Court relied on the second alternative of Article
5 (1) (c) ECHR as a ground for that detention. Underlining its obligation to
respect the jurisprudence of the Strasbourg Court, the Administrative Court
argued that the prosecution purpose requirement was not part of the ratio
decidendi in the recent case law concerning the German Unterbindungsge-
wahrsam. It then tried to show why that requirement could not be upheld.
Without mentioning Article 5 (3) ECHR, the Administrative Court pointed
out that the wording of the second alternative of (c) required no more than
the intention by the police to bring the detainee before the competent legal
authority. This could also be the court which was required by law to decide
on the admissibility and continuation of the purely preventive detention.
The Administrative Court added two arguments based on a systematic
interpretation of the Convention. First, requiring a prosecution purpose for
the second alternative of (c) would render the latter superfluous because the
first alternative already permitted the detention for that same purpose. The
Administrative Court secondly referred to the protective duty of the State
under the Convention with regard to the life and bodily integrity of members
of the general public which were threatened by hooligan violence. Article 5
(1) (c) ECHR could not be interpreted in a sense which made the fulfilment
of that obligation impossible. In this context, the Administrative Court re-
marked that under German law, in difference to the law of many other Euro-
pean States, acts in preparation of the future commission of a crime were
usually not as such qualified as crimes. Accordingly, for the German law it

25 See Schwabe and M.G. v. Germany, ECtHR Judgment, supra note 23, para. 79.
26 Administrative Court of Hannover, Case No. 10 A 1994/11, Decision of 4 July 2012,
127 Deutsches Verwaltungsblatt (2012), 1323 with an annotation by S. Söllner
(1326). See also D. Heinemann & J. Hilker, Zur Vereinbarkeit von Präventivhaft mit
Artikel 5 EMRK, 127 Deutsches Verwaltungsblatt (2012) 3, 1467.

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

was more difficult than for the law of other European States to fulfil the
prosecution purpose requirement of Article 5 (1) (c) ECHR in the strict sense
of the previous Strasbourg case law.27

3. The European Court of Human Rights Opts for Article 5 (1) (b) (Second
Alternative) as a Compromise

A recent chamber judgment of the ECtHR in a football hooligan case has

now clarified the legal situation.28 There, a well-known hooligan had been
temporarily detained for purely preventive and not prosecution purposes.
The German government again asked the Court to reverse its case law and
re-interpret the second alternative of Article 5 (1) (c) ECHR to cover also
purely preventive police custody for very much the reasons on which the
judgment of the Hannover Administrative Court was based. The majority of
the Strasbourg Court, however, refused. It held that Article 5 (1) (c) ECHR
had to be read in conjunction with Article 5 (3) ECHR and the term “trial”
used in the latter paragraph referred only to a criminal trial and not a judicial
decision on the lawfulness of the preventive police custody.29 The Court also
dismissed the objection that the prosecution purpose requirement rendered
the second alternative of (c) superfluous in addition to the first alternative,
but did not make any convincing argument in support of this position.30
Finally, the Court rejected the German government’s reference to the posi-
tive obligation of the Member States under the Convention to protect the
public from offences against life or limb. In this context, it used circular
reasoning. It said: The Convention
“does not permit a State to protect individuals from criminal acts of a person by
measures which are in breach of that person’s Convention rights, in particular
the right to liberty as guaranteed by Article 5 § 1”.31
But the very question is whether Article 5 (1) (c) ECHR can be reasonably
interpreted in a way that it prohibits purely preventive detention even where
necessary to enable the State to fulfil its duty of protection.

27 See also Heinemann & Hilker, supra note 26, 1472.

28 Ostendorf v. Germany, ECtHR Application No. 15598/08, Judgment of 7 March
2013.
29 Ibid., para. 85.
30 Ibid., para. 86.
31 Ibid., para. 87.

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Thomas Giegerich

Two judges criticized the majority and argued for the application of the
second alternative of Article 5 (1) (c) ECHR in the instant case. They wrote
that the case law had gone too far in always requiring a prosecution purpose
to justify preventive detention under (c).
“We think that in situations where there is a vital public interest in preventing
someone from committing an offence a limited possibility does exist for the law
enforcing authorities to detain that person for a short period, even if he has not
yet committed a crime and therefore without the possibility that criminal pro-
ceedings will be opened against him.”32
In any event, the majority of the Strasbourg Court immediately added a ‘rule
of reason’ after having denied the application of (c).33 They expressly rec-
ognized “the importance, in the German legal system, of preventive police
custody in order to avert dangers to the life and limb of potential victims or
significant material damage, in particular, in situations involving the polic-
ing of large groups of people during mass events [...]”. They reiterated “that
Article 5 cannot be interpreted in such a way as to make it impracticable for
the police to fulfil their duties of maintaining order and protecting the public
– provided that they comply with the underlying principle of Article 5, which
is to protect the individual from arbitrariness [...]”. The majority then, as a
kind of compromise, drew on the second alternative of Article 5 (1) (b)
ECHR to permit purely preventive detention in the limited circumstances
set out in that provision.34
Five specific requirements were spelt out by the Court which must be
fulfilled for a detention to be covered by that provision. The first requirement
is that “the law permits the detention of the person concerned to compel him
to fulfil a specific and concrete obligation incumbent on him, which he has
until then failed to satisfy”.35 The Court here emphasized that “the ‘obliga-
tion’ under Article 5 (1) (b) must be very closely circumscribed”.36 Secondly,
the detention must aim at or directly contribute to securing the fulfilment of

32 Concurring Opinion of Judges Lemmens and Jäderblom, Ostendorf v. Germany,

ECtHR Judgment, supra note 28, para. 4. The two judges pointed out that the judg-
ment in the case of Lawless v. Ireland where the Court had for the first time inter-
preted (c) could not be read as always requiring a prosecution purpose to justify
preventive detention.
33 Ostendorf v. Germany, ECtHR Judgment, supra note 28, para. 88.
34 Ibid., para. 89 et seq. See also O. Dörr, Kapitel 13: Freiheit der Person, in Dörr et al.
(eds.), supra note 5, 632, 715, para. 170.
35 Ostendorf v. Germany, ECtHR Judgment, supra note 28, para. 90.
36 Ibid., para. 93.

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

the obligation and must not be punitive in character.37 Thirdly, the nature of
the obligation must itself be compatible with the Convention.38 Fourthly, the
basis for detention ceases to exist as soon as the relevant obligation has been
fulfilled and the detainee must immediately be released.39 Finally, “the Court
has to determine whether a due balance has been struck between the impor-
tance in a democratic society of securing the immediate fulfilment of the
obligation in question and the importance of the right to liberty [...]”.40 In
the instant case, the majority of the Court found that all those requirements
had been met so that the applicant’s deprivation of liberty was justified under
the second alternative of Article 5 (1) (b) ECHR.41

4. Likely Future Increase in the Strasbourg Case-Load

Those strict standards must henceforth be observed by the German courts

when they decide on the legality of purely preventive detention. Such cases
do not only involve football hooligans, but also participants in demonstra-
tions or counter-demonstrations who are prepared to use violence, persons
detained to prevent them from engaging in domestic violence against family
members as well as suicidals. After having exhausted the domestic remedies,
including the constitutional complaint procedure, all those temporarily de-
tained by German police authorities will now be inclined to turn to the
ECtHR. In the course of time, the Convention standards for the admissibility
of preventive detention of non-criminals will gradually be clarified through
the cooperation of the German courts, including the Federal Constitutional
Court, and the Strasbourg Court. The latter will certainly face an increased
influx of pertinent cases: The more detailed the human rights obligations
which the Court imposes on the Member States, the more individual appli-

37 Ibid., para. 97.

38 Ibid., para. 98.
39 Ibid., para. 99-100.
40 Ibid., para. 101.
41 In their concurring opinion, two judges denied the existence of a “specific and con-
crete obligation”, so that for them the second alternative of Article 5 (1) (b) ECHR
did not justify the detention in the instant case. They would instead have applied the
second alternative of Article 5 (1) (c) ECHR. The Court thus unanimously held that
the detention was compatible with Article 5 (1) ECHR. Concurring Opinion of
Judges Lemmens and Jäderblom, Ostendorf v. Germany, ECtHR Judgment, supra
notes 28 & 32.

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Thomas Giegerich

cations it provokes. On the other hand, the right to liberty of the person is
too important and too imperiled to be completely surrendered to the national
judiciaries.

II. Preventive Detention of Convicted Dangerous Criminals upon

Completion of Their Prison Term (Sicherungsverwahrung)

1. The Sicherungsverwahrung in the German Twin-Track System of

Sanctions

The German difficulties with the adequate transposition of Article 5 (1)

ECHR have become most obvious regarding the preventive detention of
dangerous criminals upon the completion of their prison term. This type of
preventive detention pursuant to federal criminal law – the Sicherungsver-
wahrung – which can be imposed in addition to a prison term may last for
many years and in extreme cases for life. It is rooted in the traditional German
twin-track system of sanctions which distinguishes between penalties (i.e.
prison terms and fines) and measures of correction and prevention, such as
the placement in a psychiatric hospital and the preventive detention in the
form of Sicherungsverwahrung.42 Whereas the penalties are fixed according
to the defendant’s guilt, the measures of correction and prevention, including
the Sicherungsverwahrung, are imposed according to the dangerousness of
the defendant, irrespective of his or her culpability.

2. The Legislative Tightening of the Sicherungsverwahrung Regime since

1998 with Retroactive Effect

While the Sicherungsverwahrung as such can rather easily be brought under

Article 5 (1) (a) ECHR, the situation became critical after the German pre-
ventive detention regime was tightened considerably because of public con-
cern over high-profile cases of recidivist violent criminals. The first step in
that direction was made in 1998 by the Combating of Sexual Offences and
Other Dangerous Offences Act43 which abolished the time-limit of ten years

42 See M. v. Germany, ECtHR Judgment, supra note 5, paras. 45 et seq.

43 Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten of
26 January 1998, Bundesgesetzblatt [Federal Law Gazette] 1998, Vol. I, 160.

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

for the first period of preventive detention. The second step followed in 2004
with the Introduction of Subsequent Preventive Detention Act44 which in-
troduced the possibility to impose preventive detention on offenders against
whom a preventive detention order had not already been made together with
their original conviction and sentencing because their future dangerousness
became apparent only while they served their prison term. Those stricter new
rules were given retroactive effect – they also applied to offenders who had
been convicted before their entry into force.

3. The First Round in the Federal Constitutional Court: Constitutionality

Confirmed (2004)

The offender M. who had been retroactively deprived of the benefit of the
ten-year time-limit for his first period of preventive detention and was thus
continuously kept in preventive detention for an unlimited duration lodged
a constitutional complaint with the Federal Constitutional Court. The appli-
cant challenged the retroactive effect of the law which had abolished the ten-
year time-limit, arguing that this violated both the rule of law principle and
Article 103 (2) of the Basic Law. The latter provision prohibits the retroac-
tive imposition or aggravation of criminal liability.
The Federal Constitutional Court dismissed the complaint.45 It held that
the Sicherungsverwahrung was no punishment in the proper sense because
it was not intended to compensate past criminal culpability but only to coun-
teract future dangerousness. It thus did not come under the absolute prohi-
bition on retroactivity in Article 103 (2) of the Basic Law.46 Rather, it was
only covered by the relative prohibition on retroactivity which formed part
of the rule of law principle protecting legitimate reliance on existing law.
Since the interest in protecting the general public from recidivist dangerous
criminals outweighed the liberty interest of those criminals, not least because
of the constitutional obligation of the State to protect the fundamental rights
of the potential victims, the retroactive effect of the Combating of Sexual

44 Gesetz zur Einführung der nachträglichen Sicherungsverwahrung of 23 July 2004,

Bundesgesetzblatt [Federal Law Gazette] 2004, Vol. I, 1838.
45 Sicherungsverwahrung, German Federal Constitutional Court, Case No. 2 BvR
2029/01, Decision of 5 February 2004, 109 BVerfGE 133. The decision regarding
the problem of retroactive effect was made by 6 votes to 2.
46 Ibid., 167-180 (paras. 123-165).

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Thomas Giegerich

Offences and Other Dangerous Offences Act was compatible with the rule
of law principle.47
It seems noteworthy that the French Conseil Constitutionnel reached the
opposite conclusion in 2008. It determined that the retroactive imposition of
preventive detention on persons who had been convicted of offences com-
mitted before the law introducing preventive detention had been promul-
gated was incompatible with Article 8 of the French Déclaration des droits
de l’Homme et du citoyen.48

4. The Second Round in the European Court of Human Rights: Violation of

Convention Found (2009)

While the judgment of the Federal Constitutional Court was thoroughly rea-
soned, it did not at all take the Convention into account.49 That proved fatal:
When the offender M. lodged an individual application under Article 34
ECHR, the ECtHR in 2009 found violations of Article 5 (1) and Article 7
ECHR by Germany.50 Pursuant to Article 41 ECHR, Germany was also or-
dered to pay M. 50,000 euros as just satisfaction for his long detention con-
trary to the Convention.

47 Ibid., 180-187 (paras. 166-189).

48 Constitutional Council of France, Case No. 2008-562 DC, Decision of 21 February
2008, Official Gazette (Journal Officiel) of 26 February 2008, 3272, para. 10.
49 When that judgment was handed down on 5 February 2004, the German Federal
Constitutional Court had already acknowledged that the ECHR should be taken into
account when interpreting the fundamental rights provisions of the German Basic
Law (German Federal Constitutional Court, Case No. 2 BvR 589/79 et al., Decision
of 26 March 1987, 74 BVerfGE 358, 370 (para. 35). But the leading Görgülü case
in this regard which elaborated on the concept of interpreting the Basic Law in con-
formity with the Convention was only decided on 14 October 2004. Görgülü, Ger-
man Federal Constitutional Court, Case No. 2 BvR 1481/04, Decision of 14 October
2004, 111 BVerfGE 307.
50 M. v. Germany, ECtHR Judgment, supra note 5. A series of similar cases led to
further convictions of Germany: Kallweit v. Germany, ECtHR Application No.
17792/07, Judgment of 13 January 2011; Mautes v. Germany, ECtHR Application
No. 20008/07, Judgment of 13 January 2011; Schummer v. Germany, ECtHR Ap-
plication Nos. 27360/04 & 42225/07, Judgment of 13 January 2011;

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

In the M. case, the Strasbourg Court held that the retroactive prolongation
of the Sicherungsverwahrung could not be justified under Article 5 (1) (a)
ECHR, because the intervening prolongation decision of the German legis-
lature interrupted the causal connection between the original conviction by
the competent court and the prolonged detention beyond the original ten-
year period.51 The ECtHR also held that the prolonged preventive detention
could not be justified either under any other of the permissible reasons listed
in Article 5 (1) (c) did not apply because the potential future offences of the
detainees were not sufficiently concrete and specific, and (e) could not help
since the detainees were not deprived of their liberty because they were
considered to be of “unsound mind”.52
The Strasbourg Court furthermore determined that Article 7 (1) ECHR
was also violated because the Sicherungsverwahrung type of preventive de-
tention amounted to a penalty in the sense of that provision. The Convention
concept of penalty was autonomous in scope and thus independent of the
qualification of the measure under national law. The Court here underlined
that there was no substantial difference between the execution of a prison
sentence and that of a preventive detention order.53 This amounted to a clear
rebuke for the Federal Constitutional Court for not having resolutely enough
protected the right to personal liberty of a small group of individuals on the
fringes of society. Would the M. case usher in a new era of confrontation
instead of cooperation between the two Courts?
The German request under Article 43 ECHR that the M. case be referred
to the Grand Chamber was denied. The German authorities thereupon re-
leased M. Both the German courts and the German legislature have ever

O.H. v. Germany, ECtHR Application No. 4646/08, Judgment of 24 November 2011;

Kronfeldner v. Germany, ECtHR Application No. 21906/09, Judgment of 19 January
2012; B. v. Germany, ECtHR Application No. 61272/09, Judgment of 19 April 2012;
K. v. Germany, ECtHR Application No. 61827/09, Judgment of 7 June 2012; G. v.
Germany, ECtHR Application No. 65210/09, Judgment of 7 June 2012; S. v. Ger-
many, ECtHR Application No. 3300/10, Judgment of 28 June 2012; H.W. v. Ger-
many, ECtHR Application No. 17167/11, Judgment of 19 September 2013; Glien v.
Germany, ECtHR Application No. 7345/12, Judgment of 28 November 2013. See
also Haidn v. Germany, ECtHR Application No. 6587/04, Judgment of 13 January
2011, concerning preventive detention on the basis of a statute enacted by a German
state (Land) which the Federal Constitutional Court had declared unconstitutional
because it was preempted by federal law.
51 M. v. Germany, ECtHR Judgment, supra note 5, paras. 97 et seq.
52 Ibid., paras. 102-103.
53 Ibid., paras. 117 et seq.

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Thomas Giegerich

since been struggling to bring the preventive detention system in line with
the Convention.54 In this context, the Federal Constitutional Court was very
co-operative. It downright went out of its way to transpose the precepts of
the Convention, as interpreted by the ECtHR, into German constitutional
law. Perhaps it had a bad conscience for having completely ignored those
precepts in 2004.
This time, the Federal Constitutional Court took up the Strasbourg Court’s
divergent approach much more readily than in the earlier Caroline case.55
There, the Karlsruhe Court had apparently been proud of its own sophisti-
cated approach for balancing the freedom of the press and the conflicting
personality rights of public figures. When the Strasbourg Court reached the
opposite result because it found the Karlsruhe Court’s approach inadequate,
the latter seemed displeased. The Federal Constitutional Court even –
wrongly – suggested that in such cases of conflicting fundamental rights
(“multipolar fundamental rights relationships”56) Article 53 ECHR autho-
rized the national courts to strike their own balance and give more weight to
one of the conflicting rights than the Convention, as interpreted by the
ECtHR.57 Meanwhile the two Courts seem to have come to terms with each
other also in the Caroline case.

54 The German police was also struggling to keep the released prisoners under 24-hour
surveillance because of their supposed dangerousness (see German Federal Consti-
tutional Court, Case No. 1 BvR 22/12, Decision of 8 November 2012, 40 Europäische
Grundrechte-Zeitschrift (2013) 1-5, 73).
55 Caroline von Monaco II, German Federal Constitutional Court, Case No. 1 BvR
653/96, Decision of 15 December 1999, 101 BVerfGE 361; Von Hannover v. Ger-
many, ECtHR Application No. 59320/00, Judgment of 24 June 2004; Caroline von
Monaco IV, German Federal Constitutional Court, Case Nos. 1 BvR 1602/07 et al.,
Decision of 26 February 2008, 120 BVerfGE 180; Von Hannover v. Germany (No.
2), Application Nos. 40660/08 & 60641/08, Judgment of 7 February 2012; Von
Hannover v. Germany (No. 3), ECtHR Application No. 8772/10, Judgment of 19
September 2013. See also C. Grabenwarter, Die deutsche Sicherungsverwahrung als
Treffpunkt grundrechtlicher Parallelwelten, 39 Europäische Grundrechte-Zeitschrift
(2012) 17-19, 507.
56 The German term is mehrpolige Grundrechtsverhältnisse.
57 Görgülü, German Federal Constitutional Court Decision, supra note 49, 318 et
seq., 325 & 327-328 (paras. 34 et seq., 50 & 58-59); Sicherungsverwahrung II, Ger-
man Federal Constitutional Court, Case Nos. 2 BvR 2365/09 et al., Decision of 4
May 2011, BVerfGE 128, 326, 371 (para. 93).

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5. The Third Round in the Federal Constitutional Court: Constitutionality

Denied (About-Face in 2011)

The first opportunity for the Federal Constitutional Court to reconsider its
position came in May 2011, when it was again confronted with constitutional
complaints by convicted criminals against the retroactive imposition or pro-
longation of Sicherungsverwahrung.58 The Court used that opportunity for
nothing less than a complete about-face.59 As it later turned out, the Court
thereby saved Germany from the disgrace of the pilot-judgment proce-
dure60 by which the ECtHR reacts to a systematic malfunctioning of the
domestic legal order in a Member State producing numerous repetitive cases
in Strasbourg. In a pilot judgment concerning a typical case out of that mul-
titude of repetitive cases, the ECtHR will specify general measures to the
Member State in the sense of a law-making obligation in order to terminate
the Convention violations once and for all.61 When the Federal Constitu-
tional Court reconsidered the issue of Sicherungsverwahrung in 2011, Ger-
many had been convicted of Convention violations in a series of cases so
that the pilot judgment procedure was becoming increasingly likely, not least
because there was confusion among the German courts on how to accom-
modate the Strasbourg case law.62

58 Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra

note 57. A press release in English (No. 31/2011) on that judgment is available at
http://www.bverfg.de/pressemitteilungen/bvg11-031en.html (last visited 31 January
2013). See also A. Windoffer, Die Maßregel der Sicherungsverwahrung im Span-
nungsfeld von Europäischer Menschenrechtskonvention und Grundgesetz, 64 Die
Öffentliche Verwaltung (2011), 590.
59 Only four of the eight judges who had participated in the 2004 judgment were still
on the bench. The 2011 judgment was not entirely unanimous; certain parts were
decided by 7 votes to 1.
60 See below B. II. 6.
61 M. Fyrnys, Expanding Competences by Judicial Lawmaking: The Pilot Judgment
Procedure of the European Court of Human Rights, 12 German Law Journal (2011)
5, 1231.
62 M. Andenas & Eirik Bjorge, German Federal Constitutional Court: Preventive De-
tention, 105 American Journal of International Law (2011) 4, 768.

223
Thomas Giegerich

a) Admissibility of the Constitutional Complaints: Res Judicata Obstacle

Surmounted

In a first step, the Federal Constitutional Court decided that the res judica-
ta effect of its own previous judgment of 2004 did not prevent it from re-
considering the constitutionality of the retroactive provisions in the light of
the intervening judgment of the ECtHR. That judgment amounted to a sub-
sequent material change of the law. While it could not automatically alter
the constitutional situation in Germany, the well-established constitutional
principle of comity (i.e. friendliness or openness) towards public interna-
tional law63 required the Federal Constitutional Court to avoid infringements
of the Convention whenever it was possible to interpret the Basic Law in a
manner that made it compatible with the Convention and the Strasbourg case
law.64 In the instant case, this was possible.

b) Merits of the Constitutional Complaints: Statutory Provisions on

Sicherungsverwahrung Unconstitutional

aa) The “Flexibilizing” Function of the Principle of Proportionality

In a second step, the Federal Constitutional Court held that the constitutional
complaints were well-founded and declared the statutory provisions on the
Sicherungsverwahrung and in particular those on the retroactive imposition
or prolongation of that preventive detention unconstitutional. In this context,
the Court indeed reaffirmed its previous position that the retroactive pro-
longation of preventive detention did not violate the absolute prohibition on
retroactivity in Article 103 (2) of the Basic Law. Although the latter provi-
sion was the equivalent of Article 7 (1) ECHR which, in the view of the
Strasbourg Court, had been infringed, the Federal Constitutional Court de-
clined to re-categorize the Sicherungsverwahrung as a punishment for pur-
poses of German constitutional law.65 But the Court then reinterpreted the
complainants’ fundamental right of liberty of the person in Article 2 (2)
sentence 2 and Article 104 (1) in conjunction with the rule of law principle

63 The German term is Völkerrechtsfreundlichkeit.

64 Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra
note 57, 364-365 (paras. 81-82).
65 Ibid., 391 et seq. (paras. 139 et seq.).

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

of the Basic Law in the light of the valuations of both Article 5 (1) and Article
7 (1) ECHR.
The Court did in other words not literally translate the Strasbourg inter-
pretations of the Convention into its own interpretations of the corresponding
articles of the Basic Law. Rather, it otherwise modified its own interpreta-
tions of the Basic Law to accommodate the Strasbourg precepts in a way
which ensured that Germany in the end adhered to its Convention obliga-
tions, while maintaining its constitutional autonomy and the interpretative
autonomy of the Federal Constitutional Court.66 The Convention requires
no more from the Member States, as the Court correctly observed. In order
to fulfil the Convention precepts, the Court drew upon the Basic Law’s prin-
ciple of proportionality which is criticized by some authors as “the flexi-
biliser of constitutional standards”67 and has now fortunately proved flexible
enough also to absorb the Convention standards.68

bb) ‘Distance Requirement’ and Non-Retroactivity

The Federal Constitutional Court actually distinguished two different vio-

lations of the Basic Law by different statutory provisions. The first instance
of unconstitutionality consisted of a violation of a newly tightened propor-
tionality requirement limiting serious interferences with the right to liberty
of the person such as those implicated by the Sicherungsverwahrung. Con-
cerning the tightening of that proportionality requirement, the Court extend-
ed an argument which it had already made in 2004 – that there must be a
marked distance between the execution of prison sentences and the execution
of preventive detention (‘distance requirement’).69 The only legitimate pur-
poses of the latter are correction and prevention, and not retribution. That
had to be made evident in the execution of the Sicherungsverwahrung which
would otherwise be disproportionate. In this regard, the Federal Constitu-
tional Court referred to the criticism expressed by the Strasbourg Court in

66 See ibid., 370 (para. 92).

67 F. Ossenbühl, Maßhalten mit dem Übermaßverbot, in: P. Badura & R. Scholz (eds.),
Wege und Verfahren des Verfassungslebens: Festschrift für Peter Lerche (1993),
151.
68 Grabenwarter, supra note 55, 511 & 513.
69 Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra
note 57, 374 (paras. 100 et seq.) The German term is Abstandsgebot.

225
Thomas Giegerich

the M. Case that there was no substantial difference between executions of

prison sentences and preventive detention orders.70 That criticism had been
voiced in the context of cases concerning the retroactive prolongation of
preventive detention. Going further than what was directly required by the
Strasbourg judgment in the M. Case, the Federal Constitutional Court ex-
tended the distance requirement beyond the retroactivity issue and used it to
strike down the system of preventive detention in general.
The Federal Constitutional Court now formulated detailed requirements
for the future execution of preventive detention orders to ensure observation
of the distance principle in all cases.71 Those requirements, which were ad-
dressed to the legislatures on both the federal and State levels, necessitated
a fundamental reform of the whole system of the Sicherungsverwahrung
with regard to both statutory regime and practical implementation.The sec-
ond instance of unconstitutionality censured by the Federal Constitutional
Court concerned a newly tightened relative prohibition on retroactivity as
part of the principle of proportionality which constitutes an aspect of the rule
of law principle (Article 20 (3) of the Basic Law). The Court now held that
the detainees’ legitimate expectation to be released which had been thwarted
by the law’s retroactive effect was considerably strengthened by the valua-
tions of both Article 5 (1) and Article 7 (1) ECHR.72 In this context, the
Federal Constitutional Court underlined that according to the case law of the
ECtHR, neither Article 5 (1) (a) nor (c) ECHR could be used to justify the
retroactive imposition or prolongation of ‘Sicherungsverwahrung’. The only
available justification was (e) (unsoundness of mind).73
The Federal Constitutional Court therefore concluded that the retroactive
imposition or prolongation of Sicherungsverwahrung could henceforth only
be considered as proportionate upon the following three conditions: if (1)
the distance requirement was observed (as in all the other cases of
Sicherungsverwahrung too), (2) a high-grade danger of most serious crimes
of violence or sex offences could be inferred from specific circumstances
pertaining to the person or the conduct of the detainee and (3) the require-
ments of Article 5 (1) (e) ECHR were satisfied. Only in those exceptional

70 Ibid., 375-376 (para. 102).

71 Ibid., 376-382 (paras. 103-118).
72 Ibid., 388 et seq. (paras. 131 et seq.).
73 Ibid., 393 et seq. & 396 et seq. (paras. 143 et seq., 151 et seq.).

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

cases could it be assumed in the future that the public safety interests pre-
vailed over the liberty interests of the detainee.74

c) Execution Order with Transitional Arrangement to Avoid Legal Vacuum

Endeavouring to satisfy the requirements of the Convention, as interpreted

by the Strasbourg Court, the Federal Constitutional Court struck down the
central provisions regulating the Sicherungsverwahrung as unconstitutional.
However, in order to avoid a legal vacuum with regard to the detention of
highly dangerous criminals which would otherwise have to be released im-
mediately, the Court ordered that those provisions remained applicable until
they could be replaced by new ones which were constitutional, but no longer
than 31 May 2013.75
But the Court also subjected their application during that transition period
to additional constraints to ensure that violations of the fundamental consti-
tutional (and Convention) rights of the affected criminals were avoided.
Those provisions which had been found to violate the ‘distance requirement’
could only be further applied subject to a strict proportionality standard.
Thus, as a rule, Sicherungsverwahrung could only be imposed on criminals
who posed a concrete danger of committing serious crimes of violence or
sex offences. Those provisions which had been found to violate the relative
prohibition on retroactivity could only be further applied subject to the re-
quirements of Article 5 (1) (e) ECHR which had meanwhile been transposed
and specified by the German legislature in the Therapeutic Placement Act
of 2010.76 In other words, Sicherungsverwahrung could only be retroac-
tively imposed on or prolonged for criminals who suffered from a mental
disorder and posed a high-grade danger of committing most serious crimes
of violence or sex offences.

74 Ibid., 399 (para. 156).

75 This order was based on Sec. 35 Federal Constitutional Court Act [Bundesverfas-
sungsgerichtsgesetz] (last amended by Act of 29 August 2013, Bundesgesetzblatt
[Federal Law Gazette] 2013, Vol. I, 3463).
76 Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter –
Therapieunterbringungsgesetz (Art. 5 of the Gesetz zur Neuordnung des Rechts der
Sicherungsverwahrung und zu begleitenden Regelungen of 22 December 2010),
Bundesgesetzblatt [Federal Law Gazette] 2010, Vol. I, 2300, 2305. The Therapeutic
Placement Act entered into force on 1 January 2011.

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Thomas Giegerich

Finally, the Federal Constitutional Court ordered that the competent

courts promptly review all cases of retroactive prolongation of the Siche-
rungsverwahrung to ensure that the aforementioned strict requirements were
met. If that was not the case, the detainees had to be released by 31 December
2011 at the latest.77 This part of the execution order has meanwhile produced
a number of further decisions of the Federal Constitutional Court on the
Sicherungsverwahrung.78

6. The Fourth Round in the European Court of Human Rights: Pilot

Judgment Deemed Unnecessary (2011)

In a chamber judgment of 24 November 2011, the ECtHR raised the question

what consequences might be drawn from Article 46 ECHR in view of the
fact that Germany had meanwhile been convicted several times with regard
to the system of Sicherungsverwahrung and other similar cases were still
pending.79 The Chamber thereby referred to the pilot judgment procedure
under which the Court can order that a Member State take specific measures
to rectify systemic problems which lead to a multitude of Convention vio-
lations and produce numerous repetitive cases which inflate the Strasbourg
docket.80 In the instant case, however, the Chamber refrained from doing so
because the Federal Constitutional Court, by the Judgment of 4 May 2011,
had “implemented this Court’s findings [...] on German preventive detention
in the domestic legal order. It thereby fully assumed that responsibility.”81
Thus, the Strasbourg Court did “not consider it necessary to indicate any
specific or general measures” to Germany with a view to helping it to fulfil
its obligations under Article 46 ECHR.82

77 Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra

note 57, 332-333, operative part, para. III. 2. B.
78 See, e.g., German Federal Constitutional Court, Case Nos. 2 BvR 2122/11 & 2 BvR
2705/11, Decision of 6 February 2013, 40 Europäische Grundrechte-Zeitschrift
(2013) 6-9, 233; German Federal Constitutional Court, Case No. 2 BvR 2846/09,
Decision of 8 June 2011, 129 BVerfGE 37.
79 O.H. v. Germany, ECtHR Judgment, supra note 50, paras. 109 et seq.
80 See supra B. II. 5.
81 O.H. v. Germany, ECtHR Judgment, supra note 50, para. 118.
82 Ibid., para. 119. This was confirmed in Kronfeldner v. Germany, ECtHR Judgment,
supra note 50, paras. 101 et seq., esp. para. 103.

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7. The Interventions by the German Legislature and the Third Round in in

the Federal Constitutional Court: Narrow Interpretation of the
Therapeutic Placement Act (2013)

The Federal Constitutional Court judgment of 2011 required the intervention

of the legislature in two respects. Firstly, the regime of the Sicherungsver-
wahrung in general had to be reformed in order to comply with the ‘distance
requirement’ in all cases. The federal legislature enacted the necessary re-
form in 2012.83 The Federal Constitutional Court has not yet reviewed the
constitutionality of that new regime.
Secondly, the specific retroactivity problem had to be solved with regard
to convicted criminals whose dangerousness necessitated their continuing
detention beyond the point in time by which they would have to be released
according to the original sentence. With regard to those cases, which had
previously been solved in favour of public safety through the unconstitu-
tional retroactive imposition or prolongation of Sicherungsverwahrung, the
federal legislature has enacted a separate statute, the Therapeutic Placement
Act of 2010.84 It provides that a convicted criminal who can no longer be
detained in the Sicherungsverwahrung because of the prohibition on retroac-
tivity, can instead be placed in a closed therapeutic facility by the competent
court. Such placement requires that the criminal suffers from a mental dis-
order which makes it very likely that he will seriously interfere with the life,
bodily integrity, liberty of the person or sexual self-determination of another
person and his detention is therefore necessary for the protection of the gen-
eral public.85
The Therapeutic Placement Act was specifically enacted in view of gaps
with regard to the retroactive preventive detention of dangerous criminals
which had been opened up due to the case law of the ECtHR and which the
legislature wanted to close in a way compatible with the Convention.86 When

83 Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der

Sicherungsverwahrung of 5 December 2012, Bundesgesetzblatt [Federal Law
Gazette] 2012, Vol. I, 2425 which entered into force on 1 June 2013. There will be
accompanying legislation on the State level.
84 Supra note 76.
85 Therapeutic Placement Act, Sec. 1, supra note 76.
86 See the motivation of the draft law in German Bundestag [Federal Parliament],
Printed Matter 17/3403 of 26 October 2010, 17th legislative term, available at http://
dipbt.bundestag.de/dip21/btd/17/034/1703403.pdf (last visited 31 January 2014),
14.

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Thomas Giegerich

one detainee who had been placed in therapeutic detention under the Act
lodged a constitutional complaint, the Federal Constitutional Court narrowly
interpreted the statutory requirements for that detention in order to ensure
the Act’s constitutionality.87 As the lower courts had not adhered to that
constitutionally required narrow interpretation, their detention orders were
set aside and the case remanded for further proceedings in line with the
constitutional precepts.
The Court convincingly pointed out that therapeutic detention was as se-
rious an interference with the right to personal liberty as the Sicherungsver-
wahrung and just as retroactive. Referring to the execution order it had made
in the judgment of 2011 with regard to retroactive Sicherungsver-
wahrung,88 the Court therefore held that therapeutic detention pursuant to
the Act could also only be imposed on criminals who suffered from a mental
disorder in the sense of Article 5 (1) (e) ECHR and posed a high-grade danger
of committing most serious crimes of violence or sex offences.89
In this context, the Federal Constitutional Court cited the Chamber judg-
ments of the Strasbourg Court which had approved its own efforts to trans-
pose the Strasbourg precepts.90 It also underlined that it was primarily up to
the ordinary courts in Germany to ensure that the ‘mental disorder’ require-
ment of the Act was interpreted and applied in a way which guaranteed its
compatibility with the detention ground of Article 5 (1) (e) ECHR in the
light of the Strasbourg case law.91 That was all the more possible since the
ECtHR conceded the Member States a margin of appreciation as to whether
a detainee was of unsound mind.92 The Federal Constitutional Court thor-
oughly explained why in its view the Therapeutic Placement Act in the con-
stitutionally required narrow interpretation was compatible with Article 5
(1) ECHR.93

87 Therapieunterbringungsgesetz, German Federal Constitutional Court, Case Nos. 2

BvR 2302/11 & 2 BvR 1279/12, Decision of 11 July 2013, 40 Europäische Grund-
rechte-Zeitschrift (2013) 16-19, 536, 543 et seq., paras. 66 et seq. This part of the
Order was supported by only five of the eight judges (ibid., 554, para. 143).
88 See supra B. II. 5. c.
89 Therapieunterbringungsgesetz, German Federal Constitutional Court Decision,
supra note 87, 544, para. 69.
90 Ibid., 546, para. 87. See supra B. II. 6.
91 Therapieunterbringungsgesetz, German Federal Constitutional Court Decision,
supra note 87, 547, para. 92.
92 Ibid., 547, para. 94.
93 Ibid., 546, paras. 88 et seq.

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

8. Reserved Preventive Detention (Sicherungsverwahrung) Orders: Open

Questions

The German regime of the Sicherungsverwahrung includes one further fea-

ture whose compatibility with Article 5 (1) ECHR has not yet been definitely
clarified, namely the reserved preventive detention (Sicherungsverwahrung)
order.94 Such an order can be reserved in the original sentence, if it is likely
but not certain that the convicted criminal is dangerous. If in the course of
the execution of the prison sentence the dangerousness of the criminal be-
comes certain, the detention order will be made. Otherwise the detainee will
be released. The Federal Constitutional Court last year, after an extensive
analysis of the relevant Strasbourg case law, affirmed that the reserved
Sicherungsverwahrung complied with Article 5 (1) ECHR.95
The Court held that the reserved Sicherungsverwahrung fell under Article
5 (1) (a) and not (c) ECHR, leaving open the question whether it could be
justified under (e). There was a sufficient causal connection between the
conviction and the ultimate detention order which remained within the
framework of the original sentence.The issue will sooner or later certainly
be referred to the ECtHR. Since the Federal Constitutional Court thoroughly
and faithfully applied the existing case law, chances are good that the re-
served Sicherungsverwahrung will be upheld in Strasbourg.

9. Compensation for Victims of Preventive Detention Orders Contrary to

the Convention and the Basic Law

In cases in which the ECtHR determines that preventive detention

(Sicherungsverwahrung) orders are incompatible with the Convention, it
usually also awards just satisfaction pursuant to Article 41 ECHR to com-
pensate the non-pecuniary damage caused by the detention contrary to the
Convention. Many of the German detainees affected by violations of Article
5 (1) and Article 7 ECHR, however, let the six-months deadline of Article
35 (1) ECHR pass because they and their defence counsel were simply un-
aware of those violations. They thereby also forfeited their chance of re-
ceiving compensation on the basis of Article 41 ECHR.

94 German Criminal Code (Strafgesetzbuch), Sec. 66a.

95 German Federal Constitutional Court, Case No. 2 BvR 1048/11, Decision of 20 June
2012, 131 BVerfGE 268, 295-305 (paras. 90-114).

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Thomas Giegerich

The German courts are currently dealing with the question whether the
several hundred victims of past preventive detention orders that were based
on statutory provisions which the Federal Constitutional Court declared un-
constitutional in 2011 because of a violation of the ‘distance requirement’
are to be awarded compensation under the German Act on Compensation
for Criminal Prosecution Measures.96 Such an award presupposes that the
preventive detention order has been set aside after a reopening of proceed-
ings. There currently is a dispute amongst German courts of appeal as to
whether such a reopening is possible pursuant to Section 79 (1) of the Act
on the Federal Constitutional Court (thereinafter: ‘FCCA’).97 Section 79 (1)
FCCA98 is of general application: It benefits all those who are burdened by
a final sentence based on the unconstitutional statutory provision, even if
they did not challenge the constitutionality of that provision and took no part
in the Federal Constitutional Court proceedings which led to the nullification
of that provision.
The victims of retroactive imposition or prolongation of preventive de-
tention in violation of Article 5 and Article 7 ECHR are in any event entitled
to compensation under Article 5 (5) ECHR. That provision is directly ap-
plicable in the German legal system99 and provided the basis on which Ger-

96 Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen of 8 March 1971

(last amended by Act of 8 December 2010, Bundesgesetzblatt [Federal Law Gazette]
2010, Vol. I, 1864).
97 The question was affirmed by the Munich Court of Appeal, Case No. 1 Ws 499/13
& 1 Ws 594/13, Decision of 10 July 2013. It was denied by the Cologne Court of
Appeal, Case No. 2 Ws 81/13, Decision of 28 February 2013.
98 Federal Constitutional Court Act, Sec. 79 (1), supra note 75 provides as follows:
“New proceedings may be instituted in accordance with the provisions of the Code
of Criminal Procedure against a final conviction based on a rule which has been
declared incompatible with the Basic Law or null and void in accordance with Article
78 above or on the interpretation of a rule which the Federal Constitutional Court
has declared incompatible with the Basic Law.” See also ibid., Sec. 95 (3) sentence
3.
99 German Federal Supreme Court, Case No. III ZR 70/64, Decision of 10 January
1966, 45 BGHZ 46, 49-52 (paras. 14-24); German Federal Supreme Court, Case No.
III ZR 118/64, Decision of 31 January 1966, 45 BGHZ 58, 64-65 (paras. 31-32);
German Federal Supreme Court, Case No. III ZR 3/92, Decision of 29 April 1993,
122 BGHZ 268, 269-270 (para. 15).

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

man civil courts recently awarded considerable sums100 to injured detainees

in redress of non-pecuniary damage.101

C. Concluding Assessment: Judicial Co-operation and Dialogue on the Eve

of Protocols No. 15 and 16

I. Reciprocity and Mutual Benefit in Judicial Co-operation

By the M. case, the ECtHR initiated an overdue fundamental reform of the

German Sicherungsverwahrung. This system has meanwhile also been criti-
cized by the Human Rights Committee in its Concluding Observations on
the 2011 German State report submitted under Article 40 of the International
Covenant on Civil and Political Rights.102 The Federal Constitutional Court
readily took up the Strasbourg initiative and pushed it further in a good-faith
effort to bring that system in line with the Convention, and the German leg-
islature joined in. The ECtHR has meanwhile provisionally approved those
efforts without having yet been able thoroughly to review all the aspects of
the reform. The Federal Constitutional Court has on its part tried to justify
it on the basis of the Strasbourg case law, invoking Germany’s margin of
appreciation.
In this regard, the following prognosis seems plausible: The more national
courts demonstrate their sincere readiness to transpose the precepts of the
Convention and the Strasbourg case law in the particular factual and legal
situations of their cases, the more the ECtHR will be ready to concede them
a margin of appreciation. Thus, the more seriously the national judges take
their European colleagues, the more seriously they will be taken by them.
On the other hand, the more the ECtHR ‘rewards’ national judicial efforts
to implement the Convention standards in the aforementioned sense, the
more the national courts will be ready to get involved in that endeavour. It
is a reciprocal relationship of mutual give and take in which also the national

100 Between 49,000 euros and 73,000 euros depending on the length of the detention
period.
101 See the German Federal Supreme Court, Case Nos. III ZR 405/12 et al., Decision
of 19 September 2013, 40 Europäische Grundrechte-Zeitschrift (2013), 639 et seq.
This is one of several similar judgments handed down on the same day.
102 Human Rights Committee, Concluding Observations on the Sixth Periodic Report
of Germany, UN Doc. CCPR/C/DEU/CO/6, 12 November 2012, 4, para. 14.

233
Thomas Giegerich

courts, by offering suggestions for the proper interpretation of the Conven-

tion, can and ought to influence the development of the Strasbourg case law.

II. The Multipolar College of Human Rights Protectors and the Principle of
Subsidiarity (Protocol No. 15)

The struggle to develop a preventive detention regime in Germany which is

effective and compatible with Article 5 ECHR constitutes an example of
multilevel judicial co-operation at its best. Both the Federal Constitutional
Court and the ECtHR have obviously realized that the rule of law in Europe
can be successfully maintained only if they sincerely co-operate in mutual
critical respect and maintain constant dialogue. It is their joint responsibility
and should therefore be conceived as their common endeavour to strike a
proper balance between the individual rights and the public interests, in par-
ticular in the important context of the right to liberty of the person (Article
5 ECHR). This excludes any confrontational approach, but not peaceful
competition for the best conceivable solution. In that cooperative and com-
petitive relationship, the two Courts are not alone. Rather, they, together with
the Court of Justice of the EU and the constitutional courts and/or supreme
courts of all the Member States, constitute a multipolar college of human
rights protectors which becomes ever more visible.103
The new Protocol No. 15 to the Convention affirms “that the High Con-
tracting Parties, in accordance with the principle of subsidiarity, have the
primary responsibility to secure the rights and freedoms defined in this Con-
vention and the Protocols thereto, and that in doing so they enjoy a margin
of appreciation, subject to the supervisory jurisdiction of the European Court
of Human Rights [...]”.104 That approach is meant to maintain the effective-
ness of the severely overburdened Strasbourg Court and requires precisely
the kind of sincere multilevel judicial co-operation exemplified in the con-
text of the German Sicherungsverwahrung.

103 Grabenwarter, supra note 55, 513.

104 Protocol No. 15 amending the Convention for the Protection of Human Rights and
Fundamental Freedoms (24 June 2013), Art. 1, available at http://conven-
tions.coe.int/Treaty/en/Treaties/Html/213.htm (last visited 31 January 2013) (not
yet in force). The quoted passage will become a new recital at the end of the pream-
ble of the Convention after ratification of the Protocol by all the Member States.

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 Transposing Strasbourg Case Law on Preventive Detention into German Law

III. The New Advisory Procedure (Protocol No. 16) between Judicial
Arrogance and Judicial Parochialism

In an attempt to “further enhance the interaction between the [Strasbourg]

Court and national authorities and thereby reinforce implementation of the
Convention, in accordance with the principle of subsidiarity”, a new Protocol
No. 16 was adopted by the Committee of Ministers of the Council of Euro-
pe.105 This Protocol aims at fostering cross-level dialogue between courts
and thereby enhance the Strasbourg Court’s ‘constitutional’ role.106 It will
introduce the possibility for the highest national courts and tribunals to re-
quest the ECtHR “to give advisory opinions on questions of principle relat-
ing to the interpretation or application of the rights and freedoms defined in
the Conventions or the protocols thereto”.107
While it is left to the States Parties to indicate which courts shall be author-
ized to request advisory opinions,108 it is obvious that for Germany, the
Federal Constitutional Court will be among them. It is questionable whether
this will usher in a new era of even closer co-operation across the Rhine
River between Karlsruhe and Strasbourg. Because of its own long and proud
tradition of fundamental rights jurisprudence, the Federal Constitutional
Court will probably be reluctant to make use of the entirely voluntary advi-
sory opinion procedure. From the Karlsruhe perspective, it may seem more
attractive to be the first to tackle important new human rights questions and
thereby set the stage for the future discussion in Europe, including in the
Strasbourg Court. It should be remembered that the Federal Constitutional
Court has not once requested a preliminary ruling from the Court of Justice
of the EU pursuant to Art. 267 TFEU.
According to Article 5 of Protocol No. 16, advisory opinions will not be
legally binding in the technical sense. But since they are to be delivered by

105 Protocol 16 to the Convention on the Protection of Human Rights and Fundamental
Freedoms, available at http://www.echr.coe.int/Documents/Protocol_16_ENG.pdf
(last visited 7 September 2013), Preamble.
106 Explanatory Report to Protocol 16, available at http://www.echr.coe.int/Docu-
ments/Protocol_16_explanatory_report_ENG.pdf (last visited 31 January 2014), 1,
para. 1, quoting the 2006 Report of the Group of Wise Persons. See also M. E.
Villiger, The Dialogue of Judges, in C. Hohmann-Dennhardt et al. (eds.), Grund-
rechte und Solidarität: Durchsetzung und Verfahren – Festschrift für Renate Jaeger
(2011), 195.
107 Protocol 16, Art. 1 (1), supra note 105.
108 Ibid., Art. 10.

235
Thomas Giegerich

the Grand Chamber and thoroughly reasoned,109 they will definitely com-
mand the highest conceivable degree of persuasive authority. If the request-
ing national court chooses not to follow such an advisory opinion, the ag-
grieved party will stand a very good chance of lodging a successful individ-
ual application under Article 34 ECHR. There is no doubt who has the final
say in human rights matters in that cross-level judicial dialogue: From a
European perspective, it is Strasbourg that makes the final determination of
the Convention obligations of the Member States. But neither is there any
doubt how much the authority and influence of the ECtHR in practice depend
on the prudent exercise of its powers vis-à-vis the national courts. As a matter
of fact, a relatively stable balance of power has meanwhile been established
between the two levels. With this background, European judicial arrogance
is as counterproductive as national judicial parochialism for the development
of “a common understanding and observance” and the ensuing effective en-
forcement of human rights and fundamental freedoms in Europe.110
This is all the more true with regard to Germany. There, the German Fed-
eral Constitutional Court, as a matter of theory, insists on the primacy of the
Basic Law over the Convention, which practically translates into the primacy
of the Federal Constitutional Court over the ECtHR.111 At the same time,
however, the Karlsruhe Court underlines the Basic Law’s comity (i.e. friend-
liness or openness) towards public international law in general and the Con-
vention in particular112 and on that basis advocates an international and
European dialogue of courts in practice.113 Apparently, the courts on all lev-
els have meanwhile become aware of the fact that they are natural allies in
the implementation of the law and that their mutually respectful cooperation
is called for. The judicial co-operative to secure reform of the German regime
of Sicherungsverwahrung provides conclusive evidence, if any was needed.

109 Ibid., Art. 2 (2).

110 See the preamble of the Convention (supra note 1).
111 See Görgülü, German Federal Constitutional Court Decision, supra note 49 and
Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra
note 57.
112 The special role of the Convention is based on Article 1 (2) of the Basic Law (see
Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra
note 57, 368-369 (para. 90) with further references).
113 See Grabenwarter, supra note 55, 509-510.

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How a National Judge Implements Judgments of the Strasbourg
Court

Jacek Chlebny

A. Introduction

It was only in the mid-nineties of the last century that a Polish judge for the
first time faced the challenge of applying not only domestic law but also the
European Convention of Human Rights (thereinafter: ‘ECHR’).1 This natu-
rally included the obligation to follow the European Court of Human Rights
(thereinafter: ECtHR or ‘Strasbourg Court’). At first, ECtHR judgments ap-
peared in the legal reasons of judicial decisions of the highest domestic courts
and often played only a ‘decorative role’ without any deep analysis. It could
hardly be called implementation of Strasbourg judgments. Recognition of
the separate transnational source of protection that has to be applied simul-
taneously with national law appeared later.
In this contribution, selected examples of methods and forms of imple-
menting judgments of the Strasbourg Court in the sphere of administrative
law are presented, from where my professional judicial background primari-
ly comes from. However, it does not mean that the same or similar problems
cannot be met in civil or criminal jurisdictions. Before presenting them, it
would be helpful to highlight the following four introductory points.
Firstly, in Polish law the ECHR ranks below the Constitution2 but it has
a special position vis-à-vis ordinary acts of parliament. The ECHR prevails

1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4

November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14) [ECHR].
2 This derives from the fact that ECHR is a ratified Treaty. Constitution of the Republic
of Poland (April 1997), Art. 91 (1) & (2): “1. After promulgation thereof in the Journal
of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement
shall constitute part of the domestic legal order and shall be applied directly, unless
its application depends on the enactment of a statute. 2. An international agreement
ratified upon prior consent granted by statute shall have precedence over statutes if
such an agreement cannot be reconciled with the provisions of such statutes.” This
translation can, inter alia, be found in Broniowski v. Poland, ECtHR Application No.
31443/96, Judgment (GC) of 22 June 2004, para. 77.

237
Jacek Chlebny

over acts of Parliament that are inconsistent with it. Additionally, a judge
has to grant direct effect to the provisions of the ECHR. It is emphasized
that the Constitution of Poland and the ECHR enshrine almost the same
individual rights (‘parallelism’) and courts often have a choice of using an
international norm or constitutional norm as the legal basis for their rul-
ings.3
Secondly, judgments of the ECtHR also involve other States. The question
may arise whether these judgments (in the so-called parallel cases) have the
same legal significance as judgments in which Poland was a party. Article
46 (1) ECHR on binding force and execution of judgments says that Con-
tracting Parties “undertake to abide by the final judgment of the Court in any
case to which they are parties. This provision provides for a binding force
of the Court judgment only between the parties” (binding force inter
partes).4 The Convention is silent about the binding force of the Strasbourg
judgment for the other States. Does it mean that these judgments are irrele-
vant? Certainly not since Article 32 (1) ECHR foresees jurisdiction of the
Court over the “interpretation and application of the Convention”.5 It is a
power of the Court exercised directly under the Convention and it creates
relevance of all judgments of the Strasbourg Court. The very fact that Stras-
bourg judgments are rendered by the Court established under the Convention
gives them special recognition in the national judiciary.
Thirdly, implementing Strasbourg judgments does not have a single
meaning. Implementation of a Strasbourg Court judgment against a particu-
lar State deriving from the operative part of the judgment may be called
implementation in a narrow sense (implementation sensu stricto). This im-
plementation concerns only judgments against Poland and the judiciary is
not directly involved. It requires implementing individual measures (for ex-
ample, payment of just satisfaction to the injured party – Article 41 ECHR)
or general measures, such as adopting new legislation, in particular in the

3 L. Garlicki et al., Poland, in David Sloss (ed.), The Role of Domestic Courts in Treaty
Enforcement: A Comparative Study (2009), 370, 404.
4 ECHR, Art. 46, supra note 1.
5 Ibid., Art. 32.

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 How a National Judge Implements Judgments of the Strasbourg Court

case of pilot judgments.6 In this contribution I give a broader sense to the

term implementation of Strasbourg judgments. It requires interpreting na-
tional law in the light of the European Convention on Human Rights. As a
result of confronting national legislation with Strasbourg judgments, a
change in the existing judicial interpretation of national law and even a
change in legislation may be needed. This implementation concerns both
types of judgments – against Poland and against any other State. The latter
type of judgments require additional findings. There must be similarities in
the facts and in the law that is in place in Poland and in other States while
relying on a judgment that was not delivered against Poland. Such an im-
plementation of a Strasbourg judgment could be called implementation sen-
su largo. It is not restricted to the State that was a party to the case, because
it concerns all State Parties to the Convention. It does not result only in
undertaking obligations that derive from the operative part of the judgment
but goes beyond it.
Fourthly, the Convention is called a ‘living instrument’ which makes its
application flexible and extensive. It also allows the granting of protection
in situations that perhaps were not in the minds of those who drafted the
Convention. In a country of no tradition of precedent, and Poland is such a
country, a judge has to justify a judgment by the provisions of law.7 The

6 For example, as a result of Kudla v. Poland [ECtHR Application No. 30210/96, Judg-
ment (GC) of 26 October 2000] the Act of 17 June 2004 on Complaints against the
Violation of a Party’s Right to a Court Hearing without Undue Delay in Pre-Trial
Procedures Conducted or Monitored by a Prosecutor and in a Court Procedures was
adopted [ustawa z dnia 17 czerwca 2004 r. o skardze na naruszenie prawa strony do
rozpoznania sprawy w postepowaniu przygotowawczym prowadzonym lub nad-
zorowanym przez prokuratora i postepowaniu sądowym bez nieuzasadnionej
zwłoki(Journal of Laws of 2004, No. 179, item 1843 as amended)]. See J.
Wołąsiewicz, Pilot Judgments from the Perspective of the Polish Government Agent
and a Proposal of Provisions related to the Existing Pilot Judgments, in J. Wołąsiewicz
(ed.), Pilot Judgment Procedure in the European Court of Human Rights: 3rd Informal
Seminar for Government Agents and Other Institutions (2009), 30, 34.
7 However, there are specific exceptions in the legislation on the procedure before the
courts. There is binding force of the interpretation of law only if it is made within the
special procedure by the enlarged panels of the court. For example, under Art. 269 of
the Law on Proceedings before Administrative Courts of 30th August 2002 [ustawa
z dnia 30 sierpnia 2002 r. Prawo o postępowaniu przed sądami administracyjnymi]
(Journal of Laws 2002, No. 153, item 1269) a position on interpretation of the law in
the resolution adopted by 7 judges, Chamber of the Court and a full panel of the
Supreme Administrative Court must be followed by any panel of the administrative
court and departing from such a resolution requires adoption of a new resolution.

239
Jacek Chlebny

legal grounds for the national judgment must be constituted by a specific

Article of the Convention and not a judgment of the Strasbourg Court. It is
simply not enough to invoke the judgment of the ECtHR to justify a verdict
of a Polish court. The question may arise whether the Strasbourg Court
should be followed even though a national judge is inclined to opt for a
different interpretation of the ECHR. This dilemma is heightened if the fact
that the Strasbourg Court is not bound by its previous precedents and may
depart from its own case law is taken into account. A national judge should
base his/her judgment rather upon the Convention in the first place and not
on a judgment of the Strasbourg Court. This leads us also to the problem of
the readiness of a national judge to follow a Strasbourg interpretation. What
seems to be absolutely vital in this respect is ensuring an adequate standard
of protection established by the Convention. Article 1 ECHR requires the
States to secure to everyone the Convention rights and freedoms. The stan-
dard of protection enshrined by the text of the ECHR is established by the
Strasbourg Court and it must not be lowered at the domestic level.

B. Binding Force of the ECtHR Judgments

Polish courts avoid stating explicitly that the ECtHR’s interpretation of the
provisions of the Convention is absolutely binding. Polish jurisprudence
rather stresses the need to consider the ECtHR’s judgments in applying the
ECHR and relevant domestic legislation.8 Relying on ECtHR judgments in
Polish practice serves as argument per rationem decidendi although a Stras-
burg judgment is not a precedent that constitutes the legal basis for a court’s
decision. A Strasbourg judgment is neither a source of law nor has a legally
binding force recognized in the Polish Constitution. The Polish Constitution
only says that the judgments of the Constitutional Tribunal have universally
binding application.9 Although a Polish judge is not legally bound by ECtHR
judgments while deciding a case, it is undisputed that the judgments are
always respected (erga omnes effect de facto). It is said in the doctrine that

8 K. Wójtowicz, Polskie sądy wobec wykładni prawa zawartej w orzecznictwie Eu-

ropejskiego Trybunału praw Człowieka i Europejskiego Trybunału Sprawiedliwości,
in J. Góral et al. (eds.), Ratio est anima legis, Księga jubileuszowa ku czci profesora
Janusza Trzcińskiego (2007), 455.
9 Polish Constitution, Art. 190 (1), supra note 2: Judgments of the Constitutional Tri-
bunal shall be of universally binding application and shall be final.

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 How a National Judge Implements Judgments of the Strasbourg Court

in Polish judicial practice the judgments of the ECtHR have achieved the
same recognition as the highest judicial authorities in legal argumenta-
tion.10 Judicial practice confirms that it can be said in even stronger terms.
A Polish first instance administrative court judge has never openly ques-
tioned the correctness of the interpretation of the Convention by the Stras-
bourg Court while the interpretation given by the Supreme Administrative
Court (SAC) has sometimes been questioned. As for the binding force of
Strasbourg judgments, it is also true that there is no difference in this respect
between the judgments against Poland and against any other Contracting
State. This means that both a judge and parties to the procedure may rely on
both types of judgments. The only difference concerns the possibility of
reopening a national procedure after a Strasbourg judgment, because this
possibility is restricted to judgments against Poland.

C. National Judgment Based on the ECHR and the Strasbourg Judgment

The illustration of an interpretation of the ECHR under an ECtHR judgment

is a protection against expulsion of an alien on the grounds of private life in
Poland. It is also an example of the direct applicability of the ECHR and
using a provision of the Convention as the exclusive legal basis for a national
judgment. It should be explained that neither the Polish Aliens Law of 13
June 200311 nor the Act of 13 June 2003 on Granting Protection to Aliens
within the Territory of the Republic of Poland12 provides protection against
expulsion based on private life. Only family life within the meaning of the
Article 8 ECHR allows protection against expulsion under Polish law. How-
ever, it is well-established case law of the Supreme Administrative Court,
that such protection is offered in the ECHR along with the constitutional
grounds.13 The SAC shared the ECHR’s views that in the circumstances of
the particular cases concerning settled migrants, the expulsion of such per-
sons can constitute an interference with their right to respect for private

10 L. Leszczyński, in R. Hauser et al. (eds.), Wykładnia w prawie administracyjnym.

System Prawa Administracyjnego, Vol. 4 (2012), 398-399.
11 Ustawa z dnia 13 czerwca 2003 r. o cudzoziemcach (Journal of Laws 2011, No. 264,
item 1573 as amended).
12 Ustawa z dnia 13 czerwca 2003 r. o udzielaniu cudzoziemcom ochrony na terytorium
Rzeczypospolitej Polskiej (Journal of Laws 2012, item 680).
13 Polish Supreme Administrative Court, Case Nos. OSK 1909/10, II OSK 1010/10 &
II OSK 1015/10, Judgments of 28 September 2011.

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Jacek Chlebny

life.14 Therefore, the situation of the applicants who have arrived in Poland
as small children (toddlers) and been living there for the next 15 years should
be evaluated in the context of the right to private life, protected regardless
of the right to family life under Article 8.

D. Interpreting National Law in Light of the ECtHR Jurisprudence

Prevailing ECHR over conflicting national legislation entails the obligatory

interpretation of national legislation in conformity with ECHR. This inter-
pretation, if exercised with due diligence, takes into account the Strasbourg
jurisprudence which sheds light on the proper understanding of the Con-
vention. It has been clearly stated in one of the judgments of the Polish
Constitutional Tribunal, that the necessity to take into account judgments of
the ECtHR by domestic authorities (including the Constitutional Tribunal)
requires using methods of interpretation which may smooth potential con-
flicts between standards stemming from Polish law and ECHR stan-
dards.15 Also legal writings underline that a judge while applying the ECHR
must refer to the interpretation given to the provisions of the Convention by
ECtHR judgments.16 Interpretation of national law in the light of Strasbourg
jurisprudence allows the avoidance of a conflict of norm between ECHR and
a national norm. Such an interpretation also makes changing legislation re-
dundant. For these reasons the interpretation of national law friendly to the
ECHR is the best way of implementation of Strasbourg jurisprudence into a
national legal system. There are many examples of the impact of Strasbourg
judgments on Polish case law that resulted in the interpretation of national
law in line with Strasbourg standards. It is interesting to note how values
reflected in ECtHR jurisprudence guided national courts while appraising
the consequences of the events that happened under the communist regime
and helped in delivering justice. The Strasbourg Court in the new political
environment played its role in providing a remedy for harm and injustice
and in also dismantling the heritage of the former communist totalitarian
system. The judgments of the Supreme Administrative Court invoked below

14 Maslov v. Austria, ECtHR Application No. 1638/03, Judgment of 23 June 2008, para.
63.
15 Polish Constitutional Tribunal, Case No. P 8/04, Judgment of 18 October 2004, point
2.6.
16 A. Wyrozumska, Umowy międzynarodowe: Teoria i praktyka (2006), 565.

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are examples of many that reflect a principle of using Strasbourg judgments

as interpretative tools.
In the judgment of the SAC of 25 April 201317 reference was made to the
case Skórkiewicz v. Poland.18 The SAC decided on the legality of the deci-
sion of the Veterans and Persecuted Persons Office that divested the appli-
cant of his veteran status, because after the Second World War he was the
head of a special unit of the local public prosecutor office that was respon-
sible for supervising investigations resulting in persecution against those
who acted for the sovereignty and independence of Poland. The Act on Vet-
erans and Persecuted Persons of 24 January 199119 took away the entitlement
to veteran status from certain categories of persons who had served in various
organisations and State organs whose purpose was to combat the political
opponents of the communist regime. As a result of issuing a decision under
the Act of 1991 a veteran loses certain special employment and social insu-
rance entitlements and special financial veterans’ benefits. The Strasbourg
Court in the case Skórkiewicz v. Poland explained that such legislation partly
intends to condemn the political role of those who supported establishing
the communist regime and repressing political opposition. Members of these
services, whose function was to combat the political or armed organisations
fighting until 1956 for the independence of Poland and for the restitution of
a democratic political system, did not merit the special privileges. A reduc-
tion in social insurance benefits did not affect property rights in a dispro-
portionate or arbitrary manner contrary to Article 1 of Protocol No. 1, since
such a person retained his rights to the ordinary retirement benefits due under
the general social insurance system.
Strasbourg jurisprudence was also helpful in answering another axiologi-
cal question rooted in the recent past. In the judgment of the SAC of 21

17 Polish Supreme Adminstrative Court, Case No. II OSK 2606/11. The judgment is
available at http://orzeczenia.nsa.gov.pl/doc/7EDBEBD06F (last visited 31 January
2014).
18 Skórkiewicz v. Poland, ECtHR Application No. 39860/98, Judgment of the 1 June
1999. The application was found manifestly ill-founded within the meaning of
Art. 35 (3) of the Convention.
19 Ustawa z dnia 24 stycznia 1991 r. o kombatantach oraz niektórych osobach będących
ofiarami represji wojennych i okresu powojennego (Journal of Laws of 2012, item
400).

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Jacek Chlebny

March 201320 the possibility of declaring the act of nationalization null and
void was excluded because the subsequent transfer of the nationalized prop-
erty to a third person created irreversible legal consequences (the right to a
plot of land was transferred to a third party after it had been nationalised).
The SAC said in its verdict that restitution to the original owners in inte-
grum would violate the rights of current owners who acquired the property
in good faith. In the legal reasons of the SAC judgment, several ECtHR
judgments were invoked, among others Velikovi and Others v. Bulgaria21
and Bečvář and Bečvářová v. Czech Republic.22 In the Bečvář case the
Strasbourg Court said that attenuation of past injustices must not create new
wrongs and explained that “[...] to that end, legislation should make it pos-
sible to take into account the particular circumstances of each case, so that
persons who acquired possessions in good faith are not made to bear the
burden of responsibility which is rightfully that of the State which previously
confiscated the disputed possessions”.23
Protection of property rights, although not rooted in the past but on the
contrary – very important nowadays for the real estate development – was
an issue in an judgment of the Supreme Administrative Court.24 The Court
relied on Bugajny and Others v. Poland. In the Bugajny case the Strasbourg
Court held that there had been a violation of Article 1 of Protocol No. 1 to
the Convention by Poland as a result of interference with the applicants’
property rights based on the provisions of the Land Administration Act of
21 August 1997.25 The SAC while interpreting Article 98 (3) of the Land
Administration Act 1997 relied on the Bugajny case and concluded that
awarding damages was justified because of the division of the land owned
by the applicants into smaller plots and the subsequent use of some of them

20 Polish Supreme Adminstrative Court, Case No. I OSK 1480/12. The judgment is
available at http://orzeczenia.nsa.gov.pl/doc/E8AB8F0224 (last visited 31 January
2014).
21 Velikovi and Others v. Bulgaria, ECtHR Application Nos. 43278/98 et al., Judgment
of 15 March 2007.
22 Bečvář and Bečvářová v. Czech Republic, ECtHR Application No. 58358/00, Judg-
ment of 14 December 2004.
23 Ibid., para. 69.
24 Polish Supreme Adminstrative Court, Case No. I OSK 34/12, Judgment of 6 June
2013.
25 Bugajny and Others v. Poland, ECtHR Application No. 22531/05, Judgment of 6
November 2007. For the statute see Ustawa z dnia 21 sierpnia 1997 r. o gospodarce
nieruchomościami (Journal of Laws 2010, No. 102, item 651 as amended).

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for road construction purposes which were to become part of the public road
network. In the Bugajny case the roads built on the estate served both the
general public and the housing estate which the applicants developed and
were open both to public and private transport of all kinds. The applicants
in the Bugajny case were obliged, by the authorities’ refusal to expropriate
the land and pay them compensation to build the roads, to bear the costs of
their construction and maintenance, and also to accept the public use of their
property.

E. Reopening of the National Procedure as a Result of the Judgment of the

ECtHR

Usually national procedure has been already completed when the Strasbourg
Court delivers its verdict because of the admissibility criteria of the com-
plaint to the ECtHR. The Strasbourg Court deals with the matter after all
domestic remedies have been exhausted (Article 35 (1) ECHR). Reopening
of the procedure before a national judge, under certain conditions, seems to
be the most obvious remedy. Under Article 272 (3) of the Law on the Pro-
ceedings before the Administrative Courts, it is allowable to require the re-
opening of a case where such need results from the decision of an interna-
tional body acting on the grounds of an international agreement ratified by
Poland. There is no doubt that such a body is the ECtHR. The time limit for
making such a request by the party is 3 months and it runs from the day of
service of the judgment of the ECtHR. The same possibility of reopening a
case as a result of an ECtHR judgment alone is secured in a criminal pro-
ceeding (Article 540 (3) of the Code of Criminal Proceedings of 6 June
1997.26 There is no such possibility for civil cases unless the individual cir-
cumstances of a case demonstrate the existence of the conditions of reopen-
ing of a case for other reasons.27 In civil matters there are other values at
stake which have to be protected, for example, legal certainty. Therefore
there is a question whether a judgment of the Strasbourg Court should result
in the reopening of a case.

26 Ustawa z dnia 6 czerwca 1997 r. – Kodeks postępowania karnego (Journal of Laws

1997, No. 89, item 555 as amended).
27 It means that ECtHR judgment alone does not constitute a ground for reopening the
case. See Polish Supreme Court of Poland, Case No. III CZP 16/10 (OSNC
2011/4/38), Resolution of 30 November 2010.

245
Jacek Chlebny

F. Failure in Implementation of the Strasbourg Case Law

Not always implementing a Strasbourg judgment is easy or even possible by

a national judge. Judges are not lawmakers and have no right to establish the
procedural norms applicable before them. The two examples of failure pre-
sented below in implementing Strasbourg case law derive from the obliga-
tion to rely on a national procedure. The first is about the provisional pro-
tection against expulsion and the second is the lack of possibility in expulsion
cases for a judge to admit fresh evidence in order to update fact findings
made by an administrative authority.

I. Provisional Protection against Expulsion

Provisional protection against expulsion is required to meet the requirements

of an effective remedy under Article 13 ECHR. The well-established case
law of the Strasbourg Court clearly requires an automatic suspensive effect
of any appeal against the deportation (expulsion) of an alien in relation to
the risk of violation of Article 3. This approach is confirmed in the case De
Souza Ribeiro v. France.28 An automatic suspensive effect means that no
individual decision is required because the law stipulates such a consequence
as a result of the appeal. In Polish law an appeal to the court made by an
unsuccessful asylum seeker or immigrant never entails an automatic sus-
pensive effect. It has to be decided individually by a judge on request which
is not always possible to fulfil promptly.29

28 De Souza Ribeiro v. France, ECtHR Application No. 22689/07, Judgment (GC) of

13 December 2012, para. 82.
29 The unsuccessful asylum seeker against whom an expulsion decision is taken by the
administrative authority is allowed to stay in the country only for a period of 30 days
after a decision has been issued. A judge may decide about a provisional protection
only if an appeal meets all formal requirements (for example, court’s fee). Although
it is a general practice of the court to grant a provisional protection to asylum seekers,
it may not occur in every case if making an application itself for an interim measure
does not entail suspensive effect until a decision on such a request is taken, see Article
48 (4) point 1 of Act of 13 June 2003 on Granting Protection to Aliens within the
Territory of the Republic of Poland.

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 How a National Judge Implements Judgments of the Strasbourg Court

II. Admitting New Evidence against Expulsion

Admitting new evidence in order to update fact findings of an administrative

authority is another issue that cannot be remedied without the decision of
the legislator and in some categories of cases is required. The Polish admin-
istrative court controls the lawfulness of an administrative act in the light of
factual circumstances and the laws that were in place at the moment the
administrative act was issued. Under Article 133 of the Law on Proceedings
before Administrative Courts of 2002 the Court shall issue a judgment on
the basis of files of the case. In the light of Article 106 (3) and (4) of this law
the only evidence that may be admitted by the court (both ex proprio motu
or at the request of the party) is a ‘document’ and the court is in the position
to consider commonly known facts, even if they are not invoked by the par-
ties. In the case Saadi v. Italy30, the ECtHR took the following view: with
regard to the material date, the existence of the risk must be assessed pri-
marily with reference to those facts which were known or ought to have been
known to the Contracting State at the time of expulsion. However, if the
applicant has not yet been extradited or deported when the Court examines
the case, the relevant time will be that of the proceedings before the Court.

G. Conclusions

All States Parties to the Convention should follow Strasbourg jurisprudence

because protection of the human rights must be offered at the same level.
The European Court of Human Rights is no doubt the most qualified by its
nature and international character to construe the Convention. A national
judge is obliged to protect the Convention rights in the first place and at the
proper level in accordance with the principle of subsidiarity. The principle
of subsidiarity requires a national judge to give protection in the first place,
before the Strasbourg Court. The standard of national protection must not
be lower.

30 Saadi v. Italy, ECtHR Application No. 37201/06, Judgment (GC) of 28 February

2008, para. 133. See also Chahal v. United Kingdom, ECtHR Application No.
22414/93, Judgment of 15 November 1996, paras. 85 & 86 and Venkadajalasarma
v. The Netherlands, ECtHR Application No. 58510/00, Judgment of 17 February
2004, para. 63.

247
Jacek Chlebny

The minimum threshold of protection of human rights is set by the Stras-

bourg Court. Invoking the Strasbourg judgment by a national judge is often
made by a reference to an interpretative precedent or to the well-established
judicial practice in the Strasbourg Court. In this respect, a Polish judge would
do exactly the same as the Strasbourg Court is doing while invoking its
previous case law.
The interpretative precedents reflected in a national judgment cover both
types of Strasbourg judgments: parallel and cases in which Poland was a
party to the procedure. At the same time, some leeway is allowed for a na-
tional judge while considering the local circumstances of an individual case
as a result of the margin of appreciation.
The need for an interpretation of domestic legislation consistent with the
ECHR has been articulated constantly on different occasions by the Polish
supreme national judicial authorities. In the sphere of administrative law,
judgments of the ECtHR have made a particular great impact in some areas.
For example, looking at the judgments of the Strasbourg Court is indispen-
sable in immigration and asylum cases.31 Acknowledgement of the fact that
there are some categories of cases that are more than others infiltrated by the
ECHR leads to the observation that an interest in Strasbourg jurisprudence
varies depending on the area of law a judge is exposed to. An administrative
court judge has to exercise constant vigilance for the novelties from the
Strasbourg Court if he is deciding human rights cases. On the other hand,
perhaps relatively less attention is needed from a judge whose judicial re-
sponsibility is limited to tax matters.
It goes without saying that ECtHR judgments should be taken into con-
sideration by a judge also ex officio not only at the request of the parties to
the procedure. However, the judgments of the Strasbourg Court may be im-
plemented on the condition that they are known among practitioners, mainly
by judges and lawyers. This may be a challenge. They are only delivered in
English or in French. An official court’s translation is not provided in the
languages of the other State Parties to the Convention. Only a limited number
of judgments, not even all the Grand Chamber judgments, are available in

31 It is worth mentioning that even national legislation concerning refugees refer di-
rectly to the ECHR while defining the concept of persecution. Article 13 sec. 3 point
1 of Act of 13 June 2003 on granting protection to aliens within the territory of the
Republic of Poland defines persecution as “violation of human rights, particularly
the rights, whose abolition if inadmissible in compliance with Article 15 subpar. 2
of the Convention on Human Rights and Fundamental Freedoms”.

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 How a National Judge Implements Judgments of the Strasbourg Court

Polish. This may create an obstacle for a judge to rely on the judgments of
the ECtHR. This situation is remedied to some degree only by the fact that
a limited number of judgments or their summaries are available on websites
established by NGOs or government agencies or being presented in legal
periodicals. The deficiency in the access to Strasbourg jurisprudence in the
national language of the judge is not a problem that may be overlooked.
Other practical challenges should not be ignored as well. A national judge
is deluged by case law of the highest judicial authorities from his own coun-
try, judgments delivered by the Court of Justice of the European Union and
additionally by legal writings. All of them have to be studied on a daily
basis.

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International Law in the Recent Jurisprudence of the Hungarian
Constitutional Court: Opening of a New Tendency?

Péter Kovács

Since 2012 Hungary has been living under a new constitution called Fun-
damental Law replacing the Constitution in force between 1949 to 2012,
profoundly modified in 1989 in order to secure a rule of law state. The rea-
sons and the consequences of the recent constitutional changes were deeply
analyzed in the home and foreign political press as well as on pages of na-
tional and international legal papers.1 There is already a commentary2 thereto
and international organs, namely the Venice Commission of the Council of
Europe, have already had to deliver several reports on the constitualiza-
tion3 and the related acts.4

1 See, e.g., M. Mazza, The Hungarian Fundamental Law, the New Cardinal Laws and
European Concerns, 54 Acta Juridica Hungarica (2013) 2, 140; K. Kovács & G. A.
Tóth, Hungary’s Constitutional Transformation, 7 European Constitutional Law Re-
view (2011) 2, 183 and G. Kovács, Ungarns neue Verfassung – In Kraft 1. Januar
2012, Osteuropa-Recht (2011) 3, 253; G. F. Ferrari (ed.), La Nuova Legge Fonda-
mentale Ungherese (2012).
2 L. Csink et al. (eds.), The Basic Law of Hungary: A First Commentary (2012).
3 European Commission for Democracy Through Law [Venice Commission], Opinion
on Three Legal Questions Arising in the Process of Drafting the New Constitution of
Hungary, Opinion No. 614/2011, Doc. CDL-AD(2011)001, 28 March 2011; Venice
Commission, Opinion on the New Constitution of Hungary, Opinion No. 621/2011,
Doc. CDL-AD(2011)016, 20 June 2011; Venice Commission, Opinion on the Fourth
Amendment to the Fundamental Law of Hungary, Opinion No. 720/2013, Doc. CDL-
AD(2013)012, 17 June 2013.
4 Venice Commission, Opinion on Act CLXII of 2011 on the Legal Status and Remu-
neration of Judges and Act CLXI of 2011 on the Organisation and Administration of
Courts of Hungary, Opinion No. 663/2012, Doc. CDL-AD(2012)001, 19 March 2012;
Venice Commission, Opinion on Act CCVI of 2011 on the Right to Freedom of Con-
science and Religion and the Legal Status of Churches, Denominations and

251
Péter Kovács

Given the fact that the basic facts are presumably well known for the
reader, the author thinks that there is no need to give a new general analysis
of the constitutional situation. Thus, this contribution will be limited to the
presentation of the jurisprudence elaborated by the Constitutional Court vis-
à-vis public international and European law in the new context. The relevant
jurisprudence under the Constitution will be summed up with references to
the author’s other publications in the matter, in French.5

A. The Status of International and European Law in Hungary

Just to cover briefly the situation ante, let us point out that Article 7 (1) of
the former Constitution was shaped according to the Austro-German tradi-
tions of dualism, even if some uncertainties could be felt in the formulation.

Religious Communities of Hungary, Opinion No. 664/2012, Doc. CDL-

AD(2012)004, 19 March 2012; Venice Commission, Opinion on Act CLXIII of 2011
on the Prosecution Service and Act CLXIV of 2011 on the Status of the Prosecutor
General, Prosecutors and Other Prosecution Employees and the Prosecution Career
of Hungary, Opinion No. 668/2012, Doc. CDL-AD(2012)008, 19 June 2012; Venice
Commission, Opinion on Act CLI of 2011 on the Constitutional Court of Hungary,
Opinion No. 665/2012, Doc. CDL-AD(2012)009, 19 June 2012; Venice Commis-
sion, Opinion on the Act on the Rights of Nationalities of Hungary, Opinion No.
671/2012, Doc. CDL-AD(2012)011, 19 June 2012; Venice Commission & OSCE
Office for Democratic Institutions and Human Rights, Joint Opinion on the Act on
the Elections of Members of Parliament of Hungary, Opinion No. 662/2012, Doc.
CDL-AD(2012)012, 18 June 2012; Venice Commission, Opinion on the Cardinal
Acts on the Judiciary That Were Amended Following the Adoption of Opinion CDL-
AD(2012)001 on Hungary, Opinion No. 683/2012, Doc. CDL-AD(2012)020, 15 Oc-
tober 2012; Venice Commission, Opinion on Act CXII of 2011 on Informational Self-
Determination and Freedom of Information of Hungary, Opinion No. 672/2012, Doc.
CDL-AD(2012)023, 18 October 2012.
5 P. Kovács, Introduction à la jurisprudence de la Cour Constitutionelle de la
République de Hongrie: Approche thématique (2011) [Kovács, La Jurisprudence de
la Cour Constitutionelle de la République de Hongrie]; P. Kovács, La collision d’une
norme constitutionnelle et du droit international dans la pratique de la Cour Consti-
tutionnelle hongroise, 50 Jahrbuch für Ostrecht (2009) 2, 329; P. Kovács: Vol (com-
munautaire) au-dessus d’un nid de coucou (ou le calcul du temps de travail des
médecins et la jurisprudence de la Cour Constitutionnelle de Hongrie), 71 Revue
française de droit constitutionnel (2007) 3, 667; P. Kovács, A la recherche du bon
chemin… ou l’affaire du mandat d’arrêt européen devant la Cour constitutionnelle,
in J.-D. Mouton (ed.), La France, l’Europe et le Monde: Mélanges en l’honneur de
Jean Charpentier (2008), 349.

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 International Law in the Recent Jurisprudence of the Hungarian Constitutional Court

Article 7 of the ‘old’ Constitution6

(1) The legal system of the Republic of Hungary accepts the generally recog-
nized principles of international law, and shall harmonize the country’s domes-
tic law with the obligations assumed under international law.
In Article Q of the Fundamental Law however, a rather clear ‘receptionist’
version of dualism can be read.
Article Q of the Fundamental Law7
(1) In order to establish and maintain peace and security and to achieve the
sustainable development of humanity, Hungary shall strive to cooperate with
all the peoples and countries of the world.
(2) In order to comply with its obligations under international law, Hungary
shall ensure that Hungarian law be in conformity with international law.
(3) Hungary shall accept the generally recognised rules of international law.
Other sources of international law shall become part of the Hungarian legal
system by publication in rules of law.8
As far as the European integration clause is concerned, its first version ap-
peared only at the beginning of the 2000s in the preparatory phase of the
accession to the European Union as Article 2/A of the Constitution. The
question of the transfer of sovereignty was duly settled, however, the status
of EU law (and especially the so-called secondary legislation) was lacking.
This was a point constantly critized in the doctrine emphasizing that an
eventual reference to the disposition on international law could not be sat-
isfactory because of the sui generis legal nature of EU law. Moreover, Article
7 (1) could concern treaties and international custom and general principles
of law but the status of the norms adopted by international organs seemed
to be unclear.
Article 2/A of the ‘old’ Constitution9
(1) The Republic of Hungary may exercise certain competences deriving from
the Constitution in conjunction with the other Member States in order of her
participation in the European Union as a Member State, based upon international
treaty, to the extent that is necessary to exercise rights and perform obligations,

6 The Constitution of the Republic of Hungary, 20 August 1949, Art. 7 available at

http://sorminiserv.unibe.ch:8080/tools/aIclDnLd.exe?Command=Download&File=
hu00 (last visited 31 January 2014), 2.
7 An official translation of the Fundamental Law can, inter alia, be found in G. A. Tóth
(ed.), Constitution for a Disunited Nation: On Hungary’s 2011 Fudamental Law
(2012), 379. Art. Q is referred to on page 386.
8 It has to be noted that the two Hungarian texts are much closer to each other than the
two official English translations.
9 Supra note 6, 1.

253
Péter Kovács

under the European Communities and European Union [...] foundation treaties;
the exercise of these competences may be realized independently, through the
institutions of the European Union.
(2) A majority of two-thirds of the votes of the Members of Parliament shall be
required for the ratification and adoption of the international treaty specified in
subsection (1).
Article E of the Fundamental Law is very similar in its wording as far as the
transfer of sovereignty is concerned but the criticized lack of reference to
the mandatory character of EU regulations and other similar norms seems
to be over and secondary norms of EU law are already also taken into con-
sideration.
Article E of the Fundamental Law10
(1) In order to achieve the highest possible measure of freedom, well-being and
security for the peoples of Europe Hungary shall contribute to the achievement
of European unity.
(2) In order to participate in the European Union as a Member State, and on the
basis of an international treaty, Hungary may, to the extent necessary to exercise
the rights and fulfil the obligations set out in the founding treaties, exercise some
of its competences deriving from the Fundamental Law jointly with other Mem-
ber States, through the institutions of the European Union.
(3) The law of the European Union may stipulate generally binding rules of
conduct subject to the conditions set out in paragraph (2).
(4) The authorisation for expressing consent to be bound by an international
treaty referred to in paragraph (2) shall require the votes of two-thirds of all
Members of Parliament.

B. The Constitutional Court’s Early Approach to International Law

During the first decade of its existence, i.e. under the old Constitution, the
Constitutional Court was inclined to take into consideration the jurispru-
dence of the European Court of Human Rights (thereinafter: ‘ECtHR’) and
several of its judgments were cited in the constitutional jurisprudence in
order to show to the public that the Court is aware of dicta of the ECtHR.
Nevertheless, one could feel that the Constitutional Court had the ambition
to secure a higher level of protection of fundamental rights by considering
the European Convention of Human Rights (thereinafter: ‘the Convention’)
and the ECtHR as a minimum standard.

10 See Tóth, supra note 7, 383.

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 International Law in the Recent Jurisprudence of the Hungarian Constitutional Court

The jurisprudence of the Court of Justice of the European Union (there-

inafter: ‘ECJ’) was also followed by the Constitutional Court, which, how-
ever, soon came to the conclusion that contrary to the conflict of national
law with traditional international law, the examination of the compatibilty
of a national legal norm with EU law does not fall under its competence: in
this way, the Constitutional Court wanted to avoid being submerged by petty
cases on the one hand.11 On the other hand, jurisprudential sovereignty could
be more easily preserved because the question of referring to the ECJ of
Luxemburg for a preliminary ruling emerges much more rarely in such a
hypothesis. Nevertheless, the Constitutional Court could not always avoid
dealing with important EU questions like, e.g. the ones linked to reform-
treaties of the European Union.12

C. Judicial Review under the Fundamental Law

The transition from the Constitution to the Fundamental Law seems to em-
phasize the importance of the scrupulous observance of the ECtHR jurispru-
dence. The Constitutional Court benefited from the new situation by ex-
plaining the necessity to guarantee the protection of fundamental rights in
the constitutional jurisprudence at least at the same level as in the European
jurisprudence. However, this time, the optic was slightly different: the Con-
stitutional Court seemed to be afraid of being surpassed by a more perform-
ing ECtHR and it took into account the sudden changes of the constitutional
framework.
An important dictum was pronounced in a case which was linked to a
constitutional amendment aiming to exclude the constitutional control of a
new taxation policy with retroactive effect in matters of exaggerated bonuses
of people leaving the public function.13 A 98 % punitive tax was thus intro-

11 Let us not forget that at that time the action of the Constitutional Court could be
triggered quasi by anybody even without any direct interest due to the institution of
actio popularis and the examination of an alleged conflict with international law
could be claimed by any member of the parliament.
12 Kovács, La Jurisprudence de la Cour Constitutionelle de la République de Hongrie,
supra note 5, 118-120.
13 In fact, the public transport system of Budapest was known in the media to grant
extra high final payments for white collars, moreover on behalf of a public transport
company quasi in bankruptcy and always loudly claiming financial help from the
capital city (its legal owner) and the government.

255
Péter Kovács

duced by the Parliament to be applied above a relatively low threshold.14 An

application submitted by university professors sued not only the taxation law
but also the constitutional amendment.
Even if the Constitutional Court kept to its traditional position, i.e. not to
check constitutional amendments with the exception of a procedural irreg-
ularity of their adoption,15 it expressed a warning. This happened at the time
when the Fundamental Law had already been adopted by the Parliament but
was not yet in force. The thesis is the following:
“There are some fundamental rights the essential content of which is formulated
in the same manner in the Constitution as in an international treaty (e.g. the
International Covenant on Civil and Political Rights and the European Con-
vention on Human Rights). In such cases, the level of the protection of funda-
mental rights guaranteed by the Constitutional Court can not be in any case
lower than the level of the international protection, namely that of the European
Court of Human Rights. Consequent to the principle of pacta sunt servanda
[Article 7 (1) of the Constitution, Article Q (2-3) of the Fundamental Law] the
Constitutional Court is bound to follow the Strasbourg jurisprudence and the
level of the protection of fundamental rights which is thereby defined, even if
such a turn could not be deduced necessarily from its own ‘precedents-deci-
sions’.”16
On 30 December 2011, i.e. just before the Fundamental Law entered into
force, the Parliament adopted a special norm called ‘Transitional Provi-
sions’. It was composed of two types of norms; (i.) the transitory provisions
(e.g. changes of offical names, the continuity or on the contrary, the expi-
ration of the mandate of number one leaders of important State organs subject
to transformation, the management of current issues, etc.) and (ii.) rules of
more or less longterm nature, some of which could even be considered as a
direct reaction to some – old or more recent – decisions of the Constitutional
Court, while others contained rules which seemed to have been ‘forgotten’
during the drafting and the discussion of the Fundamental Law.
This complex of norms was attacked by the ombudsman before the Con-
stitutional Court, assuming that this duality contained inherent contradic-

14 2 million Hungarian forints i.e. ca. the price of a second hand car of medium class
in Hungary.
15 Hungarian Constitutional Court, Case No. 61/2011, Decision of 12 July 2011, ABH
2011, 696 (ABH means the common abbreviation of Alkotmánybíróság Határozatai
[Decisions of the Constitutional Court], published as a yearbook by the Constitu-
tional Court.
16 Ibid., 321 (translation by the author).

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 International Law in the Recent Jurisprudence of the Hungarian Constitutional Court

tions. The ombudsman stated that the ‘forgotten’ norms should have been
inserted – if they were really necessary – into the body of the Fundamental
Law by way of an amendment, instead of putting in such a norm the con-
stitutional nature of which is subject to divergences. He asserted moreover
that some of the new norms of the ‘Transitional Provisions’ were in contra-
diction to dispositions of the Fundamental Law. He also alleged that some
of the norms of the ‘Transitional Provisions’ ran against international legal
commitments.
The Constitutional Court followed the applicant’s arguments for the ne-
cessity of the constitutional unity of the Fundamental Law. Without going
into the in merito examination of conflicts with international law, it annulled
all the rules which were not of a genuine and short term transitory charac-
ter.17 They were declared void ab initio. However, the Constitutional Court
pointed out that the Parliament could reconsider the introduction of certain
annulled dispositions into the body of the Fundamental Law by way of a
proper constitutional amendment.
The Constitutional Court warned the Parliament as a constituent body,
that the Members of Parliament are not totally free in the drafting of eventual
constitutional amendments:
“Constitutional legality has not only procedural, formal, public law validity re-
quirements but also material ones: the constitutional requirements of a demo-
cratic rule of law state, which are at the same time, constitutional values, prin-
ciples and fundamental democratic freedoms incorporated in international con-
ventions and recognized and accepted by democratic rule of law communities
as well as the partly inherent so-called ius cogens. In a given case, the Consti-
tutional Court may also check the unimpeded promotion and constitutional in-
corporation of the material requirements, guarantees and values of a democratic
rule of law state.”18
“[...] The constitutional rule of law state is a complex of constant values, prin-
ciples and guarantees. In a constitutional rule of law state, hitherto adopted
values, principles, gurantees and requirements cannot be inferior to the prior
situation and their promotion must be undertaken with the same rigour.”19
Even before the decision on the ‘Transitional Provisions’, the Fundamental
Law had been amended three times and in February 2013, the 4th amendment
was adopted by the Parliament. This 4th amendment contained, inter alia,

17 Hungarian Constitutional Court, Case No. 45/2012, Decision of 28 December 2012,

ABH 2013, 2, 31-32, paras. 136-138 & 141 (in particular).
18 Ibid., 29, para. 118 (translation by the author).
19 Ibid., 29, para. 119 (translation by the author).

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Péter Kovács

nearly all the annulled rules of the ‘Transitional Provisions’, although some
of them were slightly modified. Moreover, some new rules were added, e.g.
the one which stated that constitutional revision does not fall under the com-
petence of the Constitutional Court except for breach of procedural rules
stipulated in the Fundamental Law.20
The Head of State promulgated the 4th amendment which entered into
force. The ombudsman sued the 4th amendment, alleging some procedural
irregularities and also the appearance of inherent contradictions. The claim
on procedural irregularities was considered unfounded by the Constitutional
Court which declined its competence concerning the appreciation of the
“appearance of inherent contradictions” because it would mean a material
constitutional control which is already out of its competence (vis-à-vis the
constitutional amendments) under the new circumstances.21
It has to be emphasized, however, that this lack of competence does not
exclude the exercise of competence vis-à-vis ordinary laws, even if they
repeat the newly inserted wording of the Fundamental Law. Once again,
international legal and EU commitments could be considered as important
focal points.
Even if the application was partly refused, partly rejected, the Constitu-
tional Court emphasized
“that in legal dispositions which will be adopted in the future, one must not
ignore the barriers derived from the interrelated system of fundamental rights,
as well as from Articles E and Q of the Fundamental Law binding the legislative
and constituent power ensuing from the obligations of Hungary as a member of
the European Union and her duty to assure the coherence between international
law and Hungarian law in order to satisfy Hungary’s commitments under in-
ternational law as well as a consequence of the adoption of generally recognized
principles of international law.”22
“As in all similar cases, upon a motivated application and acting in its compe-
tences, the Constitutional Court will decide on the constitutionality of special
legal rules to be adopted upon a mandate enshrined in the Fundamental Law. In

20 Fundamental Law, Art. 24 (5): “The Constitutional Court may only review the Fun-
damental Law and the amendment thereof for conformity with the procedural re-
quirements laid down in the Fundamental Law with respect to its adoption and pro-
mulgation”. See Fourth Amendment to the Fundamental Law of Hungary, available
at http://www.kormany.hu/download/3/90/d0000/20130312 Fourth Amendment to
the Fundamental Law.pdf (last visited 31 January 2014), 6.
21 Hungarian Constitutional Court, Case No. 12/2013, Decision of 21 May 2013, ABH
2013, 542.
22 Ibid., 547, para. 46 (translation by the author).

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 International Law in the Recent Jurisprudence of the Hungarian Constitutional Court

such a procedure, it will pursue to the interpretation of the pertinent (i.e. old,
modified or new) dispositions of the Fundamental Law.”23
“During the examination of the given constitutional question – acting in con-
formity with the pertinent rules – [the Court] will take into consideration Hun-
gary’s commitments under intermational law and related to her EU membership
as well as the generally recognized principles of international law and the fun-
damental principles and values thereby present. With special attention paid to
their values built in the Fundamental Law, all these rules form a comprehensive
system (a value order) which can not be ignored during either the constitution-
alization, or the legislation or the exercise of the constitutional review by the
Constitutional Court.”24

D. Implementing ECtHR Judgments

Concerning the proper execution of the judgments of the ECtHR, one can
say that Hungary belongs to the countries which were statistically not too
often condemned. This is partly due to a policy which has been followed
consequently since Hungary ratified the Convention, i.e. whenever the Hun-
garian Ministry of Justice felt that the outcome of the procedure would in-
evitably be a condamnation, the institution of the friendly settlement was
offered to the applicant with all the material consequences. This explains
why the number of condemnations is below the average and they concern
mostly Article 6 (1) and the length of the procedure. The payment of the
lump sum adjudged by the ECtHR was carried out in due time and several
internal legal reforms are due to ECtHR judgments pronounced not only in
Hungarian cases but also in cases of other countries.25
Judgments on politically sensitive issues were rarely pronounced. It still
happened, however, in the Korbély v. Hungary case26 where the applicant,
at that time a captain and the commander of a military unit was found re-
sponsible for shooting not only at insurgents but also at civil demonstrators
in 1956 in the town of Tata.27 The legal question was whether the shooting
resulting in several deaths was covered by prescription or whether it was still

23 Ibid., 547, para. 47 (translation by the author).

24 Ibid., 547, para. 48 (translation by the author).
25 This is especially true for the ECtHR jurisprudence related to penal procedure.
26 Korbély v. Hungary, ECtHR Application No. 9174/02, Judgment of 19 September
2008.
27 The 1956 uprising against the communist rule was broken by the invasion of the
Soviet army restoring the communist power.

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Péter Kovács

punishable as far as it can be considered as a war crime or a crime against

humanity. The problem of retroactive legislation and the exception of im-
prescriptible crimes was dealt with several times in the nineties by the
Supreme Court and the Constitutional Court.28
The ECtHR – following the argumentation of the applicant – came to the
conclusion that contrary to the judgment pronounced in Hungary, the shoot-
ing of Kaszás, the leader of the demonstrators could not be considered as
crime against humanity as far as this legal notion had to be understood in
1956. This act, understood as a ‘simple’ murder occuring in a contradictory
context, was already covered by prescription.29
After having taken note of the judgment, the Supreme Court ordered the
reopening of the procedure: Korbely was acquitted of Kaszás’ death on the
basis of prescription but the Supreme Court was reminded that the shooting
also killed or injured other people, mostly civilians which meant that the
crime against humanity was committed vis-à-vis these victims. The Supreme
Court concluded that the ECtHR judgment did not concern this part of the
judgment. With this reasoning, the Supreme Court confirmed the previously
pronounced five year imprisonment sentence but it declared it as already
served.30
Korbély did not contest the new judgment which was in his case much
more symbolical than as such which could have a real effect. As the time
passed in custody had to be subtracted from the five years of imprisonment
prounonced in the sentence and by virtue of an intervening amnesty decree,

28 See about the issue P. Kovács, Hungary, 1 Yearbook of International Humanitarian

Law, A Guide to State Practice Concerning International Humanitarian Law (1998),
451; P. Kovács, Hungary, 2 Yearbook of International Humanitarian Law, A Guide
to State Practice Concerning International Humanitarian Law (1999), 375; P.
Kovács, Hungary, 3 Yearbook of International Humanitarian Law, A Guide to State
Practice Concerning International Humanitarian Law (2000), 518. See also T. Hoff-
mann, Individual Criminal Responsibility for Crimes Committed in Non-Interna-
tional Armed Conflicts – The Hungarian Jurisprudence on the 1956 Volley Cases,
in S. Manacorda & A. Nieto (eds.), Criminal Law Between War and Peace: Justice
and Cooperation in Criminal Matters in International Military Interventions (2009),
735.
29 Korbély v. Hungary, ECtHR Judgment, supra note 26, paras. 90-91 & 94-95.
30 Hungarian Supreme Court, Case No. Bfv.X.1.055/2008/5, Judgment of 9 February
2009.

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 International Law in the Recent Jurisprudence of the Hungarian Constitutional Court

after two years passed, Korbély was conditionally released already after two
years, in 2005, i.e. prior to the Strasbourg judgment of 2008.31

E. New Approaches to ECtHR Jurisprudence

Another step towards a new form of relationship between the ECtHR ju-
risprudence and the Hungarian constitutional jurisprudence can be illustrat-
ed with the case of the prohibition of totalitarian symbols by penal law.32
This article,33 added to the Penal Code in 1993, was examined in 2000 by
the Constitutional Court which found it compatible with the Constitution
and the ECHR.34 The ECtHR came, however, to the conclusion, first in
Vajnai v. Hungary35 and then in Fratanolo v. Hungary,36 that the given dis-
position of the Hungarian Penal Code is a violation of Article 10 of the
ECHR. It was also emphasized that the Strasbourg ‘precedents’ chosen by
the Hungarian government when defending the position, were mostly irrel-
evant.
When Mr Vajnai (leader of a very small Communist Party without rep-
resentation in today’s Hungarian Parliament) seized the Constitutional Court
with a constitutional complaint, the Court referred (not only but inter alia)

31 It has to be noted that even in Strasbourg, the applicant claimed only the reimburs-
ment of his costs and expenses concerning procedure but he did not submit a claim
for damages on the basis of the imprisonment.
32 Hungarian Constitutional Court, Case No. 4/2013, Decision of 19 February 2013,
ABH 2013, 188.
33 Hungarian Penal Law, Art. 269/B: “(1) A person who (a) disseminates, (b) uses in
public or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle
and hammer or a red star, or a symbol depicting any of them, commits a misde-
meanour – unless a more serious crime is committed – and shall be sentenced to a
criminal fine (pénzbüntetés). (2) The conduct proscribed under paragraph (1) is not
punishable, if it is done for the purposes of education, science, art or in order to
provide information about history or contemporary events. (3) Paragraphs 1 and 2
do not apply to the insignia of States which are in force.” This translation can be
found in Vajnai v. Hungary, ECtHR Application No. 33629/06, Judgment of 8 July
2008, para. 15.
34 Hungarian Constitutional Court, Case No. 14/2000, Decision of 9 May 2000, ABH
2000, 83.
35 Vajnai v. Hungary, ECtHR Judgment, supra note 33.
36 Fratanolo v. Hungary, ECtHR Application No. 29459/10, Judgment of 3 November
2011.

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Péter Kovács

to the Strasbourg jurisprudence in order to explain why its opinion was

modified.
“The judgment of the European Court of Human Rights is declarative i.e. it does
not mean directly the transformation of legal issues but its practice could give
help to the interpretation of constitutional rights – secured in the Fundamental
Law and international conventions – and to the definition of their content and
their field of application. The content of the rights secured in the European
Convention of Human Rights is embodied in judgments delivered in individual
cases, thus promoting the common perception of the interpretation of human
rights. The observance of the Convention and the practice of the ECtHR cannot
lead to the limitation of the protection of fundamental rights secured by the
Fundamental Law and to the definition of a lower level of protection. The prac-
tice of Strasbourg and the Convention define the minimum level of the protec-
tion of fundamental rights that all contracting parties have to assure but the
national law may establish a different and namely a higher order of requirements
in order to promote human rights.”37
“All this taken into consideration, the Constitutional Court stated that the judg-
ment of the ECtHR in the case of Vajnai v. Hungary contains such considera-
tions related to Article 269/B of the Penal Code which should be considered as
a legally important new circumstance and point of view making it necessary to
proceed to a new constitutional examination.”38
It is worth noting that the ECtHR emphasized the double meaning of the red
star as a symbol in today’s Europe when freedom of expression is exer-
cised.39 It followed the same approach in two parallel cases: in the first case
(Fratanolo v. Hungary) the facts were quasi identical to the Vajnai case, but
in the second, a special symbol was used in a right wing context.40
The Constitutional Court annulled pro futuro the given article of the penal
code and suggested its reformulation in order to take into account the inten-
tion as well as the effect produced, namely the violation of human dignity

37 Hungarian Constitutional Court, Case No. 4/2013, supra note 32, 191, para. 19.
38 Ibid., 191, para. 20.
39 Vajnai v. Hungary, ECtHR Judgment, supra note 33, 14-15, paras. 51-54.
40 Fáber v. Hungary, ECtHR Application No. 40721/08, Judgment of 24 July 2012.

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 International Law in the Recent Jurisprudence of the Hungarian Constitutional Court

of the victims and their descendants. The ‘homework’ was done in due time
by the legislator.41
The enhanced attention to the ECtHR jurisprudence was made manifest
in two other important cases.
In the constitutional control of the Act on Religions42 the Constitutional
Court paid attention to the tendency in the jurisprudence of the Court of
Strasbourg which in cases related to the recognition of churches and religious
associations interpreted the freedom of religion together with other rights
and freedoms, especially the freedom of association and the principle of
access to justice, i.e. the right to go to court in case of a legal dispute, due
to the principle of strong correlation between the questions raised in the given
cases.43
“All this taken into account, in the present case, the Constitutional Court ex-
amined the compatibility of the challenged legal disposition with the Funda-
mental Law according to the respective articles of the Fundamental Law and
the related jurisprudence of the Constitutional Court with attention paid to Hun-
gary’s international legal commitments and to the judgments of the Court of
Strasbourg as they are pertinent from the point of view of the case under delib-
eration.”44
In the case of the new electoral law45 the Constitutional Court profited from
the reports of the Venice Commission, and in particular the Code of Good
Practice in Electoral Matters.46

41 New Penal Code, Art. 335: “A person who (a) disseminates, (b) uses in public, or
(c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle and
hammer or a red star, or a symbol depicting any of them, in a manner susceptible to
disturb public tranquility and in particular violating human dignity or the rights to
reverence of the victims of the totalitarian regimes, commits a delict – unless a more
serious crime is committed – and shall be sentenced to confinement. (“elzárás”)”
(translation by the author; emphasis added).
42 Hungarian Constitutional Court, Case No. 6/2013, Decision of 26 February 2013,
ABH 2013, 334.
43 Ibid., 353, para. 116 (translation by the author).
44 Ibid., 353, para. 120 (translation by the author).
45 Hungarian Constitutional Court, Case No. 1/2013, Decision of 4 January 2013, ABH
2013, 50.
46 Venice Commission, Code of Good Practice in Electoral Matters: Guidelines, Opin-
ion No. 190/2002, Doc. CDL-AD (2002)23rev, 23 May 2003.

263
Péter Kovács

The electoral jurisprudence of the ECtHR was also analyzed.47 See, e.g.
the following paragraphs:
“All the above can be summarized in general terms as follows: according to
Article 3 of the first additional protocol of the European Convention on Human
Rights, imposing active registration as the condition for exercising the right to
vote would restrict the right to free elections. Such a restriction can only be
justified by a legitimate aim. Only a reason of due importance may legitimate
such a restriction. When there is a well established and well-functioning elec-
toral register – with special attention to the fact that universal suffrage is no
longer a privilege but a right to be ensured to the largest possible number of
voters – a legitimate reason of due importance for the introduction of the active
registration cannot be established.”48
“All this was duly taken into account by the Constitutional Court when it had
to decide whether the legal institution of the demand for registration – as it is
regulated in the Act – is a limitation imposed on the right to suffrage which is
compatible with the Fundamental Law.”49
In the case of the new Act on Nationalities,50 the compatibility with the
Fundamental Law as well as with the Framework Convention for the Pro-
tection of National Minorities in Europe and the European Charter of Re-
gional or Minority Languages was at stake. When interpreting the content
of the challenged articles of the Act as well as the relevant articles of the
above mentioned conventions, the Constitutional Court took into consider-
ation the so called monitoring documents issued upon the national reports
submitted by the Hungarian government. The Constitutional Court pointed
out that “the interpretation given by the Constitutional Court on the content

47 The Constitutional Court referred to the following cases of the ECtHR: Mathieu-
Mohin and Clerfayt v. Belgium, ECtHR Application No. 9267/81, Judgment of 2
March 1987; Gitonas and Others v. Greece, ECtHR Application Nos. 18747/91 et
al., Judgment of 1 July 1997; Hirst v. United Kingdom (No. 2), ECtHR Application
No. 74025/01, Judgment of 6 October 2005; Yumak and Sadak v. Turkey, ECtHR
Application No. 10226/03, Judgment of 8 July 2008; Georgian Labour Party v.
Georgia, ECtHR Application No. 9103/04, Judgment of 8 July 2008; Orujov v.
Azerbaijan, ECtHR Application No. 4508/06, Judgment of 26 July 26 2011;
Sitaropoulos and Giakoumopoulos v. Greece, ECtHR Application No. 42202/07,
Judgment of 15 March 2012.
48 Hungarian Constitutional Court, Case No. 1/2013, supra note 45, 57, para. 46 (trans-
lation by the author).
49 Ibid., para. 47 (translation by the author).
50 Hungarian Constitutional Court, Case No. 41/2012, Decision of 4 December 2012,
ABH 2012, 742.

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 International Law in the Recent Jurisprudence of the Hungarian Constitutional Court

of international treaties should coincide necessarily with the official inter-

pretation of the Council of Europe”.51

F. Requirements for the Transfer of Sovereignty

In the new constitutional context, the Constitutional Court was asked by the
government to interpret Article E of the Fundamental Law in order to clarify
whether the ratification of the Fiscal Stability Treaty of the European Union
requires a qualified or only a simple majority.
One has to remember that Article E (4) contains a reference to the two-
thirds majority and some years ago, in the decision on the Lisbon Treaty52
the Constitutional Court stated – on the basis of Article 2/A of the Consti-
tution – that the two-thirds majority is required not only for the accession
treaty but also for all the future EU treaties implying an additional transfer
of sovereignty. In this way, the Parliament – as holder of the State sovereign-
ty – can check how the government has carried out negotiations and will
decide whether it is ready to accept such a complex institutional reform. In
contrast with sovereignty transfer treaties, the ratification of ordinary inter-
national treaties can be done only with simple majority.53
The Constitutional Court confirmed that
“the ratification of an international treaty bringing about modifications or
amendments of rights and duties deriving from the founding treaties requires a
two-thirds majority, under the condition that it implies the common exercise of
other competences secured in the Fundamental Law. Such a treaty can be in
particular an international treaty where Hungary – as a Member State of the

51 Ibid., 745, para. 17 (translation by the author).

52 Hungarian Constitutional Court, Case No. 143/2010, Decision of 12 July 2012, ABH
2010, 872. See also Kovács, La Jurisprudence de la Cour Constitutionelle de la
République de Hongrie, supra note 5, 118-120.
53 Hungarian Constitution, Art. 19 (3) (f) & (4), supra note 6, 4: “Within this sphere of
authority, the Parliament shall conclude international treaties of outstanding impor-
tance to the foreign relations of the Republic of Hungary. [...] (4) A majority of two-
thirds of the votes of the Members of Parliament shall be required for the decisions
specified in points g), h) and i) of Paragraph 3.” As far as the subparagraph (f) is not
enumerated in paragraph (4), the simple majority was required.
Hungarian Fundamental Law, Art. 1 (2) (d), supra note 7, 399: “Parliament shall
authorize the expression of consent to be bound by international treaties falling
within its tasks and competences.” The Fundamental Law does not enumerate either
the ratification among the questions to be settled with two-thirds majority.

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Péter Kovács

European Union – is a contracting party together with other Member States and
when this treaty regulates items stipulated in the founding treaties or its aim is
the execution of the founding treaties or their control. The ratification of an
international treaty does not require a two-thirds majority of the votes, if the
treaty does not bring about the common exercise of new competences deriving
from the Fundamental Law together with the institutions of the European Union
or its Member States.”54
The problem underlying the question asked by the government was that the
Fiscal Stability Treaty implies a new transfer of competences for members
of the Euro-zone. Although this is an obligation for Euro-zone countries, this
is only an option for EU countries which are still not in the Euro-zone like
Hungary. Moreover, the government also declared that it had no intention
to take benefit from these ‘options’ before the country’s full entry into the
Euro-zone.
This is exactly the reason why the Constitutional Court pointed out that
the observation of the above mentioned rules on the transfer of sovereignty
is nevertheless inevitable
“because an international treaty can be ratified only once. Therefore no such
solution can be constitutional which, based on the delayed entry into force or
the conditionality of the transfer of sovereignty, would require a simple majority
for the ratification and would eventually require a two-thirds majority of the
votes in the Parliament only later, linked to the notification of the additional
engagements.”55

54 Hungarian Constitutional Court, Case No. 22/2012, Decision of 8 May 2012, ABH
2012, 94 (translation by the author).
55 Ibid., 98, para. 52 (translation by the author).

266
From Implementation to Translation: Applying the ECtHR
Judgments in the Domestic Legal Orders

Andreas Paulus*

A. Introduction: New Challenges to the Implementation of ECtHR

Judgments

For a long time, the domestic implementation of the judgments of the Euro-
pean Court of Human Rights (thereinafter: ‘ECtHR’) was not so much a legal
but a factual problem. National decisions such as the Pakelli decision1 of the
German Federal Constitutional Court, the Bundesverfassungsgericht, em-
phasized the specificity of the European Convention of Human Rights
(thereinafter: ‘the Convention’) apparently allowing for compensation rather
than implementation.
Until this day, some Member States prefer to compensate rather than im-
plement. Nevertheless, the situation has profoundly changed. The Court does
not leave the implementation of its judgments to the Committee of Ministers
alone. Since the entry into force of Protocol 11, the Court emphasizes the
priority of implementation over compensation – so much so that the possi-
bility contemplated in Article 41 of the Convention that compensation was
due in the event of legal impossibility to implement a ruling according to
internal law seems to play a marginal role in the case law only. Compensation
seems to be limited to past injuries that are factually irreparable. Pilot judg-

* The views expressed herein are strictly personal and do not necessarily reflect the
views of the Court. I thank Mr Sebastian Ehricht and Mr Patrick Nölscher for their
research assistance and valuable comments and suggestions. The responsibility for
the text remains however strictly my own.
1 Pakelli, German Federal Constitutional Court, Case No. 2 BvR 336/85, Decision of
11 Oktober 1985. The judgment is based on Pakelli v. Germany, ECtHR Application
No. 8398/78, Judgment of 25 April 1983.

267
Andreas Paulus

ments2 do not only contribute to greater efficiency of the Court, but transcend
the wording of Article 46 by containing roadmaps towards compliance with
the Convention beyond the individual case. In Germany, for example, the
pilot judgment in the Rumpf case3 led to the introduction of a new system of
complaints for lengthy proceedings.4 Traditionally dualist countries such as
the United Kingdom have reacted by introducing schemes for the direct ap-
plication of the ECtHR case law in their own legal systems, whereas other
parties such as Turkey introduce human rights mechanisms of their own by
allowing for individual complaints before their constitutional courts.5
In addition, the breadth and depth of ECtHR jurisprudence increasingly
creates problems of implementation for State Parties. Expectations diverge
between States that do possess their own effective and efficient mechanisms
of human rights protection and those that do not. Whereas the latter often
expect a strict standard of protection, the former are increasingly wary of
interventions by the ECtHR. The strict admissibility criteria for claims of
non-exhaustion of domestic remedies add to these feelings when they pre-
vent claims that domestic remedies were not properly exhausted. Thus, in a
recent case, Germany was barred from pointing to the fact that a prisoner
who complained of his solitary confinement for a week had only disclosed
in Strasburg that he had been left naked.6 Of course, the blame for this does
also lie in a domestic lack of coordination between the government and the
Federal Constitutional Court.

2 For an instructive overview on pilot judgments see M. Breuer, Zur Fortentwicklung

der Piloturteilstechnik durch den EGMR, 39 Europäische Grundrechte-Zeitschrift
(2013) 1-4, 1; W. Sadurski, Partnering with Strasbourg: Constitutionalisation of the
European Court of Human Rights, the Accession of Central and East European States
to the Council of Europe, and the Idea of Pilot Judgments, 9 Human Rights Law
Review (2009) 3, 397.
3 Rumpf v. Germany, ECtHR Application No. 46344/06, Judgment of 2 September
2010.
4 Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen
Ermittlungsverfahren [Act on Legal Redress for Excessive Length of Court Proceed-
ings and of Criminal Investigation Proceedings] of 24 November 2011, Bundesge-
setzblatt [Federal Law Gazette] 2011, Vol. I, 2302.
5 For UK see 1998 Human Rights Act (c. 42), Arts. 2 & 3, reprinted in J. Wadham et
al., Blackstone’s Guide to the Human Rights Act 1998, 6th ed. (2011), 335-358. For
Turkey, see Turkish Constitution, Art. 90, reprinted in G. H. Flanz (ed.), Constitutions
of the Countries of the World, Vol. XVIII (Release 2011-1).
6 Hellig v. Germany, ECtHR Application No. 20999/05, Judgment of July 2011.

268
 From Implementation to Translation: Applying ECtHR Judgments domestically

This episode leads to the central point I wish to make in this contribution:
From the perspective of the justice of a national constitutional court, the
ECtHR should strive to take the problems of domestic implementation into
account. In its case law, the Court should resist the temptation to decide cases
‘through’, but should rather leave space for domestic diversity and respect
more fully the at times difficult relationship between the different domestic
constitutional organs in implementing its judgments within the domestic le-
gal order. Let me stress that I do not advocate a case law that discriminates
between different countries – although it may be advisable to occasionally
take into account the real social differences between the 47 State Parties.
However, I argue that the Court should be willing to take into account the
domestic separation of powers and the limits of domestic courts in imple-
menting judgments requiring legislative change. In substantive law, a more
consistent use of the margin of appreciation will enhance rather than prevent
a more effective implementation that leaves domestic courts the necessary
discretion to apply the case law to the situation sur le terrain.
To illustrate, I will use four recent cases with particular relevance for
Germany as examples: The security detention,7 Springer,8 Fabris9 and Her-
rmann10 cases; the first – security detention – for the direct effect – or lack
of it – of ECtHR judgments, the second – Springer – for the inconsistency
of the Court with regard to the margin of appreciation in the so-called mul-
tipolar rights cases, the third – Fabris – for the specific constitutional and
also human rights problems with retroactive decisions, and, finally, the
fourth – Herrmann – for the problems with the expansionary scope of ap-
plication of the rights contained in the Convention with not much regard to
comparative constitutional law. While all of the four cases create specific
problems for their domestic execution, the first two have developed into
positive examples of the engagement between the ECtHR and domestic
courts and legislatures in the implementation of the Convention. The two

7 M. v. Germany, ECtHR Application No. 19359/04, Judgment of 17 December 2009.

8 Springer v. Germany, ECtHR Application No. 39954/08, Judgment (GC) of 7 Febru-
ary 2012.
9 Fabris v. France, ECtHR Application No. 16574/08, Judgment (GC) of 7 February
2013 and Fabris v. France, ECtHR Application No. 16574/08, Judgment [Just Sat-
isfaction] of 28 June 2013.
10 Herrmann v. Germany, ECtHR Application No. 9300/07, Judgment (GC) of 26 June
2012.

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Andreas Paulus

other cases show that considerable work needs to be done to integrate the
workings of the Court into the fabric of domestic law.
Taken together, these cases demonstrate the importance of domestic im-
plementation but also raise some question marks as to the respect of the
domestic conditions for the implementation of the Court’s judgments. More
research is needed to better understand the workings of the Convention in
the State Parties. The future of the effective protection of European human
rights standards may well depend on the Court’s willingness to take the do-
mestic conditions for the implementation of human rights into account, but
also on the ability of domestic legislators and courts to ‘translate’ the judg-
ments of the Court into meaningful and concrete measures to effectively
protect the human rights enshrined in the Convention.

B. The Role of ECtHR Judgments in the Recent Case Law of the

Bundesverfassungsgericht

In two recent decisions, the Federal Constitutional Court has dealt with the
relationship between the ECtHR and the domestic legal order, in particular
with regard to the two highest courts.11

I. Parental Custody: Parallel Reasoning of the two Courts

First, let me deal with the parental custody case, however – a case that
demonstrates the parallel development of the case law of the two Courts but
also some potential for mutual respect and better coordination.
After clarifying the basis for the taking into account of the Convention
and its interpretation by the ECtHR in the Görgülü and Caroline cases,12

11 Full disclosure: I participated in none of the domestic cases, although the custody
case was decided at the beginning of my term as justice in the First Senate. However,
I was rapporteur in one case relating to the retroactive effects, if any, of the protection
of hereditary rights of children of unmarried parents. See German Federal Consti-
tutional Court, Case No. 1 BvR 2436/11, Decision of 18 March 2013, 40 Europäische
Grundrechte-Zeitschrift (2013), 238.
12 Görgülü, German Federal Constitutional Court, Case No. 2 BvR 1481/04, Decision
of 14 October 2004, 111 BVerfGE 307, 317 & 324-325 (para. 32 & paras. 51-52);
Caroline von Monaco IV, Case Nos. 1 BvR 1602/07 et al., Decision of 26 February
2008, 120 BVerfGE 180, 218-220 (paras. 98-101).

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respectively, the two Senates of the Federal Constitutional Court had two
further occasions for putting them into practice: In the parental custody case
of 2010, the First Senate was faced with the situation that it had, in a previous
ruling, upheld the German law of the time,13 according to which the mother
not married to the father of their child could deny him joint parental custody
rights – in spite of Article 6 (2) of the Basic Law treating both parents equally
– for a grace period to allow for further research into the effects of joint
custody on the well-being of children of unmarried parents.14 One year be-
fore the end of a five-year study undertaken by the German Ministry of
Justice, in Zaunegger v. Deutschland in 2009, the ECtHR held the denial of
the father’s custody rights without the will of the mother to be a violation of
the prohibition of discrimination (Article 14) in conjunction with the right
to a family life in Article 8 of the Convention.15 In the following year, the
First Senate of the Federal Constitutional Court went along with its Stras-
bourg colleagues pointing to provisional results of that study.16 Unlike the
ECtHR, it could order provisional measures17 that also allowed for imme-
diate compliance of Germany. While referring extensively to the Strasbourg
judgment,18 the Court comes autonomously to an identical result. Frankly,
if the Court had come to another conclusion regarding the well-being of the
child, it is difficult to imagine that it would have followed Strasburg in dis-
regard of the interests of the children.
The lesson of this case is that the German Court will implement ECtHR
rulings in cases in which domestic law is based on assumptions that are
proven wrong. While it is thus more than likely that, once the Ministry study
was completed, the German Court would have arrived at the same conclusion
as its Strasbourg colleagues, the question remains whether Strasbourg could

13 Section 1626a (1) (1) & § 1672 (1) Bürgerliches Gesetzbuch [German Civil Code]
as amended by the Gesetz zur Reform des Kindschaftsrechts [Act Reforming the Law
of Parent and Child] of 16 December 1997, Bundesgesetzblatt [Federal Law Gazette]
1997, Vol. I, 2942.
14 German Federal Constitutional Court, Case Nos. 1 BvL 20/99 & 1 BvR 933/01,
Decision of 29 January 2003, 107 BVerfGE 150, 178 et seq. (paras. 72 et seq.).
15 Zaunegger v. Germany, ECtHR Application No. 22028/04, Judgment of 3 December
2009.
16 German Federal Constitutional Court, Case No. 1 BvR 420/09, Decision of 21 July
2010, 127 BVerfGE 132, 158 (para. 61).
17 Ibid., 164 (para. 75).
18 Ibid., 137-139 (paras. 19-22).

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Andreas Paulus

have waited with the disposition of the case, in respect for subsidiarity, for
this completion rather than intervening shortly before it.

II. Security Detention: A Difficult Bringing into Line

While the parental custody case is an example of the Constitutional Court

putting the arguments of the ECtHR to good use in the re-examination of its
own case law, the Second Senate’s security detention case raised even more
difficult and pressing problems. As is well known, around the same time as
the parental custody judgment, the Fifth Chamber of the ECtHR decided that
the German practice of retroactively prolonging the security detention of
criminals after serving their sentence constituted a violation of Article 7 of
the Convention that prohibits retroactive penalties,19 in spite of a contrary
judgment by the Federal Constitutional Court.20 Actually, the Constitutional
Court had emphasized that security detention must be different from a penal-
ty and provide for more generous offers of reintegration into society. This
requirement, however, had apparently been neglected by the German au-
thorities.
Following this, different political and judicial authorities in Germany
came to different conclusions as to the effects of that judgment on the com-
plainant, but also on similar cases. One Senate of the Federal Supreme Court
and several Higher Regional Courts released prisoners, some of them later
committing new heinous crimes. Others did not consider any changes in
order before a change of legislation or before the Federal Constitutional
Court had reversed its previous decision.21
This the Court did in May 2011 in a judgment that probably belongs to
the most important in its entire history – and certainly so with regard to the
relationship of the Court towards its European colleagues. First, the Court

19 M. v. Germany, ECtHR Judgment, supra note 7. See also Hoffer and Annen v. Ger-
many, ECtHR Application Nos. 397/07 & 2322/07, Judgment of 13 January 2011;
Schummer v. Germany, ECtHR Application Nos. 27360/04 & 42225/07, Judgment
of 13 January 2011.
20 Sicherungsverwahrung, German Federal Constitutional Court, Case No. 2 BvR
2029/01, Decision of 5 February 2004, 109 BVerfGE 133.
21 See German Federal Supreme Court, Case Nos. 5 StR 394/105 et al., Decision of 9
November 2010, 56 BGHSt 73, on the one hand (no immediate release); German
Federal Supreme Court, Case No. 4 StR 577/09, Decision of 12 May 2010, on the
other; each with further references to lower courts.

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declared that, despite the finality of the previous decision, a contrary judg-
ment by the ECtHR was reason enough for taking up the matter in spite of
its procedural finality. In addition – in the words of its English press release
– it
“held that the provisions on the retrospective prolongation of preventive deten-
tion beyond the former ten-year maximum period and on the retrospective im-
position of preventive detention in criminal law relating to adult and to juvenile
offenders infringe the rule-of-law precept of the protection of legitimate expec-
tations under Article 2.2 sentence 2 in conjunction with Article 20.3 GG.”22
Accordingly, all security detentions needed to be revisited applying strict
criteria of proportionality. In addition, the detention system should become
clearly distinct from the penitentiary system. In accordance with Art. 5 (1)
(e) of the Convention, only persons who were proved to be of ‘unsound
mind’ and were considered a continuous and serious threat to society could
be retained as a last resort after serving their time.23
The Second Senate further elaborated on the findings of the previous
Görgülü ruling, placing the Convention within the German legal order on
the same footing as regular legislation, but adding that the Grundgesetz itself
needed to be interpreted in light of the Convention and its development by
the ECtHR. However, the Court also held that this interpretation of the Basic
Law with openness towards international law did not amount to a “schematic
parallelization”.24 Rather, it required a ‘translation’ into another legal order,
which meant that the concepts of the Convention could be transformed into
different ones within the German legal order. Following the German com-
parative constitutionalist Peter Häberle,25 an active reception of these deci-
sions required an ‘Umdenken’, a ‘rethinking’ or transformation into the do-
mestic constitutional order; in other words, the Convention had to be fitted
into the domestic legal system.26 Thus, the prohibition of retroactivity in
Article 7 of the Convention was transformed into the protection of legitimate

22 German Federal Constitutional Court, Press Release No. 31/2011 (4 May 2011),
available at http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg11-02
8en.html (last visited 31 January 2014). See for the full judgment Sicherungsver-
wahrung II, German Federal Constitutional Court, Case Nos. 2 BvR 2333/08 et al.,
Decision of 4 May 2011, 128 BVerfGE 326.
23 Ibid., 405 et seq. (paras. 172 et seq.).
24 Ibid., 366 (para. 86) (translation by the author).
25 P. Häberle, Europäische Verfassungslehre, 7th ed. (2011), 255-256.
26 Görgülü, German Federal Constitutional Court Judgment, supra note 12, 324 (paras.
48-49).

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Andreas Paulus

expectations under the German Rechtstaat principle, being thereby open to

proportionality arguments. Thus, the Convention was not ‘Überverfas-
sungsrecht’,27 it remained a law subject to the constitution and indeed, the
Court invoked its Article 53 to argue that the Convention did expand, but
not limit individual rights. Constitutional rights could thus not be limited,
but only extended by the Convention.
Precisely because the German legal system regards security detention as
a measure of prevention, not as a penalty, the prohibition of retroactive
penalties did not apply. Rather, the prohibition required a strict limitation of
the security detention to the requirements of prevention of future crimes of
a particularly grave nature against other human beings. What is the prohi-
bition of retroactive penalty in the Convention, transforms into a strict ap-
plication of the principles of necessity and proportionality in the framework
of preventive detention within the German constitutional order. The Fifth
Section of the ECtHR later indicated that it was satisfied with this imple-
mentation of its judgments;28 however, whether the Grand Chamber will
concur to apply Article 5 (e) in this way remains to be seen.29 On the other
hand, the Court continues to be very critical of some aspects of the imple-
mentation of the judgment by German courts, in particular when earlier in-
mates continue to be kept in special prison cells rather than in a psychiatric
hospital.30 (One may ask, however, what Germany is supposed to do with
regard to former inmates who are not ready to undergo a therapy and who
thus are not easily admitted in psychiatric hospitals to begin with.)
Thus, the potential of contradiction between the domestic constitution and
the Convention remains, in particular in case of triangular relations, in which
the State is arbiter between two or more private legal subjects. Ordinarily,
the Convention provides only a common core of human rights protection so
that the State may grant a higher level. But this affects only the relationship

27 Cf. M. Nettesheim, Grundsatz der Wirksamkeit des Gemeinschaftsrechts, in A. Ran-

delzhofer et al. (eds.), Gedächtnisschrift für Eberhard Grabitz (1995), 447, 465.
28 See Mork v. Germany, ECtHR Application Nos. 31047/04 & 43386/08, Judgment
of 9 June 2011, para. 54; Schmitz v. Germany, ECtHR Application No. 30493/04,
Judgment of 9 June 2011, para. 41.
29 But see the important hints in this direction in S. v. Germany, ECtHR Application
No. 3300/10, Judgment of 28 June 2012, paras. 92 et seq., and O.H. v. Germany,
ECtHR Application No. 4646/08, Judgment of 24 November 2011, paras. 77 et
seq. & 89.
30 Glien v. Germany, ECtHR Application No. 7345/12, Judgment of 28 November
2013.

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between the State and a private citizen – as in the security detention cases.
However, it does not help in so-called triangular cases where one citizen’s
gain is the other citizen’s loss, and where the State did not violate individual
rights by itself but did not strike a reasonable balance between the private
rights involved. In these cases, divergent interpretations of the Convention
by the ECtHR, on the one hand, and parallel rights in the domestic consti-
tution by a domestic constitutional court, on the other, might lead to con-
tradictory results that would require a choice between a violation of the con-
stitution in its interpretation by the highest domestic court and a violation of
the Convention as applied by the ECtHR.
It also needs to be emphasized that it is not Courts alone who implement
a judgment with such huge consequences both for the penitentiary system
and the protection of fundamental rights. Rather, the legislature also stepped
in to implement the judgment in a way that German authorities would not
have to release inmates still considered dangerous to other human beings.31
By way of conclusion of this part, the Constitutional Court will not give
direct effect to the ECtHR judgments within the domestic legal order32 – it
seems still to be the majority opinion that this is not required by the Con-
vention.33 Neither is it advisable to introduce such effect. It is precisely the
task of domestic courts to implement rulings in a way that fits them into the
domestic legal system, and that allows to draw the consequences of human
rights decisions in balance with other rights and obligations in European and
domestic law – not to avoid the consequences of the European decision, but
to fit them into the domestic framework.
This procedure also allows for provisional judgments implementing
ECtHR judgments before the national legislator could draw the conse-
quences of ECtHR judgments. Of course, there may be the risk involved of
a negative decision of the ECtHR on some of these domestic operations. But

31 See Therapieunterbringungsgesetz [Therapy Placement Act] of 22 December 2010,

Bundesgesetzblatt [Federal Law Gazette] 2010, Vol. I, 2300, 2305. On the narrowing
of this law by the Bundesverfassungsgericht, see Therapieunterbringungsgesetz,
German Federal Constitutional Court, Case Nos. 2 BvR 2302/11 & 2 BvR 1279/12,
Decision of 11 July 2013, paras. 88 et seq.
32 See Görgülü, German Federal Constitutional Court Decision, supra note 12, 320
(para. 39); Sicherungsverwahrung II, German Federal Constitutional Court Deci-
sion, supra note 22, 403 (para. 165).
33 Cf. L. Zwaak, General Survey of the European Convention, in P. van Dijk et al.
(eds.), Theory and Practice of the European Convention on Human Rights, 4th ed.
(2006), 1, 26-28.

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Andreas Paulus

that is part of the necessary dialogue not only between the Courts, but be-
tween different, if related, legal systems.

C. Some Problem Areas for Domestic Implementation: Recent Examples

from ECtHR Case Law

I. Adjudicating Triangular Legal Relationships: The Springer case

The hint given by the Second Senate of the Federal Constitutional Court with
regard to triangular relationships34 did not so much relate to the case at hand
that concerned a more or less classical State-individual situation – although
a passage in the judgment can be seen as requiring a balancing act between
the rights of the prisoner and the protection of the population from dangerous
criminals35 – but reflects a broader problem that relates to cases in which the
Court intervenes in civil cases between private individuals. Famously, in the
Lüth case,36 the First Senate had argued that, while fundamental rights were
not directly applicable in these relationships, Courts needed to interpret
‘regular’ law such as the Civil Code in a manner reflecting the objektive
Wertordnung (‘objective value judgment’) contained in fundamental rights.
However, it is doubtful whether this reasoning also applies to the ECtHR.
After the Lüth decision – which is controversial to this day37 – had ‘consti-
tutionalized’ the German legal order, a parallel route for Strasburg would
‘conventionalize’ 47 legal orders in Europe in a way that may become prob-
lematic for domestic democracy. The main task of balancing the rights of
individuals is the one of the legislature – getting, in Kant’s famous
proverb,38 the right of the one in accordance with the right of the other. Even

34 See also Görgülü, German Federal Constitutional Court Decision, supra note 12,
328 et seq. (paras. 60 et seq.).
35 Sicherungsverwahrung II, German Federal Constitutional Court Decision, supra
note 22, 399 (para. 156): Protection of the population as legitimate purpose of the
security detention.
36 Lüth, German Federal Constitutional Court, Case No. 1 BvR 400/51, Decision of 15
January 1958, 7 BVerfGE 198, 205 (para. 26).
37 See M. Jestaedt, Grundrechtsentfaltung im Gesetz (1999), 37 et seq.
38 I. Kant, Kritik der reinen Vernunft [2nd ed. 1787], Akademieausgabe Vol. III (1904),
247-248, para. 373: “[…] daß jedes Freiheit mit der anderen ihrer zusammen beste-
hen kann.” See also German Federal Constitutional Court, Case Nos. 1 BvR 1842/11
& 1 BvR 1843/11, Decision of 23 October 2013, para. 68.

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in a domestic setting, the Constitutional Court is reluctant to intervene in

respective legislation or judgments of the regular courts.39
This is why these triangular or multipolar cases are also an important
example for the margin of appreciation left by the Court to domestic legal
systems40 that has recently been strengthened by the Brighton Declaration
of State Parties, to be included in the Preamble of the Convention by Protocol
No. 15.41
In the most recent judgments of the ECtHR in the line of the Von Han-
nover (or, in Germany, Caroline) cases balancing press freedom and privacy
rights, the Court has rightly emphasized the margin, putting forward a quite
extensive text but leaving it, in principle, to domestic courts to draw the
line.42 However, in the Springer case, a majority of the Court believed it
necessary to then fine tune this test again rather than letting the former judg-
ment stand.43 One can rationalize this contradictory result by saying that a
Chamber of the Court, in its first Caroline ruling, had preferred privacy over
press freedom, and the Grand Chamber now wanted to show that it held a
more balanced view.44 Be that as it may, I think the dissenters got it right
when they pointed out that the case had rather required an application of the

39 One example are some of the Caroline cases, supra note 12, 199-200 & 209-210
(para. 49 & paras. 74-76).
40 Cf. on the margin of appreciation D. Spielmann, Allowing the Right Margin: The
European Court of Human Rights and the National Margin of Appreciation Doctrine:
Waiver or Subsidiarity of European Review?, 14 Cambridge Yearbook of European
Legal Studies (2011/2012), 381.
41 Protocol No. 15 amending the Convention on the Protection of Human Rights and
Fundamental Freedoms, Art. 1 (24 June 2013) (not yet in force), available at http://
conventions.coe.int/Treaty/en/Treaties/Html/213.htm (last visited 31 January 2014),
adding the paragraph: “Affirming that the High Contracting Parties, in accordance
with the principle of subsidiarity, have the primary responsibility to secure the rights
and freedoms defined in this Convention and the Protocols thereto, and that in doing
so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the
European Court of Human Rights established by this Convention [...].” High Level
Conference on the Future of the European Court of Human Rights, Brighton Dec-
laration, available at http://hub.coe.int/20120419-brighton-declaration (last visited
31 January 2014), para. 12 (b).
42 Von Hannover v. Germany (No. 2), ECtHR Application Nos. 40660/08 & 60641/08,
Judgment (GC) of 7 February 2012, paras. 124-126.
43 Springer v. Germany, ECtHR Application No. 39954/08, Judgment (GC) of 7 Febru-
ary 2012, paras. 85-88.
44 Dissenting Opinion of Judge Lopez Guerra, Springer v. Germany, ECtHR Judgment,
supra note 43.

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Andreas Paulus

self-proclaimed margin.45 The latter view has also prevailed in the later de-
cision in von Hannover (No. 3).46
The balancing between private rights is usually not the task of constitu-
tional or human rights courts, but a question of the proper application of
domestic legislation by regular courts. A balance should thus be struck by
according a margin of appreciation to the State courts and by allowing do-
mestic courts leeway in fitting in the Convention into the broader domestic
legal framework, provided, however, the rights of each side have been rec-
ognized and balanced against each other. The determination of the result
should then be left to regular domestic courts.

II. Retroactivity in Triangular Relationships: The Fabris Case

The point becomes even more important with regard to legislation imple-
menting a judgment by the ECtHR retroactively. Often, compliance will
require a change of domestic law. This is not problematic in itself. In many
countries, courts do not have jurisdiction to invalidate or override a law
passed by parliament; in others, such as Germany, the Constitutional Court
enjoys a monopoly of annulling laws only when they are contrary to the
constitution. Indeed, in Article 41, the Convention appears to recognize that
there may be situations that cannot be repaired by a change of domestic law,
but only by paying compensation. An inherent tension exists between this
provision and the absolute command of Article 46 regarding the binding
force of a judgment. Nevertheless, they cannot be read to imply that domestic
law is changed ipso jure by a ECtHR judgment or that the Convention re-
quires direct effect in the domestic legal order.47
Nevertheless, in a recent judgment, the Grand Chamber of the Court re-
quired – different from the Fifth Section in first instance48 – France to apply

45 Ibid.
46 Von Hannover v. Germany (No. 3), ECtHR Application No. 8772/10, Judgment of
19 September 2013. For a more generous application of the margin, see only – de-
cided by the narrowest possible majority – Animal Defenders v. United Kingdom,
ECtHR Application No. 48876/08, Judgment (GC) of 22 April 2013, para. 104: nar-
row margin, in principle, but ibid., para. 123: wider margin in the absence of a Euro-
pean consensus.
47 Sicherungsverfahrung II, German Federal Constitutional Judgment, supra note 22,
403 (para. 165) with further references.
48 See supra note 9.

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a judgment on inheritance law retroactively, changing the balance the leg-

islator had struck between the inheritance rights of two private parties. While
the injustice of the discrimination in question of children ‘born of adultery’
carries great weight, it is a different matter how to weigh them retroactively
against the rights of those who have taken up an inheritance in good faith.
While it is beyond question that the discrimination had to be changed for the
future, it is a different matter whether to retroactively modify the conse-
quences of past inheritances.
While the Fabris case is very special, and it is probably not a good case
for broader inferences, a Chamber of the First Senate of the Federal Con-
stitutional Court decided at about the same time that a decision by the leg-
islature to implement the judgment by the Court in the Brauer case49 did not
require retroactivity on grounds of discrimination against children born out
of marriage – partly due to a preclusion of certain arguments the complaining
party had failed to raise in time. However, the Chamber decision left open
the question of whether there could be an exception where the case was
similar to the one decided by the ECtHR.50 As in Fabris, the core problem
of the case was that the legislature had considered the Brauer judgment and
decided against retroactivity (except in the case at hand). It is particularly
difficult for any court to decide against the balance struck between individual
rights – here non-discrimination v. bona fide possession – by the legislature
if and to the extent that the balancing was made in full understanding of the
rights involved.
The inheritance laws of France and Germany, and along with them the
previous discrimination of children born out of wedlock, are very different
indeed. It is thus almost impossible to know whether the ECtHR would, faced
with the German situation, decide the same way as in Fabris or as in the
former cases since Marckx51 denying retroactivity. However, as in
Springer, the balancing between vested rights and the finality of the law, on
the one hand, and the injustice of past discrimination, on the other, should
be left to the domestic legislature – if and to the extent the legislature has

49 Brauer v. Germany, ECtHR Application No. 3545/04, Judgment of 28 May 2009.

50 German Federal Constitutional Court, Case Nos. 1 BvR 2436/11 & 1 BvR 3155/11,
supra note 11, para. 43.
51 Marckx v. Belgium, ECtHR Application No. 6833/74, Judgment of 13 June 1979,
para. 68 (determination of violation rather than compensation); Vermeire v. Bel-
gium, ECtHR Application No. 12849/87, Judgment (GC) of 29 November 1991,
para. 22.

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Andreas Paulus

duly taken into account the rights of both sides. This also conforms to the
previous case law of the ECtHR.52

III. From Necessary Rights to Extensive Interpretation: The Herrmann case

There are, however, also cases not involving triangular relationships that
raise questions as to the Court’s respect for the subsidiarity principle. In
Herrmann,53 the Grand Chamber of the ECtHR has derived from the right
to property enshrined in Article 1 of Protocol 1 a right to prevent hunting,
even against a law that mandates membership in a hunting association that
collectively fulfills the obligation of “’Hege’, i.e. ‘care’, for the proper ex-
ercise of hunting on small property below 75 hectars, rather than leaving this
to each proprietor singularly.
The Court has framed the issue – against a vigorous dissent – as one of
following precedent.54 However, in the preceding Chassagnou case the
Court refers to, the issue was the lack of pecuniary compensation and the
uneven application of the duty to enter a hunting association on French ter-
ritory.55 In the Chamber judgment in Schneider, the issue was, among other
considerations, also the lack of adequate compensation. As the Joint Dis-
senting Opinion of four judges has pointed out, the application of these
precedents to a case of conscientious objection was, at least for the Grand
Chamber judgment, anything but obvious.56
The main issue, however, is only passingly discussed by the Court. In
Germany, the constitutional right to property has been traditionally under-
stood as the protection of personal freedom with regard to economic assets,
protecting pecuniary rights (‘vermögenswerte Rechte’),57 not as an expres-
sion of the civil law principles of freedom to do whatever one pleases with

52 Ibid.
53 Herrmann v. Germany, ECtHR Judgment, supra note 10, para. 78.
54 Ibid.
55 Chassagnou v. France, ECtHR Application Nos. 25088/94 et al., Judgment (GC) of
29 April 1999, paras. 82 & 84.
56 Herrmann v. Germany, ECtHR Judgment, supra note 10, para. 51.
57 See, e.g., German Federal Constitutional Court, Case Nos. 1 BvR 3139/08 & 1 BvR
3386/08, Decision of 17 December 2013, para. 167 (protection of freedom in the
pecuniary area); B.-O. Bryde, Art. 14, in I. von Münch & P. Kunig (eds.), Grundge-
setz Kommentar, Vol. I, 6th ed. (2012), 1133, 1141-1143, para. 12, with further
references to the case law of the Bundesverfassungsgericht.

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one’s property58 (that is then limited by other principles of civil law). In

addition, the right to property is subject to determination by ordinary law,
as long as that freedom is preserved and appropriately balanced against so-
cial needs and the property rights of others. Thus, the issue of conscientious
objection is not part of the right to property, but of other rights, such as the
freedom of conscience.
Before Herrmann, Article 1 of Protocol I was understood in a similar
fashion. Without much of an argument, the Grand Chamber now broadens
the right to one of complete freedom of dealing with objects belonging to
property, simply holding that “the Court has misgivings of principle about
the argument that strongly-held personal convictions could be traded against
annual compensation for the restrictions on the use of the property”.59 This
is enough for overriding the law of – as the Court itself maintains – about
half of the State Parties that oblige landowners to tolerate hunting on their
land60 maintaining that changes in the legislation in four countries after
Chassagnou were enough to show a trend towards an exception to consci-
entious objection.61
There is no argument whatsoever why the Court would interpret the right
to property beyond the sphere of economic freedom. In addition, even if one
agrees that the freedom in question falls under the right to property, the
possibility of compensation is universally regarded as justification for lim-
iting property if the compensation is appropriate. Neither does the Court
discuss whether the hunting associations can be regarded as a collective ex-
ercise of property rights where individual proprietors are unable to fulfil the
duty of care required of any responsible owner. Finally, the question arises
whether the freedom of conscience as contained in Article 9 of the Conven-
tion would not be the better place to discuss a mandatory membership in a
hunting association.
The case demonstrates the dangers of expanding the rights enshrined in
the Convention well beyond the existing protections in member States. Some
comparative research not only of hunting laws, but also of the right to prop-
erty in the 47 member States would have been more than useful to reach an

58 See Bürgerliches Gesetzbuch [German Civil Code], Section 903, Bundesgeset-

zblatt [Federal Legal Gazette] 2002, Vol. I, 41, 193-194.
59 See Herrmann v. Germany, ECtHR Judgment, supra note 10, para. 91.
60 Ibid., para. 35.
61 Ibid., para. 36.

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understanding of Article 1 that relates – in one way or the other – to the

established views on the scope and limits of the right to property.
In its newer case law, the Federal Constitutional Court has established
that the judgments of the ECtHR enjoy, for the interpretation and application
of the Convention, an ‘Orientierungs- und Leitfunktion’, e.g., regarding
them as serving a function of orientation and guidance for the implementa-
tion of the Convention beyond their bindingness in the concrete case that
was decided by the Court.62 But the Court will only be able to ‘orient’ and
‘guide’ national courts – and, by the way, its own chambers – when it engages
in a more complete and comparative reasoning. Such reasoning is the pre-
condition for a meaningful dialogue between the Court and its domestic
equivalents.
In general, however, the margin of appreciation is meant to guarantee that
the Court remains within the confines of the Convention as understood by
the majority of member States.63 The expansion of rights beyond this point
– for instance by including also rights to animals in the Convention by mere
inference, as a Separate Opinion to the Herrmann judgment suggests64 – is
bound to create conflicts with domestic law and domestic courts.

D. Conclusion: Towards a Culture of Mutual Respect

For the effective protection of human rights in Europe, more is needed than
a simple ‘command and obey’ relationship between the ECtHR and the State
Parties to the Convention. Rather we need a mutual understanding and re-
spect for the maintenance of human rights and fundamental freedoms, on
the one hand, and the conditions for their effective and efficient implemen-
tation in the domestic legal sphere, on the other. For this, not only both the

62 Sicherungsverwahrung II, German Federal Constitutional Court Judgment, supra

note 22, 368-369 (para. 89). See also Görgülü, Judgment, supra note 12, 320 (para.
39); Jagdgenossenschaft, German Federal Constitutional Court, Case No. 1 BvR
2084/05, Decision of 23 December 2006, 10 BVerfGK 66, 77-78 (para. 38);
Jagdgenossenschaft, German Federal Constitutional Court, Case No. 2 BvR 126/04,
Decision of 1 February 2007, 10 BVerfGK 234, 239-240 (para. 16) with further
references.
63 See, for example, Animal Defenders v. United Kingdom, ECtHR Judgment, supra
note 46, para. 123 (wider margin in the absence of a European consensus).
64 Partly Concurring and Partly Dissenting Opinion of Judge Pinto de Albuquerque,
Herrmann v. Germany, ECtHR Judgment, supra note 10.

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 From Implementation to Translation: Applying ECtHR Judgments domestically

ECtHR and the highest national courts must work hand-in-hand, but the
domestic legislature and executive branches need also be involved. Not ju-
risdictional claims of authority, but the effective protection of human rights
and fundamental freedoms is at the centre of the diverse systems of rights
protection in Europe.
Thus, there is no alternative to a culture of mutual respect between the
highest courts adjudicating the Convention and the constitutional and
supreme courts with jurisdiction on the human rights provisions in domestic
constitutions. Or, in the phrase of the Second Senate of the German Court
in the Security detention case: “From this background does the ‘last word’
of the German constitution not prevent an international and European dia-
logue, but constitutes its normative basis.”65

65 Sicherungsverwahrung II, German Federal Constitutional Court Judgment, supra

note 22, 369 (para. 89) (translation by the author).

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The Role of the European Court of Human Rights in the Execution
of its own Judgments: Reflections on Article 46 ECHR

Linos-Alexander Sicilianos

A. Introduction

Some years ago, even the title of this contribution would have appeared
rather strange, to say the least. According to the traditional literal interpre-
tation of Article 46 of the European Convention of Human Rights (there-
inafter: ‘Convention’ or ‘ECHR’),1 the European Court of Human Rights
(thereinafter: ‘the Court’) did not seem to have any role to play in relation
to the execution of its own judgments. The Committee of Ministers was
considered to be the only responsible organ of the Council of Europe in this
respect. Undoubtedly, the practice of the Committee of Ministers has been
extensive and its methods of work have been continually developed far be-
yond the expectations of the drafters of Article 46 (2) of the Convention so
as to cope with contemporary realities and to maximize the impact of the
ECHR at the national level.2
Nevertheless, since the establishment of the ‘new Court’ and the entry
into force of the 11th Protocol this clear ‘division of work’ has begun to
change. Despite its restricted role in the Convention system, confined to the
election of judges of the Court (Article 22 ECHR), the Parliamentary As-
sembly of the Council of Europe has been progressively involved in the
execution of the Court’s judgments, exercising a sort of ‘parliamentary con-

1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4

November 1950, 213 UNTS 222 (as amended by the Protocols Nos. 11 & 14) [ECHR].
2 For a critical analysis of the relevant recent activities of the Committee of Ministers
see E. Lambert Abdelgawad, L’exécution des arrêts de la Cour européenne des droits
de l’homme (2010), Revue trimestrielle des droits de l’homme (2011) 88, 939,
940-951 [Lambert Abdelgawad, L’exécution des arrêts (2010)]; E. Lambert Abdel-
gawad, L’exécution des arrêts de la Cour européenne des droits de l’homme (2011),
Revue trimestrielle des droits de l’homme (2012) 92, 861, 862-871.

285
Linos-Alexander Sicilianos

trol’ over the relevant activities of the Committee of Ministers.3 More im-
portantly, however, a closer look at the case law of the Court reveals that the
traditional institutional equilibrium, provided for in the Convention, has
gradually changed. Today, more than 150 judgments of the Court explicitly
rely on Article 46 of the Convention in order to indicate the individual and/
or general measures to be taken by the respondent State in the execution
process. The density of this practice seems to put into question the traditional
‘separation of powers’ between the judiciary and the ‘executive’ and to con-
tribute to a ‘jurisdictionalization’ of the execution process.
The recourse to Article 46 of the Convention and the relevant legal basis
for the Court to indicate measures of execution have been more or less vig-
orously contested within the Court and in legal doctrine.4 However, these
negative perceptions have tended to become more nuanced in recent years
as the practice has developed. It is thus important to begin by outlining the
practice of the Court in respect of Article 46 of the Convention before ex-
amining the legal basis and, finally, the limits of the competence of the Court
to interfere, so to say, with the execution of its own judgments.

B. The Practice of the Court

As already mentioned, a number of judgments of the Court contain a refer-

ence to Article 46 of the Convention. An assessment of this important prac-
tice would require an analytical study. For the purposes of this contribution,
however, we shall try to give a brief picture of the Court’s practice by re-
ferring to the categories of judgments pertaining to Article 46, the categories
of measures indicated by the Court, as well as to the legal nature and the
substance of those measures.

3 See A. Drzemczewski, The Parliamentary Assembly’s Involvement in the Supervision

of the Judgments of the Strasbourg Court, 28 Netherlands Quarterly of Human Rights
(2010) 2, 164.
4 For more details see infra.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

I. Categories of Judgments

1. Grand Chamber Judgments

The Grand Chamber has repeatedly referred to Article 46 either alone or in

conjunction with Article 41 of the Convention related to just satisfaction.
Without claiming to provide an exhaustive list, we have been able to trace
25 such judgments,5 the more recent being those in Fabris v. France,6 con-
cerning the issue of discrimination between ‘legitimate’ children and those
‘born of adultery’ (to use the expression of the old French Civil Code) and
in Del Rio Prada v. Spain,7 pertaining to the calculation of the remission of

5 Broniowski v. Poland, ECtHR Application No. 31443/96, Judgment (GC) of 22 June

2004; Lukenda v. Slovenia, ECtHR Application No. 23032/02, Judgment of 6 October
2005; Hutten-Czapska v. Poland, ECtHR Application No. 35014/97, Judgment (GC)
of 19 June 2006; Burdov v. Russia (No. 2), ECtHR Application No. 33509/04, Judg-
ment of 15 January 2009; Kauczor v. Poland, ECtHR Application No. 45219/06,
Judgment of 3 February 2009; Olaru and Others v. Moldova, ECtHR Application Nos.
476/07 et al., Judgment of 28 July 2009; Yuriy Nikolayevich Ivanov v. Ukraine, ECtHR
Application No. 40450/04, Judgment of 15 October 2009; Orchowski v. Poland,
ECtHR Application No. 17885/04, Judgment of 22 October 2009; Suljagic v. Bosnia
and Herzegovina, ECtHR Application No. 27912/02, Judgment of 3 November 2009;
Rumpf v. Germany, ECtHR Application No. 46344/06, Judgment of 2 September
2010; Maria Atanasiu and Others v. Romania, ECtHR Application Nos. 30767/05 &
33800/06, Judgment of 12 October 2010; Greens and M.T. v. United Kingdom, ECtHR
Application Nos. 60041/08 & 60054/08, Judgment of 23 November 2010; Vassilios
Athanasiou and Others v. Greece, ECtHR Application No. 50973/08, Judgment of 21
December 2010; Dimitrov and Hamanov v. Bulgaria, ECtHR Application Nos.
48059/06 & 2708/09, Judgment of 10 May 2011; Finger v. Bulgaria, ECtHR Appli-
cation No. 37346/05, Judgment of 10 May 2011; Ananyev and Others v. Russia, EC-
tHR Application Nos. 42525/07 & 60800/08, Judgment of 10 January 2012; Um-
muhan Kaplan v. Turkey, ECtHR Application No. 24240/07, Judgment of 20 March
2012; Michelioudakis v. Greece, ECtHR Application No. 5447/10, Judgment of 3
April 2012; Kuric and Others v. Slovenia, ECtHR Application No. 26828/06, Judg-
ment (GC) of 26 June 2012; Manushaqe Puto and Others v. Albania, ECtHR Appli-
cation Nos. 604/07 et al., Judgment of 31 July 2012; Glykantzi v. Greece, ECtHR
Application No. 40150/09, Judgment of 30 October 2012; Torreggiani and Others v.
Italy, ECtHR Application Nos. 43517/09 et al., Judgment of 8 January 2013; M.C.
and Others v. Italy, ECtHR Application No. 5376/11, Judgment of 3 September 2013.
6 Fabris v. France, ECtHR Application No. 16574/07, Judgment (GC) of 7 February
2013, para. 75.
7 Del Rio Prada v. Spain, ECtHR Application No. 42750/09, Judgment (GC) of 21
October 2013, paras. 133 et seq. & operative part, para. 3.

287
Linos-Alexander Sicilianos

sentence granted to the applicant in light of Articles 5 (1) and 7 of the Con-
vention.
This group of cases is important because it marks the involvement of the
Grand Chamber itself in the execution of its own judgments and thus the
approval of this technique by the highest judicial formation within the Court.
Some of the Grand Chamber judgments are ‘pilots’, others – for instance the
two most recent mentioned above – are not. Most of them contain an indi-
cation of general measures to be taken by the respondent States, i.e. measures
of a general character such as legislative amendments, modification of ad-
ministrative practice, etc. A few Grand Chamber judgments prescribe indi-
vidual measures, i.e. measures concerning the particular situation of the ap-
plicant.8

2. Pilot and Semi-Pilot Judgments

The main category of judgments referring to Article 46 of the Convention

is composed of pilot judgments.9 As is well known, the pilot judgment pro-
cedure was put in place subsequent to the adoption by the Committee of
Ministers of the Resolution Res (2004)3 on “judgments revealing an under-
lying systemic problem”.10 According to this Resolution the Court was in-
vited
“as far as possible, to identify, in its judgments finding a violation of the Con-
vention, what it considers to be an underlying systemic problem and the source
of this problem, in particular when it is likely to give rise to numerous applica-
tions, so as to assist states in finding the appropriate solution and the Committee
of Ministers in supervising the execution of judgments [...]”.11

8 See, for instance, Assanidze v. Georgia, ECtHR Application No. 71503/01, Judgment
(GC) of 8 April 2004, operative part, para. 14 (a); Ilascu and Others v. Moldova and
Russia, ECtHR Application No. 48787/99, Judgment (GC) of 8 July 2004, operative
part, para. 22; Del Rio Prada v. Spain, ECtHR Judgment, supra note 7.
9 On pilot judgments see M. Breuer, Zur Fortentwicklungen der Piloturteilstechnik
durch den EGMR, 39 Europäische Grundrechte-Zeitschrift (2012) 1-4, 1.
10 Council of Europe (Committee of Ministers), Resolution Res(2004)3 on Judgments
Revealing an Underlying Systemic Problem, reprinted in Council of Europe (Steer-
ing Committee for Human Rights) (ed.), Reforming the European Convention on
Human Rights: A Work in Progress (2009), 687 [Council of Europe (Steering Com-
mittee for Human Rights), Reforming the European Convention].
11 Ibid.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

In other words, the Committee of Ministers clearly encouraged the Court to

be involved in the execution process in a proactive manner so as to better
handle the issue of repetitive cases. “Elements of a pilot judgment”12 may
also be found in the so-called semi-pilot judgments. Aslakhanova v. Rus-
sia, concerning the lack of proper investigations into the allegations of dis-
appearances in Chechnya and Ingushetia, is a recent example of such a judg-
ment.13
The distinction between pilot and semi-pilot judgments is not always
clear. Both categories of judgments identify “structural or systemic prob-
lems” or a “similar dysfunction”. The aim of both pilot and semi-pilot judg-
ments is the same: assisting States and the Committee of Ministers in the
execution process. Furthermore, all these judgments offer the possibility of
speedier redress to the individuals concerned and they help the Court to
manage its workload. In principle, a pilot judgment contains a paragraph in
the operative part related to its execution. However, such a paragraph can
also be found in the operative part of other non-pilot judgments.14 Semi-pilot
judgments may also contain such a paragraph in their operative part.
Another distinctive feature of a pilot judgment is that the Court adjourns
other similar cases,15 which is not the case in semi-pilot judgments.16 How-
ever, not all pilot judgments provide for such adjournment. For instance, in
Vassilios Athanasiou v. Greece similar cases were not adjourned, and yet
the judgment was formally qualified as a pilot.17
The clearest difference between pilot and semi-pilot judgments seems to
be of a procedural rather than of a substantive nature, namely that parties are

12 According to the terms used by E. Fribergh, Pilot Judgments from the Court’s Per-
spective, in Council of Europe (Steering Committee for Human Rights) (ed.), Re-
forming the European Convention, supra note 10, 521.
13 Aslakhanova v. Russia, ECtHR Application Nos. 2944/06 et al., Judgment of 18
December 2012, esp. paras. 158 et seq.
14 See, for instance, Zafranas v. Greece, ECtHR Application No. 4056/08, Judgment
of 4 October 2011; Oleksandr Volkov v. Ukraine, ECtHR Application No. 21722/11,
Judgment of 9 January 2013.
15 See, for instance, Yuriy Nikolayevich Ivanov v. Ukraine, ECtHR Judgment, supra
note 5, operative part, para. 7; Michelioudakis v. Greece, ECtHR Judgment, supra
note 5, operative part, para. 6 and Glykantzi v. Greece, ECtHR Judgment, supra note
5, operative part, para. 6.
16 See, however, Xenides-Arestis v. Turkey, ECtHR Application No. 46347/99, Judg-
ment [Just Satisfaction] of 22 December 2005, para. 50.
17 Vassilios Athanasiou v. Greece, ECtHR Application No. 50973/08, Judgment of 21
December 2010, para. 58.

289
Linos-Alexander Sicilianos

invited to comment upon the application of the pilot judgment procedure

according to Rule 61 (2) of the Rules of the Court. One could mention as
well the priority treatment given to pilot judgments by the Committee of
Ministers at the stage of supervision of the execution, although this priori-
tization and relevant visibility may also encompass semi-pilot judgments.

3. Ordinary Judgments

Apart from pilot and semi-pilot ones, a number of other judgments of the
Court refer to Article 46 of the Convention. This is an important feature of
the relevant practice because it demonstrates that the involvement of the
Court in the execution of its own judgments is not limited to cases concerning
structural problems, but goes beyond this situation. It is true that the Court
continues to stress that its judgments are declaratory in principle and that it
indicates the type of measures to be taken in the execution process only in
exceptional cases.18 However, these ‘exceptions’ are not confined to cases
revealing systemic dysfunctions. Article 46 measures are also indicated in
cases of nonsystemic, isolated or even atypical breaches of the Convention.
Moreover, as will be demonstrated later, such measures may concern a great
variety of rights protected under the Convention and its Protocols. In other
words, the fact that references to Article 46 are contained not only in Grand
Chamber or pilot judgments proves that this practice tends to become com-
monplace.

II. Categories of Measures

1. General Measures

As already mentioned, most of the judgments referring to Article 46 of the

Convention indicate measures of a general character. Nevertheless, there are
important differences from one judgment to another. In a number of cases,
the Court confines itself to simply suggesting the nature of measures to be
taken, thus leaving to the respondent State a wide margin of appreciation as
to their exact content. By way of example, in the M.C. and Others v. Italy

18 See, for instance, Kuric and Others v. Slovenia, ECtHR Judgment, supra note 5,
paras. 406-407.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

case the Court invited the respondent State to set a time limit within which
it would undertake to guarantee, through legal and administrative measures,
the effective and prompt implementation of the violated rights.19 In another
series of cases, the Court envisages alternative solutions and suggests more
concrete measures, possibly also taking into account a comparative law analy-
sis among the Contracting Parties.20 In the third sub-category of judgments,
the Court is much more precise as it gives specific indications of general
measures to be taken, for instance by suggesting a particular legal provision
to be modified.21 Finally, in a few cases the Court’s judgments contain, under
Article 46 of the Convention an in-depth analysis of the structural deficien-
cies in the respondent State and suggest a broad spectrum of far reaching
remedial measures.22

2. Individual Measures

In a few judgments, the Court has indicated or even prescribed individual

measures to be taken by the respondent State. This is especially the case in
relation to unlawful detention in breach of Article 5 of the Convention. For
instance, in the operative part of the aforementioned Assanidze v. Georgia
judgment the Court held that “the respondent State must secure the appli-
cant’s release at the earliest possible date”.23 An analogous paragraph is
contained in the operative part of Ilascu and Others v. Moldova and Rus-
sia in which the Grand Chamber held that “the respondent States are to take
all necessary measures to put an end to the arbitrary detention of the appli-

19 M.C. and Others v. Italy, ECtHR Judgment, supra note 5, para. 120.
20 See, for instance, Michelioudakis v. Greece, ECtHR Judgment, supra note 5, paras.
29-36 & 74-78; Glykantzi v. Greece, ECtHR Judgment, supra note 5, paras. 27-33
& 77-81.
21 By way of example, one could mention the Dimitras and Others v. Greece (No. 2)
case in which the Court asked the respondent State to amend the relevant provisions
of the Code of Criminal Procedure in order to enable witnesses to opt for a ‘civil
oath’ without revealing their religious beliefs or giving any other explanation (Dim-
itras and Others (No. 2) v. Greece, ECtHR Application Nos. 34207/08 & 6365/09,
Judgment of 3 November 2011, para. 43).
22 Ananyev and Others v. Russia, ECtHR Judgment, supra note 5, paras. 191 et seq.;
Aslakhanova v. Russia, ECtHR Judgment, supra note 13, paras. 223 et seq.
23 Assanidze v. Georgia, ECtHR Judgment, supra note 8, operative part, para. 14 (a).

291
Linos-Alexander Sicilianos

cants still imprisoned and secure their immediate release”.24 More recently
and in a different context, i.e. the protection of family life according to Ar-
ticle 8 of the Convention, the Court asked the respondent State to “secure
effective contact between the applicant and his daughter at a time which is
compatible with the applicant’s work schedule and on suitable premises
[...]”.25 Individual measures have also been prescribed in relation to Article
6 of the Convention, as for example in Oleksandr Volkov v. Ukraine in which
the Court requested the respondent State to “secure the applicant’s rein-
statement in the post of judge of the Supreme Court at the earliest possible
date”.26 Other relevant examples can be found in the field of the right to
property.27
Although rather exceptional, the above-mentioned cases demonstrate that
the Court does not hesitate to indicate very specific individual measures in
relation to various rights protected under the Convention and its Protocols,
especially when the adoption of such measures seems to be the only possible
way to achieve the appropriate execution of the judgments in question. It is
also to be noted that these measures reflect the principle of restitutio in in-
tegrum.

3. Both General and Individual Measures

In order to give a more complete picture of the Court’s practice one should
also observe that some judgments combine both general and individual
measures. For instance, in the M.D. and Others v. Malta case the Court held
that “the authorities should provide a procedure allowing [the applicant] the
possibility to request an independent and impartial tribunal to consider
whether the forfeiture of her parental authority [was] justified”.28 Apart from

24 Ilascu and Others v. Moldova and Russia, ECtHR Judgment, supra note 8, operative
part, para. 22.
25 Gluhaković v. Croatia, ECtHR Application No. 21188/09, Judgment of 12 April
2011, operative part, para. 3.
26 Oleksandr Volkov v. Ukraine, ECtHR Judgment, supra note 14, operative part, para.
9. See also Fatullayev v. Azerbaijan, ECtHR Application No. 40984/07, Judgment
of 22 April 2010, operative part, para. 6.
27 See, for instance, Zafranas v. Greece, ECtHR Judgment, supra note 14, operative
part, para. 4.
28 M.D. and Others v. Malta, ECtHR Application No. 64791/10, Judgment of 17 July
2012, para. 89.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

this individual measure, the Court also recommended that “the respondent
State envisage taking the necessary general measures to ensure the effective
possibility of such access to a court”.29 More recently, the McCaughey and
Others v. United Kingdom judgment contains a paragraph in the operative
part as follows:
“The Court holds unanimously [...] that the Government take, as a matter of
some priority, all necessary and appropriate measures to ensure, in the present
case and in similar cases concerning killings by the security forces in Northern
Ireland where inquests are pending, that the procedural requirements of Article
2 are complied with expeditiously.”30
As in the previous examples concerning individual measures only, the word-
ing of this paragraph is rather prescriptive. Such wording raises the issue of
the legal nature of the measures indicated by the Court.

III. Legal Nature of Measures: A Continuum

The wording of the judgments of the Court referring to Article 46 of the

Convention varies greatly. It covers a broad spectrum of indications ranging
from pure recommendations, leaving a wide margin of appreciation to States
as to the exact content of the execution measures to be taken, to real injunc-
tions to adopt very concrete measures.

1. From Recommendations

The first observation pertaining to non-obligatory indications given to States

is that the relevant phraseology differs from one judgment to another. The
Court “recommends that the respondent State envisage taking the necessary
general measures”;31 or expresses the opinion “that general measures at na-

29 Ibid., para. 90.

30 McCaughey and Others v. United Kingdom, ECtHR Application No. 43098/09,
Judgment of 16 July 2013, operative part, para. 4 (c) (emphasis added). See also
Yordanova and Others v. Bulgaria, ECtHR Application No. 25446/06, Judgment of
24 April 2012, paras. 166-167; Ananyev and Others v. Russia, ECtHR Judgment,
supra note 5, operative part, paras. 7-8; Burdov v. Russia (No. 2), ECtHR Judg-
ment, supra note 5, operative part, paras. 6-7; Savriddin Dzhurayev v. Russia, ECtHR
Application No. 71386/10, Judgment of 25 April 2013, paras. 252 et seq.
31 M.D. and Others v. Malta, ECtHR Judgment, supra note 28, para. 90.

293
Linos-Alexander Sicilianos

tional level would be desirable”.32 In other cases, the Court “invites” the
respondent State to take all necessary measures;33 “expresses the view” that
the general measures in execution of its judgments should include amend-
ments to domestic law;34 “considers” that a particular measure could con-
stitute an appropriate form of reparation;35 “would encourage” the State to
develop an effective remedy under Article 13 of the Convention,36 etc. It is
obvious that such expressions do not impose legal obligations upon States,
but have a recommendatory nature; especially since they are not included in
the operative part of the relevant judgments. They could be qualified as
‘mild’ recommendations.
The phraseology used in other cases, however, appears to be more press-
ing. For instance, in the Tsygoniy v. Ukraine case the Court has emphasized
that “specific reforms in Ukraine’s legislation and administrative practice
should be urgently implemented”.37 In the same vein, the Sarica and Dilaver
v. Turkey judgment contains a phrase according to which:

32 Konstantin Markin v. Russia, ECtHR Application No. 30078/06, Judgment of 7 Oc-

tober 2010, para. 67.
33 Scordino v. Italy (No.1), ECtHR Application No. 36813/97, Judgment of 29 March
2006, para. 240.
34 Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others
v. Bulgaria, ECtHR Application Nos. 412/03 & 35677/04, Judgment of 16 Septem-
ber 2010, para. 50. See also M. and Others v. Bulgaria, ECtHR Application No.
41416/08, Judgment of 26 July 2011, para. 138; Vasilev and Doycheva v. Bulgaria,
ECtHR Application No. 14966/04, Judgment of 31 May 2012, para. 69; Yordanova
and Others v. Bulgaria, ECtHR Judgment, supra note 30, para. 166; Mutishev and
Others v. Bulgaria, ECtHR Application No. 18967/03, Judgment of 28 February
2012, para. 38; Auad v. Bulgaria, ECtHR Application No. 46390/10, Judgment of
11 October 2011, para. 139.
35 Sinan Isik v. Turkey, ECtHR Application No. 21924/05, Judgment of 2 February
2010, para. 60.
36 Mandic and Jovic v. Slovenia, ECtHR Application Nos. 5774/10 & 5985/10, Judg-
ment of 20 October 2011, para. 128. See also Strucl and Others v. Slovenia, ECtHR
Application Nos. 5903/10 et al., Judgment of 20 October 2011, para. 141; Vlad and
Others v. Romania, ECtHR Application Nos. 40756/05 et al., Judgment of 26
November 2013, para. 164.
37 Tsygoniy v. Ukraine, ECtHR Application No. 19213/04, Judgment of 24 November
2011, para. 90. See also Kharchenko v. Ukraine, ECtHR Application No. 40107/02,
Judgment of 10 February 2011, para. 101; Balitskiy v. Ukraine, ECtHR Application
No. 12793/03, Judgment of 3 November 2011, para. 54.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

“eu égard à la situation de caractère structurel qu’elle constate, la Cour observe

que des mesures générales au niveau national s’imposent sans aucun doute dans
le cadre de l’exécution du présent arrêt”.38
Although such expressions, contained in the corpus of the judgment and not
in the operative part, do not seem to create, as such, legal obligations stricto
sensu, they denote the intention of the Court to strongly urge the respondent
State to take the appropriate measures and the Committee of Ministers to
exercise its supervisory function under Article 46 (2) in order to ensure the
desirable result.
Independently of the exact terms used by the Court, what also matters is
the content of the measures indicated to the respondent State. A recommen-
dation couched in general terms leaves a wide margin of appreciation to
States. In this context, one could mention the Lindheim and Others v. Nor-
way case, concerning the right to property, in which the Court considered
that
“the respondent State should take appropriate legislative and/or other general
measures to secure in its domestic legal order a mechanism which will ensure
a fair balance between the interests of lessors on the one hand, and the general
interests of the community on the other hand”.39
Such a general recommendation, which leaves considerable freedom to the
State to choose the appropriate execution measures, contrasts with other
much more targeted ones. For instance, in the Pulatli v. Turkey case the Court
considered that
“le redressement le plus adéquat consisterait à intégrer dans le système juridique
turc un mécanisme visant à garantir que les sanctions disciplinaires privatives
de liberté soient infligées ou contrôlées dans le cadre d’un recours par une au-
torité jouissant des garanties judiciaires”.40
Although recommendatory in nature, such an indication clearly describes
the very essence of the execution measures, thus drastically limiting the dis-
cretion of the respondent State in this respect. Given the fact that such a

38 Sarica and Dilaver v. Turkey, ECtHR Application No. 11765/05, Judgment of 27

May 2010, para. 58 (emphasis added). See also Samaras and Others v. Greece,
ECtHR Application No. 11463/09, Judgment of 28 February 2012, para. 73 in fine.
39 Lindheim and Others v. Norway, ECtHR Application Nos. 13221/08 & 2139/10,
Judgment of 12 July 2012, para. 137. See also Stanev v. Bulgaria, ECtHR Application
No. 36760/06, Judgment (GC) of 17 January 2012, para. 258.
40 Pulatli v. Turkey, ECtHR Application No. 38665/07, Judgment of 26 April 2011,
para. 39.

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Linos-Alexander Sicilianos

targeted recommendation will be the basis of the Committee of Ministers’

supervisory role, the above indication resembles, for all practical purposes,
an injunction.

2. … to Injunctions

Analogous observations could be formulated in respect of measures of a

mandatory character. The above distinction between ‘mild’ and ‘strong’
recommendations appears to apply mutatis mutandis to indications of a
peremptory nature. Indeed, in a number of cases the Court resorts to ‘soft’
or ‘mild’ injunctions. Although using prescriptive language (e.g. the State
“must take” the necessary measures), the Court refrains from inserting it in
the operative part, while at the same time leaving considerable room for
manoeuvre to the respondent State.41
In another group of cases the mandatory wording, although of a general
character, figures in the operative part of the judgment.42 The binding char-
acter of the measures prescribed by the Court is stronger in the cases where
the terms used in the operative part are specific and at the same time a formal
deadline is provided for the respondent State to take action. The most char-
acteristic example of this category of judgments concerns the introduction

41 See, for instance, Kaverzin v. Ukraine, ECtHR Application No. 23893/03, Judgment
of 15 May 2012, para. 182. See also Altinok v. Turkey, ECtHR Application No.
31610/08, Judgment of 29 November 2011, para. 74.
42 Manushaqe Puto and Others v. Albania, ECtHR Judgment, supra note 5, operative
part, para. 6: “[...] [T]he respondent State must take, within eighteen months from
the date on which the judgment becomes final in accordance with Article 44 § 2 of
the Convention, measures to ensure effective protection of the rights guaranteed by
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in the context of all
the cases similar to the present case, in line with the Convention principles as estab-
lished in the Court’s case-law.”

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The Role of the European Court of Human Rights in the Execution of its own Judgments

of an effective remedy in cases of excessive length of proceedings.43 Other,

more or less similar examples are related to the right to property44 or even
to the adoption of effective remedies offering “appropriate and sufficient
redress” in cases of overpopulation in prisons.45
All the above categories of cases concern general measures. Almost by
definition, the implementation of such measures, either legislative or admin-
istrative, provides States with a certain amount of discretion. The margin of
appreciation is much narrower, however, when individual measures are in-
dicated by the Court. This is due to the very nature of such measures, which
concern a particular case and a particular applicant. Consider, for instance,
the measure prescribed in the recent judgment Youth Initiative for Human
Rights v. Serbia, according to which “the respondent State must ensure,
within three months from the date on which the judgment becomes final [...],
that the intelligence agency of Serbia provide the applicant with the infor-
mation requested”.46 It is obvious that such an injunction for a specific mea-
sure to be taken within a short period of time leaves the respondent State

43 See, for instance, Glykantzi v. Greece, ECtHR Judgment, supra note 5, operative
part, para. 5 (“ [...] l’Etat défendeur devra, dans un délai d’un an à compter de la date
à laquelle le présent arrêt sera devenu définitif en vertu de l’article 44 § 2 de la
Convention, mettre en place un recours ou un ensemble de recours internes effectifs
apte à offrir un redressement adéquat et suffisant dans les cas de dépassement du
délai raisonnable, au sens de l’article 6 § 1 de la Convention, quant aux procédures
devant les juridictions civiles.”). See also Michelioudakis v. Greece, ECtHR Judg-
ment, supra note 5, operative part, para. 5; Ümmühan Kaplan v. Turkey, ECtHR
Application No. 24240/07, Judgment of 20 March 2012, operative part, para. 5;
Vassilios Athanasiou and Others v. Greece, ECtHR Judgment, supra note 5, oper-
ative part, para. 5; Dimitrov and Hamanov v. Bulgaria, ECtHR Judgment, supra note
5, operative part, para. 6; Finger v. Bulgaria, ECtHR Judgment, supra note 5, oper-
ative part, para. 5.
44 See, for instance, Grudic v. Serbia, ECtHR Application No. 31925/08, Judgment of
17 April 2012, operative part, para. 3.
45 Torreggiani and Others v. Italy, ECtHR Judgment, supra note 5, operative part, para.
4. In the Ananyev v. Russia case, however, given the magnitude of the problem of
overpopulation in remand prisons, the deadline concerned not the adoption of the
substantive measures but the submission of “a binding time frame in which to make
available preventive and compensatory remedies in respect of alleged violations of
Article 3 of the Convention on account of inhuman and degrading conditions of
detention” (Ananyev and Others v. Russia, ECtHR Judgment, supra note 5, para.
234).
46 Initiative for Human Rights v. Serbia, ECtHR Application No. 48135/06, Judgment
of 25 June 2013, operative part, para. 4.

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Linos-Alexander Sicilianos

very little room for manoeuvre. The same is true for all the other judgments
concerning individual measures quoted above.47 In some of them, ordering
for instance the immediate release of the applicant, the margin of apprecia-
tion is almost non-existent.
From the above developments it can be seen that there is a real continuum
from ‘mild’ to ‘strong’ and from ‘general’ to ‘targeted’ recommendations,
as well as from ‘soft’ injunctions, granting a wide margin of appreciation,
to other prescriptive measures leaving practically no freedom of choice to
respondent States.

IV. Rights Concerned

The last element that should be added in order to give a clear picture of the
practice of the Court in respect of Article 46 of the Convention relates to the
substantive rights concerned by the measures recommended or prescribed.
As illustrated by the examples already mentioned, the Court has indicated
execution measures in relation to a broad spectrum of such rights. The right
to a fair trial and, more specifically, the problem of the excessive length of
proceedings is the most frequent object of a series of general measures in-
dicated by the Court.48 However, there are also other aspects of Article 6 of
the Convention which form the content of execution measures indicated by
the Court, for instance impartiality and independence,49 non-enforcement or
delayed enforcement of domestic decisions,50 as well as the rights of the
defense.51 Another important series of judgments indicating execution mea-
sures concerns the right to an effective remedy provided for in Article 13 of
the Convention, taken alone or in conjunction with other rights, for instance

47 See supra notes 23-27 & the relevant text.

48 See, for instance, the pilot judgments quoted above at note 43, as well as the pilot
judgment in Lukenda v. Slovenia, ECtHR Judgment, supra note 5, para. 98 & oper-
ative part, para. 5.
49 Oleksandr Volkov v. Ukraine, ECtHR Judgment, supra note 14.
50 See, for instance, the pilot judgments, Burdov v. Russia (No. 2), ECtHR Judgment,
supra note 5; Yuriy Nikolayevich Ivanov v. Ukraine, ECtHR Judgment, supra note
5; Olaru and Others v. Moldova, ECtHR Judgment, supra note 5. See also Faimblat
v. Romania, ECtHR Application No. 23066/02, Judgment of 13 January 2009.
51 Laska and Lika v. Albania, ECtHR Application Nos. 12315/04 & 17605/04, Judg-
ment of 20 April 2010, para. 76; Shkalla v. Albania, ECtHR Application No.
26866/05, Judgment of 10 May 2011, para. 78.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

the right to a fair trial,52 the prohibition of torture and other forms of ill-
treatment53 or the right to property.54
Apart from procedural rights, numerous judgments indicating measures
of execution involve “core rights” of the Convention and more specifically
the right to life,55 as well as the prohibition of torture and other forms of ill-
treatment,56 especially in the context of conditions of detention in prisons
and elsewhere.57 A number of other judgments concern the legality of de-
tention and the relevant guaranties provided for in Article 5 of the Conven-
tion and include prescriptive individual measures58 or ‘strong’ recommen-
dations pertaining to general measures.59

52 See, for instance, the pilot judgments quoted above, supra note 43 (concerning the
introduction of an effective remedy in cases of excessive length of proceedings). See
also the cases quoted above, supra note 50 (introduction of an effective remedy in
cases of non-enforcement or delayed enforcement of domestic decisions).
53 Ananyev and Others v. Russia, ECtHR Judgment, supra note 5; M.S.S. v. Belgium
and Greece, ECtHR Application No. 30696/09, Judgment (GC) of 21 January 2011;
Strucl and Others v. Slovenia, ECtHR Judgment, supra note 36.
54 Vasilev and Doycheva v. Bulgaria, ECtHR Judgment, supra note 34, para. 69.
55 Aslakhanova v. Russia, ECtHR Judgment, supra note 13, para. 238 (disappearances
in the Northern Caucasus); McCaughey and Others v. United Kingdom, ECtHR
Judgment, supra note 30, operative part, para. 4 (investigation into killings by the
security forces in Northern Ireland).
56 Kaverzin v. Ukraine, ECtHR Judgment, supra note 41, paras. 172-182 (ill-treatment
in custody).
57 See the pilot judgment Ananyev and Others v. Russia, ECtHR Judgment, supra note
5, paras. 179 et seq.; Iacov Stanciu v. Roumania, ECtHR Application No. 35972/05,
Judgment of 24 July 2012, paras. 195 et seq.; Slawomir Musial v. Poland, ECtHR
Application No. 28300/06, Judgment of 20 January 2009, paras. 107-108 & operative
part, para. 4 (a); Tzamalis and Others v. Greece, ECtHR Application No. 15894/09,
Judgment of 4 December 2012, para. 51.
58 See, for instance, the judgments cited above, supra notes 23 & 24.
59 Kharchenko v. Ukraine, ECtHR Judgment, supra note 37, paras. 98-101; Tsygoniy
v. Ukraine, ECtHR Judgment, supra note 37, para. 90; Altinok v. Turkey, ECtHR
Judgment, supra note 41, paras. 72-74; Pulatli v. Turkey, ECtHR Judgment, supra
note 40, para. 39; Wegera v. Poland, ECtHR Application No. 141/07, Judgment of
19 January 2010, para. 81; Jamrozy v. Poland, ECtHR Application No. 6093/04,
Judgment of 15 September 2009, paras. 61-62; Kauczor v. Poland, ECtHR Appli-
cation No. 45129/06, Judgment of 3 February 2009, paras. 58-62; Cahit Demirel v.
Turkey, ECtHR Application No. 18623/03; Judgment of 7 July 2009, para. 48.

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Linos-Alexander Sicilianos

Other important groups of cases deal with the protection of private and
family life,60 the right to property,61 as well as the issue of discrimina-
tion.62 Indications as to execution measures have been occasionally inserted
in relation to many other provisions of the Convention and its Protocols,
such as the principle nullum crimen sine lege,63 the right to freedom of re-

60 Kuric and Others v. Slovenia, ECtHR Judgment, supra note 5, paras. 408 et seq.;
M.D. and Others v. Malta, ECtHR Judgment, supra note 28, paras. 88-89; Emre v.
Switzerland (No. 2), ECtHR Application No. 5056/10, Judgment of 11 October 2011,
esp. paras. 68-77; Gluhaković v. Croatia, ECtHR Judgment, supra note 25; Yor-
danova and Others v. Bulgaria, ECtHR Judgment, supra note 30, paras. 166-167.
61 Broniowski v. Poland, ECtHR Judgment, supra note 5, paras. 188 et seq.; Hutten-
Czapska v. Poland, ECtHR Judgment, supra note 5, paras. 238-239; Sarica and
Dilaver v. Turkey, ECtHR Judgment, supra note 38, paras. 56-61; Klaus and Iouri
Kiladzé v. Georgia, ECtHR Application No. 7975/06, Judgment of 2 February 2010,
paras. 84-85; Suljagić v. Bosnia and Herzegovina, ECtHR Application No.
27912/02, Judgment of 3 November 2009, operative part, para. 4; Scordino v. Italy
(No. 1), ECtHR Application No. 36813/97, Judgment of 29 March 2006, paras.
229-237; Manushaqe Puto and Others v. Albania, ECtHR Judgment, supra note 5,
paras. 110 et seq. & operative part, para. 6; Grudic v. Serbia, ECtHR Judgment,
supra note 44, para. 99 & operative part, para. 3; Kostic v. Serbia, ECtHR Application
No. 41760/04, Judgment of 25 November 2008, para. 80 & operative part, para. 3;
Ghigo v. Malta, ECtHR Application No. 31122/05, Judgment of 17 July 2008, paras.
28-29; Maria Atanasiu and Others v. Romania, ECtHR Judgment, supra note 5,
operative part, para. 6.
62 See Sampanis and Others v. Greece, ECtHR Application No. 32526/05, Judgment
of 11 December 2012, para. 128 (Art. 14 of the Convention in conjunction with
Art. 2 of Protocol 1); Vučković and Others v. Serbia, ECtHR Application Nos.
17153/11 et al., Judgment of 28 August 2012, operative part, para. 6 (Art. 14 of the
Convention in conjunction with Art. 1 of Protocol 1); Grande Oriente d’Italia Di
Palazzo Giustiniani v. Italy (No. 2), ECtHR Application No. 35972/95, Judgment of
31 May 2007, para. 66; M.C. and Others v. Italy, ECtHR Judgment, supra note 5,
operative part, para. 11.
63 Del Río Prada v. Spain, ECtHR Application No. 42750/09, Judgment (GC) of 21
October 2013, operative part, paras. 1-3; Scoppola v. Italy (No. 2), ECtHR Appli-
cation No. 10249/03, Judgment (GC) of 17 September 2009, operative part, paras.
3, 6 (a).

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The Role of the European Court of Human Rights in the Execution of its own Judgments

ligion,64 freedom of expression,65 freedom of assembly66 and the right to

free elections.67
To sum up the practice of the Court, it can be said that there are different
categories of judgments referring to Article 46 of the Convention: Grand
Chamber judgments, pilot and semi-pilot judgments, as well as ordinary
judgments. In most cases the Court indicates general measures, but there are
numerous examples where the Court refers to individual measures or both
general and individual measures. Such measures are couched in different
terms ranging from ‘mild’ recommendations, granting a wide margin of ap-
preciation to States as to the concrete execution measures to be adopted, to
clear injunctions leaving no room for manoeuvre to the respondent State.
Finally, the measures indicated by the Court pertain to a broad spectrum of
substantive rights protected by the Conventions and its Protocols.

C. The Competence of the Court

I. A Fragile Legal Basis?

As already noted in the introduction, the reference to Article 46 and the

indication of execution measures by the Court itself has been criticized
within the Court, as well as in legal doctrine. Indeed, one could mention the
Partly Dissenting Opinion of Judge Zagrebelsky in the Hutten-Czapska v.
Poland case, strongly criticizing the pilot judgment procedure by observing
inter alia that:
“I would note the weakness of the legal basis of the pilot-judgment procedure
in its most evident aspect. I am referring to the indication in the operative pro-

64 See, for instance, Sinan Işık v. Turkey, ECtHR Judgment, supra note 35, para. 60;
Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others
v. Bulgaria, ECtHR Judgment, supra note 34, para. 50.
65 See, for instance, Manole and Others v. Moldova, ECtHR Application No. 13936/02,
Judgment of 17 September 2009, para. 117; Gözel and Özer v. Turkey, ECtHR Ap-
plication Nos. 43453/04 & 31098/05, Judgment of 6 July 2010, para. 76; Ürper and
Others v. Turkey, ECtHR Application Nos. 55036/07 et al., Judgment of 20 October
2009, para. 52.
66 İzci v. Turkey, ECtHR Application No. 42606/05, Judgment of 23 July 2013, para.
98.
67 Greens and M.T. v. United Kingdom, ECtHR Application Nos. 60041/08 &
60054/08, Judgment of 23 November 2010, operative part, para. 6.

301
Linos-Alexander Sicilianos

visions of the need for the State to amend its own legislation in order to solve a
general problem affecting persons other than the applicant. […] However, I
would observe in this connection that, although the Committee of Ministers’
well-established practice of indicating general measures to Governments and
asking them to implement them in order to prevent further violations is usually
justified on the basis of Article 46 rather than by the Committee of Ministers’
general obligations (under Articles 3, 8 and 15 of the Statute of the Council of
Europe), it concerns a Convention institution whose nature, composition and
responsibilities are entirely different from those of the Court, which reflect the
latter’s judicial function. But even without wishing to attach too much weight
to the above concerns, after the Broniowski v. Poland judgment of 22 June 2004
([GC], no. 31443/96, ECHR 2004-V), I consider that judgments such as the
present one undermine the relationship between the two pillars of the Conven-
tion system – the Court and the Committee of Ministers – and entrust the Court
with duties outside its own sphere of competence.”68
Moreover, in his Partly Dissenting Opinion in the Lukenda v. Slovenia case,
Judge Zagrebelsky expressed the view that a pilot judgment should be pro-
nounced by the Grand Chamber.69
In a more nuanced way, Judge Caflisch underlined that the indication of
execution measures by the Court could constitute interference in the
sovereignty of the State concerned and in the prerogatives of the Committee
of Ministers in respect of execution. However, in view of the cooperation
between the Court and the Committee of Ministers promoted by Protocol
No. 14 of the Convention,70 Judge Caflisch affirmed that the participation
of the Court in the execution of its own judgments is acceptable and even
desirable if limited to urgent situations where no other measure would bring
about an end to the violation.71
Furthermore, in his Dissenting Opinion in the case Verein gegen Tier-
fabriken Schweiz (VgT) v. Switzerland (No. 2), Judge Malinverni, joined by
Judges Bîrsan, Myjer and Berro-Lefèvre observed that:
“Article 46 § 2 of the Convention provides that the final judgment of the Court
is transmitted to the Committee of Ministers, which supervises its execution.

68 Partly Dissenting Opinion of Judge Zagrebelsky, Hutten-Czapska v. Poland, ECtHR

Judgment, supra note 5.
69 Partly Dissenting Opinion of Judge Zagrebelsky, Lukenda v. Slovenia, ECtHR Judg-
ment, supra note 5.
70 See especially the paras. 3-5 of Art. 46 of the Convention added by Protocol No. 14.
71 L. Caflisch, La mise en œuvre des arrêts de la Cour: nouvelles tendances, in F.
Salerno (ed.), La nouvelle procédure devant la Cour européenne des droits de
l’homme après le Protocole n° 14: actes du colloque tenu à Ferrara les 29 et 30 avril
2005 (2007), 157, 164-165.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

Accordingly, the Convention does not confer any jurisdiction on the Court as
regards the execution of its own judgments. Supervision of execution falls out-
side the Court's jurisdiction, being entrusted to a political body, the Committee
of Ministers. – Admittedly, in a second judgment the Court may examine new
facts not dealt with in its previous judgment, even if they occurred in the context
of the execution of that judgment. The question arising is therefore whether the
present case involved a new fact justifying the Court's jurisdiction ratione ma-
teriae.”72
Albeit not so categorical, Judges Sajó73 and Power74 seemed to share in
substance the same view.
In a more recent contribution, Judge Malinverni has somewhat nuanced
his previous approach. Although he supported the view that, by way of prin-
ciple, the Court has no competence to verify whether the respondent State
has executed the obligations arising from a previous judgment, he noted
some exceptions to this rule.75 Other authors have more or less vigorously
criticized the Court for its “judicial activism”76 and the pilot judgments as a
“real regression”.77
On the other hand, there are authors and judges who are adopting a more
or even clearly positive approach in respect of the involvement of the Court
in the execution of its own judgments. Although he mentioned the risk of
diverging approaches between the Court and the Committee of Ministers,
Professor Flauss noted with approval that the Court has become not simply
a partner of the Committee, but a full participant in the execution pro-

72 Dissenting Opinion of Judge Malinverni joined by Judges Bîrsan, Myjer & Berro-
Lefèvre, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2), ECtHR
Application No. 32772/02, Judgment (GC) of 30 June 2009, paras. 2-3.
73 Dissenting Opinion of Judge Sajó, Verein gegen Tierfabriken Schweiz (VgT) v.
Switzerland (No. 2), ECtHR Judgment, supra note 72.
74 Dissenting Opinion of Judge Power, Verein gegen Tierfabriken Schweiz (VgT) v.
Switzerland (No. 2), ECtHR Judgment, supra note 72.
75 G. Malinverni, La compétence de la Cour pour surveiller l’exécution de ses propres
arrêts, in D. Spielmann et al. (eds.), The European Convention on Human Rights: A
Living Instrument – Essays in Honour of Christos L. Rozakis (2011), 361.
76 M. Hertig Randall & X.-B. Ruedin, “Judicial activism” et exécution des arrêts de la
Cour européenne des droits de l’homme, Revue trimestrielle des droits de l’homme
(2010) 82, 421.
77 E. Lambert Abdelgawad, L’exécution des arrêts de la Cour européenne des droits de
l’homme (2009), Revue trimestrielle des droits de l’homme (2010) 84, 793, 807. In
her more recent commentaries, however, the author has adopted a more nuanced
approach. See, for instance, Lambert Abdelgawad, L’exécution des arrêts (2010),
supra note 2, esp. 952-955.

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Linos-Alexander Sicilianos

cess.78 In the same vein the former President of the Court, J.-P. Costa, re-
ferring to the Assanidze v. Georgia judgment, observed that the indications
or injunctions by the Court reinforce the authority of its judgments.79 Re-
garding more particularly the pilot judgment procedure, Judge Nicolaou has
noted that it is “the most impressive and far-reaching of all the Court pro-
cedural innovations”.80
More generally, the evolution of the Court’s practice combined with the
new provisions of Protocol No. 14 regarding the involvement of the Court
in matters of execution have had an influence on legal doctrine in this field.
As rightly observed by Judge Bîrsan,81 the new approach of the Court in
respect of execution of its own judgments is not unrelated to paragraphs 3
to 5 of Article 46 of the Convention, added by Protocol No. 14.82 These
provisions provide the possibility for the Committee of Ministers to submit
to the Court a request for interpretation or to initiate infringement proceed-
ings in the case of persistent non-execution. In other words, Protocol No. 14
involved the Court in the execution phase, thus modifying the traditional
institutional balance and the strict ‘separation of powers’ between the two
bodies. This perspective should be borne in mind when examining the legal
basis of the Court’s practice in respect of Article 46.

78 J.-F. Flauss, L’effectivité des arrêts de la Cour européenne des droits de l’homme:
du politique au juridique ou vice-versa, Revue trimestrielle des droits de l’homme
(2009) 77, 27, 59 & 69.
79 J.-P. Costa, The Authority of the Jurisprudence of the ECtHR, in Council of Europe
(Steering Committee for Human Rights) (ed.), Reforming the European Convention,
supra note 10, 288, 290.
80 G. Nicolaou, The New Perspective of the European Court of Human Rights on the
Effectiveness of its Judgments, 31 Human Rights Law Journal (2011) 7-12, 269, 272.
See also L. Garlicki, Broniowski and After: On the Dual Nature of “Pilot Judgments”,
in L. Caflisch et al. (eds.), Human Rights – Strasbourg Views: Liber Amicorum
Luzius Wildhaber (2007), 177; P. Mahoney & R. Degener, The Prospects for a Test
Case Procedure in the European Court of Human Rights, in H. Hartig (ed.), Trente
ans de droit européen des droits de l’homme: études à la mémoire de Wolfgang
Strasser (2007), 173, 179 et seq.
81 C. Bîrsan, Les aspects nouveaux de l’application des articles 41 et 46 de la Conven-
tion dans la jurisprudence de la Cour européenne des droits de l’homme, in Hartig,
supra note 80, 19, 43.
82 For an analysis of these provisions see L.-A. Sicilianos, La “réforme de la réforme”
du système de protection de la Convention européenne des Droits de l’Homme, 49
Annuaire français de droit international (2003), 611, 635-638.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

II. A Complementary Role

Despite the above changes introduced by Protocol No. 14, it remains undis-
puted that the Committee of Ministers bears the primary responsibility in
respect of supervision of the execution of the Court’s judgments. Its contri-
bution since the beginning of the functioning of the system and especially
since the entry into force of Protocol No. 11 has been remarkable. The role
of the Committee of Ministers constitutes a distinctive feature of the Euro-
pean human rights protection system, ensuring its effectiveness and relia-
bility. No other international or regional system in this field has a more ef-
ficient execution mechanism.
It is also true that by way of principle the judgments of the Court are of
declaratory nature. This element has been stressed by the Court in (almost)
all judgments indicating execution measures. In spite of the proliferation of
such judgments in recent years, the fact remains that the Court decides
whether to recommend or prescribe general or individual execution mea-
sures in rather exceptional cases. Furthermore, as already highlighted above,
in most of these cases the measures indicated by the Court leave a wide
margin of appreciation to States and, by the same token, considerable room
for manoeuvre to the Committee of Ministers. It is only in a few cases that
the Court has prescribed very concrete individual measures to be executed
by the respondent State as a matter of urgency. In other words, although the
Court has become a real actor in the execution process over the years, its
role is and will remain only complementary.

III. A Solid Legal Basis

Contrary to some legal opinions mentioned above, we believe that the com-
petence of the Court to indicate execution measures has a solid legal basis
both in the Convention and in relevant international instruments and prac-
tice.

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Linos-Alexander Sicilianos

1. Legal Bases in the Convention

a) Article 46

According to Article 46 (1) “[t]he High Contracting Parties undertake to

abide by the final judgment of the Court in any case to which they are par-
ties”.83 During the first stages of the functioning of the system the main
undertaking of the States on the basis of this provision was to pay the amount
of just satisfaction eventually provided for in the operative part of the Court’s
judgments. This rather restrictive interpretation has drastically changed over
the years due to the extensive practice of the Committee of Ministers asking
for the adoption of individual and/or general measures before deciding, by
way of ‘final resolution’, that the respondent State has fully complied with
the relevant Court’s judgment.
Although in the past this practice seemed to be quite revolutionary, in
reality it reflected nothing more than well-established customary rules of
general international law in respect of legal consequences of an internation-
ally wrongful act. In fact, in most cases individual measures are necessary
to “re-establish the situation which existed before the wrongful act was
committed”,84 i.e. the violation of the Convention. In other words, individual
measures constitute a form of restitution as a legal consequence of the in-
ternationally wrongful act. General measures, on the other hand, mainly aim
to prevent similar violations of the Convention in the future. To use the terms
of the International Law Commission, such measures constitute “guarantees
of non-repetition”,85 which is another legal consequence of the internation-
ally wrongful act according to general international law.
To put it otherwise, by supervising the execution of the Court’s judgment,
the Committee of Ministers frequently specifies (some of) the legal conse-
quences of the violation of the Convention. Although often seen as essen-
tially ‘political’, most of the work by the Committee of Ministers under
Article 46 (2) of the Convention has in fact a strong legal connotation. In
such circumstances, one could wonder why the Court could not specify in
the operative part of its judgments some of the legal consequences of the

83 ECHR, Art. 46 (1), supra note 1.

84 Articles on Responsibility of States for Internationally Wrongful Acts, November
2001, Art. 35, Yearbook of the International Law Commission (2001), Vol. II (2),
26, 28.
85 See ibid., Art. 30 (b), 28.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

breach of the Convention. It would then be for the Committee of Ministers

to supervise the execution of the measures provided for in the operative part.
The fact that the Inter-American Court of Human Rights is habilitated by
the American Convention of Human Rights to be involved in the execution
process86 proves that this task is more legal than political.
Given the above analysis, one should also accept that if the Court can do
more – i.e. prescribe a measure in the operative part – it can also do less –
i.e. recommend a specific individual or a general measure in the corpus of
the judgment. It is precisely this approach which reflects the practice of the
Court as presented above.

b) Article 19

According to Article 19 of the Convention “[t]o ensure the observance of

the engagements undertaken by the High Contracting Parties in the Con-
vention and the Protocols thereto, there shall be set up a European Court of
Human Rights [...]”.87 In the Manushaqe Puto v. Albania case, the Court
recalled this provision when referring to the pilot judgment procedure:
“One of the relevant factors considered by the Court in devising and applying
the pilot-judgment procedure has been the growing threat to the Convention
system resulting from large numbers of repetitive cases that derive from, among
other things, the same structural or systemic problem. Indeed, the Court’s task,
as defined by Article 19, that is to ‘ensure the observance of the engagements
undertaken by the High Contracting Parties in the Convention and the Protocols
thereto’, is not necessarily best achieved by repeating the same findings in large
series of cases.”88
Under general international law, this reference to Article 19 of the Conven-
tion reflects the well-known theory of implied powers. In other words, if the
Court deems it necessary to indicate general measures ‘to ensure the obser-
vance of the engagements undertaken by the High Contracting Parties’, it
has the power to do so.

86 See American Convention on Human Rights, 22 November 1969, Art. 65, 1144
UNTS 123, 160, as interpreted by the Inter-American Court of Human Rights (see
Baena Ricardo and Others v. Panama, Judgment of 28 November 2003, IACtHR
Series C, No. 104, 19 et seq., paras. 61 et seq.).
87 ECHR, Art. 19, supra note 1.
88 Manushaqe Puto and Others v. Albania, ECtHR Judgment, supra note 5, para. 105.

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Linos-Alexander Sicilianos

c) Article 32

Another important provision for our analysis is Article 32 of the Convention

entitled ‘Jurisdiction of the Court’. According to this provision:
“1. The jurisdiction of the Court shall extend to all matters concerning the in-
terpretation and application of the Convention and the Protocols thereto which
are referred to it as provided in Articles 33, 34, 46 and 47.
2. In the event of dispute as to whether the Court has jurisdiction, the Court shall
decide.”89
This provision reflects the content of Articles 45 and 49 of the initial text of
the Convention. All these provisions – i.e. Articles 45 and 49 of the old text
and Article 32 of the current one – have been invoked by the Court from the
very beginning of its activities,90 in relation to different matters concerning
the scope of its jurisdiction. For instance, in the well-known Belilos v.
Switzerland case91 the Court affirmed its own jurisdiction to rule upon the
compatibility of a Swiss reservation with the object and purpose of the Con-
vention by reference to the then Articles 45 and 49 of the Convention. Fur-
thermore, the Court has invoked Article 32 in relation to the reclassification
of the applicant’s complaints. It has been stressed at the same time that the
Court “is master of the characterization to be given in law to the facts of the
case”.92
More generally, Article 32 reflects the principle Kompetenz-Kompetenz.
This is a well-established principle in international law, clearly referred to
in Article 36 (6) of the Statute of the International Court of Justice,93 and

89 ECHR, Art. 32, supra note 1.

90 Case Relating to Certain Aspects of the Laws on the Use of Languages in Education
in Belgium, ECtHR Application Nos. 1474/62 et al., Judgment (Plenary) of 9 Febru-
ary 1967.
91 Belilos v. Switzerland, ECtHR Application No. 10328/83, Judgment of 29 April
1988, para. 50. See also Ettl and Others v. Austria, ECtHR Application No. 9273/81,
Judgment of 23 April 1987, para. 42.
92 Scoppola v. Italy (No. 2), ECtHR Judgment, supra note 63, paras 53-54; Guerra and
Others v. Italy, ECtHR Application No. 14967/89, Judgment (GC) of 19 February
1998, paras. 43-44; Akdeniz v. Turkey, ECtHR Application No. 25165/94, Judgment
of 31 May 2005, paras. 87-88; Contrada v. Italy, ECtHR Application No. 27143/95,
Judgment of 24 August 1998, para. 48.
93 Statute of the International Court of Justice, 26 June 1945, Art. 36 (6), 59 Stat. 1055.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

repeatedly applied by international Courts and Tribunals, including, for in-

stance, by the Inter-American Court of Human Rights.94
In relation to our subject matter, it should be underlined that Article 32
of the Convention cited above explicitly refers to Article 46. In other words,
the very text of the Convention clearly stipulates that the Court has juris-
diction to decide whether it is competent to rule upon issues relating to the
binding character and the execution of its judgments. Indeed, in a number
of cases the Court expressly invoked Article 32 in this particular connection.
In the Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2) case
the Court ruled, inter alia, that
“[i]n the Government’s submission, the present case should be declared inad-
missible ratione materiae, since, by virtue of Article 46 of the Convention,
execution of the Court's judgments falls solely within the jurisdiction of the
Committee of Ministers. In that connection, the Court would first reiterate that
by Article 32 § 1 of the Convention, its jurisdiction extends ‘to all matters con-
cerning the interpretation and application of the Convention and the Protocols
thereto which are referred to it as provided in Articles 33, 34 and 47’. Article
32 § 2 provides that ‘[i]n the event of dispute as to whether the Court has juris-
diction, the Court shall decide’.”95
In the same vein, but in a slightly different context the Court has decided in
the Emre v. Switzerland (No. 2) case that
“[i]n the present case, the Court observes that the Government have argued that
the question whether the reduction in the duration of the impugned exclusion
constitutes a sufficient individual measure for the execution of the judgment of
22 May 2008 is a matter for the Committee of Ministers under Article 46 § 2 of
the Convention. The Court does not share that view and observes in this con-
nection that under paragraph 2 of Article 32, ‘[i]n the event of dispute as to
whether the Court has jurisdiction, the Court shall decide’.”96

94 Benjamin and Others v. Trinidad and Tobago, 1 September 2001, IACtHR Series
C, No. 81, 17-18, para. 69; The Effect of Reservations on the Entry Into Force of the
American Convention on Human Rights, Advisory Opinion of 24 September 1982,
IACtHR Series A, No. 2, 24 September 1982, 3, para. 13.
95 Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2), ECtHR Judg-
ment, supra note 72, para. 66.
96 Emre v. Switzerland (No. 2), ECtHR Judgment, supra note 60, para. 39.

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Linos-Alexander Sicilianos

Similar wording has been used by the Court when rejecting the respondent
Government’s objections as to its jurisdiction to rule upon execution mat-
ters.97
It is true that the above cases also raise the issue of the limits of the Court’s
jurisdiction in this respect so as not to encroach upon the powers of the
Committee of Ministers. We shall return to this matter further on. For the
time being, it is important to highlight that Article 32 of the Convention
constitutes a clear basis for the Court to decide whether or not to be involved
in the execution of its own judgments and that the Court itself has repeatedly
relied upon this provision in order to do so.

2. Legal Basis in Relevant International Instruments and Practice

a) Instruments Adopted by the Committee of Ministers

As mentioned above in relation to the pilot judgments procedure, the Com-

mittee of Ministers has adopted an important resolution “on judgments re-
vealing an underlying systemic problem”, inviting the Court to identify such
problems and their source.98 This resolution is one of the instruments ac-
companying Protocol No. 14 and was adopted following a submission of the
Court itself dated 7 November 2002. In the Preamble of the resolution, the
Committee of Ministers emphasized “the interest in helping the State con-
cerned to identify the underlying problems and the necessary execution
measures” and considered that “the execution of judgments would be facil-
itated if the existence of a systemic problem is already identified in the
judgment of the Court”.99
The obvious purpose of this resolution was to explicitly enable the Court
to handle the problem of a large number of repetitive cases on its docket
related to a structural dysfunction and to assist the State concerned to adopt
the necessary general measures so as to solve the problem and avoid further

97 Liu v. Russia (No. 2), ECtHR Application No. 29157/09, Judgment of 26 July 2011,
para. 64. See also mutatis mutandis, Ivantoc and Others v. Moldova and Russia,
ECtHR Application No. 23687/05, Judgment of 15 November 2011, para. 94.
98 Council of Europe (Committee of Ministers), Interim Resolution CM/Res.
DH(2011)293, 2 December 2011 (follow-up to Burdov v. The Russian Federation
(No. 2), ECtHR Judgment of 15 January 2009).
99 Ibid.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

similar applications to the Court. By doing so, the political organ par excel-
lence of the Council of Europe composed of all the Contracting Parties to
the Convention, decided to expressly involve the Court in the execution
process. The time was ripe for such a move. All the more so since, as already
noted, Protocol No. 14 added three paragraphs to Article 46 of the Conven-
tion along these lines.
Another instrument, adopted on the same day as the above Resolution and
Protocol No. 14, should also be noted, namely the Recommendation
Rec(2004)6 of the Committee of Ministers to Member States “on the im-
provement of domestic remedies”.100 This recommendation underlines the
principle of subsidiarity and also refers to the issue of systemic deficiencies.
Indeed, paragraph 2 of the operative part recommends that Member States
“review, following Court judgments which point to structural or general defi-
ciencies in national law or practice, the effectiveness of the existing domestic
remedies and, where necessary, set up effective remedies, in order to avoid
repetitive cases being brought before the Court”.101
The appendix to the recommendation refers to possible remedies following
a ‘pilot’ judgment and analyses the relevant options of the State concerned
and the Court.102 By doing so, the Committee of Ministers has defined in
substance the main characteristics of the pilot judgment procedure which
was subsequently provided for in the rules of the Court.103
The above mentioned recommendation of 2004 has been complemented
by Recommendation Rec(2010)3 of the Committee of Ministers to Member
States “on effective remedies for excessive length of proceedings”, adopted
on 24 February 2010.104 In the Preamble of this recommendation the Com-
mittee of Ministers recalls that “the case law of the European Court of Human
Rights [...], notably its pilot judgments, provides important guidance and

100 Council of Europe (Committee of Ministers), Recommendation CM/Rec(2004)6

on the Improvement of Domestic Remedies, reprinted in Council of Europe (Steer-
ing Committee for Human Rights) (ed.), Reforming the European Convention,
supra note 10, 681.
101 Ibid., operative part, para. 2.
102 Ibid., Appendix, paras. 13-19.
103 ECtHR, Rules of Court, Rule 61, available at http://www.echr.coe.int/Documents/
Rules_Court_ENG.pdf (last visited 31 January 2014), 34-35.
104 Council of Europe (Committee of Ministers), Recommendation Rec(2010)3 on Ef-
fective Remedies for Excessive Length of Proceedings, available at https://
wcd.coe.int/ViewDoc.jsp?id=1590115 (last visited 31 January 2014).

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Linos-Alexander Sicilianos

instruction to member states in this respect”.105 In other words, the Com-

mittee of Ministers apparently endorses the relevant practice of the Court.
The above instruments of the Committee of Ministers could be viewed as
‘authorizations’ for the Court to set up and apply the pilot judgment proce-
dure and, thus, as an autonomous legal basis for the involvement of the Court
in the execution process in cases of existing ‘systemic or general problems’.
More generally, the above instruments could also be analyzed as elements
of ‘subsequent practice’ to be taken into account in the interpretation of the
Convention.

b) ‘Subsequent Practice’

The general rules of interpretation of international treaties have been codi-

fied in Article 31 of the Vienna Convention on the Law of Treaties.106 This
provision reflects customary international law and it has been repeatedly
invoked by the European Court of Human Rights. Paragraph 1 states the
fundamental rule according to which a treaty “shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose”.107 Paragraph
2 defines the notion of ‘context’ used in the previous paragraph. Finally,
paragraph 3 stipulates that “[t]here shall be taken into account, together with
the context, [...] (b) any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its interpreta-
tion”.108
Such practice can take various forms. The above mentioned resolution
and recommendations of the Committee of Ministers are directly connected
to the application of the Convention. The Committee of Ministers is not just
an organ of the Council of Europe, it is also an organ of the Convention and
it is composed of exactly the same States as those which are parties of the
ECHR. Consequently, the practice of the Committee of Ministers can and
should be construed as practice of State Parties in the application of the
Convention. Given the fact that the above mentioned instruments have been

105 Ibid.
106 Vienna Convention on the Law of Treaties, 23 May 1969, Art. 31, 1155 UNTS 331,
340.
107 Ibid.
108 Ibid.

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The Role of the European Court of Human Rights in the Execution of its own Judgments

adopted at ministerial (or ambassadorial) level without objections, they have

“established the agreement of the Parties” regarding the interpretation of the
Convention.
It is true that the instruments cited above mainly refer to systemic prob-
lems or structural deficiencies and, thus, they are notably relating to pilot
(and semi-pilot) judgments. However, as we have seen in the first part of
this study, many other judgments, adopted either by the Grand Chamber or
by Chambers, have recommended or even prescribed general or individual
measures. Although some States have contested, even before the Court,109
the appropriateness of specific measures in the context of a given case, it
seems that no State Party to the Convention has ever supported the view –
either before the Court or elsewhere – that the Court lacks jurisdiction to
indicate execution measures in general. Taking into consideration the num-
ber of the relevant judgments of the Court, the general attitude of the Con-
tracting Parties denotes their acquiescence in this respect. This element of
practice should also be taken into account in the interpretation of the Con-
vention, in accordance with Article 31 (3) (b) of the Vienna Convention on
the Law of Treaties.

IV. The Limits of the Court’s Competence

The fact that the competence of the Court to indicate execution measures
has a solid legal basis does not mean that such power is unlimited. It is true
that the relevant practice of the Court deals with most of the substantive
articles of the Convention (and its Protocols). The Court can not only re-
commend but also prescribe both general and individual measures. As we
have already stressed, however, the competence of the Court to do so is
complementary to the powers of the Committee of Ministers in the field of
execution. It is therefore necessary to maintain the institutional balance pro-
vided for in the Convention.
From this perspective, it is worth mentioning the approach of the Court
in the Liu v. Russia (No. 2) case, which reiterated and developed its previous
case-law, while at the same time demonstrating the concern to preserve the
role of the Committee of Ministers:

109 See above, supra notes 95-97 & the relevant text.

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Linos-Alexander Sicilianos

“The Court reiterates in this connection that the powers assigned to the Com-
mittee of Ministers by Article 46 are not being encroached on where the Court
has to deal with relevant new information in the context of a fresh application
(see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2), cited
above, § 67). It also notes that in the case of Mehemi v. France (no. 2)
(no. 53470/99, ECHR 2003-IV) it examined a new application while its first
judgment in respect of the same applicant was still pending before the Com-
mittee of Ministers under Article 46 of the Convention. In particular, it examined
whether new measures taken after its judgment in respect of an alien previously
removed from the respondent State complied with his right to a family life under
Article 8 (see Mehemi v. France (no. 2), cited above, §§ 52-56, and Resolution
DH(2009)1 adopted by the Committee of Ministers in that case). The Court
therefore considers that it is not prevented from examining the applicants’ com-
plaints concerning the new developments which occurred after the Court’s
judgment of 6 December 2007 became final while that judgment is still pending
before the Committee of Ministers under Article 46.”110
Beyond the specific issue raised in the above case, it appears that the indi-
cation of execution measures by the Court facilitates the task of the Com-
mittee of Ministers by channeling the negotiations with the respondent State.
Nevertheless, it is always important for the Court to avoid being excessively
prescriptive and to leave a margin of appreciation to the Committee of Min-
isters and the Contracting Parties concerned; particularly as the situation on
the ground may change after the pronouncement of the judgment. It is evi-
dent that in some cases certain (individual) measures may be required as a
matter of urgency, as for instance the release of the applicant. Such cases
are, however, highly exceptional.
Another issue is the setting of a time limit for the respondent State in order
to adopt the indicated measures. As mentioned above, such a practice is quite
common in pilot judgments. During this time limit similar pending cases are
usually ‘frozen’ until the structural problem is solved. If the time limit is too
long the applicants in those cases risk being negatively affected. If it is too
short it may prove to be non-realistic and create practical difficulties for the
State concerned and for the Committee of Ministers. Although the Court has
the competence to prolong time limits, such prolongations should not be the

110 Liu v. Russia (No. 2), ECtHR Judgment, supra note 97, para. 65. On the specific
issue raised in this paragraph see also H.-J. Cremer, Rechtskraft und
Bindungswirkung von Urteilen des EGMR/Problematik der Zulässigkeit einer
Zweitbeschwerde an den EGMR nach Urteilsumsetzung durch Wiederaufnahme,
39 Europäische Grundrechte-Zeitschrift (2012) 17-19, 493.

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rule. Moreover, the legal consequences of not respecting a given time limit
have not been clarified yet.

D. Concluding Remarks

Over the last decade the Court has been progressively involved in the exe-
cution of its own judgments. The traditional approach according to which
the judgments of the Court are only of declaratory nature and the Committee
of Ministers has an exclusive competence to supervise their execution does
not correspond to recent practice. The Court has repeatedly recommended
or even prescribed general or individual measures in the framework not only
of pilot or semi-pilot judgments, but also of ‘ordinary’ ones. It is uncon-
testable that the Committee of Ministers bears the primary responsibility in
the field of execution. Nevertheless, its powers are not exclusive. The Court
has a complementary competence in this respect. The relevant case law has
a solid legal basis in Articles 46, 19 and 32 of the Convention, as well as in
instruments adopted by the Committee of Ministers – especially Resolution
Res(2004)3. Those instruments, combined with the general attitude of the
Contracting Parties, should be taken into account as an element of the in-
terpretation of the Convention. It should be stressed, however, that the com-
petence of the Court is not unlimited. When indicating execution measures
it is necessary for the Court to maintain and respect the institutional balance
provided in the Convention and to leave, as a matter of principle, a more or
less wide margin of appreciation to States, as appropriate. Those new devel-
opments should be further reflected upon so as to enhance the effectiveness
of the system.

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List of contributors

Sabino Cassesse

Sabino Cassese, a justice of the Italian Constitutional Court and emeritus

professor at the Scuola Normale Superiore of Pisa, received doctorate
honoris causa from the universites of Aix-en-Provence, Cordoba, Paris II,
Castilla-La Mancha, Athens, Macerata and the European University Insti-
tute. His recent publication in English is “The Global Polity – Global Di-
mensions of Democracy and the Rule of Law” (2012, Global Law Press).

Jacek Chlebny

Dr. hab. Jacek Chlebny has been a judge of the Supreme Administrative
Court in Poland and the president of the Regional Administrative Court in
Warsaw. He was awarded the habilitation degree at the Łódź University. He
is an author of various publications on issues related to administrative and
asylum law.

Hans-Joachim Cremer

Dr. iur. utr. Hans-Joachim Cremer, professor of Public Law and Legal Phi-
losophy at the University of Mannheim, was awarded both his doctoral de-
gree (Ruprecht Karl’s Award 1995) and his post-doctoral degree (Habilita-
tion) by the University of Heidelberg. He teaches German public law, public
international law, European law, legal methodology and comparative law.
His main fields of research are human rights, constitutional law and Euro-
pean Union law.

Thomas Giegerich

Professor Dr. jur. Thomas Giegerich, LL.M. (Univ. of Virginia) is Jean

Monnet Professor at Saarland University and director of the Europa-Insti-
tut. He previously was professor in Bremen and at the Walther Schuecking
Institute in Kiel. He has published widely on public international law, EU
law, German public law and comparative law.

317
List of contributors

Péter Kovács

Péter Kovács is professor of public international law at the Péter Pázmány

Catholic University (Budapest, Hungary). He is a judge of the Constitutional
Court in Hungary.

Julia Laffranque

Professor Julia Laffranque (PhD Tartu, LL.M. Münster) is a judge at the

European Court of Human Rights as well as a member of the Permanent
Court of Arbitration. She has been a judge of the Estonian Supreme Court,
European law professor at the University of Tartu, deputy secretary general
on legislative drafting and head of the European Union law division of the
Estonian Ministry of Justice, president of the Consultative Council of Euro-
pean Judges and president of the International Federation for European law
as well as the Estonian Association for European law.

Elisabeth Lambert Abdelgawad

Elisabeth Lambert Abdelgawad is research professor at the CNRS in Human

Rights Law (SAGE, University of Strasbourg). She was the former senior
expert for France at the FRA and is currently co-director of the Euroculture
Master of Excellence. Among her many publications: The Execution of
Judgments of the European Court of Human Rights (2008, CoE pub.)

John Laws

Sir John Laws is a judge of the Court of Appeal for England and Wales. He
studied Classics at Oxford. From 1984 to 1992 he acted as counsel to the
British government in leading civil cases. From 1992 to 1998 he was a
member of the High Court of England and Wales.

318
 List of contributors

Angelika Nußberger

Prof. Dr. Dr. h.c. Angelika Nußberger M.A. is a judge at the European Court
of Human Rights elected on behalf of Germany. She is professor at Cologne
University where she taught public international law, German public law
and comparative constitutional law. Before being elected judge she had been
vice president of Cologne University, member of the Committee of Experts
on the Application of Conventions and Recommendations of the Interna-
tional Labour Organisation and substitute member to the Venice Commis-
sion for Germany. She was also one of the authors of the report of the In-
dependent Fact Finding Mission on the Conflict in Georgia instituted by the
EU.

Andreas Paulus

Andreas Paulus is professor of international and public law at the University

of Goettingen and justice of the German Bundesverfassungsgericht (First
Senate). He has published, inter alia, in UN law, domestic and international
human rights law, international humanitarian and criminal law, as well as
foreign relations law.

Michel Puéchavy

Michel Puéchavy is a lawyer at the Paris Bar and a member of the Institute
of Human Rights of the Paris Bar. Since 1986 he has served as a co-director
of the collection Droit et Justice. He is a member of the editorial board of
the « Revue trimestrielle des droits de l’homme » and a member of the In-
ternational Institute of Human Rights in Strasbourg.

Anja Seibert-Fohr

Prof. Dr. Anja Seibert-Fohr is director of the Institute for International and
European Law and teaches international law, human rights and constitu-
tional law at Göttingen University. She is a member of the UN Human Rights
Committee and formerly directed the Minerva Research Group at the Max-
Planck-Institute for Comparative Public Law and International Law. She has

319
List of contributors

published widely in international human rights, international and compara-

tive law.

Linos-Alexander Sicilianos

Linos-Alexander Sicilianos is a judge at the European Court of Human

Rights; associate member of the Institut de droit international; member of
the Curatorium of the Hague Academy of International Law; professor at
the University of Athens (on leave); former vice-president of the UN Com-
mittee on the Elimination of Racial Discrimination; and former member of
the Executive Board of the EU Fundamental Rights Agency; visiting pro-
fessor in a number of European Universities, Academies and Institutes; au-
thor of five monographs and numerous studies on public international law
and international protection on human rights.

Dean Spielmann

Dr. h.c. Dean Spielmann has been a judge of the European Court of Human
Rights since 2004. He was elected section president in 2011 and vice-pres-
ident of the Court in 2012, shortly before being elected as president of the
European Court of Human Rights in 2012. He studied law at the universities
of Louvain (Licencié en droit) and Cambridge (LL.M. in international law).
Before becoming a judge, he practised at the Bar of Luxembourg and held
teaching duties at the universities of Louvain, Luxembourg and Nancy. He
was also a member of the Advisory Commission on Human Rights (Lux-
embourg) and of the European Union Network of Independent Experts on
Fundamental Rights. Dean Spielmann is an Honorary Fellow of Fitzwilliam
College, Cambridge and an Honorary Professor of University College Lon-
don. He is also an Honorary Bencher of Gray’s Inn, London.

Mark E. Villiger

Mark E. Villiger is a judge at the European Court of Human Rights (since

2006), section president (since 2012); professeur titulaire at the University
of Zurich (Public International and European Law); Doctor of Law. He is

320
 List of contributors

author, inter alia, of the ‘Commentary on the 1969 Vienna Convention on

the Law of Treaties’ (2009, Martinus Nijhoff).

Derek Walton

Derek Walton OBE is a legal counsellor at the Foreign and Commonwealth

Office and the UK agent to the European Court of Human Rights. He was
chairman of the Council of Europe’s Steering Committee for Human Rights
and was awarded an OBE for services to human rights and diplomacy in
2013.

Almut Wittling-Vogel

Dr. Almut Wittling-Vogel is the representative of the German Federal Gov-

ernment for Matters Relating to Human Rights, agent of the Federal Republic
of Germany at the European Court of Human Rights and director for Human
Rights, EU Law and International Law at the Federal Ministry of Justice and
Consumer Protection in Berlin.

321