Embedded Files
Team Members: A. Brosso, I. de Lira and D. Vassor*
*Note: The team members contributed equally and are listed in alphabetical order.
ECtHR_SP.pdfInfographic
Infographic
Please look at the infographic for the topic explored by the team.
Podcast
Podcast
Please listen to the team's podcast with Google Chrome. The transcript can be found here.
ECtHR podcast.m4aAdvocacy Letter
Advocacy Letter
Please read the team's letter to the President of the ECtHR, Robert Spano.
11_08_22 Letter Advocacy Project Final Draft.pdfBlog Post
Blog Post
Strengthening ECtHR Implementation
The ECtHR serves as the principal judicial organ of the Council of Europe (COE). The COE is an international organization designed to protect the human rights of all citizens living in the 47 member states. The ECtHR enforces the European Convention of Human Rights (ECHR), an international treaty outlining protocols to secure fundamental freedoms of all people (ECHR 2022a).
What is the European Court of Human Rights?
What is the European Court of Human Rights?
Following World War II, the ECtHR was established in 1959, with the objective to meet new challenges and protect democracy. Acting as the principal judicial organ of the Council of Europe (COE),the ECtHR is an international court designed to protect the human rights of all 830 million citizens living in the 47 member states. The ECtHR enforces the European Convention of Human Rights (ECHR), an international treaty outlining protocols to secure fundamental freedoms of all people, such as right to life and expression, while prohibiting offenses like slavery (ECHR 2022a).
The Problem in Judgments Enforcement
The ECtHR reviews thousands of individual or state violations of the ECHR each year. If the court finds there is a violation present, they deliver a binding judgment on all member states, enforced by the Committee of Ministers. When a violation affects a large number of citizens, the state is mandated to amend legislation to prevent a similar violation in the future. However, because ECHR judgments are subsidiary to states agendas and state sovereignty, the ECtHR jurisdiction does not extend to domestic institutions and therefore cannot override and change domestic laws in violating states, they can only make recommendations. States ultimately choose to act in their own interest within the bounds of their agreement with the international organization.
Pecuniary and non-pecuniary financial reparations set by the court include
individual measures such as publishing court rulings in national newspapers, striking victims' names from official records, reopening cases at the domestic level, as well as general measures that prevent repeat abuse. Therefore, the most popular judgment of the court requires states to pay financial reparations, known as just-satisfaction. Just-satisfaction is used as a tool to encourage state compliance by making noncompliance costly through heavy fines. However, this has led to a culture of states “paying-off” their violations, instead of legislative reform, and thousands of repeat cases.
In summary, the problem with judgments enforcement is that the Court’s judgments are most often just-satisfaction and have inherently political consequences that may not be in line with a state’s domestic agenda. The Court’s sole reliance on just-satisfaction does not require or lead to legislative change within the violating states (Cary Sims, 2004). The ECtHR is facing an increasing number of repeat violations because of state non-compliance.
The ECtHR for years have settled judgements through the means of just-satisfaction. As regarded in the graphic above, countries like Turkey have continued to neglect their human rights violations and have settled to pay the just satisfaction. The issue lies as they and other countries bypass the payment through just-satisfaction, only to commit these human rights violations once more.
Figure 1. Total ECHR Judgements by country 1959 to 2011 (Breene, 2016)
Why is State Compliance Necessary?
Why is State Compliance Necessary?
State compliance means that the bodies within the state align with the political culture of the ECtHR. Domestic institutions abide by the protocols that are directly influenced by the human rights agenda of the ECtHR Convention, thus avoiding repetitive subrogation to the international courts. Once this norm is domestically institutionalized, other states within the European sphere are encouraged to do the same. Further, the ECtHR can be identified as an example to encourage other states outside the ECtHR to comply with international courts.
Figure 3. Average number of ECtHR non-compliance Judgements per year (Panke, 2020)
This figure shows the average number of ECtHR non-compliance per year from 1959 to 2020. In the last 2 decades non-compliance has been up as a result of protocol No. 11 being introduced in 1998, allowing applicants to bring their case directly to the court. Autocratic governments in this case saw more violations be filed against them and in turn did not comply with the ECtHR’s judgements.
Figure 2. Pending Applications Allocated to a Judicial Formation (ECtHR, 2022)
State compliance is important and necessary because without it, organizations like the ECHR are expected to work on an overwhelming amount of cases that can be prevented if the state has the right motivations to implement new legislation and preventative measures. This graphic shows the amount of pending applications as of September 16, 2022, with repeat violators such as Ukraine, Turkey and Russia displaying their place as the majority.
Our Proposed Solution
Our Proposed Solution
Shaping the political climate of domestic institutions regarding human rights, while also strengthening domestic institutions’ roles as watch dogs helps oversee the implementation of compliance within ECtHR standards (Hillebrecht, 2012). With the addition of robust domestic institutions, the court no longer assumes the responsibility of overseeing implementation. Real change comes from within a state and its political culture rather than from the weak guidelines of an independent organization (Hillebrecht, 2012).
We propose a bottom-up implementation strategy to move away from enforcement by just-satisfaction. The idea of bottom-up implementation refers to the ECtHR’s introduction [SL1] of human rights, which focuses on education and influencing civil society by using NGOs and political/educative actors. Examples[SL2] of these efforts might include changing curriculum, creating networks between state and non-state actors and providing human rights state actors with sufficient resources while keeping in mind their political attitudes.
More specifically, the task of International Organizations (IO’s) within the new guidelines of the ECtHR will be to lend additional enforcement towards disputing states. Through our newly enforced plan of the inclusion of NGO’s and other civil society actors, we wish to ensure that states within the international system are receptive towards new proactive measures. Our measures are guided towards the removal of just-satisfaction; while additionally, IO’s can engage in community outreach efforts, hold conferences in support of the new guidelines, and aiding in prevention of any further international human rights violation.
Sources
Sources
Cary Sims, J (2004) Compliance Without Remands: The Experience Under the European Convention on Human Rights, 36 Ariz. St. L.J. 639,. https://core.ac.uk/download/pdf/303905778.pdf
The ECHR in 50 questions - European Court of Human Rights (ECHR 2022). European Court of Human Rights. (n.d.). Retrieved October 11, 2022, from https://www.echr.coe.int/Documents/50Questions_ENG.pdf
The European Convention on Human Rights - A Living Instrument. European Court of Human Rights (ECHR 2022a ). (n.d.). September 2022, from https://www.echr.coe.int/Documents/Convention_Instrument_ENG.pdf
Hillebrecht, C. (2012). Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights. Human Rights Review, 13, 279-301.
Panke, Diana. (2020). The European Court of Human Rights under scrutiny: explaining variation in non-compliance judgments. Comparative European Politics. 18. 10.1057/s41295-019-00157-6.
Breene, Heath (2016). The European Convention on Human Rights: What it is and why it matters to you. World Economic Forum. (n.d.)., https://www.weforum.org/agenda/2016/07/european-convention-on-human-rights-what-it-is-and-why-it-matters-to-you/
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