The European Court of Human Rights supervising the execution of its judgments

Abstract

The European Convention on Human Rights (‘Convention’) provides that the Committee of Ministers shall supervise the execution of the European Court of Human Rights’ (‘Court’) judgments. This article aims to address the question whether, despite what the Convention provides, the Court is involved in supervising the execution of its judgments. Additionally, this article addresses the question what the Court does when it is engaged in this exercise. In order to answer these two questions, four aspects of the Court's practice that are linked to the execution process are examined. These are the four aspects of interest: just-satisfaction judgments under Article 41 ECHR, follow-up cases concerning individual measures, follow-up cases concerning general measures and the pilot-judgment procedure. The analysis of these aspects will lead to the conclusion that the Court indeed engages in supervising execution, but also that this does not mean that the Court is taking on the Committee's task and that supervising execution has not become in any way part of the Court's day-to-day work.

Introduction

To many, the choice of topic for this article, as is apparent from the title, may come across as odd, since the European Court of Human Rights (‘Court’) has ‘consistently ruled that it does not have jurisdiction to verify […] whether a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments’. ¹ This statement is in line with the European Convention on Human Rights (‘Convention’ or ‘ECHR’), which prescribes in Article 46(2) that the Committee of Ministers (‘Committee’) ‘shall supervise’ the execution of the Court’s judgments. ² The Court has confirmed that reviewing the execution measures adopted by the respondent State to secure the rights of the applicants is ‘a matter for the Committee’. ³ Moreover, the Committee’s newly gained power ⁴ to ask the Court whether a State has failed to execute a judgment ⁵ ‘seems to confirm’, according to the Court, that it cannot supervise execution. ⁶ By giving the Committee – and not the applicant, the Court or individual States – the power to institute infringement proceedings, the new procedure confirms the status quo: ⁷ the Committee supervises execution. ⁸

Despite what the Convention prescribes and what the Court maintains regarding execution, this article aims to address the question whether the Court is involved in supervising the execution of its judgments and, if so, what it does when engaging in this exercise. The Court is involved in supervising execution when it pronounces on the measures taken by the respondent State to execute a judgment or the lack thereof. The question is prompted by the already rather elaborate body of literature that describes that the Court increasingly endeavours ‘to exert influence over the execution of its judgments’, ⁹ by indicating in its judgments which execution measures the respondent State should take. ¹⁰ The current article wants to examine whether the Court has now gone a step further and also supervises the implementation of some execution measures. This descriptive question is connected to the debate between the Court’s Judges on the normative question, which is not the subject of this article, whether the Court should play a (more robust) role in supervising the execution of its judgments and in execution matters more generally, by, for example, ordering execution measures. ¹¹ The more general topic of this article – the execution of the Court’s judgments – fits in with the ever-greater emphasis that is placed on the immense importance of the full and prompt execution of the Strasbourg judgments. ¹²

This research builds on and elaborates on an article by Keller and Marti about the judicialization of the execution process. In this article, they, inter alia, identify four aspects of the Court’s procedural practice as part of which the Court intervenes in the post-judgement stage. ¹³ Like Keller and Marti, this article similarly looks into four such aspects, although the aspects are categorised here somewhat differently from how Keller and Marti categorise them. By examining these four aspects, this article constructs an answer to the question whether the Court is involved in supervising the execution of its judgments and, if so, what it does when engaging in this exercise. These are the four aspects of interest: just satisfaction judgments under Article 41 ECHR (Section 2), follow-up cases concerning individual measures (Section 3), follow-up cases concerning general measures (Section 4) and the pilot-judgment procedure (Section 5). These aspects have been selected because they are linked to the execution process. Therefore, if the Court would be engaged in supervising the execution of its judgment at all, it would do so in the context of these procedural practices. The focus on procedural practices as they emanate from the Court’s case-law, means that this article does not look into any informal influence that the Court may have on the execution process before the Committee. ¹⁴

Just satisfaction judgments under Article 41 ECHR

The Court reserves the question of just satisfaction in its judgment on the merits ‘if the question is not ready for decision’. ¹⁵ Such subsequent just satisfaction judgments are rare: only about two percent of the Court’s judgments solely concern just satisfaction, ¹⁶ many of which are about the right to the protection of property. ¹⁷ Keller and Marti propose that ‘dissociating the issue of just satisfaction […] from the judgment on the merits has […] enabled the [Court] to inquire into how the latter has been implemented’. ¹⁸ This Section elaborates on their findings.

Clearly, the Court can only comment on the execution measures if the respondent State took such measures, which happens in the minority of cases in which the question of Article 41 ECHR is reserved. These measures usually take the form of new proceedings before a domestic court to redress the violation found in Strasbourg, for example, by awarding compensation to the victim of the violation. The Court ‘reserves…the right to verify whether the outcome of [these] proceedings – and their length – satisfy’ Article 41 ECHR. ¹⁹ This statement is the logical consequence of the fact that the Court only needs to award just satisfaction if the national proceedings have not remedied the violation. The Court can conclude, for example, that the award of a domestic court is ‘comparable to the amounts awarded by the Court’ ²⁰ or that the domestic proceedings ‘have not redressed the violation’. ²¹ These examples demonstrate that the Court does not shy away from supervising execution measures in just satisfaction judgments, although the Court does so just because it is necessary to decide the question of just satisfaction.

In the just satisfaction judgment Cyprus v Turkey, the Court also commented on execution measures. ²² In its preceding judgment on the merits, the Court found that Turkey had committed various violations in northern Cyprus, including violations of the right to the protection of property, because Greek Cypriots were denied access to their property and to compensation. ²³ After the adoption of the judgment on the merits and before the Court adopted its just satisfaction judgment, the Court issued a decision in the case of Demopoulos and Others v Turkey. Greek Cypriots brought this case to complain about violations by Turkey of their right to the protection of property. ²⁴ The Court declared the complaint inadmissible, because Turkey had created an effective remedy in respect of the complaints. ²⁵ The Court remarked in the just satisfaction judgment in the inter-State case that its decision in Demopoulos and Others ‘cannot be considered […] to dispose of the question of Turkey’s compliance with’ the merits judgment in the inter-State case. ²⁶ Five partly concurring Judges had ‘difficulties’ with this remark, because the remark ‘seeks to extend the powers of the Court and runs counter to [Article 46(2) ECHR] by encroaching on the powers of the Committee’. ²⁷ This example goes to show that the Court may also comment on execution, even though this is not strictly necessary to decide the question of just satisfaction.

Follow-up cases concerning indvidual measures

In follow-up cases concerning individual measures, the applicant complains about the individual measures taken to execute a judgment to which he was a party or a lack thereof. Consequently, the Court may supervise the execution of a judgment when adjudicating such a case. The respondent State takes individual measures in response to the legal or factual situation in which the applicant found himself because of a violation. These measures include, for example, conducting a criminal investigation or securing contact between the applicant and his child.

As a rule, follow-up cases concerning individual measures are inadmissible ratione materiae, ²⁸ because they are ‘incompatible with’ Article 46(2) ECHR, as this provision prescribes that the Committee is responsible for supervising execution. ²⁹ Nevertheless, some applicants rely directly on this provision to complain that the State failed to execute the judgment. Sub-section 3.1 elaborates on the admissibility of these complaints. More commonly, the applicant relies on one of the substantive Convention rights in a follow-up case concerning individual measures. In response to such complaints, the Court has created a complex body of case-law with exceptions to the rule that follow-up complaints are inadmissible. Sub-section 3.2 discusses these exceptions. Finally, Sub-section 3.3 explains how the Court supervises execution measures when deciding an admissible follow-up case.

The admissibility of follow-up complaints concerning individual measures under Article 46 ECHR

In Emre v Switzerland (no 2), the Court declared the follow-up complaint that the State had committed a violation of Article 8 ECHR, taken together with Article 46 ECHR, admissible and found a violation of both provisions. ³⁰ Since this was the first and the last time that the Court declared a complaint alleging a violation of Article 46 ECHR admissible, ³¹ the question arises whether the judgment has remained the only of its kind, because Emre’s complaint was so exceptional, or, because the Court has returned to the rule that the applicants cannot invoke Article 46 ECHR. This question arises in particular, because the Court held previously that ‘it is very doubtful whether Article 46 § 1 may be regarded as conferring upon an applicant a right that can be asserted in proceedings originating in an individual application’. ³²

In Sidabras and Others v Lithuania, the applicants invoked Article 46 ECHR because ‘the State had not respected their rights, even after the Court had ruled in their favour’. ³³ The Court declared this part of the complaint inadmissible ratione materiae. In its reasoning leading up to this decision, the Court attempted to reconcile Emre (no 2) with its approach of declaring Article 46 ECHR complaints inadmissible by distinguishing the two cases. ³⁴ This attempt was unconvincing, ³⁵ because the Court failed to explain why it could find a violation of Article 46 ECHR in Emre (no 2), despite the task division between itself and the Committee. Moreover, the Court distinguished Sidabras from Emre (no 2) on incorrect and unconvincing grounds. The first reason to distinguish the two cases was that in Sidabras, unlike in Emre (no 2), the State had paid just satisfaction, ³⁶ but this is incorrect as Emre received just satisfaction almost two years before the Court adopted the follow-up judgment. ³⁷ Furthermore, the fact that a State has not yet paid just satisfaction is not a convincing reason to adjudicate a case under Article 46 ECHR, because it is the Committee’s task to verify if a State has paid just satisfaction as part of its task of supervising the execution of a judgment. ³⁸ The second reason to distinguish was that the complaint in Sidabras concerned a general measure and the complaint in Emre an individual measure. ³⁹ The Court did not explain why this difference is relevant and because the relevance of this difference is not obvious, this reason does not convince. The Court neither convincingly reconciled Emre (no 2) with its approach in other cases nor distinguished it convincingly from Sidabras and the Court has never again declared a complaint under Article 46 ECHR admissible. ⁴⁰ Therefore, it can be assumed that the Court sees Emre (no 2), albeit without admitting this, as a deviation from its case-law that it will not repeat. This deviation could occur probably because not all Strasbourg Judges agree that the Court should not play a role in supervising execution, as was also noted in Section 1 of this article. This assumption is also based on the fact that even Judges Raimondi and Tulkens, who voted with the majority in Emre (no 2) in 2011, ⁴¹ had difficulties with the remark of the Court in Cyprus v Turkey in 2014, as cited in Section 2. This implies that they also think that supervising execution is the Committee’s task, which would exclude adjudicating a case under Article 46 ECHR. Consequently, I will assume that the Court will declare complaints under this provision inadmissible.

The admissibility of follow-up complaints concerning individual measures under the substantive Convention rights

The exception to the rule that follow-up complaints concerning individual measures brought under one of the substantive Convention rights are inadmissible is that the applicant raises a new issue. ⁴² A new issue is, for example, a fresh examination of the applicant’s appeal, ⁴³ an entire new set of domestic legal proceedings ⁴⁴ or the conversion of an exclusion order from a permanent into a ten-year order. ⁴⁵ The reopening of domestic proceedings constitutes a new issue when it leads to, for example, a partial rather than a total prohibition on certain speech. ⁴⁶ For the admissibility of a follow-up complaint, the Court does not require, however, that the applicant’s factual situation has changed. It is sufficient that the domestic judges undertook a new balancing of interests in response to the first Strasbourg judgment. ⁴⁷ Even a refusal to review a domestic judgment constitutes a new issue, when the complaint concerns the ‘lack of fairness of the procedure followed’ and, more specifically, the errors in the reasoning of the domestic judges. ⁴⁸ The Court has declared a complaint about a refusal to revise a domestic judgment admissible, because the domestic judges relied on new grounds for their repeated refusal. ⁴⁹

A new issue exists in other circumstances as well: when the violation established in the first judgment continues to exist ‘during a certain period of time’. ⁵⁰ A continuing violation takes place, for example, when the applicant remains in detention despite a violation of the right to liberty and security. ⁵¹ In the follow-up case, the Court examines ‘the new periods concerned and any new complaints invoked in this respect’. ⁵² Even something that is continuing can therefore be a new issue for the purpose of admissibility.

A new issue does not exist if the applicant complains that the State failed to remedy a violation. ⁵³ This includes the complaint that an investigation conducted to execute the first judgment was not genuine ⁵⁴ and that a refusal to reopen meant that the violation has not been remedied. ⁵⁵ Complaints about a refusal to reopen are also inadmissible if the domestic judges simply restated, in a decision following a Strasbourg judgment, the reasoning that they relied on previously. ⁵⁶ Furthermore, these complaints are inadmissible if the applicant failed to comply with the domestic legal requirements for reopening ⁵⁷ and if domestic law does not make reopening possible, ⁵⁸ even when the domestic court’s judgment ‘is not wholly in compliance with the first Strasbourg judgment. ⁵⁹

In many follow-up judgments, the Court notes whether the Committee has terminated the execution proceedings in the first case, although this is ‘immaterial’ ‘[i]n so far as the fresh [application] raises a new issue’. ⁶⁰ Furthermore, the Committee’s continued or discontinued supervision is never decisive in establishing whether a new issue exists, ⁶¹ but rather seems to strengthen the conclusion on this point that the Court reaches regardless of whether the Committee is still involved. To illustrate, when the Court concludes that a new issue exists, the fact that the Committee has closed its supervision without awaiting the outcome of fresh domestic proceedings may reinforce that conclusion. ⁶² When the Court determines that there is no new issue, it can note, additionally, that the Committee closed its supervision ⁶³ (whilst taking into account the outcome of fresh domestic proceedings). ⁶⁴ The fact that the Committee, when ending supervision, made a statement as to what was required of the domestic judges that ‘may not be clear’ according to the Court, will not change the Court’s conclusion that there is no new issue. ⁶⁵ This also goes to show that the Committee’s actions are not relevant to the determination of whether there is a new issue.

In short, a new issue exists if the applicant does not complain that the State failed to execute the first judgment. Those domestic decisions that result in a new outcome or that are based on new grounds constitute a new issue. A refusal to review a domestic judgment is a new issue when the complaint concerns errors in the reasoning or any new grounds on which the domestic judges relied; one cannot complain about the refusal itself. Additionally, one cannot complain about the refusal if the domestic judges did not rely on new grounds, if one did not fulfil domestic law criteria for reopening or if domestic law does provide for reopening. A new issue also exists when the violation is continuing. Whether the Committee is still supervising the first judgment is not decisive.

The foregoing implies that it is apparently no longer ⁶⁶ required that the applicant’s factual situation has changed, ⁶⁷ although the Court sometimes alludes to new facts in connection with the admissibility of a follow-up complaint. ⁶⁸ A refusal to reopen, albeit on new grounds, for example, does not change the applicant’s factual situation. Because the Court does not require new facts, the first and the follow-up complaint can be ‘essentially identical’ ⁶⁹ and the Court has much discretion to declare a follow-up complaint admissible. ⁷⁰ Consequently, the distinction between different follow-up cases concerning individual measures is, according to the Court, ‘not always clear-cut’ ⁷¹ and the corresponding case-law is, according to some Judges, ‘ambiguous and partly contradictory’. ⁷² To illustrate, one can wonder why an investigation that took place to execute the first judgment is not a new issue, whereas the reopening of the applicant’s case that took place for the same purpose is a new issue.

Supervision by the Court

This Section discusses the Court’s supervision of execution when deciding admissible follow-up cases. For this purpose, the follow-up judgments are divided into three categories.

The first category consists of judgments concerning a continuing violation. In these judgments, the Court engages clearly in supervising execution, since executing a judgment requires ending a violation. ⁷³ Therefore, a failure to end a violation is a failure to execute a judgment and an execution problem as well. Furthermore, the Court finds a violation in the follow-up case because of the lack of execution measures. In one case, the Court dealt with, for example, the applicants’ continued detention, despite a violation of the right to liberty and security. ⁷⁴ The continued detention is an execution problem, especially considering that the Committee suspended its examination of the first case because the Court would decide the follow-up complaint. ⁷⁵ If the Court would not be handling an execution problem, the Committee would not have to suspend its involvement. The Court seems to disagree that it supervises execution when adjudicating on continuing violations. In a case about the continued non-enforcement of a domestic judgment, the Court explained that, ‘in so far as the applicant’s complaint concerns’ the period following the first judgment, this matter falls ‘outside the scope of supervision exercised by the Committee’. ⁷⁶

In the second category of follow-up cases, the Court verifies whether the domestic judges ruled ‘consistent with the “conclusions and spirit”’ of the first Strasbourg judgment. ⁷⁷ The fresh domestic judgment is the execution measure that is taken to execute the Strasbourg judgment and, therefore, by examining that judgment, the Court engages in supervising execution. As the domestic judges enjoy a margin of appreciation in their interpretation of the Strasbourg judgment, the Court does not ‘express a position on the validity of’ their interpretation. ⁷⁸ Instead, the Court satisfies itself that their ‘judgment was not arbitrary, that is to say that [they] […] did not distort or misrepresent the [first] judgment’. ⁷⁹ The Court’s review, therefore, is deferential, because the domestic judges have a broad margin of appreciation and because the Court only establishes if the domestic judges’ interpretation was arbitrary. In Emre v Switzerland (no 2), the Court exceptionally required more of the domestic judges: that their assessment of the first judgment was ‘complete and convincing’. ⁸⁰ On top of that, the Court explained what would have been ‘the most natural execution of its [first] judgment’. ⁸¹

In the third category, the Court does not examine the domestic judgment in light of the first Strasbourg judgment specifically, but in light of the Convention requirements generally, as they can be derived from its case-law. For example, when the Court found, in its first judgment, a violation of Article 10 ECHR because of the applicant’s dismissal from his job it can examine subsequently whether the second dismissal also violates that provision. ⁸² Although the Court uses a different benchmark than in the second category of follow-up cases, the Court is also engaged in supervising the implementation of the execution measure. This does, however, not necessarily imply that the Court will pronounce itself on which measure should have been taken. In, for example, the aforementioned Article 10 ECHR case, the Court thought it unnecessary to establish whether the first judgment required reinstating the applicant in his position. ⁸³ In another case, however, the Court did ‘ascertain whether, in view of the importance of the execution of its judgments […], the respondent State had a positive obligation to take the necessary measures to allow the television commercial in issue to be broadcast following the Court’s finding of a violation of Article 10’ ECHR. ⁸⁴ Put differently, the Court established which execution measure the State had to take and found a violation because the State had failed to take that measure. ⁸⁵

When declaring a follow-up complaint admissible, the Court sometimes admits that the complaint ‘incontrovertibly concerned the execution of the’ first judgment. ⁸⁶ The above analysis confirms this: depending on in which category the follow-up case falls, the Court engages in supervising execution in a more or less deferential manner. ⁸⁷

Follow-up cases concerning general measures

Other follow-up cases concern the effect of general execution measures on the applicant. These measures often take the form of amending domestic legislation, but may also require taking administrative measures to, for example, ensure access of prisoners to documents necessary for bringing a case before the Court. ⁸⁸ General measures do not only affect the applicant in the first case, but also other persons. Therefore, it is not necessary that the applicant who brought the first case also brings the follow-up complaint. The admissibility of general follow-up cases is only an issue if the follow-up complaint is brought by the same applicant as the one who brought the first case. If that is the case, the rules for the admissibility of follow-up cases as discussed in Section 3.2 apply. For the purpose of examining the Court’s involvement in execution when deciding on cases in which general measures are at stake, six follow-up cases in which the Court commented on (the lack of) general measures are discussed.

In Von Hannover v Germany (no 2), the Court explained that ‘it is not its task […] to examine’ whether Germany had ‘satisfied its obligations under Article 46 […] regarding execution’ of the first judgment, ‘as that task is the responsibility of the Committee’. ⁸⁹ Additionally, the Court only neutrally took ‘note of the changes made by’ the domestic judges to their case-law ⁹⁰ and it refused to review the domestic case-law – the execution measure – ‘in abstracto’. ⁹¹ Instead, the Court established whether the application of the case-law to the case of the applicants infringed the Convention. ⁹² Still, the Court observed that ‘the national courts explicitly took account of’ its case-law and that one court had undertaken ‘a detailed analysis’ of said case-law. ⁹³ The Court thus signalled is approval of the domestic judgments. The Court’s finding that no violation had taken place implied that the changes in the domestic case-law complied with the Convention. ⁹⁴ Therefore, although the Court’s analysis was based on the case of the applicants, by deciding their case, it approved a general execution measure. ⁹⁵

In another German follow-up case, Bergmann v Germany, the Court welcomed ‘the extensive measures which have been taken […] on judicial, legislative and executive levels with a view to’ ensuring respect for the Convention. ⁹⁶ Germany took these measures in response to previous judgments finding Convention violations. Again, the Court signalled its approval of the general measures. Subsequently, the Court concluded that no violation had taken place. ⁹⁷ In the absence of the execution measures, the Court would not have come to this conclusion. Therefore, the Court hinted that the execution measures were up to standard, again by reviewing the individual complaint.

In Sidabras and Others v Lithuania, the Court noted that the State had not abrogated the law that had caused violations in previous cases. ⁹⁸ The Court then remarked that ‘the abrogation of [that law] must have constituted the most appropriate general measure […] to remedy the domestic legal situation forming the basis of the Court’s’ previous judgment. ⁹⁹ This remark makes clear how the previous judgment should have been executed. Moreover, the finding of a violation because of the application of the unchanged law to the applicant implies that Lithuania had not taken the general measures required to execute the previous judgments. ¹⁰⁰ The findings in this individual case, like in the German judgments, therefore, can be used to understand whether a previous judgment has been executed. Like in Von Hannover (no 2), the Court demonstrated its awareness of the Committee’s task by observing that ‘it is for the Committee […] to supervise the execution of such general measures’. ¹⁰¹

The Court sometimes has to review general measures more directly than in the above three cases to solve the issue of an individual violation. In A.S.P.A.S. et Lasgrezas v France for example, the question was whether the new domestic-law provisions, adopted to execute a previous judgment, struck a fair balance between the applicant’s right and the requirements of the general interest. ¹⁰² The Court concluded that, considering the margin of appreciation of the State, this balance was struck and that no violation had taken place. ¹⁰³ Thus, the Court approved the new domestic-law provisions. ¹⁰⁴

When confronted with many follow-up cases concerning the excessive length of judicial proceedings in Italy, the Court simply found that there was a ‘continuing situation that has not yet been remedied’. ¹⁰⁵ The Court thus pointed out clearly that the previous judgments had not been executed by taking general measures. In a posterior follow-up judgment, the Court dealt with cases of applicants who had used the domestic remedy created for the length of proceedings problem. This remedy also violated the Convention. ¹⁰⁶ The Court, therefore, concluded that the execution measure did not live up to the Convention standards.

Finally, the three cases against Russia of Isayeva, ¹⁰⁷ Abuyeva and Others ¹⁰⁸ and Abakarova ¹⁰⁹ concern the same assault of the security forces. In the first judgment, the Court found a violation of, inter alia, the right to life, because the authorities had failed to investigate the assault effectively. ¹¹⁰ Five years later, the Court found the same violation in Abuyeva and Others. ¹¹¹ In this judgment, the Court examined the investigation that was carried out after Isayeva and it concluded that the investigation ‘had suffered from the exact same defects as those identified in the first set of proceedings’. ¹¹² Another five years later, the Court concluded in Abakarova that ‘no previously identified defect of the investigation has been resolved’. ¹¹³ In the two follow-up cases, the Court’s conclusions about the investigation came down to establishing that the required general measure – conducting an investigation in line with the Convention requirements – had not been taken.

The discussion of the follow-up cases concerning general measures reveals that the Court may express its approval of the measures that the domestic authorities took to execute a previous judgment, albeit in general terms. Alternatively, the Court may, again in general terms, tell the State how a judgment should have been executed or it may find that a previous judgment has not been executed. In the follow-up judgment, the Court may rely for its examination on both its case-law in general and the first judgment or mainly on the first judgment. Furthermore, it is clear that, by deciding an individual application, the Court may evaluate more or less directly the general execution measure. Therefore, the individual case cannot always be seen in isolation from the general measures that the State took. The foregoing means that the Court is involved in supervising execution in general follow-up cases, in a direct or indirect manner. In two cases, the Court demonstrated its awareness of the Committee’s role in this regard and the Court remains careful not to review general measures in abstracto.

Pilot judgments

In a pilot judgment, the Court identifies a structural problem and indicates which general measures the State must take to remedy that problem within a certain time limit. ¹¹⁴ According to the Court, its role in the pilot-judgment procedure (‘PJP’) is ‘essentially limited’ to these two elements. ¹¹⁵ Consequently, it is the Committee’s task ‘to supervise the execution of the judgment’. ¹¹⁶

Nevertheless, the Court adopts follow-up decisions to decide whether it can declare similar applications inadmissible for a failure to exhaust a newly created domestic remedy. ¹¹⁷ Alternatively, the Court can strike such applications out, because ‘the matter has been resolved’, ¹¹⁸ which is the case if the domestic remedy no longer justifies further examination of similar applications. ¹¹⁹ The Court, therefore, assesses compensatory remedies, which ‘provide for damages to persons subjected to the violations caused by the problem’. ¹²⁰ Sometimes the Court’s assessment is rather elaborate ¹²¹ and it may also look at how a remedy operates in practice. ¹²² More commonly, however, the Court decides based on the relevant new law as such and accepts the remedy even though the domestic courts have not yet established ‘any stable practice’. ¹²³ In these circumstances, the Court usually adds that its ‘position may be subject to review […] depending […] on the domestic courts’ capacity to establish consistent case-law […] in line with the Convention’. ¹²⁴ Exceptionally, the Court reviews its position and concludes that the domestic case-law is not Convention compliant. ¹²⁵ In other cases, the Court concludes already in its first follow-up ruling that the remedy is not up to scratch. ¹²⁶ When the Court decides after the Committee closed its supervision of a pilot judgment, the Court will follow the Committee and approve the remedy without any reservation. ¹²⁷ In cases where the Court cannot rely on a resolution of the Committee, which is usually the case, the Court relies on its case-law and the pilot judgment to evaluate the general measures. ¹²⁸

The situation regarding preventive remedies, which prevent future violations by solving the structural problem rather than remedy past violations, is different. In many pilot judgments, the Court is already less concerned with preventive remedies than with compensatory remedies, as it does not always order the former in the operative provisions. ¹²⁹ Comparably, in the follow-up decisions, the Court usually does not supervise the execution of preventive remedies, ¹³⁰ probably because this is not necessary to take an inadmissibility or strike-out decision. Another reason may be that the Committee is ‘better placed and equipped to monitor’ preventive remedies, because structural problems ‘are large-scale and complex in nature’ and ‘prima facie require the implementation of comprehensive and complex measures’. ¹³¹ At most, the Court may regret that no preventive remedy is in place, ¹³² but this finding has no consequences for its findings in the individual case.

As noted, the Court may set a deadline for the adoption of remedial measures. Since the States often fail to abide by the deadline, they frequently request an extension from the Court. ¹³³ In one judgment, the Court held that ‘this was a matter which should be taken up with the Committee’. ¹³⁴ If the Court really is of this opinion, then it often took on the Committee’s supervisory task, because, it did grant requests for an extension of a deadline in other PJPs. ¹³⁵

In conclusion, the PJP has ‘added a new dimension’ to the Court’s task, ¹³⁶ because the Court has become involved in supervising the execution of compensatory remedies. ¹³⁷ By deciding on the requests for an extension of the deadline for taking execution measures, the Court also is involved in execution matters. The Court’s involvement does not mean that it supervises the same aspects of execution as the Committee. After the Court approves the compensatory remedy, often without knowing how it functions, the Committee will usually continue to supervise how the remedy functions. ¹³⁸ Furthermore, unlike in the case of compensatory remedies, the Court does normally not supervise the execution of preventive remedies. Moreover, the Court will follow the Committee when the latter accepted the implemented execution measures.

Conclusion

This article set out with the aim of examining whether the Court is involved in supervising the execution of its judgments. The analysis of the four aspects of the Court’s procedural practice has demonstrated that the Court engages in supervising execution when dealing with those aspects, albeit in different ways, as is explained below. Therefore, even though the Court has held repeatedly that it does not have jurisdiction to engage in this exercise, it verifies occasionally whether a State complied with its judgment. As Malinverni put it, some cracks have appeared in the wall separating the Court’s and the Committee’s task. ¹³⁹

However, these cracks do not mean that the Court is encroaching on the Committee’s task. On the contrary, when reviewing general measures, the Court may explain that it is aware of the Committee’s role and, in the PJP, the Court follows the Committee when possible and leaves the matter of preventive remedies wholly to the Committee. Furthermore, in follow-up cases concerning individual measures, the Court always carefully checks whether a new issue exists in order to avoid that it does the Committee’s job.

Moreover, supervising execution has not become in any way part of the Court’s day-to-day work. ¹⁴⁰ The situation is the opposite: the procedural practices as part of which the Court supervises execution measures are rare occurrences in the Court’s procedural practice and are outnumbered by far by judgments in which none of the four procedural practices play any role at all. Consequently, the Court supervising execution is a rare occurrence. Therefore, there is certainly room for more involvement of the Court in execution matters, should the unlikely result of the debate between the Judges as to the desirability of increasing such involvement be that this is indeed desirable. ¹⁴¹

When the Court supervises execution, this is usually the inevitable consequence of what a procedural practice requires it to do. To illustrate, the Court must supervise execution to establish whether it has to award compensation in a just satisfaction judgment. The Court may pronounce itself on execution in a follow-up case concerning general measures, because this is necessary to ‘solve’ the question of an individual violation. In the PJP, the Court must review compensatory measures in order to establish whether it can declare the complaint inadmissible or strike it out for a failure to exhaust domestic remedies. Sometimes, however, the Court remarks on execution, even though this is not strictly necessary to decide the case. This happened when the Court added the remark that was discussed in Section 2 in Cyprus v Turkey and this also happens in some follow-up cases concerning general measures. Furthermore, one could argue that the Court’s involvement in follow-up cases concerning individual measures is unnecessarily far-reaching, because the applicant’s factual situation need not to have changed for admissibility. If the Court would again require this, as some Judges propose, ¹⁴² its involvement in supervising execution would decrease in one respect.

This article also aimed to examine what the Court does when supervising execution. This will be explained by outlining what the Court supervises, which benchmarks it uses for supervision and the manner in which it supervises.

In just satisfaction judgments and in some individual follow-up judgments, the Court assesses individual measures. Additionally, in follow-up cases concerning general measures and in pilot judgments, the Court supervises the implementation of general measures, whilst limiting itself to reviewing compensatory measures in pilot judgments. In short, what the Court supervises depends on the procedural practice of interest.

The benchmark that the Court relies upon differs. In just satisfaction judgments, the Court uses Article 41 ECHR. In follow-up cases concerning individual measures, its benchmark is either its first judgment or its case-law more in general and, in follow-up cases concerning general measures, the Court relies mainly on the first judgment or on its case-law in general and the first judgment as well. In the course of the PJP, the Court relies on both its pilot judgment and its case-law in general. This enumeration of benchmarks demonstrates, that, although the Court is engaged in supervising execution, it does not use Article 46(1) ECHR as such as its benchmark, ¹⁴³ but oftentimes its previous judgment.

The manner of the Court’s supervision differs as well. In just satisfaction judgments, the Court examines the execution measures fully and directly. Depending on the category of follow-up case concerning individual measures, the Court’s review is more or less deferential. In follow-up cases concerning general measures, the Court will only review the execution measure in a general fashion and sometimes only indirectly through its findings regarding the individual complaint. Compared to follow-up cases concerning general measures, the Court supervises the general measures in the PJP in more detail and more directly, although it remains quite deferential. Again, depending on the procedural aspect one looks at, the Court’s manner of supervision differs.

This article has shown that and how the Court sometimes supervises the execution of its judgments, even though the Court avoids admitting this. Rather than refusing to admit it, it may be easier for the Court to explain why it is sometimes unavoidable to supervise execution measures more or less directly. Additionally, the Court could point out that its occasional engagement in execution does not necessarily mean that it copies the Committee’s task. Such explanations better reflect reality and are, therefore, more convincing than denying what happens in practice. These explanations also help avoid that the Court has to construct a, at times, rather artificial ‘new issue’ in individual follow-up cases. The proposed approach would also mean that, if the Court cannot justify its involvement as unavoidable and as different from the Committee’s work, it should probably reconsider whether it really needs to comment on execution matters.