Case Watch: Judicial Activism at the European Court of Human Rights

For most of its existence the European Court of Human Rights has left the business of identifying and overseeing the corrective measures required by its judgments to another authority—the Council of Ministers (the executive body of the 47-member Council of Europe).

Over the last decade, however, this has begun to change; the court has become increasingly comfortable recommending, and in some cases ordering, the remedial measures that governments need to take to address breaches of the European Convention on Human Rights.

Article 46 of the European Convention, on the execution of judgments, gives the court the power to award both individual and general remedial measures, a power traditionally used infrequently and only in exceptional circumstances. The uptick in awards of Article 46 measures coincides with the introduction of the pilot-judgment procedure in 2004, under which the court addresses a group of cases dealing with a pattern of repetitive rights violations in a single country. By their nature, pilot judgments have involved identifying and proposing repairs for structural rights problems in those states where there are repetitive cases, thus lending themselves to general measures.

Beyond pilot judgments, the court has asserted that where a violation raised by a single application represents a persistent problem within the respondent state, the court has a duty to suggest the types of measures that must be taken to come into compliance with the convention. Even when there are no similar petitions before the court, the court may order general measures where it envisages a strong likelihood of reoccurrence.

Thus, some of the court's judges noted that on several occasions they found it necessary to help identify for the Committee of Ministers what type of remedial action was required by a judgment. Rather than be viewed as a usurpation of its role, the Committee of Ministers has welcomed the practice, even asking the court to identify underlying systemic problems and their source.

A prime example of the court’s general measures jurisprudence are the multiple cases lodged against Turkey concerning use of force and tear gas against demonstrators. By the time the court heard İzci v. Turkey in 2013, it already had held against Turkey in 40 cases concerning excessive use of force by police during demonstrations, and had well over 100 similar cases still pending. In its ruling, the court required Turkey to take measures to ensure respect by law enforcement officials of the right to peaceful assembly and to adopt clearer rules on the use of violence and weapons during demonstrations.

The primary aim of individual measures is to put the applicant in the position he or she would have been had the violation not occurred. The court typically awards individual measures where, by the nature of the violation, there is no real choice as to the appropriate measure to remedy the violation or where there is an urgent need to put an end to a continuing violation—essentially cases were delay in the implementation would exacerbate the original violation.

In Oleksandr Volkov v. Ukraine, the court found that there were no grounds to believe that the applicant, a Supreme Court judge removed from his post under dubious circumstances, would be retried in accordance with the convention. Therefore, instead of ordering that the state reopen the domestic proceeding, it instead ordered the government to immediately reinstate Mr. Volkov to his position.

Several trends in the court’s practice are apparent from our survey of recent cases involving Article 46 measures. 

Significantly, the court appears to no longer view Article 46 measures as extraordinary. This is evidenced by the fact that in early 2014, the court ceased reiterating its traditional stance that Article 46 measures were only awarded in “exceptional circumstances.” Instead the court feels that in certain circumstances it is “useful or indeed, even necessary” for it to indicate the specific measures states should take to remedy the violation.

The court has also begun to order more detailed measures, rather than broad suggestions for how the respondent state could comply with the judgment. It has also begun to impose its own time limits, typically within one year of the judgment, for states to comply with its awards.

Between 2013 and 2014, Article 46 measures were most often awarded where the court found violations of Article 3 (prohibition against torture) and Article 6 (right to a fair trial).  

Awards of individual measures for Article 3 violations included requiring the respondent state to protect the applicant against existing risks to his life and health; conduct an effective investigation; ensure that the applicant could remain in the territory; prevent the applicant from being re-arrested and detained; and to seek assurances that the state where the applicant was extradited to would not impose the death penalty.  

The court typically awards general measures for violations of Article 6 when there is a lack of clear and foreseeable procedures, or if domestic remedies are inadequate to alleviate the violation, thus creating a systemic problem. In these cases, the court has suggested that states fix the structural deficiencies by amending existing legislation or by adding new laws, but at times has required states to make reforms to the specific institutions responsible for the violation.

Although the court has played a more proactive role in the execution of judgments, the Committee of Ministers continues to bear the primary responsibility. This is particularly so when the court believes that the Committee is in a better place to provide specific recommendations, such as where there are complex domestic legal, political, and budgetary processes and numerous ways to remedy of the violation. It continues to be seen whether the court will eventually draw a clear line between its role and that of the Committee of Ministers, or whether the current creative interplay will continue.