Implementation of the European Court of Human Rights' Judgments Concerning National Minorities or Why Declaratory Adjudication Does Not Help
Office of the Council of Europe Commissioner for Human Rights
December 4, 2011
ESIL 2011 4th Research Forum
Even though the European Court of Human Rights has attached an undeniable importance to the protection of national minorities through its case law, there have been particular groups of repetitive judgments that concern national minorities. These have demonstrated a serious difficulty on the part of the Court to effectively influence member states’ law, policy and practice. The present paper focuses on a number of such cases coming from three southeast European states: Bulgaria, Greece and Turkey. The author observes that the traditional declaratory method of adjudication, which has been followed so far by the Court in these cases, has not aided the rapid, full and effective execution by states of the relevant judgments. A review of the work of the Committee of Ministers, the political and decision-making body of the Council of Europe supervising the execution of the Court’s judgments, also demonstrates the Committee’s inability to exert a substantial, decisive influence in this area so far. The paper underlines the importance of the Court’s adjudicative methodology in the process of implementation of its judgments, and presents three major jurisprudential techniques the Court is currently developing: pilot, quasi-pilot and ‘supportive’ judgments, aimed at guiding European states in their efforts to effectively redress long-standing, systemic dysfunctions in law and practice. The author proposes a strategic overhaul of the Court’s adjudicative approach towards national minority cases. This may be based on the pilot and quasi-pilot techniques in particular as well as on certain interesting case-law concerning mainly members of the Kurdish minority in Turkey, which may be systematically developed in order to enhance the effectiveness of the protection of national minorities in Europe.
Number of Pages in PDF File: 29Accepted Paper Series
Date posted: December 6, 2011
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