A Comparative View on the Execution of Judgments of the European Court of Human Rights

EUROPEAN COURT OF HUMAN RIGHTS, REMEDIES AND EXECUTION OF JUDGMENTS, pp. 1-23, T. Christou, J.P. Raymond, eds., BIICL, London 2003

23 Pages Posted: 27 Jul 2011

See all articles by Tom Barkhuysen

Tom Barkhuysen

Leiden University - Leiden Law School

Michiel L. van Emmerik

Leiden University - Leiden Law School

Date Written: 2005

Abstract

While the general effect of the European Convention of Human Rights (ECHR or Convention) on national law has been the topic of much research, little attention has been paid to the execution of individual judgments of the European Court of Human Rights (ECtHR or Court). With regard to the execution of judgments, two levels can be distinguished. The first level is the execution of the judgment in the individual case. Which remedies are offered to the applicant who has taken the long road to Strasbourg and has finally-mostly after many years-won his or her case? Does the applicant see any improvement in his or her legal position? Does he or she obtain real reparation? The second level is State compliance in a more abstract or general sense. What are the more general effects of judgments in which the Court finds a violation of the Convention? In other words: which measures does the contracting State have to take in order to prevent future violations in similar cases? Proper execution of Strasbourg judgments is highly important; both for the applicant who has won his or her case, and for the development of the national legal order concerned, in order to prevent future violations. The international control over the observance by States of human rights treaties by means of individual applications does not only aim at general effects (recours objectif), the control also aims at 'doing justice' in individual cases (recours subjectif). Therefore the execution of Strasbourg judgments deserves much more structural attention than it has received so far.

Important questions to be answered are: (a) how Strasbourg judgments are implemented in the various national legal orders of the Member States of the Council of Europe, (b) whether there is a need to improve this implementation, and if so, and (c) how such improvement can be achieved. In this respect, it is also important to determine which remedies are - or must be available to third parties - that is, those persons whose cases were not decided in Strasbourg but where a violation of the Convention has nevertheless occurred, as may be concluded from a similar or parallel case that has been decided inStrasbourg.

This paper will deal with the execution of Strasbourg judgments, both in individual cases and in a more general sense, where the prevention of future violations is concerned. This will be done from a non-United Kingdom perspective. Without going into the details of the practices of the various Council of Europe States, we will try to outline some general characteristics and trends with regard to the execution of Strasbourg judgments. In doing so-witness our choice of examples used-we put in evidence our Dutch background. Yet the Dutch examples also illustrate the problems and solutions possible in other Council of Europe States. The aim of this chapter is to provide a basis for further research and, possibly, improvements in (State) practice with regard to the execution of ECtHR judgments.

Keywords: ECtHR, execution, judgments, implementation, remedies, violation

Suggested Citation

Barkhuysen, Tom and van Emmerik, Michiel L., A Comparative View on the Execution of Judgments of the European Court of Human Rights (2005). EUROPEAN COURT OF HUMAN RIGHTS, REMEDIES AND EXECUTION OF JUDGMENTS, pp. 1-23, T. Christou, J.P. Raymond, eds., BIICL, London 2003, Available at SSRN: https://ssrn.com/abstract=1896160

Tom Barkhuysen (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

Michiel L. Van Emmerik

Leiden University - Leiden Law School ( email )

P.O. Box 9520
Leiden, 2300 RA
Netherlands

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