NGOs, National Human Rights Institutions: Crucial intermediaries in the execution of ECtHR judgments?

F39762DE-8C0A-4BCD-B08A-8863C410B927Elif Erken

‘The lack of implementation of the D.H. judgment deeply concerns the three submitting organizations…’. This sentence is taken from a Rule 9 Communication submitted by three NGOs to the Committee of Ministers, the body that supervises the execution of judgments of the European Court of Human Rights (hereafter: ECtHR or Court). It is illustrative of the purpose of Rule 9 Communications: the submitting actor(s), which may be NGOs and National Human Rights Institutions (NHRIs), can provide the Committee of Ministers with their perspective on how a State is progressing with the execution of a judgment of the ECtHR. As such, this Rule 9 provides a crucial opportunity for NGOs and NHRIs to get involved in the execution process of the Court’s judgments. It is therefore striking that over the years, across the board, little attention has been devoted to these Rule 9 Communications. This appears, however, to be changing as the possibilities offered by this Rule 9 are getting more traction  (see for instance the new page of the Execution Department). Rightly so, as Rule 9 Communications may play a valuable role in helping ensure the execution of judgments of the ECtHR. In this blog post, I offer a first exploration of Rule 9 Communications, thereby showcasing their potential and advocating their use by NGOs and NHRIs.

Why would it be useful to engage NGOs and NHRIs in the execution process of ECtHR judgments? In this respect, it is important to point out that the European Convention on Human Rights (hereinafter: ECHR) system is troubled by inadequate execution of the judgments rendered by the Strasbourg Court. The judgments of this Court are of little value unless they are executed, which needs to be done by the authorities of the State the Court has found in violation of the Convention. As in practice, however, such execution is often flawed or delayed it is no surprise that scholars and practitioners alike are exploring different avenues to address these problems. In this light, it is worth noting that both NGOs and NHRIs are known to fulfil important roles on the national level when it comes to the domestication of international human rights law. Accordingly, it is interesting to then consider if these actors can fulfil a similarly important role when they are involved in implementation efforts on the international level.

Presently, the formal way for these actors to be involved on the international level in the supervision process of ECtHR judgment is through submitting Rule 9 Communications to the Committee of Ministers. But what exactly are Rule 9 Communications? Essentially, Rule 9 of the Rules of the Committee of Ministers provides a competence for NGOs and NHRIs to participate in the process of judgment execution by submitting observations and information that the Committee of Ministers may consider in reviewing the steps that have been taken, or will be taken, by the State that has to execute a particular judgment. The online database on the execution of ECtHR judgments that, among other things, collects Communications submitted in respect of judgments pending execution, shows that both NGOs and NHRIs make use of this possibility offered by Rule 9. Here, it can be seen that from the introduction of Rule 9 in the Committee’s Rules in 2006 to August 2019, 641 Communications have been submitted by NGOs and NHRIs combined (though a further study of the Communications shows that NGOs submit more frequently than NHRIs). More specifically, the 2018 annual Committee report on the execution of judgments shows that between 2011 and 2017, the number of Communications ranged from 47 to 90 Communications per year. The European Implementation Network, a platform that works with NGOs from across Europe to implement judgments from the ECtHR, has reported that the number of Rule 9 Communications submitted in 2019 has, at the time of writing, already exceeded the number 100. This demonstrates an increased awareness among NGOs and NHRIs of the possibility introduced by Rule 9.  

What sort of information may then be contained in these Communications? In a qualitative study of a number of these Communications, which I conducted as part of my PhD research, I set to found out just that. In sum, the information provided in these Communications may offer relevant background information, voice concerns or suggest solutions in respect of cases pending execution. Such concern was, for instance, expressed in relation to the D.H. judgment,referenced  above. In the Communications, the submitting actors can further provide the Committee of Ministers with information from the domestic context to substantiate their concerns. In their Communications these organisations can, for instance, evaluate relevant national legislation or practices, provide illustrations of the national situation and submit statistical information in respect of a particular issue. To illustrate, in the case of Alekseyev v Russia, which concerned the inability of the applicants to organise gay pride marches in Russia, the national NGOs that submitted a Rule 9 Communication informed the Committee that in the wake of the Court’s judgments ‘all notifications for hundreds of political assemblies in support of the rights of sexual and gender minorities applied for during the last three years were rejected’. In addition, the intervening NGO or NHRI can make suggestions as to what steps could be taken next in the supervision process. They can, for example, recommend the Committee to consider a case under its enhanced procedure (as the Dutch NHRI did in its Communication in the case of Corallo) which means that the Committee will give this case priority in its supervision process.

I think that this kind of information and suggestions, that are submitted ‘from the ground’, can be useful to the Committee and the so-called Execution Department that advises and assists the Committee in supervising the execution of the judgments of the Court. Indeed, it can offer the Committee important insights into the status of judgment execution on the national level and problems that persist in that regard. This is true especially for national and local NGOs and NHRIs, which are familiar with the situation on the ground in the country concerned and are thus particularly well-placed to provide valuable information. This may help the Committee understand what is going on in a State and advise the national authorities on the actions to be taken. Of course, such interventions, suggestions and recommendations have to be useful for the Committee of Ministers. The question that rises, therefore, is whether the Committee actually visibly relies on these Communications and the information and recommendations provided in them. Interestingly, my study of a number of cases has shown that the Committee may indeed refer to information submitted in Rule 9 Communications, suggesting their usefulness. In respect of the case of Alekseyev v Russia that was mentioned above, for example, the Committee used among other things the statistical information provided by these NGOs to conclude that progress in executing this case had been limited.

It thus appears that Rule 9 Communications allow NGOs and NHRIs to function as intermediaries between the international level (the Committee of Ministers) and the national level (the States that ultimately have to execute the Court’s judgments). In that respect, I believe that the possibilities offered by Rule 9 grant these actors a potentially valuable role in contributing to ECtHR judgment execution. In light of this potential it is important to further explore how exactly Rule 9 Communications can impact the execution process and how their potential can best be realised. In this regard, for example, it is important to consider what strategies underly the Communications submitted by NGOs and NHRIs.  Other relevant questions are whether and when the Communications are useful for the Committee as well as how it critically evaluates the information provided therein and how it determines when to make use of the information held in a Rule 9 Communication. This first exploration into Rule 9 Communications thus leaves us, as research often does, with new questions that demand answers, and I look forward to embarking on further research to find such answers.