Roma Rights 1, 2010: Implementation of Judgments
26th, July, 2010
Implementing Judgments: Making Court Victories Stick
Robert Kushen1
As a lawyer who has worked in the area of human rights for over 20 years, it has been an exhilarating and frustrating experience to lead the European Roma Rights Centre. Exhilarating to work in the most developed regional human rights system in the world and to practice law before a court that has helped set global standards in human rights jurisprudence. Frustrating because the morning after a court victory I am frequently left wondering just what we have won. For individual applicants, victories can be, at best, symbolic: they receive some money (usually a small amount) in non-pecuniary damages, but that is all. The money in no way compensates them for the actual damage they have suffered. In the case of D.H. and Others v The Czech Republic, for example, each applicant received 4,000 EUR. How does this compare to being falsely labelled as having a disability and relegated to substandard schools and to jobs that don’t require anything more than the most rudimentary education? For the broader human rights agenda, victories can also seem hollow. While the European Court of Human Rights (ECtHR or the Court) sometimes indicates general measures designed to remedy systemic problems and reduce the likelihood that violations will recur, these measures are seldom very specific and most often ignored. Hence, the morning after a European Court judgment is the time when the real work of the human rights defender begins. Years of effort are required to make sure that the judgment sticks.
This issue of Roma Rights is dedicated to a consideration of implementation of ECtHR judgments and other decisions of international adjudicatory bodies. Implementation problems plague national justice systems as well, but the European and international systems, without coercive enforcement mechanisms, present particular challenges to implementation at the national level. This issue offers a number of perspectives on the problem. First, Constantin Cojocariu reviews recent developments in the ECtHR’s structural and procedural reform and their impact on implementation of judgments. Mr Cojocariu notes that the failure of States to implement judgments has a direct impact on the Court’s work by increasing the opportunity for repetitive cases to be brought to the Court and by increasing markedly the workload of the Council of Europe (CoE)’s Committee of Ministers as the number of unimplemented judgments piles up before it. Unfortunately, it seems that structural reform of the Court under Protocol 14 may not have a significant impact on implementation per se, although hopefully improvements in overall Court efficiency will help to some extent. In the meantime, Mr Cojocariu suggests that civil society should engage actively in monitoring and advocacy with the Committee of Ministers and the CoE’s Parliamentary Assembly. In a somewhat more utopian vein, he also suggests that civil society be actively engaged in the process of defining what measures, if fulfilled, would constitute compliance with a judgment.
Krassimir Kanev next focuses on Bulgaria, where he asserts that almost 50% of the ECtHR judgments against Bulgaria are still under supervision, meaning that they have yet to be fully implemented. Many of these cases are in the area of police abuse of detainees, which in several of the cases cited led to the death of the victim. In all cases, the State satisfied the monetary portion of the Court’s judgment (in all cases symbolic awards) but for the most part failed to conduct effective investigations into the circumstances of abuse or to conduct the prosecution of perpetrators of such abuse. The State also did not address the systemic reform that would prevent such violations from being repeated. Most significantly, Bulgaria has failed to guarantee the independence of investigations regarding allegations of ill-treatment inflicted by the police, to amend the rules on the use of force by law enforcement or to require explicitly the consideration of racist motive in criminal investigations.
István Haller next focuses on several Romanian cases. The interesting feature of these cases is that they involve “friendly” settlements (in some cases accepted by the applicants, in other cases imposed on the applicants by the Court). The settlements offered by the government were relatively more detailed than the kind of measures customarily imposed by the Court. One might think that these more detailed requirements would provide a stronger basis for enforcement. However, the Committee of Ministers seems no more able to compel a State to comply with its own promises than with a judgment imposed by the Court. Despite the fact that the State set the terms of the settlements, implementation has been completely inadequate due to a failure of political will, insufficient funding and poor management. As many of the original applicants in these cases were driven out of their homes and communities, they have not benefited from any implementation work done in the communities themselves; they received only a small cash payment, many years after the violations occurred, that is insufficient to enable them to establish a new life elsewhere.
Failure to implement international judgments is not a problem limited to Eastern Europe. Panayote Dimitras takes up our country tour d’horizon with a description of the fate of judgments against Greece by the European Court of Human Rights and the European Committee of Social Rights (ECSR). Mr Dimitras concludes that “Greek authorities as a rule do not execute international (quasi-)judicial decisions in cases related to Roma (as well as in cases related to non-Roma).” In the case of Greece, these judgments include ones relating to school segregation, substandard housing and evictions and police violence. Features of non-compliance are similar to other countries noted above: applicants may receive a symbolic monetary award, but the State failed to conduct effective investigations into wrongdoing, to implement existing law or policy or undertake the needed legislative or policy reform to ensure that violations are not repeated. Implementation of ECSR judgments is a particularly challenging area as these judgments point to deep systemic problems that frequently require significant financial resources to remedy.
My colleague Lydia Gall and I have contributed an article on the case of D.H. and Others v The Czech Republic. Noteworthy in this case is the creation of an NGO coalition to press specifically for implementation of the judgment and the reform of the Czech education system to provide equal opportunities for Roma. Although the government has taken some small steps toward addressing segregation in special education, there has been no significant change in the proportion of Roma studying in segregated special education classes.
Chris Johnson, Andrew Ryder and Marc Willers contribute a history of the failure of the UK government to implement the decision in Connors v The United Kingdom and several similar cases. The decision, involving the illegal eviction of a Gypsy family from a caravan site, exposed systemic violations in the way the UK treat(s) the right of Gypsies and Travellers to security of tenure. While the State acknowledged the problems and pointed to the need for a legislative solution, six years later such a solution remains elusive, caught up in the slow lawmaking machinery of the UK without a strong political champion.
Our tour takes us back to Eastern Europe with Zoran Girilovski’s article on Macedonia. The author focuses on one case that is emblematic of systemic deficiencies in how Macedonia treats allegations of police abuse. The case reveals “systematic lacunae in the legislation and practice of the Public Prosecution Office and the Ministry of Interior regarding criminal complaints filed against Ministry officials;” lacunae that remain to this day. Despite recent favourable law and policy developments, the problem seems to be primarily a lack of political will to subject police to independent oversight.
The theme concludes with a fascinating look from inside the Court, an account by former Judge Loukis Loucaides of Cyprus, of systemic impediments that hinder the Court from rendering justice. He identifies one of the key problems to be the politicisation of the Court, in the sense that the Court is “reluctant to find violations in cases that would present serious problems to a State’s financial capabilities, to the general legal or governmental system or to the political objectives of the respondent State.” As judges themselves are the products of their own political cultures, we cannot expect an international tribunal to be immune from politics. Deference to politics, and deference to the competences of national governments in the Council of Europe system, inhibits the Court from crafting detailed remedies that might be more susceptible to monitoring and successful implementation than the general remedies that seem to be the staple of the Court’s jurisprudence.
Given the lackluster track record of implementation of the Court’s judgments at the systemic level, what can we as advocates do? To some extent, we can do more of the same, as several of the authors suggest: engage in consistent and long-term monitoring of States’ failure to implement judgments; engage in advocacy before the Committee of Ministers and other Council of Europe institutions; engage friendly governments in pressing recalcitrant States at Committee of Ministers meetings and in other diplomatic fora; work with local NGOs to engage States on implementation, in a cooperative way if possible, as well as in a watchdog and critical role; and publicise judgments widely within the country concerned, among various constituencies but in particular among those who may have violated the law or who are charged with implementing change.
We can also do more to encourage the Court to craft remedies that are detailed and clear. At the ERRC, most of our briefing before the Court is taken up with proving that a violation has taken place; why not invest some effort in suggesting remedies, including both individual damages and general measures?
The level of damages awarded by the Court is frequently symbolic, which has no deterrent effect whatsoever. States absorb these damages as the cost of “doing business” (in this case the business of violating rights). Advocates before the Court therefore do not always spend much time describing the nature of the damages or explaining the amount. Perhaps if pecuniary damages claims were better briefed, the awards would go higher. For example, every case involving death or disability induced by a State actor should include detailed information about work-life expectancy and the amount of money the deceased could have been expected to earn for their family. The prospect of larger awards, susceptible to repetition if systemic problems go unaddressed, might compel a more robust State response.
Arguments on general measures would require giving the Court a good idea of the scope of the problem: if a violation has its roots in systemic deficiencies, and is likely to result in additional petitions before the Court, applicants might usefully present evidence on how many people are likely to be affected by these deficiencies. Applicants should then be prepared to offer remedies to these problems that the Court should pronounce for the respondent State to undertake. In the D.H. case, the Czech NGO coalition Together to School has tried to define these concrete remedies by interpreting the more general guidance provided in the Court judgment.
The Czech NGO coalition offers another instructive example: the critical need for local NGOs to take up where the litigators leave off. Sustained engagement by the coalition since the judgment in 2007 has yielded modest but demonstrable results so far, and years more engagement will be required to complete the job. The work of an ERRC in litigating before international bodies will be worthless without local advocates to immerse themselves in the details and time-consuming work of law and policy advocacy.
Failure to implement a judgment could be a reason to undertake additional litigation before domestic courts with new applicants facing similar violations. Another tactic, not yet tested to the best of my knowledge, is domestic litigation to compel enforcement of the decision of the ECtHR, ECSR or some other international adjudicatory body, perhaps on the theory that the decision of the international body constitutes binding international law that must be given primacy in a national jurisdiction. We invite readers to send us other ideas of work that we can do to encourage the implementation of judgments.
As lawyers, it is okay to pat ourselves on the back the day we receive news of a favourable judgment. As activists, however, it is back to work the next day to make sure that the judgment sticks.
Endnote:
- Robert Kushen is the ERRC Executive Director.
