In 2015, Klaas de Vries prepared a PACE report on the implementation of ECtHR judgments in the contracting parties. In it, he suggested that Article 46(4) of the Convention–the infringement proceeding–could usefully be turned to in order to address non-execution. This provision, which has never been used, provides:
If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.
The release of that report prompted me and Kanstantsin Dzehtsiarou (Liverpool) to reflect on the potential usefulness of Article 46(4) and, indeed, the dynamics of non-execution per se. The result of that is a paper forthcoming in 2017 in the International and Comparative Law Quarterly. The paper’s title (at least for now, but we think we will stick with it) is “Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights”. In the paper, we focus on what we deem ‘principled non-execution’ and ‘dilatory non-execution’:
It is essential that any attempt to seriously address non-execution would recognise the dynamics and reasons for non-execution. It is only once the root causes have been identified and considered that solutions can be devised or, indeed, that the insoluble nature of some challenges can be recognised. Thus, we propose here that non-simple non-execution can be broadly said to fall into two categories: principled non-execution and dilatory non-execution. The former can be said to relate to cases where states refuse to execute because of a deep-seated disagreement not only with the outcome but, perhaps more significantly, with the principle of an international court’s decision ‘overturning’ a domestic, democratically arrived at position in respect of a particular matter. There are very few instances of this type of non-execution, which is ultimately related to the fact that disagreement about human rights and about the meaning of a human rights treaty is possible, even when parties truly believe in and are committed to the protection of human rights. The latter relate to cases where States are generally dilatory in their execution of adverse judgments from the Court, so that individual cases of non-execution might be connected to this general pattern of resistance to giving effect to the outcome of international judicial supervision in the area of rights. The vast majority of cases of non-execution would fall into this broadly defined category. Importantly, the same State might well be a principled non-executor in some cases and a dilatory one in others.
Building on this distinction we go on to argue that resorting to the Court to address and resolve non-execution is impractical, futile, and likely to attract backlash. Both common sense and a critical engagement with the dynamics of non-execution illustrate that non-execution is a political problem requiring political solutions. As we argue near the end of the paper:
Not only are the practicalities of using Article 46(4) ECHR so complex as to make its deployment seem unlikely but—and more importantly—the almost certain futility and possible backlash that would flow therefrom make this avenue one in which, we argue, extreme caution should be displayed. If the Council of Europe is serious about tackling non-execution, then it must focus its attention on politics. It must take seriously the reality that, in some cases and at some times, non-execution is the politically popular and advantageous thing for the State to do with an eye to the domestic polity, and that the politics of reputation and peer pressure within the Council of Europe are not sufficiently strong to counter the domestic political ‘payoff’ of non-execution.
We hope to have an open access version of the paper to share soon, but in the meantime do feel free to get in touch directly if you would a copy of the un-typeset, un-finalised version of the paper.