Ministers’ Deputies

Information documents

CM/Inf/DH(2007)33    28 June 2007

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Round Table on “Non-enforcement of domestic courts decisions in member states: general measures to comply with European Court judgments”

Conclusions of the Round Table in Strasbourg, 21-22 June 2007

Document prepared by the Department for the Execution of the judgments of the European Court of Human Rights

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Strasbourg, 22 June 2007

Round Table on

“Non-enforcement of domestic courts decisions in member states: general measures to comply with European Court judgments”

Round Table

Strasbourg, Palais de l'Europe

21 – 22 June 2007

CONCLUSIONS

Fully committed to put an end to the continuously high number of violations of the European Convention of Human Rights in certain States revealing an important structural problem of non-compliance by the State and its entities with domestic court decisions and at the steady influx of new complaints in this respect;

Recallingthat the findings of violations by the European Court of Human Rights impose a legal obligation on competent state authorities to adopt general measures preventing similar violations and that the need for such measures is all the more pressing in case of repetitive violations revealing structural problems;

Stressingthat the lack of proper enforcement of judicial decisions severely affects the efficiency of the State structures, frustrates the citizens’ legitimate expectations and their confidence in the judicial system;

Having thoroughly considered the relevant judgments and decisions of the European Court of Human Rights, the conclusions of the Round Table Held in Strasbourg 30 – 31 October 2006, « Non-enforcement of court decisions against the State and its entities in the Russian Federation: remaining problems and solutions required”, the memoranda prepared for the Committee of Ministers in the context of its supervision of the execution of the judgments at issue^[1] and the reports by the European Commission for the Efficiency of Justice (CEPEJ)^[2];

The Participants in the Round Table:

Welcomed the work already carried out in the different member states concerned in order to solve this major structural problem and the ongoing reflection on possible further reforms;

Welcomed, in particular, the fact that the competent authorities of a number of interested states agreed to meet in order to share their experiences and to discuss, in an open and constructive manner, the ways and means for improving the existing procedures for execution of domestic court decisions, in particular against the state and its entities;

Emphasised strongly that it is incumbent on the State to execute spontaneously all judicial decisions delivered against public authorities, without compelling the claimants to go through enforcement proceedings;

Noted however that this spontaneous execution continues to be hampered by a number of persistent problems resulting in repetitive violations of the Convention in a number of states;

Focusedtheir attention at the Round Table on the following main structural problems:

As regards the legal and regulatory framework preventing non-execution:

-               shortcomings in the legal framework governing control and/or restitution of property;

-               shortcomings in the legislation governing the budgetary procedures, notably inconsistencies between the budgetary planning and the state’s payment obligations, inadequate budgetary control and the lack of proper mechanisms to rapidly ensure the additional funding where appropriate;

-               excessive formalism and/or lack of clarity of the execution procedures which makes their use difficult for the individuals and thus contributes to delays in execution;

As regards domestic remedies in case of non-execution:

-               lack of effective domestic remedies at the disposal of claimants in case of non-execution of judicial decisions, notably the lack of adequate compensation for pecuniary and non-pecuniary damages and of adequate mechanisms for acceleration of execution proceedings and for compulsory enforcement;

-               ineffectiveness of other procedures (administrative, civil, criminal, etc.) to compel the responsible authorities to comply with judicial decisions;

-               lack of clarity of the bailiffs’ powers, insufficient means allocated to them and absence of an appropriate legal framework governing compulsory enforcement in respect of the State and its entities;

Noted, in view of the urgency of the situation, the need for priority action to improve domestic remedies, notably by providing for the acceleration of pending execution proceedings and adequate compensation for delays in execution, and to rapidly improve funding in sectors particularly affected by the non-execution of judicial decisions;

Welcomed the measures already adopted or being taken by the States concerned to remedy a number of the aforementioned problems as well as the continuing discussions on further improvements to rapidly achieve more tangible results;

Stressed the importance of rapidly pursuing the reform work, taking into account the progress already achieved in each state and its specific needs and problems, in order to fully resolve the above-mentioned problems, notably through:

As regards the legal and regulatory framework preventing non-execution:

§     ensuring a coherent legal framework and/or coherent practices for the control and restitution of property respecting the requirements of the Convention;

§     improving budgetary planning, notably by ensuring the compatibility between the budgetary laws and the State’s payment obligations;

§     proper control over the use of the budgetary funds by the authorities responsible for payments;

§     providing for specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations;

§     setting up, where appropriate, a special fund or special reserve budgetary lines, to ensure timely compliance with judicial decisions, with a subsequent possibility of recovering from the debtor the relevant sums together with default interest;

§     ensuring the individuals’ effective access to execution proceedings by clearly identifying the authority responsible for execution and simplifying the requirements to be fulfilled by the execution documents;

As regards domestic remedies in case of non-execution:

§     introducing, either in budgetary laws and in other laws, a general obligation to automatically compensate for delays in execution of judicial decisions through appropriate default interest at a reasonable rate (e.g. in line with the Central Bank's marginal lending rate);

§     ensuring effective civil liability of the State for damages arising from the non-execution of domestic judicial decisions, which are not compensated by the default interest and providing, in appropriate cases, for the possibility of recovering awards made from the state agents responsible;

§     guaranteeing the existence of effective procedures capable of accelerating the execution process leading to full compliance with the judicial decision;

§     providing for increased recourse to money penalties, where appropriate, the automatic increase of those money penalties as the authority concerned continues to delay execution;

§     improving the personal responsibility of state agents in case of deliberate non-execution through efficient penalties or fines;

§     further developing central procedures for the freezing of accounts held by debtor authorities in order to secure the honouring of payment obligations, including the possibility of freezing also the accounts of authorities subordinate to the debtor’s authority;

§     setting up or improving procedures and regulations allowing the seizure of state assets which are manifestly not necessary for the fulfilment of the missions of the authorities concerned and, where appropriate, drawing up necessary inventories;

§     providing the bailiffs with sufficient means and powers so as to allow them to properly ensure, where appropriate, the enforcement of judicial decisions;

§     strengthening the individual responsibility (disciplinary, administrative and criminal where appropriate) of decision makers in case of abusive non-execution and providing the responsible state authorities with the necessary powers to that effect;

Noted the difficulties in setting up one single remedy in order to effectively address situations where an authority clearly refuses execution, but stressed, nevertheless, the positive results which may be obtained through different remedies and in particular through the combined pressure of several remedies;

Encouragedthe further development of the direct effect of the ECHR and of the judgments of the European Court of Human Rights in domestic law, notably in order to secure adequate compensation for delays in execution;

Underlinedthat, awaiting the necessary improvements in the execution procedure, special care should be taken to ensure speedy execution in all cases where special diligence is required under the Convention and in particular in the execution of decisions concerning vulnerable persons;

Decided to report these conclusions to the Committee of Ministers, the CEPEJ and to convey the proposals to the competent authorities of the member states concerned, with a view to taking the necessary measures;

Encouragedfurther CEPEJ projects in the area in order to further develop the sharing of experiences and encouraged member states to make use of the CEPEJ's expertise to develop further reform of the execution mechanisms at national level;

Encouragedin particular the development of relevant indicators of the problem of non-execution as regards its extent and the rate of progress in resolving it;

Agreed to continue the ongoing consultations with the competent authorities with a view to speeding up and increasing the efficiency of the reforms in their respective countries, and to resume consideration of progress achieved in an appropriate form at the earliest opportunity.

List of participants OF The Round TaBLE

(Strasbourg, 21-22 June 2007)

Permanent Representations to the Council of Europe

Mr Torbjørn Frøysnes, Ambassador, Permanent Representative of Norway to the Council of Europe

Mr Andrii Kuzmenko, Deputy to the Permanent Representative of Ukraine to the Council of Europe

Mrs Rodica Postu, Deputy to the Permanent Representative of Moldova to the Council of Europe

Bulgaria

Ms Milena Kotzeva, Government agent, Ministry of Justice

Ms Jordanka Parparova, Chief expert, Directorate of Human Rights and International Humanitarian Organizations at the Ministry of Foreign Affairs.

Georgia

Ms Irine Bartaia, Agent of the Government to the European Court of Human Rights, Ministry of Justice of Georgia

Mr Solomon Elisabedashvili, Head of the Execution Department, Ministry of Justice of Georgia

Greece

Mr Panagiotis-Kimon Efstratiou, Council of State judge

Ms Irene Sharpe, Council of State judge

Moldova

Mrs Lilia Grimalschi, Head of Governmental Agent Directorate, Ministry of Justice of the Republic of Moldova

Mr Valeriu Secas, Head of Directorate for Legal Affairs, Ministry of Finance of the Republic of Moldova

Poland

Ms Paulina Polowniak, Third Secretary, Legal and Treaty Department, Ministry of Foreign Affairs

Romania

Ms Ingrid Zaarour, President of the National Authority for the Restitution of Properties (ANRP)

Mr Theodor Nicolescu, Vice-President of the National Authority for the Restitution of Properties (ANRP)

Mrs Dana Mihaela Stan, Legal Counsellor within the Directorate General for Legal Affairs, Ministry of Economy and Finances of Romania

Mrs Violeta Belegante, Head of the Private Law Office, Ministry of Justice of Romania

Mrs Cristina Manda, Minister’s Counsellor, Ministry of Domestic Affairs and Administrative Reform of Romania

Mrs Udrea Madalina, Legal Advisor, Directorate General for Legal Affairs, Ministry of Domestic Affairs and Administrative Reform of Romania

Mrs Gabriel Crăciun, Legal Counsellor within the Directorate General for Legal Affairs, Ministry of Domestic Affairs and Administrative Reform of Romania

Mrs Catrinel Brumar, 3rd Secretary within the Agent of the Government Directorate, Ministry of Foreign Affairs of Romania

Mrs Roxana Caproşu, Attaché within the Agent of the Government Directorate, Ministry of Foreign Affairs of Romania

Mr Marius Morari, Vice-President of the Union’s Council, National Union of the Bailiffs in Romania

Mr Ispas Cârja, Member of the Executive Bureau of the Union’s Council, National Union of the Bailiffs in Romania

Russian Federation

Ms Svetlana Saul, Head of Legal Department, Federal Treasury

Mr Nikolai Vinnichenko, Director, Federal Bailiff Service

Mrs Olga Grevtsova, Office of the Representative of the Russian Federation at the European Court of Human Rights, Ministry of Justice of the Russian Federation

Mr Ilya Skvortsov, Deputy Director of the Federal Bailiff Service

Ukraine

Mr Viktor Kudryavtsev, Deputy Prosecutor General, Office of the Prosecutor General

Mr Volodymyr Bogatyr, Deputy Minister, Ministry of Justice

Ms Valentyna Doletska, Deputy Head of the Department for State Budget, Ministry of Finance

Mr Stanislav Kotorobai, Head of Account Department, Ministry of Justice

Ms Iryna Kushnir, Head of Information and Analytic Division, Representative of the Office of the Government Agent before the European Court of Human Rights, Ministry of Justice

Mr Serhiy Semerha, Deputy Head of the State Bailiffs’ Service, Ministry of Justice

European Court of Human Rights

Mr Jean-Paul Costa, President of the European Court of Human Rights (France)

Mrs Snejana Botoucharova, Judge at the European Court of Human Rights (Bulgaria)

Mr Anatoly Kovler, Judge at the European Court of Human Rights (Russian Federation)

Mr Stanislav Pavlovschi, Judge at the European Court of Human Rights (Moldova)

Mr Jan Sikuta, Judge at the European Court of Human Rights (Slovakia)

Mr Dean Spielmann, Judge at the European Court of Human Rights (Luxemburg)

Mr Erik Fribergh, Registrar of the European Court of Human Rights

Ms Maria Tsirli, Head of Division, European Court of Human Rights

Mr Patrick Titiun, Office of the President of the European Court of Human Rights

Mr Valentin Nicolescu, Lawyer, Registry of the European Court of Human Rights

Ms Ilse Freiwirth, Lawyer, Registry of the European Court of Human Rights

Ms Anne-Marie Dougin, Lawyer, Registry of the European Court of Human Rights

Mr Jurgen Marcetus, Lawyer, Registry of the European Court of Human Rights

Ms Martina Keller, Lawyer, Registry of the European Court of Human Rights

Mrs Olga Chernishova, Head of Division, Registry of the European Court of Human Rights

Mr Montserrat Enrich Mas, Head of Division, Research Division and Library, Registry of the European Court of Human Rights

Mr Toomas Sillaste, Research Division and Library, Registry of the European Court of Human Rights

Directorate general of human rights and legal affairs (DG-HRLA)

Mr Philippe Boillat, Director General of Human Rights and Legal Affairs

Mr Christos Giakoumopoulos, Director, Directorate of Monitoring

Mrs Geneviève Mayer, Head of the Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Mr Fredrik Sundberg, Deputy to the Head of Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Mr Mikhail Lobov, Administrator, Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Mr Jan Sobczak, Administrator, Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Mrs Anna Stepanova, Administrator, Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Ms Katarina Nedeljkovic, Administrator, Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Ms Satu Heikkilä, Administrator, Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Ms Dimitrina Lilovska, Administrator, Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Mrs Charlotte de Broutelles, Administrator, Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

Mr Nikolaos Sitaropoulos, Administrator, Department for the execution of judgments of the European Court of Human Rights, Directorate of Monitoring

European Commission for the Efficiency of Justice (CEPEJ)

Mr Fausto de Santis, President of the European Commission for the Efficiency of Justice

Mr Stéphane Leyenberger, Secretary of the European Commission for the Efficiency of Justice

Mrs Muriel Décot, Co-Secretary of the European Commission for the Efficiency of Justice

Technical Cooperation Department

Mr Giovanni Palmieri, Head of Technical Cooperation Department

Mr Arkadi Sytine, Administrator, Technical Cooperation Department

Office of the Commissioner for Human Rights

Mrs Irène Kitsou-Milonas, Legal Advisor to the Commissioner