Ministers’ Deputies

Information documents

CM/Inf/DH(2016)33-rev        10 November 2021

 

Procedure for the implementation of Article 46, paragraph 4 of the European Convention on Human Rights

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

 

If, in its supervisory role under Article 46 § 2 of the Convention, the Committee considers that a High Contracting Party is refusing to abide by a final judgment in a case to which it is party, it may refer to the Court the question whether that Party has failed to fulfil its obligation to comply with the judgment through “infringement proceedings” under Article 46 § 4 of the Convention. This possibility was provided for by the amendments made by Protocol No. 14 to the Convention,[1] which entered into force on 1 June 2010. So far, infringement proceedings have been used by the Committee in only one case.[2]

It follows from the combined provisions of Article 46 § 4 of the European Convention on Human Rights and Rule 11 § 2 (Rules of the Committee of Ministers for the supervision of the execution of judgments and friendly settlements) that, in view of its exceptional nature, the action for failure to fulfil obligations is subject to a two-stage procedure, namely:

I. First stage: formal notice to the State concerned

-        This formal notice is made by means of an Interim Resolution informing the State of the intention to bring an action for failure to fulfil obligations.

-        The Interim Resolution shall be adopted by a two-thirds majority vote of the representatives entitled to sit on the Committee.

-        This formal notice shall be adopted no more than six months before initiating the procedure, unless the Committee decides otherwise.

II. Second stage: decision to implement the action for failure to fulfil obligations

-        The decision to apply to the Court for an action for failure to fulfil obligations takes the form of a reasoned Interim Resolution which concisely reflects the opinion of the High Contracting Party concerned.

-        This resolution shall also be adopted by a two-thirds majority of the representatives entitled to sit on the Committee.

The infringement proceduredoes not aim to reopen the question of violation, already decided in the Court’s first judgment.[3] In its assessment, the Court will take into consideration all aspects of the procedure before the Committee, the Committee’s conclusions in the supervision process as reflected in its decisions and interim resolutions, the position of the respondent Government and the submissions of the victim of the violation. The Court must identify the legal obligations flowing from the final judgment, as well as the conclusions and spirit of that judgment with a view to determining whether the respondent State has failed to fulfil its obligations under Article 46 § 1.[4]

In the event that the Court finds that the respondent State has failed to fulfil its obligation to comply with the judgment under Article 46 § 1 and thus a violation of Article 46 § 4, it must refer the case back to the Committee to decide, under Article 46 § 5, the measures to be taken. The Committee has discretion under this provision as to the measures which are most appropriate in the circumstances of the case.

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Sources

European Convention on Human Rights

Articles 46 §§ 4 and 5

“4. 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.

5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case”.

Article 31 – Powers of the Grand Chamber

“The Grand Chamber shall

(…)

b) decide on issues referred to the Court by the Committee of Ministers in accordance with Article 46, paragraph 4; (…)“

Explanatory report to Protocol No. 14

“99. Paragraphs 4 and 5 of Article 46 accordingly empower the Committee of Ministers to bring infringement proceedings in the Court (which shall sit as a Grand Chamber – see new Article 31, paragraph b), having first served the state concerned with notice to comply. The Committee of Ministers’ decision to do so requires a qualified majority of two thirds of the representatives entitled to sit on the Committee. This infringement procedure does not aim to reopen the question of violation, already decided in the Court’s first judgment. (…) It is felt that the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned.

100. The Committee of Ministers should bring infringement proceedings only in exceptional circumstances. None the less, it appeared necessary to give the Committee of Ministers, as the competent organ for supervising execution of the Court’s judgments, a wider range of means of pressure to secure execution of judgments. (…)”.

Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements

Rule 11 - Infringement Proceedings

“1. When, in accordance with Article 46, paragraph 4, of the Convention, the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is 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.

2. Infringement proceedings should be brought only in exceptional circumstances. They shall not be initiated unless formal notice of the Committee’s intention to bring such proceedings has been given to the High Contracting Party concerned. Such formal notice shall be given ultimately six months before the lodging of proceedings, unless the Committee decides otherwise, and shall take the form of an interim resolution. This resolution shall be adopted by a majority vote of two-thirds of the representatives entitled to sit on the Committee.

3. The referral decision of the matter to the Court shall take the form of an interim resolution. It shall be reasoned and concisely reflect the views of the High Contracting Party concerned.

4. The Committee of Ministers shall be represented before the Court by its Chair unless the Committee decides upon another form of representation. This decision shall be taken by a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee.”

Rules of Court

Rule 99 (former Rule 94)

In proceedings relating to a referral to the Court of a question whether a Contracting Party has failed to fulfil its obligation under Article 46 § 1 of the Convention the Court shall apply, in addition to the provisions of Article 31 (b) and Article 46 §§ 4 and 5 of the Convention, the provisions which follow. It shall also apply the other provisions of these Rules to the extent to which it considers this to be appropriate.

Rule 100 (former Rule 95)

Any request made pursuant to Article 46 § 4 of the Convention shall be reasoned and shall be filed with the Registrar. It shall be accompanied by:

(a) the judgment concerned;

(b) information about the execution proceedings before the Committee of Ministers in respect of the judgment concerned, including, if any, the views expressed in writing by the parties concerned and communications submitted in those proceedings;

(c) copies of the formal notice served on the respondent Contracting Party or Parties and the decision referred to in Article 46 § 4 of the Convention;

(d) the name and address of the person or persons appointed by the Committee of Ministers to give the Court any explanations which it may require;

(e) copies of all other documents likely to elucidate the question.

Rule 101[5] (former Rule 96)

A Grand Chamber shall be constituted, in accordance with Rule 24 § 2 (g), to consider the question referred to the Court.

Rule 102 (former Rule 97)

The President of the Grand Chamber shall inform the Committee of Ministers and the parties concerned that they may submit written comments on the question referred.

Rule 103 (former Rule 98)

1. The President of the Grand Chamber shall lay down the time-limits for filing written comments or other documents.

2. The Grand Chamber may decide to hold a hearing.

Rule 104 (former Rule 99)

The Grand Chamber shall decide by means of a judgment. Copies of the judgment shall be transmitted to the Committee of Ministers and to the parties concerned as well as to any third party, including the Council of Europe Commissioner for Human Rights.