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Third-Party Interventions to The European Court of Human Rights

Introduction

If the execution of a judgment is delayed, NHRIs can consider the submitting a third-party intervention to the Court in a relevant new case, in which attention can be drawn to cases pending execution, and problems that exist in that regard.  

Good practices

Armenia – Third-Party Intervention

The Human Rights Defender has used the mechanism of third-party interventions to draw the Court’s attention to outstanding judgments, and how the present judgment is linked to those previous judgments. This was done in the case of Hakobyan v. Armenia. Participation in the examination of the case pending before the European Court enabled the Defender to present the Court information on a specific case. In particular, the European Court was provided with information regarding the provision of adequate and necessary medical assistance to the applicant detained as part of criminal proceedings. The Court was also provided with information on systemic issues related to medical care in penitentiary institutions relating to the questions raised within the complaint. Therefore, the information provided to the Court can, in the opinion of the Defender, contributed to more comprehensive examination of the case and systemic consideration of the questions raised before the Court. 

Key resources

Rule 9(2) Communications to the Committee of Ministers  

Introduction

Once the Court delivers a final judgment in which it identifies a breach of one or more Convention rights, the case is transmitted to the Committee of Ministers. In order to execute a judgment, States choose – subject to the supervision of the Committee of Ministers – the appropriate individual and/or general measures to end the violation(s) found by the Court and redress, as far as possible, its effects. NHRIs have an important a role to play in this supervision process. Under Rule 9(2) of the Committee of Ministers Rules, NHRIs can be involved in the supervision process by submitting Communications to the Committee of Ministers. In these Communications NHRIs can review and assess States’ performance with regard to the execution of judgments and make recommendations on how to proceed with the execution process. Rule 9(2) thus allows NHRIs to engage in a formalised dialogue at the ECHR level concerning judgment execution.  

It is vital that NHRIs are part of this dialogue. By getting involved through Rule 9, NHRIs help in making the supervision process of the Court’s judgments more participatory and ensure that it is not just the State’s input that can be considered by the relevant ECHR actors. Through Rule 9(2) Communications, the Committee of Ministers and the Execution Department can attain a closer understanding of the problems in a particular country and are supplied with local knowledge of particular issues and challenges to full compliance.  

Currently, less than 1 in 10 cases are subject of a Rule 9(2) Communication, which means that the Execution Department and the Committee of Ministers have to rely on State reports only in their assessment of the execution of judgments. Information from more diverse sources, that complements, or contrasts information provided by the State, can strengthen the analysis of the progress of the execution process and help advance the adequate execution of judgments by the Court.  

NHRI Rule 9(2) submissions have impacted the execution process in Strasbourg, for instance because the Committee of Ministers took up their recommendation for how to classify a case, or because a Decision of the Committee was inspired by information advanced by NHRIs.  

The supervision process: Important actors  

Article 46(2) of the Convention stipulates the supervision process of the execution of a final judgment of the Court falls to the Committee of Ministers.   

The Department for the Execution of Judgments advises and assists the Committee of Ministers in its function of supervision of the implementation of the Court’s judgments. It also provides support to the member States to achieve full, effective and prompt execution of judgments. Rule 9(2) Communications sent to the Committee of Ministers are, in practice, dealt with by the lawyers working for the Execution Department.  

When to submit a Rule 9(2) Communication

If the Communication concerns a case scheduled to be examined during a DH meeting, it must be submitted in due time, and at least five days before that meeting, to allow it to be taken into consideration by the CM, and more than ten days if the intention is for the Communication to be published by the CM. If you wish to have the Communication taken into account in the drafting notes on the agenda prepared by the Secretariat in respect of each case, thus allowing good preparation of the meeting, it is important that communication be submitted well in advance, whenever possible at least five weeks before the DH meeting. 

What to include

The following information can be included in a Rule 9(2) Communication:  

  • Comments on the scope and content of the action plan of the respondent State;  
  • Comments on the implementation of the measures set out in the action plan (e.g. the results obtained or likely to be obtained, envisaged timeline, manner of approaching problems encountered); 
  • New relevant factual information;  
  • Recommendations for strengthening the supervision process;  
  • Procedural issues, such as whether the case should be moved by the CM from the standard to the enhanced procedure or rapidly needs a detailed examination, e.g. because of intervening events, etc. 
  • If applicable, NHRIs can address and evaluate the respondent State’s assertion in an action report that full compliance has been achieved and in case of disagreement, oppose that assessment.  

For this information, see the concise Guide developed by the European Implementation Network to support NGOs with their submission process to the Committee of Ministers. 

See also the webpage made available by the Execution Department.  

Tips for writing a Rule 9(2) Communication

Based on recommendations by the Council of Europe and the European Implementation Network, a Rule 9(2) Communication can be structured, and can contain the following: 

  • A short description of the case or group of cases (the case description at the DEJ website may be a good starting point) and the aim of the Communication; 
  • A paragraph briefly describing the mandate of your NHRI and its qualifications for the submission; 
  • A paragraph summarising the key recommendations of your submission; 
  • Any (updated information) on the implementation of individual measures, as well as their adequacy and effectiveness. If the individual measures appear to require the prior adoption of general measures (e.g. a new law on reopening of proceedings or revision of the time limits for reopening), it is important to indicate this and provide a reasoned view on how such measures should be conceived; 
  • Any (updated) information on the implementation of general measures, as well as their adequacy and effectiveness. There is added value if alternatives or additions to general measures proposed/envisaged by the respondent state can be presented. 
  • Recommendations on what you request the CM to urge the respondent State to do; 
  • Conclusions. 

Keep in mind that Rule 9 Communications should be kept short – about five pages.

As an illustration of a Communication that was regarded as particularly useful by Nikolaos Sitaropoulos, Head of Division, Department of the Execution of Judgments see the Rule (2) Communication by the Netherlands Institute for Human Rights in the case of Corallo v the Netherlands.  

After the submission

After a Rule 9(2) Communication is submitted, the Execution Department sends it to the State concerned. If the State subsequently responds to the submission within five working days, both the Communication and the State response are brought to the attention of the CM and are made public.  

If there is no response within these five days, the Communication is transmitted to the Committee of Ministers, but it is not made public. It is only made public ten working days after it was sent to the State, together a State response (if any) received within this time limit. A state response received after these ten working days is circulated and published separately upon receipt.  

Illustrations of Rule 9(2) Communications by other NHRIs

ArmeniaFranceGeorgiaNetherlandsNorthern IrelandPoland

Joint Rule 9(2) Communications  

The Human Rights Defender of Armenia held a adjunct-council meeting on the topic of health care in penitentiary institutions (see above), at which NGOs were present. The outcomes of this meeting was presented to the Committee of Ministers in the form of a joint Rule 9(2) Communication in the group of cases of Poghosyan v Armenia. As the Communication states, the joint Rule 9(2) submission presents ‘one of the several forms of cooperation of national human rights institutions and national civil society organizations with the Council of Europe’. After the Rule 9(2) submission, the Ministry of Justice provided a draft law, changing the health care personnel status thereby addressing issues relating to their independence.  In the wake of this the Human Rights Defenders’ Office is planning to further discuss this draft law with NGOs and to follow-up on this, mainly as practical issues remain.  

Impacting the Committee of Ministers with a Rule 9(2) 

The Human Rights Defender of Armenia has submitted a number of Rule 9(2) Communications, including for the Ashot Harutyunyan case. In this case, the European Court of Human Rights found, among other things, a violation of Article 3 of the Convention on account of denial of necessary regular health care and supervision in detention. In its Communication, the Human Rights Defender certain measures it deemed necessary to achieve full compliance in this case. In its Decision the Committee of Ministers ‘strongly encouraged the authorities [to] vigorously to pursue their plans and, in so doing, to draw inspiration from the relevant recommendations of the Committee of Ministers … together with the indications of relevant domestic monitoring bodies, in particular the Human Rights Defender of Armenia’.  

On judgment classification: Khan v France

When engaged in the Strasbourg execution process through Rule 9(2), it is important to note that NHRIs can inform the Committee of Ministers on the substance of a judgment, but also on the classification of a case, that is, if a case is to be supervised under the standard or enhanced procedure. 

The French National Consultative Commission on Human Rights, after having a submitted a third-party intervention in the case of Khan v France, stayed involved with this case by providing the Committee of Ministers with a Rule 9(2) Communication. The case of Khan v France concerns the degrading treatment of the applicant, an unaccompanied minor who resided in France illegally. In its Communication to the Committee of Ministers,  The French National Consultative Commission on Human Rights described why the issues identified in this judgment were, in fact, structural and complex, which warranted this case to be examined under the enhanced procedure. The Committee of Ministers took up this recommendation of classification, and the Khan case is currently considered under the enhanced procedure.  

Impacting the Committee of Ministers with a Rule 9(2) 

In 2016, the Public Defender of Georgia submitted a Rule 9(2) Communication in the Gharibashvili group of cases, in which the European Court of Human Rights found a violation of Article 3 of the European Convention on Human Rights on account of the lack of independence and effectiveness of an investigation into allegations of ill-treatment by the policeIn their Rule 9(2) Submission, the Public Defender of Georgia made the argument that Georgian legislation was not in compliance with international standards and that investigation into torture and other types of ill-treatment were not conducted by independent bodies. They described the deficiencies in the legislation and recommended to the Committee of Ministers that the government of Georgia should, in particular, adopt legislative amendments to establish an independent investigative mechanism to eradicate impunity for these crimes and ensure investigative independence.  

In 2018, the Georgian parliament adopted a law on the ‘State Inspector Service’, which envisaged an independent investigative body purposed to eliminate impunity for crimes of ill-treatment committed by law enforcement officers. It became operational in November 2019. With regard to the Rule 9(2) submission process, the Public Defender of Georgia has good experiences with this procedure and their submission has made an impact on the supervision process. In a 2017 Decision, the Committee of Ministers took of the concerns expressed about the effectiveness of investigations, which includes those of the Public Defender, and ‘invited the authorities to continue the dialogue with civil society, the Public Defender of Georgia and national and international expert bodies’.  

On judgment classification: Corallo v the Netherlands 

In March 2019, the Netherlands Institute for Human Rights submitted a Rule 9(2) Communication for the case of Corallo. In Corallo, the European Court of Human Rights found a violation of Article 3 of the European Convention on Human Rights on account of the degrading detention conditions at a Police Station on Stint Maarten, a Caribbean island that is part of the Kingdom of the Netherlands. In its submission, the Netherlands Institute for Human Rights described the ‘systemic deficiencies that limit the possibilities of preventing torture, inhuman or degrading treatment during detention and adequately guarantee detention conditions that meet international human rights standards’. As the deficiencies had not been remedied by the government of Sint Maarten, the Netherlands Institute for Human Rights called upon the Kingdom of the Netherlands ‘to step up and ensure implementation of the judgment of the Court’.  

In order to ensure structural improvement of the detention system of Sint Maarten, the Netherlands Institute for Human Rights recommended the Committee of Ministers to supervise the execution of Corallo under its enhanced procedure, as opposed to the standard procedure which would, according to the Committee, underline the seriousness of the matter. According to the Execution Department, this Communication was constructive and helpful. It provided information that without the submission, was not at the disposal of the Committee. As such, the Communication was decisive in deciding to supervise Corallo under the enhanced procedure and thus had a real impact on the execution process in Strasbourg.  

Staying involved: Third-party interventions and Rule 9(2) Communications  

The Northern Ireland Human Rights Commission has submitted numerous Rule 9(2) Communications in the McKerr group of cases v the United Kingdom. These cases are ‘historic cases’ from Northern Ireland and concern inadequate investigations into the use of lethal force by State agents. In the case of McKerr, in which the European Court of Human Rights found a violation of Article 2 of the Convention in respect of failings in the investigative procedures concerning the death of McKerr, the Northern Ireland Human Rights Commission had intervened as a third-party. The Northern Ireland Human Rights Commission stayed active in respect of this case and submitted four Rule 9(2) Communications; in its latest, it opinioned that there had been ‘limited concrete government actions to address the outstanding issues’.  

Impacting the Committee of Ministers with a Rule 9(2) 

The Commissioner for Human Rights of the Republic of Poland has submitted numerous Rule 9(2) Communications, having been particularly involved in the ‘abortion cases’. In these cases, the Court found numerous violations on account of failure to guarantee access to legal abortion. In its latest Communication, the Commissioner heavily critiqued the position of the State, which advanced that it had fully implemented this set of cases. Among other things, the Commissioner requested the Committee of Ministers to continue supervising these cases under its enhanced procedure and made several recommendations on how to achieve full compliance.

The Committee of Ministers considers the information provided by the Commissioner and, in its Decision ‘strongly encouraged the adoption of [amendments] without further delay, taking into account comments made in this respect by the Council of Europe Commissioner for Human Rightsthe Polish Commissioner for Human Rights and civil society…’. It further  ‘urged the authorities to provide information, including statistical data, about the availability of lawful abortion across the country, together with an assessment of possible regional disparities in this regard, as raised by the Council of Europe Commissioner for Human Rightsthe Polish Commissioner for Human Rights and civil society, and the solutions envisaged’.  

Key resources

ENNHRI

ENNHRI has tools available for National Human Rights Institutions wanting to have more information on the submission of a Rule 9(2) Communications. In particular, National Human Rights Institutions can follow the online training on the Effective Implementation of Judgments of the European Court of Human Rights. ENNHRI has further made an information note on the submission of Rule 9(2) Communications to the Committee of Ministers of the Council of Europe available and has written a guide for National Human Rights Institutions on how to support implementation of Judgments from the European Court of Human Rights, more generally. 

Council of Europe

The Department for the Execution of Judgments has devoted a webpage to Communications by NHRIs and NGOs. On this webpage, NHRIs can find practical information about the execution process and the submission of Communications to the Committee of Ministers. This webpage includes a helpful timeline which shows the most appropriate time to submit Communications to the Committee of Ministers between two CMDH meetings, tips for drafting submissions, a timetable that explains the process after the submission of a Rule 9 to the Execution Department as well as some information on other practical issues.  

Importantly, this webpage can also direct NHRIs to information on necessary information on upcoming CM-DH meetings, including an indicative list of cases to be examined for the next meeting as well as a link to cases listed for detailed examination at future CM-DH meetings and to a table of cases under enhanced supervision. The Committee of Ministers has also made available a database that holds all submitted Rule 9 Communications. For those NHRIs wanted to receive updates from the Department of Execution on the submission of action plans, reports and Communications, there is the possibility to subscribe to the EXEC RSS feed through which country-specific content published in HUDOC Exec can be received. Finally, the Committee of Ministers provides a glossary, were all relevant terms and concepts relating to the execution of judgments of the Court can be found.  

European Implementation Network

The European Implementation Network has many resources available on the how to get involved in the implementation of judgments of the European Court of Human Rights. Although targeted at NGOs, many of their resources are of interest to NHRIs. NHRIs engaged with monitoring judgment implementation on the international level have found their information particularly valuable. In particular, the EIN Handbook – a Guide for NGOs, applicants and their legal advisors – about the implementation of judgments of the European Court of Human Rights and how to get involved in this process. Further, they have provided a Guide on how to write a Rule 9(2) Communication. This includes information about the execution process itself, how to add value through a Rule 9(2) Submission and how to structure and present the Communication. Finally, the EIN country pages, giving an overview of the state of implementation in each country and this webpage an overview of all EIN resources.  

EIN also informs interested parties of developments in cases pending execution. Interested NHRIs can submit an email indicating that they would like to receive updates. You can contact the EIN Secretariat under: contact@einnetwork.org. Generally speaking, EIN is happy to be contacted for feedback on Rule 9s or guidance on the implementation system in general.