Execution of the ECHR judgments in Croatia

Štefica StažnikCroatian Agent before the ECHR

Zagreb, November 2015

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Obigation to execute judgments Judgments of domestic courts as well as judgments of the ECHR must be

executed. „Right to access to a court would be illusory if a Contracting State’s domestic

legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party…” (judgement Budrov v Russia)

Article 46 of the Convention on Human Rights and Fundamental Freedoms

(Binding force and execution of judgments)1. The High Contracting parties undertake to abide by the final judgments of

the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of

Ministers, which shall supervise its execution.

Execution of a judgment – integral part of the right to fair trial (Article 6 ECHR)The Strasbourg Court infers the right of execution from the “principle of the rule

of law”

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Supervision of execution of the ECHR judgments and decisions

Supervision of the execution of the Court’s judgments and decisions is continuously performed by the Committee of Ministers of the CoE

(CM COE- consist of ministers of foreign affaires/deputies-ambassadors at COE in Strasbourg).

Collective responsibility – each State has to justify its execution measures to all other States, members of Council of Europe in CM.

DH-HR meetings (4 times in a year) of Minister’s Deputies devoted to execution of judgments and decisions of the Court.

DH-HR considers specific cases and decides on the progress of execution – not all cases are systematically debated but all cases are on the agenda of all meetings.

Respecting judgments of the Court –condition for membership of the Council of Europe (Res DH (2001)80 interim resolution in cases Loizidou v Turkey)

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Execution of judgment- who & how? - Coordinating authority on national level: Office of the Agent before the

Court, or specialized body (Intergovernmental Committee - Poland) or authorized ministry - (Netherlands)

- Efficient domestic capacity for rapid execution of judgments should exist in every member State of CoE ( Rec CM CoE 2008/2)

- “the Court judgment leaves to the State the choice of the means to be used in its domestic legal system to give effect to the obligation under Art. 53” (judgement Scordino v Italy)

- „State must execute the judgment, domestic courts must apply the requirements of the European judgment directly and hold that domestic law is non-applicable pending amendment of the legislation” (judgement Vermeire v Belgium).

- State must define measures to execute every judgment/decision and remedy violation established by the Court.

Execution of judgments – who & how? (2)- Dialogue,communication and coordination between a State and the

Secretariat of the CM (the Department for Execution of Judgments which prepare each case file for DH meetings and advises the CM as custodian of the Convention) during process of execution of every judgment/decision .

- 6 months after the judgment becomes final State should deliver Action Plan/ Action Report containing measures taken and/or envisaged with a clear timetable for measures to be applied

- CM documents – decisions taken at every meeting (procedurale nature) or those noting state of play in the execution process

- interim resolutions (assesment of the progess achived in execution –positive/negative)

- final resolution (CM determines that measures taken by the State are sufficient to close examination of a judgment)

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Croatia – execution of the ECtHR judgments Provisions on process of execution of the ECHR judgments and decisions in

Decree on the Office of the Agent of the Republic of Croatia before the European Court of Human Rights, (Official Gazette No 18/12)

Article 3 Croatian Agent before the ECHR has authority….-to coordinate execution of judgments and decisions of the European Court of

Human Rights. …

Article 10All administrative bodies and other bodies of state authority shall cooperate

fully with the Agent and enable her /him to perform her/his duties. ...

Croatia – execution of the ECtHR judgments Article 8

Department for coordination of execution of judgments and decisions of the ECHR in the Office of the Agent (identifies problematic areas in domestic system that caused violation of Convention, framework in which execution will take place and coordinates execution activities of competent state authorities).

Article 12Expert Advisory Group is established within the Agent Office as an interdepartmental body with the aim to establish measures of execution of every judgment and decision of the ECHR and to follow their implementation The Group consists of experts appointed from ministries, state agencies, Constitutional Court of RoC, Supreme Court of RoC and State Prosecutor Office.

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Individual measures – to remedy violation established by the Court related to the applicant

Measures applied:

a) length of proceedings if the case is still pending - request for acceleration of proceedings, attn.

Ministry of Justice & Supreme Court, the domest authority reports to the Agent of work done

b) other cases reopening of proceedings possible in civil, criminal and some administrative

matters (Bistrović (Art.1.P.1.), Hanževački (Art.6.1.), Brezovec (Art.6..1.), Orlić (Art.8.), restitutio in integrum

Urgent individual measurees (Gluhaković v Croatia)

Action Plan/ Action Report to the CM, depending on the nature of violation

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General measures –- to prevent similar violations in future

In all cases: Agent - analysis of the judgment presented to all authorities that

contributed to violation explaining judgment & its consequences (prevention) + Parliament’s Committees, Supreme Court, Constitutional Court

Possible measures: (e.g. policy changes, change of national case-law in court and administrative proceedings, legislation changes).

Length of proceedings: 2002 Law on Changes of the Constitutional Court’s Law, Horvat v.

Croatia, till 2004 Const. Court overloaded with applications; 2005 Law on Courts – length of proceedings cases decided by ordinary courts following ECHR jurisprudence + MoJ measures to speed up proceedings (new procedural instruments, more judicial staff to assist judge, delegation of cases to less busy courts, regular statistics on length of cases, case flow management, IT technologies).

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Further measures applied:

- translation of every judgment of the ECtHR against Croatia into Croatian language published regularly on web page of the MoJ

- periodical translation and publication of other landmark judgments of the Court into Croatian language.

- Participation in training of legal professionals if invatied.

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Execution process of judgments and decisions of the ECHR is available on web page of the Committee of Ministers of Council of Europe

http://www.coe.int/t/cm/Home_en.asp

Thank you for your attention!