Non-implementation of ECtHR rulings

Judgements of the ECtHRArticle 46 ECHR – Binding force and execution

of judgements• Obligation to abide by the final judgement• Committee of Ministers supervises the execution of the final judgement• Problems of interpretation - referral to the ECtHR for clarification• Refusal to execute the judgement - formal notice served on the State + referral to the ECtHR• If violation found – Committee of Minister may suggest a measure to be taken

Case 1 - Hirst v UK• October 2005 – Grand Chamber ruling • June 2010 - Committee of Ministers - 3-month deadline to announce changes to the blanket ban• 2,500 similar applications received – pilot judgement procedure adopted• September 2010 - Committee of Ministers suggested solution • December 2010 – Committee of Ministers commented for the 4th time on the UK’s failure (May 2010 general elections) – UK should present an action plan for implementation of the judgement with a clear timetable• 2011 - Westminster debate + House of Commons debate - many MPs against prisoners’ voting rights• The House of Lords Reform Bill 2012-2013

Case 2 - Görgülü v. Germany Feb. 2004 - ECtHR: violation of art. 8 (possibility at least to have

access to the child German Local Court – yes + temporary injunction (2 h every Sat.) Higher Regional Court (Appeal instance) – no!

“ECtHR’s judgment pronounced an obligation for Germany, but not for German Courts”

Oct. 2004 - German FCCt: violation of art. 6 GG (protection of family life)

BUT! (ECHR = federal statute (not supreme law!) => it’s ok to have conflicts + German Basic Law

should be applied) (“take into account”, “consider” rather than “abide by”, “obey”) Proportionality (Right of G. Under art. 8 ECHR = Right of FF. under nat. law ?) Not casatory, but declaratory effect of ECtHR´s decisions

Improving implementation of ECtHR rulings

• Creation of a sanctioning system• Must be proportional• Concretize article 46.5 of the ECHR in case of

non-implementation