How ECtHR judgments are enforced: the Committee of Ministers and Article 46

What a final judgment requires

Under Article 46 § 1, the High Contracting Parties "undertake to abide by the final judgment of the Court in any case to which they are parties."

Article 41 provides that if the Court finds a violation and the internal law of the state allows only partial reparation, the Court shall, if necessary, afford just satisfaction to the injured party. Payment of any sum awarded is one part of execution. The Convention does not list the other parts in detail. They are usually described in two groups: measures for the individual applicant, such as reopening a case or ending a detention, and general measures to prevent a similar violation, such as changes to a law or a practice. Execution therefore has three parts:

• Payment of the just satisfaction awarded, where the Court awards it.
• Individual measures that address the applicant's situation.
• General measures that address the cause of the violation for other people.

Who supervises: the Committee of Ministers

Article 46 § 2 states that "the final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution." The Court's own role after the judgment becomes final is limited to the situations the Convention names, such as an interpretation request or an infringement referral.

The Committee's rules for supervision give the injured party a voice. Rule 9.1 says the Committee shall consider any communication from the injured party about payment of just satisfaction or the taking of individual measures, and the Secretariat forwards such communications to the state concerned. Non-governmental organisations and national human rights institutions may also send written communications under the same rule, as amended in 2006. A communication helps when the state's reports do not match what the applicant sees at home, for example when domestic courts repeat the reasoning that the Strasbourg Court found to violate the Convention.

The Committee asks the state for an action plan, or an action report, describing the measures it has taken or plans to take.

The three Article 46 routes back to the Court

The Convention gives the Committee of Ministers two ways to go back to the Court, and it gives the Court a duty after the second. The wording is exact, and the voting majorities differ from what some summaries say:

1. Interpretation (Article 46 § 3). If the Committee considers that supervision is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision needs a majority vote of two-thirds of the representatives entitled to sit on the committee. The Court's decision is final and no separate opinion of the judges may be delivered (Rules of Court, Rule 98).
2. Infringement proceedings (Article 46 § 4). If the Committee considers that a state refuses to abide by a final judgment, it may, after serving formal notice on that state and by a decision adopted by a two-thirds majority of the representatives entitled to sit on the committee, refer to the Court the question whether the state has failed to fulfil its obligation under paragraph 1.
3. Outcome (Article 46 § 5). If the Court finds a violation of paragraph 1, it refers the case back to the Committee of Ministers for consideration of the measures to be taken. If it finds no violation, it refers the case to the Committee, which closes its examination.

How an infringement referral is heard

The Rules of Court set out the procedure in Chapter XI (Rules 99 to 104). The referral request must be reasoned and must be accompanied by the judgment concerned, information about the execution proceedings before the Committee, copies of the formal notice and of the decision referring the question, and the name and address of the person appointed by the Committee to give the Court explanations (Rule 100). A Grand Chamber is constituted to consider it (Rule 101). The Committee and the parties may submit written comments (Rule 102), the Grand Chamber may hold a hearing (Rule 103), and it decides by judgment (Rule 104).

The Court in this procedure does not re-examine the original violation. It looks at whether the state has failed to fulfil its obligation under Article 46 § 1.

Two cases where the infringement procedure was used

The Grand Chamber gave its first judgment under Article 46 § 4 in Ilgar Mammadov v. Azerbaijan on 29 May 2019. The Committee of Ministers had referred the question on 5 December 2017, the first time it used the procedure, and the Grand Chamber found that Azerbaijan had not fulfilled its obligation under Article 46 § 1 to comply with the Court's 2014 judgment.

In Kavala v. Türkiye, the Committee of Ministers referred the question on 2 February 2022, and the Grand Chamber found on 11 July 2022 that Türkiye had failed to fulfil its obligation to abide by the Court's judgment of 10 December 2019. Both are examples of the Court applying Article 46 § 4 and then returning the matter to the Committee of Ministers under Article 46 § 5.

What this means for a person who won in Strasbourg

Execution is not automatic and not quick. A person who has a final judgment can check three things: whether the awarded sum has been paid, whether any individual measure the judgment calls for has been taken, and whether the domestic authorities still apply the practice that the Court condemned. If they have not, a communication to the Committee of Ministers is one way to put the facts before it. For the Turkish procedure that reopens a domestic case after a Strasbourg judgment, see applying to the ECtHR from the U.S..