An Examination of the European Court of Human Rights’ Indication of Remedial Measures

Alastair Mowbray

doi:10.1093/hrlr/ngx015

Abstract

This article studies the development and current practice of the European Court of Human Rights when it indicates non-financial remedial measures following the determination that violations of the European Convention on Human Rights have occurred. Analyses of the jurisprudence and statistical data derived from the Committee of Ministers’ supervisory reports are used to explain, inter alia, the types of remedial measures indicated, the reasons justifying the Court indicating such measures (in the text and operative parts of judgments) and the challenges facing the Court resorting to ‘Article 46 judgments’.

Highlights

Over recent years the European Court of Human Rights (“the Court” or “the ECtHR”) has become increasingly involved in identifying, either in the text of its judgments or in the operative part of those judgments, remedial measures to respondent States going beyond the payment of just satisfaction to successful applicants
We have discovered how in recent times the Court has indicated non-financial remedies in nearly six times more “Article 46 judgment” cases than in formal pilot judgment cases
We have ascertained that during this time the Court has been indicating general remedial measures far more frequently than individual measures

Summary

Introduction

Over recent years the European Court of Human Rights (“the Court” or “the ECtHR”) has become increasingly involved in identifying, either in the text of its judgments or in the operative part of those judgments, remedial measures to respondent States going beyond the payment of just satisfaction to successful applicants. The first cases addressing situations of this kind were decided by the ECtHR in 2004, and in both cases the ECtHR ordered the release of applicants who were being arbitrarily detained.”[22] In its second annual report the Committee of Ministers added that: “The Court had previously developed some practice in this direction in certain property cases by indicating in the operative provisions that states could choose between restitution and compensation – see e.g. the Papamichalopoulos and Others judgment of 31 October 1995 (Article 50).”[23]. The two well-established forms of non-financial remedies under the ECHR are individual measures which are designed to provide redress for the Convention violations suffered by the specific applicant, for example securing the release of Assanidze[36] and general measures, such as the enactment of legislation reforming the status of judges[37], that address the systemic defects disclosed in a judgment

Type of Remedy Number of cases

Importance Level of

Individual Measures Individual and General Measures

Conclusions