Abstract
The present article hopes to initiate a discussion concerning alternative methods through which applicants themselves can ensure that recalcitrant respondent States comply with their obligations to execute the judgments of the ECtHR. This may be done by mobilising related legal systems towards this end. This paper focuses on the 'just satisfaction' element of the judgment and examines one possible avenue through which applicants themselves can secure their payment. The relevant course of action has two elements: (i) securing the recognition of the ECtHR's order to pay within the national legal order of a non-respondent High Contracting Party to the Convention and requesting that the relevant national court issue a third-party debt order against the European Commission and (ii) securing the waiver of the European Commission's immunity.
Highlights
A judgment of the European Court of Human Rights which finds that a European Convention on Human Rights1 right has been violated creates a three-fold secondary obligation incumbent on the respondent State to:2 (i) pay just satisfaction to the applicant; (ii) implement individual measures with a view to achieving restitutio in integrum3 and (iii) implement general measures
The incomplete execution of judgments indicates that the protection afforded under the ECHR may be rendered ineffective when faced with a recalcitrant State4 This undermines the credibility of the Convention regime
This paper proposes an alternative avenue to ensure the execution of ECtHR judgments using national legal orders and other related legal institutions, such as the EU legal framework
Summary
A judgment of the European Court of Human Rights (hereinafter: ECtHR or the Court) which finds that a European Convention on Human Rights (hereinafter: ECHR or the Convention) right has been violated creates a three-fold secondary obligation incumbent on the respondent State to: (i) pay just satisfaction to the applicant (see Article 41 ECHR); (ii) implement individual measures with a view to achieving restitutio in integrum and (iii) implement general measures. The second limitation is that the paper does not conduct an exhaustive survey of possible ways in which national law may be utilised to ensure the execution of the ECtHR's judgments but examines one potential claim in depth, leaving it to others to devise their own course of action within their respective national systems. Within these parameters, this paper hopes to answer the following question: How can we utilise the existing legal framework - as well as related legal orders and institutions - to ensure that the just satisfaction awarded by the ECtHR is paid?.
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