The excellent ECHRBlog has an item on it concerning the recent call, by the Parliamentary Assembly of the Council of Europe, for the use of infringement proceedings in the context of the non-enforcement of Strasbourg judgments, a call which had a measure of support from the outgoing President of the Court ,Judge Spielmann. The ECHRBlog post- well worth reading – begins with these words:
This [last] week, both the Parliamentary Assembly of the Council of Europe (PACE) and the President of the European Court of Human Rights have called upon the Committee of Ministers to start making use of the ‘infringement’ procedure of Article 46 ECHR, introduced as part of the reforms of Protocol 14. The procedure offers the possibility to refer to the Court an issue when implementation of a judgment is hindered by either questions of interpretation (para. 3) or a refusal to abide by a judgment (para. 4). Thus far this procedure has not yet been used
Some very useful analysis follows in the ECHRblog post, and there is a link to Judge Spielmann’s speech.
Although the threat of infringement proceedings could itself be not without influence, it occurs to me that the maths behind their actual use could be rather interesting. Art 46(4) requires that a decision to bring such proceedings be ‘adopted by a majority vote of two thirds of the representatives entitled to sit on the committee’.
Taking the full number to be 47, that would require the support of at least 31 States – or, put another way, 16 States would be able to block it (if that was their inclination). (I’d need to check which States would be entitled to vote in any given case).
Looking to the Parliamentary Assembly’s Resolution as reported by ECHRBlog (and further details of which can be found here), its paras 5- 6 (text below) identifies 17 States as particularly problematic. Would those States stick together were the issue of infringement proceedings to arise? Even then, which State would be targeted first and on what basis?
Perhaps the UK would be a good example, given that the failure to change the law on prisoner voting is squarely down to lack of political will – although what progress would be made by infringement proceedings there is, I suspect, very questionable.
Here is the text of the PA Resolution I was referring to:
5. The Assembly points out that, as underlined in Resolution 1787 (2011) and Resolution 1914 (2013) , Bulgaria, Greece, Hungary, Italy, Poland, Romania, the Russian Federation, Turkey and Ukraine have the highest number of non-implemented judgments and still face serious structural problems which have not been solved for more than five years.
6. The Assembly also notes that, in a number of other States (including Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, the Republic of Moldova, Serbia and the United Kingdom), judgments revealing structural and other complex problems have not been implemented since the Assembly adopted its Resolution 1787 (2011) in January 2011.7.
7. The Assembly deplores the delays in implementation and the lack of political will of certain States parties to implement judgments of the Court. It urges all States parties to observe the legal obligation stemming from Article 46.1 of the Convention and to fully and rapidly implement Court judgments.