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consistent with the principles enunciated in the judgment.70 To direct a state to ensure that a specific sentence in a particular case is changed (from life imprisonment to a period of less than thirty years, in accordance with the domestic law) goes significantly further than merely urging – or indeed, requiring – that domestic proceedings be reopened. The rationale for this was simply expressed, and was therefore not illuminating: ‘having regard to the particular circumstances of the case and the urgent need to put an end to the breach of articles 6 and 7 of the Convention’.71 It could be argued that this goes too far – in prescribing not just how the state should respond, but also how the judicial authorities should do so. The equivalent result could have been achieved by ordering a retrial: the conclusions of the Court mean that had the applicant been retried and found guilty, he could not have been sentenced to more than 30 years’ imprisonment.

3.3 The release of detainees

The urgency of cases relating to individuals unlawfully detained has led the Court, since 2004, to issue states (primarily, to date, from the former Soviet bloc) with binding directives to secure their release. The first two such instances arose in exceptional situations where a separatist entity had seized de facto control from the host country. The applicant in Assanidze v. Georgia72 remained in detention in the Ajarian autonomous province of Georgia three years after the Georgian Supreme Court had acquitted him and ordered his release. The Georgian government had taken both legal and political steps to ensure his release, but without success. The Grand Chamber held that the applicant’s continuing detention was arbitrary and in violation of both articles 5(1) and 6(1). In view of its urgency, the Court ordered the respondent state to ‘secure the applicant’s release at the earliest possible date’. As in the Scoppola judgment, the Court’s reasoning for taking such an unprecedented step was not especially informative: ‘by its very nature, the violation found in the instant case does not leave any real choice as to the measures required to remedy it’. A similar decision was made by the Grand Chamber in

Ilaşcu and Others v. Russia and Moldova,73 in which the Court held, inter

73ECtHR, Ilaşcu and Others v. Russia and Moldova (Appl. No. 48787/99), Judgment (Grand Chamber), 8 July 2004, Reports 2004-VII.

alia, that three applicants had been, and continued to be, unlawfully detained in the ‘Moldavian Republic of Transdniestria’, a region of Moldova which declared its independence in 1991, but which has not been recognised by the international community. They had been convicted by the ‘Supreme Court of the Moldavian Republic of Transdniestria’, which had been set up by an entity which was illegal under international law. The Court ordered the two respondent states to secure their immediate release, reasoning that:

… any continuation of the unlawful and arbitrary detention of the three applicants would necessarily entail a serious prolongation of the violation of Article 5 found by the Court and a breach of the respondent states’ obligation under Article 46(1) of the Convention to abide by the Court’s judgment. Regard being had to the grounds on which they have been found by the Court to be in violation of the Convention … the respondent states must take every measure to put an end to the arbitrary detention of the applicants still detained…74

There was a similar conclusion in Aleksanyan v. Russia,75 in which the Court found several violations of the Convention relating to the detention on remand of the applicant, Vasiliy Aleksanyan, Mikhail Khodorkovskiy’s former lawyer. The Court found that his serious, lifethreatening illnesses (he was HIV-positive) could not be adequately treated in his remand prison, and also that his detention did not serve any meaningful purpose under article 5, as the proceedings against him had been suspended and were unlikely to be reopened in the foreseeable future. The Court concluded that his continuing detention was unacceptable, and accordingly ordered the government to introduce other, less stringent measures of restraint, in accordance with Russian law. It was the gravity of the applicant’s ill-health which stands out in this case, and which may therefore have been determinative of the Court’s stance on ordering his release, but his poor state of health cannot be said to be unique amongst Court applicants. The Court further developed its approach in the case of Tehrani and Others v. Turkey,76 which concerned the detention of four Iranian applicants in Turkey because of their involvement with the People’s Mojahedin Organisation of Iran (PMOI).

74Ibid., para. 490.

75ECtHR, Aleksanyan v. Russia (Appl. No. 46468/06), Judgment (First Section), 22 December 2008, not reported.

76ECtHR, Tehrani and Others v. Turkey (Appl. Nos. 32940, 41626 and 43616/08), Judgment (Second Section), 13 April 2010, not reported.

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Having found a violation of article 5(1) and (4), because of the absence of clear legal provisions governing their deprivation of liberty, or a mechanism by which they could have the lawfulness of their detention swiftly judicially reviewed, and in view of the ‘urgent need’ to put an end to it, the Court ordered the Turkish state to secure the release of the two applicants still being held at an accommodation centre. The Court also stipulated that it should not re-detain the other two applicants who had previously been released (an interesting example of a form of ‘injunctive relief ’, with the Court acting in anticipation of a potential future violation of the Convention).

In its 2010 judgment in Fatullayev v. Azerbaijan,77 the First Section of the Court went further than stipulating the release of a detainee because of a procedural breach of the Convention (under article 5), by adopting a similar position in a case highlighting the repression of the media. Criminal proceedings for defamation, threatening terrorism, inciting ethnic hostility and tax evasion, had been brought against the newspaper editor Eynulla Fatullayev, following the publication of his articles on the Nagorno-Karabakh war and concerning Azerbaijan’s position as regards US–Iranian relations. As a consequence, he had been sentenced to periods of imprisonment of 2-and-a-half years and 8-and-a-half years. The Court found that the interferences with Mr. Fatullayev’s freedom of expression were not justified under article 10(2), and in assessing the severity of the penalties imposed on him, it explicitly found that there was no justification for imprisoning him. Furthermore, the Court was also concerned that the treatment meted out to him was ‘capable of producing a chilling effect on the exercise of journalistic freedom of expression in Azerbaijan and dissuading the press from openly discussing matters of public concern’.78 Invoking article 46, the Court ordered the respondent government to secure his immediate release (even though there had been no such order by a domestic body, as there had been, for example, in Assanidze), referring to the urgency of the need to end a continuing violation of the Convention. Such a stipulation was said to be the only way of providing redress: ‘by its very nature, the situation found to exist in the instant case does not leave any real choice as to the measures required to remedy the violations of the applicant’s Convention rights’. There had been no violation of article 5, and so the decision

77ECtHR, Fatullayev v. Azerbaijan (Appl. No. 40984/07), Judgment (First Section), 22 April 2010, not reported.

78Ibid., para. 128.

marks an extension of the Court’s practice – to cases where detention resulted from an unjustifiable breach of another of the Convention’s substantive provisions, such as the right to freedom of expression.

In each of the three areas considered above (restitution of property, unfair trials and unlawful detention), the application of the maxim restitutio in integrum was perceived to be of particular relevance, arguably especially as regards the release of detainees and the return of property. The Court’s justification for its more incisive approach as regards redress in these situations is lacking in particularity. The nature and gravity of the Convention violation are certainly relevant and important factors, as, of course, is the efficacy of the particular direction stipulated. In any event, the Court’s increasingly directive approach, as exemplified by the cases discussed above, is to be welcomed as providing greater clarity. For the respondent government (and its constituent elements which may be involved in the implementation process) it means that there is a much greater degree of certainty as to what exactly is required of it. In addition, it should aid applicants’ understanding of what should follow from Strasbourg judgments. This added clarity and certainty ought to mean swifter implementation, and if that is not the case in practice, it will be easier for the Committee of Ministers to assess whether or not compliance has been achieved. Whether the Court’s developing approach to redress complies or conflicts with the principle of subsidiarity needs to be considered ‘in the round’. In other words, in order to make such an assessment, the totality of the Court’s functions and practice have to be taken into account, as does the wider context in which the Court is now operating. Subsidiarity is reflected and acknowledged by the Court both procedurally (take, for example, the obligation on all applicants to exhaust domestic remedies before going to the Court) and in its substantive case law (to give one important example, by applying the doctrine of the margin of appreciation). The context for the Court has been, increasingly in recent years, one of a heavy burden of applications, caused to a significant extent by the failure to implement the Convention at the national level. Therefore, whilst the Court’s position on redress has undoubtedly become more prescriptive, it would not be correct to portray such developments as being in contravention of the subsidiarity principle – as the national authorities will always have had the opportunity to resolve the violations at issue, and only where they have failed to do so will the Court take decisive action. In the face, in particular, of high levels of non-compliance, the Court is justified in its more interventionist stance.

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The next section moves on from deserving individual cases, to consider remedies in situations revealing broader, systemic problems.

3.4 Systemic Convention violations

Arguably more significant than the Court’s increasing interventionism in the scenarios already discussed has been its development of new measures aimed at resolving structural Convention violations more efficiently. Introduced through judicial innovation in 2004, the pilot judgment procedure was formally codified in the Court’s Rules in 2011, and in that period has become one of the central pillars of reform.79 Allied to this procedure has been the relatively frequent utilisation of article 46 of the Convention, together with article 41, in other cases highlighting systemic Convention breaches. Both developments signal a more incisive activism vis-à-vis the slothfulness, or even recalcitrance, of states which have been the sources of hundreds or thousands of clone cases which have been plaguing the Court. To describe them as ‘clone’ cases is perhaps to downplay their importance. It is true to say that they relate to issues which have already repeatedly come before the Court, and therefore, perhaps it is justifiable to argue that the Court should not have to bother with them. However, it is their source that is especially important – very large-scale systemic or structural issues often caused by defective legislation. If states can be induced to resolve such issues in a much more efficient way, then this should have a significant impact both within the states and on the Court’s overwhelming backlog.

3.4.1 Pilot judgments

Although primarily a result of ‘judicial engineering’,80 the development of the pilot judgment procedure appears to have firm support from states, as the Court was explicitly encouraged in the early 2000s by the Committee of Ministers to identify both the prevalent structural problems and their source.81 It is these aspects which have formed the heart

79See further, P. Leach et al., Responding to Systemic Human Rights Violations – An Analysis of Pilot Judgments of the European Court of Human Rights and their Impact at National Level (Antwerp, Oxford, Portland: Intersentia, 2010) (hereinafter Leach et al.,

Responding to Systemic Violations).

80A term used by Judge Spielmann in his presentation to the ‘Expert Seminar: The Future of the European Court of Human Rights’, Institute for Human Rights, Katholieke Universiteit Leuven, Leuven, 2 September 2011.

81Council of Europe, ‘Resolution Res(2004)3 of the Committee of Ministers on Judgments Revealing an Underlying Systemic Problem’, 12 May 2004.

of the pilot judgment procedure: the identification by the Court of a systemic violation of the Convention and its stipulation of ‘general measures’ in the operative part of the judgment in order that the respondent state should resolve the systemic issue. It was not until April 2011 that the procedure was confirmed by way of a new Court Rule, marking its ‘coming of age’.82 Rule 61 formalises a flexible judicial tool aimed at resolving large-scale, endemic dysfunctions, and empowers the Court to identify ‘the type of remedial measures which the Contracting State concerned is required to take at the domestic level by virtue of the operative provisions of the judgment’. All pilot cases are to be granted priority treatment (in accordance with Rule 41). The rule also codifies another important innovation which had already been a key feature of pilot judgments – that the Court may impose binding time limits (again using its operative provisions) within which the specified remedial measures must be adopted by states. There is a recognition that such time limits may vary, as Rule 61 provides that they are to be set ‘bearing in mind the nature of the measures required and the speed with which the problem which it has identified can be remedied at the domestic level’. The Court may also reserve the question of just satisfaction in individual cases, pending the adoption by the state of the stipulated individual and general measures. Furthermore, the Court may adjourn the examination of all similar applications pending the adoption of the remedial measures.

Since the instigation of the procedure in 2004, the majority of pilot judgments to date have been property-related cases (concerning article 1 of Protocol No. 1) and have notably featured the non-enforcement of domestic court judgments and the excessive length of legal proceedings. The respondents have predominantly been states from Eastern Europe (Poland,83 Romania84 and Bulgaria85) and the former Soviet bloc

82ECtHR, ‘Rule 61 of the Rules of Court’, 1 April 2011. It was preceded by the Court’s Information Note on the pilot judgment procedure, see: www.echr.coe.int/NR/rdonlyres/DF4E8456-77B3- 4E67-8944-B908143A7E2C/0/Information_Note_on_the_PJP_for_Website.pdf. The Court had previously issued an Information Note on the procedure – available at www.echr.coe.int/ ECHR/EN/Header/Basic+Texts/The+Convention+and+additional+protocols/The+European +Convention+on+Human+Rights/.

83ECtHR, Broniowski v. Poland (Appl. No. 31443/96), Judgment (Grand Chamber), 22 June 2004, Reports 2004-V; ECtHR, Hutten-Czapska v. Poland (Appl. No. 35014/97), Judgment (Grand Chamber), 19 June 2006, Reports 2006-VIII.

84ECtHR, Atanasiu and Others v. Romania (Appl. Nos. 30767/05 and 33800/06), Judgment (Third Section), 12 October 2010, not reported.

85ECtHR, Dimitrov and Hamanov v. Bulgaria (Appl. Nos. 48059/06 and 2708/09), Judgment (Fourth Section), 10 May 2011, not reported.

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(Ukraine,86 Russia87 and Moldova88). However, more recently, states from Western and Central Europe have also been targeted by pilot judgments: Germany89 and Greece90 have been the subject of length of proceedings pilot judgments; Bosnia and Herzegovina has featured in a case concerning lost foreign currency savings;91 and the UK was the subject of a pilot judgment relating to the disenfranchisement of convicted prisoners.92

The Court’s stance on remedial measures in these cases has varied in terms of both its specificity and the time periods imposed. As regards endemic problems relating to the length of proceedings, the Court has required states to introduce an effective domestic remedy (or combination of remedies) within one year, as it did in Rumpf v. Germany,93 Vassilios Athanasiou and Others v. Greece94 and Dimitrov and Hamanov v.

Bulgaria.95 A similar form of general measures has been stipulated in cases concerning the non-implementation of domestic court judgments, either within six months (Olaru and Burdov) or twelve months (Ivanov). In each of those cases, the respondent states were also required to provide redress to the applicants within a year. The systemic problem identified in the pilot judgment of Maria Atanasiu and Others v. Romania96 was the applicants’ inability to obtain restitution of their nationalised properties or

86ECtHR, Yuriy Nikolayevich Ivanov v. Ukraine (Appl. No. 40450/04), Judgment (Fifth Section), 15 October 2009, not reported.

87ECtHR, Burdov v. Russia (No. 2) (Appl. No. 33509/04), Judgment (First Section), 15 January 2009, Reports 2009 (extracts).

88ECtHR, Olaru and Others v. Moldova (Appl. Nos. 476/07, 22539/05, 17911/08 and 13136/07), Judgment (Fourth Section), 28 July 2009, not reported.

89ECtHR, Rumpf v. Germany (Appl. No. 46344/06), Judgment (Fifth Section), 2 September 2010, not reported.

90ECtHR, Vassilios Athanasiou and Others v. Greece (Appl. No. 50973/08), Judgment (First Section), 21 December 2010, not reported.

91ECtHR, Suljagić v. Bosnia and Herzegovina (Appl. No. 27912/02), Judgment (Fourth Section), 3 November 2009, not reported.

92ECtHR, Greens and MT v. United Kingdom (Appl. Nos. 60041 and 60054/08), Judgment (Fourth Section), 23 November 2010, Reports 2010 (extracts).

93ECtHR, Rumpf v. Germany. See also ECtHR, Sürmeli v. Germany (Appl. No. 75529/01), Judgment (Grand Chamber), 8 June 2006, Reports 2006-VII.

94ECtHR, Vassilios Athanasiou and Others v. Greece.

95ECtHR, Dimitrov and Hamanov v. Bulgaria (Appl. Nos. 48059/06 and 2708/09), Judgment (Fourth Section), 10 May 2011, not reported.

96ECtHR, Maria Atanasiu and Others v. Romania (Appl. Nos. 30767/05 and 33800/06), Judgment (Third Section), 12 October 2010, not reported. See also ECtHR, Viaşu v. Romania (Appl. No. 75951/01), Judgment (Third Section), 9 December 2008, not reported; ECtHR, Faimblat v. Romania (Appl. No. 23066/02), Judgment (Third Section),

to secure compensation. In those circumstances, the Court allowed the state a longer period – 18 months – within which to take the measures needed to resolve the issue. This extended period was not explicitly justified by the Court, but it is likely to have reflected the sheer scale of the problem of property restitution in Romania, the complexity of the relevant legislation and the considerable burden on the state budget, each of which was referred to by the Court in its judgment. In view of such complexity, interestingly the Court was also willing to afford the Romanian authorities a larger degree of discretion as regards the very nature of the general measures to be introduced:

Balancing the rights at stake, as well as the gains and losses of the different persons affected by the process of transforming the State’s economy and legal system, is an exceptionally difficult exercise involving a number of different domestic authorities. The Court therefore considers that the respondent State must have a considerable margin of appreciation in selecting the measures to secure respect for property rights or to regulate ownership relations within the country, and in their implementation.97

The granting of such relative leeway in Maria Atanasiu can be contrasted with the Court’s rather more prescriptive approach in Suljagić v. Bosnia and Herzegovina. There, the Court found a systemic violation of article 1 of Protocol No. 1 as a result of the government’s failure adequately to reimburse applicants for foreign currency savings deposited in national banks in the former Yugoslavia before 1991. In the operative provisions of the judgment, the Court stipulated that government bonds and outstanding instalments should be issued within six months of the judgment becoming final. This would seem to be an approach that is more invasive of state sovereignty than the more generalised requirements adopted in previous pilot judgments, but it can be explained, as such provisions mirror the obligations already established in domestic legislation, but which had not been effectively implemented. For the Court, ‘having undertaken to repay “old” foreign-currency savings in locally based banks and having set up a repayment scheme in this regard, the respondent State must stand by its promises.’98

13 January 2009, not reported; ECtHR, Katz v. Romania (Appl. No. 29739/03), Judgment (Third Section), 20 January 2009, not reported.

97Ibid.; Maria Atanasiu and Others v. Romania, para. 233.

98ECtHR, Suljagić v. Bosnia and Herzegovina (Appl. No. 27912/02), Judgment (Fourth Section), 3 November 2009, not reported, para. 56.

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One case which stands out in terms of its subject matter and the reactions it has engendered, is the Court’s pilot judgment in Greens and MT v. UK.99 In tackling the question of votes for prisoners, this seems far removed from the property-related, endemic problems which have been the usual targets of the pilot judgment procedure. Does the decision, therefore, signal an expansion of the Court’s purview? This was only the second judgment on this issue as regards the UK, but it is not unknown for the procedure to be adopted in respect of one of the first cases pending at the Court raising a particular systemic problem, as was the position in Broniowski v. Poland, the Court’s first pilot judgment. Greens followed the Grand Chamber judgment in Hirst five years earlier,100 but the response to that judgment had been procrastination and outright political opposition to the notion of altering the legislative ban on any convicted prisoner from voting whilst they remain in prison.101 The Greens judgment imposed a binding obligation on the UK government to bring forward proposals to amend the legislation within a mere six months of the judgment becoming final. This relatively prescriptive time limit is likely to reflect the relative clarity and ease (legally, if not politically) of resolving the issue – by amending the Representation of the People Act 1983. As the Court had decided in both cases not to award any damages (pecuniary or non-pecuniary) to the prisoner complainants, there would be no need for the UK authorities to establish a system for providing redress to individual applicants (unlike the position in other pilot judgments). This, then, is apparently a development moving closer to what President Costa advocated, when he suggested that consideration be given to introducing ‘class actions’ and ‘collective applications’ into the Strasbourg armoury.102 It represents a step change from the Court’s traditional focus on individualised cases, and one which seeks to emphasise the importance of tackling wider systemic issues (which may be common to a number of Council of Europe states). To that extent, the increasing ‘constitutionalisation’ of the Court is a welcome, and indeed necessary, development.

99ECtHR, Greens and MT v. UK.

100ECtHR, Hirst v. UK (No. 2) (Appl. No. 74025/01), Judgment (Grand Chamber), 6 October 2005, Reports 2005-IX.

101A House of Commons backbench motion in February 2011 to the effect that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers’, and supporting the existing ban on sentenced prisoners from voting, was carried by 234 votes to 22.

102Memorandum of the President of the European Court of Human Rights to the States with a View to Preparing the Interlaken Conference (3 July 2009), 8.

The domestic furore which has followed the Hirst and Greens judgments results primarily from the contentiousness of the issue at the heart of the cases. The controversy arose because of the unwillingness to implement Hirst (which was not a pilot judgment), however, tensions have undoubtedly been heightened by the application of the pilot judgment procedure in the Greens case, because of the explicit directive to amend the legislation, and to do so within just six months.103 As the issue remains unresolved at the time of writing, it is too early to assess whether the use of the pilot judgment procedure will have had a positive or negative impact on implementation in this particular context. The situation has caused a mini-constitutional crisis in the UK, reflecting real concern, in some quarters, that the sovereign will of Parliament is being threatened by judges – and worse, judges from an international court. This position was exemplified by Kenneth Clarke, the then Secretary of State for Justice, when he declared at the Izmir Conference in April 2011:

If the Strasbourg Court is too ready to substitute its own judgment for that of national parliaments and courts that have through their own processes complied with the Convention, it risks turning the tide of public opinion against the concept of international standards of human rights, and risks turning public opinion against the Convention itself. In Britain, it is going to be really quite difficult to persuade Parliament to pass legislation to comply with the Court’s judgment on votes for prisoners. This is regarded by our Parliament as a domestic political issue, on which there are valid arguments on both sides.104

3.4.2 Article 46 judgments

Over the same period in which the Court has developed the pilot judgment procedure, it has also been evolving a practice of issuing ‘Article 46 judgments’. These are decisions which similarly highlight systemic or structural problems which have been the source of repeated Convention violations. In these decisions, the Court refers to the legal

103The UK government subsequently intervened as a third party in ECtHR, Scoppola v. Italy (No. 3) (Appl. No. 126/05), Judgment (Second Section), 18 January 2011, not reported (Grand Chamber hearing held on 2 November 2011), and was granted an extension of 6 months after the Scoppola judgment within which to comply with the Greens decision.

104Speech by Rt. Hon. Kenneth Clarke QC MP, Secretary of State for Justice, Lord Chancellor, 26 April 2011, High Level Conference on the Future of the European Court of Human Rights, Izmir, 26–7 April 2011. Available at: www.coe.int/t/dghl/standardsetting/conferenceizmir/Speeches/Speech%20UK.pdf.