Credits: Antenor Hallo de Wolf
An interview with Ioana Iliescu on the implementation of the European Court of Human Rights judgments
By Marème Lakhoune and Flore du Teilleul
In the context of the course International Human Rights Law in Practice for our LL.M. International Human Rights Law at the University of Groningen, we had the honour to interview Ioana Iliescu on the implementation of ECtHR judgments and Rule 9 Submissions.
Ioana Iliescu works as a Law and Advocacy Officer at the European Implementation Network (EIN). EIN’s work focuses on advocating for the full and effective implementation of judgments of the European Courts of Human Rights (ECtHR). It enables a dialogue between civil society across the Council Europe, and the Committee of Ministers, the decision-making body responsible for the supervision of Human Rights judgments. Ioana Iliescu previously worked as the Registry of the ECtHR and for the Romanian human rights NGO Centre for Legal Resources. She holds two master’s degrees: one in European Human Rights Law from the University of Strasbourg, and another in Public International Law from the University of Bucharest.
The interview featured here is an excerpt from a more extensive interview conducted with Ms. Iliescu.
Ms. Iliescu, in your opinion, how does the issue of non-implementation of ECtHR judgments affect the rule of law in Europe?
The non-implementation of ECtHR judgments threatens human rights, but also the credibility of the Court system, as the Court is delivering judgments faster than States are implementing them. At the beginning of 2024, there were more than 1300 leading ECtHR judgments pending implementation before the Committee of Ministers. As long as an ECtHR judgment is not fully implemented, there is a risk that similar human rights violations can reoccur. This has a negative impact on the rule of law for two reasons.
First, many of these judgments concern issues that are directly pertinent to the rule of law, democratic values and the democratic process, such as the independence and impartiality of the judiciary, freedom of expression, media freedom or freedom of assembly.
Second, the overall non-implementation of judgments is a rule of law issue in itself because, if national authorities can ignore judgments that are delivered by the European Court of Human Rights, and are not being held accountable for doing so, there is no rule of law, no system of checks and balances.
What are your main tasks as an Advocacy Officer at the European Implementation Network, and how do you ensure an effective dialogue between the Council of Europe (CoE) and NGOs for instance?
As a Law and Advocacy Officer at EIN, my main task is to provide legal support and guidance for NGOs, lawyers and applicants who are trying to engage with the ECtHR implementation process before the Committee of Ministers of the Council of Europe. I provide advice and guidance on preparing Rule 9 submission* drafts, review the submissions and provide constructive feedback. On rare occasions, I also draft submissions, if NGOs do not have the capacity to do it. The feedback and the guidance that I provide concern matters pertaining to the scope of implementation of a judgment; the individual and general measures; procedural recommendations; the language and the tone used in submissions; the structure and timing of the submission; the evidence used to substantiate it; the line of argumentation, and the need to convey only new and useful information to the process.
EIN functions as a platform between civil society and the Council of Europe, not only when it comes to submissions. We organize regular civil society briefings for the Committee of Ministers and also liaise between NGOs and the Execution Department at the Council of Europe, as well as other Council of Europe bodies. These exchanges can facilitate more in-depth dialogue about some of the cases that NGOs work on. I also work on thematic projects, mapping and matching judgments and NGOs working on specific themes and providing mentoring to NGOs who are new to the process. Together with the EIN team, we organize conferences, seminars and training events on implementation in different thematic areas.
* Rule 9 Submissions: Under Rule 9 of the Rules of the Committee of Ministers, NGOs and injured parties can submit communications in order to assist the Committee in supervising the execution of judgments.
You mentioned that you sometimes write Rule 9 submissions yourself. Have you, during your time working at the EIN, seen significant developments regarding Rule 9 submissions?
Yes. The first development I have seen is a quantitative one. There has been an important increase in the number of submissions since EIN has been set up. In 2018, there were about 70 submissions sent to the Committee of Ministers, and last year there were approximately 200. This, in part, is the result of EIN reaching out to NGOs at national level and trying to match them with judgments that fall within their scope of work. This approach helps us ensure the implementation of these judgments is being monitored by civil society, and that the Committee of Ministers receives independent information.
The second development is qualitative, seen in the immediate impact of submissions on decisions of the Committee of Ministers. For example, when the Committee delivers a decision and refers to the concerns raised by civil society, or picks up recommendations made in the submissions, this is a positive impact. The decision is an excellent advocacy tool at national level. This process has also facilitated the dialogue between national authorities and civil society; it is a forum for them to respond to each other’s input through this exchange.
The developments you mentioned are quite positive, are there any current challenges that need to be addressed to ensure Rule 9 submissions’ effectiveness?
For a Rule 9 submission to be effective and have an impact on the Committee of Ministers’ decisions, it is important that the information it puts forward falls within the scope of implementation of the ECtHR judgment. It also needs to be easy to digest and well-evidenced. If the arguments made in a submission do not fall within the scope of implementation, it risks not having any impact on the implementation process, since the Committee does not have a mandate to address issues that fall outside the judgment’s scope. This scope is determined based on the wording of the judgment and the exact problems that are identified by the Court therein.
A bigger challenge is ensuring that submissions have an impact at national level – not just on the decisions of the Committee of Ministers. How to get national authorities to accept and take on the concerns, solutions, proposals and recommendations raised by civil society? Some NGOs share their Rule 9 submissions with national authorities, and their recommendations can be taken up in action plans. They have good cooperation.
Beyond that, national advocacy for ECtHR implementation is important: this includes constructive engagement with all branches of government, as needed, as well as with the media. Also, having national structures set up specifically to address ECtHR implementation has proven to be an example of good practice. Some States have set up such mechanisms at national level, which have been quite effective in addressing the non-implementation problem. National authorities, executive bodies, and experts get together with civil society to turn judgments into reality. These governmental structures can be set up at the executive or the legislative level, taking the form of a parliamentary committee or an inter-ministerial group.
Another challenge is the limited capacity of civil society to produce effective Rule 9 submissions, and to work on implementation in general. There is now a funding crisis for civil society in Europe, which can hinder their ability to engage with the implementation process in the future, as they may have to prioritise other types of work.
You mentioned certain difficulties regarding the Rule 9 submissions, such as funding. Are the obstacles hindering effective implementation of ECtHR judgments at the national level similar to the ones hindering effective Rule 9 submissions?
They are not identical, but there is also an overlap between these two. The main obstacle at national level that hinders effective implementation is the lack of political will, followed by the lack of capacity and resources. The lack of political will, it can range from mere disinterest to covert or overt political opposition. We have seen some authorities explicitly oppose the implementation of ECtHR judgments concerning the legal recognition of same-sex couples.
The lack of national capacity can mean lack of expertise or technical knowledge, as well as the absence of appropriate structures or mechanisms to deal with ECHR implementation. On the other hand, a lack of budgetary resources can hinder the implementation of judgments which require wide reforms necessitating practical arrangements or incurring high costs. For example, reforming the mental health system or improving nation-wide detention conditions.
As for cases which require legal reforms, you need parliamentarians for that. Here, a frequent obstacle is the lack of knowledge of MPs about the fact that they have human rights obligations, the extent and nature of those obligations and the general need to comply with European human rights standards. That is another challenge that must be overcome.
Some States show more structural issues when it comes to the implementation of judgments, one current example being Azerbaijan. In cases like these, does the EIN employ more focused efforts for such States? What are your thoughts on the EIN’s implementation work in cooperation with civil society in this regard?
Regarding Azerbaijan, we have been working with victims of political persecution, as well as human rights lawyers for the past few years. We support them in making Rule 9 submissions and have provided training and mentoring on implementation matters. For example, in the case of Rashad Hasanov - where several youth activists had been arrested and convicted despite demonstrating peacefully - the applicants were eventually acquitted, but only after sustained engagement which led to increased pressure on the authorities from the Council of Europe.
We have also been working with NGOs in Azerbaijan on general measures on a select number of high-profile cases; however, the impact we have seen so far is only at the Strasbourg level.
The situation in Azerbaijan is dire and worsening. Anar Mammadli, a prominent figure in the political opposition, was re-arrested last week [the interview was conducted on the 14th of May 2024] and remains in detention. Because of the recent crackdown on civil society, and especially on journalists, there is a legitimate fear of repercussions. One of the NGOs in Azerbaijan recently decided to send their submission anonymously. To my knowledge, this is the first time in the history of Rule 9 submissions where this situation occurred. While the submission was made by an Azerbaijani NGO, it was annexed to another submission made by an international NGO, who could submit without fear of repercussions. Given that no procedure for anonymising Rule 9 submissions exists, this was an impromptu solution on which we had to decide last-minute. We do not know yet how it will be processed, or if it can be processed. In any case, this is an additional alarm signal that in Azerbaijan, the situation is so dire that civil society organizations fear making Rule 9 submissions in their own name.
Thank you, Ms. Iliescu, for taking the time to share your input with us.
Bios:
Flore du Teilleul graduated with a Bachelor Honours programme in Politics, Psychology, Law and Economics, with a major in Law from the University of Amsterdam. She is now pursuing an LL.M. in Public International Law at the University of Groningen.
Marème Lakhoune graduated from the European Law School LL.B. at Maastricht University. She is currently completing her LL.M. in International Human Rights Law at the University of Groningen.