Integrating International Human Rights Law Treaties in domestic law: main factors

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Strasbourg, 8 December 2014

Study No. 690/2012

CDL-AD(2014)036

Engl. only

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

REPORT

ON THE IMPLEMENTATION

OF INTERNATIONAL HUMAN RIGHTS TREATIES

IN DOMESTIC LAW

AND THE ROLE OF COURTS

adopted by the Venice Commission

at its 100

plenary session

(Rome, 10-11 October 2014)

on the basis of comments by

Ms Veronika BÍLKOVÁ (Member, Czech Republic)

Ms Anne PETERS (Substitute Member, Germany)

Mr Pieter van DIJK (Expert, The Netherlands)

CDL-AD(2014)036 2

TABLE OF CONTENTS

INTRODUCTION .................................................................................................................... 3

I. IMPLEMENTING INTERNATIONAL HUMAN RIGHTS TREATIES IN

DOMESTIC LAW: THE LEGAL FACTORS ........................................................................... 5

A. Domestic law factors influencing the legal effect of human rights treaties in domestic

law 6

1. Factor 1: Conceptualisation of the relation between international and domestic legal

orders ......................................................................................................................... 6

2. Factor 2.- Status: hierarchy of human rights treaties within domestic legal orders .... 10

3. Factor 3: Direct and indirect effect and the interpretation clauses in domestic

constitutions .............................................................................................................. 13

4. Factor 4: Legislation enabling the reception of human rights treaties and monitoring

bodies decisions into the domestic legal order .......................................................... 15

B. International law factors influencing the legal effect of human rights treaties in

domestic law ............................................................................................................. 17

1. Human Rights treaties as special treaties under international law ............................. 17

2. Factors specifically present in the European system of human rights ....................... 18

3. Factors specifically present in the Inter-American system of human rights ................ 19

4. Factors specifically present in the International Covenant on Civil and Political Rights.21

II. THE ROLE OF INTERNATIONAL HUMAN RIGHTS TREATIES MONITORING

BODIES IN IMPLEMENTING HUMAN RIGHTS TREATIES ................................................ 22

A. The European system of human rights ...................................................................... 22

1. Effects of the case-law of the ECtHR ......................................................................... 22

2. Supervision of the execution of judgments by the Committee of Ministers ................ 24

B. The Inter-American System of Human Rights Protection........................................... 26

1. Effects of judgments and Commission’s reports ........................................................ 26

a. The Inter-American Court’s judgments ...................................................................... 26

b. Effects of the Commission’s decisions and follow-up ................................................. 27

2. Supervision of the execution of its judgments by the IACtHR .................................... 28

C. The case of the United Nations Human Rights Committee (HRC) ............................. 30

1. Effects of the HRC’s views and conclusions .............................................................. 30

2. Follow-up action ........................................................................................................ 31

III. THE ROLE OF DOMESTIC COURTS IN THE IMPLEMENTATION OF

INTERNATIONAL HUMAN RIGHTS TREATIES ................................................................. 33

A. The role of domestic courts in implementing International human rights treaties

provisions ................................................................................................................. 34

1. The conflict between an international human rights treaty provision and the

constitution ............................................................................................................... 35

2. The possible conflict between an international human rights treaty provision and a

domestic legal regulation (in abstracto control) or general policy .............................. 37

B. The role of domestic courts in implementing decisions of international human rights

treaties judicial bodies: .............................................................................................. 39

CONCLUSIONS ................................................................................................................... 44

CDL-AD(2014)036

INTRODUCTION

1. In 2012, the Sub-Commission on Latin America of the Venice Commission decided to

prepare a Report on the implementation of international human rights treaties in the

domestic legal orders, with a special focus on Europe and Latin America and on the role

of the judiciary.

2. International law, and international human rights treaties in particular, plays an

important role at the national level and has a clear impact on domestic law. Indeed,

international human rights treaties deal directly with the relations between public

authorities and private actors within national societies. The Venice Commission has

previously assessed the issue of the importance of international human rights treaties,

their hierarchy and status and impact, mainly taking into consideration European

domestic legal orders.

There also exists a numerous and comprehensive literature on

the relationship between international human rights treaties and domestic Law, at least

concerning the European experience.

3. The purpose of the present Report is to contribute to exploring the different elements

which influence the implementation of human rights within national legal orders and the

role that national and international courts play in this context. International human rights

treaties impose obligations upon their States parties. This has important implications for

all national authorities, not only the executive and the legislative bodies, but also the

judiciary. The Venice Commission considers that courts are key actors which exercise in

a meaningful way the review of the compatibility of domestic legislation with international

human rights treaties.

4. Courts are relevant on two levels: domestic courts can set in motion a “diffuse review

of compatibility” between domestic legal acts and international human rights treaties.

This term makes reference to the review carried out by domestic courts concerning the

conformity with human rights treaties; it is usually called a “review of conventionality”,

especially when the review concerns the European and the American Conventions on

See the European Commission for Democracy through Law (hereafter referred to as Venice Commission),

Draft report on case-law regarding the supremacy of International Human Rights Treaties, on the basis of

comments by Mr Dutheillet de Lamothe, CDL-DI(2004)005; see also Idem, The Status of International

Treaties on Human Rights - Science and technique of democracy, No. 42 (2005), Council of Europe

Publishing; Idem, The relationship between International and Domestic Law, No. 5 (1993), Council of

Europe Publishing, CDL-STD(1993)005; Idem, The relationship between International and Domestic Law,

on the basis of the comments by Mr C. Economides, No. 6 (1993), Council of Europe Publishing, CDL-

STD(1993)006.

Just to cite some of the most important works produced concerning the relationship between the European

Convention on Human Rights and domestic law, see R. BLACKBURN and J. POLIAKIEWICZ, The

European Convention on Human Rights and its Member States, 1950-2000 (Oxford UP ca. 2000); P. VAN

DIJK, F. VAN HOOF, A. VAN RIJN and L. ZWAAK (eds), Theory and Practice of the European Convention

on Human Rights, 4

edition, Intersentia 2006; H. KELLER and A. STONE SWEET (eds.), A Europe of

rights. The impact of the ECHR on National Legal Systems, Oxford University Press, 2006; see in French,

D. SZYMCZAK, La Convention européenne des droits de l’homme et le juge constitutionnel national,

Collection des « Publications de l’Institut international des droits de l’homme » n°7, Bruxelles, Bruylant,

2007 ; or specifically on the implementation of the European Court of Human Rights’ case-law, E.

LAMBERT, Les effets des arrêts de la Cour européenne des droits de l’homme. Contribution à une

approche pluraliste du droit européen des droits de l’homme, Bruxelles, Bruylant, 1999, followed by

L’exécution des arrêts de la Cour européenne des droits de l’homme, Council of Europe Publishing, 2002.

CDL-AD(2014)036 4

Human Rights. This review is, by its very nature, a “diffuse” type of review, as national

courts may exercise it in a different context, give their own interpretation of the legal

provisions involved, and take their own decision on the compatibility of the applicable

national legal provision with the human rights treaty in question.

5. In addition, the European and the Inter-American Court of Human Rights, which have

jurisdiction to review the compliance by the States with their obligations under the

respective Conventions, have built an elaborated case-law and have become an

“autonomous source of authority”

when interpreting the meaning and determining the

scope of the human rights laid down in the European Convention on Human Rights and

the American Convention on Human Rights respectively. They also carry out an “ex-

post” review of the compatibility of domestic law with the respective Conventions. This

review is “concentrated”, as opposed to the diffuse review exercised by the domestic

courts, and it has a harmonising effect through the binding character of its case-law.

6. A larger number of constitutions grant priority to all international treaties (including

human rights treaties) over conflicting national law, although not necessarily over the

state’s constitution. Besides, most States include within their constitutional or legislative

system clauses, provisions, or sections embodying human rights standards. Sometimes,

these standards appear in a more comprehensive “bill of rights,” which is constitutionally

entrenched and which under certain conditions enables courts to annul inconsistent

legislation or governmental acts. What matters at least as much as the constitutional text

is the domestic case-law fleshing out the constitutional provisions. The parallelism

between constitutional references to international human rights and the internal human

rights clauses in constitutions raises the question about the compatibility of these

standards, its guarantee and which authority is competent to review it.

7. Human rights treaties with a judicial system of control, such as the three regional

systems of protection (European, American and African), have special characteristics.

Indeed, not only the human rights treaties as such need to be integrated in the domestic

legal orders, but in addition the case-law of the respective judicial bodies imposes

specific obligations concerning compliance with the judgments issued and with the

interpretation given to the conventions by the international bodies. The case law of those

bodies has an impact on the international obligations assumed by the States, and on the

contents and scope of the rights and freedoms incorporated in the conventions.

8. The Latin American experience, which has not been taken into consideration so far in

the reports of the Venice Commission, may shed new light on the topic of the

relationship and interaction between international and domestic human rights law.

Indeed, in Latin America, constitutions have shown an important openness towards

international law which has facilitated the integration and implementation of human rights

treaties in domestic legal orders. The constitutions of Argentina,

Brazil,

Bolivia,

Colombia,

Costa Rica,

Mexico,

910

Venezuela,

among others, contain an explicit

A. STONE SWEET and H. KELLER, “The reception of the ECHR in National legal Orders”, in H. KELLER

and A. STONE SWEET, (eds.), op. cit., p. 3.

Adopted on 1 May 1853, the Constitution was last amended and revised in 1994.

Constitution of 5 October 1988.

Constitution of 25 January 2009.

Constitution of 7 July 1991.

Constitution of 7 November 1949.

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reference to the status and the hierarchy of international law treaties and some of the

constitutions even establish the supremacy of international human rights treaties.

The

Inter-American system of human rights has experienced an important evolution and has

rendered nearly 300 judgments.

9. The European and the Inter-American systems of protection of human rights are

similar enough to allow for a useful comparison of their respective impact in national

legal orders. The African system of human rights protection is not discussed in the

present Report. At the universal level, the role of the United Nations Human Rights

Committee in supervising the implementation of the International Covenant on Civil and

Political Rights, and the reception of its views and recommendations by member States

is also discussed.

10. The present Report focuses, more specifically, on three inter-related questions: the

first chapter identifies and describes the different legal factors which may have an

influence on the implementation of international human rights treaties in domestic law;

some of these factors may be found in the domestic legal orders, and some in the

international human rights treaties themselves. The second chapter analyses the

implementation of the decisions issued by international bodies when exercising a review

of the compatibility of domestic law with one of the selected human rights treaties (the

European and American Conventions on Human Rights, and the International Covenant

on Civil and Political Rights, respectively), from the perspective of International law.

Finally, chapter III of the Report explores the role of domestic courts in implementing

international human rights treaties, as well as the decisions on the human rights treaties

issues by international monitoring bodies.

11. The Report draws from a database of over 500 national decisions selected and

compiled for the purpose of this research, based on the International Law in Domestic

Courts online reporting service established by Oxford Reports on International Law

(ILDC).

The most relevant cases are quoted in the Report to illustrate the practice of

the member States of the Venice Commission and of their national courts.

I. IMPLEMENTING INTERNATIONAL HUMAN RIGHTS TREATIES IN

DOMESTIC LAW: THE LEGAL FACTORS

12. Nowadays, virtually all States are parties to various human rights treaties, adopted

either at the universal level (especially in the United Nations and the International Labour

Organisation) or within regional organisations (especially the Council of Europe, the

After the amendments of 10 June 2011, treaties have the same hierarchy as the Constitution itself. The

Constitution already contained a reference to the hierarchy of international treaties in Article 133, introduced

by the 1934 reform.

Constitution of 31 December 1993.

Constitution of 15 December 1999.

Among others, the Constitution of Guatemala (31 May 1985), in its Article 46, refers to the primacy of

international human rights treaties over domestic law; the Constitution of Peru (1993), in its Article 105,

enounces that the international human rights treaties have constitutional status; the Constitution of Chile (30

July 1980), reformed its Article 5, which establishes that “the organs of the State must respect and promote

such rights, guaranteed by this Constitution as well as by the international treaties that are ratified by Chile

and that are in force”; the Constitution of Colombia (7 July 1991), establishes in its Article 93 the primacy of

international human rights treaties over the domestic legal order; etc.

The database was compiled by Ms Anne Peters and Ms Sarah Stingelin, Max Planck Institute for

Comparative Public Law and International Law, Heidelberg.

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Organization of American States and the African Union). Although the obligations

contained in such treaties bind all States parties without distinction, the ways in which

those States implement the treaty provisions within their domestic legal orders differ

substantially. In some States human rights treaties as such form part of the legal order;

others need to transpose them into their legal order through national legal acts. In some

countries, international human rights treaties have a higher status than national law, in

others they do not.

13. The reasons behind the success of international human rights treaties, both

concerning the high number of their ratifications and their implementation, lie in a variety

of factors. One of these factors may be the legal culture; the attitude is furthermore

influenced by the historical experience and political orientation of individual countries.

Democracies usually provide international human rights treaties with a more important

position within their domestic legal orders than States with other political regimes. This is

evident from legislative reforms that many newly democratic countries of Central and

Eastern Europe, Latin America and other regions have undertaken after the fall of

previous totalitarian or autocratic regimes. Finally, the temporal element plays a role.

Countries which have adopted or revised their fundamental laws rather recently, reveal a

higher probability to explicitly regulate the legal status of international human rights

treaties, or international treaties in general, and to provide them with an important place

domestically, than countries with a legal order based on a more traditional constitution

(or with no written constitution at all). This, however, does not automatically mean that

the practices of these two groups of states differ to the same extent.

14. The study of historical, social and political factors is beyond the scope of the present

Report, which will focus on the legal factors fostering or hindering integration and

implementation of human rights treaties in the national legal order. Section A will explore

those legal factors which are present in different national orders, while section B will

analyse the factors which stem from the international legal order.

A. Domestic law factors influencing the legal effect of human rights treaties in

domestic law

15. Several legal factors which pertain to domestic orders have an impact on the

implementation of human rights treaties. Among these factors, the following are of

particular importance: the conceptualisation of the relation between international and

domestic legal orders (1); the status of treaties in the domestic legal order and their

place in the hierarchy of norms (2); the direct and indirect effect and the interpretation of

conformity clauses in the domestic constitutions (3); and the existence of legislation

enabling the reception of human rights treaties into the domestic legal order (4). A

culture of preexisting constitutional rights protection may also influence how domestic

courts approach the implementation of human rights treaties.

1. Factor 1: Conceptualisation of the relation between international and

domestic legal orders

16. Traditionally, two main approaches to the relationship between international and

national law have been distinguished: the monist approach (monism) and the dualist

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approach (dualism).

The two approaches are by no means mutually exclusive, as

many States combine elements of monism and dualism within their legal orders. In fact,

most States today belong to what could be described as a mixed type, showing the

universal evolution from strict dualism that most States embraced in the past, to

moderate monism, with special treatment reserved to certain sources of international law

(usually international treaties or, in some cases, only international human rights treaties).

In principle, common law countries tend to stick to dualism more persistently than their

civil law counterparts, although this rule is not without exceptions. The transition from

dualism to monism often accompanies political transition – thus, many countries of

Central and Eastern Europe incorporated elements of monism into their legal orders

after the fall of communism at the end of the 1980s.

17. The choice of the model is for the States themselves to make.

As the Constitutional

Court of Lithuania stated in 1995, “in accordance with the principle of sovereignty, every

State has the right to choose concrete ways and forms of implementing norms of

international law, and it is recognised that the validity of international law in general and

of international treaties in particular within the legal system of the State shall always

depend on national law”.

The State however remains bound by international law,

whatever model it chooses.

It may never justify its non-respect of international law by

the fact that this law does not as such form part of its domestic legal order; or that it

contradicts a norm of its national legal order.

18. The monist approach (monism) is based on the idea that international law and

national law are two components, or two different manifestations, of one and the same

legal system. Treaties, as customary rules and general principles of law, may therefore

be part of the domestic legal orders, without any need for their transposition by means of

national legal instruments. Whether they establish individual rights and/or duties and

whether the treaty provisions may be invoked before domestic courts, depends solely on

their nature and content, and is not dependent on any prior transposition. The adherence

to monism does not in itself automatically entail legal superiority of international law, as

the monist approach is compatible with different views on the hierarchical relationship

between international and national law. Yet, a clear tendency in monist and/or mixed

legal orders is to grant international law, or some parts thereof, in particular human rights

treaties, a rather high status.

19. States may use several legal techniques to express their adherence to the monist

approach. The first one is the incorporation clause, which is usually contained in the

Constitution or another legal instrument of a similar status (organic/constitutional laws).

Such a clause can be found for instance in the constitutions of Albania (Article 122),

See e.g. J.G. STARKE,“Monism and Dualism in the Theory of International Law”, 17 Brit. Y.B. Int'l L. 66

(1936).

ECtHR Swedish Engine Drivers' Union v Sweden, judgment of 6 February 1976, para 50: “the European

Convention on Human Right does not lay down for the Contracting States 'any given manner for ensuring

within their internal law the effective implementation of any of the provisions of the Convention”.

LTU-1995-3-008, cit. in CDL-DI(2004)005, Draft Report on Case-Law Regarding the Supremacy of

International Human Rights Treaties, Study No. 304/2004, 2 October 2004. See also Permanent Court of

International Justice, advisory opinion of 21 February 1921, ´Exchange of Greek and Turkish populations”,

PCIJ Reports , Series B, No. 10, pp. 20-21.

Article 26 of the Vienna Convention on the Law on the Treaties.

Article 27 of the Vienna Convention on the Law on the Treaties.

Constitution of 28 November 1998.

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Armenia (Article 6),

Bulgaria (Article 5),

the Czech Republic (Article 10),

Lithuania

(Article 138),

the Netherlands (Article 93),

or Portugal (Article 8).

The clauses have

quite a standardised form, declaring that international law or some sources thereof,

when they enter into force for that particular State, become part of its domestic legal

order. The second legal technique is that of concrete references included in laws or

other domestic legal acts. These references give legal force within the domestic legal

order to a specific international treaty.

Finally, the incorporation of international treaties

may be based upon non-written, customary rules or case-law,

although this is rarely

done in practice.

Out of the three legal techniques, the incorporation clause is the most

common one.

20. Monist legal models differ among themselves not only with respect to the means by

which they ensure the incorporation, but also by the object of the incorporation. The

most common practice consists of incorporating international treaties; or, more

specifically, of declaring that international treaties constitute part of the national legal

order, without explicitly pronouncing on the status of other sources of international law

(general principles, customary rules, non-incorporated treaties). Such is for instance the

case in Albania, where the Constitution declares: “Any international agreement that has

been ratified constitutes part of the internal juridical system after it is published in the

Official Journal of the Republic of Albania. It is implemented directly, except for cases

when it is not self-executing and its implementation requires issuance of a law”

(Article 122 par. 1). A similar provision can be found in the constitutions of Armenia

(Article 6), Bulgaria (Article 5), the Czech Republic (Article 10), Lithuania (Article 138),

Poland (Article 91) or the Russian Federation (Article 15). The silence over the status of

other sources of international law leaves open the question as to whether these sources

are excluded from the incorporation on the basis of the a contrario principle, or are

incorporated by virtue of other constitutional clauses or legal practice.

21. In some countries, the incorporation clause is construed more extensively, referring

not only to international treaties but also to other sources of international law. Binding

Constitution of 5 July 1995.

Constitution of 12 July 1991.

Constitution of 16 December 1992.

Constitution of 25 October 1992.

Constitution of 24 April 1815.

Constitution of 2 April 1976.

As an example, the United States has passed specific implementing legislation concerning the Convention

Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). The definition as

contained in the treaty has been codified in Chapter 113B of Title 18 of the United States Code; the term

“torture” is also defined in the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350.

For example the case of Switzerland, and Belgium, see the leading case of the Swiss Federal Court

Frigerio, BGE 94 I 669, S. 678 E. 6.a [1968] and the Belgian Court of Cassation Cass 21 May 1971,

Fromagerie Franco Suisse Le Ski, Journal des Tribunaux, 1971, 460-474.. The Swiss Federal Court

declared already in earlier decisions that international treaties constitute part of the national legal order (see

also: BBl 2010 2302).

It was, for example, the case of the United Kingdom before the adoption of the Human Rights Act.

Some constitutions contain general clauses proclaiming the loyalty of the State to international law (see

Article 1 of the Constitution of the Czech Republic and Article 9 of the Constitution of Poland). It is

sometimes suggested that such a clause could serve as the basis for the incorporation of general principles

of international law, customary international law, or just all sources of international law. Such a suggestion

however seems problematic, since the relevant provisions usually simply confirm that international law is

binding upon the States, without pronouncing on whether international law applies within the domestic legal

order of such a State.

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decisions of international organisations are sometimes included, as is the case in

Albania

and the Netherlands.

General principles of international law

are also

sometimes mentioned in the clause, for instance in Article 8 of the Portuguese

Constitution.

Finally, some legal orders refer solely to general principles of international

law, as is the case in Austria

and Germany.

In such a situation, the lack of clarity

does not help in determining the extent to which international law is incorporated within

the national legal order.

22. The dualist approach (dualism) considers national law and international law as two

separate legal systems, which, although they may deal with similar or identical issues,

have different legal subjects and different sources. International treaties as sources of

international law do not apply directly within the domestic legal order. In order for their

provisions to have effect domestically, they need to be transformed into national law by

means of a statute or another source of national law. International treaties as such may

not be invoked before national courts, while provisions of domestic law inspired by them

or even reduplicating them may. Several common law countries, such as Australia,

Canada, New Zealand and the United Kingdom, are dualist, as are certain other

countries (such as Finland, Hungary, Israel and Sweden). The adherence to dualism is

explicitly acknowledged in the Constitution of Hungary, which stipulates that “Hungary

shall accept the generally recognised rules of international law. Other sources of

international law shall become part of the Hungarian legal system by publication in the

form of legislation” (Article Q par. 3).

23. In dualist countries several legal techniques may be used to incorporate international

law into domestic law, especially transformation, adaptation and adoption.

Transformation refers to the model in which the text of an international treaty is literally

“incorporated” into a statute or another source of domestic law. Adaptation, on the

contrary, includes not only “incorporation” from international to national law, but also

substantive modifications.

A classic example of an adapted international treaty is the

Article 122 par. 3 of the Constitution: “The norms issued by an international organisation have superiority,

in case of conflict, over the laws of the country if the agreement ratified by the Republic of Albania for its

participation in the organisation expressly contemplates their direct applicability.”

Article 93 of the Constitution: “Provisions of treaties and of resolutions by international institutions which

may be binding on all persons by virtue of their contents shall become binding after they have been

published.“

The meaning and scope of general principles is not entirely clear, as the term could refer both to “the

general principles of law recognised by civilized nations” as a specific sources of international law in the

sense of Article 38 (1)(c) of the Status of the ICJ, and to fundamental principles of international law such as

those enshrined in the UN General Assembly Resolution A/RES/2625 (XXV), Declaration on Principles of

International Law Concerning Friendly Relations and Cooperation among States in accordance with the

Charter of the United Nations, 24 October 1970.

Article 8 of the Constitution: “(1) The rules and principles of general or ordinary international law are an

integral part of Portuguese law. (2) Rules provided for in international conventions duly ratified or approved,

following their official publication, apply in municipal law as long as they remain internationally binding with

respect to the Portuguese State.”

Article 9 par. 1 of the Constitution: “The generally recognized rules of international law are regarded as

integral parts of federal law.” The Constitution was adopted on 1 October 1920.

Article 25 of the Basic Law of 23 May 1949: “The general rules of public international law form part of the

Federal law. They take precedence over the laws and directly create rights and duties for the inhabitants of

the Federal territory.“ The term “general rules“ roughly means the most widespread rules of international

customary law and general principles in the sense of Art. 38 cl. 1 lit c) of the ICJ Statute.

Constitution of 25 April 2011.

See also I. SEIDL-HOHENVELDERN, “Transformation or Adoption of International Law into Municipal

Law”, 12 ICLQ 1, 1953, pp. 88-124.

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United Kingdom Human Rights Act of 1998, which introduced within the law of the

United Kingdom some of the provisions of the European Convention on Human Rights,

but cannot set aside conflicting domestic law. Finally, adoption refers to the use of

provisions of international treaties, or other sources of international law, in the case-law

of national courts, in cases where such sources were not transformed and/or adapted

within the domestic legal order.

24. Even if monism and dualism are still very present in the theory of the relationship

between domestic and international law, they do not provide a sufficient answer in

determining the factors that influence the integration of a human rights treaty into

domestic law. Indeed, international human rights treaties may be very successfully

applied both in countries adhering to one or the other theory. Moreover, as previously

stated, many countries do not fit entirely into either of the two systems and have features

of both. This holds particularly true with respect to the applicability of human rights

treaties.

2. Factor 2: Status: hierarchy of human rights treaties within domestic legal

orders

25. There are several possible situations in this respect: a first case would be where

national legal orders contain an explicit reference to international human rights treaties.

Other cases would include where their status has to be deduced from the general

domestic rules concerning international law.

Finally, in some cases, the national legal

order does not contain legal rules as to the legal status of international treaties; this is

the case of Austria,

Chile,

Nicaragua,

Panama,

Peru

or Uruguay.

In such

See M. CRAVEN, “Legal Differentiation and the Concept of Human Rights Treaties in International Law”,

11 EJIL 3, 2999, pp. 489-519. The most classical situation of this type occurs when the incorporation clause

relates to international treaties as such, without invoking human rights instruments specifically. As

international human rights treaties are, after all, international treaties, albeit treaties endowed with certain

particular features, such a regulation entails their incorporation into the domestic legal order. This has the

advantage of doing away with the need to determine which treaties have to be considered as human rights

treaties, since the same regulation is applied to all treaties regardless of their subject matter.

See Article 9 of the Constitution.

There is no specific reference to the status of international treaties, although the individual rights

recognised by the Constitution and international treaties ratified and in force are to be respected (Article 5).

Article 5 of the Constitution was modified in 1989. The Chilean Constitutional Court has interpreted this

provision and held that it does not establish the supremacy of international human rights treaties over the

Constitution, see Constitutional Court, judgment of 8 April 2002, Rol N°346.

Article 46 of the Constitution of Nicaragua (of 19 November 1986), which refers to several human rights

treaties (the International Covenant on Civil and Political Rights, the International Covenant on Economic,

Social and Cultural Rights and the American Convention on Human Rights; the Article also refers to the

Universal and American declarations on Human Rights) was interpreted by the Supreme Court of

Nicaragua. The Court recognised that the human rights treaties contained in Article 46 of the Constitution

have constitutional status. Therefore, they have a superior legal value with respect to other national laws.

The Court further stated that with the recognition of the constitutional status of human rights treaties, the

national courts and the public administration in general were obliged to respect, protect, and fulfil the rights

mentioned in those treaties. Consequently, the judicial guarantees contained in those treaties were directly

applicable and enforceable before these state institutions, see SC, Constitutional Chamber, judgment 57-

2010, 2 March 2010, Oxford Reports on International Law (ILDC) 1802.

The Constitution, adopted in 1972, establishes in Article 4 a general reference to International Law, while

Article 129 refers to the role of the Ombudsperson in protecting individual rights recognized by the

Constitution and the international human rights treaties in force.

The Constitution, of 29 December 1993, contains no specific provision, but the fourth final provision

enounces that “[R]ules concerning the rights and freedoms recognized by this Constitution are construed in

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cases, unwritten rules, customary law and the case-law of national, mainly constitutional,

courts have to be consulted to help determine whether and under which conditions

international human rights treaties form part of the domestic legal order and what their

status is. In Italy, the Constitutional Court interpreted Article 117.1 of the Constitution as

establishing that international human rights treaties and, in particular, the European

Convention on Human Rights, is an “intermediary norm”, halfway between constitutional

and ordinary norms.

26. When there is a specific provision on the status of international human rights

treaties, there are several possible scenarios. Some constitutions make it clear that

international human rights treaties shall prevail over domestic law. However, this does

not provide a clear reply to the issue of whether the treaty prevails over the constitution

as well. This is the case for example in Bolivia,

Colombia

Guatemala,

and Peru,

where domestic courts have interpreted the relevant provisions and considered that they

mean that international human rights treaties have the same status as the constitution.

The Constitution of Bulgaria stipulates that ratified and promulgated international treaties

“shall have primacy over any conflicting provision of the domestic legislation” (Article 5

par. 4). It is however uncertain how this provision has been interpreted and applied in

practice. The Constitution of Bosnia and Herzegovina gives the European Convention on

Human Rights priority over every other law,

although this is quite a particular case.

Indeed, it is the Constitution which establishes the supra-constitutional status of the

international treaty, but the Constitution is itself part of an international treaty, the Dayton

agreement. The constitution of Moldova (Article 4)

establishes that priority shall be

given to international regulations on human rights over national laws.

27. In several countries, constitutions themselves explicitly establish that human rights

treaties have constitutional status, such as in Argentina (Section 75.22),

Brazil,

accordance with the Universal Declaration of Human Rights and international treaties and agreements on

those rights, which have been ratified by Peru”.

Constitution of 1967. There is no specific Article on the status of international treaties or international law

in the national legal order.

Italy, Constitutional Court, Criminal Proceedings against Paolo Dorigo, Constitutional review, No

113/2011; ILDC 1732, (IT 2011).

Article 13 of the Constitution.

Article 93 of the Constitution.

Article 46 of the Constitution.

The Peruvian Constitution does not contain a specific provision on the status of international treaties, but

the Constitutional Court has addressed the issue in STC N.º 47-2004-PI/TC, para. 61 and STC N.º 25-2005-

PI/TC and 26-2005-PI/TC (acumulados), para. 25-34..

Article II.2. The Constitution is Annex 4 to the General Framework Agreement for Peace in Bosnia and

Herzegovina, signed on 14 December 1995.

Constitution of 29 July 1994

Draft Report on case-law…, CDL-DI(2004)005.

The Constitution was adopted on 1 May 1853 and has been amended several times, the last one in 1994.

Article 75.22 establishes that treaties and concordats have a higher place in the hierarchy than laws. It also

adds that: The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human

Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural

Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on

the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of

Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the

Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the

Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy,

do no repeal any section of the First Part of this Constitution and are to be understood as complementing

the rights and guarantees recognized herein. They shall only be denounced, in such event, by the National

Executive Power after the approval of two-thirds of all the members of each House. In order to attain

CDL-AD(2014)036 12

Ecuador,

Dominican Republic

and Venezuela.

Mexico has also certain specific

features: after the 2011 reform, the Constitution does not establish that international

human rights have the same status as the Constitution, but Article 1 seems to place the

treaties in the “bloc of constitutionality” which, in case of conflict, would give priority to

the norm most favourable to the protection of individual human rights.

A similar solution

exists in the Constitution of Romania.

Article 20 of the Constitution states that “where

any inconsistencies exist between the covenants and treaties on the fundamental human

rights Romania is a party to, and the national laws, the international regulations shall

take precedence, unless the Constitution or national laws comprise more favourable

provisions” (par. 2). The status of human rights treaties has also been extensively

discussed in the Czech Republic. Up to 2001, international human rights treaties were

reserved a special position within the legal order, as they were the only treaties that

were directly incorporated. Moreover, they were granted identical status to that of

constitutional laws. In 2001, the incorporation clause was expended to all ratified and

promulgated international treaties but, at the same time, these treaties were given a sub-

constitutional status. As this could result in incorporated human rights treaties having

their legal status downgraded, the Constitutional Court of the Czech Republic declared

in 2002 that human rights treaties ratified prior to the constitutional amendment would

not be affected by the change in the regulation.

This decision, however, has given rise

to criticism, as it risks introducing double standards into the area of human rights

treaties.

28. A third scenario concerns constitutions which make it clear that treaties have a legal

status above domestic law or, rather, that in case of a conflict with domestic law,

international treaties should prevail,

but not necessarily over the domestic

constitution.

Thus, for instance, the Constitution of the Russian Federation stipulates

that “if an international treaty of the Russian Federation stipulates other rules than those

stipulated by the law, the rules of the international treaty shall apply” (Article 15 par. 4).

A similar provision can be found in the constitutions of Albania (Article 122),

Armenia

constitutional hierarchy, the other treaties and conventions on human rights shall require the vote of two-

thirds of all the members of each House, after their approval by Congress. The Supreme Court of Argentina

has stated that some Human Rights Treaties, such as the International Covenant on Economic, Social and

Cultural Rights have the same status as the Constitution, see Supreme Court of Argentina, judgment, 22

October 2004, CODICES ARG-2004-3-003.

Article 5. para. 3.

Constitution of 28 September 2008, Article 84.

Constitution of 26 January 2010, Article 74.

Constitution of 30 December 1999, Article 23.

See E. FERRER MACGREGOR, “Interpretación conforme y control difuso de convencionalidad: el nuevo

paradigma para el juez mexicano”, Estudios Constitucionales, No. 2, 2011, pp. 531-622. Before the 2011

constitutional reform, the Supreme Court of Mexico had established that international treaties were

immediately under the Constitution and above federal and local law.

Constitution of 21 November 1991.

See award 403/2002 Coll.

See F. KŘEPELKA, “Nesamozřejmá hierarchie práva a vstup ČR do EU“, Soudní rozhledy, 2003, No. 6,

pp. 181-185.

There is some debate in the doctrine as to whether such a regulation implies legal hierarchy (superiority)

or simply priority of the application. As laws found incompatible with international treaties do not become

invalid but are simply inapplicable in certain cases, the latter seems to be the case.

See on the issue of hierarchy between international law and domestic constitutional law A. PETERS,

“Supremacy Lost: International Law meets Domestic Constitutional Law”, ICL-Journal, vol. 3, 2009, pp. 170-

198.

Constitution of 12 December 1993.

Constitution of 28 November 1998.

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(Article 6),

Azerbaijan (Article 151 states that international treaties do not take

precedence over conflicting constitutional provisions and acts accepted by way of

referendum),

Bulgaria (Article 5),

Costa Rica (Article 7),

Croatia (Article 134),

the

Czech Republic (Article 10),

El Salvador (Article 144), Estonia (Article 123, although

Estonia may not conclude international treaties which are in conflict with its

Constitution),

France (Article 55),

Georgia (Article 6, as long as the international

treaties do not contradict the Constitution),

Germany (Article 25),

Greece

(Article 28),

Honduras (Article 16), the Netherlands (Article 94),

Poland (Article 91),

and “the Former Yugoslav Republic of Macedonia” (Article 118).

In all these instances,

it is not entirely clear whether domestic courts will indeed grant priority to international

law even over the domestic constitution.

3. Factor 3: Direct and indirect effect and the interpretation clauses in domestic

constitutions

29. Even if treaties are part of the law of the land, as is the case for international legal

norms in monist systems, or after having been transformed into domestic law, as is the

case in dualist systems, they cannot always be directly applied. The “direct effect” of

international law (notably of the provisions of international treaties) is another legal factor

which shapes the relevance of a human rights treaty in the domestic legal order, and of

great importance for the domestic judiciary in particular. The term “direct effect” is

understood in this Report as the legal mechanism which enables a domestic body

(especially a court) to apply an international rule directly; this application can render a

rule of domestic law which is not in conformity with international law illegal.

30. The issue of direct effect raises profound questions in the field of the separation of

powers, the principle of legality, and democracy. These constitutional aspects have

contributed to the conflation of the question of direct effect with that of the incorporation

of international rules into the domestic legal order. Notably in the United States’

constitutional tradition, direct effect is often regarded as a pre-condition of the

incorporation of a treaty into the domestic legal order. In the continental tradition, in

Constitution of 5 July 1995.

Constitution of 12 November 1995.

Constitution of 12 July 1991.

Although the Constitutional chamber of the Supreme Court has suggested that human rights treaties could

even have supra-constitutional status, see judgment of 1 July 2013, Pavón Murillo v. Tribunal Supremo

Electoral.

Constitution of 22 December 1990. Article 134 was slightly amended in 1997.

Constitution of 16 December 1992.

Constitution of 28 June 1992.

Constitution of 4 October 1958.

Constitution of 24 August 1995. However, Article 6 was changed in 2001.

Constitution of 23 May 1949.

Constitution of 11 June 1975.

Article 94 of the Netherlands Constitution explicitly grants precedence to international treaties only over

legal provisions, but prevailing scholarship and case-law supports the view that Article 94 applies also to the

Constitution itself. If the parliament determines that a treaty conflicts with the Constitution and, under Article

91(3), approves a treaty by a 2/3 majority, courts are able to let that treaty prevail over the constitution; if

parliament does not determine such a conflict and hence does not approve a treaty by a 2/3 majority, the

situation is complex. According to Article 120 of the Constitution, the courts are not allowed to review the

constitutionality of treaties; they have to apply these treaties, because Article 94 of the Constitution also

seems to encompass the provisions of the Constitution itself.

Constitution of 2 April 1997.

Constitution of 17 November 1991.

CDL-AD(2014)036 14

contrast, the incorporation of international law is considered as the first step, with direct

effect being an ensuing, secondary question. A treaty provision can form part of the

domestic legal order without being directly applicable by the domestic courts.

31. The Netherlands Constitution takes this condition of applicability expressly into

account by stipulating that only treaty provisions “which may be binding on all persons”

(i.e. which are self-executing

), may be applied by the courts and then have priority over

conflicting domestic law.

From the legal history of the European Convention on Human

Rights it appears that its drafters intended its substantive provisions to be self-executing

in those Contracting States where they form part of the domestic legal order.

conformity therewith, the courts in, e.g., Belgium, France, Germany and the Netherlands

directly apply the provisions of the ECHR and its Protocols. In Sweden, where the ECHR

is considered as part of domestic law, the distinction between provisions which are self-

executing and provisions which are not does not seem to play any significant role. In the

United Kingdom, the Human Rights Act of 1998 enumerates the provisions of the ECHR

and its Protocols which the courts and other public authorities have to apply.

32. The implementation of human rights treaties in the domestic arena is often achieved

by an interpretation of domestic law taking into account the relevant provisions of these

treaties. This may supplement the “direct effect” or even constitute an alternative to it,

and is therefore sometimes referred to as the ‘indirect effect’ of international (human

rights) law. Clashes between domestic law and international law can thus be reduced

through such “harmonising” interpretation (see the developments on this in Chapter

III.A).

See, among others, A. NOLLKAEMPER, National Courts and the International Rule of Law (OUP 2011),

p. 130; A. PETERS, Jenseits der Menschenrechte. Die Rechtsstellung des Individuums im Völkerrecht

(Mohr Siebeck 2014), p. 446; K. KAISER, Treaties, Direct Applicability, in: R. WOFLRUM (ed.), MPEPIL

(OUP 2012), para. 2; R. GEIGER, Grundgesetz und Völkerrecht (Beck 2009), p. 143.; G. BUCHS, Die

unmittelbare Anwendbarkeit völkerrechtlicher Vertragsbestimmungen (Nomos: 1993), pp. 28-30.

In the countries of the European Union, the meaning and scope of this concept have been influenced to a

large extent by developments in the case-law of the Court of Justice of the European Union.

Articles 93 and 94 of the Constitution. Only such provisions of international law may be invoked before

courts in the Netherlands. Whether and to what extent a provision of international law is self-executing, is

determined in the last instance by the Dutch court before whom such a provision is relied upon, unless the

provision concerned states explicitly that it is self-executing, which rarely is the case. Courts in the

Netherlands have, in general, given a rather restrictive interpretation to the concept of 'self-executing'.

According to the prevailing jurisprudence in the Netherlands, international law provisions are 'binding on all

persons' in the sense of Articles 93 and 94 of the Constitution, if their wording and contents make them

appropriate for application by a domestic court in cases in which private parties are involved. This

appropriateness is assessed on the basis of the following criteria: a) the character of the provision

concerned; b) its contents and scope; c) its wording; and d) the necessity of an implementing regulation for

its effect. As an example, the Administrative Jurisdiction Division of the Council of State held Article 25 of the

International Covenant on Civil and Political Rights (the right to take part in the conduct of public affairs and

the right to vote) to be self-executing' as to its contents. In applying that provision, the Council of State held

the exclusion from the right to vote of persons who were declared by a court decision unfit to conduct legal

acts, to violate that treaty provision (Administrative Jurisdiction Division of the Council of State, judgment of

29 October 2003, AB 2003, 463, para 2.5 (www.raadvanstate.nl).

See Council of Europe, Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on

Human Rights, 8 vols., The Hague: Nijhoff 1975-1985, Vol. V, p. 26-27, 34-35, 66-67, 74-75.

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4. Factor 4: Legislation enabling the reception of human rights treaties and

monitoring bodies decisions into the domestic legal order

33. Finally, an important number of countries have adopted specific laws in order to

facilitate or enable the implementation of international human rights treaties in domestic

law and to avoid repetitive cases. Adoption of enabling legislation is both a legal factor

fostering the implementation of international human rights obligations and an effect of

the ratification of international human rights treaties. Many different types of legislation

could be considered as part of this “enabling legislation” factor. Particularly relevant in

this respect is the existence of specific legal provisions that facilitate the reception of the

judgments of the European or the Inter-American Court of Human Rights into the

domestic legal order.

34. Concerning the judgments of the European Court of Human Rights (hereafter:

ECtHR), a very important category of legislation are laws permitting the reopening of a

case after a breach has been declared by the European Court. This is an exception to

the principle of res judicata in the national arena. States which have adopted such law in

the criminal field are, e.g., Belgium,

Bulgaria,

Germany,

Hungary

and Italy.

Laws

enabling the reopening of domestic proceedings have also been adopted in civil and

administrative proceedings, although many countries oppose strongly this possibility

The Netherlands was considered as a model by the Parliamentary Assembly of the Council of Europe

(PACE), because Dutch parliamentarians have to be briefed on the implementation of judgments, also those

against other countries than the Netherlands, see PACE, Committee on Legal Affairs and Human Rights,

Implementation of judgments of the European Court of Human Rights, (“ Pourgourides Report”), Doc. 12455

of 20 December 2010, para. 202.

Article 442bis to octies of the Penal Procedural Code.

Art. 362 Code of Criminal Procedure -see also Bulgarian Supreme Court of Cassation, Prosecutor

General v VS, Judicial review, Judgment no 293, Criminal case no 988/2006; ILDC 1139 (BG 2007) 24 July

2007. After Al-Nashif and others v Bulgaria (ECtHR, judgment of 20 June 2002), the Supreme administrative

Court of Bulgaria ordered the reopening of proceedings on the basis of Article 231.1 of the Code of Civil

Procedure.

Para. 359 No. 6 German Code of Criminal Procedure. Since 2007, a re-opening of domestic judicial

procedures after a judgment of the ECtHR is also possible in civil procedure, labour law suits, administrative

law, and in various special judicial procedures (§3 580 No. 8 ZPO; 79 ArbGG; 179 SGG; 153 VwGO; 134

FGO).

Act CLI of 2011 on the Constitutional Court states: “If the Constitutional Court has already ruled on the

conformity of an applied legal regulation or a provision thereof with the Fundamental Law based on a

constitutional complaint or judicial initiative, no constitutional complaint or judicial initiative aimed to declare

a conflict with the Fundamental Law may be admitted regarding the same legal regulation or provision

thereof and the same right guaranteed by the Fundamental Law, with reference to the same constitutional

law context – unless the circumstances have changed fundamentally in the meantime.” This provision

makes an exception to the application of res iudicata if the circumstances have changed fundamentally

since the adoption of the Constitutional Court’s decision. An example is the Constitutional Court’s decision

4/2013. (II. 21.) (on using a five-pointed red star) in which case the Constitutional Court overruled its

previous decision on criminalising the use of the red star as a totalitarian symbol with regard to the decision

of ECtHR (Vajnai v. Hungary, Application No. 33629/06).

Court of Cassation (First Criminal Section), Somogyi, Appeal, No 32678 ILDC 560 (IT 2006) 3 October

2006, para. 6; Constitutional Court, Criminal Proceedings against Paolo Dorigo, Constitutional review, No

113/2011; ILDC 1732 (IT 2011) 94 Rivista di diritto internazionale (2011) 960, 7 April 2011. The case of Italy,

in which the Azzolini Law provides that the Presidency of Italy’s Council of Ministers shall coordinate the

execution of ECHR’s judgments, can be considered as an example of a specific law to implement the

ECtHR case-law. In the case of Paolo Dorigo, the Italian Constitutional Court further considered that a

decision of the European Court of Human Rights against Italy required the reopening of criminal

proceedings as a consequence of Article 46 of the ECHR, Criminal Proceedings against Paolo Dorigo,

Constitutional review, No 113/2011; ILDC 1732 (IT 2011).

CDL-AD(2014)036 16

based on the res judicata principle.

In some cases, once the European Court of Human

Rights has issued its judgments, national courts have considered that already existing

national provisions gave sufficient legal basis to reopening the proceedings.

The

Strasbourg Court considered that “where an individual (…) has been convicted by a

court that did not meet the Convention requirements of independence and impartiality, a

retrial or a reopening of the case, if requested, represents in principle an appropriate

way of redressing the violation. However, the specific remedial measures, if any,

required of a respondent State in order to discharge its obligations under Article 46 of

the Convention must depend on the particular circumstances of the individual case and

be determined in the light of the terms of the Court's judgment in that case, and with due

regard to the above case-law of the Court”

. The Court further stated that the reopening

of the case was “the most appropriate way” of redressing the violation,

but would not

avoid the payment of moral damages.

35. Domestic “enabling” provisions in member states of the Inter-American system are

numerous; sometimes they even appear at constitutional level (see Article 93 of the

Ecuadorian Constitution), although most of the time they have statutory status. This is

the case, among others, of Colombia, where the Law on State responsibility

(Responsabilidad Patrimonial del Estado) establishes a procedure to implement the

payment of compensation decided by the Committee on Human Rights in respect of the

ICCPR as well as the reports of the Inter-American Commission of Human Rights.

Costa Rica adopted Act No. 6889 in 1981,

which contains the seat agreement between

the government and the Inter-American Court of Human Rights, and enounces that the

judgments of the Court will have the same effect in the domestic legal order as

judgments issued by the domestic courts. In Guatemala, Decree No. 512 establishes the

need to promote the implementation of the judgments issued by international courts

applicable to the State.

In Peru, the Procedural Constitutional Code of 2004 (Act No.

28237)

establishes that the decisions issued by international jurisdictions with

competence in respect of Peru will not be subject to any further requirement to be

The debate is still ongoing in, for example, Poland, where the Supreme Court has decided that a final

judgment of the European Court of Human Rights is not a ground for reopening of civil proceedings

according to the Polish Code of Civil Procedure, although, in some cases, the reopening is the only possible

way to redress the infringement of the European Convention (see Supreme Court of Poland, 30 November

2010, III CZP 16/10).

See for instance the judgment of the Finnish Supreme Court of 31 May 1995, where it examined an

application for annulment of a judgment in a civil case where one of the parties did not have the opportunity

to comment on documents submitted by the other party. The Supreme Court annulled the judgment by virtue

of Chapter 31, section 7, paragraph 4 of the Code of Judicial Procedure according to which judgments

manifestly based on misapplication of the law may be annulled. The Supreme Court based its decision on

Article 6 of the Convention and the case law of the European Court of Human Rights relating to the

importance of adversary proceedings (SC HD 1995:95).

ECtHR, 12 May 2005 [Gr. Ch.], Ôcalan v Turkey, para. 210.

ECtHR, 2 June 2005, Claes v Belgium, para. 53.

ECtHR, 26 January 2006, Lungoci v. Romania. See on this E. LAMBERT, « La réouverture des

procédures judiciaires internes suite à un arrêt de la Cour EDH », in G. COHEN-JONATHAN, J.-F. FLAUSS,

and E. LAMBERT-ABDELGAWAD, De l’effectivité des recours internes dans l’application de la convention

européenne des droits de l’homme, IIDH, Nemesis-Bruylant, Bruxelles, 2006, pp. 195-256.

Act No 288 (5 July 1996) which does not refer to the IACtHR’s judgments.

Act No. 6889, 9 September 1983, accesible at

http://www.asamblea.go.cr/Centro_de_informacion/Archivo/Lists/Convenios/DispForm.aspx?ID=1066.

Decree 512 was replaced by Decree 40-94 (Ley organica del Ministerio Publico of 3 May 1994),

accessible at https://www.oas.org/juridico/mla/sp/gtm/sp_gtm-mla-leg-publico.pdf .

The Code was adopted on 7 May 2004, see http://tc.gob.pe/Codigo_Procesal.html.

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applicable in the domestic legal order; Act No. 27775 establishes the procedure to follow

to implement the judgments issued by international courts.

36. When such legislation exists, the domestic legal order becomes a factor facilitating

the implementation of international human rights obligations, particularly the respect for

international monitoring bodies’ decisions. However, this does not imply that the

judgments are always perfectly implemented and that there is no resistance from

national authorities (see in this respect the section on conflicts in Chapter III).

B. International law factors influencing the legal effect of human rights

treaties in domestic law

37. Elements of international law influence the internal effect and application of

international human rights treaties in domestic law. Under international law, States are

obliged to fulfil their international legal obligations, laid down in treaties to which they are

parties and in binding decisions of international bodies whose competence they have

recognised. This obligation becomes an increasingly comprehensive one, as

international law covers an ever larger area of legal relations that traditionally fell under

the sovereignty of the State. International human rights law is a clear example of this.

The European Convention on Human Rights quite frequently implies that Contracting

Parties have to amend or supplement their legislation, in particular as a result of the

case law of the ECtHR, which in many cases gives a dynamic interpretation of the

obligations laid down therein. The Inter-American Court of Human Rights is well-known

for its audacious approach to the application and the interpretation of the American

Convention on Human Rights and for its broad judgments concerning reparation

measures.

38. Among the legal factors existing in international law, section 1 will explore the special

features of international human rights treaties as such. The particularities of the regional

systems under study and the International Covenant on Civil and Political Rights will be

analysed under Sections 2, 3 and 4.

1. Human Rights treaties as special treaties under international law

39. States may not invoke their domestic law as a justification for not complying with

their obligations under international law; on the contrary, States have to ensure that their

domestic law is in conformity with their international legal obligations.

100

This is the rule

applicable to all International treaties and other international legal obligations. However,

International human rights treaties do not always fit perfectly well within the general

international law applicable to all international treaties. Thus, for example, the main goal

of international human rights treaties, the effective protection of the human rights laid

Act No. 27775, 5. July 2002, accessible at:

http://docs.peru.justia.com/federales/leyes/27775-jul-5-2002.pdf

100

Articles 26 en 27 of the Vienna Convention on the Law of Treaties (VCLT). Under Art. 27 VCLT, “a party

may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. See also

Articles 3 and 32 of the ‘Articles on responsibility of States for internationally wrongful acts’ drafted by the

International Law Commission (annexed to Resolution 56/83 of the General Assembly of the United

Nations), and the comments on those articles, Yearbook of the International Law Commission 2001, Vol. II,

Part Two, p. 36-38 en 94.

CDL-AD(2014)036 18

down in the treaty concerned, has led to the consequence that the concept of reciprocity

does not have its place in those treaties,

101

as it does in other international treaties.

Indeed, the direct beneficiaries of international human rights treaties are not the state

parties but the individuals themselves.

40. International human rights law further establishes the obligation for each State party

to use all the means at its disposal to give effect to the rights recognised in the treaty.

States are free to choose the ways and means of implementing their international legal

obligations, provided that the result is in conformity with those obligations. They are

saddled with an obligation of result and not only with an obligation of conduct. In this

respect, the principle of subsidiarity is essential, putting upon the States the main

responsibility to ensure respect for and to redress an alleged violation of a human rights

treaty. In order to turn the idea of subsidiarity into reality, there should be effective ways

and means at the domestic level to implement the human rights provisions concerned. In

the case of those provisions that are of a self-executing character or have been

transformed into provisions of domestic law which are justiciable, an effective domestic

legal remedy implies the possibility of bringing an action by an individual or a group

before a court, providing that the court has the power to examine the alleged violation

against the benchmark of the treaty. If a violation is found, measures of enforcement

must be provided for. The principle of exhaustion of domestic remedies applies as a

means to ensure the powers of national judges to interpret the international human rights

obligations in the first place and to avoid duplication.

2. Factors specifically present in the European system of human rights

41. The European system of human rights has specific features that are also relevant for

the impact these rights have on national legal orders. First, it is the system in which all

States belonging to the regional organisation are also parties to the Convention. Second,

it has the only compulsory international human rights judicial mechanism where

individuals may file applications directly to the Court since the entry into force of Protocol

11 (1998). The ECHR contains several elements to enhance its impact on national law:

Article 32 grants exclusive and final jurisdiction to the ECtHR to interpret the ECHR;

according to Article 46, States undertake to abide by the final judgment of the ECtHR; in

addition, the ECtHR has developed several specific powers to give maximum effect to its

case-law.

42. Once it has received an application, the ECtHR can see to it that there will not be a

further obstacle in its examination. Based on Article 34.2 ECHR, which refers to the

general duty of the States to ensure effectiveness of the ECHR, the ECtHR has

identified a positive obligation on the part of the authorities of the State to help in the

establishment of the facts and to investigate them if necessary in the countries

concerned.

102

By amendment of its internal Rules in 2004, a new Rule 44B, entitled

“failure to comply with an order of the Court” was introduced, which holds that “[W]here a

101

ECtHR, 18 Jan. 1978, Ireland v. UK, No 5310/71, para. 239: “Unlike international treaties of the classic

kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It

creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the

words of the Preamble, benefit from a ‘collective’ enforcement”. See also the contributions on this issue in

CDL-STD(2005)042-e, The Status of International Treaties on Human Rights.

102

Art. 34 sentence 2: “The High Contracting Parties undertake not to hinder in any way the effective

exercise of this right.” See, e.g., ECtHR, Gorgiev v “the former Yugoslav Republic of Macedonia”, judgment

of 19 April 2012, no. 49382/06, para. 43.

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party fails to comply with an order of the Court concerning the conduct of the

proceedings, the President of the Chamber may take any steps which he or she

considers appropriate”.

43. The ECtHR has also gained influence on developments after it has issued a

judgment.

103

Even though according to Article 46, effects of the judgments are only inter

partes and the system is based on the examination of each individual complaints, the

growing flux of applications has forced the ECtHR to develop a mechanism of pilot

judgments which has an impact on similar situations that have not (yet) been brought

before it. It also has given itself a certain say on the implementation of its former

judgments to avoid future human rights violations.

104

This has been further reinforced by

the process of reform and the adoption of protocols 15 and 16 to the ECHR (see further

examples in Chapter II.A.2).

3. Factors specifically present in the Inter-American system of human rights

44. The Inter-American system does not enjoy a compulsory mechanism by all member

States of contentious jurisdiction. There is a two-step individual complaints system and

individuals only have standing to lodge a petition to the Commission (Article 44

American Convention on Human Rights, hereafter also referred to as ACHR), which may

examine the case and draw up a (preliminary) report on the merits (Article 50 ACHR;

Article 44 of the Rules of Procedure)

105

. If the matter has not been settled, the

Commission may either issue a final report, which is published (Article 47 of the Rules of

Procedure

106

or refer the case to the Court (provided that the State concerned has

accepted the Court’s jurisdiction).

107

Both the State concerned and the petitioner can

give their views on the question of referral (Article 44(3) of the Rules of Procedure). The

Commission has developed guiding criteria for the decision whether to refer or not: “The

Commission shall give fundamental consideration to obtaining justice in the particular

case, based, among others, on the following factors: a. the position of the petitioner; b.

the nature and seriousness of the violation; c. the need to develop or clarify the case‐law

of the system; and d. the future effect of the decision within the legal systems of the

Member States.” (Article 45(2) of the Rules of Procedure). The Commission thus

performs a major filtering function, which also accounts for the small number of Court

judgments. However, since 2001, the referral to the Court seems to be more the rule

than the exception.

108

45. The Inter-American system of human rights displays features which may also further

the implementation of its judgments in the domestic legal arena. Article 2 of the ACHR

offers a unique basis for the Inter-American Court of Human Rights (hereafter also

referred to as IACtHR), by providing for a formal statement to reinforce its powers

103

See L.-A. SICILIANOS, “The involvement of the European Court of Human Rights in the implementation

of its judgments: recent developments under Article 46 ECHR”, NQHR, Vol. 32/3, 2014, pp. 235-262.

104

According to Article 46, paras. 4, 5 and 6 of the ECHR, as amended by Protocol 14 (2010).

105

As adopted in 2013.

106

Art. 51(1) ACHR formulates this as follows: “set forth its opinion and conclusions concerning the question

submitted for its consideration”.

107

The entire procedure of referral is regulated in Articles 45-46 of the Rules of Procedure of the Inter-

American Commission of Human Rights, as of 22 March 2013 in force since 1 Aug. 2013.

108

See Open Society Justice Initiative, From Judgment to Justice. Implementing International and Regional

Human Rights Decisions (New York Open Society Foundations 2010), 80.

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towards the States parties.

109

Under the title “domestic legal effects”, it states that

“Where the exercise of any of the rights or freedoms referred to in Article 1 is not already

ensured by legislative or other provisions, the States Parties undertake to adopt, in

accordance with their constitutional processes and the provisions of this Convention,

such legislative or other measures as may be necessary to give effect to those rights or

freedoms.” The IACtHR has made a qualitative step by using this Article to control the

compatibility of legislation and even declaring in its judgments that such legislation is no

longer valid. But there is a condition for the IACtHR to exercise this control over an Act: it

has to be legislation of “immediate application” to the case.

110

The IACHR has used this

possibility with huge consequences in all the cases of adoption of “amnesty” laws, such

as in the Barrios Altos case (see infra, chapter II.A.2) and the case of La Cantuta v.

Peru,

111

as well as in the famous judgment Almonacid Arellano v. Chile,

112

among

others.

46. The American continent has often been confronted with overall défaillance of the

national judicial systems. It is therefore important that the ACHR, in its Article 46, offers

a larger legal basis for possible exceptions to the rule of the exhaustion of domestic

remedies than those existing in the European system. The rule will not apply when “a.

the domestic legislation of the state concerned does not afford due process of law for the

protection of the right or rights that have allegedly been violated; b. the party alleging

violation of his rights has been denied access to the remedies under domestic law or has

been prevented from exhausting them; or c. there has been unwarranted delay in

rendering a final judgment under the aforementioned remedies.” From the outset, the

IACtHR has approached the rule of the exhaustion of domestic remedies in a more

flexible way than its European counterpart, understandable from the point of view of the

historical and political context in which the IACtHR had to operate in its first twenty years

of activity. The IACtHR has interpreted the role of the exhaustion of domestic remedies

in the most favorable way to the victims.

113

The European Court, on its part, has

developed a well-established case-law and has applied the rule of exhaustion of

domestic remedies to both the type of remedies that should be exhausted, and the

content of the complaints made by the applicants before the national courts.

114

109

Article 2 ACHR states that “[W]here the exercise of any of the rights or freedoms referred to in Article 1 is

not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance

with their constitutional processes and the provisions of this Convention, such legislative or other measures

as may be necessary to give effect to those rights or freedoms”.

110

IACtHR, International responsibility for the Promulgation and Enforcement of Laws in Violation of the

Convention, Advisory Opinion, OC 14-94, paras. 41-43.

111

IACtHR, 29

November 2006, Series C, No. 162.

112

IACtHR, judgment of 26 September 2006, Series C, No. 154. See also the developlents in Chapter II.A.2.

113

See L. BURGORGUE-LARSEN, A. UBEDA DE TORRES, The Inter-American Court of Human Rights.

Case-law and Commentary, Oxford, 2011, pp. 138 and ff.

114

The ECtHR has stated that it should not have to address issues which are new compared to the

procedure followed in the national arena, nor should it scrutinise the case more carefully than the judicial

authorities have been given the opportunity to do on a national level. The complaint “intended to be made

subsequently to the [European] Court must first have been made – at least in substance – to the appropriate

domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law”.

See, among other, ECtHR, Selmouni v. France [GC], judgment of 28 July 1999, para. 74; Schenk v.

Germany, decision on admissibility, 9 May 2007. It has also added that it is “appropriate that the national

courts should initially have the opportunity to determine questions of the compatibility of domestic law with

the Convention and that, if an application is nonetheless subsequently brought before the Court, it should

have the benefit of the views of the national courts, as being in direct and continuous contact with the forces

of their countries” (ECtHR, Burden v. the United Kingdom [GC], judgment of 29 April 2008, no. 13378/05,

para. 42). The arguments put by the parties before the national courts should be on the same lines as those

CDL-AD(2014)036

47. Finally, the IACtHR has played a key role in building up the control and supervision

of its judgments. It has done so through its case-law, as there was no formal

authorisation in the ACHR in this respect. This, together with the large scope of the

reparations measures awarded (see Chapter II), has had an important impact on the

implementation of its case-law.

4. Factors specifically present in the International Covenant on Civil and Political

Rights.

48. The system set up by the International Covenant on Civil and Political Rights

(hereafter also referred to as Covenant) is different from the two regional systems

analysed, as it does not have a judicial supervisory body which may issue judgments.

Therefore, it could be considered that, in comparison with the European and American

Conventions on Human Rights, the Covenant and its monitoring mechanism is

weaker.

115

However, several factors may foster the implementation of the Covenant.

49. According to one of the United Nations Human Rights monitoring bodies, the basic

principle governing domestic application of international human rights treaties is that “the

States [when becoming party to such a treaty] are deemed to submit themselves to a

legal order in which they, for the common good, assume various obligations, not in

relation to other States, but towards all individuals within their jurisdiction”.

116

It has

further stated that the central obligation in relation to these treaties is for States parties

to give effect to the rights recognised therein.

117

The United Nations human rights

system adopts a broad and flexible approach which allows that the particularities of the

legal and administrative systems of each State, as well as other relevant considerations,

be taken into account..

50. The bona fide obligation to perform a treaty ratified by the State (pacta sunt

servanda) is set out in Article 26 of the Vienna Convention on the Law of Treaties.

118

The

principle of good faith generates, first, a duty to take into account the international

obligations existing in the treaty and second, a duty to co-operate with the Human Rights

Committee (hereinafter also referred to as “HRC”) set up under the Covenant.

119

Against

the background that international (even judicial) decisions are hardly enforceable

through coercive measures, it has been asserted that the fact that the HRC’s views do

not have the force of binding law does not play a decisive role in international practice;

put before the ECtHR (ECtHR, A and others v UK [GC], judgment of 19 February 2009, no. 3455/05, para.

154).

115

The annual report of the HRC provides a chapter on follow-up replies from State parties regarding

individual views, indicating whether they are considered as satisfactory or unsatisfactory, in terms of their

compliance with the Committee’s views, or whether the dialogue between the state and the Special

Rapporteur continues (see Report of the Human Rights Committee, 103rd session [17 October–4 November

2011] and 104th session [12–30 March 2012], A/67/40 [Vol. II], 441 ff., para. 6. The report also mentions the

difficulties to categorise follow-up replies by States parties [see para. 3]). Detailed information regarding the

status of follow-up replies from states is also available on www.ccprcentre.org, the website of the Centre for

Civil and Political Rights, a nongovernmental organisation monitoring follow-up.

116

United Nations Committee on Economic, Social and Cultural Rights (CESCR), General Comment 9.

117

Ibidem.

118

Art. 26 VCLT states: “Every treaty in force is binding upon the parties to it and must be performed by

them in good faith.“

119

HRC, General Comment No 33, para. 15.

CDL-AD(2014)036 22

states comply (or do not comply) for reasons which are not only formal ones.

120

In some

cases, the HRC’s views concerning the Covenant may be followed in the same manner

as human rights courts decisions, in spite of their different characteristics.

121

II. THE ROLE OF INTERNATIONAL HUMAN RIGHTS TREATIES MONITORING

BODIES IN IMPLEMENTING HUMAN RIGHTS TREATIES

51. A proper and effective implementation of international human rights treaties requires

states parties to give due effect to the decisions of international monitoring bodies

adopted on the basis of these treaties, including the non-binding views of committees

(see section C below). The monitoring bodies evaluate the compatibility of the national

legal order with the international treaties concerned, after the national authorities have

had the possibility to address this issue. In this sense, they perform a centralised

interpretation of the treaties’ provisions, which has its own particularities in each of the

three systems selected for the purposes of this Study.

A. The European system of human rights

1. Effects of the case-law of the ECtHR

52. Judgments issued by the European Court are binding and res judicata inter partes.

122

However, the Court has made it clear that the States have to respect the interpretation

given in its judgments in other cases to the relevant extent.

123

53. A judgment of the Court normally contains two elements: first, the statement of a

violation or non-violation of the Convention, and second, in case of violation, a section

on “just satisfaction” (Article 41 ECHR). The “just satisfaction” can cover pecuniary and

non-pecuniary damages. Five conditions must be met for the Court to award just

satisfaction: (1) There must have been a violation; (2) the internal law of the condemned

state “allows only partial reparation to be made” (Article 41); (3) the complainant must

have requested the satisfaction; (4) there must be a causality between violation and

damage, and (5) the award must be “necessary” (cf. Article 41 ECHR). The financial

120

M. NOWAK, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edition N.P. Engel),

Kehl: 2005, para. 40.

121

Kenya, for instance, had a dualist model of application of international treaties, which had therefore to be

transformed into national law before they could be enforced by the domestic courts. In 2010, Kenya

introduced a new Constitution introducing a monist model of application of international law, rendering the

need for a specific act of incorporation superfluous. The State had ratified the Covenant in 1972, had had

not adopted any implementing legislation. Nevertheless, the High Court of Kenya applied the Covenant in

spite of the lack of implementing legislation. It did so in a landmark case concerning torture, in which it

referred to international standards to fill in the gaps of the domestic legal order, restricting the definition of

torture adopted in the 1963 Constitution; see Kenya, High Court, judgment, 21 July 2010, ILDC 1543. This

case shows that the implementation of the Covenant in domestic law may also depend on how the State

concerned addresses other international human rights treaties. The United States, when ratifying the

Covenant in 1992, stated that it did so with the understanding that the treaty was not self-executing. This

was later confirmed by the Supreme Court in Sosa v. Alvarez-Machain, where it clearly stated that the

United States ratified the Covenant under the express understanding that the treaty itself did not create

enforceable rights in domestic courts. See US, SC, 542 US 692 (2004), ILDC 117.

122

Article 46(1) ECHR: “The High Contracting Parties undertake to abide by the final judgment of the Court

in any case to which they are parties.”

123

See, among many others, A and others v UK. The ECtHR affirms that the States enjoy a margin of

appreciation, but even when it is very wide, it is not unlimited: “it is for the Court to rule whether, inter alia,

the States have gone beyond the “extent strictly required by the exigencies” of the crisis. The domestic

margin of appreciation is thus accompanied by a European supervision” (ECtHR, A and others v. UK [GC],

judgment of 19 February 2009, app. no. 3455/05).

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amount of the satisfaction is at the discretion of the Court. The Court also pronounces

itself on costs and expenses, although this is not explicitly mentioned in Article 41.

54. The judgment requires the State Party to cease the violation and, when measures

are available and have been requested by the individual, to repair it. The ECtHR may

order individual measures, such as the release of a detained person,

124

the return of

property,

125

the performance of additional investigations on the circumstances of the

death of a victim,

126

or the reopening of legal proceedings in cases where the domestic

courts have not met the requirements of independence and respect for the right to a fair

trial.

127

The ECtHR’s competency for such measures has been contested by pointing to

the division of labour between the ECtHR and the Committee of Ministers, with the latter

being competent for the supervision of the execution of the ECtHR’s judgments.

However, the ECtHR has developed its power to order the state to take specific

measures to remedy the violation based on Articles 19, 41 and 46 of the Convention.

55. The ECtHR has, since Broniowski v. Poland,

128

issued so-called pilot judgments in

situations of systemic problems in the legal order of member states (such as large-scale

expropriations, tenant law, inhuman detention conditions, and the lack of remedies

against lengthy judicial proceedings or detention conditions). The objective of a pilot

judgment is to induce the State to remove the systemic problem and to resolve the issue

on the domestic level. In a pilot judgment, the ECtHR not only finds a violation in the

concrete case and determines that this results from a systemic problem in the State, but

in addition may impose an obligation to take general measures to remove the systemic

defect, often within a determined deadline. In view of such pilot judgments, the ECtHR

may, if appropriate, adjourn pending parallel “repetitive cases” (Rule 61(6) of the Rules

of Procedure). It will do so if this does not result in gross unfairness.

56. Moreover, the State has to adapt its law and practice so as to prevent violations in

future cases. This more general obligation can be said to flow from the international legal

obligation of non-repetition under Article 30 par. b), of the Articles on State

Responsibility (2001).

129

The adaptation can require measures by all branches of

government: the legislative, the executive, and the judiciary.

57. Finally, concerning the impact on third States, a judgment does not have a formal

erga omnes effect, but deploys a de facto orientating effect for third member states.

130

The UK Supreme Court ruled that the British institutions must follow a “clear and

124

ECtHR [GC], judgment of 8 April 2004, Assanidze v Georgia, no 71503/01 (the Court ruled “unanimously

that the respondent State must secure the applicant's release at the earliest possible date”).

125

ECtHR [GC], judgment of 23 January 2001, Brumărescu v Romania, no 28342/95.

126

ECtHR, judgment of 2 December 2010, Abuyeva and others v Russia, no 27065/05, para. 243: The Court

“considers it inevitable that a new, independent, investigation should take place. Within these proceedings,

the specific measures required of the Russian Federation in order to discharge its obligations under

Article 46 of the Convention must be determined in the light of the terms of the Court’s judgment in this case,

and with due regard to the above conclusions in respect of the failures of the investigation carried out to

date.”

127

See above para 32.

128

ECtHR, Broniowski v. Poland [GC], judgment of 22 June 2004, No 31443/96, paras. 188 et seq. Since

2011, rule 61 of the Rules of the ECtHR.

129

Drafted by the International Law Commission (annexed to Resolution 56/83 of the General Assembly of

the United Nations).

130

Cf, e.g. German Constitutional Court, 2 BvR 2365/09, of 4 May 2011, para. 89: “faktische Orientierungs-

und Leitfunktion”.

CDL-AD(2014)036 24

constant jurisprudence of the Strasbourg court” (which included the case-law against

other contracting states).

131

2. Supervision of the execution of judgments by the Committee of Ministers

58. Under Article 46(2) of the ECHR, “[t]he final judgment of the Court shall be

transmitted to the Committee of Ministers which shall supervise its execution.” The

Committee of Ministers (hereafter referred to as CoM) is a “political” plenary organ of the

Council of Europe in which each State has one representative with an equal vote.

132

59. In 2006, the CoM has adopted Rules for the supervision of the execution of

judgments and of the terms of friendly settlements.

133

Under Rule 6, the CoM examines

not only whether any just satisfaction has been paid, but also whether the State has

taken individual measures to cease the violation and to restore, as far as possible, the

status quo ante for the victim. The CoM also examines whether general measures have

been adopted. The CoM requires the respondent State to submit an action plan within

six months (Rule 7). Since 1987, the CoM adopts interim resolutions to inquire about the

state of progress of the execution of the judgment and to make suggestions for

execution (Rule 16). The CoM has developed these resolutions into memoranda which

contain more precise instructions, as well as information to help the State clarify the

measures to be adopted and draw up the action plan. All the resolutions are public,

although the procedure itself is confidential. When the CoM determines that the state

concerned has fully executed the judgement, it adopts a final resolution under Rule 17.

60. Under Rule 4(1), the CoM “shall give priority to supervision of the execution of

judgments in which the Court has identified what it considers a systemic problem”

(“enhanced supervision”). The cases which, from the outset, come under “enhanced

supervision” are: cases requiring urgent individual measures; pilot judgments; judgments

otherwise disclosing major structural and/or complex problems as identified by the

ECtHR and/or by the CoM; and interstate cases. As of 1 December 2012, 22 % of the

1,335 reference cases pending before the CoM for supervision of their execution were

classified under enhanced supervision.

134

Other cases are to be dealt with under

“standard supervision”.

61. Since 2006, tripartite meetings between the CoM, the Parliamentary Assembly of the

Council of Europe (hereafter referred to as PACE) and the European Commissioner for

Human Rights on the execution are being held.

135

In 2008, the CoM recommended that

States “designate a coordinator— individual or body—of execution of judgments at the

national level, with reference contacts in the relevant national authorities involved in the

execution process”.

136

In response to this recommendation, some member States

created national institutions dedicated to monitoring compliance with both adverse

131

UK Supreme Court, Cadder v Her Majesty’s Advocate (Scotland), Appeal judgment, [2010] UKSC 43;

ILDC 1614 (UK 2010) 26 October 2010, para. 45.

132

Art. 10 and 13-21 of the Statute of the Council of Europe.

133

Rules of 10 May 2006.

134

CoM, Annual report 2012, p. 22.

135

CoM Declaration, Sustained Action to Ensure the Effectiveness of the Implementation of the European

Convention on Human Rights at National and European Levels, Dec-19.05.2006E.

136

CoM Recommendation (2008)2 “On Efficient Domestic Capacity for Rapid Execution of Judgments”, 6

Feb. 2008.

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judgments and the ECHR more broadly.

137

In addition, twelve states have indicated that

they possess procedures to inform national parliamentarians of adverse judgments by

the ECtHR.

138

In a Resolution of 22 January 2013, the PACE requested the States to set

up “comprehensive strategies”, provide action plans, consider establishing a national

body solely for the execution of the ECtHR’s judgments, and also underlined the need

for an increased role of national parliaments.

139

Under Rule 9 of the CoM, the Committee

“shall consider any communication from the injured party with regard to payment of the

just satisfaction or the taking of individual measures.” The supervision of payment of just

satisfaction has been simplified, placing the responsibility on the applicants to inform the

CoM in case of problems within a two months delay.

140

62. National human rights institutions (NRIs) could play a crucial role in improving

execution, because they could both “domesticise” the debate over how to give effect to

the ECHR, and at the same time “Europeanise” the domestic human rights discourse.

141

63. All these changes have eroded the initially strict separation of powers between the

ECtHR and the CoM concerning the execution of judgments.

142

Protocol No. 14 to the

ECHR, in force since 1

June 2012, introduced a new judicial mechanism to promote

execution of judgments: the infringement proceeding under Articles 46(4) and (5) of the

ECHR. The CoM can (with a two thirds majority) refer to the ECtHR (sitting as Grand

Chamber) the question whether a State party has failed to fulfil its obligation to abide by

the final judgment. Such a second judgment does not re-open the question of the

substantive violation of the ECHR which gave rise to the first judgment. Introduced as a

deterrent measure, the procedure’s mere existence and the threat of using it should

137

An example is the United Kingdom’s Parliamentary Joint Select Committee on Human Rights. The Joint

Committee on Human Rights consists of twelve members appointed from both the House of Commons and

the House of Lords and is charged with considering human rights issues in the UK but cannot take up

individual cases. The mandate is not limited to the ECHR

(http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/role ).

Until 2010, only six parliaments (those of Croatia, Finland, Hungary, Romania, Ukraine, and the UK) had

indicated that they had created a special body for supervising the implementation of judgments. See A.

DRZEMCZEWSKI, “The Parliamentary Assembly’s Involvement in the Supervision of the Judgments of the

Strasbourg Court”, Netherlands Quarterly of Human Rights 28 (2010), pp. 164-178; Open Society Justice

Initiative, From Judgment to Justice. Implementing International and Regional Human Rights Decisions

(New York Open Society Foundations 2010), 55.

138

Austria, Bosnia and Herzegovina, Croatia, Cyprus, Germany, Hungary, Italy, the Netherlands, Norway,

Sweden, Switzerland, and the United Kingdom. See PACE, Committee on Legal Affairs and Human Rights,

Implementation of Judgments of the European Court of Human Rights, Progress Report (“Pourgourides

Report”), Doc. 12455 of 20 December 2010. An example is Italy’s Azzolini Law of 2006, which provides that

the Presidency of Italy’s Council of Ministers shall coordinate the execution of ECHR judgments. See also

above footnote 78.

139

The report explicitly mentioned Bulgaria, Greece, Italy, Moldova, Poland, Romania, Russia, Turkey and

Ukraine as States with deficiencies. The resolution was based on a report which had suggested two

measures: a national agent for the execution and a dual system of parliamentary control of execution

(national parliaments as the primary instrument and PACE monitoring as a back-up). Report of the PACE

Committee on Legal Affairs and human rights (rapporteur: S. Kivalov), Ensuring the viability of the

Strasbourg Court: structural deficiencies in states parties, 7 January 2013 (Doc. 13087).

140

CoM, Annual Report 2012, p. 34.

141

Open Society, From Judgment to Justice. Implementing International and Regional Human Rights

Decisions (New York Open Society Foundations 2010),, p. 56.

142

This appeared clearly in ECtHR [GC], Verein gegen Tierfabriken (VgT) v. Switzerland (No. 2), judgment

of 30th June 2009, no 32772/02. This case concerned the non-execution of a judgment of 2001 by

Switzerland. Although the ECtHR sustained that the CoM had an exclusive power to supervise the execution

of its judgments under Article 46 of the ECHR, the Court held that it may indicate the most appropriate

means to implement a judgment.

CDL-AD(2014)036 26

constitute an incentive to execute the ECtHR’s judgments.

143

Since the introduction of

this mechanism, no single infringement proceeding has been conducted.

144

B. The Inter-American System of Human Rights Protection

1. Effects of judgments and Commission’s reports

a. The Inter-American Court’s judgments

64. If the Court finds that there has been a violation of the Convention, “the Court shall

rule that the injured party be ensured the enjoyment of his or her right or freedom that

was violated. It shall also rule, if appropriate, that the measure or situation that

constituted the breach of such right or freedom be remedied and that fair compensation

be paid to the injured party” (Article 63 ACHR). Ensuring the enjoyment of rights, as

mentioned in Article 63, means that the Court will, first, decide on whether a violation

has occurred, and second, if so, require the state to bring to an end the violation (which

reflects the obligation of cessation and non-repetition in the sense of the general

international law on state responsibility).

145

The second competence of the Court

mentioned in Article 63 ACHR, namely its power to rule on a “remedy”, has been

understood as referring to the general principle of customary international law that every

violation of an international norm which results in harm creates the obligation to make

adequate reparation.

146

65. The “remedy” of Article 63 of the ACHR has been understood very broadly in the

Court’s practice. In fact, the remedial scheme used by the Inter-American Commission

and Inter-American Court has been considered “to be among the most comprehensive

and progressive, and as it has evolved over time”.

147

The Court has ordered integral

restitution (restitutio in integrum) such as the return of property or of territory; release of

a prisoner; return to place of residence; reinstatement in employment, etc. When a

reinstatement of the status quo ante is not possible, sufficient, or appropriate, the Court

has (alternatively or additionally) ordered pecuniary compensation both for direct and

indirect material and for moral damages suffered. It also rules on costs and expenses.

There is a broad range of other remedies which may be categorised under different

headings: the obligation to amend legislation (which involves the legislature); the

obligation to execute or enforce domestic court judgments (which concerns the

administration), and the obligation to annul or otherwise lift domestic judgments, more

directly addressed to the judiciary.

143

Explanatory report to Protocol No. 14 to the Convention for the Protection of Human Rights and

Fundamental Freedoms, amending the control system of the Convention of 12 May 2009, para. 100.

144

In August 2012, the NGOs European Human Rights Advocacy Centre and Memorial Human Rights

Centre requested the CoM to initiate an infringement proceeding in relation to the noncompliance of Russia

with the ECtHR judgment Isayeva v Russia of 24 February 2005 (relating to Chechnya), app. no. 57950/00.

The NGOs relied on Rule 9(2) of the CoM rules for the execution of judgments: “The Committee of Ministers

shall be entitled to consider any communication from non-governmental organisations, as well as national

institutions for the promotion and protection of human rights, with regard to the execution of judgments

under Article 46, paragraph 2, of the Convention.”

145

IACtHR, Aloeboetoe v. Surinam (Reparations), Series C No. 15, 10 September 1993.

146

IACtHR, Velásquez Rodriguez v. Honduras (Compensatory Damages, 1989), para. 25 (citing, inter alia,

Permanent Court of International Justice (CPJI), Factory Chorzow (Jurisdiction), 1927 PCIJ at 21, and

Factory Chorzow (Merits), 1928 PCIJ at 26).

147

Open Society, From Judgment to Justice. Implementing International and Regional Human Rights

Decisions (New York Open Society Foundations 2010), p. 65.

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66. “The judgment of the Court shall be final and not subject to appeal” (Article 67

ACHR). Article 68(1) ACHR states: “1. The States Parties to the Convention undertake

to comply with the judgment of the Court in any case to which they are parties. A

judgment creates an obligation to implement or execute it. This obligation can be based

on Article 67 and 68, and additionally flows from Article 2 ACHR, the general obligation

of the State parties to “give effect” to the rights and freedoms enshrined in the

Convention. This general provision requires the states to adopt “legislative or other

measures.” The Court here relies on an effet-utile interpretation: “The States Parties to

the Convention must guarantee compliance with treaty provisions and their effects (effet

utile) at the level of their respective domestic norms. This principle is applicable (…) also

with regard to the procedural norms, such as those referring to compliance with the

decisions of the Court (…) The provisions contained in the said articles must be

interpreted and applied so as to ensure that the protected guarantee is truly practical

and effective”.

148

This formula, which seems to be borrowed from the ECtHR,

149

also

underlines the obligation to fully and effectively implement judgments of the Court.

67. A judgment of the Inter-American Court has no binding effect on other States

Parties. However, under Article 69 of the ACHR, any judgment “shall be transmitted to

the States Parties to the Convention.” Arguably, this conventional obligation implies that

the other States Parties are under an obligation to take note or even to take into account

judgments rendered against another State Party. Such an obligation can also be based

on the general obligation to give effect to the Convention rights (Article 2 ACHR).

b. Effects of the Commission’s decisions and follow-up

68. The Commission’s confidential reports under Article 50 and the published opinions

under Article 51 are not legally binding, because they are not judgments.

150

However, all

member States of the Organization of American States (hereafter referred to as OAS) –

as parties to the OAS Charter and, additionally, in some cases, to the ACHR – are

obliged to make every effort to comply with the Commission’s recommendations in

individual cases. The legal basis of this obligation is the principle of good faith (Article 26

and 31(1) of the Vienna Convention on the Law of Treaties).

151

Article 48 of the

Commission’s Rules of Procedure (2013) regulates the follow-up as follows:

“1. Once the Commission has published a report on a friendly settlement or on the

merits in which it has made recommendations, it may adopt the follow-up

measures it deems appropriate, such as requesting information from the parties

and holding hearings in order to verify compliance with friendly settlement

agreements and its recommendations.

2. The Commission shall report on progress in complying with those agreements

and recommendations as it deems appropriate.”

148

IACtHR, Baena Ricardo et al v Panama (competence), Series C No 104, 28 November 2003, para. 66.

149

ECHR, Airey v. UK, No. 6289/73, 9 Oct. 1979, para. 24.

150

Nevertheless, some scholars call them “judgments”, e.g. M. J. CAMILLERI, V. KRSTICEVIC, “Making

International Law Stick: Reflections on Compliance With Judgments in the Inter-American Human Rights

System”, in Protección internacional de derechos humanos y Estado de derecho. Studia in honorem Nelson

Mandela (Bogotá Grupo Editorial Ibáñez 2009), pp. 235-247 (p. 238).

151

IACtHR, Loayza-Tamayo vs. Peru, Merits, Judgment of September 17, 1997, Serie C No. 33, paras. 79-

81.

CDL-AD(2014)036 28

69. In its compliance reports, the Commission uses three categories: total compliance,

partial compliance, and pending compliance.

70. A separate issue are the legal effects of precautionary measures (medidas

cautelares) which can be issued by the Commission in case of a danger of irreparable

harm to preserve the status quo. The Colombian Constitutional Court accepted these

measures as binding, with the argument that the Commission is a court-like body

(órgano cuasi-jurisdiccional).

152

For over a decade, Mexico has maintained a policy of

full-compliance with the requests of the Inter-American Commission on Human Rights

(IAHRC) to adopt and implement precautionary measures. Mexico has established

mechanisms in various federal legal instruments which lay out means and procedures to

comply with such requests, as well as with provisional measures ordered by the Inter-

American Court of Human Rights.

153

. Most recently, the government even signed an

agreement of technical assistance concerning the implementation of precautionary

measures requested by the Commission on the disappearance of 43 students from

Ayotzinapa, Guerrero.

154

This reasoning would apply a fortiori to final reports of the

Commission. However, courts in Argentina

155

or Venezuela

156

have not accepted the

Commission reports as binding.

157

2. Supervision of the execution of its judgments by the IACtHR

71. The ACHR does not contain a specific provision on the execution or the

implementation of IACtHR’s judgments or on the supervision and monitoring of that

execution. But Article 65 states that “It [the IACtHR] shall specify, in particular, the cases

in which a state has not complied with its judgments, making any pertinent

recommendations.” This provision is repeated in Article 30 of the IACtHR’s Statute,

158

and has been interpreted by the Court as implying that the supervision of compliance

falls, in the first instance, with the Court itself.

72. Along that line, the IACtHR has assumed this implied power as part of its explicit

jurisdictional powers. In Baena Ricardo et al v Panama (competence) of 2003, the

IACtHR justified its authority through the interpretation of the mentioned provisions, and

152

IACtHR, Gutiérrez Soler v Colombia, judgment of 12 September 2005, Series C No 132; Constitutional

Court of Colombia, Constitutional petition, No 524/2005; ILDC 1014 (CO 2005) 20 May 2005, paras 6-7.

153

See the Rules of Operation of the "Trust for compliance with human rights obligations”, published at the

Official Journal of the Federation on May 29

, 2014, available

at: http://www.dof.gob.mx/nota_detalle.php?codigo=5346590&fecha=29/05/2014 .

154

See http://www.oas.org/es/cidh/prensa/comunicados/2014/136.asp.

155

It seems that the Supreme Court of Argentina has recently changed its views in this respect. In the case

Carranza Latrubesse, Gustavo c/ Estado nacional, it considered the reports issued by the Inter-American

Commission under Article 51 of the ACHR as binding for Argentina, see Supreme Court of Argentina, X.

568.XLIV, C.594.XLIV, judgment of 6 August 2013.

156

See, on the general position concerning the Inter-American Commission and Court, Venezuela,

Constitutional Chamber, Supreme Court, judgment No 1942 of 15 July 2003 (Impugnación de artículos del

Código Penal, Leyes de desacato).

157

M. J. CAMILLERI, V. KRSTICEVIC, op. cit, p. 238.

158

Art. 30 Statute of the Court: “The Court shall submit a report on its work of the previous year to each

regular session of the OAS General Assembly. It shall indicate those cases in which a state has failed to

comply with the Court‘s ruling. It may also submit to the OAS General Assembly proposals or

recommendations on ways to improve the Inter-American system of human rights, insofar as they concern

the work of the Court.”

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also by way of comparison and in contrast to the model established by the ECHR.

159

that judgment, the Court rejected Panama’s argument that the monitoring competence

should fall upon the OAS General Assembly.

160

In its Annual Report of 2012, the Court

stated that: “The authority to monitor its judgments is inherent in the exercise of its

jurisdictional powers, and its legal basis can be found in Articles 33, 62(1), 62(3) and 65

of the ACHR, as well as in Article 30 of the IACtHR’s Statute.”

161

73. Since 2001, the IACtHR has systematically published orders of its President, the aim

of which is to monitor the level of compliance with its judgments.

162

Since 2008, the

IACtHR conducts compliance hearings. The procedure for monitoring compliance with

the IACtHR’s judgments, which had evolved through the IACtHR’s practice, in 2009 has

been codified in Article 63 of the IACtHR’s Rules of procedure (in force since 1 January

2010):

“1. The procedure for monitoring compliance with the judgments and other decisions

of the Court shall be carried out by means of the submission of reports by the State

and observations to those reports by the victims or their legal representatives. The

Commission shall present observations to the State’s reports and to the

observations of the victims or their representatives. 2. The Court may require from

other sources of information relevant data regarding the case in order to evaluate

compliance therewith. To that end, the Tribunal shall also require expert

declarations or reports it considers appropriate. 3. When it deems appropriate, the

Tribunal may convene the parties to a hearing in order to monitor compliance with

its decisions. 4. Once the Tribunal has obtained all the relevant information, it shall

determine the state of compliance with its decisions and issue the pertinent

orders.”

163

74. Monitoring compliance comprises two stages: first, the collection of information on

compliance activities, and second, the assessment of whether the State’s measures

indeed fulfil the orders made in the judgment. In the first stage the IACtHR asks the state

to submit a detailed report on what it has actually done to comply with the judgment,

within a period specified by the IACtHR in the operative paragraphs of the judgment on

the merits. The IACtHR also seeks information from the Inter-American Commission and

the victims (or their representatives). This stage is normally a written procedure,

sometimes accompanied by hearings, which are normally public, “unless the Tribunal

deemed it appropriate that they be in private” (Rule 15 of the IACtHR’s Rules of

Procedure).

164

In the second stage, the IACtHR uses this information to assess the

degree of compliance. It informs the State about what it needs to do. It also informs the

OAS General Assembly about problems (Article 65 of the ACHR). Compliance problems

159

IACtHR, Baena Ricardo et al v Panama (competence), Series C No 104, 28 November 2003, part. D

(paras. 84-104).

160

Ibid., esp. para. 88.

161

Annual Report of the Inter-American Court of Human Rights (2012), p. 13.

162

L. BURGORGUE-LARSEN, A. UBEDA DE TORRES, The Inter-American Court on Human Rights. Case-

law and commentary, Oxford: 2011, chapter 8, para. 11.

163

Article 63 Rules of Procedure of the Inter-American Court of Human Rights as of 31 Jan. 2009,

Procedure for monitoring compliance with the Judgments and other decisions of the Court.

164

Rules of Procedure of the Inter-American Court of Human Rights of 31 January 2009. The Court’s

practice is to order private hearings in three situations: implementation of provisional measures; when the

state does not provide full information; when the victims do not provide full information. See L.

BURGORGUE-LARSEN, A. UBEDA DE TORRES, The Inter-American Court on Human Rights. Case-law

and commentary, Oxford: 2011, chapter 8, para. 12.

CDL-AD(2014)036 30

may be raised not only in the regular annual session of the OAS General Assembly but

also in special sessions.

75. It might be argued that the issue of non-compliance is ultimately a political matter,

not a legal one.

165

However, the drafters of the ACHR seemed to have rejected such a

scheme (in the Court’s reading of the travaux préparatoires to the Convention).

166

In the

last few years, the Presidents of the Commission and the IACtHR speak before the

General Assembly, although this only confirms the resolutions that have previously been

adopted by the Permanent Council. Indeed, the role that the General Assembly could

have played as a mechanism of collective human rights protection in the Inter-American

system has been considerably weakened. The reason is simple: no State wants to

supervise other States or be supervised by them.

167

C. The case of the United Nations Human Rights Committee (HRC)

1. Effects of the HRC’s views and conclusions

76. Article 28 of the International Covenant on Civil and Political Rights establishes a

Human Rights Committee consisting of eighteen members, serving in their personal

capacities. Under the First Optional Protocol (hereafter referred to as OP I), States

Parties to the Covenant which have likewise ratified OP I, recognise the competence of

the HRC to receive and consider communications from individuals subject to its

jurisdiction who claim to be victims of a violation by that State Party of any of the rights

set forth in the Covenant. The procedure of the Committee for individual communications

is laid out in Article 5 OP I to the Covenant.

168

The HRC is no court, and it is not

empowered to issue “judgments.” Article 5(4) of the OP I describes the decisions of the

Committee as “views” (in French the term is constatations and in Spanish

observaciones). The views of the HRC do not have the formal quality of judgments and

are not binding. Domestic courts have frequently and consistently rejected any formally

binding quality of the views, for example in Austria,

169

Sri Lanka,

170

Spain,

171

Ireland,

172

and France.

173

165

S. DAVIDSON, The Inter-American Human Rights System (Dartmouth Aldershot etc.: 1997), p. 226: As

“the issue of non-compliance is essentially one to be resolved by the General Assembly, it will be apparent

that the question becomes a political matter to be determined through the political processes of the OAS.”

166

IACtHR, Case of Baena Ricardo et al v Panama (competence), Series C No 104, 28th November 2003,

para. 66, paras 89-90.

167

L. BURGORGUE-LARSEN, “The powers of the Court to monitor compliance with its judgments”, in L.

BURGORGUE-LARSEN, A. UBEDA DE TORRES, The Inter-American Court on Human Rights. Case-law

and commentary, Oxford: 2011, pp.171-192, para. 8.07, footnote 33.

168

“1. The Committee shall consider communications received under the present Protocol in the light of all

written information made available to it by the individual and by the State Party concerned.

2. The Committee shall not consider any communication from an individual unless it has ascertained that:

(a) The same matter is not being examined under another procedure of international investigation or

settlement; (b) The individual has exhausted all available domestic remedies. This shall not be the rule

where the application of the remedies is unreasonably prolonged.

3. The Committee shall hold closed meetings when examining communications under the present Protocol.

4. The Committee shall forward its views to the State Party concerned and to the individual.”

169

Austrian Supreme Court, Perterer v Land Salzburg and Austria, Appeal judgment, 1Ob8/08w; ILDC 1592

(AT 2008) 6 May 2008, paras.7-9.

170

Supreme Court of Sri Lanka, Singarasa v Attorney General, Application for judicial review, SC Spl (LA)

No 182/99; ILDC 518 (LK 2006) 15 September 2006, para. 21.

171

Spanish Constitutional Court, José Luis PM v Criminal Chamber of the Supreme Court, Constitutional

appeal (recurso de amparo), Judgment of the Constitutional Court; ILDC 1794 (ES 2002) 3 April 2002, para.

17.

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77. The HRC’s General Comment No. 33 of 5 November 2008, explains the legal status

of the views as follows:

174

“While the function of the Human Rights Committee in

considering individual communications is not, as such, that of a judicial body, the views

issued by the HRC under the OP I exhibit some important characteristics of a judicial

decision.”

175

The views of the HRC under the OP I represent an authoritative

determination …”.

176

“Due to its composition, its independence and, importantly, its

practice in examining State reports and individual communications procedures, the HRC

has garnered an international reputation that imparts great moral authority to its

decisions that a State party has violated ICCPR rights.”

177

78. Because the views are not legally binding judgments, the HRC does not possess an

explicit competence to ensure their enforcement. However, the authority to monitor the

effect of its views is an implied power of the HRC.

178

“The legal norms on which the

treaty bodies pronounce themselves are binding obligations of the States parties, and

therefore the pronouncements of the treaty bodies are more than mere

recommendations that can be readily disregarded because a State Party disagrees with

the interpretation adopted by the HRC or with its application to the facts.”

179

Moreover,

States Parties cannot simply ignore them, but have to consider them in good faith (bona

fide). On the other hand, “they are not debarred from dismissing them, after careful

consideration, as not reflecting the true legal position with regard to the case concerned.

Not to react at all to a finding by the HRC, however, would appear to amount to a

violation of the obligations under the ICCPR.”

180

The legal consequence is that member

states are under the obligation to take the HRC’s final views into consideration in good

faith.

2. Follow-up action

79. The legal basis for follow-up action, including the obligation for the State concerned

to provide follow-up information and cooperate with the HRC, is Article 2(3) of the

Covenant: “Each State Party to the present Covenant undertakes: (a) To ensure that any

person whose rights or freedoms as herein recognised are violated shall have an

effective remedy, notwithstanding that the violation has been committed by persons

acting in an official capacity; (…).” The remedy mentioned refers to a remedy under

domestic law of the member state. However, the HRC relies on this provision as a legal

basis for the obligation of the member states’ to inform the HRC about the measures

172

Supreme Court of Ireland, Kavanagh v Governor of Mountjoy Prison, Appeal Decision, (2002) 3 IR 97;

(2002) 2 ILRM 81; (2002) IESC 13; ILDC 488 (IE 2002), para. 36.

173

French Conseil d’Etat, Hauchemaille v France, Judicial review, No 238849; ILDC 767 (FR 2001) 11

October 2001, para. 22.

174

“The obligations of state parties under the optional protocol to the international covenant on civil and

political rights” (CCPR/C/GC/33).

175

Ibid., para. 11.

176

Ibid., para. 13.

177

M. NOWAK, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edition N.P. Engel),

Kehl: 2005, para. 40.

178

M. SCHMIDT, “Follow-Up Mechanisms Before UN Human Rights Treaty Bodies and the UN Mechanisms

Beyond”, in A. F. BAYEFSKY (ed.), The UN Human Rights Treaty System in the 21

Century (Kluwer Law

International The Hague etc.: 2000), pp. 233-249 (p. 234).

179

International Law Association, Final Report on the Impact of Findings of the United Nations Human

Rights Treaty Bodies, 2004:Berlin, para. 15.

180

C. TOMUSCHAT, “Human Rights Committee”, in R. WOLFRUM (ed), The Max Planck Encyclopedia of

Public International Law (Oxford: Oxford University Press online: 2013), para. 14.

CDL-AD(2014)036 32

taken to give effect to the Committee’s view in cases where the HRC found a violation of

the Covenant.

181

Implicitly, Article 2(3) ICCPR is thus used by the HRC as the legal basis

for a quasi-binding quality of the views, binding in the sense that they require follow-up

measures upon a violation found by the HRC.

182

80. In 1990, the HRC created the mandate of the Special Rapporteur for Follow-up on

Views, for a two years (renewable) term.

183

The Rapporteur’s duties were later

formalised and modified in the HRC Rules of Procedure. The current mandate is

circumscribed in Rule 101 of the HRC Rules of Procedure of 2005: “1.The HRC shall

designate a Special Rapporteur for follow-up on views adopted under article 5,

paragraph 4, of the OP, for the purpose of ascertaining the measures taken by States

parties to give effect to the Committee’s Views. 2. The Special Rapporteur may make

such contacts and take such action as appropriate for the due performance of the follow-

up mandate. The Special Rapporteur shall make such recommendations for further

action by the HRC as may be necessary. 3. The Special Rapporteur shall regularly

report to the HRC on follow-up activities. 4. The HRC shall include information on follow-

up activities in its annual report.”

184

81. The HRC has described the activity of the Special Rapporteur in General Comment

No. 33: “That member, through written representations, and frequently also through

personal meetings with diplomatic representatives of the State party concerned, urges

compliance with the Committee’s views and discusses factors that may be impeding

their implementation. In a number of cases this procedure has led to acceptance and

implementation of the Committee’s views where previously the transmission of those

views had met with no response.”

185

Rule 103 of the HRC Rules of Procedure foresees

that the information provided by the States Parties relating to follow-up activities is, as a

rule, not confidential but public, “unless the HRC decides otherwise”. Failure by a State

party to implement the views of the HRC in a given case becomes public also through

the publication of the HRC’s decisions, inter alia in its annual reports to the General

Assembly of the United Nations, on a country-by-country basis.

186

It can be said that the

HRC “gives ample publicity to the follow-up in its annual reports.”

187

In its recent reports,

the HRC has provided a complete statistical breakdown of the position with regard to all

cases in which it has found a violation to exist.

181

HRC, General Comment No 33, para. 14. This General Comment quotes the standard formula used in its

views where a violation has been found: “By becoming a party to the Optional Protocol the State party has

recognized the competence of the Committee to determine whether there has been a violation of the

Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to

all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to

provide an effective and enforceable remedy in case a violation has been established. In this respect, the

Committee wishes to receive from the State party, within 180 days, information about the measures taken to

give effect to the Committee’s views.”

182

H. M. NOWAK, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edition N.P. Engel),

Kehl: 2005, para. 36. According to him, this is “a special feature of the Committee’s case law”; “Article 2(3)

also serves as a substitute for the Committee’s inability to order the State party concerned to remedy the

violation found by a specific form of reparation, including monetary compensation to the victim.”

183

Report of the HRC, A/45/40 (1990), Vol. I, at 144-145 and Vol. II, Annex XI.

184

Rules of 2005.

185

HRC, General Comment No. 33, para. 16.

186

HRC, General Comment No. 33, para. 17.

187

C. TOMUSCHAT, “Human Rights Committee”, in R. WOLFRUM (ed), The Max Planck Encyclopedia of

Public International Law (Oxford: Oxford University Press online: 2013), p. 35.

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82. In the absence of a formal legal obligation to execute the HRC’s views, the obligation

to provide information on measures taken by the State in order to implement the views

functions as a subsidiary tool. Therefore, the failure to provide such information is a

specific type of non-compliance with the views. Indeed, in each view that finds a

violation, the HRC requests information from the State concerned. It normally uses the

following wording: “The HRC wishes to receive from the State Party, within 180 days,

information about the measures taken to give effect to the Committee’s views.” This

deadline for the State Parties to provide follow-up information could be considered too

strict. If information is received from the State Party, this is routinely transmitted to the

author, who is given two months to comment on the State Party’s submission. A

summary of the State Party’s response and author’s comments is presented by the

Special Rapporteur in the form of interim reports. Since 1997, this update on information

received between sessions, including recommendations on further action is discussed in

principle in public session by the HRC. However, at the HRC’s request, to date such

discussions have remained private. A summary of these reports is then published in a

Committee’s Annual Report to the General Assembly. Since 1994, follow-up activities

have been reflected in a separate chapter, now generally chapter 6, of the Annual

Report.

188

83. Five types of answers by the State concerned may be distinguished: (1) indication of

willingness to implement the views; (2) arguments on factual errors of the case, (3)

challenges of the HRC’s legal reasoning; (4) argument that no domestic legal basis for

the implementation of the HRC’s decisions or for granting compensation to the victim

was lacking, so that the HRC’s recommendations could not be acted upon; and (5)

refusal to consider the HRC’s views as binding and indication that compensatory

payments to the victim(s) or other remedies had been effectuated ex gratia.

189

In all such

cases, the HRC regards the dialogue between the HRC and the State Party as on-going

with a view to implementation. The Special Rapporteur for the Follow-up of Views

conducts this dialogue, and regularly reports on progress to the Committee.

84. The views are received differently in the different domestic legal orders. Most states

have not enacted special enabling legislation under which the decisions of UN Human

rights treaty bodies and regional human rights instances are given legal status. Peru is

an exception, because it adopted an enabling law in 1985, which was, however,

rescinded by the government of President Alberto Fujimori in 1996.

190

Colombia is

another exception

191

III. THE ROLE OF DOMESTIC COURTS IN THE IMPLEMENTATION OF

INTERNATIONAL HUMAN RIGHTS TREATIES

85. The distribution of competences between the legislator, the executive and the courts

varies greatly depending on the monist or dualist approach of the country concerned, on

188

Committee on the elimination of racial discrimination (CERD), Follow-up procedure of the Human Rights

Committee and the Committee against Torture (CERD, Sixty-seventh session 2 to 19 August 2005,

CERD/C/67/FU/1), para. 7.

189

M. SCHMIDT, “Follow-Up Mechanisms Before UN Human Rights Treaty Bodies and the UN Mechanisms

Beyond”, in A. F. BAYEFSKY (ed.), The UN Human Rights Treaty System in the 21

Century (Kluwer Law

International The Hague etc.: 2000), pp. 236-37.

190

Ibid. at p. 241.

191

Enabling law adopted in 1996, see supra, chapter I.A.4, paras. 33-35.

CDL-AD(2014)036 34

the internal effect of the specific international legal provision, on the status of

international human rights treaties and on the powers of the courts. Concerning the

different roles played by national authorities, there is a joint responsibility between the

executive, the legislative and the judiciary in implementing international human rights

treaties.

86. Even though the international human rights treaties, once they are part of the

domestic legal order and their provisions have a self-executing character, may be

directly applied by the courts, this does not alter the fact that, internationally, the State as

such and not its judiciary is responsible for the correct and timely implementation of its

international legal obligations. However, if the legislator or executive, as the case may

be, fails to take the required action, in a monist system, the courts, in concrete cases put

before them, may directly apply the international legal provision, provided it has a self-

executing character. If that would bring its ultimate decision in conflict with one or more

provisions of national law, it depends on the status of the international legal norm

concerned within the domestic legal system whether the conflict may be solved by either

leaving the conflicting provision of national law out of application by making a

“harmonising interpretation” of the domestic norm with the international provisions or, if

this is not possible, by declaring it null and void.

192

86. This chapter will analyse two separate albeit interrelated questions: the role of

domestic courts in implementing international human rights treaty provisions (A) and

their role when implementing judgments of the international courts and decisions of the

monitoring bodies decisions under the three international human rights treaties

concerned (the European Convention on Human Rights, the American Convention on

Human Rights and the International Covenant on Civil and Political Rights) (B).

A. The role of domestic courts in implementing International human

rights treaties provisions

87. Domestic courts, when reviewing the compatibility of domestic legislation with the

respective Conventions and the Covenant, reinforce their role as protectors of human

rights at the domestic level and carry out a type of “diffuse review of compatibility”,

193

opposed to the international review carried out by the international courts and monitoring

bodies themselves. The latter serves to ensure uniformity in the interpretation (and

therefore is considered as a “concentrated review of compatibility” between domestic

legislation and the treaties themselves).

88. When implementing the human rights treaties in their respective national context,

domestic courts have to face any possible conflicts or tensions arising from reviewing

the compatibility of the specific provision either with the constitution itself (section 1) or

with national legislation (section 2).

194

192

The British Human Rights Act of 1998, in Article 3, paragraph 1, even contains an obligation for the

courts, to the extent possible, to apply this interpretation method in relation to the ECHR: ‘primary legislation

and subordinate legislation must be read and given effect in a way which is compatible with Convention

rights’. This obligation also includes the obligation to take the case law of the ECtHR into account.

193

See supra, para. 4 concerning the definition of this type of review.

194

A possible variant could be conflicts between the provisions of two incorporated international treaties, for

example a conflict between the human right of access to an impartial tribunal (Art. 6 ECHR) and a bilateral

headquarters agreement between a host state and an international organisation, requiring the state to grant

immunity to the organisation. As in most countries, such treaties would have the same legal force within the

CDL-AD(2014)036

1. The conflict between an international human rights treaty provision and the

constitution

89. The situation is quite complicated when the conflict arises between an international

treaty and the constitution or, where they exist, constitutional (organic) laws. Such a

conflict is a delicate one, as it confronts the highest normative instruments of a country

with instruments adopted at the international level. States therefore seek to avoid such

conflicts, if possible. One of the tools that serves this purpose is the provision which

prohibits the ratification of treaties that contradict the constitution. Such a provision can

be found, for instance, in the Constitution of Armenia (Article 6) and Hungary (Article

23.3 and 4). A variant of this provision, found in the Constitution of Ukraine (Article 9),

stipulates that “the conclusion of international treaties that contravene the Constitution

/…/ is possible only after introducing relevant amendments to the Constitution”. In

Spain, according to Article 95.1 of the Constitution, if a treaty contradicts the

Constitution, it has to be amended; otherwise, the treaty will not be ratified. Finally, in

some countries, such as Belgium, the Czech Republic, France and the Netherlands, a

preliminary review of the compatibility of international treaties to be ratified with the

constitution is required or at least available to decrease the risk that two incompatible

norms, both of a fundamental nature, would exist in the same legal order.

90. If such conflict-avoiding tools fail, national organs, especially courts will need to find

a solution to the conflict. Two main options are available: the first one consists in the

harmonisation of the conflicting provisions through interpretation; the second one is

based on the hierarchy of norms, which implies either the disapplication of domestic law

or ignoring the international human rights treaty.

91. The first option is explicitly advocated for in many constitutions, as the “interpretation

clauses” foster an interpretation of human rights that is both in conformity with the

constitution itself and with the international treaties in force. These clauses influence the

approach to the “catalogue” of human rights, favouring the integration of human rights

existing in international treaties into the fundamental rights list contained in the

constitution. An example is the Constitution of Romania (Article 20): “constitutional

provisions concerning the citizens' rights and liberties shall be interpreted and enforced

in conformity with the Universal Declaration of Human Rights, with the covenants and

other treaties Romania is a party to” (par. a)). Another example is the British Human

Rights Act (Article 3, paragraph 1). Maybe the most paradigmatic examples have been

the Portuguese Constitution (Article 16.2) and the Spanish Constitution (Article 10.2),

195

which have influenced many of the constitutions in Latin America (as is the case for

Colombia,

196

the Dominican Republic,

197

Ecuador,

198

Mexico

199

or Peru

200

domestic legal order, the general principles – lex posterior derogat priori, lex specialis derogat generali –

would apply, though their application may not be an easy one.

195

See G. MARTINICO, “Is the European Convention Going to Be 'Supreme'? A Comparative-Constitutional

Overview of ECHR and EU Law before National Courts”, EJIL, 23, 2012, pp. 401-424.

196

Article 93.

197

Article 74.4.

198

Article 172.

199

Article 1.

200

Fourth final provision.

CDL-AD(2014)036 36

92. While certainly preferable, this option may only be useful in some cases, its

application being impossible in case of direct incompatibility. In such a case, the second

option – that of giving preference to one of the norms – would need to be resorted to. It

is possible that national courts, guardians of the integrity of the national legal order,

would have a tendency to favour the constitution, especially if it grants a higher level of

human rights protection. The Supreme Court of Mexico has recently interpreted the 2011

constitutional reform in this manner, stating that Article 1 does not entail that the

international human rights treaties have a higher legal force than the Constitution, but

that the most favourable norm for the individual should prevail where the national judge

exercises his or her diffuse review of the compatibility of the treaty and national law.

There is no a priori on what norm prevails; it depends on their content.

201

This is not

problematic and could even be desirable where both national and international norms go

in the same direction, since human rights treaties establish minimum protection

standards.

202

However, it can be problematic in cases where there are competing rights

and, in some cases, national courts cannot increase the list of rights guaranteed in the

constitution. In such a case, the second option – that of giving preference to one of the

norms – will have to be resorted to.

93. Chile has given a different type of scenario. The American Convention on Human

Rights prohibits in its Article 13.4 prior censorship, except for the sole purpose of

regulating access for the moral protection of childhood and adolescence. Chile has been

the subject of a number of cases before the Inter-American Court of Human Rights

concerning precisely the issue of freedom of expression and the use in the country of the

so called “laws on contempt” (leyes de desacato), which permitted prior censorship and

were based on the Constitution. In this case, there was a direct clash between a

provision of the American Convention on Human Rights and the Constitution of Chile,

which could only be solved when Chile changed its Constitution in order to eliminate

prior censorship.

94. The Supreme Court of Brazil has also faced the issue of the compatibility between

the Constitution and international human rights treaties. In a judgment 2008, it had to

decide whether the provisions of the American Convention on Human Rights and the

International Covenant on Civil and Political Rights, that prohibited detention for debt,

overrode the Brazilian legislative provisions prescribing detention of defaulter

depositaries, despite the fact that this type of detention was authorised by the

Constitution of Brazil. Until 2010, the dominant understanding had been that human

rights treaties were, as for any other kind of treaty, equivalent to ordinary legislation, any

new or more specific piece of legislation establishing and regulating the imprisonment of

the unfaithful depositary could supersede the ACHR or the Covenant. The Supreme

Court had also established

203

that if the ACHR clashed with the Constitution, the ACHR

201

After the Inter-American Court’s decision in the case Radilla Pacheco (IACtHR, Radilla Pacheco v

Mexico, judgment of 23 November 2009, Series C No. 209), the Supreme Court, In its judgment of 14 July

2011, file 912/2010, had decided that all Mexican domestic courts had to exercise a review of compatibility

between the American Convention on Human Rights and the national legal order and that all the judgments

issued by the Inter-American Court against Mexico were binding on all the State authorities. In another

judgment, decided in September 2013 (SC 293/2011), the Supreme Court redefined its position and

considered that in case of conflict between an international human rights provision and domestic law, the

most favorable norm should be applied, either international or domestic.

202

Article 53 of the ECHR establishes that “Nothing in this Convention shall be construed as limiting or

derogating from any of the human rights and fundamental freedoms which may be ensured under the laws

of any High Contracting Party or under any other agreement to which it is a party”.

203

Brazil, Supreme Court, Habeas corpus, 72.131-1, 23 November 1995.

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was not applicable. In its judgment of 2010, the Supreme Court changed its established

case-law and decided to interpret that, as the Constitution merely allowed the

establishment of a general prohibition of civil imprisonment (and not a compulsory

requirement), the Brazilian legislation contained this prohibition anymore, because of the

existing ban in the ACHR and the Covenant.

204

2. The possible conflict between an international human rights treaty provision

and a domestic legal regulation (in abstracto control) or general policy

95. There are many examples of this type of conflict. International human rights treaties

which are incorporated into domestic legal orders can clash with domestic legal

regulations. Many national constitutions foresee the risk of a conflict between

international treaties and domestic laws, declaring usually that the former shall prevail.

205

For instance, the Constitution of Hungary gives the Constitutional Court the power to

“annul any piece of legislation or any constituent provision which conflicts with an

international agreement” (Article 24), although such treaties do not become part of the

Hungarian legal system (Article Q).

96. There are specific cases which have had an important impact on the national legal

order, mainly concerning the amnesty laws in Latin America. Peru illustrates well the

overall conflict of a domestic law and the ACHR and the role of national courts on this

very delicate issue. The Barrios Altos is a well-known case in this area.

206

The Peruvian

situation under former President Fujimori was particularly complicated because of the

constant opposition and confrontation between national courts, on the one side, and the

government, on the other. Indeed, courts openly opposed governmental acts considered

to be against the Constitution. In Barrios Altos, in spite of the adoption of Act No. 26479

(the first amnesty decree), the court in charge of the case decided that this was not

applicable to criminal cases already pending since the amnesty law violated

constitutional guarantees as well as the American Convention on Human Rights. This

led to the adoption of a second amnesty decree, Act No. 26942, “directed to interfering

with legal actions in the Barrios Altos case”. The new legislation expressly declared that

the amnesty could not be scrutinised by any jurisdiction and that it was of compulsory

application to all national courts.

207

Many courts in Latin America have followed this path,

not applying amnesty laws or declaring them void.

208

The Federal Supreme Court of

204

Brazil, Supreme Court, judgment of 3 December 2008, ILDC 1375 (BR 2008). In this

judgment, human rights treaties were considered to have supra legislative status, even though

the treaty concerned had been ratified before the 2004 constitutional amendment establishing the

specific ratification procedure. The Court further stated that treaties could gain supra legislative

status if at any time moment they were approved according to the special procedure. In its

judgment of 2010, the Supreme Court changed its established case-law and decided to interpret

that, as the Constitution merely contained an authorisation to the general prohibition of civil

imprisonment, this issue was eliminated of the Brazilian legislation because of the existing ban in

the ACHR and the Covenant.

205

See supra chapter I. A. 1 and 2.

206

IACtHR, Barrios Altos v. Peru, judgment of 14 March 2001, Series C, No. 75; IACtHR, Order of 22

September 2005, supervision of the execution of the Barrios Altos and La Cantuta v Peru cases, judgment

of 29 November 2006, Series C No. 162.

207

After the departure of Fujimori in Peru, the amnesty provisions, declared incompatible with the ACHR by

the IACtH, were left with no effect and were finally abolished.

208

In Chile, the 1978 amnesty decree law is not applied in practice as the Chilean Supreme Court has ruled

consistently that the amnesty decreed by the military government in 1978 was inapplicable to war crimes or

crimes against humanity, and that these crimes were not subject to the statute of limitations, Supreme Court

CDL-AD(2014)036 38

Brazil has been an exception in this respect. In 2010, it had to decide on the

constitutionality of the Amnesty Law adopted during the dictatorship and its compatibility

with the international obligations to investigate, prosecute and punish as established by

the ACHR and the Inter-American Court. The IACtHR had already issued the judgments

in Barrios Altos and in Almonacid-Arellano v Chile,

209

in which it had established that

amnesties for gross violations of human rights bar victims’ access to justice and sustain

impunity.

210

In spite of these arguments, the Brazilian Federal Supreme Court decided

that the Amnesty Law was not as such contrary to the Constitution and the international

obligations of Brazil.

211

After the Inter-American Court of Human Rights rendered the

Gomes Lund judgment,

212

declaring the incompatibility of the Brazilian amnesty law with

the ACHR, this situation is likely to be remanded to the Supreme Court.

213

97. In Europe, from an overall perspective and within the framework of the ECHR, pilot

judgments tend precisely to identify an overall défaillance and to establish a more

permanent solution beyond the individual case, asking therefore the States to change a

general policy or a piece of legislation, even though the responsibility to do this does not

often rely only on domestic courts. Related to this issue and concerning the reactions of

domestic authorities in this respect, the United Kingdom has recently been the centre of

a serious conflict, which was accompanied with threats of withdrawing from the

European Convention on Human Rights. The Hirst

214

saga is one which, even though

the legislation could have been brought in conformity with the ECHR quite easily, has

become a highly politicised issue. The Lower House and the House of Lords of the

United Kingdom refused to change their policy towards prisoners who are currently

of Chile, Criminal Chamber, Molco Case, No. 559-2004, 13 December 2006, paras 19-20; see also in

Argentina, the Supreme Court decided that the ACHR imposed upon Argentina the duty to prosecute the

perpetrators of crimes against humanity. Specifically, the majority found that ‘the subjection of Argentina to

Inter- American jurisdiction prevents the principle of the “irretroactivity” of criminal law from being invoked as

a basis for refusing to comply with the duties assumed with regard to the prosecution of grave human rights

violations’. This notion, together with the court’s decision to apply the jurisprudence of the Inter-American

Court as an essential guideline for interpreting the ACHR, even when the cases were not decided against

Argentina, was essential to consider that the amnesty laws (leyes de obediencia debida y de punto final)

were not applicable because they sought to leave unpunished grave violations of human rights, these laws

were contrary to the ACHR and the ICCPR and were therefore unconstitutional, Simón and ors v Office of

the Public Prosecutor, Appeal judgment, S. 1767. XXXVIII; ILDC 579 (AR 2005), 14 June 2005.

209

Judgment on preliminary objections, merits, reparations and costs, Series C No 154, 26 September

2006. The case concerned the extrajudicial killing of a professor in September 1973 by state police forces of

the Pinochet regime. The Inter-American Court found that the killing constituted a crime against humanity

and that the non-prosecution of those responsible by operation of the 1978 amnesty decree law constituted

a violation of the ACHR.

210

In 2008, the Brazilian Federal Supreme Tribunal ruled that the ICCPR and the ACHR—international

human rights treaties to which Brazil had acceded—have a ‘supra-legal’ status in Brazil (see Banco Itaú v

Armando Luiz Segabinazzi, Decision of the Federal Supreme Tribunal on the merits of an individual

constitutional complaint procedure, RE 349/703-1, 3 December 2008). Hence—although inferior to the

Constitution—norms contained in these treaties have precedence over and render inapplicable all other

diverging domestic norms, including those in force by the time of Brazil’s accession. This is the exact case of

the relation between the ICCPR and the ACHR, on one side, and the Amnesty Law, on the other. The latter

law runs counter to the interpretation of both treaties according to the UN Human Rights Committee, the

Inter-American Commission on Human Rights, and the Inter- American Court of Human Rights, see Oxford

Reports on International Law — ILDC 1495 (BR 2010).

211

Brazil, Supreme Court, Federal Council of the Brazilian Bar Association v President of the Republic and

National Congress, Plea of breach of fundamental precept, Supreme Court decision 153; ILDC 1495 (BR

2010), 29 April 2010.

212

IACtHR, Gomes Lund v Brazil, judgment of December 2010, Series C, No. 219.

213

See ADPF # 320, presented by political party Socialismo y Libertad – PSOL, in May 2014,

http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp?incidente=4574695 .

214

ECtHR, Hirst (No 2) v UK [GC], judgment of 6 October 2005.

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denied the right to vote in all elections in the UK, including general elections, the

European Parliament elections and local elections. The UK has been considered in non-

compliance for over eight years, with the accompanying follow-up procedure before the

Committee of Ministers.

215

B. The role of domestic courts in implementing decisions of international

human rights treaties judicial bodies:

98. Implementation of international human rights treaties is a task for all national

authorities. In most systems, it is incumbent on the legislator, or the executive to

implement the State’s international legal obligations correctly by adopting or amending

legislation, and by taking other required action. This is particularly the case where n an

international obligation requires major structural reforms. However, domestic courts also

have an important role to play, notably in adjudicating individual cases and in co-

operating with the other national authorities in fulfilling their international obligations.

99. In the case of the European and American Conventions, there is a special

relationship with national courts because of the interactions between the European and

the Inter-American Courts and national courts in the interpretation of the European and

American Conventions. This allows for a “dialogue of judges”,

216

which includes mutual

references to case-law of the European and Inter-American Courts, on the one hand,

and national courts, on the other, not only when such cross-citations have a positive

impact and promotes understanding, but also when they lead to debate or oppose

judicial solutions.

101. In Europe, domestic courts have ruled on the effects of the judgments of the ECtHR

in the domestic legal order from their own perspective. There are, in particular, different

views on the question of whether the judgment binds the State as a whole, and the

particular obligations stemming for each organ of the State. This implies that the ECHR,

as interpreted by the ECtHR, can be directly enforceable. The German Constitutional

215

On 7 April 2006, the United Kingdom authorities presented an action plan for the enforcement of the

judgment to the Council of Europe’s Committee of Ministers (CM)2. The authorities undertook to conduct a

two stage consultation process, with a view to introducing before Parliament the necessary legislative

reform. However, legislative reform has not been followed through. The CM adopted an Interim Resolution in

December 2009 in which it expressed serious concern about the substantial delay in implementing the

judgment and urged the United Kingdom authorities to rapidly adopt the necessary measures. In a decision

of June 2011 concerning the case, the CM noted, among other things, that the judgment Greens and M.T.

(ECtHR, judgment of 23 November 2010) had become final and that the United Kingdom authorities had

until 11 October 2011 to introduce legislative proposals with a view to the enactment of an electoral law to

achieve compliance with the Court’s judgments in Hirst (No. 2) and Greens and M.T. The ECtHR granted an

extension of six months at the request of the UK authorities to take into account the Scoppola v Italy (No 3)

(a case similar to that of Greens and MT) to the Grand Chamber, announced on 22 May 2012. On 22

November 2012, the Government published a draft Bill, the Voting Eligibility (Prisoners) Draft Bill. The Bill

has not yet been adopted.

216

There is an important body of academic literature on this topic; from a general perspective, see, among

others, A.-M. SLAUGHTER, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal

191; A.-M. SLAUGHTER, A New World Order (2004); C. BAUDENBACHER, ‘Foreword: Globalization of the

Judiciary’ (2003) 38 Texas International Law Journal 397; R. H BORK, Coercing Virtue: The Worldwide Rule

of Judges (2003). In Europe, the ECtHR publishes a series entitled a “Dialogue between judges” since 2006,

accessible in its website (http://www.echr.coe.int); on the situation in Europe see also E. BRIBOSIA, A.

ÚBEDA DE TORRES, L. SCHEECK (eds), L’Europe des cours, Bruylant, Brussels, 2010; on the dialogue

between the ECtHR and the IACtHR, see L. BURGORGUE-LARSEN, El diálogo judicial, Mexico, Porrúa,

2013; R. CANOSA USERA, P. A. FERNANDEZ SANCHEZ, J. GARCIA ROCA, P. SANTOLAYA, El diálogo

entre los sistemas Europeo y Americano de derechos humanos, Civitas, Madrid, 2012.

CDL-AD(2014)036 40

Court issued the landmark decision Görgülü, in which it stated that the judgments of the

ECtHR “must be taken into account”, but only within the limits of the German

Constitution. This means that domestic authorities and courts must in principle strive to

integrate the ECtHR’s judgments into the German legal system and must apply them.

They may depart from a judgment, but in that case they must provide sound and well-

founded reasons for the non-application. Unjustified departure from or non-application of

a judgment of the ECtHR is sanctioned under German constitutional law: an applicant

could introduce a constitutional complaint with the argument that his or her “parallel”

fundamental right as guaranteed by the German Constitution has been violated through

the non-application of a judgment of the ECtHR.

217

102. The Italian Court of Cassation held that the judgments of the ECtHR deploy a

preciso obbligo giuridico del giudice nazionale italiano (“A precise legal obligation for the

national Italian judge”).

218

The Belgian Constitutional Court has consistently interpreted

constitutional rights in the light of analogous human rights provisions, in particular those

of the ECHR.

219

In contrast, the Spanish Constitutional Court emphasised that the

judgments of the ECtHR possess only a “potestad declarativa” (declaratory power”) and

are not enforceable in the Spanish legal order.

220

It held, however, that the Spanish

authorities and courts are obliged to interpret Spanish law in conformity with these

judgments, especially when interpreting parallel fundamental rights also guaranteed in

the Spanish Constitution.

221

The debate in Spain has been fostered by the recent

implementation by the Spanish Court of the judgment of the ECtHR Del Rio Prada,

222

which concerned the invalidation by the Strasbourg judges of the so called in Spanish

domestic law as the Parot doctrine. In the Parot case,

223

a decision delivered by the

Spanish Supreme Court in 2006, the Supreme Court changed its former interpretation of

the Law on prison benefits, considering that every single conviction had to be taken into

account separately in order to calculate the right to have one’s prison sentence reduced

for work done in prison. Therefore, if the person had been convicted for several

assassinations, each of them imposing several years of prison, the right to a reduction in

the prison sentence was to be calculated on the total amount of years (which in some

cases could be of more than 400 years, depending on the number of crimes committed).

In practice, it implied that those persons convicted for very serious offences (such as

terrorists, serial killers or others) could not benefit from a reduced prison sentence and

would have to stay in prison the maximum number of years established by the Criminal

Code (30 years). Ms Del Rio Prada, whose years had been calculated following this

cumulative method and had not had access to prison benefits, was considered wrongly

deprived of this legal right. The ECtHR requested, apart from the payment of damages,

her early release. In spite of the lack of specific procedure to implement the ECtHR

decisions in Spain, the relevant Court (the Audiencia Nacional) promptly executed the

217

German Constitutional Court, Görgülü, Individual constitutional complaint, BVerfG, 2 BvR 1481/04; ILDC

65 (2004) 111 Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 307–332; (2004) Neue

Juristische Wochenschrift (NJW) 3407–3412, 14 October 2004.

218

Court of Cassation (First Criminal Section), Somogyi, Appeal, No 32678 ILDC 560 (IT 2006) 3 October

2006, para. 10.

219

See for instance Counstitutional Court 22 July 2004, Judgment nr. 136/2004 and 20 October 2014,

Judgment nr. 158/2004.

220

Spanish Constitutional Court, Fuentes Bobo v Public Prosecutor and Televisión Española SA, Appeal

judgment of the Constitutional Court, no 197/2006; ILDC 997 (ES 2006) 3 July 2006, paras. 31-33.

221

Ibid., para. 34.

222

ECtHR, Del Rio Prada v. Spain, 10 July 2012.

223

Spanish Supreme Court, STS 197/2006, 28 February 2006.

CDL-AD(2014)036

ECtHR judgment and released the applicant.

224

.The Constitutional Court of Hungary has

considered that the judgments of the ECtHR possess only declaratory power, but they

should assist the courts in the interpretation of fundamental rights.

225

103. The Czech Constitutional Court held that the Strasbourg judgments against the

Czech Republic are binding on the state, by force of the ECHR and additionally by virtue

of the Czech Constitution.

226

The Bulgarian Supreme Administrative Court stated more

specifically that the European Court’s judgments are addressed to all public authorities

of the Bulgarian State at all levels. Although Article 46 ECHR left the means of execution

to the discretion of the state, it must in any case be effective and achieve the desired

result.

227

104. The debate in the Inter-American system has been strongly influenced by the Inter-

American Court in the Almonacid Arellano case v. Chile:

“The Court is aware that domestic judges and courts are bound to respect the rule

of law, and therefore, they are bound to apply the provisions in force within the

legal system. But when a State has ratified an international treaty such as the

American Convention, its judges, as part of the State, are also bound by such

Convention. This forces them to see that all the effects of the provisions embodied

in the Convention are not adversely affected by the enforcement of laws which are

contrary to its purpose and that have not had any legal effects since their inception.

In other words, the Judiciary must exercise a sort of “conventionality control”

between the domestic legal provisions which are applied to specific cases and the

American Convention on Human Rights. To perform this task, the Judiciary has to

take into account not only the treaty, but also the interpretation thereof made by the

Inter-American Court, which is the ultimate interpreter of the American

Convention.”

228

105. However, this approach has not avoided conflicts in individual cases. Some

domestic courts have given examples of good compliance, establishing the importance

to conduct a review of conventionality (compatibility between the Convention and the

domestic law) which goes hand in hand with a review of constitutionality.

229

In some

other cases, compliance is more conflicted.

224

This has also given rise to another consequence: as the Parot doctrine affected some 80 other prisoners

in a parallel manner, the Spanish authorities ordered their progressive release ex officio based on the

ECtHR’s decision

225

CC of Hungary, decision 4/2013. (II. 21.)]. In Hungary, the domestic courts tend to refer directly to the

judgments of the ECtHR (for example, see Székesfehérvár Tribunal judgment 25.P. 21.867/2011/15, about

interpretation of the concept of fair trial.

226

Czech Constitutional Court, Červeňáková and others v Regional Court in Ústí nad Labem and District

Court in Ústí nad Labem, Decision on Constitutional Complaint, II ÚS 604/02; ILDC 877 (CZ 2004) Sb n u

ÚS 7/2004, 26 February 2004, para. 26.

227

Bulgarian Supreme Administrative Court, Al-Nashif v National Police Directorate at the Ministry of the

Interior, Judicial review, Judgment No 4332; ILDC 608 (BG 2003) Administrative Case No 11004/2002, 8

May 2003, para. 9.

228

IACtHR, Almonacid Arellano v. Chile, judgment of 26 September 2006. Series C No. 154, par. 124.

229

See, e.g, Peruvian Constitutional Court, Callao Bar Association v Congress of the Republic,

Constitutional Review, Case No 00007-2007-PI/TC; ILDC 961 (PE 2007) 19 June 2007, para. 37: the

Constitutional Court of Peru stated the obligation to amend domestic legislation to be in compliance with the

Constitution, the ACHR and the interpretation given by the IACtHR. See also Constitutional Court of

Dominican Republic (Pleno), No 4, Juventud Nacional Comprometida, Inc and others v Dominican Republic,

Cordero Gómez (intervening) and others (intervening), Direct constitutional complaint procedure, BJ

CDL-AD(2014)036 42

106. In the case El Frontón, prosecution of crimes and the notion of crimes against

humanity were at stake.

230

Peru was considered in breach of its duty to investigate and

sanction those responsible for the deaths of inmates in the prison in 1986. Several cases

were consequently introduced and criminal proceedings were reopened; however, some

of the accused introduced complaints with the Peruvian Constitutional Court against the

reopening of criminal proceedings.

231

on 14 June 2013, the Constitutional Court decided

to award partially the protection requested, because the court had wrongly considered

the facts of El Frontón as crimes against humanity.

232

107. Colombia has given examples of a very interesting dialogue of judges.

233

In one of

the many cases relating to the Colombian conflict, the Inter-American Court did not

hesitate to praise the Colombian Constitutional Court for having incorporated

international law, including international humanitarian law within the constitutional bloc of

Colombia, and for ensuring the effectiveness of remedies.

234

The Inter-American

Commission has stated many times that the conditions deriving from the state of siege in

Colombia “which has been in effect almost without interruption for several decades have

become an endemic situation which has hampered, to a certain extent, the full

enjoyment of civil freedoms and rights in that, among other things, it has permitted trials

of civilians by military courts”. It recommended therefore that the State put an end to this

situation but, in face of the lack of a global measure, it has commended the work of the

Constitutional Court.

235

As an example of direct opposition, the Venezuelan Supreme

Tribunal of Justice held that a judgment of the IACtHR can deploy effects only if they are

1131.34, ILDC 1095 (DO 2005), 9th February 2005, Supreme Court of Justice [SCJ]. The Court stated in an

obiter dictum that the case law of the IACtHR is part of the Bloque de Constitucionalidad.

230

The case related to the riots which took place in several prisons in Peru in June 1986 and the fact that

the IACtHR had condemned Peru for disproportionate use of lethal force by the State in the Durand Ugarte

case v. Peru (IACtHR, Durand Ugarte v. Peru, Merits, judgment 16 August 2000, Series C No. 68).

231

The application raised the fact that the prosecution according to the Peruvian Criminal Code was time

barred. Over 20 years had passed and therefore statutory limitations applied. According to domestic law, no

criminal procedure could be opened at this stage.

232

The Constitutional Court had to decide in this case, among other issues, whether the facts could be

qualified as crimes against humanity and therefore, no statutory limitations could possibly be applied in

prosecuting this case, leading to rejecting the amparo complaint filed. The Constitutional Court referred, in

order to decide this case, to the case-law of the IACtHR concerning Peru, which did not pronounce itself on

the qualification of the facts as crimes against humanity, and to the Venice Commission amicus curiae

opinion produced in 2011 (CDL-AD(2011)041), which gave feedback on the different practice followed by

European countries while facing past crimes against humanity and on the present definition of crimes

against humanity in international law. A request for the annulment of the decision is pending at the

Constitutional Court of Peru.

233

This dialogue and exchanges contained in quotes and references made by the Inter-American Court in

many judgments, such as, among others, IACtHR, Case of Las Palmeras v. Colombia. Merits, judgment of

December 6, 2001. Series C No. 90; IACtHR, Case of the 19 Tradesmen v. Colombia. Merits, Reparations

and Costs. Judgment of July 5, 2004, Series C No. 109; IACtHR, Case of Gutiérrez-Soler v. Colombia.

Merits, Reparations and Costs, judgment of September 12, 2005 Series C No. 132; IACtHR, Case of the

Mapiripán Massacre v. Colombia, Merits, Reparations and Costs, judgment of September 15, 2005. Series

C No. 134; IACtHR, Case of the Pueblo Bello Massacre v. Colombia. Merits, Reparations and Costs.

Judgment of January 31, 2006. Series C No. 140; IACtHR, Case of the Ituango Massacres v. Colombia.

Preliminary Objection, Merits, Reparations and Costs, judgment of July 1, 2006 Series C No. 148; IACtHR,

Case of the Rochela Massacre v. Colombia. Merits, Reparations and Costs, judgment of May 11, 2007.

Series C No. 163; IACtHR, Case of Escué-Zapata v. Colombia. Merits, Reparations and Costs, judgment of

July 4, 2007, Series C No. 165 ; IACtHR, Case of Valle-Jaramillo et al. v. Colombia. Merits, Reparations and

Costs, judgment of November 27, 2008, Series C No. 192.

234

IACtHR, 15 September 2005, Mapiripán Massacre v. Colombia, Series C, No. 134. para. 115. See

Colombia, Constitutional Court, judgment C-225/95 of May 18, 1995.

235

See IA Com HR, Annual report, 2011, chapter V, on Colombia.

CDL-AD(2014)036

in conformity with the Constitution of Venezuela

236

; as a consequence, it considered that

rulings of the IACtHR cannot, as such, be enforced in Venezuela (they would be

“inejecutable”).

237

108. Ultimately, the European and the Inter-American Courts, evaluating the

compatibility of the national legal order with the respective Conventions after the national

courts have had the possibility to address this issue, could promote a certain

modification in the separation of powers principle, “validating” or “encouraging” the

decisions of national courts which annul or rule against a governmental or legislative

measure or sanctioning the State when this has not been done in accordance to its

compatibility test. The Zielinski Pradal v. France case became paradigmatic in the

European system, as the ECtHR decided in last resort that the State, through its

Parliament, had taken a decision which, although based on “national interest”, was

against the ECHR.

238

The protection of human rights, according to the ECtHR, required

supervising the views adopted by the French legislature when considering the measures

to adopt to protect the interests at stake. The Court limited the margin of appreciation of

the State, considering that the intervention decided by the Parliament, which had effects

on ongoing judicial proceedings, was not in conformity with the European Convention on

Human Rights.

239

236

Venezuelan Supreme Tribunal of Justice, Solicitor General of the Republic v Venezuela, Final award on

jurisdiction, No 1939 (File No 08-1572); ILDC 1279 (VE 2008) 18 December 2008, paras 40, 43, 48.

237

Ibid., para. 58.

238

The complaint was introduced by several applicants for problems in the implementation of an agreement

signed between the State and several trade unions. They complained that the State, by means of

retrospective legislation adopted by Parliament, had affected a pending lawsuit, rendering the proceedings

unfair. The ECtHR considered that the circumstances of the case did not make it possible to assert that the

intervention of the legislature had been foreseeable, seeing that the dispute had been over the application of

an agreement that had been discussed and adopted under a prescribed procedure by the employers and

trade unions concerned. The application of the new legislative change by the domestic courts had made it

pointless to continue the proceedings and led to a breach of Article 6 of the ECHR.

239

ECtHR, Zielinski Pradal v France, judgment of 28 October 1999, appl. No. 24846/94, 34165/96 and

34173/96.

CDL-AD(2014)036 44

CONCLUSIONS

109. International human rights treaties play a very important role today, since virtually

all states are bound by one or more of them. This is particularly true in Europe and in

Latin America, due to the existence of regional human rights systems within the Council

of Europe and the Organization of American States.

110. Even though human rights treaties are international treaties, they include certain

special features which lead to an increased interplay between the national and the

international levels. There is no uniformity in the way states implement these treaties;

they may adopt different models and they are influenced by multiple factors pertaining to

the historical, political and legal culture of the country.

111. From a legal point of view, there are several decisive factors affecting the

implementation of international human rights treaties in domestic law. These can be

either domestic or international. The domestic legal factors encompass the adherence of

the state to a monist, dualist or mixed approach to international law; the legal status of

human rights treaties in the domestic legal order; the direct or indirect effect granted to

international treaties by the domestic legal order and, potentially, the adoption of

domestic legislation which facilitates the implementation of human rights treaties. The

international legal factors are linked to the absence of reciprocity of human rights

treaties, to some particularities of the European and American Conventions on Human

Rights, which have their own judicial supervisory mechanism, as well as to the universal

scope of the International Covenant on Civil and Political Rights and the role of its

monitoring body, the Human Rights Committee.

112. Implementation of international human rights treaties is a task for all national

authorities. In most systems, it is the role of the legislator, or of the executive, as the

case may be, to implement the State’s international legal obligations correctly and in

time by adopting the required legislation or amending existing legislation and by taking

the required action, respectively. This is particularly the case where an international

obligation requires major structural reforms. However, domestic courts also have an

important role to play, notably in adjudicating individual cases and in co-operating with

the other national authorities in fulfilling their international obligations.

113. The Venice Commission considers that courts are key actors in ensuring the

protection of fundamental rights and freedoms by making a dynamic use of the powers

left to them by international human rights treaties and by exercising the review of the

compatibility of domestic legislation with these treaties. Domestic courts might be

confronted with cases involving a conflict between domestic law and an international

human rights treaty. In some cases, they will be able to settle these conflicts by

interpreting domestic legislation in such a way as to bring it into conformity with the

provision of international law (the so-called 'harmonising interpretation'). They may do so

on the presumption that the legislator or the executive intended to implement the State’s

relevant international legal obligation correctly. In other cases, domestic courts should

decide to settle the conflict by not applying the domestic legal act or by favouring the

provision which is the most favourable to the protection of human rights.

CDL-AD(2014)036

114. The tools domestic courts have at their disposal to implement international human

rights treaties come both from the domestic and from the international arena.

International treaties supplement domestic law, offering additional legal sources that

may be interpreted and applied by domestic courts. Their implementation can no longer

be explained purely on the basis of hierarchical relations; both legal orders (international

and domestic) pursue the same goal (implementation of human rights) and mutually

complement each other. The lack of a clear reply to the issue of the hierarchy of norms

implies the need to search for solutions to possible conflicts of domestic and

international norms. There are also tensions between the case-law of domestic courts in

the domestic arena and the case-law of international human rights courts on the same

topic. International courts such as the European and the Inter-American Convention also

have a crucial role to play in the implementation of international human rights treaties.

The two regional courts conduct a review of the compatibility of the domestic law and the

respective Conventions, and this review goes often hand in hand with the review of

conventionality and of constitutionality performed by many domestic courts.

115. In the face of non-compliance of the other State authorities, it is the proper role of

courts to guarantee the enjoyment of international human rights, which is particularly

visible when they apply the ECHR, the ACHR and the ICCPR. This role may affect the

separation of powers or functions within the state. It might be seen as if courts, setting

aside national legislation and acts of the administration in order to protect rights included

in an international treaty, assume competences which traditionally belong to the

legislator as the State organ which enjoys the strongest democratic legitimacy, or to the

government. In practice however, it cannot be excluded that courts give rulings even of a

quasi-legislative nature, to counter structural non-compliance with human rights norms

by the other state powers. Of course courts should be careful to keep within the limits of

their competences, as they draw their legitimacy from constitutions, taking into account

that their decisions may have far-reaching and sometimes unforeseen consequences.

Such a last resort involvement of the courts is appropriate, because under domestic law,

the judiciary is the ultimate guarantor of fundamental rights.