The European Court of Human Rights’ remedial practice and its impact on the execution of judgments

Article


Donald, A. and Speck, A. 2019. The European Court of Human Rights’ remedial practice and its impact on the execution of judgments. Human Rights Law Review. 19 (1), pp. 83-117. https://doi.org/10.1093/hrlr/ngy043
TypeArticle
TitleThe European Court of Human Rights’ remedial practice and its impact on the execution of judgments
AuthorsDonald, A. and Speck, A.
Abstract

This article analyses the developing approach of the European Court of Human Rights to the indication of specific non-monetary individual or general remedies and the impact of this practice on the execution of its judgments. It draws on interviews with Judges of the Court and officials in Council of Europe institutions, and a statistical analysis of pilot judgments and judgments that invoke Article 46 of the European Convention of Human Rights issued between 2004 and 2016. The article argues that the Court’s remedial practice is fluid and pragmatic, with differences of perspective between Judges. It discusses the factors that influence judicial decision-making, and examines the implications of the Court’s remedial approach both for its ‘horizontal’ relationship with the Committee of Ministers and its ‘vertical’ relationship with states. It concludes that from both these perspectives, the door is open to continued evolution, if not revolution, in the Court’s remedial practice.

Keywordsinternational human rights; judicial remedies; non-monetary remedies ; pilot judgments; execution of judgments; Article 46 ; European Convention on Human Rights; European Court of Human Rights
Research GroupLaw and Politics
LanguageEnglish
PublisherOxford University Press (OUP)
JournalHuman Rights Law Review
ISSN1461-7781
Electronic1744-1021
Publication dates
Online04 Feb 2019
Print28 Feb 2019
Publication process dates
Deposited12 Oct 2018
Accepted23 Aug 2018
Output statusPublished
Accepted author manuscript
Copyright Statement

This is a pre-copyedited, author-produced version of an article accepted for publication in Human Rights Law Review following peer review. The version of record Alice Donald, Anne-Katrin Speck; The European Court of Human Rights’ Remedial Practice and its Impact on the Execution of Judgments, Human Rights Law Review, Volume 19, Issue 1, February 2019, Pages 83–117 is available online at: https://academic.oup.com/hrlr/article/19/1/83/5304971 and https://doi.org/10.1093/hrlr/ngy043.

Digital Object Identifier (DOI)https://doi.org/10.1093/hrlr/ngy043
Scopus EID2-s2.0-85066740502
Web of Science identifierWOS:000467954500004
Permalink -

https://repository.mdx.ac.uk/item/87z65

Download files


Accepted author manuscript
  • 33
    total views
  • 11
    total downloads
  • 1
    views this month
  • 1
    downloads this month

Export as

Related outputs

Explainer: The UK’s ECHR record: how common are Rule 39 orders and how often is the UK found to have violated rights?
Donald, A. and Grogan, J. 2024. Explainer: The UK’s ECHR record: how common are Rule 39 orders and how often is the UK found to have violated rights? UK in a Changing Europe.
The UK vs the ECtHR: Anatomy of a politically engineered collision course
Donald, A. and Leach, P. 2023. The UK vs the ECtHR: Anatomy of a politically engineered collision course. https://doi.org/10.17176/20230505-204527-0
Earning deference from Strasbourg: Has the UK got the message?
Donald, A. 2022. Earning deference from Strasbourg: Has the UK got the message? The Human Rights Act After 22 Years: Evolution, Impact, Future Directions. Goodenough College, London, WC1N 2AB 03 - 04 Nov 2022
Rule of law in peril? Checking states’ misuse of power–implications and consequences of article 18 violations
Donald, A. and Leach, P. 2022. Rule of law in peril? Checking states’ misuse of power–implications and consequences of article 18 violations. in: Liber Amicorum Robert Spano Strasbourg Council of Europe. pp. 401-413
Defeat in the Supreme Court: where next for UK asylum policy?
Donald, A. and Grogan, J. 2023. Defeat in the Supreme Court: where next for UK asylum policy? Verfassungsblog.
Explainer: What are the Rwanda Treaty and the Safety of Rwanda (Asylum and Immigration) Bill?
Donald, A. and Grogan, J. 2023. Explainer: What are the Rwanda Treaty and the Safety of Rwanda (Asylum and Immigration) Bill? UK in a Changing Europe.
Explainer: The Illegal Migration Act 2023
Donald, A. and Grogan, J. 2023. Explainer: The Illegal Migration Act 2023. UK in a Changing Europe.
Explainer: Compliance with the European Convention on Human Rights: the UK and Europe
Donald, A. and Grogan, J. 2023. Explainer: Compliance with the European Convention on Human Rights: the UK and Europe. UK in a Changing Europe.
Explainer: The Illegal Migration Bill
Donald, A. and Grogan, J. 2023. Explainer: The Illegal Migration Bill. UK in a Changing Europe.
Responding to seismic change in Europe—The road to Reykjavik and beyond
Donald, A. and Leach, P. 2023. Responding to seismic change in Europe—The road to Reykjavik and beyond. European Human Rights Law Review. 2023 (2), pp. 95-111.
Adapt or Die? The Council of Europe seeks new ideas to address ‘seismic change’
Donald, A. and Leach, P. 2023. Adapt or Die? The Council of Europe seeks new ideas to address ‘seismic change’. Verfassungsblog.
Explainer: the Bill of Rights Bill
Donald, A. 2022. Explainer: the Bill of Rights Bill. ukandeu.ac.uk.
Why the Bill of Rights poses problems for human rights in Europe – and the UK’s international standing
Donald, A. and Leach, P. 2022. Why the Bill of Rights poses problems for human rights in Europe – and the UK’s international standing. ukandeu.ac.uk.
Human Rights - the essential frame of reference in response to the COVID-19 pandemic
Donald, A. and Leach, P. 2022. Human Rights - the essential frame of reference in response to the COVID-19 pandemic. in: Grogan, J. and Donald, A. (ed.) Routledge Handbook on Law and the COVID-19 pandemic Abingdon, Oxon Routledge. pp. 101-116
Public health is not the only measure of success. The ‘health’ of democratic institutions matters too
Donald, A. and Grogan, J. 2022. Public health is not the only measure of success. The ‘health’ of democratic institutions matters too. London School of Economics and Political Science.
Policy paper on the implications of COVID-19: Insights into state governance and the rule of law, human rights and good governance during the COVID-19 pandemic
Grogan, J. and Donald, A. 2022. Policy paper on the implications of COVID-19: Insights into state governance and the rule of law, human rights and good governance during the COVID-19 pandemic. Leuven European Commission.
Lessons for a 'post-pandemic' future
Grogan, J. and Donald, A. 2022. Lessons for a 'post-pandemic' future. in: Grogan, J. and Donald, A. (ed.) Routledge Handbook of Law and the COVID-19 Pandemic Abingdon, Oxon Routledge. pp. 473-484
Compliance in the UK in the ‘age of subsidiarity’
Donald, A. 2021. Compliance in the UK in the ‘age of subsidiarity’. in: Grote, R., Morales Antoniazzi, M. and Paris, D. (ed.) Research Handbook on Compliance in International Human Rights Law Edward Elgar.
Time for the gloves to come off?: The response by the Parliamentary Assembly of the Council of Europe to rule of law backsliding
Donald, A. and Speck, A. 2021. Time for the gloves to come off?: The response by the Parliamentary Assembly of the Council of Europe to rule of law backsliding. European Convention on Human Rights Law Review. 2 (2), pp. 241-273. https://doi.org/10.1163/26663236-bja10025
Principled resistance to ECtHR Judgments – A New Paradigm?, edited by Marten Breuer [Book review]
Donald, A. 2020. Principled resistance to ECtHR Judgments – A New Paradigm?, edited by Marten Breuer [Book review]. European Convention on Human Rights Law Review. 1 (2), pp. 297-302. https://doi.org/10.1163/26663236-00102003
Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe
Donald, A. and Leach, P. 2020. Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe. London, UK Foreign Policy Centre.
Identifying and assessing the implementation of human rights decisions
Donald, A., Long, D. and Speck, A. 2020. Identifying and assessing the implementation of human rights decisions. Journal of Human Rights Practice. 12 (1), pp. 125-148. https://doi.org/10.1093/jhuman/huaa003
The dynamics of domestic human rights implementation: lessons from qualitative research in Europe
Donald, A. and Speck, A. 2020. The dynamics of domestic human rights implementation: lessons from qualitative research in Europe. Journal of Human Rights Practice. 12 (1), pp. 48-70. https://doi.org/10.1093/jhuman/huaa007
National parliaments as guarantors of human rights in Europe: handbook for parliamentarians
Donald, A. and Speck, A. 2018. National parliaments as guarantors of human rights in Europe: handbook for parliamentarians. Strasbourg Council of Europe.
Copenhagen: keeping on keeping on. A reply to Mikael Rask Madsen and Jonas Christoffersen on the draft Copenhagen declaration [Blog post]
Leach, P. and Donald, A. 2018. Copenhagen: keeping on keeping on. A reply to Mikael Rask Madsen and Jonas Christoffersen on the draft Copenhagen declaration [Blog post]. EJIL-talk: Blog of the European Journal of International Law.
A wolf in sheep’s clothing: why the draft copenhagen declaration must be rewritten
Donald, A. and Leach, P. 2018. A wolf in sheep’s clothing: why the draft copenhagen declaration must be rewritten. EJIL-talk: Blog of the European Journal of International Law.
Introduction
Donald, A., Buckley, C. and Leach, P. 2016. Introduction. in: Buckley, C., Donald, A. and Leach, P. (ed.) Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems Brill | Nijhoff.
Parliaments as compliance partners in the European Convention on Human Rights system
Donald, A. 2017. Parliaments as compliance partners in the European Convention on Human Rights system. in: Saul, M., Follesdal, A. and Ulfstein, G. (ed.) The International Human Rights Judiciary and National Parliaments: Europe and Beyond Cambridge Cambridge University Press. pp. 75-109
Parliaments and the European Court of Human Rights
Donald, A. and Leach, P. 2016. Parliaments and the European Court of Human Rights. Oxford Oxford University Press (OUP).
A democratic defence of the European Court of Human Rights
Donald, A. and Leach, P. 2016. A democratic defence of the European Court of Human Rights. Oxford University Press (OUP).
Role of national parliaments
Donald, A. and PluriCourts and the Council of Europe 2014. Role of national parliaments. Conference on the Long-Term Future of the European Court of Human Rights. Oslo 07 - 08 Apr 2014 Council of Europe, PluriCourts. pp. 178-185
The role of parliaments in implementing ECHR standards: overview of existing structures and mechanisms
Donald, A. and Parliamentary Assembly of the Council of Europe 2015. The role of parliaments in implementing ECHR standards: overview of existing structures and mechanisms. Strasbourg Parliamentary Assembly of the Council of Europe.
The right to freedom of religion or belief and its intersection with other rights
Donald, A., Howard, E. and ILGA-Europe 2015. The right to freedom of religion or belief and its intersection with other rights. Brussels, Belgium ILGA-Europe.
Identifying human rights stories: a scoping study
Donald, A. and Mottershaw, E. 2014. Identifying human rights stories: a scoping study. London Middlesex University.
Evaluating the impact of selected cases under the Human Rights Act on public services provision
Donald, A., Mottershaw, E., Leach, P. and Watson, J. 2009. Evaluating the impact of selected cases under the Human Rights Act on public services provision. Manchester, UK Equality and Human Rights Commission.
Poverty, inequality and human rights: do human rights make a difference?
Donald, A. and Mottershaw, E. 2009. Poverty, inequality and human rights: do human rights make a difference? Joseph Rowntree Foundation.
Developing a Bill of Rights for the UK
Donald, A. 2010. Developing a Bill of Rights for the UK. Manchester, UK Equality and Human Rights Commission.
Religion or belief, equality and human rights in England and Wales
Donald, A. 2012. Religion or belief, equality and human rights in England and Wales. Manchester, UK Equality and Human Rights Commission.
Debating social rights [Book review]
Donald, A. 2012. Debating social rights [Book review]. Public Law. 2012 (Apr), pp. 370-374.
Opinion: a Bill of Rights for the UK? Why the process matters
Donald, A. 2010. Opinion: a Bill of Rights for the UK? Why the process matters. European Human Rights Law Review. 5, pp. 459-464.
Religion or belief in the workplace and service delivery: findings from a call for evidence
Mitchell, M., Beninger, K., Donald, A., Howard, E. and NatCen Social Research 2015. Religion or belief in the workplace and service delivery: findings from a call for evidence. Equality and Human Rights Commission.
The implementation of judgments of the European Court of Human Rights against the UK: unravelling the paradox
Donald, A. 2015. The implementation of judgments of the European Court of Human Rights against the UK: unravelling the paradox. in: Ziegler, K., Wicks, E. and Hodson, L. (ed.) The UK and European Human Rights: A Strained Relationship? Oxford Hart. pp. 135-162
The role of parliaments following judgments of the European Court of Human Rights
Donald, A. and Leach, P. 2015. The role of parliaments following judgments of the European Court of Human Rights. in: Hunt, M., Hooper, H. and Yowell, P. (ed.) Parliaments and Human Rights: Redressing the Democratic Deficit Oxford Hart. pp. 59-92
The implementation and impact of the Human Rights Act 1998 in the UK
Donald, A. 2014. The implementation and impact of the Human Rights Act 1998 in the UK. PhD thesis Middlesex University School of Law
The UK and the European Court of Human Rights
Donald, A., Gordon, J. and Leach, P. 2012. The UK and the European Court of Human Rights. Equality and Human Rights Commission.
A Bill of Rights for the United Kingdom? Lessons from overseas
Donald, A. 2013. A Bill of Rights for the United Kingdom? Lessons from overseas. in: Masterman, R. and Leigh, I. (ed.) The United Kingdom's statutory Bill of Rights: constitutional and comparative perspectives Oxford, UK Oxford University Press (OUP).
Advancing debate about religion or belief, equality and human rights: grounds for optimism?
Donald, A. 2013. Advancing debate about religion or belief, equality and human rights: grounds for optimism? Oxford Journal of Law and Religion. 2 (1), pp. 50-71. https://doi.org/10.1093/ojlr/rwt002
Limits and achievements of the Human Rights Act from the socio-economic point of view: the HRA, poverty and social exclusion
Donald, A. and Mottershaw, E. 2012. Limits and achievements of the Human Rights Act from the socio-economic point of view: the HRA, poverty and social exclusion. in: Kang-Riou, N., Milner, J. and Nayak, S. (ed.) Confronting the Human Rights Act: Contemporary Themes and Perspectives London and New York Routledge. pp. 141-158
Evaluating the impact of human rights litigation on policy and practice: a case study of the UK
Donald, A. and Mottershaw, E. 2009. Evaluating the impact of human rights litigation on policy and practice: a case study of the UK. Journal of Human Rights Practice. 1 (3), pp. 339-361. https://doi.org/10.1093/jhuman/hup019