Key Benefits:
Plenary Assembly of 19 March 2015
(Adopted unanimously)
1. The CNCDH was seized by the Ministry of Foreign Affairs and International Development (MAEDI) of the draft declaration of the "High-level Conference on the Implementation of the European Convention on Human Rights, a shared responsibility" (hereinafter "Brussels Declaration") (i). Recalling its previous opinions (ii), the CNCDH welcomes this consultation on a major topic for the protection of human rights in Europe: the future of the system of the European Convention on Human Rights (hereinafter "European Convention"). As pointed out by the Court itself, the issue of the Conference lies in the adoption of "a political text that will give momentum and direction to the reform process, to ensure the sustainability of the successes already achieved, and that the long-term future of the Convention is even stronger" (iii).
2. The CNCDH emphasizes the usefulness of combining this reflection, as with the follow-up to the declaration, all institutions, including Parliament and various jurisdictions. The importance of the issues would also require that the development of France's position and the follow-up of commitments be the subject of an open debate with civil society (iv), beyond the contributions made directly by several non-governmental organizations (NGOs) to the Belgian presidency of the Council of Europe (v).
3. The Brussels Conference is part of the high-level conferences on the future of the Interlaken European Court of Human Rights (2010), Izmir (2011) and Brighton (2012). These conferences initially aimed to provide direction for the future, in the short and medium term, following the late entry into force of Protocol No. 14 on 1 June 2010 amending the monitoring system of the Convention. It is on this basis that Protocol No. 15, amending the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature on 24 June 2013, and Protocol No. 16 giving jurisdiction to the European Court to formulate advisory opinions, open for signature on 2 October 2013. While a break had appeared to be necessary following the Brighton Conference in 2012, which set specific deadlines for the reforms to be completed, the Brussels Conference revitalizes the debate with a particular focus on the implementation of the European Court judgments. The CNCDH considers the issue of enforcement as essential to the future of the Court, as it puts the authority and effectiveness of the entire system at stake. According to the Court, "execution of judgments is an integral part of the right of individual appeal," the cornerstone of the system, and "deficiencies in this area can seriously undermine the exercise of that right" (vi).
4. At the outset, the CNCDH wishes to emphasize that the principles of subsidiarity and national margin of appreciation cannot be invoked in a relevant manner when it comes to the enforcement of a conviction. Developed by the European Court itself through a given jurisprudence, the principle of subsidiarity is a cardinal principle in the office of the judge. It is defined by the subsidiary nature of the safeguard mechanism established by the European Convention and means that the national judge is responsible for ensuring the rights of the Convention, the Court intervenes only in the event of a failure of the internal judge. According to the President of the European Court, "the proper application of the principle of subsidiarity contributes to the effectiveness of the system, since this division of competence between the national judge and the European judge, reinforces the primary responsibility of the national judge and contributes to making him one of the main actors of the protection mechanism" (vii). The principle of subsidiarity has thus a dual implication: in its procedural dimension, it translates into the requirement of exhaustion of domestic remedies so that a person can apply to the European Court; in its substantial dimension, it implies the guarantee of effective domestic remedies (Article 13).
4. The CNCDH supports this acceptance of the principle of subsidiarity - which includes recognition of the primary responsibility of national authorities, in the broad sense, to apply the European Convention - against a more political reading that has emerged in recent years and is reflected in paragraph 6 of the draft Brussels declaration (viii). If, in some cases, the Court itself recognizes to States a certain "national margin of appreciation" in the absence of a European consensus, it is all else on the part of the States parties to seek to impose on the Court this notion as a principle of interpretation of guaranteed rights. For the CNCDH, the interpretation of the principle of subsidiarity must follow that developed by the Court. Restricting the application of this principle in the context of enforcement is a new drift: if States must be able to have some freedom in the choice of means of enforcement, in accordance with Article 41 of the Convention, these jurisprudential principles shall not, at the risk of being diverted from their original object, apply to the field of enforcement of the judgments of the Court which are deemed to be binding on the State concerned In this regard, the wording adopted in the draft declaration recalling "the freedom of States parties to choose means of execution, provided that these means are consistent with the conclusions contained in the Court's rulings" (declaration (10)), marks a step forward in relation to the earlier formulations, which must be welcomed.
5. The primary responsibility of States in the implementation of the Convention cannot, however, weaken the central role of the European Court in ensuring collective human rights guarantees, on the basis of individual or State remedies. This requires the mobilization of the financial and human resources necessary for its proper functioning, to deal with cases that are submitted to it within a reasonable time. While CNCDH welcomes the recent increase in the Court's budget (ix), it considers that additional efforts should be made, including by France, as a host country. Comparatively, it is instructive to note that the budget of the Court of Justice of the European Union alone is more than five times higher than that of the European Court of Human Rights, open to 800 million citizens (x).
6. The CNCDH's contribution to the debates of Interlaken, Izmir and Brighton was mainly achieved through the European Network of National Human Rights Institutions (ENNHRI), which has an observer status with the Council of Europe's bodies to reflect on system reform (CDDH and subordinate bodies) (xi). This contribution was also made through regular exchanges with the Quai d'Orsay, a pilot ministry on this theme. In this context, CNCDH called on France to take a more active and constructive part in the debate on the successive reforms and the long-term future of the Convention system by unambiguously defining its priorities.
7. CNCDH today calls on the government to adopt a clear position of support for the independence and effectiveness of the Court, as well as the strengthening, more generally, of the human rights protection system as enshrined in the European Convention. In the face of the recurring attacks by some States or political movements (xii), France is expected to give a strong impetus and express its strong commitment to the European Convention it ratified in 1974, before accepting the individual remedy in 1981. Such a line must be defended with determination in the discussions conducted in the Council of Europe's enclosure, but also in the diplomatic field as part of its relations with the other Member States of the Council of Europe.
8. A strong signal would be to send a high-level delegation to the Brussels Conference, to mark the importance that France attaches to the irreplaceable role of the European Court for the protection of human rights both internally and within the European framework.
9. Another strong signal would be to complete our commitments by ratifying Protocol No. 12 to the European Convention on the General Prohibition of Discrimination Open for signature on 4 November 2000. Since then, the CNCDH has repeatedly recalled that a ratification of this instrument was all the more logical since France puts forward the principle of non-discrimination in order to challenge any class approach, based on the recognition of groups, "communities" or minorities. To the extent that this general principle is already recognized constitutionally, within the framework of the European Union or in that of the United Nations, through the two International Covenants, the signature and ratification of Protocol No. 12, which would only strengthen the coherence of the commitments of France would have a particularly important political significance in the current context. Similarly, it would be useful to accelerate the ratification process of Protocols 15 and 16 to encourage their early entry into force.
10. Before developing its position, the CNCDH wishes to recall that as a national institution for the promotion and protection of human rights (INDH), it is obliged to play a role in many ways in the Convention system, from national implementation to the execution of the Court's decisions.
The special role of INDH
12. As noted by the ENNHRI network's contribution to the Brussels Conference (xiii), NHRIs are directly mandated to advise their government independently on the implementation of international human rights obligations. They are therefore regularly required to review the conformity of legislation with European Convention standards.
13. Through this, they can identify systemic and structural barriers to the effective implementation of the Convention. The analysis of the conformity of legislation to the articles of the Convention naturally incorporates the jurisprudence of the Court and the monitoring of the enforcement of judgments. The NHRIs also have the opportunity to present a third intervention before the European Court (xiv) and to transmit communications to the Committee of Ministers on the execution of a judgment (xv). Their promotion mandate also allows them to conduct awareness-raising and education activities on the Convention and the jurisprudence of the Court. Some NHRIs finally have a mandate to deal with individual requests and may thus constitute a remedy for violations of the Convention.
14. The Brussels declaration is about to dedicate the role of INDHs in the system of the European Convention, on the one hand recalling that, in application of the principle of subsidiarity, the primary role in the "guaranteance and protection of human rights at the national level" lies with the national authorities that must involve INDHs, on the other hand, by addressing the modalities of the execution of the decisions of the Court (Action Plan, It would also be appropriate for the Brussels declaration to call on States to put in place INDHs fully in line with the Paris Principles on the Status of National Human Rights Institutions (xvi). On this point, CNCDH welcomes the addition in the latest version of the draft declaration of the request made to States to "see the establishment of an independent national human rights institution" (Action Plan, B.1.g)), but recommends that a reference be added to the principles of Paris. In this regard, the role of the Council of Europe, in particular the Secretary-General or the Commissioner for Human Rights (xvii), in the technical support for the creation or effective guarantee of the independence and pluralism of INDHs, in accordance with the principles of Paris, could be strengthened.
15. As recommended, the CNCDH, French INDH, intends to play its full role in the implementation of the Brussels declaration (see below). At this point, she would like to comment on the draft declaration (in its version of 11 March 2015) by identifying the main issues, and then focusing on the national execution mechanism in France.
I. - The Brussels draft declaration: significant progress to be made, substantial improvements to be made
16. Introductory title, the CNCDH calls for certain vigilance regarding the use of vague terms that would appear to be far from the Statute of the Council of Europe or the preamble to the European Convention. In its latest version, the draft declaration incorporates explicit references to the articles of the Convention and the obligations of States, including articles 34, 38 and 46 of the Convention, and 39 of the Rules of the Court. These additions bring an improvement to previous versions.
17. Moreover, the terminology used could not lead to doubts about the independence or authority of the Court. However, in the draft declaration, there is still an appeal to "clear and consistent jurisprudence", although this wording has been nuanced by the recall of "the jurisdiction of the Court to interpret and apply the Convention" (Action Plan, A.1.). While this requirement of clarity and coherence is very important, it should not be interpreted as a questioning of the jurisprudence of the Court, whose great consistency in time must be recognized.
A. - Effective implementation of the Convention: the role of national authorities
18. The draft declaration recalls from the first page that the state authorities, namely "governments, courts and parliaments," have "the primary role in guaranteeing and protecting human rights at the national level". The responsibility for implementing the European Convention lies with these three authorities. This responsibility has several implications, most of which are addressed in a concrete manner in the draft declaration, which must be welcomed, but should be clearly distinguished in the name of the separation of powers.
19. The effective implementation of the Convention by the authorities concerned implies, inter alia, "to improve the verification of the compatibility of draft laws, existing legislation and internal administrative practices with the Convention, in the light of the jurisprudence of the Court" (Action Plan, B.1.d). In this context, it appears essential that pre-project impact studies as well as bill proposals systematically incorporate a serious analysis of the conformity of their provisions with the European Convention and the relevant jurisprudence of the European Court. This analysis should, in particular, be based on the analysis made by INDH. With regard to France, as recommended by a report of the Senate, "impact studies annexed to the bills as well as the legislative reports of the committees [should] systematically devote a part to the conformity of the bill or proposed legislation examined with the provisions of the Convention and the jurisprudence of the Court" (xviii).
20. On this point, the CNCDH considers that the Brussels declaration should emphasize the importance of systematically consulting the INDHs on projects or bills involving human rights. It would be minimal to reiterate Recommendation (2004) 5 of the Committee of Ministers "emphasizing the importance of consulting various competent and independent bodies, including INDH [...], on the verification of the compatibility of bills, existing laws and administrative practices with the Convention" (xix).
21. The effective implementation of the treaty requirements also involves the designation of "human rights points of contact within the relevant executive, judicial and legislative authorities, and the creation of networks between them through meetings, exchanges of information, audits or through the transmission of annual or thematic reports or periodic newsletters" (Action Plan, B.2.i). These points of contact would be responsible for promoting the application of the Convention and for monitoring the jurisprudence of the Court.
22. Indeed, it seems essential to ensure the effective application of the jurisprudence that both the administrations and the parliament and the courts (at all levels) develop within them a real network of experts of the Convention system that can disseminate, relay, analyse and strengthen the preventive and corrective consideration of the jurisprudence of the Court. Within Parliament, this expertise can be developed within the framework of a specialized commission (xx) or a specific department of the Assembly Secretariat (xxi). The draft declaration thus referred to the need to "redouble efforts to raise awareness among parliamentarians" (Action Plan, B.1.b).
23. This preconization of the Brussels declaration on points of contact should be an opportunity to make more visible the practices of different jurisdictions and administrations, as well as parliaments, in this matter (xxii). This would allow an exchange of good practices on how best to integrate the Convention and the jurisprudence of the Court into the daily work of the various authorities and bodies concerned.
24. A work on the identification of internal arrangements for a compatibility review was carried out at the time of the elaboration of Recommendation 2004 (5) of the Committee of Ministers on the verification of the compatibility of draft laws, existing laws and administrative practices with the standards set out in the European Convention on Human Rights. It should be updated and extended to the issue of points of contact, in the light of recent practices developed in States, possibly with the support of the Secretary-General of the Council of Europe. This could be a concrete recommendation of the Brussels declaration.
25. The CNCDH also calls for the Brussels declaration to recognize the need for a State party to take into account, beyond the only decisions directly concerning it, the decisions taken against other States and revealing a structural problem. If there is no such binding legal effect of the Court's rulings in respect of all States, it is nevertheless recognized that the principles established by the Court's jurisprudence are valid for all States parties (xxiii). In this regard, the Fabris v. France decision of 7 February 2013 is clear: the obligation of States parties to the Convention to recognize to persons under their jurisdiction the rights and freedoms of the Convention implies that they must draw the consequences of a judgment of the Court which concerns another State "when its legal order has the same problem". The Enlarged Board thus emphasized that "if the essentially declaratory character of the Court's judgments leaves the State with the choice of means to erase the consequences of the violation [...], it is necessary to recall at the same time that the adoption of general measures entails for the State the obligation to prevent, with due diligence, new violations similar to those found in the judgments of the Court [...]. This entails the obligation of the national judge to ensure, in accordance with its constitutional order and in accordance with the principle of legal security, the full effect of the norms of the Convention, as interpreted by the Court" (xxxiv). Recent judgments of the French Supreme Courts also admitted this idea (xxv), which must logically be accompanied by a systematic monitoring of the Court's jurisprudence, in order to prevent possible violations.
26. In addition, it should be pointed out that many measures taken by the Court already make it possible to strengthen the knowledge of its existence, its functioning and its jurisprudence (translation, dissemination, detachment at the Court Registry, training activities, practical guide on admissibility, jurisprudence guides, thematic fact sheets etc.) (xxxvi). However, dissemination and training efforts should also be made by States, which bear the primary responsibility to implement the Convention. For example, initial and ongoing training programmes for judges should be strengthened, as suggested in the draft declaration (Action Plan, B.1.b). This includes, but is not limited to, visits, internships and detachments of national jurists to the Court "to increase their knowledge of the Convention system" (Action Plan, B.1.c).
27. In addition, France must remain particularly vigilant in maintaining both official, English and French languages in the Council of Europe. This entails making all its place to the requirement of bilingualism in the election of judges and the recruitment of Court staff. It is a matter of legal pluralism within the jurisdiction and international dissemination of jurisprudence.
B. - Case processing: the role of the Court
28. The CNCDH welcomes the numerous initiatives taken by the Court to improve its capacity to deal with requests, with a confirmed success, which welcomes the Brussels declaration from its first paragraphs (xxvii). Thus, the number of pending requests dropped by more than 50% from 160,000 in 2011 to 70,000 in late 2014 (xxviii).
29. Nevertheless, States consider that additional improvements could be made to continue the work of resorption of backlog. CNCDH cautions against any interference by States in the functioning of the Court. If States may suggest possible avenues of reflection, they may not require or ask the Court to amend its methods of work. In addition, the purely quantitative concern for productivity must not go against the effective access of the Court to those who must remain one of the foundations of the system.
30. The Brussels statement "has greeted the Court's intention to motivate in a brief manner, its decisions to be inadmissible as a single judge, and invites the Court to do so as of January 2016" and invites the Court to "see also, in a brief manner, its decisions indicating interim measures and the decisions of its five-judge college rejecting applications for referral" (Action Plan, A.1.c and d). CNCDH takes note of this request, which may be of interest to States as well as to the complainants and their counsel and improve the understanding of the Court ' s jurisprudence on both admissibility and merits. However, the decisions in question should be differentiated, taking into account their procedural specificities, such as interim measures. Above all, it would be necessary to adjust the human resources to this new requirement, this obligation of motivation, in order to be legitimate, induces a significant workload as long as one wishes to give it a practical meaning and to ensure that it effectively informs the recipients of the decisions, regardless of their nature.
31. It also notes with relief the deletion in the last version of the text of the qualified majority requirement in the case of a judgment "that would have the effect of calling into question a well-established national jurisprudence or national legislation reflecting a national consensus on a societal issue of principle". In addition to strong objections of principle, based on the absence of precedents and its difficultly practicable character in view of the great subjectivity it entails, this proposal would have the effect of challenging the legal nature of the Court to introduce a pernicious distinction between the decisions taken unanimously or by the qualified majority and those adopted by a simple majority.
32. In addition, the Brussels declaration calls on States parties to "ensure that potential applicants have access to information on the Convention and the Court, in particular on the scope and limits of the protection of the Convention, the jurisdiction of the Court and the criteria of admissibility". Care should be left to the Court to determine only the limits of the protection of the Convention. In this regard, it has developed useful tools on admissibility (xxix). It is therefore up to the States to ensure the proper dissemination of these tools, which passes through their translation, without it appearing opportune that the States use unnecessary additional tools and potentially sources of confusion.
33. The CNCDH also supports the deletion of the reference to the "scheduling" character of the review of the execution of certain cases, with specific reference to interstate cases, which were included in the earlier versions of the draft declaration. The CNCDH considers that interstate affairs are an integral part of the protection system, by establishing an essential form of the collective guarantee of human rights in Europe and most often reflect massive violations of human rights that should be the subject of a special vigilance of the Committee of Ministers, the guarantor of European public order. They should therefore in no way be marginalized in the Brussels declaration or more generally.
C. - The execution of court decisions
34. The execution of the judgments of the European Court is the central point of the Brussels Conference, which is justified by the major role of execution in the protection system of the European Convention. A timely and comprehensive implementation of the Convention is an attempt to reduce violations of the Convention and requests to the Court. This dimension is therefore responsible for the sustainability and effectiveness of the system. From this point of view, as the Court pointed out, "the stage of enforcement of judgments obviously needs to be improved" (xxx).
35. In particular, if the reform of the follow-up of the execution in 2011 has made significant improvements to the system (xxxxii), which the draft declaration points out in fact (xxxxii), it should be noted that the number of repetitive cases before the Court is illustrative of a lack of execution by number of states, which the draft declaration admits to half-word (xxxxxiii). According to the available figures, 50% of the pending requests, or 35,000 requests, relate to repeat cases (xxxiv). It even appears that the number of repeated requests represents an increasing proportion of the total number of requests pending before the Court (xxxv).
36. In order to respond to the non-performance of certain judgments, the draft declaration refers to several interesting proposals from the inter-institutional dialogue to the gradual recourse to the procedures provided for in Article 46.3 (Season of the Court on a question of interpretation) and 46.4 (recourse in default). On the first aspect, an increased role of the Parliamentary Assembly of the Council of Europe in the implementation process could also be considered.
37. For the Court, even if it manages to master the backlog of repetitive cases, it remains, however, that "the underlying phenomenon will not disappear." By underlying phenomenon, it means the lack of execution of stops. The Court insists that "this problem, which strikes excessively and injuriously the European mechanism, must be settled by the States directly concerned and by the Committee of Ministers as part of its monitoring" (xxxxvi). However, when the draft declaration recalls, with respect to the Court, "the challenges that remain, including repetitive cases" (Action Plan, A.2.) or "emphasizes the need to find, both at the Court level and within the framework of the enforcement of judgments, effective solutions for dealing with repetitive cases" (declaration, (7)), it suggests that the Court is responsible for the number of repetitive cases. It is to be forgotten that the origin of these cases lies in the absence of satisfactory enforcement of the judgments of the Court by the States.
38. To address the gaps in implementation, several developments may appear to be necessary. The Court has already put in place interesting procedures, like the procedure of the pilot judgments which is precisely to avoid the multiplication of similar requests raising "a structural or systemic problem or other similar dysfunction" (xxxxvii), asking the State to remedy within a specified time limit the problem. It would now be useful for the Court to further integrate the dimension of enforcement in its decisions (xxxviii), giving some guidance on the concrete implications of the decision for the national legislative, regulatory or administrative framework. It may also be interesting for the Court to make clear when a decision does not require a general measure, thus allowing for more effective enforcement. For the CNCDH, this evolution of practice is desirable and should be encouraged in that it is likely to facilitate the execution of judgments. It is fully part of the judicial function of the Court and also appears as the logical corollary of the motivation of the judgments. CNCDH supports this movement, already initiated by the Court, and regrets that the latest version of the draft declaration does not retain this path of evolution as desirable. The wording used in the current draft refers only to the issue by the Court of information on the status of proceedings, so that States may " draw any consequences against the pending requests and any enforcement action to be taken by them to draw any consequences against the pending requests and any enforcement action to be taken", without addressing the very contents of those amendments that could be suggested by the Court (Planc d).
39. The CNCDH considers, with regard to the possibility that would be given to the parties "to comment on the relevance of the means of execution identified" that the establishment of such a mechanism could not be at the expense of the length of the proceedings before the Court. It is also desirable that dialogue be strengthened between the Court, the Committee of Ministers and the Enforcement Service. In fact, the Court said that it was "favourable to hold discussions with representatives of the enforcement service on a regular basis" (xxxix) regarding current issues concerning the enforcement of judgments.
40. In addition, the draft Brussels declaration calls on States to "establish effective domestic remedies in a timely manner to redress the violations of the Convention found by the Court, including, where appropriate, to provide full redress to applicants" (Action Plan, B.2.b). CNCDH recalls that a reopening procedure has existed in France since 2000 in criminal matters and has recently been reformed by the Act No. 2014-640 of 20 June 2014 on the reform of procedures for the review and review of a final criminal conviction. In this context, in the light of this positive experience in criminal cases, the CNCDH can support the proposal to make the reopening (or re-examination) procedure a general principle of enforcement, with the necessary adjustments for civil cases in order to take into account the respect of the rights and interests of third parties.
41. With regard to the Committee of Ministers, the CNCDH approves the proposed amendments with respect to its organization and operation, as long as it appears that the amendments do not allow for prompt and effective monitoring of the measures taken to implement the decisions and their implications. Whether it is to "think about new ways to increase the effectiveness of its Human Rights meetings, including on the question of the presidency and on the frequency and duration of the meetings" (Action Plan, C.1.d), to allow the participation of representatives of other monitoring or advisory bodies (Action Plan, C.1.h), to increase the transparency of the implementation process (Action Plan)
42. The draft declaration also provides for an amendment to the Rules of the Committee of Ministers for the Monitoring of the Enforcement of Judgments and the Terms of Friendly Regulations "to include written communications from international organizations or bodies identified by the Committee of Ministers" (Action Plan, C.1.e). Rule 9 already allows the Committee of Ministers to "take into consideration" any communication transmitted by INDHs and NGOs on the execution of a judgment (xl). Beyond this simple possibility of taking into account, it would be opportune and useful to clearly state that the Enforcement Service should be able to directly seek advice from external sources, such as INDHs or NGOs. In addition, the procedure should formalize the modalities for taking such communications into account. In this regard, the CNCDH regrets the deletion in the course of the negotiations of the initial invitation made by the draft declaration to the Committee of Ministers to mention in its decisions and resolutions the communications transmitted.
43. The intervention of the Enforcement Service, whether in its dimension of monitoring or bilateral cooperation, is certainly a key element in the implementation of the measures to correct violations found by the Court. Given the very low resources available to the Service, it appears to be critical that the Conference achieve concrete measures to address this situation. Thus, the declaration should use a more precise and firmer wording than the one in the draft that encourages the Committee of Ministers to "support an increase in the resources of the Enforcement Service, in order to enable it to perform its functions as a council and to increase its activities of bilateral cooperation and dialogue with the States parties, by providing more permanent staff whose expertise covers the national legal systems, as well as by encouraging States to consider detachments of judges or judges". Similarly, consideration should be given to the statutory provisions governing this service (xli).
II. - National enforcement mechanism for stops: ways to dig through broad and inclusive reflection
44. The draft declaration calls for a strengthened dialogue with parliaments, NHRIs and civil society representatives on the enforcement of decisions. This preconization reflects the desire to open the national execution process and make it more transparent. This increased role of parliaments, INDHs and civil society in monitoring the implementation would include improved accessibility to information: decisions, plans and action plans, decisions and resolutions of the Committee of Ministers (Action Plan, B.2.f) as well as regular national debates on the execution of decisions Action Plan, B.2.j). The contribution of ENNHRI, endorsed by the CNCDH, also recommends that the draft government action plan on the execution of a decision be submitted to INDH for consultation, before forwarding to the Committee of Ministers (xlii).
45. The CNCDH notes that the text from the negotiations no longer refers to the establishment of a mechanism to monitor the execution of the decisions involving the INDHs and, at the national level, constitutes a "relay" of the Committee of Ministers, whereas it was included in the initial draft (formerly B.2.h (xliii)). It considers that the declaration could usefully invite States to undertake a reflection at the national level, in conjunction with the NHRIs, on the opportunity of such a mechanism. Forty-four organizations, NGOs and representative bodies of lawyers also call on States to "organize rapidly, under the auspices of their respective INDHs, General States on the application of the Convention at the domestic level", which would address the issue of the effective enforcement of the Court's decisions (xliv).
46. These proposals usefully complement the possibility opened by the above-mentioned Rule 9 which establishes a dialogue with the competent body of the Council of Europe. The CNCDH, who has the experience of Rule 9, has always previously favoured a dialogue ahead of the sending of a communication with the MAEDI, the ministry responsible for the execution of the judgements in France. The Prime Minister's circular on the execution of European Court judgments underlines the importance of these exchanges (xlv). It was noted that, in countries where the relations between the INDH and the executive allow it, as is the case in the vast majority of the States of the Council of Europe, these exchanges on the implications of the execution of judgments and the sharing of information on the measures envisaged are always instructive and in a way that allows for more appropriate implementation.
47. In line with the recommendations of the Parliamentary Assembly of the Council of Europe, the Brighton declaration which encourages States "to facilitate the important role played by national parliaments in the review of the effectiveness of the implementation of the measures taken" (xlvi) and the practices developed by several national parliaments that have put in place structures specifically responsible for the monitoring of the execution of the decisions of the European Court (xlvii), it should also be This involvement, which the French Senate calls from its wishes (xlviii), could be materialized through, for example, an annual report to Parliament on enforcement, or regular audits by the commissions involved in the execution of the judgments, especially when they call for the adoption of legislative measures. Parliaments could also be recipients of action plans or balance sheets so that they can study them in depth, when necessary (xlix). The CNCDH fully shares the opinion of the Parliamentary Assembly of the Council of Europe that recalls that national parliaments are "exceptionally well placed to ask the governments of the accounts on the rapid and effective execution of the judgments of the Court, as well as to adopt the necessary legislative amendments quickly" (l).
48. At the interdepartmental level, the idea of a structured network of contact persons for the execution "sufficiently familiar with the jurisprudence of the Court, as well as with the relevant recommendations and practice of the Committee of Ministers" (li) should be further elaborated in the context of the interdepartmental dialogue that already exists upstream when it comes to defining the position of France as a defendant, including in the matter of amicable settlement. The CNCDH is of the opinion that a centralized and structured interdepartmental system, with the necessary authority and expertise - the draft declaration referring to it "the appropriate means and authority" (Action Plan, B.2.c) - is best able to ensure the rapid and effective execution of the judgments of the European Court.
49. This is what the CNCDH proposes to deepen in the context of the implementation of the Brussels declaration, which entrusts a specific role to the INDHs by calling on States "to involve [...] in the implementation of the action plan" (Implementation of the action plan (5)). France is, of course, far from being the least good student in the matter (lii), but still, blocking points persist in some areas (liii), and endemic problems underlying violations found by the Court in judgements remain whole (liv). Moreover, in the interests of exemplaryness towards the more deficient states, it is important that France should have an irreproachable mechanism. In the near future, the CNCDH would like to conduct a reflection with concrete proposals on the national enforcement mechanism in France, on how it should be structured, as well as on how it could in the future involve it, as well as the independent authorities concerned, such as the Defender of Rights or the Comptroller General of Places of Deprivation of Liberty, and the Parliament.
CNCDH recommendations
As part of the Brussels Conference on 26 and 27 March 2015, the CNCDH asks the government:
1. To defend a clear position of support for the independence and effectiveness of the European Court, as well as the strengthening, more generally, of the human rights protection system as enshrined in the European Convention.
2. To defend an interpretation of the principle of subsidiarity in accordance with that of the European Court, which considers that, under this principle, the national judge has the primary responsibility to guarantee the rights of the Convention, the Court intervenes only in the event of a failure of the internal judge. In the broad sense, this principle also implies recognition of the primary responsibility of national authorities to apply the European Convention as interpreted by the European Court.
3. To plead for the deletion of language in the declaration text that appears to be a question of the consistency of the jurisprudence of the Court, whose great consistency in time must be recognized.
4. To support the deletion in the text of the declaration of any wording suggesting that the considerable number (+50%) of repetitive motions before the Court is a challenge to the Court exclusively, not to the States, even though these requests illustrate the lack of sufficient enforcement of the judgments of the Court.
5. To support a formulation in the text of the declaration which explicitly recognizes the imperative need for a State party to take into account, beyond the only decisions concerning it, the decisions taken against other States and revealing a structural problem.
6. To ensure that it is provided in the text of the action plan adjoining the declaration that a work of census and exchange of good practices is carried out at the Council of Europe level on internal arrangements ensuring a review of the compatibility of norms and practices with the European Convention and the jurisprudence of the Court, including the designation of points of contact.
7. To support the already existing practice of the Court to provide the condemned State with specific guidance on the concrete implications of the decision and thus facilitate its timely and effective execution.
8. To call for the strengthening of the dialogue between the Court, the Committee of Ministers and the Enforcement Service of Court judgments.
9. To call for the reform of the procedures and working methods of the Committee of Ministers in its function of monitoring the execution of judgments, in the sense of efficiency, objectivity and transparency.
10. To support the inclusion in the text of the declaration of the possibility for the Enforcement Service to directly solicit the advice from external sources, such as NHRIs or NGOs.
11. To support the launch of a reflection on the strengthening of the means and statutes of the Court's Enforcement Service in the Convention mechanism.
12. Support a substantial increase in the budget of the European Court.
13. To ensure that the Brussels declaration makes an invitation to States to undertake a reflection at the national level, in conjunction with the INDHs, on their national enforcement mechanism, and to present within a certain period the results of this reflection to the Committee of Ministers.
On the role of INDH
14. To support the text of the declaration as it recognizes the multi-faceted role played by INDHs in the European Convention system.
15. To ensure that mention is added of the importance of systematically consulting with NHRIs on bills or bills involving the European Convention.
16. To support the inclusion in the text of the declaration of the importance for the Member States of the Council of Europe to establish INDHs fully in line with the Paris Principles and to strengthen the role of the Council of Europe in this regard.
At the domestic level, as part of the implementation of the European Convention on Human Rights, the CNCDH recommends that the government:
17. To sign and submit to ratification Protocol No. 12 to the European Convention on the General Prohibition of Discrimination of 4 November 2000.
18. To complete the ratification process of Protocol 15 of 24 June 2013 amending the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol 16 of 2 October 2013 giving jurisdiction to the European Court to provide advisory opinions, respectively, signed by France.
19. To ensure that pre-project impact studies systematically incorporate a serious analysis of the conformity of their provisions with the European Convention and the relevant jurisprudence of the European Court.
20. To increase the dissemination of the Court's tools on the admissibility criteria and the main principles of its jurisprudence.
21. To encourage the commitment of a broad and inclusive reflection on the mechanism for the execution of judgments of the European Court in France, by combining with this reflection the Parliament, the relevant departments of the State, the courts as well as the CNCDH, the other independent authorities concerned and civil society.
In general, the CNCDH calls on the government to remain vigilant with regard to the effective maintenance of the two official languages, both English and French, within the Council of Europe, which entails making its utmost importance to the requirement of bilingualism in the election of judges and the recruitment of the staff of the European Court and the Council of Europe.
