Analysis of Needs in The Process of Execution of ECtHR Judgments Against Serbia

Analysis of needs in the process of execution of ECtHR judgments against Serbia (PDF)

Prepared on the basis of expertise
Velimir Delovski
Vanje Rodić
within the Joint Program of the European Union and the Council of Europe
"Horizontal facilities for the Western Balkans and Turkey 2019-2022", within the project
"Strengthening effective legal means to prevent human rights violations in Serbia"

Belgrade, October 2020

Summary    

Enforcement of final judgments is a key element of any rule of law system. It is well known that it is important in a national system to ensure that any binding court decision is enforced. The same applies to the system of international law, including the execution of judgments
of the European Court of Human Rights ("ECtHR", "Court"). Although the execution of judgments handed down by an international court requires a different type of procedure compared to proceedings at the national level, the effectiveness of the execution of judgments adopted by the ECtHR remains one of the cornerstones of the system established by the Convention on protection of human rights and fundamental freedoms ("ECHR" or "Convention"). This issue was discussed, among other things, during the seminar "Enforcement of judgments of the European Court of Human Rights: shared judicial responsibility?", which was held under the auspices of the European Court of Human Rights at the opening of the judicial year in 2014).

The willingness of member states to execute the judgments of the Court in Strasbourg, without undue delay, reflects the effectiveness of the human rights protection system established by the Convention. Therefore, it is very important for each member state of the Council of Europe (hereinafter: "CoE") to provide an appropriate system for the execution of ECtHR judgments, taking into account all the special needs of a particular state.

It is important to state that the European Commission also takes into account the judgments made by the ECtHR against Serbia and their execution, when assessing the progress that Serbia is making in the process of accession to the European Union (see:https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-serbia-report.pdf).

The aim of this study is to analyze the needs regarding the execution of ECtHR judgments against Serbia, to examine the current situation and propose recommendations in accordance with the standards established by the Council of Europe, which can serve as inspiration for the improvement of the system of execution of ECtHR judgments in Serbia.

The study was created as part of the project "Strengthening effective legal means to prevent violations of human rights in Serbia", which is implemented within the framework of the joint program of the European Union and the Council of Europe "Horizontal facilities for the Western Balkans and Turkey 2019-2022".

Through this study, an effort was made to present the current situation regarding the execution of ECtHR judgments in Serbia, with a special focus on the position of the representative of the Republic of Serbia before the ECtHR, the way in which the position of the representative is defined in the law and developed in practice, but also to show how that position affects on the efficiency of the execution procedure in general. The document also examines the role of other institutions in the implementation process.

The study includes an analysis of the current legal framework that regulates the work of representatives within the State Attorney's Office, as well as the question of its adequacy for the effective execution of ECtHR judgments.

In addition, the analysis indicates certain challenges that are encountered in practice and speaks of the need to improve the system of execution of ECtHR judgments against Serbia, which may require additional legal regulation.

The document provides recommendations for improving the process of execution of ECtHR judgments in Serbia and for strengthening the role of relevant national institutions in this process.

Also, the study covers various aspects of the execution process, including the role of the judiciary and other institutions, as well as the role of national parliaments in monitoring the execution process. These issues are considered in the light of the standards set by the soft law instruments of the Council of Europe, especially with regard to the role of representatives as process coordinators and the participation of national parliaments in the execution of judgments.

The study also provides an overview of practices applied in other member states of the Council of Europe that could serve as useful examples for defining the position of representatives and establishing clear rules and procedures that should guide the implementation process.

The analysis combines the findings of two consultants, Velimir Delovski and Vanja Rodić, who were hired by the Council of Europe to conduct research and prepare an analysis, which is based on:

• their personal understanding of the issue of execution of ECtHR judgments and the specifics of this process in Serbia,
• information collected by consultants from representatives of relevant institutions during meetings and consultations, in the period between April and June 2020.

During the preparation of this study, meetings were held with representatives of the following institutions (in alphabetical order):

• The State Attorney's Office of the Republic of Serbia - the representative of the Republic of Serbia before the European Court of Human Rights;
• Ministry of Justice of the Republic of Serbia;
• the National Assembly of the Republic of Serbia (Committee for Human and Minority Rights and Gender Equality);
• Department for execution of judgments of the European Court of Human Rights, Council of Europe;
• Judicial Academy of the Republic of Serbia;
• Republic Public Prosecutor's Office;
• by the Constitutional Court of the Republic of Serbia;
• Supreme Court of Cassation of the Republic of Serbia.

Representatives of the listed institutions provided a valuable contribution to the subject of research and analysis. The document relies on their views, which were taken into account when drawing conclusions and recommendations.

The comparative part of this analysis also includes information obtained in correspondence, via e-mail, with representatives of the offices of representatives of Austria and the Czech Republic.

This document is divided into five chapters.

Chapter I the execution of judgments and the system of supervision over the execution of judgments by the Committee of Ministers of the Council of Europe is presented. The chapter also describes key documents of the Council of Europe related to the process of execution of judgments and which provide recommendations regarding the role of representatives and national parliaments in that process.

Chapter II focuses on different practices in other member states, regarding the establishment of appropriate legal and institutional frameworks for the work of representatives and their offices, as well as the establishment of interdepartmental mechanisms with the task of coordinating domestic stakeholders involved in execution and monitoring the execution process. Finally, this chapter also discusses different types of involvement of legislative bodies in the processes of execution of ECtHR judgments.

Chapter III provides a detailed analysis of the legal framework governing the work of representatives in Serbia, as well as the legal framework related to the re-examination of cases as an individual measure for the execution of ECtHR judgments. The chapter also provides an overview of the challenges that have been observed in the work of the judiciary when applying the relevant legal provisions for the repetition of proceedings. Bearing in mind the commitment of member states, expressed through a number of Council of Europe documents (see Chapter II), to strengthen the role of legislative bodies in monitoring the execution process, Chapter III also considers the inclusion of the National Assembly of the Republic of Serbia in the process of execution of ECtHR judgments.

Chapter IV an overview of the main cases and groups of cases against Serbia in the execution process is given. The key issues determined in ECtHR judgments against Serbia (Jevremović case group, EVT case group, Ališić and others, Zorica Jovanović and Stanimirović case group) are briefly described. The chapter primarily focuses on the implementation process itself, challenges encountered in that process, lessons learned and results achieved.

Chapter V the main findings of the analysis of the current situation regarding the execution of ECtHR judgments in Serbia are summarized and further steps to be taken in the future are proposed in order to overcome the shortcomings identified in this study, and to establish an effective system of execution, based on the best practices applied in other member states of the Council of Europe.