IJ №4 (32) 2019
On the partial enforcement of the judgments of the European Court of Human Rights: the case of Kim and Others v. Russia and Anchugov and Others v.Russia

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Abstract

The enforcement of the European Court of Human Rights judgments as a part of an issue of compliance with international courts’decisions is of major theoretical and practical importance for the Russian legal system. More generally, the enforcement of the ECtHR’s judgments reflects state compli- ance with international law. More specifically, such enforcement refers to the degree of real human rights protection in a particular State. One of the main issues regarding the enforcement of the ECtHR’s judgments is the question of the formal moment since which a judgment is considered to be enforced. Currently the process of enforcement formally ends when the Committee of Ministers of the Council of Europe adopts a final resolution on enforcement of the Court’s judgment. However, from a technical point of view, the resolution is adopted only when the State has fully taken all the measures prescribed or implied by the European Court of Human Rights. At the same time, for the purposes of such resolution even significant mea- sures adopted by the State will not be taken into account if they had not led to the 100% result. This is particularly important for the so called leading cases in the ECtHR’s case-law, in which the Court reveals a structural or systemic problem in the legal system of a particular State. The enforcement of judgments in these cases may require not only reforming the legislation and adjusting the judicial case-law but also – very frequently – significant funding and correcting of public opinion on sensitive matters. On the example of the Kim v. Russia group of cases the authors show the set of mea- sures taken by the State in order to enforce the judgments on the special control of CMCE. Despite a significant number of measures taken, the en- forcement process has not been closed yet. At the same time, in some other cases (on the prisoner voting rights) examined by the Committee of Ministers in December 2018 and September 2019, even partial implementation resulted in CMCE final resolutions. The authors conclude that a more flexible approach to the State compliance with the Convention would be advisable. Furthermore, the introduction of a new status of execution such  as “partial enforcement” or “progress in enforcement” would help to follow more carefully the degree of real implementation of the ECtHR’s judg- ments.

About the authors:

Maria Filatova – Candidate of Sciences (Ph.D) in Law, Associate Professor, Faculty of Law, Higher School of Economics, Moscow, Russia

Ekaterina Balyuk – Master of Law, Higher School of Economics, Moscow, Russia

Citation:

Filatova M., Balyuk E. (2019) O chastichnom ispolnenii postanovleniy Evropeyskogo Suda po pravam cheloveka: na primere del Kim i drugie protiv Rossii i Anchugov i Gladkov protiv Rossii [On the partial enforcement of the judgments of the European Court of Human Rights: the case of Kim and Others v. Russia and Anchugov and Others v.Russia]. Mezhdunarodnoe pravosudie, vol. 9, no. 4, pp. 58–69. (In Russian).

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