CYIL vol. 11 (2020)
CYIL 11 (2020) STATE RESPONSIBILITY AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS (instead of Article 41), 74 as well as to two resolutions or recommendations of the Committee of Ministers of the Council of Europe. 75 The second one seems to recommend the obligation of cessation and non-repetition, 76 although the document did not mention the pertinent provisions of the ARSIWA. 77 On balance, while using such strong words in its reasoning, the Court put in the operative part of the judgment the obligation of restitution in alternative with financial compensation. 78 It is an example of the creative interpretation of the ECHR by the Court that, without expressly referring to general international law, includes into its routine decisions on “just satisfaction” some other forms of legal consequences of internationally wrongful acts. Although Article 41 of the ECHR does not provide a sound legal basis for it, the Court justifies its decision by reference to other provisions of the Convention (Article 46). At the same time, the ECtHR adopts such decisions only in cases that reveal widespread and systemic problems. Otherwise, it respects the discretion of the States parties as to the manner of execution of a judgment. However, the most recent and significant judgment of the Grand Chamber in Mammadov (in proceedings under Article 46 § 4) 79 seems to bring a breakdown decision in various aspects: from the point of view of application of general international law, clarification of the restitutio in integrum , and the judicialization of the execution of the Court’s rulings. 5. Conclusion The above analysis of the case law shows that, in the practice of the ECtHR, the principles of State responsibility are not irrelevant. However, it is quite difficult to evaluate how much they inform the jurisprudence of the Court. The main difficulty arises from the fact that the ECtHR rarely develops its reasoning on the express and clear interpretation of general rules of responsibility. Even if the Court now more often refers to some articles of the ARSIWA 74 Ibid., para. 192: “the Court wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention. It reiterates that by virtue of Article 46 the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia , that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects.” 75 Resolution (Res(2004)3) on judgments revealing an underlying systemic problem, adopted on 12 May 2004; and Recommendation of 12 May 2004 (Rec(2004)6) on the improvement of domestic remedies. 76 Rec(2004)6 recommends that the Contracting States, following Court judgments which point to structural or general deficiencies in national law or practice, review and, “where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court”. 77 See Art. 30: “The State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.” 78 Broniowski v. Poland [GC], ibid., pp. 73-74: “… Holds that the respondent State must, through appropriate legal measures and administrative practices, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1.” 79 Ilgar Mammadov v. Azerbaijan [GC], Appl. No. 15172/13, ECtHR, judgment (in proceedings under Article 46 § 4), 29 May 2019.
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