Changing State Behaviour: Damages before the European Court of Human Rights

Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance. 1 Changing State Behaviour In March 2018, the Council of Europe published the news that, out of all judgments rendered by the European Court of Human Rights (ECtHR) since its inception * Senior Lecturer in Law, Homerton College, Cambridge University, United Kingdom. Email: vf243@cam. ac.uk. This article is part of a larger project on damages for human rights violations, which is funded by the Economic and Social Research Council Future Research Leaders Grant (Grant no. ES/N000927/1), the Isaac Newton Trust, and the Cambridge Humanities Research Grant. I am grateful for research assistance to Sabrina Boudra and Jaka Kukavica, who coded the cases, and Mandeep Dhami, who helped with statistical analysis. The research also builds on interviews with former and current European Court of Human Rights (ECtHR) judges, members of the Registry and the Committee of Ministers. In this article, their anonymity is preserved through numbering; numbers were assigned to judges randomly. 1092 EJIL 29 (2018), 1091–1125 60 years ago, more than half – nearly 7,500 judgments – still remained unenforced.1 Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights (ECHR) system and through the expansion of the ECHR to 47 European jurisdictions, non-compliance with the Court’s judgments remains a major problem for the Council of Europe. For years, states’ failure to implement the Court’s judgments has threatened to undermine the Strasbourg system and simultaneously erode the credibility of the Court. When states fail to implement the Court’s judgments, this generates new, repetitive claims before the Court. Specifically, the ‘failure to implement effective general measures results in the recurrence of similar infringements, producing repetitive applications and distracting the Court from its essential function’.2 These repetitive cases represent a considerable part of the Court’s backlog. In fact, year on year, the number of judgments pending examination before the Committee of Ministers, the body responsible for supervising the implementation of ECtHR judgments, has been steadily increasing.3 In parallel, the deficit between the number of applications introduced and applications disposed of by the Court continues to grow, to the extent that victims must wait for years before their claims are heard and decisions are rendered.4 Although several attempts have sought to reform the institutional structures and introduce procedures to manage the growing backlog of cases more efficiently, the situation is still such as to raise concerns as to the viability of the current system and its long-term effectiveness.5 In seeking to address the problem, the emphasis has been on thinking creatively about the choice of remedies that the ECtHR could impose on states that would motivate states to address their human rights violations at home. Social scientists and economists have observed that human behaviour can be changed through three mechanisms of social influence: material inducement, persuasion and acculturation.6 Material inducement seeks to influence the behaviour of actors by imposing material costs or benefits. The imposition of a fine will motivate the state to conduct a costbenefit analysis as to whether a certain behaviour is economically sound. If the costs of continuous behaviour outweigh the benefits, then the expectation is that the state 1 Council of Europe, Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights 2017: 11th Annual Report of the Committee of Ministers, March 2018, at 7. 2 Drzemcczewski and Gaughan, ‘Implementing Strasbourg Court Judgments: The Parliamentary Dimension’, in W. Benedek, W. Karl and A. Mihr (eds), European Yearbook on Human Rights (2010), vol. 2, at 234. 3 For statistics, see Committee of Ministers, Supervision of the Execution of Judgments of the European Court of Human Rights: Annual Reports (2008), at 33, Table 1.b, Appendix 1: Statistical Data, April 2009. 4 Council of Europe, High Level Conference on the Future of the European Court of Human Rights: Brighton Declaration, April 2012, para. 16; see also Council of Europe, High-Level Conference on the Implementation of the European Convention on Human Rights, Our Shared Responsibility, 27 March 2015; Council of Europe, Copenhagen Declaration, April 2018, para. 44. 5 Council of Europe, Draft Copenhagen Declaration, 5 February 2018, para. 43. Council of Europe, High Level Conference on the Future of the European Court of Human Rights: Interlaken Declaration, 19 February 2010, para. 8; Brighton Declaration, supra note 4, para. 5. 6 R. Goodman and D. Jinks, Socializing States: Promoting Human Rights through International Law (2013). Changing State Behaviour 1093 would cease the costly actions. While material inducement focuses on the ‘price’ of a specific behaviour, the second mechanism – persuasion – relies on persuading states of the validity or the appropriateness of a specific norm, belief or practice. Persuasion occurs when actors – in our case, states – assess the content of a particular rule or practice and ‘change their mind’. In the language of Harold Koh, states obey international rules because they have ‘internalized’ these norms into their domestic law and practice.7 In this regard, the aim of persuasion is not merely to generate compliance but, rather, to ‘internalize the new interpretation of the international norm into the other party’s internal normative system’.8 Finally, acculturation is the process by which actors adopt the beliefs and behavioural patterns of the surrounding culture. Instead of assessing the content or the costs and benefits of international norms, acculturation relies on the cognitive and social pressures that create a compliance pull. Behavioural economists argue that such cognitive and social pressures ‘induce change because actors are motivated to minimize cognitive discomfort or social costs and to achieve cognitive comfort’.9 In practice, this means that states may be compelled to act in a manner compliant with international norms because such behaviour is part of membership of a specific group to which the state wishes to belong. As a consequence, the state wishes to mirror the behaviour of other states and thus remain part of an ‘in-group’ with a shared identity. Like other international institutions, the current remedy framework used by the ECtHR and the Committee of Ministers appears to rely on the use of all three tools to motivate the state to redress its actions and deter similar future violations. The ECtHR places a clear emphasis on just satisfaction, whereby states have to compensate the victim’s loss and suffering. This is sometimes complemented with non-monetary remedies. When the Court is seeking to achieve restitution in integrum and return the applicant to the position before the violation, it may order the release of a victim being held in arbitrary detention or it may go as far as requiring a state to change its legislation to prevent future actions. These remedies are imposed by the Court so infrequently that, in general, the Court remains rather silent and relies on the persuasive power of its ruling.10 The expectation is that the judgment identifies the underlying problem so clearly that states are able to undertake the necessary actions to prevent future breaches at home. As a final step, the Committee of Ministers may attempt to adjust state behaviour through acculturation by publicly condemning and shaming states.11 The Committee of Ministers, for example, may call on states to abide by the Court’s judgments, to condemn their failure to do so and may issue interim resolutions requiring their action. Together, both the Court and the Committee of Ministers are 7 Koh specifically focuses on courts and other domestic organs as transnational legal actors giving effect to international law at home. Koh, ‘Why Do Nations Obey International Law?’, 106 Yale Law Journal (1997) 2599; Koh, ‘Transnational Legal Process’, 75 Nebraska Law Review (1996) 181. 8 Koh, ‘Why Do Nations Obey’, supra note 7, at 2646 (emphasis added). 9 Goodman and Jinks, supra note 6, at 22. 10 Ibid., at 24. 11 Ibid., at 27–28. 1094 EJIL 29 (2018), 1091–1125 supposed to provide an efficient and persuasive remedial framework, providing for different incentives for states to comply with European human rights judgments. Given the poor compliance record of some states and the general 50 per cent failure to execute ECtHR judgments, it is evident that the current structure and functioning of remedies is not working. The exercise of shaming states into compliance is a function for the Committee of Ministers rather than the Court and has been only varyingly suc