Assessing Regional Cooperation: New Trends before the European
Court of Human Rights and the European Court of Justice
by Fernanda Nicola*and Ingrid Nifosi-Sutton**
O
Introduction
is to analyze the practices of the
European Court of Human Rights (ECHR) and the
European Court of Justice (ECJ) to demonstrate how
both courts are currently addressing human rights violations in a
cooperative manner. Each court is addressing the complex question of remedies for human rights violations by going beyond
pecuniary damages.1 The ECHR has granted relief to prisoners
who are detained in violation of the 1950 European Convention
on Human Rights (the Convention). Meanwhile, the ECJ has
precluded the deportation of third country nationals under
domestic immigration laws because deportation would violate
the fundamental rights granted under European Union (EU) law,
as well as those protected by the Convention. Despite the different structural constraints facing European supranational courts
today — limited enforcement mechanisms available to the
ECHR and the contended competences in the realm of human
rights jurisdiction of the ECJ — both courts are clearly setting a
progressive and innovative trend.
Until recently, the ECHR’s attitude toward reparations has
been quite conservative, because it regards its power to afford
reparations as discretionary. It has limited itself to stating that a
violation of the Convention has occurred and awarding pecuniary or non-pecuniary compensation together with legal costs and
expenses. Since the latter half of the 1990s, however, the ECHR
has begun to recognize the ineffectiveness of its remedial action.
Despite states’ general compliance with the ECHR’s decisions,
recurrent breaches of the Convention not only “left several
applicants without a remedy to repair the consequences of the
violation but threatened the effectiveness of the [overall system
of human rights protection created by the Council of Europe].”2
As a result, in some exceptional cases the ECHR has started to
define specific remedial measures with which states must comply. These are aimed, inter alia, at preventing future violations.
While the jurisprudence of the ECJ does not directly address
the protection of human rights, since 1969 the ECJ has made it
clear that, “fundamental human rights are enshrined in the general principles of Community law and protected by the Court.”3
Moreover, in 1992 the Treaty of the European Union expressly
included the protection of fundamental rights as guaranteed by
the Convention and resulting from the constitutional traditions
of the Member States in Article 6(2). With this provision, fundamental rights have become general principles of Community
law.4
Council of Europe
ur goal in this essay
The European Court of Human Rights has ordered specific remedial
measures in several recent cases.
In examining the relationship between the two courts, it is
worth noting that all Member States of the EU — who are therefore beholden to the ECJ — are also parties to the Convention.
This scenario could create conflicts if opposite outcomes are
triggered in the two regional courts when interpreting similar
questions of fundamental rights.5
Since the 1990s the ECJ has interpreted EU law in light of
the jurisprudence of the ECHR. Interestingly, in cases concerning individual freedoms, and particularly provisions on free
movement, the ECJ has widely referred to ECHR jurisprudence.
It referenced the right to respect the family life of non-EU
citizens who could not reside in the Community even after marrying an EU national.6 Recently, the practice of the ECJ has
highlighted an innovative approach to third country nationals by
guaranteeing them the right to stay in a Member State.
Fernanda G. Nicola is Assistant Professor at American University,
Washington College of Law.
**
Ingrid Nifosi-Sutton is Adjunct Professor at American University,
Washington College of Law.
*
11
Our analysis of the new practices of the ECHR and ECJ
begins by examining two cases, Assanidze and Ilascu, concerning violations of Article 5 of the Convention. The second part
concerns the Zhu and Jia cases, which marked the ECJ’s “free
movement of persons” jurisprudence concerning third country
nationals.
ment, provided they “are compatible with the conclusions set
out in the Court’s judgment.”14
However, in the enforcement of the ECHR’s decisions state
discretion is subject to the supervisory function of the Committee
of Ministers of the Council of Europe (the Committee).15 Under
this mechanism, states are requested to provide the Committee
with information about the payment of any just satisfaction
awarded as well as measures adopted to comply with the
ECHR’s judgments.16
The enforcement mechanisms ensure that state-implemented
measures are appropriate and designed to achieve the outcome
sought in the ECHR’s judgments. The strategy has proven effective. In the majority of cases, governments do abide by declaratory judgments by informing the Committee about measures
taken to redress violations of the Convention.17 Additionally,
governments honor just satisfaction through pecuniary damages
as ordered by the ECHR.18
Recently, the ECHR has modified its practice in some
exceptional cases to form a more progressive approach toward
reparations in which the ECHR specifies that states should adopt
individual or general measures.19 This change was triggered by
significant numbers of applications against states for violations
Reparations before the ECHR
The ECHR’s approach to reparations has typically been cautious.7 Once the ECHR finds a violation under the Convention,
it delivers declaratory judgments stating that the Convention
has been breached. It then awards pecuniary or non-pecuniary
compensation together with legal costs and expenses.8
The legal basis of the ECHR’s competence to award reparations is prescribed by Article 41 of the Convention. Article 41
provides that, “[i]f the Court finds that there has been a violation
of the Convention or the protocols thereto, and if the internal
law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party.”9
Scholars have noted that the ECHR interprets this article
very narrowly. In the ECHR’s view, “applicants are not entitled
“Recently, the ECHR has modified its practice
in some exceptional cases to form a more progressive
approach toward reparations in which the ECHR
specifies that states should adopt individual
or general measures.”
to an award of just satisfaction; rather the Court has discretion
to grant a remedy based on equitable consideration and the facts
of each case.”10 The reasoning behind this reading of Article 41
is that initially the individual was the main focus of the Council
of Europe system of human rights protection. The ECHR was
established to provide a “collective inter-state guarantee that
would benefit individuals generally by requiring the national law
of the contracting parties to be kept within certain bounds.”11
Moreover, because states are the primary responsible actors
to ensure compliance with the Convention, the fundamental principle informing the ECHR’s practice is subsidiarity.
Consequently, the ECHR can only exercise its remedial power
by affording just satisfaction if a state is in violation of the
Convention by partially or completely failing to comply with it.
This usually consists of pecuniary damages.
The ECHR has further specified that a judgment on a violation of the Convention requires states to cease the violation and
take measures aimed at reestablishing the situation that existed
before the infringement.12 In other words, “if restitutio in integrum is possible, then it is for the state to carry it out, as the
Court itself has no power to effect restitution.”13 In addition, in
those cases where restitutio in integrum cannot be attained, the
state has the option to choose measures to abide by the judg-
already lodged with the ECHR leading to a reassessment of
the ECHR’s practice concerning reparations, and the overall
effectiveness of the Convention’s procedures. It became evident
that the repercussions of violations suffered by an injured party
cannot always be adequately remedied by the payment of just
satisfaction. Depending on the circumstances of each individual
case, compliance with the ECHR’s judgments may require the
respondent state to take measures in favor of the individual
applicant. Specific examples would be the re-opening of unfair
proceedings or revocation of a deportation order that was issued
despite the risk of inhumane treatment in the country of destination. States were also expected to take more general measures
aimed at preventing future violations by reviewing legislation,
rules and regulations, or judicial practice.
The ECHR’s new approach has been endorsed by the
Council of Ministers, which in May 2004 recommended
the ECHR change its approach to reparations by specifying
measures necessary to redress and prevent violations of the
Convention.20 This innovative trend of the ECHR is especially
notable in two cases concerning violations of Article 5 of the
Convention, Assanidze v. Georgia21 and Ilascu and Others v.
Moldova and Russia.22
12
‘The Prisoners Cases’ before the ECHR:
Assanidze and Ilascu
Immigration policy in the EU is a major issue that has
heightened federalist tension between Member States and the
Community. Under the current allocation of federal powers, the
ECJ has confirmed that immigration law is a matter under the
jurisdiction of Member States, as only domestic legal orders can
decide whom to admit lawfully into a country.35 Zhu and Jia,
however, raised possible conflicts between the individual right
to free movement and rights guaranteed under the European
citizenship directive. In each case, the ECJ offered a progressive
interpretation of the right to free movement.
In the first case, Catherine Zhu, the ECJ succeeded in
expanding the interpretation of European citizenship.36 In granting the right of free movement to third country nationals, the
ECJ departed from a merely derivative concept of European
citizenship, namely that EU citizens need to be citizens of one
of the Member States. Mrs. Zhu, a pregnant Chinese woman,
moved to Northern Ireland to deliver her baby. Under Irish
naturalization law her baby, Catherine, became an Irish citizen
and, consequently, a European citizen. In taking up residence in
Northern Ireland, Mrs. Zhu’s purpose was to obtain a long term
visa to reside in the United Kingdom.37 The United Kingdom,
however, did not grant her permission to reside in its territory.
British authorities argued that the child had no right of residence
since she was underage and unable to exercise her rights under
European law.38
Interpreting Directive 90/364/EEC on the right of residence, the ECJ held that minors benefit fully from the rights of
European citizenship, including rights of residence. Moreover,
the ECJ established that Mrs. Zhu also would have an indefinite
right of residence in the state as long as she served as caretaker to
the dependent family member and provided sufficient resources
for her baby “not to become a burden on the public finances
of the host Member State.”39 Finally, in determining that Mrs.
Zhu had a right to residence deriving from her daughter, ECJ
Advocate General Antonio Tizzano claimed that denial of such
right would contravene the principle of respect for the unity of
family life, as laid down by Article 8 of the ECHR “to which the
Court of Justice itself attributes fundamental importance.”40
In the Jia case, the ECJ decided that Ms. Jia, a retired
Chinese national, should be granted a resident permit as the family member of a Community national, having exercised his own
right to free movement.41 Ms. Jia received a visitor’s visa valid
until August 21, 2003 from the Swedish Embassy in Beijing,
and in that same month she applied to remain in Sweden on the
grounds that she was related to a national of a Member State, her
son who is also a Chinese national who has been living with a
residence permit in Sweden since 1995, as a spouse of a German
Community national.
In support of her case for a residency permit, Ms. Jia demonstrated that both she and her husband lived in very strained
circumstances in China and would not be able to support themselves without financial assistance from their son and his wife.
Ms. Jia’s application was rejected due to insufficient proof of
her financial dependence on her son, however, and the Swedish
court ordered her to return to China. On appeal before the
Swedish tribunal, the case was referred to the ECJ to determine
whether a third country national who is a relative of a citizen of
the EU can benefit from the right to permanent residence under
EU law. The ECJ held that to benefit from the rights granted
under EU law, third country nationals married to citizens of
Mr. Tengiz Assanidze is the former mayor of Batumi, the
capital of the Ajarian Autonomous Republic of Georgia, and
a former Member of Parliament.23 On October 4, 1993, he
was arrested on suspicion of illegal financial dealings with
the Batumi Tobacco Manufacturing Company24 and unlawful
possession and handling of firearms. On July 2, 2000, he filed
an application against Georgia before the ECHR claiming a
violation of Article 5 of the Convention. He argued that his continued detention by the authorities of the Ajarian Autonomous
Republic, despite having received a presidential pardon and
having been acquitted by the Supreme Court of Georgia in 2001,
constituted a violation of his right to liberty and security.25
The ECHR, sitting as a Grand Chamber, found a violation
of Article 5, maintaining that, “[I]t is inconceivable that in a
State subject to the rule of law a person should continue to be
deprived of his liberty despite the existence of a court order for
his release.”26 Remarkably, the ECHR went further, and after
noting that, “by its very nature, the violation found in the instant
case does not leave any real choice as to the measures required
to remedy it,”27 it ordered Georgia to “secure the applicant’s
release at the earliest possible date.”28
In Ilascu v. Moldova, the ECHR came to a similar conclusion. The case concerned four Moldovan nationals convicted by
the Supreme Court of the Moldavian Republic of Transnistria
(MRT). The MRT is a region of Moldova that proclaimed
independence in 1991 but has not been recognized by the
international community. The applicants contended that their
detention was not lawful because it was ordered by an entity not
recognized under international law.
The ECHR, sitting again as a Grand Chamber, noted that,
“none of the applicants was convicted by a ‘court.’” A sentence
of imprisonment passed by a judicial body such as the “‘Supreme
Court of the MRT’ . . . [could not] be regarded as ‘lawful detention’ ordered ‘in accordance with a procedure prescribed by
law.’”29 The ECHR therefore concluded that the detention of
Ilascu until May 2001,30 and the continuing detention of the
three other applicants, violated Article 5 of the Convention.
Importantly, the ECHR further maintained that, “any continuation of the unlawful and arbitrary detention of the three
applicants would necessarily prolong the violation of Article
5 found by the Court and a breach of the respondent States’
obligation under Article 46 §1 of the Convention to abide by the
Court’s judgment.”31 As a result, it requested that the respondent
state take “every measure to put an end to the arbitrary detention of the applicants still detained and to secure their immediate
release.”32
Georgia fulfilled its obligation four days after the ECHR
delivered the judgment.33 Only one of the three applicants of the
Ilascu case has been released.34
Regional Cooperation on Human Rights:
‘The Immigrant cases’ before the European
Court of Justice
This section analyzes two recent ECJ judgments, Zhu and
Jia. In both cases the ECJ, despite the limited competence of the
Community on immigration policy, prevented the violation of
free movement rights under EU law when it granted third country nationals the right to stay in a European Member State.
13
the EU must lawfully reside in a Member State.42 Moreover,
the ECJ clarified the scope of ‘dependent’ family members
under Directive 73/148/ECC. These are family members of
Community nationals residing in a Member State. Furthermore
they must be in need of material support from their EU relatives
to meet their basic needs in their state of origin.43 The ECJ held
that proof of material support could be adduced by any appropriate means, but a mere undertaking by the national to support the
family member would not be sufficient.
practices — here Russia provides a good example — may object
to a more invasive approach by these human rights institutions.
Similarly, the ECJ has demonstrated its willingness to
expand the rights of residency to third country nationals who
share a family relationship with EU citizens by upholding their
rights to free movement. In Zhu, despite a harsh reaction from
the Irish government, the ECJ guaranteed an infant and her
mother the right to reside in the EU.45 Moreover, in Jia the ECJ
went beyond the narrow interpretation of the traditional abuse of
rights doctrine, holding that Ms. Jia should not be deported from
Sweden. Despite possible federal conflicts over competences on
immigration rules between Member States and EU institutions,
the ECJ has created two important precedents protecting third
country nationals’ right to reside in the EU.
Certainly these cases have created broader consequences
which affect the implementation and legitimacy of EU law.
While, for instance, Ireland demonstrated its discontent over the
outcomes of the abortion saga after it was reviewed by both the
EJC and the ECHR, the case of Catharine Zhu did not trigger the
same challenges to the supremacy of EU law and, in turn, to the
implementation by Ireland of European norms.46 It is important,
however, to note that Zhu created an anti-immigrant backlash
within Irish immigration policies. Indeed, six months after this
case was decided, Ireland prepared a referendum to amend
Article 9 of the Irish constitution, which formerly granted Irish
citizenship to children born in Ireland from non-Irish parents.
In light of the 2004 referendum, not everyone born in Ireland
will automatically have a constitutional right to citizenship.
Similarly, in the aftermath of Jia, Sweden may very well take
immigration or employment measures to restrict access by third
country nationals.
Both courts have demonstrated their readiness to move
beyond mere monetary damages in making reparations for the
violation of fundamental rights and in modifying domestic legal
regimes.47 Furthermore, they are willing to cooperate in setting
innovative trends that expand the protection of human rights in
Europe. In this essay we welcome the recent bold steps European
courts have taken toward enforcement, such as the release of
prisoners and the permission for third country nationals to reside
in the EU, but we have also cautioned against the possible backlashes following their judgments.
HRB
Conclusion: Assessing New Trends before
European Courts
Both sets of cases show a remarkable departure from ECHR
and ECJ practice. Rather than merely stating that there were
violations of Article 5 and awarding compensation, the ECHR
ordered the respondent States to take very specific remedial
measures, namely the release of individuals whose detention
was arbitrary under both domestic law and the Convention.
Scholars suggest that this new approach was dictated by the
gravity of situations of flagrant, grave, and continuing violations
of Article 5 brought to the court’s attention. The award of monetary remedies would have been highly unsatisfactory in these
situations, as such remedies do nothing to prevent further violations, but provide relief only after the violation has occurred.
We hope that the ECHR will not abandon its innovative
approach in awarding reparations, and that it will extend it to
other cases of infringed rights enshrined in the Convention,
such as disappearances. Given the gravity of the human rights
violations involved in this sinister phenomenon, the expansive
approach to reparations showed in the Assanidze and Ilascu
cases would not only be welcome, but also completely appropriate for such circumstances.44 We recognize, however, that
such an approach might pose a practical problem during the
execution phase. Indeed, a more daring attitude toward disappearances would entail stringent remedial measures to address
the structural problems of domestic legal systems which may
prove very difficult for the Committee of Ministers to monitor.
Moreover, while the Committee appears to be willing to engage
in more “intrusive” monitoring of states’ compliance with the
ECHR judgments, the ECHR may be reluctant to extend the
approach adopted in the above mentioned cases, as doing so
might politicize the ECHR and thus undermine its legitimacy. In
addition, states that are likely to be condemned for such illegal
Endnotes: Assessing Regional Cooperation
1 See Dinah Shelton, Remedies in International Human Rights
Law 280 (2005) (describing new forms of non-monetary remedies
by the ECHR).
2 Shelton, supra note 2, at 200.
3 Stauder v. City of Ulm, European Court of Justice, Case 29/69
(Nov. 12, 1969).
4 See Koen Lenaerts & Piet Van Nuffel, Constitutional Law of
the European Union 716 (2006).
5 The famous Irish abortion saga is a case in which the Irish
Constitutional Court defines advertising abortion clinics as unlawful student activities. However the same case has also been decided
before the ECJ and the ECHR. See Case C-159/90, Society for the
Protection of Unborn Children Ireland Ltd v. Grogan, 1991 E.C.R.
I-4685, and Open Door Counseling v. Ireland, 246 Eur. Ct. H.R.
244 (1992); George A. Bermann et al., Cases And Materials on
European Union Law 333-335 (2002); Paulette Kurzer, Markets
and Moral regulation: Cultural Change in the European Union,
at 143 (2001).
6 Case C-109/01, Sec’y of State for the Home Dep’t v. Akrich, 2003
E.C.R. I-9607.
Endnotes continued on page 15
14
28 Id. at ¶ 203.
29 Ilascu & Others v. Moldova, ¶ 462, European Court of Human
Rights, App. No. 48787/99 (2004).
30 Mr Ilascu was released in May 2001 on humanitarian grounds.
Pressure from the Moldovan Government and the OSCE were
instrumental in this regard.
31 Ilascu & Others v. Moldova, ¶ 490, European Court of Human
Rights, App. No. 48787/99 (2004).
32 Id.
33 Press Release, Council of Europe, Council of Europe Secretary
General Welcomes the Release of Tenguiz Assanidze (April 13,
2004); Alexander Orakhelashvili, Assanidze v. Georgia, 99 Am. J.
Int’l L.222, 229 (2005).
34 Karen Ryan, Moldova Wants Early Release of Ivantoc and
Petrov-Popa, Tiraspol Times and Weekly Review, Oct. 12, 2006,
available at http://www.tiraspoltimes.com/news/moldova_wants_
early_release_of_ivan_oc_and_petrov_popa.html (last visited Nov.
3, 2007). Mr Leco was released on June 2, 2004. In October 2006,
the Moldovan authorities re-affirmed their commitment to secure
the release of Andrei Ivan oc and Tudor Petrov-Popa.
35 Case C-109/01, Sec’y of State for the Home Dep’t v. Akrich,
2003 E.C.R. I-9607. See Catherine Barnard, The Substantive Law
of the EU, at 455 (2004).
36 Zhu v. Sec’y of State for the Home Dep’t, Case C-200/02,
European Court of Justice (2004).
37 Id. at ¶ 11.
38 Id. at ¶ 14.
39 Id. at ¶ 47.
40 Opinion of Advocate General Antonio Tizzano, Case C-200/02
delivered on 18 May 2004.
41 Case C-1/05, Jia v. Migrationsverket, 7 E.C.R. 545 (2007).
42 Id. at ¶¶ 26, 33.
43 Id. at ¶ 43.
44 Bazorkina v. Russia, European Court of Human Rights, App.
No. 69481/01 (2006), and Tanis & Others v. Turkey, European
Court of Human Rights, App. No. 65899/01 (2005). The first “disappearance” cases from Chechnya, in which the Court had adopted
the traditional attitude to reparations.
45 After the Zhu judgment, the Irish government changed its law
on naturalization and its rule on jus solis citizenship, with effect
from January 1, 2005. Today, children born in Ireland from third
country nationals are no longer automatically entitled to Irish citizenship, see http://www.oasis.gov.ie/moving_country/migration_
and_citizenship/irish_citizenship_through_birth_or_descent.html
(last visited Nov. 5, 2007).
46 See supra note 5.
47 See Gráinne de Búrca & Oliver Gerstenberg, The
Denationalization of Constitutional Law, 47 Harv. Int’l L.J. 1
(2006).
7 Antonio Cassese, International Law 366-67 (2002); Jo M.
Pasqualucci & Thomas Buergenthal, The Practice and Procedure
of the Inter-American Court of Human Rights 234 (2003); Clare
Ovey & Robin White, The European Convention on Human Rights
416-418 (2002).
8 Manfred Nowak, The Right to Reparation of Victims of Gross
Human Rights Violations, in Human Rights in Development
Reparations: Redressing Past Wrongs 280 (Louise Krabbe
Boserup & George Ulrich eds., 2001).
9 European Convention on Human Rights, art. 5, Nov. 4, 1950, 213
U.N.T.S. 222.
10 See Shelton, supra note 1, at 196.
11 David J. Harris, M. O’Boyle & Colin Warbrick, Law of the
European Convention on Human Rights, 33 (1995).
12 Brumarescu v. Romania, App. No. 28342/95, 33 Eur. Ct. H.R.
36 (2001); Vasiliu v. Romania, European Court of Human Rights,
App. No. 29407/95, (2002); Hodos & Others v. Romania, European
Court of Human Rights, App. No. 29968/96, (2002); Iatridis v.
Greece, App. No. 31107/96,
30 Eur. Ct. H.R. 97 (2000).
13 Philip Leach, Beyond the Bug River: New Approaches to
Redress by the ECHR, 148 Eur. Human Rights L. Rev. (2005).
14 Id.
15 Id.
16 An overview of the most recent practice of the
Committee is available at https://wcd.coe.int/ViewDoc.jsp?Ref=
CM/Del/Dec(2007)987&Sector=secCM&Language=lanEnglish&V
er=prov&BackColorInternet=9999CC&BackColorIntranet=FFBB5
5&BackColorLogged=FFAC75 (last visited Nov. 3, 2007).
17 An overview of these measures is available at http://www.echr.
coe.int/ECHR/EN/Header/The+Court/Execution/How+the+
execution+of+judgments+works/ (last visited Nov. 3, 2007).
18 Robert E. Scott & Paul B. Stephan, The Limits of Leviathan:
Contract Theory and the Enforcement of International Law 131
(2006).
19 The cases concern violations of the right to property, effectiveness of criminal investigations, re-hearings in domestic criminal
proceedings and systemic or specific problems likely to overcharge
the Court’s caseload. See respectively, Zwierzynski v. Poland, App.
No. 34049/96, to be reported in ECHR 2001-VI; Acar v. Turkey,
App. No. 26307/95, 38 Eur. Ct. H.R. 2 (2004); Somogyi v. Italy,
App. No. 67972/01 to be reported in ECHR 2004-IV; Bottazzi v.
Italy, App. No. 34884/97, reported in ECHR 1999-V.
20 Committee of Ministers Res. of 12 May 2004, DH Res. (2004)
3.
21 Assanidze v. Georgia, Eur. Ct. H. R., App. No. 71403/01 (2004).
22 Ilascu & Others v. Moldova, Eur. Ct. H. R., App. No. 48787/99
(2004).
23 Leach, supra note 13.
24 This a private company.
25 The Georgian government did take steps to release him, but in
vain.
26 Assanidze v. Georgia, ¶ 173, European Court of Human Rights,
App. No. 71403/01 (2004).
27 Id. at ¶ 202.
15