Guide Art 46 ENG

Guide on Article 46
of the European Convention

on Human Rights
Binding force and execution

of judgments
Updated on 31 August 2022
Prepared by the Registry. It does not bind the Court.

Guide on Article 46 of the Convention – Binding force and execution of judgments
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© Council of Europe/European Court of Human Rights, 2022
European Court of Human Rights 2/34 Last update: 31.08.2022

Table of contents
Note to readers.............................................................................................. 5
Introduction................................................................................................... 6
I. The content of Article 46 ........................................................................... 6

A. When does Article 46 apply? ...................................................................................................... 7
B. The nature of the obligation under Article 46 ............................................................................ 7
1. In general .............................................................................................................................. 7
a. Individual measures for the applicants concerned......................................................... 7
b. General measures ........................................................................................................... 8
2. In a particular case ................................................................................................................ 8
II. Indications in the Court’s judgments under Article 46 .............................. 9

A. Origin of the practice .................................................................................................................. 9
B. Status and purpose of such indications ...................................................................................... 9
C. Types of indication .................................................................................................................... 10
1. Indications under Article 46 ................................................................................................ 10
a. What are they for? ........................................................................................................ 10
b. When are they included? ............................................................................................. 10
– Indications under Article 46 in respect of the individual applicant (individual
measures) ..................................................................................................................... 10
c. When are they included? .............................................................................................. 10
– Indications under Article 46 in respect of a structural problem (general measures) ..... 10
2. Pilot judgments ................................................................................................................... 11
a. What are they for? ........................................................................................................ 11
b. When are they adopted? .............................................................................................. 11
i. Procedural significance - disposal of similar cases .................................................. 11
III. Jurisdiction ............................................................................................ 13

A. Supervision of compliance ........................................................................................................ 13
B. Related questions of admissibility ............................................................................................ 14
1. Article 35 § 2 (b) .................................................................................................................. 14
2. Article 35 § 3 (a) .................................................................................................................. 16
3. Article 35 § 3 (b) .................................................................................................................. 16
4. Article 37 ............................................................................................................................. 16
IV. Appendix .............................................................................................. 18

A. Relevant indications under Article 46 by Article ...................................................................... 18
1. Introduction ........................................................................................................................ 18
a. Article 2 ......................................................................................................................... 18
i. The substantive aspect ............................................................................................ 18
ii. The procedural (effective investigation) aspect ..................................................... 18
iii. Specific issue: planning and control of operations ................................................ 19
b. Article 3 ......................................................................................................................... 20
i. Substantive: expulsion ............................................................................................. 20
 Expulsion ............................................................................................................ 20

 Preventing torture, inhuman and degrading treatment .................................... 21

ii. Procedural............................................................................................................... 21
iii. Specific issue: missing persons .............................................................................. 21
 Situation of the victims’ families ....................................................................... 21
 Effectiveness of the investigation ...................................................................... 22
iv. Specific Issue: conditions of detention .................................................................. 23
 Measures to reduce overcrowding and improve the material conditions of
detention.......................................................................................................... 23
 Remedies............................................................................................................ 24
v. Specific Issue: domestic violence ............................................................................ 24
c. Article 5 ......................................................................................................................... 24
d. Article 6 ......................................................................................................................... 25
e. Article 7 ......................................................................................................................... 27
f. Article 9.......................................................................................................................... 27
g. Article 10 ....................................................................................................................... 28
h. Article 14 ....................................................................................................................... 28
i. Article 18 in conjunction with Articles 5 and 8 .............................................................. 28
j. Article 34 ........................................................................................................................ 29
k. Article 1 Protocol 1 ....................................................................................................... 30
List of cited cases ......................................................................................... 31

Note to readers
This Guide is part of the series of Case-Law Guides published by the European Court of Human Rights
(hereafter “the Court”, “the European Court” or “the Strasbourg Court”) to inform legal practitioners
about the fundamental judgments and decisions delivered by the Strasbourg Court. This particular
Guide analyses and sums up the case-law on Article 46 of the European Convention on Human Rights
(hereafter “the Convention” or “the European Convention”). Readers will find herein the key
principles in this area and the relevant precedents. The case-law cited has been selected among the
leading, major, and/or recent judgments and decisions.
The Court’s judgments and decisions serve not only to decide those cases brought before the Court
but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention,
thereby contributing to the observance by the States of the engagements undertaken by them as
Contracting Parties (Ireland v. the United Kingdom, 18 January 1978, § 154, Series A no. 25, and,
more recently, Jeronovičs v. Latvia [GC], no. 44898/10, § 109, 5 July 2016).
The mission of the system set up by the Convention is thus to determine, in the general interest,
issues of public policy, thereby raising the standards of protection of human rights and extending
human rights jurisprudence throughout the community of the Convention States (Konstantin Markin
v. Russia [GC], 30078/06, § 89, ECHR 2012). Indeed, the Court has emphasised the Convention’s role
as a “constitutional instrument of European public order” in the field of human rights (Bosphorus
Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 156, ECHR 2005-VI,
and, more recently, N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 110, 13 February
2020).
This Guide is supplemented by an Appendix which notes the main indications made by the Court
under Article 46, for many of the substantive Articles.
It should be noted that the Article 46 indications, to which the Guide and Appendix refer, do not
form part of the Court’s finding of a violation. As the Guide points out, such indications are not
binding in the same manner as the Court’s findings under the substantive Articles of the Convention
and they should be read in the context of the broader supervision mechanism governed by Article 46
of the Convention.
Protocol No. 15 to the Convention recently inserted the principle of subsidiarity into the Preamble to
the Convention. This principle “imposes a shared responsibility between the States Parties and the
Court” as regards human rights protection, and the national authorities and courts must interpret
and apply domestic law in a manner that gives full effect to the rights and freedoms defined in the
Convention and the Protocols thereto (Grzęda v. Poland [GC], § 324).
This Guide contains references to keywords for each cited Article of the Convention and its
Additional Protocols. The legal issues dealt with in each case are summarised in a List of keywords,
chosen from a thesaurus of terms taken (in most cases) directly from the text of the Convention and
its Protocols.
The HUDOC database of the Court’s case-law enables searches to be made by keyword. Searching
with these keywords enables a group of documents with similar legal content to be found (the
Court’s reasoning and conclusions in each case are summarised through the keywords). Keywords
for individual cases can be found by clicking on the Case Details tag in HUDOC. For further
information about the HUDOC database and the keywords, please see the HUDOC user manual.

The case-law cited may be in either or both of the official languages (English or French) of the Court and the
European Commission of Human Rights. Unless otherwise indicated, all references are to a judgment on the
merits delivered by a Chamber of the Court. The abbreviation “(dec.)” indicates that the citation is of a
decision of the Court and “[GC]” that the case was heard by the Grand Chamber. Chamber judgments that
were not final when this update was published are marked with an asterisk (*).

Introduction
1. One of the most significant features of the Convention system is that it includes a mechanism for
reviewing compliance with its provisions. Thus, the Convention not only requires the Contracting
States to observe the rights and obligations deriving from it (Article 1), but also establishes a judicial
body, the Court (Article 19), which is empowered to find violations of the Convention, through
judgments which the Contracting States have undertaken to abide by (Article 46 § 1). In addition, it
sets up a mechanism for supervising the execution of judgments, entrusted to the Committee of
Ministers (Article 46 § 2). Such a mechanism demonstrates the importance in the Convention system
of the effective implementation of the Court’s judgments (Verein gegen Tierfabriken Schweiz (VgT)
v. Switzerland (no. 2) [GC], 2009, § 84). In Kavala v. Türkiye [GC], 2022, the Court further underlined
that the whole structure of the Convention rests on the general assumption that public authorities in
the member States act in good faith. That structure includes the supervision procedure, and the
execution of judgments should also involve good faith and take place in a manner compatible with
the “conclusions and spirit” of the judgment. The failure to implement a final, binding judicial
decision would be likely to lead to situations incompatible with the principle of the rule of law which
the Contracting States undertook to respect when they ratified the Convention (§§ 169-170).
I. The content of Article 46

Article 46 of the Convention – Binding force and execution of judgments
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall
supervise its execution.
3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is
hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a
ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds
of the representatives entitled to sit on the Committee.
4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final
judgment in a case to which it is a party, it may, after serving formal notice on that Party and by
decision adopted by a majority vote of two thirds of the representatives entitled to sit on the
Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under
paragraph 1.
5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for
consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer
the case to the Committee of Ministers, which shall close its examination of the case.”

HUDOC keywords
Pilot judgment (46): Systemic problem (46); General measures (pilot judgment) (46); Individual measures
(pilot judgment) (46)
Abide by judgment (46-1) – Parties to case (46-1)
Execution of judgment (46-2):
Just satisfaction (46-2): Default interest (46-2); Freedom from attachment (46-2)
Individual measures (46-2): Reopening of proceedings (46-2); Pardon (46-2); Striking out of criminal
records (46-2)
General measures (46-2): Legislative amendments (46-2); Changes of regulations (46-2); Changes in
case-law (46-2)
Infringement proceedings (46-4)
2. The first paragraph of Article 46 sets out the obligation on the Contracting States to abide by the
Court’s judgments. The remaining paragraphs set the framework for the procedural modalities to
assess the steps taken by a State to fulfil its obligation.
A. When does Article 46 apply?

3. Article 46 applies to every judgment in which the Court has found a breach of the Convention.
Article 46 means that the Court’s finding imposes on the respondent State a legal obligation to put
an end to the breach and make reparation for its consequences (Papamichalopoulos and Others
v. Greece (Article 50), 1995, § 34).
B. The nature of the obligation under Article 46

1. In general
4. The Contracting State in question will be under an obligation not only to pay the applicant the
sums awarded by way of just satisfaction but also to take individual and/or, if appropriate, general
measures in its domestic legal order to put an end to the violation found by the Court and to redress
its effects (Ilgar Mammadov v. Azerbaijan [GC], 2019, § 147).
5. The State party to the case is, in principle, free to choose the means by which to comply with a
judgment in which the Court has found a breach. This discretion as to the manner of execution of a
judgment reflects the freedom of choice attaching to the primary obligation of the Contracting
States under the Convention to secure the rights and freedoms guaranteed (Papamichalopoulos and
Others v. Greece (Article 50), 1995, § 34).
a. Individual measures for the applicants concerned

6. A State responsible for a wrongful act is under an obligation to make restitution, consisting of
restoring the situation which existed before the wrongful act was committed, provided that
restitution is not “materially impossible” and “does not involve a burden out of all proportion to the
benefit deriving from restitution instead of compensation” (see Article 35 of the International Law
Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)1. In
other words, while restitution is the rule, there may be circumstances in which the State responsible
is exempted – fully or in part – from this obligation, provided that it can show that such
1
Article 35 of the International Law Commission’s Articles on Responsibility of States for Internationally
Wrongful Acts (ARSIWA).

circumstances obtain (Ilgar Mammadov v. Azerbaijan [GC], 2019, § 151). It is for the respondent
State to remove any obstacles in its domestic legal system that might prevent the applicant’s
situation from being adequately redressed (Maestri v. Italy [GC], 2004, § 47). As far as individual
measures are concerned, the aim of restitutio in integrum is to put the applicants, to the extent
possible, in the position in which they would have been had the requirements of the Convention not
been disregarded. In exercising their choice of individual measures, the State party must bear in
mind their primary aim of achieving restitutio in integrum (Ilgar Mammadov v. Azerbaijan [GC],
2019, § 150). Individual measures should be timely, adequate and sufficient to ensure the maximum
possible reparation for the violations found by the Court (ibid., § 170).
7. If the nature of the breach allows restitutio in integrum, it is for the respondent State to effect it.
If, on the other hand, national law does not allow – or allows only partial – reparation to be made for
the consequences of the breach, Article 41 empowers the Court to afford the injured party such
satisfaction as appears to it to be appropriate (Brumărescu v. Romania (just satisfaction) [GC], 2001,
§ 20).
b. General measures
8. General measures should prevent similar violations occurring. The Court has drawn attention to
the Recommendation of the Committee of Ministers of 12 May 2004 (Rec(2004)6) on the
improvement of domestic remedies2, in which the Committee of Ministers reiterates that the States
have the general obligation to solve the problems underlying violations found. Furthermore, under
the Convention, particularly Article 1, in ratifying the Convention the Contracting States undertake to
ensure that their domestic law is compatible with the Convention (Scordino v. Italy (no. 1) [GC],
2006, §§ 232-234).
2. In a particular case
9. The measures to execute the judgment taken by the respondent State must be compatible with
the conclusions and spirit of the Court’s judgment (Ilgar Mammadov v. Azerbaijan [GC], 2019,
§ 186). The scope of the legal obligations flowing from a final judgment under Article 46 is set by the
reasons for which the Court found the violation (ibid., § 187).
2
Recommendation of the Committee of Ministers of 12 May 2004 (Rec(2004)6) on the improvement of
domestic remedies.

II. Indications in the Court’s judgments under Article 46
A. Origin of the practice

10. As part of a package of measures to guarantee the effectiveness of the Convention machinery,
the Committee of Ministers adopted on 12 May 2004 a Resolution (Res(2004)3) on judgments
revealing an underlying systemic problem, in which, after emphasising the interest in helping the
State concerned to identify the underlying problems and the necessary execution measures (seventh
paragraph of the preamble), it invited the Court “to identify in its judgments finding a violation of
the Convention what it considers to be an underlying systemic problem and the source of that
problem, in particular when it is likely to give rise to numerous applications, so as to assist States in
finding the appropriate solution and the Committee of Ministers in supervising the execution of
judgments” (paragraph I of the resolution). The Court expressly referred to this resolution in the first
pilot judgment, looking at it in the context of the growth in its caseload, particularly as a result of
series of cases deriving from the same structural or systemic cause (Broniowski v. Poland [GC], 2004,
§ 190).
B. Status and purpose of such indications

11. While the Court’s judgments are essentially declaratory in nature, in certain special
circumstances it may seek to indicate the type of measure that might be taken in order to put an end
to a violation it has found to exist. Occasionally, the Court has included indications with relevance to
the execution process concerning both individual and general measures. However, taking account of
the institutional balance between the Court and the Committee of Ministers under the Convention,
and of the States’ responsibility in the execution process, the ultimate choice of the measures to be
taken remains with the States under the supervision of the Committee of Ministers (Ilgar
Mammadov v. Azerbaijan [GC], 2019, § 182). The inclusion or absence of an explicit statement
relevant to execution is not decisive for the question whether a state has fulfilled its obligations
under Article 46 § 1. What is decisive is whether the measures taken by the respondent State are
compatible with the conclusions and spirit of the Court’s judgment (ibid., § 186). The Court has
further clarified that limiting the supervision process to the Court’s explicit indications would remove
the flexibility needed by the Committee of Ministers to supervise, on the basis of the information
provided by the respondent State and with due regard to the applicant’s evolving situation, the
adoption of measures that are feasible, timely, adequate and sufficient (ibid., § 184). The Committee
of Ministers may review the indications relevant to execution, for example, where objective factors
which came to light after the Court’s judgment was delivered must be taken into account in the
supervision process (ibid., § 183).
12. The Court also explained that providing indications under Article 46, in the first place, enables
the Court to ensure, as soon as it delivers its judgment, that the protection afforded by the
Convention is effective and to prevent continued violation of the rights in issue and, subsequently,
assists the Committee of Ministers in its supervision of the execution of the final judgment. Such
indications also enable and require the State concerned to put an end, as quickly as possible, to the
violation of the Convention found by the Court (Kavala v. Türkiye [GC], 2022, § 148).

C. Types of indication
1. Indications under Article 46
a. What are they for?

13. With a view to helping the respondent State fulfil its obligations under Article 46, the Court may
seek to indicate the type of individual and/or general measures that might be taken in order to put
an end to the situation which it has found to violate the Convention (Suso Musa v. Malta, 2013,
§ 120).
14. The Court’s concern is to facilitate the rapid and effective correction of a defect identified in the
national system of human-rights protection. Once such a defect has been identified, the national
authorities have the task, subject to supervision by the Committee of Ministers, of taking –
retrospectively if necessary – the necessary measures of redress in accordance with the principle of
subsidiarity under the Convention, so that the Court does not have to reiterate its finding of a
violation in a series of comparable cases (Baybaşin v. the Netherlands, 2006, § 79; Aliyev
v. Azerbaijan, 2018, § 222).
b. When are they included?

– Indications under Article 46 in respect of the individual applicant (individual
measures)
15. In certain particular situations, the Court may find it useful or, indeed, even necessary to
indicate to the respondent Government the type of measures that might or should be taken by the
State in order to put an end to the situation that gave rise to the finding of a violation. Sometimes
the nature of the violation found may be such as to leave no real choice as to the individual
measures required (Hirsi Jamaa and Others v. Italy [GC], 2012, §§ 209-211; Assanidze v. Georgia
[GC], 2004, § 202; Al-Saadoon and Mufdhi v. the United Kingdom, 2010, § 171; Savriddin Dzhurayev
v. Russia, 2013, §§ 252-254; Taganrog LRO and Others v. Russia,* 2022, § 290).
16. As regards the reopening of proceedings, the Court does not have jurisdiction to order such a
measure. However, where an individual has been convicted following proceedings that have entailed
breaches of the requirements of Article 6 of the Convention, the Court may indicate that a retrial or
the reopening of the case, if requested, represents in principle an appropriate way of redressing the
violation. On the other hand, in some of its judgments the Court has itself explicitly ruled out the
reopening, following a finding of a violation of Article 6 of the Convention, of proceedings concluded
by final judicial decisions (Moreira Ferreira v. Portugal (no. 2) [GC], 2017, §§ 49 and 51, and also
Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, §§ 311-314). The issue of reopening proceedings
has also been considered where the Court has found a violation of Article 4 of Protocol No. 7 (right
not to be tried or punished twice). In the case concerned, the Court noted that in the particular
circumstances there was no obligation on the respondent State to reopen either set of proceedings
(Tsonyo Tsonev v. Bulgaria (no. 4), 2021, §§ 62-66).
c. When are they included?

– Indications under Article 46 in respect of a structural problem (general
measures)
17. Where the Court has found that the violation of the Convention is occurring or likely to occur in
similar situations, it has observed that general measures at the national level were undoubtedly
called for and that those measures should take into consideration the entire group of individuals
affected by the practice found to be in breach. Furthermore, the measures should be such as to
remedy the Court’s finding of a violation in respect of a general practice, so that the system

established by the Convention is not compromised by a large number of repetitive applications

stemming from the same cause (Baybaşin v. the Netherlands, 2006, § 79).
2. Pilot judgments
a. What are they for?
18. In order to facilitate effective implementation of its judgments, the Court may adopt a pilot
judgment procedure enabling it to identify clearly in a judgment the existence of structural problems
underlying the violations and to indicate specific measures or actions to be taken by the respondent
State to remedy them. This adjudicative approach is, however, pursued with due respect for the
Convention organs’ respective functions: it falls to the Committee of Ministers to evaluate the
implementation of individual and general measures under Article 46 § 2 of the Convention (Greens
and M.T. v. the United Kingdom, 2010, § 107).
19. Another important aim of the pilot-judgment procedure is to induce the respondent State to
resolve large numbers of individual cases arising from the same structural problem at the domestic
level, thus implementing the principle of subsidiarity which underpins the Convention system (Varga
and Others v. Hungary, 2015, § 96).
b. When are they adopted?

20. The Court has applied the pilot-judgment procedure in situations affecting a large number of
people and in which there is an urgent need to grant them speedy and appropriate redress at
domestic level. In finding that cases are suitable for the pilot judgment procedure the Court has also
taken into account the fact that the continuing existence of major structural deficiencies causing
repeated violations of the Convention is not only an aggravating factor as regards the State’s
responsibility under the Convention for a past or present situation, but is also a threat for the future
effectiveness of the supervisory system put in place by the Convention. It has also had regard to the
fact that the applicants’ situation cannot be detached from the general problem originating in a
structural dysfunction, which has affected large numbers of people and is likely to continue to do so
in future (Varga and Others v. Hungary, 2015, § 111, Rezmiveș and Others v. Romania, 2017, §§ 106-
111).
i. Procedural significance - disposal of similar cases

21. Since its judgment in Broniowski v. Poland [GC], 2004, it has been the Court’s consistent practice
to include in pilot judgments, in addition to rulings in the pilot case, various procedural decisions
concerning the future treatment of follow-up cases – those communicated to the respondent
Government and new applications alike. For instance, the Court has often decided to adjourn similar
cases pending the implementation of general measures by the respondent State. It has discontinued
its examination of similar applications already pending before it and suspended the processing of
any applications not yet registered at the date of delivery of the pilot judgment (Greens and M.T.
v. the United Kingdom, 2010, §§ 121-122). It has also anticipated its rulings on the admissibility of
pending and future cases, holding that, in certain circumstances, it may declare them inadmissible in
accordance with the Convention (Suljagić v. Bosnia and Herzegovina, 2009, § 65). Where
appropriate, the Court has decided to communicate, by virtue of the pilot judgment, all similar
applications lodged with it before the date of delivery of the judgment (Rutkowski and Others
v. Poland, 2015, §§ 226-227, and the ninth operative provision of the judgment). That practice,
embracing a range of solutions, reflects the rationale of the pilot-judgment procedure, according to
which all cases deriving from the same systemic root cause are incorporated into its framework and
absorbed into the execution process of the pilot judgment (Burmych and Others v. Ukraine, 2017,
§ 166).

22. Rule 61 § 6 of the Rules of Court provides for the possibility of adjourning the examination of all
similar applications pending the implementation of the remedial measures by the respondent State.
The Court has emphasised that adjournment is a possibility rather than an obligation, as clearly
shown by the inclusion of the words “as appropriate” in the text of Rule 61 § 6 and the variety of
approaches used in the previous pilot judgments (Varga and Others v. Hungary, 2015, § 114 with
further references).
23. In general, three types of approach can be identified in the Court’s case-law for the timescale of
adoption of general measures. Where the Court has previously identified the problem giving rise to
the violation but repetitive cases have continued to come to the Court, it has observed that the
lengthy delay thus far demonstrated the need for a timetable and indicated that timetable in the
pilot judgment (Greens and M.T. v. the United Kingdom, 2010, § 115). In other cases, the Court has
also considered that a reasonable time-limit was warranted for the adoption of the measures, given
the importance and urgency of the matter and the fundamental nature of the right at stake, but did
not find it appropriate to indicate a specific time frame, indicating that given the nature of the
problem the Government should take the appropriate steps as soon as possible (Varga and Others
v. Hungary, 2015, § 112). Finally, the Court has also considered that, having regard to the
importance and urgency of the problem identified and the fundamental nature of the rights in
question, a reasonable deadline had to be set for the implementation of the general measures.
However, it concluded that it was not for the Court to set such a deadline at that stage; the
Committee of Ministers was better placed to do so. The Court nevertheless set a period of six
months for the respondent Government to provide, in cooperation with the Committee of Ministers,
a precise timetable for the implementation of the appropriate general measures (Rezmives and
others v. Romania, 2017, § 126).
24. If the respondent State fails to adopt such measures following a pilot judgment and continues to
violate the Convention, the Court may have no choice but to resume the examination of all similar
applications previously adjourned (§ 20 above) and to adopt judgments in order to ensure effective
observance of the Convention (Rezmiveș and Others v. Romania, 2017, § 105).
25. Where the Court has resumed its examination of similar applications in the context of a pilot
judgment and the execution process for that judgment has failed to eliminate the root cause of the
systemic problem, the Court has found that this reexamination of all pending similar applications can
be incapable of achieving its intended purpose. In Burmych and Others v. Ukraine, 2017 (§§ 176-
199), the Court found that pending and future cases were part and parcel of the process of
execution of the pilot judgment. Recalling that the legal issues under the Convention had been
already resolved in the pilot judgment, the Court proceeded to strike the pending similar cases out
of its list. It considered that their resolution, including individual measures of redress, had to be
encompassed by the general measures of execution to be put in place by the respondent State
under the supervision of the Committee of Ministers. No useful purpose would be served, in terms
of the aims of the Convention, by the Court continuing to deal with these cases. The Court did
however recall that it retained the power to take the applications up again (Article 37 § 2), and
indicated that it might reassess the situation within two years to determine if it should do so
(Burmych and Others v. Ukraine, 2017, § 223).

III. Jurisdiction
A. Supervision of compliance
26. The question of compliance by the Contracting States with the Court’s judgments falls outside
the Court’s jurisdiction unless it is raised in the context of the “infringement procedure” provided for
in Article 46 §§ 4 and 5 of the Convention (Moreira Ferreira v. Portugal (no. 2) [GC], 2017, § 102).
Rather, under the second paragraph of Article 46, the function of supervising the execution of
judgments is entrusted to the Committee of Ministers.
27. Given the variety of means available to achieve restitutio in integrum and the nature of the
issues involved, in the exercise of its competence under Article 46 § 2 of the Convention, the
Committee of Ministers is considered to be better placed than the Court to assess the specific
measures to be taken. It is thus for the Committee of Ministers to supervise, on the basis of the
information provided by the respondent State and with due regard to the applicant’s evolving
situation, the adoption of such measures that are feasible, timely, adequate and sufficient to ensure
the maximum possible reparation for the violations found by the Court (Ilgar Mammadov
v. Azerbaijan [GC], 2019, § 155).3
28. The Committee is the executive body of the Council of Europe and as such its work has a political
character. That said, when supervising the execution of judgments it is fulfilling a particular task
which consists of applying the relevant legal rules. The execution process concerns compliance by a
Contracting Party with its obligations in international law under Article 46 § 1 of the Convention.
Those obligations are based on the principles of international law relating to cessation,
non-repetition and reparation as reflected in the ARSIWA. They have been applied over the years by
the Committee of Ministers and currently find expression in Rule 6.2 of the Rules of the Committee
of Ministers (Ilgar Mammadov v. Azerbaijan [GC], 2019, §§ 161-162).
29. Accordingly, the supervision mechanism under Article 46 of the Convention provides a
comprehensive framework for the execution of the Court’s judgments, reinforced by the Committee
of Ministers’ practice. Within that framework, the Committee’s continuous supervision work has
generated a corpus of public documents encompassing information submitted by respondent States
and others concerned by the execution process, and recording decisions taken by the Committee in
cases pending before it. That practice has also influenced general standard-setting in the
Committee’s Recommendations to the Member States on topics relevant to execution issues (for
example Recommendation R (2000) 2 on the re-examination or reopening of certain cases at
domestic level following judgments of the European Court of Human Rights4, or Recommendation
CM/Rec(2010)3 on effective remedies for excessive length of proceedings5). The result is that the
Committee of Ministers has developed an extensive acquis (Ilgar Mammadov v. Azerbaijan [GC],
2019, §§ 161-163).
30. Only in infringement proceedings under Article 46 § 4 is the Court required to make a definitive
legal assessment of the question of compliance. In so doing, the Court takes into consideration all
aspects of the procedure before the Committee of Ministers, including the measures indicated by
the Committee. The Court conducts its assessment having due regard to the Committee’s
conclusions in the supervision process, the position of the respondent Government and the
3
As to the competence of the Committee of Ministers to take account, when supervising the execution of a
judgment, post-judgment developments even where these form the basis of a new application to the Court,
see CM/Notes/1383/H46-17.
4
Recommendation No R (2000) 2 on the re-examination or reopening of certain cases at domestic level
following judgments of the European Court of Human Rights.
5
Recommendation CM/Rec(2010)3 on effective remedies for excessive length of proceedings.

submissions of the victim of the violation. In the context of infringement proceedings, the Court
identifies the legal obligations flowing from the final judgment, as well as the conclusions and spirit
of that judgment with a view to determining whether the respondent State has failed to fulfil its
obligations under Article 46 § 1 (Ilgar Mammadov v. Azerbaijan [GC], 2019, § 168). Infringement
proceedings do not aim to reopen the question of violation, already decided in the Court’s first
judgment, or provide for payment of a financial penalty: they seek to add political pressure in order
to secure execution of the Court’s initial judgment and were introduced to increase the efficiency of
the supervision proceedings, namely to improve and accelerate them (ibid., §§ 159-160). In a case in
which the Court finds a violation of Article 46 § 1 following infringement proceedings, the
Committee of Ministers remains competent under Article 46 § 5 to take the measures that it deems
necessary to ensure compliance with the obligations arising from the Court’s finding of such a
violation (Kavala v. Türkiye [GC], 2022, § 176). In reality, the finding of a violation of Article 46 § 1
means that the primary obligation resulting from the Court’s initial judgment, namely restitutio in
integrum with all the ensuing consequences, continues to exist (ibid., § 175).
31. The Court’s has jurisdiction, under Protocol No. 16, to give advisory opinions at the request of
designated domestic courts of the States that have ratified that instrument. The overall purpose is to
enhance subsidiarity within the Convention system by enabling a domestic court to receive guidance
from the European Court on questions of principle regarding the case-law of the Convention arising
in proceedings before the former. The Armenian Court of Cassation requested the Court’s advice on
the applicability of prescription periods in cases involving acts of torture. The domestic proceedings
at issue followed on directly from an earlier judgment of the Court, Virabyan v. Armenia, 2012,
where the Court had found both a substantive and a procedural violation of Article 3. Subsequently,
by way of execution of that judgment, new criminal charges were brought against two police officers
implicated in the ill-treatment of the applicant. At first and second instance it was held that the
relevant prescription period had elapsed so that the accused could not be held criminally
responsible. The prosecutor appealed, arguing that on account of the absolute prohibition of torture
in international law this should override any prescription of such acts in domestic law. The Court of
Cassation asked the European Court to indicate whether the non-application of the statute of
limitations in a case involving a breach of Article 3 of the Convention would be compliant with its
Article 7 of the Convention. This gave the Court the occasion to comment on both the difficulty that
States may encounter in the execution of judgments finding violations of Article 3 on account of
their rules on limitation, as well as on the solutions found by certain States as regards this difficulty.
The Court, through Protocol No. 16, thereby provided guidance to a domestic court in the context of
the latter’s involvement in the execution of a judgment, while the supervision of the process by the
Committee of Ministers was ongoing.
B. Related questions of admissibility

1. Article 35 § 2 (b)
32. The Committee of Ministers’ role in the sphere of execution of the Court’s judgments does not
prevent the Court from examining a new application concerning measures taken by a respondent
State in execution of a judgment if that application contains relevant new information relating to
issues undecided by the initial judgment. Measures taken by a respondent State to remedy a
violation found by the Court which raise a new issue undecided by the original judgment fall within
the Court’s jurisdiction and, as such, may form the subject of a new application that may be dealt
with by the Court (Guja v. the Republic of Moldova (no. 2), 2018, § 35). The fact that a supervision
procedure in respect of the execution of the judgment is still pending before the Committee of
Ministers does not prevent the Court from considering a new application in so far as it includes new
aspects which were not determined in the initial judgment (Moreira Ferreira v. Portugal (no. 2) [GC],
2017, § 57).

33. Reference should be made in this context to the criteria established in the case-law concerning
Article 35 § 2 (b), by which an application is to be declared inadmissible if it “is substantially the
same as a matter that has already been examined by the Court ... and contains no relevant new
information”. The Court must therefore ascertain whether the two applications brought before it by
the applicant association relate essentially to the same person, the same facts and the same
complaints (Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], 2009, § 63).
34. The determination of the existence of a “new issue” very much depends on the specific
circumstances of a given case, and distinctions between cases are not always clear-cut. So, for
instance, in Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], 2009, the Court
found that it was competent to examine a complaint that the domestic court in question had
dismissed an application to reopen proceedings following the Court’s judgment. The Court relied
mainly on the fact that the grounds for dismissing the application were new and therefore
constituted relevant new information capable of giving rise to a fresh violation of the Convention
(§ 65). It further took into account the fact that the Committee of Ministers had ended its
supervision of the execution of the Court’s judgment without taking into account the refusal to
reopen as it had not been informed of that decision. The Court considered that, from that
standpoint also, the refusal in issue constituted a new fact (§ 67). Similarly, in Emre v. Switzerland
(no. 2), 2011, the Court found that a new domestic judgment given following the reopening of the
case and in which the domestic court had proceeded to carry out a new balancing of interests,
constituted a new fact. It also observed in this respect that the execution procedure before the
Committee of Ministers had not yet commenced (cited in Egmez v. Cyprus (dec.), 2012, §§ 54-56).
35. Comparable complaints were, however, dismissed in Schelling v. Austria (no. 2) (dec.), 2010, and
Steck-Risch and Others v. Liechtenstein (dec.), 2010, as the Court considered, that on the facts, the
decisions of the domestic courts refusing the applications for reopening were not based on or
connected with relevant new grounds capable of giving rise to a fresh violation of the Convention.
Further, in Steck-Risch and Others v. Liechtenstein (dec.), 2010, the Court observed that the
Committee of Ministers had ended its supervision of the execution of the Court’s previous judgment
prior to the domestic court’s refusal to reopen the proceedings and without relying on the fact that
a reopening request could be made. There was no relevant new information in this respect either
(cited in Egmez v. Cyprus (dec.), 2012, §§ 54-56).
36. It cannot be said that the powers assigned to the Committee of Ministers by Article 46 are being
encroached on where the Court has to deal with relevant new information in the context of a fresh
application. From that standpoint also, if the Court were unable to examine a new fact, it would
escape all scrutiny under the Convention (Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland
(no. 2) [GC], 2009, § 67), and an applicant would be deprived, in case of a finding of a violation, of
the just satisfaction that might be awarded (Ivanţoc and Others v. Moldova and Russia, 2011, § 95).
Consequently, the Court and the Committee of Ministers, in the context of their different duties,
may be required to examine, even simultaneously, the same domestic proceedings without
upsetting the fundamental institutional balance between them (Kavala v. Türkiye [GC], 2022, § 155).
37. As regards the specific context of a continuing violation of a Convention right following adoption
of a judgment in which the Court has found a violation of that right during a certain period of time, it
is not unusual for the Court to examine a second application concerning a violation of that right in
the subsequent period (Ivanţoc and Others v. Moldova and Russia, 2011, § 87). In such cases, the
“new issue” results from the continuation of the violation that formed the basis of the Court’s initial
decision. The examination by the Court in the second application is, however, confined to the new
periods concerned and any new complaints invoked in this respect (Jurišić v. Croatia,* 2022, § 30).
For example, in Ivanţoc and Others v. Moldova and Russia, 2011, the Court concluded that the
question of the prolongation of the applicants’ arbitrary detention between 8 July 2004 [the date of
the Court’s initial judgment finding, inter alia, a violation of Article 5] and 2 and 4 June 2007
respectively fell within its jurisdiction (§ 93-96). In Wasserman v. Russia (no. 2), 2008, the Court

accepted jurisdiction of a new complaint which concerned a further period of almost two years after
its initial judgment of non-enforcement of a domestic decision in the applicant’s favour (§§ 36-37).
Similarly, in Jurišić v. Croatia,* 2022, the Court declared itself competent to examine the new
decisions on the applicant’s contact orders with his minor child adopted by the domestic authorities
after the Court’s initial judgment (§§ 32-33).
2. Article 35 § 3 (a)
38. The Court has declared a complaint under Article 46, in conjunction with the procedural limb of
Article 3, inadmissible under Article 35 § 3 (a) of the Convention where the applicant complained
that the authorities had misrepresented the scope of a previous striking-out decision of the Court
adopted after a unilateral decision by the Government in which the latter acknowledged that
degrading treatment had occurred during the applicant’s arrest (Boutaffala v. Belgium,* 2022, §§ 48-
54). Upon the applicant’s agreement, the Court took note of the implicit friendly settlement
between the parties and struck the application out of the list. In the second case before the Court,
the latter reiterated that it was very doubtful that Article 46 § 1 could be regarded as conferring
upon an applicant a right that could be asserted in proceedings originating in an individual
application to the Court. While the Court had previously examined several applications concerning
steps taken by a respondent State to execute a judgment of the Court – where those applications
had raised new issues not determined by the original judgment – the Court did not, outside of
proceedings instituted pursuant to the “infringement procedure” under Article 46 §§ 4 and 5, have
jurisdiction to verify whether a State Party had complied with the obligations laid down by one of its
judgments. Even assuming the applicant could rely on a breach of Article 46 taken in conjunction
with Article 3, it sufficed to note that the striking-out decision had not amounted to a judgment
finding a violation. The Court had merely taken note of the Government’s unilateral declaration, and
the applicant’s agreement to its terms, without having examined its admissibility, let alone its
merits. Consequently, the striking-out decision did not fall within the ambit of Article 46, which
concerned only final judgments. Moreover, where the parties had reached a friendly settlement, the
task of supervising its execution fell not to the Court but to the Committee of Ministers pursuant to
Article 39 § 4 of the Convention.
3. Article 35 § 3 (b)
39. The Court has also referred to the decisions of the Committee of Ministers taken in the context
of the supervision process to establish whether respect for human rights requires an examination of
the application on the merits (Rooney v. Ireland, 2013, § 34).
4. Article 37
40. The Court has referred to the principles under Article 46 when assessing whether to strike out a
case on the basis of a unilateral declaration under Article 37 § 1 (c) with reference to the acquis of
the Committee of Ministers (Taşdemir v. Turkey (dec.), 2019, § 20). The Court was satisfied that
respect for human rights as defined in the Convention and the Protocols thereto did not require it to
continue the examination of the application in particular given the clear and extensive case-law on
the topic. In particular, the Court considered that the nature and extent of the obligations arising
under the Convention for the respondent State had already been specified in a number of its
judgments. Furthermore, the prevailing issues had also sufficiently been brought to the attention of
the Committee of Ministers and were being followed up under the terms of Article 46 § 2 of the
Convention (ibid., § 22).
41. The Court has restored a case to its list despite its prior decision accepting the Government’s
unilateral declaration. In Willems and Gorjon v. Belgium, 2021, the applicants complained originally
about a restriction on their right of access to court. The case was struck out (37 § 1 c) of the

Convention) on the basis of a unilateral declaration by the Government which acknowledged that
the rejection of the applicants’ appeal by the Court of Cassation, for failure to respect a formality,
was contrary to Article 6. The applicants then sought to reopen the domestic proceedings, but the
Court of Cassation refused to do so, taking the view that the Government’s position could not bind
the courts, on account of the separation of powers. Moreover, it considered that the initial refusal
had not been contrary to the Convention. In view of this, the European Court restored the case to its
list and delivered a judgment on the complaint. It stated that, although its first examination of the
case had not led to a judgment so there was nothing to execute under Article 46, the applicants
were entitled to expect that the national authorities, courts included, would give effect in good faith
to the undertakings given by the Government in proceedings before the Court. It noted the parallels
between a decision taken on the basis of a unilateral declaration acknowledging a violation of an
individual’s rights and a judgment declaring a violation of the Convention. As part of its shared
responsibility for ensuring protection of human rights, the Court of Cassation should have drawn the
consequences within the domestic legal order of the Government’s declaration and of the Court’s
acceptance of it (Willems and Gorjon v. Belgium, 2021, §§ 54-66).

IV. Appendix
A. Relevant indications under Article 46 by Article

1. Introduction
42. This Appendix to the case-law Guide on Article 46 describes the main indications made by the
Court under Article 46, in relation to many of the substantive Articles.
a. Article 2
i. The substantive aspect

43. In cases where there was a risk of a violation of the applicants’ right to life, on account of
expulsion - actual or threatened - to a country where they faced the death penalty or other
circumstances which would be in violation of Article 2, the Court has indicated that the respondent
State should take all possible steps to obtain an assurance from the relevant State authorities of the
non-application the death penalty (Al-Saadoon and Mufdhi v. the United Kingdom, 2010, § 171;
Al Nashiri v. Poland, 2014, § 589)6.
ii. The procedural (effective investigation) aspect

44. The Court has on occasion expressly declined to give an indication that a Government should, as
a response to such a finding of a breach of Article 2, hold a fresh investigation into the death
concerned (Ülkü Ekinci v. Turkey, 2002, § 179). It has declined on the basis that it cannot be assumed
in such cases that a future investigation can usefully be carried out or provide any redress, either to
the victim’s family or to the wider public by ensuring transparency and accountability. The lapse of
time and its effect on the evidence and the availability of witnesses inevitably render such an
investigation unsatisfactory or inconclusive, by failing to establish important facts or put to rest
doubts and suspicions. Even in disappearance cases, where it might be argued that more is at stake
since the relatives suffer from the ongoing uncertainty about the exact fate of the victim or the
location of the body, the Court has refrained from issuing any declaration that a new investigation
should be launched. The Court has considered that it falls rather to the Committee of Ministers
acting under Article 46 of the Convention to address the issues as to what may be required in
practical terms by way of compliance in each case (Finucane v. the United Kingdom, 2003, § 89).
45. However, in some circumstances it has also indicated that it considered it inevitable that a new,
independent, investigation should take place under Article 46. That investigation should be in the
light of the terms of the Court’s judgment and with due regard to its conclusions in respect of the
failures of the investigation to date (Abuyeva and Others v. Russia, 2010, § 240)7. Where the
domestic investigation is still open, the Court may consider it appropriate to specify certain essential
6
For an example of this practice in the execution acquis see CM Resolution DH (90) 8 of 12 March 1990 in
Soering v. the United Kingdom, 1989, where the respondent State obtained diplomatic assurances that the
applicant would not be extradited to face offences which carried the death penalty.
7
It is the Committee’s position that respondent States have a continuing obligation to conduct effective
investigations: “when it comes to fresh investigations following a judgment of the European Court finding
shortcomings in the initial investigations, it is essential for the authorities to assess and inform the Committee
in detail of what investigatory steps can still be taken, what investigatory steps can no longer be taken for
practical or legal reasons, what means are deployed to overcome existing obstacles, and what concrete results
are expected to be achieved and within which time limit.” (See Corsacov v. Moldova, 2006, presentation at the
1208th CM-DH (23-25 September 2014; see also Gharibashvili v. Georgia, presentation at the 1222nd CM-DH
(March 2015).

steps that should now be taken, for example evaluating in light of all the known facts the actions of
State agents who used lethal force, and granting the next-of-kin access to key documents
(Gasangusenov v. Russia, 2021, § 102).
46. Where there was a risk that pending investigations could become time-barred, the Court has
indicated that the respondent State must put an end to the situation identified to ensure that an
investigation is not terminated by application of the statutory limitation of criminal liability. It has
given such indications bearing in mind the seriousness of the crimes, the large number of persons
affected, the relevant legal standards applicable to such situations in modern-day democracies, the
importance for society of knowing the truth about the events concerned and the fact that public
interest in obtaining the prosecution and conviction of the perpetrators is firmly recognised,
particularly in the context of war crimes and crimes against humanity (Association “21 December
1989” and Others v. Romania, 2011, §§ 189-195; Aslakhanova and Others v. Russia, 2012, § 237).
47. In other contexts and with reference to the Committee of Ministers’ acquis, the Court has
accepted that there may be situations where it is de jure or de facto impossible to reopen criminal
investigations into the incidents giving rise to the applications brought before it. Such situations may
arise, for example, in cases in which the alleged perpetrators were acquitted and cannot be put on
trial for the same offence, or in cases in which the criminal proceedings became time-barred on
account of the domestic statute of limitations. Indeed, reopening criminal proceedings that were
terminated on account of prescription may raise issues of legal certainty and thus have a bearing on
a defendant’s rights under Article 7 of the Convention. In a similar vein, putting the same defendant
on trial for an offence for which he or she has already been finally acquitted or convicted may raise
issues concerning that defendant’s right not to be tried or punished twice within the meaning of
Article 4 of Protocol No. 7 to the Convention (Taşdemir v. Turkey (dec.), 2019, § 14).
48. Similarly, the Court cannot overlook the possibility that if a long time has passed since the
incident took place, evidence might have disappeared, been destroyed or become untraceable and it
may therefore no longer be possible in practice to reopen an investigation and conduct it in an
effective fashion. Thus, whether a member State is under an obligation to reopen criminal
proceedings, and consequently whether a unilateral declaration should contain such an undertaking,
will depend on the specific circumstances of the case, including the nature and seriousness of the
alleged violation, the identity of the alleged perpetrator, whether other persons not involved in the
proceedings may have been implicated, the reason why the criminal proceedings were terminated,
any shortcomings and defects in the proceedings prior to the decision to bring them to an end, and
whether the alleged perpetrator contributed to the shortcomings and defects that led to the
criminal proceedings being brought to an end (Taşdemir v. Turkey (dec.), 2019, §§ 15-16).
49. The Court has noted that the fact that it may be impossible to reopen proceedings in cases
concerning complaints under Articles 2 and 3 of the Convention is not, in principle, an impediment
to the closure by the Committee of Ministers of its examination of the case under Article 46 of the
Convention. For example, following the Grand Chamber’s finding of a violation of the procedural
aspect of Article 3 of the Convention in the case of Jeronovičs, cited above, the applicant requested
the national prosecutor to reopen the investigation into his allegations. His request was rejected on
account of the expiry of the applicable period under the statute of limitations. The Committee of
Ministers considered that all the measures required by Article 46 § 1 of the Convention had been
adopted, and decided to close its examination of the case (see Resolution CM/ResDH(2017)312)
(Taşdemir v. Turkey (dec.), 2019, § 19).
iii. Specific issue: planning and control of operations

50. The Court has given indications where violations occurred in relation to the planning and control
of State operations deploying lethal force. It found that violations should be addressed by a variety
of both individual and general measures consisting of appropriate responses by the State

institutions, aimed at drawing lessons from the past, raising awareness of the applicable legal and
operational standards and deterring new violations of a similar nature. Such measures could include
further recourse to non-judicial means of collecting information and establishing the truth, public
acknowledgement and condemnation of violations of the right to life in the course of security
operations, and greater dissemination of information and better training for police, military and
security personnel in order to ensure strict compliance with the relevant international legal
standards. The prevention of similar violations in the future should also be addressed in the
appropriate legal framework, in particular ensuring that the national legal instruments pertaining to
large-scale security operations and the mechanisms governing cooperation between military,
security and civilian authorities in such situations are adequate, as well as clearly formulating the
rules governing the principles for and constraints on the use of lethal force during security
operations, reflecting the applicable international standards (Tagayeva and Others v. Russia, 2017,
§ 640).
51. With respect to the failure to investigate in such circumstances where the relevant investigation
was still open at national level and a number of important factual findings had been made it
considered that the specific measures required of the Russian Federation in order to discharge its
obligations under Article 46 of the Convention must be determined in the light of the terms of the
Court’s judgment, and with due regard to the conclusions drawn in respect of the failures of the
investigation carried out to date. In particular, this investigation should elucidate the main
circumstances of the use of indiscriminate weapons by the State agents and evaluate their actions in
consideration of all the known facts. It should also ensure proper public scrutiny by securing the
victims’ access to the key documents, including expert reports, which had been crucial for the
investigation’s conclusions on the causes of death and the officials’ responsibility (Tagayeva and
Others v. Russia, 2017, § 641).
b. Article 3
i. Substantive: expulsion
 Expulsion
52. As for Article 2, the Court has indicated that diplomatic assurances should be obtained from the
destination country that an applicant will not be subjected to treatment contrary to Article 3 on
return (M.A. v. France, 2018, § 91; Hirsi Jamaa and Others v. Italy, 2012, § 211).
53. More generally, in the absence of safeguards against the applicants being expelled from a
country to face circumstances that would be in violation of Article 3 (or 2), the Court has given
indications in respect of general measures to amend legislation, and ensure such change of
administrative and judicial practice so as to ensure that: (a) there exists a mechanism requiring the
competent authorities to consider rigorously, whenever there is an arguable claim in that regard, the
risks likely to be faced by an alien as a result of his or her expulsion on national security grounds, by
reason of the general situation in the destination country and his or her particular circumstances; (b)
the destination country should always be indicated in a legally binding act and a change of
destination should be amenable to legal challenge; (c) the above-mentioned mechanism should
allow for consideration of the question whether, if sent to a third country, the person concerned
may face a risk of being sent from that country to the country of origin without due consideration of
the risk of ill-treatment; (d) where an arguable claim about a substantial risk of death or
ill-treatment in the destination country is made in a legal challenge against expulsion, that legal
challenge should have automatic suspensive effect pending the outcome of the examination of the
claim; and (e) claims about serious risk of death or ill-treatment in the destination country should be
examined rigorously by the courts (Auad v. Bulgaria, 2011, § 139).

 Preventing torture, inhuman and degrading treatment

54. In Cestaro v. Italy, 2015, the Court found that the Italian criminal legislation had proved both
inadequate in terms of the requirement to punish the acts of torture at issue and devoid of any
deterrent effect capable of preventing similar future violations of Article 3. The structural nature of
the problem thus appeared to the Court to be undeniable. Moreover, having regard to the principles
set out in its case-law and the reasons for its finding, the Court considered that the same problem
arose in respect of the criminalisation, not only of acts of torture, but also of the other types of
ill-treatment prohibited by Article 3: in the absence of appropriate provision for all the types of ill-
treatment prohibited by Article 3 under Italian criminal legislation, statute-barring and remission of
sentence could, in practice, prevent the punishment not only of those responsible for acts of
“torture” but also of the perpetrators of “inhuman” and “degrading” treatment pursuant to the
same provision, despite all the efforts of the prosecuting authorities and the trial courts.
55. As regards the measures required to remedy that problem, the Court reiterated, first of all, that
the State’s positive obligations under Article 3 might include a requirement to establish an
appropriate legal framework, in particular by introducing effective criminal-law provisions. That
requirement also derived from other international instruments such as, inter alia, Article 4 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The
conclusions and recommendations of the UN Human Rights Committee, the UN Committee Against
Torture and the Council of Europe Committee for the Prevention of Torture, Inhuman and Degrading
Treatment also mention this. In that context, the Court considered it necessary for the Italian legal
system to introduce legal mechanisms capable of imposing appropriate penalties on those
responsible for acts of torture and other types of ill-treatment under Article 3 and of preventing
them from benefiting from measures incompatible with the case-law of the Court (Cestaro v. Italy,
2015, §§ 242-246).
ii. Procedural
56. It can be inferred from the Court’s case-law that the obligation of a Contracting State to conduct
an effective investigation under Article 3, as under Article 2, of the Convention persists as long as
such an investigation remains feasible but has not been carried out or has not met the Convention
standards. An ongoing failure to carry out the requisite investigation will be regarded as a continuing
violation of that provision which should be remedied by ensuring that the pending investigation is
reactivated without delay. Thereafter, in accordance with the applicable Convention principles, the
investigation should be brought to a close as soon as possible (Abu Zubaydah v. Lithuania, 2018,
§ 682).
iii. Specific issue: missing persons

57. In Aslakhanova and Others v. Russia, 2012, §§ 222-239, a case concerning a structural problem
of missing persons, the Court gave the following extensive indications under Article 46, the measures
falling into two principal groups:
 Situation of the victims’ families

58. The first and, in the Court’s opinion, the most pressing group of measures to be considered
concerned the suffering of the relatives of the victims of disappearances, who continued to remain
in agonising uncertainty as to the fate and the circumstances of the presumed deaths of their family
members. The Court had already found that a duty on the State to account for the circumstances of
the deaths and the location of the graves could be derived from Article 3 and it was apparent from
the Court’s previous judgments on the subject that the criminal investigations had been particularly
ineffective in this regard, resulting in a sense of acute helplessness and confusion on the part of the
victims. As a rule, investigations of abduction - in circumstances suggesting the carrying out of

clandestine security operations – did not reveal the fate of those who had disappeared. Despite the
magnitude and gravity of the problem, noted in many national and international reports, the
response to this aspect of human suffering by means of the criminal investigations remained
inadequate.
59. The Court went on to note one recurrent proposal: to create a single, sufficiently high-level body
in charge of solving disappearances in the region, which would enjoy unrestricted access to all
relevant information and would work on the basis of trust and partnership with the relatives of the
disappeared. This body could compile and maintain a unified database of all disappearances.
60. Another pressing need was the allocation of specific and adequate resources required to carry
out large-scale forensic and scientific work on the ground, including the location and exhumation of
presumed burial sites; the collection, storage and identification of remains and, where necessary,
systematic matching through up-to-date genetic databanks. It would appear reasonable to
concentrate the relevant resources within a specialised institution, based in the region where the
disappearances had occurred and, possibly, working in close cooperation with, or under the auspices
of, the specialist high-level body mentioned above.
61. Another aspect of the problem concerned the possibility of payment of financial compensation
to the victims’ families. The Court noted that, under certain circumstances, the payment of
substantial financial compensation, coupled with a clear and unequivocal admission of State
responsibility for the relatives’ “frustrating and painful situation”, could resolve the issues under
Article 3 of the Convention.
62. In the same vein, it did not rule out the possibility of unilateral remedial offers to the relatives in
cases concerning persons who had disappeared or had been killed by unknown perpetrators, where
there was prima facie evidence supporting allegations that the domestic investigation fell short of
what was necessary under the Convention. In addition to the question of compensation, such an
offer should at the very least contain an admission to that effect, combined with an undertaking by
the respondent Government to conduct, under the supervision of the Committee of Ministers in the
context of the latter’s duties under Article 46 § 2 of the Convention, an investigation in full
compliance with Convention requirements as defined by the Court in previous similar cases.
 Effectiveness of the investigation

63. The second group of measures the Court considered should be taken without delay related to
the ineffectiveness of the criminal investigation and the resulting impunity for the perpetrators of
what were the most serious of human rights abuses.
64. The Court accepted that many years after the events there would be considerable difficulty in
assembling eye-witness evidence or in identifying and mounting a case against any alleged
perpetrators. However, the Court’s case-law on the ambit of the procedural obligation was
unambiguous. Even if investigations might prove inconclusive or insufficient evidence might be
available, that outcome was not inevitable even at a late stage and the respondent Government
could not be absolved from making the requisite efforts. It could not therefore be said that there
was nothing further that could be done.
65. The continuing obligation to investigate the situations of known or presumed deaths of
individuals, where there was at least prima facie evidence of State involvement, remained in force
even if the humanitarian aspect of the case under Article 3 might be resolved.
66. Practically speaking, it was of the utmost importance that the disappearances which had
occurred in the region in the past became the subject of a comprehensive and concentrated effort
on the part of the law-enforcement authorities. In view of the clear patterns and similarities in the
occurrence of such events, it was vital to adopt a time-bound general strategy or action plan to
elucidate a number of the questions that were common to all the cases where it was suspected that

the abductions had been carried out by State servicemen. The plan should also include an evaluation
of the adequacy of the existing legal definitions of the criminal acts leading to the specific and
widespread phenomenon of disappearances.
67. Given their wide-ranging scope, the nature of the violations concerned and the pressing need to
remedy them, it appeared necessary to the Court that a comprehensive and time-bound strategy to
address these problems be prepared by the State without delay and submitted to the Committee of
Ministers for the supervision of its implementation.
iv. Specific Issue: conditions of detention

68. The Court has on a number of occasions given indications under Article 46 concerning
inadequate conditions of detention. In its thematic debates on conditions of detention, the
Committee of Ministers has grouped the elements to be addressed by respondent States under
Article 46 under structural measures designed to improve conditions and often reduce
overcrowding, and the introduction of remedies at domestic level both to prevent ill-treatment and
to compensate for ill-treatment suffered (see CM/Inf(2018)4). Recommendations and other
resources referred to in that document are also referenced in the indications given by the Court on
this topic (Ananyev and Others v. Russia, 2012, §§ 197-240; Torreggiani and Others v. Italy, 2013,
§§ 91-99; Rezmiveș and Others v. Romania, 2017, §§ 115-126; and Sukachov v. Ukraine, 2020,
§§ 126-161), from which the aspects noted below are drawn.
 Measures to reduce overcrowding and improve the material conditions of detention

69. Where a State is unable to guarantee that each prisoner is detained in conditions compatible
with Article 3 of the Convention, the Court encourages it to take action with a view to reducing the
prison population, for example by making greater use of non-custodial punitive measures,
minimising recourse to pre-trial detention and preventing the excessive duration of such detention.
70. It is not for the Court to indicate how States are to organise their criminal-law and penal
systems, since these processes raise complex legal and practical issues going beyond the Court’s
judicial function. The Court refers to the recommendations issued by the CPT, the assessments made
by the Committee of Ministers and to the recommendations set out in the White Paper on Prison
Overcrowding8, which identify a number of possible solutions to tackle overcrowding and
inadequate material conditions of detention.
71. With regards to pre-trial detention, the Court has noted that cells at police stations have been
found by the CPT and the Committee of Ministers to be “structurally unsuitable” for detention
beyond a few days and that these facilities are intended to house detainees for only very short
periods.
72. With regard to post-conviction detention, the Court has noted reforms focused on the reduction
of the maximum sentences for certain offences, the imposition of fines as an alternative to
imprisonment, discharge and suspension of sentences. Such measures, also coupled with a more
diverse range of alternatives to imprisonment, could have a positive impact in reducing the prison
population. Other possible options include relaxing the conditions for waiving the imposition of a
sentence, suspending sentences, and above all expanding the possibility of access to parole and
ensuring the effective operation of the probation service.
73. As to investment to create additional detention capacity, the Court has drawn attention to
Recommendation Rec(99)22 of the Committee of Ministers, according to which such a measure is
generally unlikely to offer a lasting solution to this problem. Furthermore, bearing in mind the
precarious physical conditions and poor state of hygiene in certain prisons, funds should also
8
European Committee on Crime Problems (CDPC) of the Council of Europe, June 2016

continue to be set aside for renovation work at existing detention facilities (Rezmiveș and Others
v. Romania, 2017, § 119).
 Remedies
74. As to the domestic remedy or remedies to be adopted in order to tackle the systemic problem
identified in cases of this sort, the Court has often stated that where conditions of detention are
concerned, the “preventive” and “compensatory” remedies have to be complementary. Thus, where
an applicant is held in conditions that are in breach of Article 3 of the Convention, the best possible
form of redress is to put a rapid end to the violation of the right not to be subjected to inhuman and
degrading treatment. Furthermore, anyone who has been detained in conditions undermining his or
her dignity must be able to obtain redress so that a specific compensatory remedy should be
introduced to allow appropriate compensation to be awarded (J.M.B. and Others v. France, 2020,
§ 316).
75. In this context, the Court has noted with interest legislative initiatives concerning the remission
of sentences, which may afford appropriate redress in respect of poor conditions of detention,
provided that, firstly, such a remission is explicitly granted to redress the violation of Article 3 of the
Convention and, secondly, it has a measurable impact on the sentence served by the person
concerned (Rezmiveș and Others v. Romania, 2017, § 125). Returning to the issue four years later,
the Court considered that the positive developments in domestic case-law regarding the availability
of damages for those who had endured inhuman and degrading conditions of detention allowed it to
find that an adequate compensatory remedy was now in place in Romania (Polgar v. Romania, 2021,
§§ 77-97 and § 108). However, it considered that the resurgence in prison overcrowding was such
that it could not regard the preventive remedy as effective; it encouraged the domestic authorities
to work to reduce the number of persons in prison to manageable levels (idem., § 107).
v. Specific Issue: domestic violence

76. There is a substantial body of Article 3 case-law concerning domestic violence, ill-treatment that
can take many forms, involving both serious physical violence against the victims as well as severe
emotional and psychological harm through fear, coercion, isolation, controlling behaviour, etc. In its
examination of such cases, the Court considers both the concrete facts of the case (effectiveness of
the response of the relevant authorities to the victim’s plight) as well as the adequacy of the
domestic framework (legislative, institutional, procedural, policy) in preventing domestic violence,
sanctioning the perpetrators and protecting the victims. In the case of Tunikova and Others v. Russia,
2021, the Court analysed in detail the gaps and shortcomings in the domestic system. It went on to
urge the respondent State under Article 46 to introduce legislative and other types of measures
without further delay, giving detailed indications on the comprehensive and targeted response
required, taking in all areas of State action. The indications given reflect the standards that have
emerged from the Court’s case-law, further inspired by the those elaborated by other international
actors, in particular the Council of Europe (Istanbul Convention) and the UN (CEDAW Convention).
They include amendments to the criminal law, the ready availability of protective measures, prompt
and proactive responses to complaints or other indications of domestic violence, changing public
perception of gender-based violence, providing information about protection and assistance to
victims, ensuring interagency cooperation, and training the various professionals who are likely to
encounter cases of domestic violence (see §§ 145-158 of the judgment).
c. Article 5
77. In some cases under Article 5, the Court has considered that the nature of the violation found
was such as to leave no real choice as to the measures required to remedy it and went on to indicate
those measures (see below under Article 9 concerning the deprivation of liberty and criminal
prosecution of Jehovah’s Witnesses in Russia in violation of several Articles of the Convention).

78. For example in Şahin Alpay v. Turkey, 2018, §§ 194-195, the Court considered that any
continuation of the applicant’s pre-trial detention would entail a prolongation of the violation of
Article 5 § 1 and a breach of the obligation on the respondent State to abide by the Court’s
judgment. Accordingly, having regard to the particular circumstances of the case, the reasons for its
finding of a violation and the urgent need to put an end to it, the Court considered that the
respondent State must ensure the termination of the applicant’s pre-trial detention at the earliest
possible date.
79. In S.K. v. Russia, 2017, §§ 134-135, the applicant was held in immigration detention. The Court
indicated both individual and general measures. It concluded that the applicant’s removal would be
in breach Articles 2 and 3 of the Convention and that his continued detention was in violation of
Article 5 § 1. It considered it appropriate that the applicant be released without delay and no later
than on the day following notification that the judgment had become final.
d. Article 6
80. Cases of excessive length of proceedings are frequent in the Court’s case-law and are often
linked to structural problems. The Committee of Ministers’ acquis in the execution phase is reflected
in Recommendation CM/Rec(2010)3 on effective remedies for excessive length of proceedings. That
document recommends a number of steps for States to take to resolve structural problems of
excessive length, and preferably introduce remedies which can both accelerate proceedings and
compensate for past delay. The Court also refers to that recommendation in its indications on this
topic.
81. The Court has indicated that where the judicial system is deficient with regard to the
reasonable-time requirement in Article 6 § 1 of the Convention, a remedy designed to expedite the
proceedings in order to prevent them from becoming excessively lengthy is the most effective
solution. Such a remedy offers an undeniable advantage over a remedy affording only compensation
since it also prevents a finding of successive violations in respect of the same set of proceedings and
does not merely repair the breach a posteriori, as does a compensatory remedy. The Court has
found that some States have understood the situation perfectly by choosing to combine two types of
remedy, one designed to expedite the proceedings and the other to afford compensation (Gazsó
v. Hungary, 2015, § 39).
82. The re-opening of criminal proceedings under Article 46 is also a well-established part of the
acquis of the Committee of Ministers in relation to Article 6. In only one member State,
Liechtenstein, is there no possibility of re-examining or reopening a criminal case on the basis of a
judgment delivered by the European Court of Human Rights (Moreira Ferreira v. Portugal (no. 2),
2017, § 39).
83. The re-opening of criminal proceedings is thus available to nearly all applicants who have
suffered a violation of Article 6 in its criminal limb. The Court sometimes refers to the availability of
that possibility in its indications stating that the most appropriate form of redress would, in
principle, be trial de novo or the reopening of the proceedings, if requested by the applicant (Öcalan
v. Turkey [GC], 2005, § 210, Sakhnovskiy v. Russia [GC], 2010, § 112).
84. However, the Court has also indicated that re-opening of the domestic proceedings would not
be a relevant measure given the particular circumstances of a case. In Henryk Urban and Ryszard
Urban v. Poland, 2010, (§§ 64-67) the Court gave such an indication where the violation was related
to the use of ‘assessors’ (a type of trainee judge whose dismissal could be ordered by the executive)
at first instance. It noted that the structural problem had already been rectified at domestic level
and where the Constitutional Court had found the role of ‘assessors’ to be unconstitutional. That
court had ruled it would not allow the reopening of the cases decided in the past by assessors on the
ground that it would undermine the principle of legal certainty and observed that in there was no
automatic correlation between that deficiency and the validity of each and every ruling given

previously by assessors in individual cases. The Court did not consider this interpretation to have
been arbitrary or manifestly unreasonable referring to its jurisprudence underlining the significance
of the principle of legal certainty in the context of final judicial rulings. One applicant made the
opposite argument before the Court, i.e., he argued that as his original prosecution had been
politically motivated there should not be a retrial following the Court’s finding of violations of Article
6, since the charges would still be baseless and the domestic courts would not be independent or
impartial. In its consideration of this point the Court simply recalled that, under domestic law, there
is provision for the reopening of proceedings in cases where a violation of the Convention has been
established and found it unnecessary to say anything further on the need for individual measures of
execution regarding the applicant (Nevzlin v. Russia, 2022, §§ 195-199).
85. The Court has given indications regarding other types of violation of Article 6. For example, it
identified a structural defect in Russian law in relation to the practice of test purchases of illegal
drugs, which lacked effective legal safeguards against abuse (entrapment). It indicated a need to
amend domestic law so as to provide for a clear and foreseeable procedure, for the authorisation of
such undercover operations by a judicial body providing effective guarantees against abuse. This
would in turn enable the domestic courts to carry out a proper review of entrapment complaints in
conformity with the Convention standard (Kuzmina and Others v. Russia, 2021, §§ 108-120).
86. There have been a number of judgments in which the Court has found that the applicant’s case
was not decided at domestic level by a “tribunal established by law” as required by Article 6, and it
has given consideration under Article 46 to what consequences should be drawn from such a finding.
In the case Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, the violation of Article 6 stemmed
from the intervention of the Minister of Justice in the procedure for appointing the judges of the
newly-created court of appeal, who failed to follow the statutory procedure. Under Article 46, and
regarding the applicant himself, the Court noted his position at the hearing that he did not wish the
original criminal proceedings against him to be reopened. It then clarified that the finding of a
violation did not as such impose an obligation on the domestic authorities to reopen all similar cases
in which the judgment had, by then, acquired final force (res judicata).9
87. A wider systemic problem was brought to light in the case of Dolińska-Ficek and Ozimek
v. Poland, 2021. The applicants complained that the newly created Chamber of Extraordinary Review
and Public Affairs of the Supreme Court did not meet the requirements of Article 6 in light of the
circumstances in which its members had been appointed. The Court ruled that the breaches of
domestic law that it had established in its judgment, and that arose from non-compliance with the
rule of law, the principle of the separation of powers and the independence of the judiciary,
inherently tarnished the procedure of judicial appointment. This failing was compounded by the
action of the Head of State, acting in blatant defiance of the rule of law by proceeding with the
appointments despite a court order suspending the procedure on foot of a legal challenge. The Court
stated that a procedure for appointing judges, which disclosed undue influence by the legislative and
executive powers over the appointment of judges, was per se incompatible with Article 6 § 1 of the
Convention and, as such, amounted to a fundamental irregularity adversely affecting the whole
process and compromising the legitimacy of a court composed of the judges so appointed. Under
Article 46, the Court decided not to give any specific indication, but by way of general guidance to
the authorities of the respondent State it pointed out that its conclusion could systematically affect
the future appointment of judges to all courts. Recalling that the legislative amendments of 2017
9
See also Grosam v. Czech Republic,* 2022, in which the Court found a violation of Article 6 § 1 on account of
insufficient procedural guarantees in the appointment procedure for lay members of the disciplinary chamber
of the Supreme Administrative Court acting as the disciplinary court for enforcement officers and in the lay
members’ protection from outside pressure once appointed, thereby not satisfying the requirements of an
independent and impartial tribunal. Under Article 46, the Court held that the finding of a violation could not as
such be taken to impose an obligation under the Convention to reopen all similar cases that had since become
res judicata in accordance with domestic legislation (§ 168).

were at the origin of the problem, it stated that rapid remedial action was required from the
domestic authorities.
88. The Court returned to this issue shortly afterwards in Advance Pharma sp. z o.o v. Poland, 2022.
It observed that the continued operation of the judicial appointments authority in its current form
was perpetuating the systemic dysfunction within the domestic judicial system, leading to further
aggravation of the rule of law crisis in that country. As for the consequences for final judgments
delivered by judicial formations including judges who had been appointed under the 2017 rules, the
Court noted that one option would be for the respondent State to take general measures based on
the position adopted by the Supreme Court when it issued an important ruling on the matter in early
2020 (cited in the judgment at § 127). However, it would ultimately be for the domestic authorities
to draw the necessary conclusions from the European Court’s reasoning and to take measures to
resolve the problems at the root of the violations established and to prevent similar violations in
future (see §§ 364-366).
e. Article 7
89. In the event of a violation of Article 7, the Court has sometimes indicated individual measures:
reopening the domestic proceedings at the applicant’s request (Dragotoniu and Militaru-Pidhorni
v. Romania, 2007, § 55, applying the same principle as where an individual has been convicted in
breach of Article 6 of the Convention); releasing the applicant at the earliest possible date (Del Río
Prada v. Spain [GC], 2013, § 139, having found a violation of Article 7 as well as of Article 5 § 1 of the
Convention); or requiring the respondent State to ensure that the applicant’s sentence of life
imprisonment is replaced by a sentence not exceeding thirty years’ imprisonment, pursuant to the
principle of the retroactivity of the lighter penalty (Scoppola v. Italy (no. 2) [GC], 2009, § 154 and
operative provision no. 6 (a)).
f. Article 9
90. In the context of Article 9 the Court has indicated that the re-opening of domestic proceedings
might offer the possibility of remedying the violation found (Biblical Centre of the Chiuvash Republic
v. Russia, 2014, § 66).
91. In Taganrog LRO and Others v. Russia,* 2022, the Court found several violations, notably of
Articles 9, 10 and 11, taken alone and in conjunction with and/or read in the light of each other, and
of Article 5. The case concerned, inter alia, the forced dissolution of the Jehovah’s Witnesses
Administrative Centre in Russia and of their local religious organisations; the characterisation as
“extremist” of Jehovah’s Witnesses’ publications and their international website; the domestic
courts’ failure to provide relevant and sufficient reasons and to uphold the adversarial nature of the
various proceedings when declaring these publications “extremist” and when prosecuting individual
members of Jehovah’s Witnesses; the arbitrary criminal prosecution of several applicants for
continuing to practice their religion; and the unlawful pre-trial detention of one individual applicant.
The Court considered that the continued prosecution and imprisonment of Jehovah’s Witnesses
would entail a prolongation of the violation of their rights and a breach of the obligation of Russia to
abide by the Court’s judgment under Article 46 § 1. It further noted that this view was consistent
with the requirement of release of all imprisoned Jehovah’s Witnesses addressed to Russia by the
UN Working Group on Arbitrary Detention. The Court consequently held that Russia had to take all
necessary measures to secure the discontinuation of all pending criminal proceedings against
Jehovah’s Witnesses and the release of all Jehovah’s Witnesses who had been deprived of their
liberty (§ 290). It included this indication also in the operative part of its judgment.

g. Article 10
92. In OOO Informatsionnoye Agentstvo Tambov-Inform v. Russia, 2021, the Court found a violation
of the freedom of expression of an online media outlet on account of rules imposing certain
restrictions on the media in the run-up to parliamentary elections. It considered these restrictions to
be based on a vague criterion that allowed a very wide discretion for the relevant authorities, and
pointed to the absence of specific regulation of online publications by media companies relating to
upcoming elections. It further noted the broad scope of the relevant rules, their lack of clarity in
certain respects and the overall uncertainty of the legal framework for media outlets. It called on the
respondent State to take the necessary measures to protect the freedom of expression of the media
(print and online) and to protect editorial independence during electoral campaigns, and to mitigate
the chilling effect on the media of the rules regulating “pre-election campaigning” (§§ 126-128).
h. Article 14
93. In Stoyanova v. Bulgaria,* 2022, the Court found a violation of Article 14 taken together with
Article 2 on account of the State’s response to the attack against the applicant’s son resulting in his
death and held that Bulgaria had not in sufficient measure discharged its duty to ensure that deadly
attacks motivated by hostility towards victims’ actual or presumed sexual orientation do not remain
without an appropriate response. Under Article 46, the Court noted that the violation appeared to
be of a systemic character, in that it resulted from the content of the relevant domestic criminal law,
as interpreted and applied by the domestic courts. Depending on how the matter was seen, the
breach resulted either from a lacuna in the Criminal Code, or from the way in which the domestic
courts construed and applied the relevant provisions of that Code. It was not for the Court to say
whether one or the other had to change to avoid future similar breaches. The Court concluded by
indicating that Bulgaria should ensure that violent attacks (in particular those resulting in the victim’s
death) motivated by hostility towards the victim’s actual or presumed sexual orientation were in
some way treated as aggravated in criminal-law terms, without construing criminal law extensively
to the accused’s detriment (§§ 78-79).
i. Article 18 in conjunction with Articles 5 and 8

94. The Court examined the respondent State’s obligations under Article 46 following a violation of
Article 18 in conjunction with Article 5 in Ilgar Mammadov v. Azerbaijan (Article 46 § 4) with
reference to its initial judgment in that case where no indication was given relevant to execution.
When the Grand Chamber examined the execution measures in the Article 46 § 4 judgment it found
that in light of its conclusion in relation to the nature of its finding of a violation of Article 18 in
conjunction with Article 5 in the first Mammadov judgment, Azerbaijan was required to eliminate
the negative consequences of the imposition of the charges which the Court found to be abusive. In
light of that conclusion, the first Mammadov judgment and the corresponding obligation of restituto
in integrum initially obliged the State to lift or annul the charges criticised by the Court as abusive,
and to end Mr Mammadov’s pre-trial detention. In fact, his pre-trial detention was brought to an
end when he was convicted by the first instance court in March 2014. However, the charges were
never annulled. On the contrary, his subsequent conviction was based wholly on them. Therefore,
the fact that he was later detained based on that conviction (rather than detained in pre-trial
detention) did not put him back in the position he would have been in had the requirements of the
Convention not been disregarded. The primary obligation of restitutio in integrum therefore still
required that the negative consequences of the imposition of the impugned criminal charges be
eliminated, including by his release from detention. The Court then went on to consider whether
restitutio in integrum in the form of eliminating the negative consequences of the imposition of the
criminal charges criticised by the Court as abusive was achievable, or whether that would be
“materially impossible” or “involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation”. As regards those elements, the Court found that there were

no obstacles to achieving restitutio in integrum. It therefore identified the corresponding obligation

of restitutio in integrum falling upon Azerbaijan under Article 46 § 1 as requiring Azerbaijan to
eliminate the negative consequences of the imposition of the criminal charges criticised by the Court
as abusive and to release Mr Mammadov from detention.
95. The Court has since decided, in a number of cases in which it found a violation of Article 18 in
conjunction with Article 5, to include an indication under Article 46 that the applicant should be
released immediately, along with an operative provision to that effect (see Kavala v. Turkey, 2019,
§§ 235-240). In Selahattin Demirtaş v. Turkey (no. 2) [GC], 2020, at the time of the Court’s judgment
the applicant was being held in pre-trial detention on different criminal charges to those impugned
in his application. However, as the new charges related to the same facts that the Court found to be
insufficient to justify depriving the applicant of his liberty, it still indicated that the applicant should
be released. Otherwise, it would be possible for the authorities to circumvent the right to liberty
(see §§ 440-442).
96. The Court was subsequently called upon, in the second infringement proceedings initiated by
the Committee of Ministers under Article 46 § 4, to examine the measures taken by Türkiye in
response to the Kavala v. Turkey, 2019, judgment finding a violation of Article 5 § 1, read separately
and in conjunction with Article 18. The Court stressed that, in contrast to the Ilgar Mammadov
v. Azerbaijan, 2014, judgment, the Kavala v. Turkey, 2019, judgment contained, in its reasoning and
operative provisions, an explicit indication as to how it was to be executed. The urgent need to put
an end to the violation of the detention in breach of Article 5 § 1 was all the more valid as the
violation originated in detention that had also been held to be contrary to Article 18 taken together
with Article 5 § 1. The Court considered that, in the absence of other relevant and sufficient
circumstances, a mere reclassification of the same facts could not in principle modify the basis for
those conclusions, since such a reclassification would only be a different assessment of facts already
examined by the Court. Were it otherwise, the judicial authorities could continue to deprive
individuals of their liberty simply by opening new criminal investigations in respect of the same facts.
Such a situation would amount to permitting the law to be circumvented and could lead to results
incompatible with the object and purpose of the Convention (Kavala v. Türkiye [GC], 2022, §§ 143-
148). The Court also underlined that in its analysis, it must look behind appearances and investigate
the realities of the situation complained of. If this were not the case, the obligation to comply with a
judgment delivered by the Court would be deprived of its substance in practice (ibid., § 162). The
Court concluded that the measures indicated by Türkiye did not permit it to conclude that Türkiye
had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the Kavala
v. Turkey, 2019, judgment, or in a way that would make practical and effective the protection of the
Convention rights which the Court had found to have been violated in that judgment (ibid., § 173).
97. In other cases relating to Article 18 the Court has indicated that general measures to be taken by
the respondent State must focus, as a matter of priority, on the protection of critics of the
government, civil society activists and human-rights defenders against arbitrary arrest and
detention. The measures to be taken must ensure the eradication of retaliatory prosecutions and
misuse of criminal law against this group of individuals and the non-repetition of similar practices in
the future (Aliyev v. Azerbaijan, 2018, §§ 223-228).
j. Article 34
98. In cases where there has been a violation of Article 34 and the matter concerns an expulsion,
deportation or abduction, the applicant is often outside the territory of the respondent state by the
time the Court has found a violation. In such cases, the Court has noted the fact that the applicant
remains outside the respondent State’s jurisdiction arguably makes it more difficult for the latter to
reach him and take remedial measures in his favour. However, these are not circumstances that in
themselves exempt the respondent State from its legal obligation to take all measures within its
competence in order to put an end to the violation found and make reparation for its consequences.

While specific necessary measures may vary depending on the specificity of each case, the obligation
to abide by the judgment commands the respondent State, subject to the supervision of the
Committee of Ministers, to find out and use in good faith such legal, diplomatic and/or practical
means as may be necessary to secure to the maximum possible extent the applicant’s right which
the Court has found to have been violated. Also, it remains a fortiori open to the respondent State to
take those individual measures that lie totally within its own jurisdiction, such as carrying out an
effective investigation into the incident at issue in order to remedy the procedural violations found
by the Court (Savriddin Dzhurayev v. Russia, 2013, §§ 253-255).
k. Article 1 Protocol 1
99. The Court has given indications relevant to execution in a number of cases concerning Article 1
Protocol 1 such as issues related to property rights arising in the context of structural problems
(Broniowski v. Poland [GC], 2004, § 190).
100. In such cases the Court has indicated that the respondent State must first and foremost either
remove all obstacles to the effective exercise of the right in question by the large numbers of
persons who, like the relevant applicants, were affected by the situation found by the Court to be
incompatible with the Convention, or, failing that, it must provide appropriate redress (Maria
Atanasiu and others v. Romania, 2010, § 231; Broniowski v. Poland [GC], 2004, § 194). The latter
element usually implies the establishment of a remedy enabling persons who have lost their
property to secure compensation reasonably related to its market value (Krasteva and others
v. Bulgaria, 2017, § 34).
101. The Court has also observed that balancing the rights at stake, as well as the gains and losses of
the different persons affected by the process of transforming the State’s economy and legal system,
is an exceptionally difficult exercise involving a number of different domestic authorities. Therefore
it considered that the respondent State must have a considerable margin of appreciation in selecting
the measures to secure respect for property rights or to regulate ownership relations within the
country, and in their implementation (Maria Atanasiu and others v. Romania, 2010, § 233).
102. In cases where the interference originated in rent control laws, the Court indicated that the it
should be remedied in the sense of enabling landlords to collect rents related to the free-market
value and that the State should introduce, as soon as possible, a specific and clearly regulated
compensatory remedy in order to provide genuine and effective relief for the breach found (Bittó
and Others v. Slovakia, 2014, §§ 134-135).
103. In a case in which the violation was due to the absence of procedural safeguards, with the
result that those affected by an interference with their property rights (cancellation of shares and
bonds) could not effectively challenge the measures taken by the national authorities, the Court
underlined that it was essential to give the applicants an avenue towards effective legal protection.
This should be done as soon as it became possible (after the conclusion of pending constitutional
proceedings). Given that a period of several years had passed since the interference occurred, the
Court further stressed the importance of avoiding any further unnecessary delays in the
determination of the applicants’ claims (Pintar and Others v. Slovenia, 2021, § 114).

List of cited cases
The case-law cited in this Guide refers to judgments or decisions delivered by the Court and to
decisions or reports of the European Commission of Human Rights (“the Commission”).
Unless otherwise indicated, all references are to a judgment on the merits delivered by a Chamber
of the Court. The abbreviation “(dec.)” indicates that the citation is of a decision of the Court and
“[GC]” that the case was heard by the Grand Chamber.
Chamber judgments that are not final within the meaning of Article 44 of the Convention are marked
with an asterisk in the list below. Article 44 § 2 of the Convention provides: “The judgment of a
Chamber shall become final (a) when the parties declare that they will not request that the case be
referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of
the case to the Grand Chamber has not been requested; or (c) when the panel of the Grand
Chamber rejects the request to refer under Article 43”. In cases where a request for referral is
accepted by the Grand Chamber panel, the Chamber judgment does not become final and thus has
no legal effect; it is the subsequent Grand Chamber judgment that becomes final.
The hyperlinks to the cases cited in the electronic version of the Guide are directed to the HUDOC
database (http://hudoc.echr.coe.int) which provides access to the case-law of the Court (Grand
Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory
opinions and legal summaries from the Case-Law Information Note), and of the Commission
(decisions and reports) and to the resolutions of the Committee of Ministers.
The Court delivers its judgments and decisions in English and/or French, its two official languages.
HUDOC also contains translations of many important cases into more than thirty non-official
languages, and links to around one hundred online case-law collections produced by third parties. All
the language versions available for cited cases are accessible via the ‘Language versions’ tab in the
HUDOC database, a tab which can be found after you click on the case hyperlink.
—A—
Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010
Abu Zubaydah v. Lithuania, no. 46454/11, 31 May 2018
Advance Pharma sp. z o.o v. Poland, no. 1469/20, 3 February 2022
Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, ECHR 2010
Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, 20 September 2018
Al Nashiri v. Poland, no. 28761/11, 24 July 2014
Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012
Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, 18 December 2012
Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004-II
Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, 24 May 2011
Auad v. Bulgaria, no. 46390/10, 11 October 2011
—B—
Baybaşin v. the Netherlands, no. 13600/02, 6 July 2006
Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, 12 June 2014
Bittó and Others v. Slovakia, no. 30255/09, 28 January 2014

Boutaffala v. Belgium,* no. 20762/19, 28 June 2022

Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-V
Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, ECHR 2001-I
Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, 12 October 2017
—C—
Cestaro v. Italy, no. 6884/11, 7 April 2015
Claes and Others v. Belgium, nos. 46825/99 and 6 others, 2 June 2005
Corsacov v. Moldova, no. 18944/02, 4 April 2006
—D—
Dolińska-Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19, 8 November 2021
Del Río Prada v. Spain [GC], no. 42750/09, ECHR 2013
Dragotoniu and Militaru-Pidhorni v. Romania, nos. 77193/01 and 77196/01, 24 May 2007
—E—
E.G. v. Poland (dec.), no. 50425/99, 23 September 2008
Egmez v. Cyprus (dec.), no. 12214/07, 18 September 2012
Emre v. Switzerland (no. 2), no. 5056/10, 11 October 2011
—F—
Finucane v. the United Kingdom, no. 29178/95, ECHR 2003-VIII
—G—
Gasangusenov v. Russia, no. 78019/17, 30 March 2021
Gazsó v. Hungary, no. 48322/12, 16 July 2015
Gençel v. Turkey, no. 53431/99, 23 October 2003
Gharibashvili v. Georgia, no. 11830/03, 29 July 2008
Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, ECHR 2010
Grosam v. Czech Republic,* no. 19750/13, 23 June 2022
Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, 1 December 2020
Guja v. the Republic of Moldova (no. 2), no. 1085/10, 27 February 2018
—H—
Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, 30 November 2010
Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012

—I—
Ilgar Mammadov v. Azerbaijan [GC], no. 15172/13, 29 May 2019
Ivanţoc and Others v. Moldova and Russia, no. 23687/05, 15 November 2011
—J—
J.M.B. and Others v. France, nos. 9671/15 and 31 others, 30 January 2020
Jurišić v. Croatia,* no. 8000/21, 7 July 2022
—K—
Kavala v. Turkey, no. 28749/18, 10 December 2019
Kavala v. Türkiye [GC], no. 28749/18, 11 July 2022
Krasteva and Others v. Bulgaria, no. 5334/11, 1 June 2017
Kuzmina and Others v. Russia, nos. 66152/14 and 8 others, 20 April 2021
—M—
M.A. v. France, no. 9373/15, 1 February 2018
Maestri v. Italy [GC], no. 39748/98, ECHR 2004-I
Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, 12 October 2010
Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, 11 July 2017
—N—
Nevzlin v. Russia, no. 26679/08, 18 January 2022
Novruk and Others v. Russia, nos. 31039/11 and 4 others, 15 March 2016
—O—
Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005-IV
OOO Informatsionnoye Agentstvo Tambov-Inform v. Russia, no. 43351/12, 18 May 2021
—P—
Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, Series A no. 330-B
Pelladoah v. the Netherlands, 22 September 1994, Series A no. 297-B
Pintar and Others v. Slovenia, nos. 49969/14 and 4 others, 14 September 2021
Polgar v. Romania, no. 39412/19, 20 July 2021
—R—
Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017
Rooney v. Ireland, no. 32614/10, 31 October 2013
Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, 7 July 2015

—S—
S.K. v. Russia, no. 52722/15, 14 February 2017
Şahin Alpay v. Turkey, no. 16538/17, 20 March 2018
Saïdi v. France, 20 September 1993, Series A no. 261-C
Sakhnovskiy v. Russia [GC], no. 21272/03, 2 November 2010
Savriddin Dzhurayev v. Russia, no. 71386/10, ECHR 2013
Schelling v. Austria (no. 2) (dec.), no. 46128/07, 16 September 2010
Scoppola v. Italy (no. 2), no. 10249/03, 17 September 2009
Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006-V
Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, 22 December 2020
Smith v. the United Kingdom, no. 64729/01, 20 May 2008
Soares de Melo v. Portugal, no. 72850/14, 16 February 2016
Soering v. the United Kingdom, 7 July 1989, Series A no. 161
Steck-Risch and Others v. Liechtenstein (dec.), no. 629061/08, 11 May 2010
Stoyanova v. Bulgaria,* no. 56070/18, 14 June 2022
Sukachov v. Ukraine, no. 14057/17, 30 January 2020
Suljagić v. Bosnia and Herzegovina, no. 27912/02, 3 November 2009
Suso Musa v. Malta, no. 42337/12, 23 July 2013
—T—
Taganrog LRO and Others v. Russia,* nos. 32401/10 and 19 others, 7 June 2022
Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, 13 April 2017
Taşdemir v. Turkey (dec.), no. 52538/09, 12 March 2019
Torreggiani and Others v. Italy, nos. 43517/09 and 6 others, 8 January 2013
Tsonyo Tsonev v. Bulgaria (no. 4), no. 35623/11, 6 April 2021
Tunikova and Others v. Russia, nos. 55974/16 and 3 others, 14 December 2021
—U—
Ülkü Ekinci v. Turkey, no. 27602/95, 16 July 2002
—V—
Varga and Others v. Hungary, nos. 14097/12 and 5 others, 10 March 2015
Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR 2009
Virabyan v. Armenia, no. 40094/05, 2 October 2012
—W—
Wasserman v. Russia (no. 2), no. 21071/05, 10 April 2008
Willems and Gorjon v. Belgium, nos. 74209/16 and 3 others, 21 September 2021

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Guide on Article 46

of the European Convention

Binding force and execution

Updated on 31 August 2022

Prepared by the Registry. It does not bind the Court.

European Court of Human Rights 2/34 Last update: 31.08.2022

I. The content of Article 46 ........................................................................... 6

II. Indications in the Court’s judgments under Article 46 .............................. 9

III. Jurisdiction ............................................................................................ 13

IV. Appendix .............................................................................................. 18

European Court of Human Rights 3/34 Last update: 31.08.2022

 Preventing torture, inhuman and degrading treatment .................................... 21

List of cited cases ......................................................................................... 31

European Court of Human Rights 4/34 Last update: 31.08.2022

European Court of Human Rights 5/34 Last update: 31.08.2022

I. The content of Article 46

European Court of Human Rights 6/34 Last update: 31.08.2022

A. When does Article 46 apply?

B. The nature of the obligation under Article 46

a. Individual measures for the applicants concerned

European Court of Human Rights 7/34 Last update: 31.08.2022

European Court of Human Rights 8/34 Last update: 31.08.2022

II. Indications in the Court’s judgments under Article 46

A. Origin of the practice

B. Status and purpose of such indications

European Court of Human Rights 9/34 Last update: 31.08.2022

a. What are they for?

b. When are they included?

c. When are they included?

European Court of Human Rights 10/34 Last update: 31.08.2022

established by the Convention is not compromised by a large number of repetitive applications

b. When are they adopted?

i. Procedural significance - disposal of similar cases

European Court of Human Rights 11/34 Last update: 31.08.2022

European Court of Human Rights 12/34 Last update: 31.08.2022

European Court of Human Rights 13/34 Last update: 31.08.2022

B. Related questions of admissibility

European Court of Human Rights 14/34 Last update: 31.08.2022

European Court of Human Rights 15/34 Last update: 31.08.2022

European Court of Human Rights 16/34 Last update: 31.08.2022

European Court of Human Rights 17/34 Last update: 31.08.2022

A. Relevant indications under Article 46 by Article

i. The substantive aspect

ii. The procedural (effective investigation) aspect

European Court of Human Rights 18/34 Last update: 31.08.2022

iii. Specific issue: planning and control of operations

European Court of Human Rights 19/34 Last update: 31.08.2022

European Court of Human Rights 20/34 Last update: 31.08.2022

 Preventing torture, inhuman and degrading treatment

iii. Specific issue: missing persons

 Situation of the victims’ families

European Court of Human Rights 21/34 Last update: 31.08.2022

 Effectiveness of the investigation

European Court of Human Rights 22/34 Last update: 31.08.2022

iv. Specific Issue: conditions of detention

 Measures to reduce overcrowding and improve the material conditions of detention

European Court of Human Rights 23/34 Last update: 31.08.2022

v. Specific Issue: domestic violence

European Court of Human Rights 24/34 Last update: 31.08.2022

European Court of Human Rights 25/34 Last update: 31.08.2022