The execution of final judgments and vested rights

Abstract

The European Court of Human Rights [hereinafter Eur. Ct. H.R.] renders declaratory judgments with which it determines that a violation of a right guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms [hereinafter ECHR] has occurred. A problem arises when the Eur. Ct. H.R. exceeds its remit and examines a questio facti or questio juris which falls outside the scope of the facts put forward by the parties. This usually takes place in cases in which applicants complain of the failure to enforce res judicata judicial decisions. Because of the excessive length of procedures before the Eur. Ct. H.R. it may occur that, during the period, a third person becomes vested with some property right in assets that is subject to execution by the Defendant State. In such types of cases it is not unusual for the Eur. Ct. H.R. to declare that i) the enforcement is either no longer possible, or ii) it would disproportionately interfere with the rights of third parties. This article considers the clash between the right to have a final judgment fully executed and the right to have vested rights protected. It demonstrates that the Eur. Ct. H.R. has a duty to examine, under all circumstances, whether there has been a violation of Art. 6, even if it had simultaneously determined a violation of Art. 1 of Protocol No. 1. One cannot find the ground in the ECHR's protection system which would empower the Eur. Ct. H.R. to sacrifice the guaranteed right of an individual to have a final judgment fully executed for the benefit of any third party.