CONCURRING OPINION OF JUDGE KELLER

1. I agree with my concurring colleagues Judges Spano and Kjølbro that the present case raises an important issue with regard to Article 46 of the Convention. I also share their concern that the attempt in the judgment to reconcile diverging case-law, by distinguishing the present case from Emre v. Switzerland (no. 2) (no. 5056/10, 11 October 2011), is not entirely convincing and that the Court has in part failed to address some important questions with regard to Article 46 of the Convention. However, whilst my colleagues make an arguable case that the object and purpose of Article 46 of the Convention warrant a departure from the Court’s approach in the Emre (no. 2) judgment , I shall explore an alternative reading of the Convention which attempts to take into account the broader perspective of the Court’s evolving role with respect to the implementation of its judgments.

2. According to the Court’s established case-law, a complaint from an individual who invokes the failure of the State to execute or comply with a judgment finding a violation will be declared inadmissible ratione materiae with the provisions of the Convention (among many examples, see Günes v. Turkey (dec.), no. 17210/09, 2 July 2013). At the same time, however, it is undisputed that the Committee of Ministers’ role in the sphere of execution of the Court’s judgments does not prevent the Court from examining a fresh 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 (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 61-63, ECHR 2009).

3. As is highlighted in the concurring opinion of my colleagues, the current case-law on the question diverges to a certain extent. While in Emre (no. 2 ) a Chamber of the Second Section found a violation of Article 46 in conjunction with Article 8 of the Convention, in The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) (nos. 41561/07 and 20972/08, 18 October 2011), a Chamber of the Fourth Section assessed the applicants’ complaint only under Article 11, while stating that it is “very doubtful whether Article 46 § 1 may be regarded as conferring upon an applicant a right that can be asserted in proceedings originating in an individual application” (§ 66).

4. It follows that the crucial issue underlying the present case is the extent to which the Court may assess admissible follow-up applications not only under a substantive right (of which there has allegedly been a fresh or continuing breach) but also under Article 46. In that respect, my colleagues argue in their concurring opinion that the Court should generally be precluded from assessing whether a judgment was duly executed, because this is a task for which the Committee of Ministers is exclusively responsible and because Article 46 does not confer ascertainable rights on individuals that may be invoked before the Court.

5. I concur that Article 46 of the Convention does not confer on individuals a freestanding right that may be invoked separately before the Court. There is no doubt that such an interpretation would not only go against the well-established case-law referred to above (see § 2) but would also fundamentally challenge the separation of powers between the Court and the Committee of Ministers (Article 46 § 2 of the Convention).

6. That being so, however, this does not in my view hinder the Court from assessing an admissible follow-up application also under Article 46, as it did in Emre (no. 2) . In fact, the Grand Chamber had already stated in VgT (no. 2) that the Convention must always be read as a whole and that the examination of whether there has been a fresh violation of a substantive Article must take into account the importance in the Convention system of effective execution of the Court’s judgments in accordance with Article 46 of the Convention (see VgT (no. 2) , § 83). In the same judgment, the Grand Chamber also made reference to Article 32 § 1 of the Convention, according to which the Court’s jurisdiction extends “to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34 and 47”. Moreover, Article 19 of the Convention provides that it is the Court’s task “to ensure the observance of the engagements undertaken by the High Contracting Parties” to the Convention, one of which also appears to be the obligation to comply with the Court’s judgments (Article 46 § 1 of the Convention). In light of VgT (no. 2) and the above-cited provisions of the Convention, I am not convinced that the Court’s jurisdiction to consider an admissible follow ‑ up application also under Article 46 of the Convention is necessarily dependent on the prior recognition of an individual right under the said Article. Contrary to what my concurring colleagues suggest, the introduction of the infringement procedure under Article 46 § 4 of the Convention seems, in fact, to confirm that the Court may examine the execution of a judgment under Article 46, despite the absence of an individual right in that regard.

7. A difficult question remains, of course, namely that of ascertaining in which situations the Court may examine a follow-up application under Article 46 and make a finding in this respect without thereby encroaching upon the powers of the Committee of Ministers. Arguably, we could have addressed this question in greater detail in the judgment. Although we conclude that the applicants’ complaint under Article 46 of the Convention is closely linked to the complaint under Article 14 read in conjunction with Article 8 (see paragraph 105 of the judgment), by distinguishing it from Emre (no. 2) we decided to examine the complaint solely under the latter provisions. One may ask whether the distinction we employ between the present application and Emre (no. 2) is fully convincing (see paragraph 104 of the present judgment). For instance, the statement that the abrogation of the KGB Act of 1999 is a general measure and therefore to be supervised by the Committee of Ministers seems to imply that the Court can only examine individual measures under Article 46. In my view, such a differentiation would have warranted more careful reasoning.

8. In cases such as the present one, I see two possible criteria for establishing the Court’s competence under Article 46 of the Convention. First, one can rely on the material link between the fresh application and the issue of non-execution. The argument here is that whenever a fresh or continuing violation of the Convention is the (direct) result of the failure by a State to comply with a previous judgment by the Court, it becomes highly artificial, if it is even possible, to separate the occurrence of the fresh or continuing violation from questions of implementation. Therefore, the Court should be in a position not only to examine the substantive rights under the Convention but also to make an incidental finding under Article 46 of the Convention on the execution of a judgment. Such an approach would, however, imply that the Emre (no. 2) precedent has so far been applied in an overly restrictive manner (see, in particular, Bochan v. Ukraine (no. 2) , no. 22251/08 [GC], §§ 33–39, 5 February 2015). A second approach would be to link the Court’s competence in follow-up applications to its practice under Article 46 (compare § 9 below). One could argue, for instance, that the Court can only make a finding under Article 46 in conjunction with a substantive provision in those cases in which it actually indicated specific measures under Article 46 (individual or general) in a previous judgment. The Court’s jurisdiction to review incidentally the execution of its judgments could then be justified in that, in such cases, the leeway of the Committee of Ministers in exercising its supervisory functions has already been considerably reduced by the fact that the Court had identified certain measures necessary to execute the first judgment. However, the problem of this second approach is that Emre (no. 2) itself was, in fact, a case in which the Court, in its first judgment, did not give any indications as to how it was to be executed.

9. Finally, the present case should also be appraised with due regard to the broader context of the Court’s role in the implementation of its judgments. In the Convention system today, securing judgment compliance is increasingly perceived as the shared responsibility of a multitude of actors, including the Court. [1] The Court’s case-law under Article 46 has, in certain situations, continuously evolved towards indicating to the respondent State the specific individual or general measures required for implementing a judgment (see, for instance, Oleksandr Volkov v. Ukraine, no. 21722/11, 9 January 2013, §§ 193 et seq.). An interesting formulation in this regard was chosen by the Court very recently in the case of Mukhitdinov v. Russia (no. 20999/14, 21 May 2015, not final yet). In § 109 of that judgment, “being concerned with ensuring binding force and execution of the present judgment”, the Court saw itself “compelled to examine certain aspects of the present case under Article 46 of the Convention.” The question with which we are confronted in the present case and the Court’s role in the post-judgment phase must be viewed within this evolving context, in which the complementary role of the Court during the execution of its own judgments has gradually become acknowledged. [2]

10. To summarise, it is not asserted that Article 46 of the Convention confers an ascertainable, freestanding right on individuals that may be invoked separately before the Court. However, where an admissible claim of a fresh or continuing violation of a substantive provision of the Convention is closely linked to non-compliance with a previous judgment of the Court, there are good reasons why the Court should be in a position to assess the applicants’ complaints also under Article 46 and to make an incidental finding thereunder . Whilst such an approach may neither correspond to the traditional “Convention wisdom” nor to the interpretation offered by my concurring colleagues, it is in line with the evolving role of the Court under Article 46 of the Convention and the current trend of interpreting implementation as a shared responsibility. In my view, therefore, the present case would have been a good opportunity to confirm the Emre (no. 2) judgment more explicitly and to clarify the scope of application of this peculiar precedent in more detail.