Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting in December 2024

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📅 From the 3rd to the 5th of December 2024, the Committee of Ministers will meet for their quarterly Human Rights Meeting. During this meeting, the Committee of Ministers will examine 55 leading judgments of the European Court of Human Rights that are pending implementation. 

📚 EIN members and partners, other civil society actors, lawyers and applicants have made 38 Rule 9 submissions in 28 leading cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.

 

Overview of Submissions

 

X and Others v. Albania 

Violation: Failure to implement swift and comprehensive desegregation measures in an elementary school attended almost exclusively by Roma and Egyptian children. 

Last examination: First examination 

Latest submission(s): 1514th meeting (December 2024) (DH) - Rule 9.2 - Communication from an NGO (The European Roma Rights Centre) (21/10/2024) concerning the case of X and Others v. Albania (Application No. 73548/17) [anglais uniquement] [DH-DD(2024)1252] 

 

Oganezova v. Armenia 

Violation: Lack of protection against homophobic attacks and hate speech; failure to carry out effective investigation; absence of effective domestic criminal-law mechanism for investigating discrimination complaints. 

Last examination: June 2023 - CM/Del/Dec(2023)1468/H46-1 

Latest submission(s): 1514th meeting (December 2024) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Pink Armenia, EHRAC, ILGA Europe) (21/10/2024) concerning the case of Oganezova v. Armenia (Application No. 71367/12) and reply from the authorities (29/10/2024) [anglais uniquement] [DH-DD(2024)1244]

 

Mammadli group v. Azerbaijan 

Violation: Arrest and pre-trial detention to punish the applicants for his activities in the area of electoral monitoring or for their active social and political engagement in breach of Article 18 taken in conjunction with Article 5. 

Last examination: September 2024 - CM/Del/Dec(2024)1507/H46-4 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from NGOs (Free Voices Collective (FVC), Independent Lawyers Network (ILN), European Human Rights Advocacy Centre (EHRAC) and International Partnership of Human Rights (IPHR)) (08/08/2024) concerning the group of cases Mammadli v. Azerbaijan (Application No. 47145/14) [anglais uniquement] [DH-DD(2024)941]

 

Namat Aliyev group v. Azerbaijan 

Violation: Various irregularities in the context of the 2005 and 2010 parliamentary elections and lack of safeguards against arbitrariness. 

Last examination: March 2020 - CM/Del/Dec(2020)1369/H46-4 

Latest submission(s): 1514th meeting (December 2024) (DH) - Rule 9.2 - Communication from an NGO (Free Voices Collective) (17/10/2024) concerning the NAMAT ALIYEV group of cases v. Azerbaijan (Application No. 18705/06) [anglais uniquement] [DH-DD(2024)1240]

 
 

Sargsyan v. Azerbaijan 

Violation: Impossibility for persons displaced during the active military phase (1992-1994) of the Nagorno-Karabakh conflict to gain access to their homes and properties in the region; lack of effective remedies. 

Last examination: September 2024 - CM/Del/Dec(2024)1507/H46-5 

Latest submission(s): 1514th meeting (December 2024) (DH) - Rule 9.1 - Communication from the applicant (22/10/2024) concerning the case of SARGSYAN v. Azerbaijan (Application No. 40167/06) [anglais uniquement] [DH-DD(2024)1220]

 
 
 
 
 

Basu v. Germany 

Violation: Lack of independent effective investigation into arguable allegations of racial profiling by the police during identity check on a train. 

Last examination: First examination 

Latest submission(s): 1514th meeting (December 2024) (DH) - Rules 9.2 and 9.6 - Communication from an NHRI (German Institute for Human Rights) (09/10/2024) in the case of Basu v. Germany (Application No. 215/19) and reply from the authorities (18/10/2024) [anglais uniquement] [DH-DD(2024)1202-rev]

 
 

Cordella and Others group v. Italy 

Violation: Lack of reaction on the part of the authorities to air pollution by steelworks, to the detriment of the surrounding population’s health and lack of an effective remedy to obtain decontamination of the affected areas. 

Last examination: June 2022 - CM/Del/Dec(2022)1436/H46-11 

Latest submission(s): 1514th meeting (December 2024) (DH) - Rule 9.2 - Communication from an NGO (StraLi for Strategic Litigation) (25/10/2024) concerning the group of cases Cordella and Others v. Italy (Application No. 54414/13) [anglais uniquement] [DH-DD(2024)1284]

 
 
 
 

Al Nashiri group v. Poland 

Violation: Various violations related to the secret detention and "extraordinary rendition” of the applicant. As a result, the applicant was exposed to a serious risk of further ill-treatment and conditions of detention in breach of Article 3 as well as of further secret detention. He faces a risk of capital punishment in a trial before a United States military commission in which, according to the European Court's judgment, evidence obtained under torture might be used. 

Last examination: September 2023 - CM/Del/Dec(2023)1475/H46-23 

Latest submission(s): 1514th meeting (December 2024) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Human Rights in Practice) (23/10/2024) concerning the cases of HUSAYN (ABU ZUBAYDAH) v. Poland (Application No. 7511/13) (Al Nashiri group, 28761/11) and Abu Zubaydah group v. Lithuania (Application No. 46454/11) and reply from Poland (31/10/2024). [anglais uniquement] [DH-DD(2024)1309]

 
 
 
 
 

Kavala v. Türkiye 

Violation: Unjustified and extended detention of the applicant without reasonable suspicion and with the ulterior purpose of reducing him to silence. 

Last examination: September 2024 - CM/Del/Dec(2024)1507/H46-37 

Latest submission(s): 1514th meeting (December 2024) (DH) - Rule 9.1 - Communication from the applicant (25/11/2024) concerning the case of Kavala v. Türkiye (Application No. 28749/18) [anglais uniquement] [DH-DD(2024)1415] 

 

Conference - Structural Problems in Prisons: Prospects for European Intervention

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On November 18-19th, the European Prison Litigation Network, together with the European Implementation Network, are organising an international conference ‘Structural Problems in Prisons: Prospects for European Intervention’.

Since the early 2000s, increased intervention by Council of Europe (CoE) bodies has led to the definition of a legal status for prisoners, increasingly precise obligations for states to guarantee their fundamental rights, and guidance on prison and penal policy. Similarly, since 2016, the Court of Justice of the European Union (EU) has considered systemic deficiencies in prison conditions as an obstacle to judicial cooperation between EU member states.

Yet European prison systems continue to suffer from structural problems: prison overcrowding remains acute in more than a quarter of CoE countries, and the average European incarceration rate rose in 2023 for the first time in a decade.

Based on these observations, the European Prison Litigation Network and its partners have conducted a study in nine countries (Belgium, Bulgaria, France, Greece, Hungary, Italy, Poland, Portugal and Romania) to assess the effectiveness of European interventions in addressing systemic problems in prison systems.

  • What penological model emerges from the judgements of the European Court of Human Rights and the guidance provided by other bodies of the Council of Europe to Member States?

  • What is the impact of European intervention on national penal and prison policies?

  • Could greater synergies between the CoE and the EU offer stronger levers of reform at national level to tackle structural problems in prisons?

  • Will the control that the EU intends to exercise over prison and judicial reform in EU candidate countries such as Ukraine or Moldova strengthen the Union’s demands for Member States overall in the long term?

This conference brings together representatives of European and national institutions involved in penal and prison policy, academics, and representatives of civil society to discuss the key challenges for tackling structural problems in prisons and for the effective implementation of the European Convention on Human Rights and the EU Charter of Fundamental Rights in European prisons.

With speakers from European and national institutions, academia, and civil society, including:

  • Marc Nève President of the EPLN, President of the CCSP (Belgian NPM for Prisons), former Vice-President of the CPT

  • Ioulietta Bisiouli Director of the EIN

  • Kateřina Šimáčková ECtHR Judge

  • Mykola Gnatovskyy ECtHR Judge, former President of the CPT

  • Gilberto Felici ECtHR Judge

  • Martin Mühleck European Commission, DG NEAR

  • Simon Creighton Vice-President of the EPLN, Solicitor specialising in prison law and tribunal judge with expertise in mental health issues

  • Georgiana Gheorghe Executive Director of APADOR-CH

  • Zsófia Moldova Director of the Justice Programme, Hungarian Helsinki Committee

  • Oleh Tsvilyi Former prisoner, Head of Protection for Prisoners of Ukraine

  • Annie Kensey Researcher, CESDIP

  • Sonja Snacken Professor, Vrije Universiteit Brussel

As well as many other speakers! Full programme to be announced soon.

 

In partnership with:

With the support of:

Funded by:

 
 

Independence of the Judiciary in Poland: The Venice Commission against the possibility of a blanket removal of all neo-judges 

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On October 14th, the Venice Commission (VC) and Directorate General Human Rights and Rule of Law of the Council of Europe (“DGI”) issued a landmark joint Opinion on European standards regulating the status of judges, on the basis of four questions raised by the Minister of Justice of Poland on the issue of neo-judges in Poland. This issue stems from the appointment of over 2,500 judges through a politicised National Council of the Judiciary (KRS), reconstituted in 2017 in the context of far-reaching judicial reforms introduced by the then ruling Law and Justice party (PiS), which had been found by the VC, in a 2017 Opinion, to “enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element of the rule of law”. In the same vein, European and Polish courts had continued addressing fundamental concerns raised about judicial independence in Poland, ruling on multiple occasions that neo-judges do not meet independence standards.

In July 2024, the Polish Minister of Justice, Adam Bodnar seized the Venice Commission with four questions linked to two models to address the issue of neo-judges, with a view to reducing the risk that the chosen solution may conflict with the ECHR and EU law. Without assessing directly the models proposed, the assessment of the Venice Commission concludes that a wholesale invalidation ex tunc of all the appointment decisions of the Polish NCJ (and thus a blanket return of all neo-judges to their previous positions) does not fit into the rule of law concept, as it would among others fail the proportionality test and the principle of separation of powers. Instead, the VC recommends adopting a case-by-case approach (which does not necessarily mean an individual approach, but can also involve considering grouped categories (“cohorts”) of similar appointments, in any event on the basis of pre-established criteria), giving the right to affected judges to seek judicial review against the invalidation of their nomination or promotion in case the decisions on invalidation are not taken by a judicial body.

While reaffirming the importance of legal certainty, the Opinion acknowledges that there may be circumstances in which the reassignment of a judge to another position (including the possibility of delegating judges to the courts where they served prior to the enactment of the impugned law) is unavoidable. Yet, transitional arrangements that may be needed have to be surrounded by adequate guarantees. The Opinion finally concludes that a number of safeguards should be put in place to guarantee an adequate balance between the principles of court established by law as element of fair trial and res judicata as element of legal certainty. These include, inter alia, the provision of a mechanism that would be suitable for a fairly rapid settlement of the issue and would introduce time limits to the cases that can be challenged.

Relevance of the VC Opinion for the implementation of ECtHR cases related to the independence of the Polish judiciary

During the EIN Rule of Law Conference which took place in The Hague last June, the issue of the independence of the Polish Judiciary was discussed alongside the role that the VC could play in Poland carrying out the judicial reform in accordance with European standards. Dr. Bodnar had discussed the status of reforms and measures required for the implementation of European Court judgments concerning the independence of the Polish judiciary, as well as the important challenges that need to be overcome along the way.

He notably stressed out the need for guidelines to shape rule of law-upholding efforts and the importance of involving all legal and political forces in this process, including civil society and international actors. In Dr. Bodnar’s view, the binding nature of the Convention standards and the Court’s case-law cannot be disregarded. It is a fundamental obligation of members states, and Poland must take into account existing jurisprudence of the ECtHR and their implementation in the context of the judicial reform. The Venice Commission echoes this position by linking its Opinion first and foremost with Poland’s obligation to execute the judgments of the ECtHR, while respecting international and constitutional standards.

Further, the Opinion of the Venice Commission reflects the thrust of the recommendations formulated by the Helsinki Foundation for Human Rights in relation with the Reczkowicz v. Poland group of cases during the September 2024 EIN civil society briefing, in particular concerning the introduction of a fair procedure for individual verification of appointments before an independent NCJ, with a right of appeal to court. This group of cases concerns the procedurally flawed judicial appointments, undermining the independence and legality of the judicial bodies involved in deciding the applicants' cases. It is one of the most important rule of law-related cluster of Polish cases currently supervised by the Committee of Ministers (CM) of the Council of Europe. At the September 2024 CM-DH meeting, the Committee of Ministers – having called for a comprehensive reform addressing the status of deficiently appointed judges and the status of judgments adopted with their participation – noted that the authorities were seeking advice from the Venice Commission and called on them to elaborate and adopt the reform without further delay, to ensure the required urgent remedial action and address the grave underlying problems.

The Opinion of the VC is therefore of strong importance in a twofold manner: It does not only serve as a guide for the planned judicial reform in Poland, which is expected to set an important precedent, and must therefore succeed in striking a fair balance between the rule of law and legal certainty principles; it is furthermore bound to help avoid future ECtHR violations by setting a roadmap to ensure that the balance between these two principles is maintained in a Convention-compliant manner, should similar concerns arise in other jurisdictions. Importantly, the Opinion ultimately reiterates the fundamental importance of respect for the binding nature of Article 46 of the Convention, even in the face of acute legal and political dilemmas, and serves as yet another reaffirmation of the role of the Venice Commission as a highly specialised international body that can assist the member States in navigating their responsibilities deriving from the Convention in the light of the subsidiary nature of the ECtHR judgments.

 

EIN Board elects new chair and vice-chair

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Maciej Nowicki, the Chair of the Polish Helsinki Foundation for Human Rights and Dr. Ramute Remezaite, the Senior Legal Consultant and Implementation Lead at the European Human Rights Advocacy Centre, have been elected as the new chair and vice-chair of the European Implementation Network.

They replace Professor Başak Çalı and Professor Philip Leach following their hugely successful eight-year tenure as Chair and Vice-Chair of EIN.

EIN started off with 8 founding members and has grown today to encompass 41 members spanning 25 Council of Europe countries.

Under the leadership of Professors Çalı and Leach, EIN has provided capacity-building support to thousands of human rights lawyers and civil society organisations in Europe to effectively engage with human rights judgment implementation advocacy. In this period, the EIN also enabled non-implementation, deficient implementation and slow implementation of human rights judgments to be firmly placed on the agenda of Council of Europe, the European Union, national governments and national human rights institutions.

‘We are extremely proud of what we have achieved building Europe’s leading civil society network advocating for the full and effective implementations of human rights judgments as co-founders of EIN’ said Çalı and Leach.

‘I am looking forward to leading this important network on behalf of the Polish Helsinki Foundation, one of the co-founding members. EIN’s role on keeping the implementation of human rights judgments on the European and Polish agenda has been a major support for the Polish Helsinki Foundation for Human Rights’ remarked Maciej Nowicki.

Dr. Ramute Remezaite, whose role in the founding of the EIN was instrumental back in 2016 said ‘The implementation of the judgments of the European Court of Human Rights have been central to my work as a human rights lawyer and academic in the past decade. It is an absolute honor for me to lead this organization in its next phase together with Maciej Nowicki.’ 

The efforts of the EIN Bureau will also be supported by Georgiana Georghe, Executive Director at Association for the Defence of Human Rights in Romania (APADOR-CH), who has been elected as Secretary. 

Justice Delayed and Justice Denied: Report on the Non-Implementation of European Judgments and the Rule of Law

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The European Implementation Network (EIN) and Democracy Reporting International (DRI) are delighted to present the third edition of our flagship report “Justice Delayed and Justice Denied: Non-Implementation of European Courts’ Judgments and the Rule of Law,” a joint report on the non-implementation of European Court judgments in EU states.

The attacks on fundamental European values in recent years have continued to raise concern for European stakeholders – governments, the media, and citizens alike. The EU has introduced a series of policy measures designed to halt and reverse this phenomenon, ranging from the new annual rule of law review cycle, to targeted measures, such as withholding structural funds from countries with severe infringements of the rule of law.

In 2022, following civil society calls for the EU’s rule of law reporting to take into account the non-implementation of judgments from the two key European courts – the ECtHR and the CJEU (hereafter, “the European Courts”) – the EU Commission has included this type of data in its annual Rule of Law Report. This development allowed the EU to identify longer-term problems with the rule of law across all Member States that had previously been overlooked.

Summary of our findings

A Systemic Rule of Law Problem in the European Union

The non-implementation of European courts' rulings by EU member states, which has long been growing into a systemic problem, is now unequivocally recognised as a rule of law matter. Non-implementation undermines the authority and effectiveness of both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The EU member states are bound by the rulings of these courts. Yet, national authorities fail to make their laws and practices consistent with the European Convention on Human Rights and EU law requirements respectively.

Implementation Delays Lead to Human Rights Infringements

“Behind these statistics are numerous individual stories of people who found relief in Europe’s highest courts, only to realise that, all too often, states do not implement these decisions. Major themes of concern are conditions of detention, police ill-treatment; mental disability rights and psychiatry; LGBTIQ+ rights and discrimination; asylum and migration.”
— Justice Delayed, Justice Denied 2024 Report

Significant gains for the upholding of democratic principles and the rule of law provenly result from effectively implementing the European Courts’ rulings. That notwithstanding, governments' responses to the non-implementation crisis fall short of expectations, often ranging from sluggishness in following the European Courts’ guidance to active resistance thereto and extreme attempts to undermine these courts’ authority. These delays in implementing judgments lead to prolonged rule of law and human rights infringements and have far-reaching consequences for individuals who are denied timely justice.

State Compliance Record with the European Court of Human Rights (ECtHR) Judgments

As of January 1 2024, 624 leading ECtHR judgments were awaiting implementation across the EU, slightly up from 616 in 2022 and 602 in 2021. Each of these represents a human rights problem that has not been resolved – and which, therefore, is likely to recur.

Currently, 44% of the leading judgments from the past decade remain unimplemented, compared to 40% in 2022 and 37.5% in 2021. This means that the systemic human rights issues these judgments identify have not yet been resolved; it indicates that national authorities in Europe are not sufficiently active in dealing with a significant proportion of human rights issues identified by the ECtHR.

In 2023, the average length of time leading ECtHR judgments concerning EU states had been pending implementation for was 5 years and 2 months, compared to 5 years and 1 month in 2022 and 4 years and 4 months in 2021. Some cases require extensive reforms that can – and should – take many years to implement. It should, however, be possible to implement the majority of leading judgments in a relatively short period of time. The longer leading judgments have been pending, the greater the concern that implementation is not being carried out.

Bulgaria, Finland, Greece, Hungary, Ireland, Italy, Malta, Poland, Portugal and Romania have leading judgments that have not been implemented for more than five years. In Bulgaria, Cyprus, Hungary, Italy, Malta, Poland, Romania, Slovakia, and Spain, over 50% of the leading judgments rendered against them in the last ten years are yet to be implemented. In Bulgaria and Romania, more than 85 leading judgments are pending implementation.

In 2023, Hungary remained the state with the highest percentage of ECtHR rulings issued in the last ten years that await implementation – 76%. But when we look at the highest absolute number of the same type of judgements, it is Romania, with 115 unimplemented rulings, that leads the count.

Sweden, Luxembourg, Denmark, Estonia are among the top performers in terms of implementation of ECtHR rulings, whereas Finland recorded an impressive progress in clearing its backlog of non-implemented judgments in the course of 2023.

State Compliance Record with the Court of Justice of the European Union (CJEU) Rulings Related to the Rule of Law

Our analysis of state compliance reveals that some EU member states comply with the CJEU rulings only partially – they follow the CJEU guidance to some extent but fall short of achieving full compliance. A significant portion of those rulings have been pending for two years or more. We label those states as "struggling compliers". These include Romania and Hungary, which have 83.33% and 52.6% of rulings partly complied with, respectively. 50% of rulings with respect to Romania have been pending compliance for two years or more. For Hungary, that number is 66%.

For Bulgaria, in 31.8% of cases, compliance has been partial, but 25% of the rulings have not been complied with at all. This results in an overall non-compliance rate of 56.8%. 56% of those pending rulings have been awaiting compliance for two years or more. Similarly to Bulgaria, Poland has failed to fully comply with 50% of the rulings and 75% of those rulings have been pending compliance for two years or more.

We define ‘moderate compliers’ (Portugal, Croatia, Estonia among others) as those who have fully complied with somewhere between 50% and 80% of the rulings. Good compliers (Luxembourg, Germany, France, among others) have complied with over 80% of the rulings. Neither moderate nor good compliers are immune to occasional legislative delays or judicial misgivings, even though it does not occur so routinely as in struggling compliers.

Constitutional courts in ‘struggling complier’ countries have systematically challenged the CJEU's authority and hindered compliance – some openly and some more discreetly. Good complier countries (for example, German and French top courts) have also challenged the primacy of EU law and the CJEU authority, though the challenges have been isolated and non-systematic. The poor record of compliance with the CJEU's rulings related to access to justice, including judicial and prosecutorial independence, remains a major area of concern, alongside those related to asylum and migration.

Other themes involved include general and indiscriminate retention of personal data and authorities' access to such data. Similarly, access to information and the appropriateness of restricting such access invoking national security concerns, has also been an area where states failed to comply with CJEU rulings. Finally, the same is the case for rulings on civil society organisations and academic institutions.

Report recommendations

EIN and DRI set out the following recommendations to the European Commission and to EU institutions:

1. Integration of Implementation Data: The Commission should continue incorporating ECtHR judgment implementation data into its annual Rule of Law Report, and systematically analyse and prominently feature compliance with CJEU rulings.

2. Targeted Recommendations: The Commission should issue specific recommendations to states based on their implementation records of ECtHR and CJEU judgments related to the rule of law, and expand its reports to cover democracy and systemic fundamental rights violations, urging immediate action from states with recurring issues.

3. Utilisation of Enforcement Tools: The Commission should use all available tools, including infringement procedures and financial pressure, to address member states’ failures to implement CJEU judgments, leveraging related ECtHR judgments as additional evidence.

4. Enhanced Monitoring: The Commission should consider closer monitoring of the implementation of CJEU judgments, including preliminary rulings, and explore ways to support national-level mechanisms for their implementation.

5. Prioritisation in EU Discussions: EU institutions should highlight the non-implementation of ECtHR and CJEU judgments as a priority rule of law issue in discussions with member state governments and parliaments.

6. Funding for Implementation Activities: The EU should fund initiatives to enhance the implementation of ECtHR and CJEU judgments, particularly those led by civil society organisations and the Council of Europe.

For more on individual countries’ implementation records, see our implementation country map.

Work supported by:

 
 

Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting in September 2024

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📅 From the 17th to the 19th of September 2024, the Committee of Ministers will meet for their quarterly Human Rights Meeting. This periodic meeting allows the Committee of Ministers to make decisions on pressing human rights violations & encourage the implementation of ECtHR judgments. During these three days, the Committee of Ministers will examine 54 leading judgments of the European Court of Human Rights that are pending implementation.

📚 EIN members and partners, other civil society actors, lawyers and applicants have made 41 Rule 9 submissions for 27 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda. 

 

Overview of Submissions

 

Sharxhi and Others v. Albania 

Violation: Demolition of the applicants’ flats and business premises in disregard of an interim court order restraining the authorities from taking any action that could breach property rights. 

Last examination: March 2023 - CM/Del/Dec(2023)1459/H46-1

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (20/08/2024) concerning the case of Sharxhi and Others v. Albania (Application No. 10613/16) [anglais uniquement] [DH-DD(2024)936]

 
 

Mammadli group v. Azerbaijan 

Violation: Arrest and pre-trial detention to punish the applicants for his activities in the area of electoral monitoring or for their active social and political engagement in breach of Article 18 taken in conjunction with Article 5. 

Last examination: June 2024 - CM/Del/Dec(2024)1501/H46-4 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from NGOs (Free Voices Collective (FVC), Independent Lawyers Network (ILN), European Human Rights Advocacy Centre (EHRAC) and International Partnership of Human Rights (IPHR)) (08/08/2024) concerning the group of cases Mammadli v. Azerbaijan (Application No. 47145/14) [anglais uniquement] [DH-DD(2024)941]

 

Sargsyan v. Azerbaijan 

Violation: Impossibility for persons displaced during the active military phase (1992-1994) of the Nagorno-Karabakh conflict to gain access to their homes and properties in the region; lack of effective remedies. 

Last examination: September 2023 - CM/Del/Dec(2023)1475/H46-7 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (09/08/2024) concerning the case of SARGSYAN v. Azerbaijan (Application No. 40167/06) [anglais uniquement] [DH-DD(2024)917] 

 

Camara v. Belgium 

Violation: Structural problem of non-enforcement of judicial decisions ordering the authorities to provide asylum seekers with material assistance or accommodation. 

Last examination: First examination 

Latest submission(s): 1492nd meeting (March 2024) (DH) - Rule 9.2 - Communication from an NGO (Human rights centre at Ghent University) (22/01/2024) concerning the case of Camara v. Belgium (Application No. 49255/22) [anglais uniquement] [DH-DD(2024)161] 

 
 
 

 Identoba and Others group v. Georgia 

Violation: Lack of protection against homophobic attacks during demonstrations. 

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-13 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from NGOs (Social Justice Center, European Human Rights Advocacy Centre (EHRAC) (02/08/2024) concerning the cases of Georgian Muslim Relations and Others and Mikeladze and Others v. Georgia (Applications No. 24225/19, 54217/16) (Identoba and Others group, 73235/12) [anglais uniquement] [DH-DD(2024)913] 

1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from NGOs (European Human Rights Advocacy Centre (EHRAC), Women's Initiatives Support Group (WISG), Georgian Young Lawyers' Association (GYLA), ILGA-Europe and Transgender Europe (TGEU)) (02/08/2024) concerning the cases of Aghdgomelashvili and Japaridze, Women's Initiatives Supporting Group and Others and IDENTOBA AND OTHERS v. Georgia (Applications No. 7224/11, 73204/13, 73235/12) (Identoba and Others group) [anglais uniquement] [DH-DD(2024)912] 

1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from an NGO (Social Justice Center) (02/08/2024) concerning the cases of A.D. and Others and Identoba and Others v. Georgia (Applications No. 57864/17, 73235/12) (Identoba and Others group) [anglais uniquement] [DH-DD(2024)910] 

1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (18/07/2024) concerning the group of cases IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) [anglais uniquement] [DH-DD(2024)857] 

 

Kanellopoulos group v. Greece 

Violation: Non-compliance with final domestic judgments ordering the lifting of land expropriation orders or charges on land. In some cases, the lack of an effective remedy to ensure the enforcement. 

Last examination: December 2023 - CM/Del/Dec(2023)1483/A2 

Latest submission(s): 1492nd meeting (March 2024) (DH) - Rule 9.1 - Communication from the applicant (08/03/2024) concerning the case of PANAGIOTIS GIKAS and GEORGIOS GIKAS v. Greece (Application No. 26914/07) (Kanellopoulos group, 11325/06) [anglais uniquement] [DH-DD(2024)303] 

 
 

László Magyar group v. Hungary 

Violation: Life sentence without parole in combination with the lack of an adequate review mechanism, life sentence with parole after 40 years. 

Last examination: September 2023 - CM/Del/Dec(2023)1475/H46-17 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee) (02/08/2024) concerning the LASZLO MAGYAR group of cases v. Hungary (Application No. 73593/10) [anglais uniquement] [DH-DD(2024)908] 

 
 
 

Reczkowicz group v. Poland 

Violation: Tribunal not established by law due to, inter alia, systemic dysfunction in the judicial appointments’ procedures. Deficiencies of the system of extraordinary review appeal. 

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-25  

Latest submission(s): 1507th meeting (September 2024) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Helsinki Foundation of Human Rights) (08/08/2024) concerning the group of cases of Reczkowicz v. Poland (Application No. 43447/19) and reply from the authorities (23/08/2024) [anglais uniquement] [DH-DD(2024)940-rev] 

 

Xero Flor W Polsce SP. Z O.O. v. Poland 

Violation: Tribunal not established by law due to grave irregularities in the election of one of the Constitutional Court's judges examining the applicant company’s constitutional complaint. 

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-26 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Helsinki Foundation of Human Rights) (08/08/2024) concerning the case of Xero Flor w Polsce sp. z o.o. v. Poland (Application No. 4907/18) and reply from the authorities (23/08/2024) [anglais uniquement] [DH-DD(2024)939-rev] 

 
 
 
 
 
 
 

Kavala v. Türkiye 

Violation: Unjustified and extended detention of the applicant without reasonable suspicion and with the ulterior purpose of reducing him to silence. 

Last examination: June 2024 - CM/Del/Dec(2024)1501/H46-34 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (09/09/2024) concerning the case of Kavala v. Türkiye (Application No. 28749/18) [anglais uniquement] [DH-DD(2024)1026] 

 

Xenides-Arestis group v. Türkiye 

Violation: Continuous denial of access to property in the northern part of Cyprus (individual measures and just satisfaction). 

Last examination: September 2023 - CM/Del/Dec(2023)1475/H46-40 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (04/09/2024) concerning the case of ROCK RUBY HOTELS LTD v. Turkey (Application No. 46159/99) (Xenides Arestis group, 46347/99) [anglais uniquement] [DH-DD(2024)1000]  

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (26/07/2024) concerning the group of cases Xenides Arestis v. Turkey (Application No. 46347/99) [anglais uniquement] [DH-DD(2024)865] 

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (24/07/2024) concerning the group of cases Xenides Arestis v. Turkey (Application No. 46347/99) [anglais uniquement] [DH-DD(2024)859] 

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (17/07/2024) concerning the case of ORPHANIDES v. Turkey (Application No. 36705/97) (Xenides Arestis group, 46347/99) [anglais uniquement] [DH-DD(2024)839] 

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (16/07/2024) concerning the case of RAMON v. Turkey (Application No. 29092/95) (Xenides Arestis group, 46347/99) [anglais uniquement] [DH-DD(2024)835] 

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (04/07/2024) concerning the XENIDES-ARESTIS group of cases v. Turkey (Application No. 46347/99) [anglais uniquement] [DH-DD(2024)771] 

EIN Civil Society Briefing September 2024 – Poland, Hungary and Portugal

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On the 6th of September 2024, EIN held in Strasbourg the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1507th Committee of Ministers Human Rights Meeting which will be held between 17th – 19th September 2024.

The briefing focused on the following cases:

Reczkowicz v. Poland and Xero Flor w Polsce SP. Z O.O. v. Poland

 

The Reczkowicz v. Poland and Xero Flor w Polsce SP. Z O.O. v. Poland cases concern the violation of the right to a tribunal established by law under Article 6 § 1 of the European Convention on Human Rights on account of procedurally flawed judicial appointments, undermining the independence and legality of the judicial bodies involved in deciding the applicants' cases.

In the Reczkowicz group, the judges of the various chambers in the Supreme Court (SC) that dealt with the applicants’ cases were appointed “in an inherently deficient procedure” on the motion of the National Council of the Judiciary (NCJ), which lacked independence from the legislature and the executive (violation of Article 6 § 1).

In Xero Flor w Polsce SP. Z O.O. v. Poland, the Court found grave procedural breaches in the appointment of one of the judges on the Constitutional Court panel that rejected the applicant company’s complaint, the appointment having breached the fundamental rule of Polish law.

Recommendations for the implementation of the Reczkowicz v. Poland group of cases

The Helsinki Foundation for Human Rights (HFHR) formulated the following recommendations for the implementation of the Reczkowicz v. Poland group of cases, requesting the Committee of Ministers to: 

  • Restore the independence of the National Council of the Judiciary by reforming the election procedure for judicial members of the NCJ and terminating the term of office for unlawfully elected NCJ members;

  • Ensure that the new law addresses the status of judges appointed at the request of the NCJ after 2017, in line with European standards, by introducing a fair procedure for individual verification of appointments before an independent NCJ, with a right of appeal to court;

  • Ensure that the new law regulates the effects of rulings by judges appointed post-2017, balancing the right to an independent tribunal established by law with the need for legal certainty and stability of the justice system;

  • Explicitly exclude by law the possibility of judges’ disciplinary liability for examining the appointments, independence, and impartiality of other judges;

  • Refrain from questioning the validity of the Court's rulings.

Recommendations for the implementation of the Xero Flor w Polsce SP. Z O.O. v. Poland case

Concerning instead the implementation of the Xero Flor w Polsce SP. Z O.O. v. Poland case, the Helsinki Foundation for Human Rights (HFHR) formulated the following recommendations, requesting the Committee of Ministers to:

  • Prevent unlawfully elected persons from adjudicating in the Constitutional Tribunal (CT), by prohibiting all three unlawfully elected judges from adjudicating, on both judgments on the merits and procedural decisions; 

  • Address these adjudication issues in cases other than those initiated by constitutional complaints, as they may also cause problems; 

  • Refrain from questioning the validity of the Court’s rulings; 

  • As regards individual measures, introduce a procedure to reopen proceedings initiated by constitutional complaints that were discontinued by the CT in an unlawful composition; 

  • Regulate the status of CT rulings issued in an unlawful composition, balancing legal certainty with the right to an independent court established by law (see also ODIHR’s 24 August 2024 opinion on two bills on CT, which suggests reconsidering the nullification of all judgments rendered with the involvement of "persons not entitled to adjudicate"); 

  • Implement legislative measures to prevent external undue influence on the appointment of judges. 

Relevant Documents:

The László Magyar v. Hungary group of cases concerns the violations of the prohibition against torture and inhuman or degrading treatment or punishment, due to the applicants receiving life sentences without the possibility of parole (“whole life sentences”) and without an adequate review mechanism, or life sentences with parole eligibility (“simple life sentences”) only after serving 30 to 40 years (Article 3).

 

Recommendations for the implementation of the László Magyar v. Hungary group of cases

The Hungarian Helsinki Committee formulated the following recommendations for the implementation of the László Magyar v. Hungary group of cases, requesting the Committee of Ministers to:

  • Continue examining the execution of the judgments in the László Magyar v. Hungary group of cases under the enhanced procedure.

  • Issue an interim resolution in the group of cases as foreshadowed by the CM’s September 2023 decision if “no tangible progress” is achieved in the implementation of the group of cases.

And to ask the Hungarian authorities to:

  • Abolish the institution of life imprisonment without the possibility of parole from both the respective laws and the Fundamental Law of Hungary.

  • Establish, without further delay and in accordance with a clear timetable, a review system for those already sentenced to whole life imprisonment which complies with the standards set by the Court with respect to the decision-making process, applicable procedural safeguards and its timing, and which provides a real prospect of release.

  • Ensure, without further delay and in accordance with a clear timetable, that a review complying with the standards set by the Court takes place no later than 25 years after the imposition of every life sentence, with further periodic reviews thereafter.

  • Collect and make publicly accessible relevant data.

  • Ensure that the rights violations suffered by the applicants in the László Magyar v. Hungary group of cases are fully remedied and that they are eligible for parole in accordance with the guidance of the Court and the Committee of Ministers; and provide information to the Committee of Ministers on the individual situation of each applicant.

Relevant Documents:

The Petrescu v. Portugal case involves the inhuman and degrading treatment of the applicant due to overcrowding and poor conditions in prisons, in violation of Article 3. The Court noted a structural issue of overcrowding affecting over half of Portugal's prisons and found that none of the remedies suggested by the Government were effective in addressing the applicant's detention conditions. It recommended that Portugal adopt general measures to ensure detention conditions comply with Article 3 and provide a remedy for prisoners to prevent continued violations or improve their conditions.

Recommendations for the implementation of the Petrescu v. Portugal case

The European Prison Litigation Network and Forum Penal formulated the following recommendations for the implementation of the Petrescu v. Portugal case, requesting the Committee of Ministers to: 

  • Underline the need for political commitment to tackle structural overcrowding and poor prison conditions.

  • Reaffirm the need to “adopt a comprehensive strategy aimed at identifying and tackling the root causes of prison overcrowding” (CM/Del/Dec(2023)1475/H46-25), in consultation with all stakeholders, including civil society.

  • Recommend in particular to address the root causes of long prison sentences and lack of access to sentences adjustment in Portugal.

  • Reiterate the need to establish an effective judicial preventive remedy as well as a judicial compensatory remedy capable of providing timely compensation for inadequate detention conditions, and to ensure that prisoners can make effective use of these remedies, including through effective access to legal information, a lawyer and legal aid.

  • Recommend substantial investment in social services to support prisoners’ reintegration and access to early release schemes.

Implementing Safi and Others v. Greece: Urgent need for measures to protect migrants’ right to life

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Last month, the Council of Europe anti-torture Committee (CPT) published the findings of its 2023 visit to Greece highlighting ongoing concerns about pushbacks and the treatment of migrants by Greek authorities.  

The report details credible and consistent allegations of physical abuse by coastguard officials during interceptions at sea, where the coastguard's operational decisions and delays contributed to the tragic loss of life. Its findings suggest that such practices are not isolated incidents but part of a broader pattern of ill-treatment and disregard for the safety and rights of migrants. 

The CPT’s concerns only echo those already raised by multiple international sources. According to the December 2023 Frontex SI report 12595/2023 on the tragic Pylos shipwreck (of which only 104 of the 750 passengers of the boat came out alive), the Greek authorities, responsible for coordination of assistance, failed to timely answer Frontex’ calls - having initially notified Frontex that further assistance was not needed -, and also failed to declare a search and rescue and to deploy sufficient appropriate assets in time to rescue the migrants in distress. These operational shortcomings mirror the failures identified in the Safi case, concerning the ineffective investigation into a coastguard operation in 2014 in the Aegean Sea during which eleven relatives of the migrant applicants, who were aboard a fishing boat, drowned. In that case, too, the rescue was also planned without appropriate equipment, and the possibilities of requesting additional assistance and sending a "Mayday Relay" alert were either not considered or significantly delayed.  

Furthermore, in February 2024, in response to the systematic pushbacks and violence against non-EU nationals, the European Parliament adopted a resolution on Greece criticising the lack of progress in the judicial investigation and the treatment of migrants at the external borders. 

Pushback operations and the abuse of migrants’ rights by the Greek authorities continue to come under the scrutiny of the ECtHR. In the January 2024 judgment of Alkhatib v. Greece, the ECtHR identified violations of the right to life due to the lack of an adequate legal framework on the use of potentially lethal force against migrants by the coastguard boat during a pursuit to intercept a boat and the inadequate planning of the rescue operation. 

The Safi case is pending implementation before the Committee of Ministers since 2022, yet the ongoing documentation of pushbacks and the lack of proper safeguards for migrants intercepted at sea reinforce the ECtHR’s concerns, demonstrating that similar violations continue taking place. The Greek authorities should urgently take all possible measures to safeguard the lives of those seeking refuge in Europe. In the meantime, the Committee of Ministers remains one of the last weighty international institutions still turning a blind eye on the systemic nature of these shortcomings revealed in Safi by continuing examining this case under the standard supervision procedure, despite numerous calls by civil society organisations to place it under the enhanced supervision procedure (see, inter alia, the joint submissions of the AIRE Centre, HIAS Greece, and Equal Rights Beyond Borders, as well as of Refugee Support Aegean and Stiftung PRO ASYL of September 2023). It is high time that the CM stepped up its response to rise to the occasion. 

For further information, you can consult the following resources:

Photo: Left.gr/Kalodoukas

EIN 2024 General Assembly

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On 18 June, EIN members gathered in The Hague for our annual General Assembly. Every two years, this is an event that we organise in person. This year, the event took place ahead of the EIN Conference “Safeguarding the Rule of Law: Implementing ECtHR Judgments for Lasting Impact”, which gathered around 50 participants. This event was organised as part of our project on promoting the rule of law in Europe through the implementation of judgments of the ECtHR concerning independence and impartiality of the judiciary, financed by the Ministry of Foreign Affairs of the Netherlands.

23 members came to The Hague, 5 joined us online, and 3 members were represented via proxy. At the meeting, major documents for the life of the Network were discussed and adopted, such as the annual accounts, and the planned budgets for 2024-2025. It was also a unique opportunity for EIN members to take stock of the work achieved by the Network in 2023 on advocating for the implementation of ECtHR judgments to be higher on the agenda and for introducing EIN’s new Turkish member organisations: the Freedom of Expression Association (İFÖD – İfade Özgürlüğü Derneği) and the Human Rights Association (İnsan Hakları Derneği ”IHD”). Finally, the 2024 General Assembly was an opportunity for EIN Former Director, George Stafford, who stepped down in 2023, to address EIN members with a few words of wisdom and farewell.

We would like to thank all EIN members for their commitment and engagement in the Network! 

A special thank you to the Ministry of Justice of the Netherlands for hosting our events.