Overview: EIN June Conference 2022

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Conference on Systemic Non-Implementation of Judgments of the European Court of Human Rights – What Can Civil Society Do?

This conference took place on the 22 and 23 of June 2022 and focused on identifying common solutions to promote ECtHR implementation and sharing the solutions across European civil society. It included presentations from leading members of the civil society movement to promote ECtHR implementation, as well as high-level speakers from academia and national governments. More than 70 participants gathered in Strasbourg for this Conference.

Session 1: Structures at the national level to systematically promote the implementation of ECtHR judgments

The first session of the conference addressed the issue of national-level structures aimed to systematically promote the implementation of ECtHR judgments. This session, chaired by the Director of the Bulgarian Helsinki Committee Dr Krassimir Kanev, gave the floor to experts from four countries: the Czech Republic, Slovenia, the Republic of Moldova and the UK, who shared with us their experiences.

An effective structure to promote the implementation of judgments in the Czech Republic

The first expert, Mgr Petr Konůpka, Deputy Agent of the Government of the Czech Republic before the European Court of Human Rights, discussed the creation and functioning of a collective mechanism for ECtHR implementation in the Czech Republic, which has been active since 2015 under the form of a Committee of Experts, including representatives from all branches of government, as well as from civil society and academia. The system is effective, inter alia, because it ensures there are regular meetings where governing officials must report progress to each other. Mgr Konůpka also addressed the role of the Government Agent in the improvement of cooperation and the challenges encountered in the process. He recommended that civil society advocate for the creation of similar collective structures, as creating such a structure would bring together more expertise and knowledge on the implementation process, improve visibility and transparency, and enable the effectiveness of the implementation process.

The working group to implement judgments in Slovenia

The second speaker, Dr. Simona Drenik Bavdek, Counsellor to the Ombudsman of Slovenia and Assistant Head of the Center for Human Rights, discussed about the working group set up in Slovenia. In the context of Slovenia’s improved ECtHR implementation record, she set out the two key elements to improve implementation: a strong political will and administrative capacity, explaining how there was an evolution from a political will to implement single cases to a general approach to implementation. The Intergovernmental working group set up in 2015 in Slovenia is a core coordinating body led by the Ministry of Justice – inter alia, it carries out legal analysis of each ECtHR judgment and the need for individual and general measures, coordinating with other ministries and other actors, and cooperating with the Department of Execution of Judgements. Since the system has been set up, it has enabled Slovenia to enforce ECtHR judgments more effectively. Dr. Drenik Bavdek advised civil society and NHRIs to work towards creating political will for a national systematic approach to implementation, pushing for governments to understand that implementation is their commitment and their responsibility.

Advocating for the creation of a parliamentary monitoring mechanism in Moldova

The third speaker, Ilie Chirtoaca, Legal Officer at the Legal Resources Centre from Moldova, talked about the creation of a parliamentary monitoring mechanism in Moldova. Mr. Chirtoaca discussed the efforts of Moldovan civil society which led to the creation of a Parliamentary oversight mechanism for the implementation of ECtHR judgments, under the form of a Parliamentary Sub-Committee. He discussed the key factors which made the establishing of this mechanism possible, such as the support of the legal and civil society community, the media campaign and media coverage, and the hard facts and figures used to raise awareness about the amounts of compensation paid by Moldova. Finally, Mr. Chirtoaca also spoke about the lessons learnt from the experience, emphasizing, inter alia, the need to establish good relations with the authorities, the need to be concise and convincing by ensuring that data is relied on by hard facts and figures, the importance of explaining the benefits that institutions will gain from human rights reforms and of creating alliances with other NGOs.

Parliamentary monitoring mechanisms: opportunities, challenges, and lessons-learnt

Dr. Alice Donald, Associate Professor of Human Rights Law at Middlesex University, held a presentation about Parliamentary monitoring mechanisms. Dr. Donald discussed the potential benefits of Parliamentary mechanisms, such as the possibility of holding the executive to account for action or inaction, creating space for civil society engagement, and creating a legislative framework or framework of expectations. She explains that the interdependence between different structures and institutional actions requires working with Parliamentary monitoring mechanisms. She set out key functions and principles which such bodies should have, as well as limitations of working with Parliaments. Her recommendations to civil society focused on educating Parliamentarians about their role and obligations, cultivating allies in Parliament, informing them about specific cases and non-implementation in general, intervening selectively and being persistent, with a long-term view.

Session 2: The work of European institutions in the implementation of ECtHR judgments - what should civil society advocate for?

The second session, chaired by Dr. Ramute Remezaite, EIN Board member and Implementation Lead at the European Human Rights Advocacy Centre, focused on what could be done to improve the speed and effectiveness of the implementation process.

Practical steps to improve the speed and effectiveness of the execution of judgments of the ECtHR

The first speaker, Piers Gardner, Barrister and Chair of the Permanent Delegation of The Council of Bars and Law Societies of Europe (CBBE) to the European Court of Human Rights, discussed proposals on the work of the Committee of Ministers for practical steps to improve the ECtHR implementation process.

These proposals include increasing the capacity of the CMDH by 25% by adding an extra day to their meeting; increasing the transparency of the case allocation and how the system operates; and recognizing awards of just satisfaction under national law as debts.

After Russia: reinvigorating the Convention system

The second speaker, John Dalhuisen, Senior Fellow at the European Stability Initiative, discussed the need for a shift in the perception and practice of the role of the European Court of Human Rights. Mr. Dalhuisen discussed the different functions of the ECtHR: the “watch dog” function, intended to preserve democracies, by sounding the alarm for the most serious violations; the “rescue dog” role, meant to ensure an individual justice function; the “sheep dog” function, meant to ensure the majority is heading in the right direction; and “guide dog” function, meant to serve for democratic transformation and evolution of new norms. Mr. Dalhusien argues that, today, the ECtHR is failing in these functions. The Court was intended to be a club of democracies, which relies on a culture of compliance. However, non-compliance is contagious; without a culture of compliance, the system will unravel and collapse, and the Court will lose its credibility. He discussed procedural implications of this phenomenon: the excessively long time for suspending a state as a CoE member, the impossibility of remaining a ‘club of democracies’ and insisting on making decisions through consensus, when some states are not democratic; protracted rounds of negotiation aimed at appeasing Russia. Mr. Dalhuisien proposes a new way of thinking about the Convention system, by returning to the Court’s original function as “watch-dog”.

The activities of the Council of Europe relating to the implementation of ECtHR judgments

The third speaker, Professor Dr. Başak Çalı, Chair of the European Implementation Network and Co-Director of the Centre for Fundamental Rights at the Hertie School of Governance, presented a series of proposals which have been set forward by the EIN Board to the Secretary General of the Council of Europe and the Committee of Ministers in May 2022. The first proposal concerns the need for increased transparency of the implementation monitoring process and engagement with civil society, inter alia, by making CM/DH hearings entirely public in exceptional cases; allowing NHRIs and NGOs to attend CM/DH hearings; communicating information about important developments in the implementation process (such as the classification of cases, or the submission of government Action Plans and Reports) to relevant litigants, NGOs and NHRIs; making the indicative timetable for when cases will be considered by the Committee of Ministers public at the earliest opportunity; establishing a practice of exchange with civil society during country visits and informing civil society in advance about which cases will be discussed during country visits. The second issue addressed was the need for increased funding for Council of Europe activities, in particular technical co-operation projects focused on the implementation of particular ECtHR judgments and also on national structural solutions to promote the implementation of judgments overall, including funding for civil society activities in this area. Other proposals concerned the creation of a special representative on the implementation of ECtHR judgments, the need for annual country-by-country assessments of the state of ECtHR implementation and national capacity in each state, and the introduction of a new sanction by the Committee of Ministers for continued non-implementation, between interim resolutions and infringement proceedings.

Involving the EU in the implementation of ECtHR judgments

EIN’s Director George Stafford set out the argument that an analysis of ECtHR non-implementation should be included into the EU annual rule of law review. He argues that non-implementation of certain ECtHR judgments is a rule of law issue (due to the nature of individual judgment), while, at the same time, overall ECtHR implementation is also a rule of law issue (due to the challenge it raises to the Courts). Furthermore, the budget conditionality mechanism would allow the EU institutions to link their assessment to real world consequences – something that the Council of Europe cannot do.

Both EU Rule of Law reporting and ECtHR implementation would be strengthened by this inclusion. EIN has been advocating for ECtHR implementation to be included in the EU rule of law review -  and calls on civil society to keep this work going, encouraging NGOs to make contributions to the EU rule of law process highlighting ECtHR non-implementation in their country.

Session 3: Strategies for promoting judgment implementation

The third session, chaired by Simon Papuashvili, Programme Director at the International Partnership for Human Rights Strategies, focused on strategies for promoting judgment implementation.

How to Nudge States Towards Implementing ECtHR Judgments

Ula Aleksandra Kos and Aysel Eybil Kucuksu, PhD fellows at the University of Copenhagen, discussed their research results on the compliance and implementation of ECtHR judgments, with a comparative focus on Slovenia, Denmark and Hungary. They drew out four “key nudges” for states to engage in ECtHR implementation: making Rule 9 submissions to the Committee of Ministers; maintaining an informal dialogue with the Committee of Ministers; carrying out a dialogue with the European Union; and carrying out mass strategic litigation. They also discussed the need to have a genuine dialogue in Strasbourg, as sometimes the Action Plans and Reports do not reflect genuine engagement on the part of the state, advising civil society actors to contextualize the measures proposed by states, to offer pragmatic solutions and to request escalations of procedure, when needed. Ms. Kos and Ms. Kucuksu also provided a comparative view of how certain “nudges” work in Slovenia and Hungary: for example, their research indicates that Slovenia is more sensitive to monetary incentives, as the higher the just satisfaction awarded is, the faster it will be paid.

Implementing Judgments Concerning Grievous Human Rights Violations During the Troubles

The second presentation of the session was held by Daniel Holder, Deputy Director of the Committee on the Administration of Justice. He discussed the advocacy efforts behind the implementation of the McKerr v. the United Kingdom judgment, which concern investigations into the deaths of the applicants’ next-of-kin in Northern Ireland in the 1980s and 1990s, either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel; the case has been pending implementation for over 20 years. Mr. Holder discussed the constant running battle between the civil society lawyers and the state, in the context of UK’s change of direction with implementation (as in 2014, UK had unilaterally abandoned the 1998 Good Friday agreement, which had begun to bring results).

He argued that long term supervision kept mechanisms in check, allowing for the development of a replacement set of transitional justice institutions. In parallel, civil society ensured that highly credible evidence was set forward, by engaging an academic team to produce scientific evidence and by providing detailed evidence in Rule 9 submissions, and even using resurfaced evidence from archives in order to prove that the government had lied. Furthermore, building alliances, using UN mechanisms and carrying out litigation strategies (including ECtHR-based domestic litigation and work with independent lawyers on ongoing investigations) were essential aspects of the advocacy process. While the situation is difficult at the moment, the work of civil society has succeeded in squeezing out the truth in relation to what happened, and made it untenable for the authorities to state that these violations did not take place.

Session 4: Implementation of ECtHR judgments in challenging states - Lessons-learnt from Azerbaijan, Russia and Turkey

Session 4, chaired by Prof Philip Leach, Professor of Human Rights Law at Middlesex University, focused on ECtHR implementation in challenging states, bringing together into an open discussion experts on implementation in Azerbaijan, Turkey and Russia.

Anar Mammadli, human rights activist and chairman of the Baku-based Election Monitoring and Democracy Studies Centre, discussed about the difficulty to talk about ECtHR non-implementation in Azerbaijan, especially after the crackdown on media and civil society in 2013. He emphasized the continuous need to engage with the process before the Committee of Ministers and the importance for civil society organisations to do so without political repression.

Dr. Ramute Remezaite, EIN Board member and Implementation Lead at the European Human Rights Advocacy Centre, discussed the two key challenges encountered in implementation work in Azerbaijan: the deep systemic absence of general political will to abide by the European Convention, and the absolute non-existence of transparency. Dr. Remezaite also highlighted that, at individual level, some traction is possible, based on the existence of a political window popping up and consistent pressure from the Committee of Ministers. Furthermore, the international arena is the only space to engage with the authorities in order to learn what their position is and what they are willing to do.

Elba Bendo, Lawyer (International Advocacy) at the European Human Rights Advocacy Centre, shared her experience with the ECtHR implementation in Russia, in the context of exploring new ways of engaging at the international level with cases concerning enforced disappearances between 1999 -2006 in Chechnya. She discussed the challenged encountered – from the complete lack of political will to implement, to the ongoing oppression and fear for civil society and relatives, as well as the difficulty in responding to government Action Plans which were sporadic in detail and inconsistent. Furthermore, the time passed since the original abduction posed practical challenges in terms of searching for the victims. The strategies engaged focused on small positive steps: the applicants were engaged in the process to allow their stories to be told; the UN Committee against Torture, as well as special procedure and more diverse international institutions were engaged too; forces were joined with actors with forensic experts to demonstrate that the scientific barriers identified by Russia were not substantiated. Furthermore, a framework was built for an ad hoc humanitarian search body, and, in the context of international workshops, discussions were held with family members as to what is possible further – with a view to long-term engagement.

Dmtriy Gurin, Senior Lawyer at the Memorial Human Rights Centre, also discussed about implementation in Russia, setting out how civil society actors have been reduced in terms of human rights protection and in terms of how domestic mechanisms can be used. The European Convention, which has previously served as restraint, is now being eradicated and discredited in the public eye. In the absence of dialogue, it is difficult to understand the official position on how ECtHR implementation can continue. The judiciary does not have a consolidated position on what is currently happening - there has been a sporadic reception of ECtHR case law over the years in lower courts, but these decisions were otherwise quashed by appeal instances. Given the circumstances, the current task of civil society is to record human rights abuses and the decay of legal values in Russia. The accessibility of the Russian system is used for this purpose – as trials can serve as a platform to continue to raise uncomfortable questions before domestic courts, who are obligated to come up with arguments in response. The litigation is no longer aimed at winning and obtaining justice, but on obtaining new decisions about how the new legal order functions in their view. Mr. Gurin also argues that the lack of an external court for Russia should be addressed through a solution, and that the experience of civil society in Russia should not be in vain but should be regarded as important in other countries.

Finally, the last expert, Kerem Altiparmak, Turkey Legal Advisor at the International Commission of Jurists, addressed the issue of ECtHR implementation in Turkey. Mr. Altiparmark discussed the different strategies adopted by the government, and the investment of the authorities to give the impression that they are ECtHR complaint, for example, by submitting Action Plans and Reports very often. He argued that the Turkish Constitutional Court (TCC) is at the heart of this strategy; despite the apparent consensus on the independence of the TCC and the fact that the ECtHR requires the exhaustion of this remedy, the TCC is blocking the way to Strasbourg and blocking ECtHR implementation. Most of its’ members are appointed by the president, and it ignores the entire ECtHR jurisprudence on insulting heads of state. There are currently 100 000 cases pending before the TCC, which creates a challenge for human rights defenders and lawyers.

Session 5: Workshop on communication strategies to promote structural solutions for ECtHR judgment implementation

The second day started with a workshop help by Gesine Schmidt-Schmiedbauer and Philip Doyle, Communication experts at One Step Beyond Communications. The workshop focused on making effective communication about ECtHR implementation essential, in particular by telling stories of hope, opportunity and solutions and tailoring approaches to different types of audiences. The workshop focused on concepts of “the heroine’s journey” and “hope-based communications”.





Looking forward: what can civil society do? 

The final session, chaired by Prof. Dr. Başak Çalı., brought together four keynote listeners, who had collected feedback from the audience about what civil society can do in the future to promote implementation at the national level, at horizontal level, and at international level. 

Nóra Novoszádek, Senior legal officer at the Hungarian Helsinki Committee, set forward the need for both inward looking and outward looking steps. She addressed the need to focus more on overall implementation and to advocate for implementation structures, and to build alliances and joint strategies between NGOs to facilitate implementation domestically. In this context, she emphasized the importance of ensuring that implementation structures are effective, meaningful, transparent, and that NGOs are properly involved. Ms. Novoszádek also pointed out the importance of educating and informing members of Parliament regarding implementation, as well as the need to strive to widen scope of implementation of pending judgments, and to have a proactive approach with regard to dormant cases.

George Stafford, EIN Director, also reinforced the importance of structural mechanisms for implementation, and called on participants be proactive in engaging with this idea, encouraging civil society to present this concept to funders – both individually and collectively as a group.

Dr. Ramute Remezaite pointed out the importance of supporting each other as a network and engaging with other stakeholders as well, including the media, in order to show the benefits of ECtHR implementation; she also discussed the need to explore EU advocacy points and civil avenues with regard to Eastern partnership counties.

Finally, Prof. Philip Leach set out three main issues to think about: the need to be aware of the context of implementation difficulties; the question of being ambitious and realistic at the same time about what is feasible; and the need to consider implementation as part of the whole system. He argued for the replication (everywhere feasible) of the Committee of Experts system which has been set up in the Czech Republic, involving academia, civil society, Bar associations, etc, and ensuring transparency. He also addressed the importance of positive messaging, of presenting opportunities for MPs to normalize engagement with implementation, of creating dialogue and opening up discussions and solutions which can draw states out. In challenging cases, he argued for the process to be opened up in some way – noting the importance of political theatre. He also reflected positively on the proposals of having a special representative on ECtHR implementation, and the need for smart and credible sanctions.

Update on the Infringement Proceedings in the case of Osman Kavala

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Background: the first Kavala judgment and the call for infringement proceedings

Osman Kavala is a Turkish businessman and human rights philanthropist. In May 2020, the European Court of Human Rights ruled that his arrest and detention took place in the absence of evidence to support a reasonable suspicion he had committed an offence and also that it pursued an ulterior purpose, namely to silence him and dissuade other human rights defenders. Under Article 46 of the European Convention on Human Rights, the Court held that the Turkish government must take every measure to put an end to Kavala’s detention and to secure his immediate release.

Over two years since the Court’s judgment became final, the applicant remains in detention, following additional rulings by the Turkish courts and new charges brought by the Turkish authorities. Civil society organisations have been advocating for the implementation of this judgment, calling on the Council of Europe Committee of Ministers to demand his immediate release.

After seven decisions and two interim resolutions, in December 2021, the Committee of Ministers served formal notice on the Turkish government of its intention to refer the case back to the Court, in accordance with “infringement proceedings” under Article 46, paragraph 4, of the Conventions.

What are infringement proceedings?

Under Article 46 (4) of the ECHR, if the Committee of Ministers considers that a state refuses to abide by a final judgment, it may refer to the ECtHR the question whether that state has failed to fulfil its obligation. 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.

This mechanism was introduced in 2010 as a new means of facilitating implementation. It requires a two thirds majority of the Committee of Ministers. It has only been invoked once before, in the case of Azerbaijani opposition politician Ilgar Mammadov.

Kavala v. Turkey (Article 46 § 4 Procedure): What did the ECtHR rule?

In today’s Grand Chamber judgment in the proceedings under Article 46 § 4, the European Court of Human Rights held that there had been a violation of Article 46 § 1 of the ECHR - and that the Turkish authorities had acted in bad faith.

The Court concluded that neither the new decisions on Mr Kavala’s detention nor the bill of indictment contained any substantially new facts capable of justifying this new suspicion. As during Mr Kavala’s initial detention, the investigating authorities had once again referred to numerous acts which were carried out entirely lawfully to justify his continued pre-trial detention.

Mr Kavala is still deprived of his liberty. The Court considered that the measures indicated by Türkiye did not permit it to conclude that the State Party had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the Kavala judgment, or in a way that would have made practical and effective the protection of the Convention rights which the Court had found to have been violated in that judgment.

What does the ruling mean for Osman Kavala and for Turkey?

The second ECtHR judgment confirms that the Council of Europe and the European Court have both agreed that the Turkish government has failed to comply with its international human rights obligations by refusing to release Osman Kavala. The strongest tool at their disposal has been employed to convey this message and to compel Turkey to implement the judgment.

The failure to implement is now a settled judicial fact. The government’s attempts to employ judicial tactics in order to circumvent implementation will no longer be accepted for examination in Strasbourg. Every new day that Kavala spends in prison represents an undebatable and overt refusal to accept the principle of the rule of law, the will of the Member states and, of course, the enjoyment of Kavala’s right to liberty and security.

What happens now?

The Turkish authorities should immediately release Osman Kavala and reverse the consequences of the criminal procedures against him - including a full acquittal.

If the Turkish government does not release Mr Kavala, the Committee of Ministers will decide on the sanctions which should be applied against Türkiye. If Türkiye refuses to collaborate sincerely and effectively to implement this case, the Committee of Ministers can suspend its rights of representation and request Türkiye to withdraw as a member; it may also decide to end Türkiye’s membership to the Council of Europe.

For Türkiye, this is a crucial moment and a last chance to pass the minimum threshold required to be a part of the European community of democracies.

EIN General Assembly June 2022

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On 23 June, EIN members gathered in Strasbourg for a General Assembly. This event took place immediately after the Conference on Non-Implementation of ECtHR judgments, which gathered more than 70 participants over 2 days. 

It was the first in-person meeting of the Network since the hybrid event organised in November 2021. 26 members came to Strasbourg, 3 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 a change in the Statutes. It was also a unique opportunity for EIN members to take stock of the work achieved by the Network on advocating for the implementation of ECtHR judgments to be higher on the agenda. 

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

 

Picture: EIN Secretariat (note: the picture was taken after the end of the meeting, and not all members who took part are present)

Conference on Systemic Non-Implementation of Judgments of the European Court of Human Rights - What Can Civil Society Do?

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About the Conference

 A key threat facing the system of the European Convention on Human Rights is the non-implementation of judgments of the European Court of Human Rights (“ECtHR”). Of the “leading” judgments handed down from the ECtHR in the last ten years – i.e. judgments identifying structural or systemic problems – 47% remain pending implementation.

Overall, there are 1300 leading ECtHR judgments pending execution – which have been pending for an average of 6 years and 2 months. Every one of these judgments represents a human rights problem which has not been resolved. Their systemic non-implementation represents a threat to European values and the democratic way of life.

EIN sees common barriers to effective ECtHR implementation across different states, including: a lack of political will on behalf of governments; the absence of effective structures at the national level to systematically promote implementation; negative public narratives around ECtHR judgments; and a lack of significant international pressure to implement.

The Conference, organised on 22 and 23 June in Strasbourg, triggered open discussion to highlight the main barriers to ECtHR implementation, identify common solutions, and share the solutions across European civil society. To learn more about the event, go to the Conference webpage.

Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting June 2022

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From 8-10 June 2022, the Council of Europe’s Committee of Minister’s Deputies will meet for their quarterly Human Rights Meeting. This meeting will examine several judgments of the European Court of Human Rights that are still pending implementation. The agenda consists of 32 cases from 15 members of the Council of Europe.

24 EIN members/partners, other civil society actors, lawyers and applicants have made the following submissions for 16 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.

 

Overview of Submissions

Violation: Violations of the applicant’s right to privacy and freedom of expression in connection with her work as a journalist.

Last Examination: December 2020 - CM/Del/Dec(2020)1390/H46-3

Latest Submission:

1436th meeting (June 2022) (DH) - Rule 9.1 - Communication from the applicant (07/06/2022) in the case of Khadija Ismayilova v. Azerbaijan (Application No. 65286/13) [Anglais uniquement] (Public)

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: March 2022 - CM/Del/Dec(2022)1428/H46-4 

 Latest Submissions:

1436th meeting (June 2022) (DH) - Rule 9.1 - Communication from the applicant (06/05/2022) in the case of Yunusova and Yunusov (No. 2) v. Azerbaijan (Application No. 68817/14) (Mammadli group, 47145/14) [Anglais uniquement] [DH-DD(2022)511]

 1436th meeting (June 2022) (DH) - Rule 9.1 - Communication from the applicant (06/05/2022) in the case of Aliyev v. Azerbaijan (Application No. 68762/14) (Mammadli group, 47145/14) [Anglais uniquement] [DH-DD(2022)510]

 1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (Election Monitoring and Democratic Studies Centre) (24/02/2022) in the Mammadli group of cases v. Azerbaijan (Application No. 47145/14) [anglais uniquement] [DH-DD(2022)310]

VASILESCU GROUP v. Belgium

 Violation: Structural problem concerning prison overcrowding, material conditions of detention and lack of effective remedies

 Last Examination: March 2021- CM/Del/Dec(2021)1398/H46-3

 Latest Submission:

 1436e réunion (juin 2022) (DH) - Règle 9.2 - Communication d’une INDH (Conseil Central de Surveillance Pénitentiaire) (28/04/2022) relative à l'affaire VASILESCU c. Belgique (requête n° 64682/12) [French only] [DH-DD(2022)517]

S.Z GROUP and KOLEVI v. Bulgaria

Violation: Systemic problem of ineffective criminal investigations with regard to shortcomings which affect investigations concerning both private individuals and law enforcement agents and lack of guarantees for the independence of criminal investigations against the Chief Prosecutor.

 Last Examination: November – December 2021- CM/Del/Dec(2021)1419/H46-8

 Latest Submission:

 1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (Bulgarian Helsinki Committee) (19/04/2022) in the cases of KOLEVI and S.Z. v. Bulgaria (Applications No. 1108/02, 29263/12) [anglais uniquement] [DH-DD(2022)466] 

STANEV v. Bulgaria

Photo Credit: Validity

Violation: Unlawfulness of the placement in social care home of the applicant with mental disorders; lack of judicial review and poor living conditions; impossibility for the applicant, partially incapacitated, to request the restoration of his legal capacity.

 Last Examination: June 2021- CM/Del/Dec(2021)1406/H46-8

 Latest Submissions:

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (Validity Foundation - Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (02/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) & reply from the authorities (12/05/2022) [anglais uniquement] [DH-DD(2022)531]

1436th meeting (June 2022) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Validity Foundation Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee & Bulgarian Lawyers for Human Rights) (25/04/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) & reply from the authorities (04/05/2022) [anglais uniquement] [DH-DD(2022)495-rev]

BEKIR OUSTA AND OTHERS GROUP v. Greece

Violation: Refusal of domestic courts to register associations.

Last Examination: September 2021 - CM/Del/Dec(2021)1411/H46-14

Latest Submissions:

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (Greek Helsinki Monitor) (19/04/2022) in the case of BEKIR-OUSTA AND OTHERS v. Greece (Application No. 35151/05) [anglais uniquement] [DH-DD(2022)481]

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (Federation of Western Thrace Turks in Europe) (04/03/2022) in the case of BEKIR-OUSTA AND OTHERS v. Greece (Application No. 35151/05) [anglais uniquement] [DH-DD(2022)323]

CORDELLA AND OTHERS 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: March 2021- CM/Del/Dec(2021)1398/H46-14

 Latest Submission:

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (StraLi for Strategic Litigation) (19/04/2022) in the case of Cordella and Others v. Italy (Application No. 54414/13) [anglais uniquement] [DH-DD(2022)468]


DI SARNO AND OTHERS v. Italy

 Violation: Region polluted by non-collected waste: prolonged inability of the Italian authorities to ensure waste collection, treatment and disposal in the region of Campania and absence of a remedy in this regard.

 Last Examination: September 2021- CM/Del/Dec(2021)1411/H46-20

 Latest Submission:

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (StraLi for Strategic Litigation) (22/04/2022) in the case of DI SARNO AND OTHERS v. Italy (Application No. 30765/08) [anglais uniquement] [DH-DD(2022)494]

 L. v. Lithuania

 Violation: Lack of legislation governing the conditions and procedures relating to gender reassignment.

 Last Examination: June 2021 - CM/Del/Dec(2021)1406/H46-17

 Latest Submission:

1436th meeting (June 2022) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (TGEU-Transgender Europe (TGEU), Lithuanian trans rights and mutual support association “Trans Autonomija” (Trans Autonomija), the National LGBTI rights organization LGL (LGL), Human Rights Monitoring Institute (HRMI), and ILGA Europe) (19/04/2022) in the case of L. v. Lithuania (Application No. 27527/03) and reply from the authorities (27/04/2022) [anglais uniquement] [DH-DD(2022)473] 

OZDIL AND OTHERS v. Republic of Moldova

 Violation: Extra-legal transfer of persons to Turkey, circumventing domestic and international law.

 Last Examination: November – December 2021- CM/Del/Dec(2021)1419/H46-22

 Latest Submission:

 1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (Legal Resources Centre from Moldova and Promo-LEX Association) (20/04/2022) in the case of Ozdil and Others v. the Republic of Moldova (Application No. 42305/18) [anglais uniquement] [DH-DD(2022)477]

 M.K. AND OTHERS v. Poland

 Violation: Refusal of border guards to receive asylum application and summary removal to a third country with a risk of refoulement to and ill-treatment in the country of origin. Collective expulsion of aliens in a wider state policy of refusing entry to foreigners coming from Belarus. Lack of effective remedy with a suspensive effect. Non-compliance with interim measures under Rule 39.

First Examination 

Latest Submissions:
1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (Helsinki Foundation for Human Rights) (22/04/2022) in the case of M.K. and Others v. Poland (Application No. 40503/17) [anglais uniquement] [DH-DD(2022)492] 

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (19/04/2022) in the case of M.K. and Others v. Poland (Application No. 40503/17) [anglais uniquement] [DH-DD(2022)471]

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (AIRE Centre + ECRE) (01/04/2022) in the case of M.K. and Others v. Poland (Application No. 40503/17) [anglais uniquement] [DH-DD(2022)421]

XERO FLOR W POLSCE SP. Z O.O. v. Poland

 Violations: Insufficient reasons of courts for refusal to refer a legal question to the Constitutional Court. 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.

 First Examination

Latest Submission:

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from an NGO (30/03/2022) in the case of Xero Flor w Polsce sp. z o.o. v. Poland (Application No. 4907/18) [anglais uniquement] [DH-DD(2022)411]

 STRĂIN AND OTHERS GROUP & MARIA ATANASIU AND OTHERS v. Romania

 Violation: Ineffectiveness of the mechanism put in place to allow the restitution of or compensation for nationalised property.

 Last Examination: March 2021- CM/Del/Dec(2021)1398/H46-24

 Latest Submissions:

1436th meeting (June 2022) (DH) - Rule 9.1 - Communication from the applicant (06/05/2022) in the case of Ana Ionescu and Others v. Romania (Application No. 19788/03) (Strain group, 57001/00) [Anglais uniquement] [DH-DD(2022)509]

1436th meeting (June 2022) (DH) - Rule 9.1 - Communication from the applicant (28/04/2022) in the case of Dimitrie Dan Popescu and Others v. Romania (Application No. 39480/03) (Strain group, 57001/00) [Anglais uniquement] [DH-DD(2022)478]

GOMI v. Turkey

Violation: Prohibition of prohibition of inhuman or degrading treatment on account of the continued detention of the applicant, who has been suffering from a psychotic illness since 2003.

First Examination

Latest Submissions:

Recent submission to be uploaded

Rule 9.1 Communication from the applicant (24/02/2020) in the case of Gomi v. Turkey (Application No. 38704/11)

SELAHATTİN DEMİRTAŞ (No. 2) GROUP v. Turkey

 Violation: Unjustified detention of the applicant without reasonable suspicion that they had committed an offence, with the ulterior purpose of stifling pluralism and limiting freedom of political debate (Selahattin Demirtaş (No. 2)); unforeseeable lifting of parliamentary immunity and subsequent criminal proceedings to penalise the applicants for political speech.

 Last Examination: March 2022 - CM/Del/Dec(2022)1428/H46-37 

 Latest Submissions:

 1436th meeting (June 2022) (DH) - Rule 9.1 - Communication from the applicant (13/04/2022) in the case of Encu and Others v. Turkey (Application No. 56543/16) (Selahattin Demirtas (no. 2) group, 14305/17) [Anglais uniquement] [DH-DD(2022)425]

 1436th meeting (June 2022) (DH) - Rule 9.1 - Communication from the applicant (13/04/2022) in the case of Selahattin Demirtas v. Turkey (no. 2) (Application No. 14305/17) [Anglais uniquement] [DH-DD(2022)424]

EIN Civil Society Briefing May: Belgium, Azerbaijan, and Turkey

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On 30 May 2022, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the Committee of Minister’s Human Rights Meeting on 8-10 June 2022. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

  1. Vasilescu v. Belgium, which concerns the inhuman and degrading treatment suffered by the applicants, due to the material conditions of their detention taken as a whole. Bart De Temmerman, from the Conseil Central de Surveillance Pénitentiaire (CCSP), presented relevant developments, and ongoing concerns and made recommendations for the implementation of this case.

  2. Khadija Ismaylova v. Azerbaijan and Khadija Ismayilova v. Azerbaijan (no. 2) concerns violations of the applicant’s right to privacy and freedom of expression in connection with her work as a journalist. The status of implementation of the case and recommendations were presented by the Applicant, Khadija Ismaylova.

  3. Selahattin Demirtas (no.2) v Turkey, which concerns the unjustified detention of the applicant without reasonable suspicion that he had committed an offence, with the ulterior purpose of stifling pluralism and limiting freedom of political debate; and unforeseeable lifting of parliamentary immunity and subsequent criminal proceedings to penalise the applicant for political speech. The case was briefed on by Ayşe Bingol, Co-Director of the Turkey Human Rights Litigation Support Project.

Overview of the case:

Between October 2011 and July 2012 (in the Merksplas and Antwerp prisons), there was insufficient living space; detainees slept on floor mattress; there was lack of privacy in the use of toilets and lack of toilet or access to running water for 60 days; exposure to passive smoking and reduced time out of cell. The European Court of Human Rights (ECtHR) found a violation of Article 3 of the European Convention of Human Rights.

CCSP reminded the participants of the key findings for the ECtHR:

  • § 127  (…) The Court notes that the problems of prison overcrowding in Belgium, as well as the problems of hygiene and ageing prison infrastructure are of a structural nature and do not only concern the personal situation of the applicant. (…)

    (…) none of the remedies invoked by the Belgian Government could be considered effective remedies to be exhausted.

  • § 128 In this context, the Court recommends that the Belgian State consider the adoption of general measures. On the one hand, measures should be taken to guarantee detainees conditions of detention in accordance with Article 3 of the Convention. On the other hand, detainees should have recourse to prevent the continuation of an alleged violation or to enable the person concerned to obtain an improvement in his conditions of detention.

CCSP summarised to participants the last Action Report from the Government (March 2022):

  • The authorities indicate that they must continue to adopt measures and conduct reflections in order to put an end to prison overcrowding and to ensure conditions of detention in accordance with international standards.

  • The authorities indicate that, regarding remand centers, they must continue to conduct reflections in order to better distribute the detainees.

Recommendations to the CM in relation to the Vasilescu v. Belgium judgment:

  • immediate reduction of prison overcrowding so that every prisoner has at least a bed.

  • continuous monitoring of the evolution of prison population and reinforcement of statistical services; preparation and implementation of prison policy on the basis of accurate data.

  • establishment of the Conseil pénitentiaire (Act of 23 March 2019) with the mission to evaluate the social and scientific relevance of the prison policy pursued

  • legislation that puts an upper limit to the number of prisoners.

  • implementation of an effective remedy.

Please see the slides for the full Briefing.

Relevant Documents (French)

This case concerns violations, between 2012 and 2014, of the rights of the applicant, a renowned investigative journalist, to respect for private life and reputation as well as to freedom of expression (violations of Articles 8 and 10). In the context of the present case, the applicant, after having published and contributed to articles criticising the alleged involvement of the President’s daughters in various commercial ventures, was sent a letter threatening her with public humiliation if she did not stop her investigative reporting. When she refused, a video featuring scenes of a sexual nature involving the applicant and her then boyfriend, taken with a hidden camera secretly installed in her bedroom, was posted on the Internet. Around the same time, newspapers ran stories accusing her of anti-government bias and immoral behaviour.

Khadija Ismayilova highlighted to participants the latest developments in individual measures:

  • The latest communication of the authorities is the first official confirmation of the fact that the investigation was suspended.

  • Investigation was ineffective, failing to take into account her status as journalist and the blackmail, treating the crime as a private matter, and failing to take steps capable of identifying the perpetrator.

  • Private information disseminated by Baku City Prosecutor’s office via email to still in public domain

  • All key findings during the investigation were done by her: she discovered the cables from the camera; she found the engineer who connected the cable to the state telephone company’s telephone box.

  • 2020 Memoir of former political prisoner Rufat Safarov contains new information about the identity of the perpetrator

  • In 2012, she lodged a complaint to remove the websites musavat.tv and irib2.info which originally published the video. She filed subpoena to request information about ownership data of the websites, obtaining information about the bank card used to open the website (however, the prosecutor took no further steps to identify the owner of the bank card).

  • In 2014, she discovered evidence, that the new website which published new parts of the video footage filmed back in 2012 was linked to the Ses newspaper: video was uploaded from the Ses Information Agency’s video program.

  • Newspapers and their reporters, who were part of the smear campaign against her were awarded with free apartments by the president funded media house project.

  • Illegal surveillance: Forensic examination of Amnesty International has found traces of Pegasus spyware in her phone

  • Video scandal is still affecting her life and relationships with friends and family

  • Constant mentions of video and extramarital relationship by the government supporters or troll army

  • Videos removed from the original site by the hosting company – but government never issued blocking decision about any website which published the video or links to it

Khadija Ismayilova highlighted latest developments in general measures:

  • Ongoing practice of surveillance, blackmail and smear campaign against journalists, gender activists, family members of political figures, women politicians.

  • Dozens of activists, journalists, lawyers, now in the process of demanding investigation into Pegasus spyware attack in Azerbaijan.

  • New Media Law is restrictive and opens new avenues for persecution against journalists who criticize the government.

Recommendations to the CM in relation to Khadija Ismayilova v. Azerbaijan judgment:

  • Reopen and conduct the investigation in respect of the interferences with her private life in a manner that is consistent with international human rights standards, by ensuring that the investigation is carried out in respect of the threatening letter, the secret filming and dissemination of intimate videos by unidentified persons as well as the public disclosure of the personal information in the authorities’ report on the status of investigation;

  • Ensure that, inter alia, concrete steps are taken to identify the perpetrator, and that the authorities send an inquiry regarding the identity of the account holder in connection with the ownership of the websites;

  • Immediately and comprehensively take such action as will ensure that all private content relating her private life that was the subject matter of this case, not least the details disclosed by the prosecutor in the context of the criminal investigation, be permanently removed from online sources;

  • Quash her criminal conviction and ensure removal of her conviction from state registry;

  • Provide compensation for travel ban and asset freezing;

  • Return the tax liability enforced against her as a result of illegal conviction;

  • Ensure justice in the tax case against Radio Free Europe/Radio Liberty and create conditions for their activity;

  • Recalling Recommendation CM/Rec(2022)4 of the Committee of Ministers to member States on promoting a favorable environment for quality journalism in the digital age as well as a positive obligation of the State to create a favorable and enabling environment, ensure safety and security of journalists, take immediate steps in order to effectively guarantee the freedom of expression and safety of journalists in Azerbaijan, and amend the domestic legislation accordingly.

  • Ensure that journalists are not being subject to criminal prosecution for the lack of accreditation in Foreign Ministry, and ensure the accreditation procedures are transparent and effective.

Please see the slides for the full Briefing.

Relevant Documents

Selahattin Demirtaş (No. 2) case v. Turkey

Overview of the case

The Court found that the applicant was detained in the absence of evidence to support a reasonable suspicion he had committed an offence (violation of Article 5 §§ 1 and 3) and that his arrest and pre-trial detention especially during two crucial campaigns pursued an ulterior purpose, namely to stifle pluralism and limit freedom of political debate (violation of Article 18 taken in conjunction with Article 5); that lifting of the applicant’s parliamentary immunity and the way the criminal law was applied to penalise the applicant for political speeches were not foreseeable and prescribed by law (violation of Article 10) and that his consequent detention made it effectively impossible for the applicant to take part in the activities of the National Assembly (violation of Article 3 of Protocol No. 1).

The briefing particularly focused on the Government’s argument that “new pieces of evidence” that had not been examined by the ECtHR have emerged and that the substance of the allegations against Mr. Demirtaş is now different. First, as regards the new evidence, Ms. Bingol argued that the Government's argument that an assessment of evidence is out of bounds for the CM is manifestly unfounded in view of the CM’s role in ensuring implementation of the judgment, including the part concerning the Article 18 violation. Second, the Government must convincingly explain why the evidence claimed to be ‘new’ appears only now, several years after the events, and following the ECtHR’s December 2020 judgment. Third, the Government fails to give clear and reliable information on the alleged ‘new’ evidence, failing to explain whether and why they are different from his statements given at the investigation stage. Moreover, heavy reliance is placed on supposed anonymous witnesses, yet reports illustrate an extremely worrying practice of the abuse of such witnesses in Turkey.

Recommendations to the CM in relation to Selahattin Demirtaş v. Turkey (2) judgment:

  1. To insist on the immediate release of Selahattin Demirtaş as required by the ECtHR judgment and indicate that continuation of Mr. Demirtaş’s detention in any form under criminal proceedings remaining within the scope of the Grand Chamber judgment constitutes a prolongation and entrenching of the violation of his rights under the Convention, as found by the ECtHR.

  2. To confirm that the Grand Chamber judgment clearly applies to Mr. Demirtaş’s ongoing pre-trial detention, the criminal proceeding under which he was convicted, and to any other ongoing or future proceedings or detention, in which the factual or legal basis is substantially similar to that already addressed, and found to violate his Convention rights, by the ECtHR in its judgment.

  3. To call for the halt of all criminal proceedings initiated against Mr. Demirtaş following the constitutional amendment lifting his parliamentary immunity, as the Grand Chamber found that the amendment did not meet the legality standard of the Convention, and that all proceedings initiated pursuant to it should therefore be deemed unlawful.

  4. To request the Government of Turkey to end the persecution through abusive criminal proceedings of Selahattin Demirtaş, including by dropping all charges under which he has been investigated, prosecuted and detained, which have pursued an ulterior purpose of stifling pluralism and limiting freedom of political debate, in conformity with the Court’s finding that his rights under Article 5(1) in conjunction with Article 18 were violated, and that his exercise of the right to freedom of expression was wrongfully used as evidence to incriminate him.

  5. To emphasize the continuing nature of the breach and that restitutio in integrum, in this case, requires – inter alia - the cessation of the persecution of Mr. Demirtaş through criminal proceedings, in the form of ongoing and future investigations, prosecutions and detentions, including pre-trial detentions, solely for his political activities and his political speech.

  6. In the event that Selahattin Demirtaş remains in detention at the time of the 1436DH 8-10 June 2022 meeting, to take the necessary steps to trigger infringement proceedings against Turkey under Article 46(4) of the Convention on the ground of its continued failure to comply with the ECtHR Grand Chamber’s judgment.

The Turkey Human Rights Litigation Project also recommended that the CM must now also decide whether new pieces of evidence advanced by the Government are really new, considering the Court’s findings concerning Article 18 in the principal judgment.

Please see our Civil Society Briefing from September 2021 for more information on this case.

Relevant Document

9.2 Submissions

9.1 Submissions

CM Decisions

 

New Report: Implementing Judgments Of The European Court of Human Rights Concerning Domestic and Gender-Based Violence

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EIN has released a new publication titled “Implementing Judgments of The European Court of Human Rights Concerning Domestic and Gender-Based Violence” on May 17th 2022. The project was launched last year and is supported by Luxembourg’s Ministry of Foreign and European Affairs.

Domestic and gender-based violence is a common and widespread problem across the Council of Europe region and beyond. Globally, 30% of women aged 15 and older have been subjected to physical and/or sexual intimate partner violence, non-partner sexual violence, or both at least once in their lifetime.

We highlight the value of the European Court of Human Rights judgments, and the potential that pending cases have in pushing governments to carry out wide-ranging reforms to combat and prevent domestic and gender-based violence. However, the judgments are only the beginning of the road to justice – they require implementation at the national level for rights to become a reality. Implementing human rights judgments requires individual measures, providing justice for the victim, and general measures requiring reforms in law/practices that prevent similar violations from recurring. Reforms to implement general measures are essential to address the factors contributing to the perpetuation of domestic and gender-based violence.

The key to the effective implementation of ECtHR judgments concerning domestic and gender-based violence is both proactive and good faith engagement of all key stakeholders in the implementation process. If national authorities, the Council of Europe, and civil society take an active role in implementation, these judgments can turn into rights for all.

We thank Luxembourg’s Ministry of Foreign and European Affairs for their support, without which we would not be able to make this report happen.

We hope that this report will highlight the potential of ECtHR judgments in ensuring that these judgments lead to change through training and assisting civil society from across Europe. 

More information about the project via our news publication here.

Read our interview on TM and CM v Moldova with Violeta Andriuța from Women's Law Centre concerning domestic violence, which highlights the fact that VAW is a repetitive issue and incremental reform is needed to address it.

EIN Board writes to the CoE Secretary General and Committee of Ministers to call for action on the implementation of ECtHR judgments

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The following letter was sent from the EIN Board to the Secretary General of the Council of Europe and the members of the Committee of Ministers.

Dear Secretary General and Ministers of the Member States of the Council of Europe,

We are writing an open letter to you in our capacity as the Board of the European Implementation Network (“EIN”). EIN is a Strasbourg-based network of 38 civil society organisations and individuals from 25 European states, dedicated to the full and timely implementation of judgments of the European Court of Human Rights (“ECtHR”).

At the end of this week, the conference of Ministers of Council of Europe states will be held in Turin. With this in mind, we are writing because EIN is deeply concerned about the current outlook for the implementation of ECtHR judgments – and as a result, the whole system of the European Convention on Human Rights (“ECHR”). This message sets out the following:

1.      There is a critical problem with the non-implementation of ECtHR judgments.

2.      The current state of non-implementation has very serious negative effects for the protection of democracy, human rights and the rule of law – threatening the existence of the ECHR system itself.

3.      The Council of Europe is failing to carry out a strategy capable of addressing the issue, apparently due to budgetary constraints.

4.      The Council of Europe should formulate an effective public strategy to address the systemic non-implementation of ECtHR judgments – and ensure it is properly resourced.

1.      There is a critical problem with the non-implementation of ECtHR judgments.

“Leading” judgments of the European Court of Human Rights are those which are classified by the Committee of Ministers of the Council of Europe as revealing a structural and/or systemic problem with human rights in a state. For example, if the European Court of Human Rights finds a systemic/structural problem with judicial independence, freedom of expression, or torture – and this problem has not been already identified in a case pending implementation – then the judgment becomes “leading”. In order for “leading” cases to be implemented, national authorities are required to carry out steps to address the underlying systemic/structural problem.

As of 1 January 2022, there are 1300 leading judgments pending implementation. Each of these represents a distinct structural and/or systemic human rights problem. This number has been rising, meaning that the problem with non-implementation is getting worse.  

Moreover, the average time that the 1300 leading judgments have been pending implementation is over six years. Furthermore, 47% of the leading ECtHR judgments from the last ten years are still pending implementation.

The data indicates that there is a systemic problem with the implementation of leading judgments of the ECtHR and that the situation is becoming more serious every year.

 

2.      The non-implementation problem has very serious negative effects for the protection of democracy, human rights and the rule of law – threatening the existence of the ECHR system itself.

The European Convention on Human Rights was created in the aftermath of World War II, as an early-warning system to identify and halt, amongst other things, the re-emergence of totalitarianism. Under the Convention system, the ECtHR would provide an objective analysis of whether a country’s laws and policies violated fundamental values, under the Court’s interpretation of the ECHR. The collective monitoring of the execution of judgments by the Committee of Ministers was further envisaged to bring peer pressure on countries that have been found to violate the Convention.

The ECHR system is designed not only to identify violations of human rights, but also to remedy them. The non-implementation of leading ECtHR judgments means that this system is not working effectively.

It is important to note that this issue is not confined to a particular country, or a particular part of the continent. The non-implementation of ECtHR judgments is a problem that is manifest across the entire Council of Europe. According to the Council’s latest annual report on the execution of ECtHR judgments, a total of 27 states have 10 or more leading judgments pending implementation: Albania, Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, France, Georgia, Germany, Greece, Hungary, Italy, Lithuania, Malta, North Macedonia, Poland, Portugal, Romania, the Russian Federation, Serbia, the Slovak Republic, Spain, Turkey, Ukraine and the United Kingdom.

In total, there are 1300 human rights problems identified by the ECtHR in leading judgments which have not been resolved. The most important aspect of the non-implementation of the 1300 pending leading judgments is that they threaten not only the protection of human rights, democracy, and the rule of law, but the existence of the ECtHR itself. Failing to resolve the human rights problems identified in leading judgments means that the same violations keep happening, and more applications come to the Strasbourg Court. There are now around 70,000 applications pending examination before a judicial formation at the ECtHR. The re-occurrence of violations and the resulting avalanche of applications is directly linked to the non-implementation of judgments.

One of the many examples of this urgent problem has been the non-implementation of judgments by  Russian Federation. Russia has the highest number of unimplemented leading ECtHR judgments out of any state. 214 leading judgments against Russia have never been implemented. This includes 90% of the leading judgments against Russia from the last ten years. Leading judgments from the ECtHR have highlighted the unlawful jailing of opposition figures, systematic bans on freedom of assembly, censorship, and limitless government surveillance. However, the Russian authorities have not remedied these systemic issues. These measures have been relied upon by the Russian authorities to prevent and quash public opposition to the invasion of Ukraine.

 

3.      The Council of Europe is failing to carry out a strategy capable of addressing the issue, apparently due to budgetary constraints.

At the meeting of the Committee of Ministers in Hamburg in May 2021, the Committee endorsed the strategic framework for the Council of Europe put forward by the Secretary General, for the period 2021-2024. The number one priority in the strategic framework is the implementation of the ECHR at national level and the implementation of ECtHR judgments.

However, one year after ECtHR implementation became a top strategic priority, it is not clear that this has also resulted in the identification of means which are capable of addressing the problem (such as those we set out below in section 4).

The part of the Council of Europe which is chiefly responsible for the implementation of ECtHR judgments is the Department for the Execution of Judgments. According to the Programme and Budget for 2022-2025, the department’s budget will stay the same in real terms as compared to 2021. The fact that there is a lack of much-needed additional resourcing for the Department  is recognised in the Council of Europe’s 2021 Annual Report on the Supervision of the Execution of Judgments of the ECtHR. In the report, the Director General of the Directorate General of Human Rights and Rule of Law, Christos Giakoumopoulos, notes that the Department for the Execution of Judgments is vital to the implementation process, and that, “For this reason, its resources, which are already extremely strained, need to be urgently strengthened” (page 32). These resources have not been strengthened and we have seen no plan to do this.

In terms of technical co-operation projects, the 2022-2025 budget identifies only one project to address the non-implementation of leading judgments (“Reducing the backlog of outstanding unexecuted leading judgments of the European Court of Human Rights”). This project has not received any funding from the ordinary budget and will rely on voluntary contributions (which may or may not arrive). Even if it is resourced, it will have a maximum budget of 1.3 million euros per year. This budget is too small to promote the implementation of 1300 leading judgments in 47 states. A Council of Europe project aiming to promote the implementation of just a few judgments in one state normally runs to hundreds of thousands of euros per year (see this example).

In terms of the work in standard-setting, the CDDH working group DH-SYSC V is currently preparing guidelines for states “to prevent and remedy violations of the European Convention on Human Rights” – including guidance on effectively implementing judgments of the ECtHR. They are due to be delivered before the end of 2023. These new guidelines are  welcome;  however, they will not be capable of addressing the implementation problem on their own. There have already been recommendations from the Committee of Ministers on this subject, which have not proved capable of preventing the implementation problem from worsening. For example, “Recommendation CM/Rec(2008)2 on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights” is named by DH-SYSCH V as one of 13 different recommendations and guidelines previously published by the Council of Europe concerning the prevention of violations of the Convention at the national level and the improvement of domestic remedies (see page 10 of the recent meeting report). Without more activities from the Council of Europe, including increased resources for the Department for the Execution of Judgments and dedicated co-operation projects, the new guidelines will remain theoretical and will not be put into practice where they are needed most.

Overall, there is an absence of a well-resourced implementation strategy that the ECHR system desperately needs. 

 

4.      The Council of Europe should formulate an effective public strategy to address the systemic non-implementation of ECtHR judgments – and ensure it is properly resourced.

If it has not already done so, the Council of Europe must formulate a strategy that is capable of addressing the systemic non-implementation of ECtHR judgments; publish this strategy; and ensure that it is adequately resourced.

EIN has drafted a series of recommendations that would promote the implementation of ECtHR judgments, which are provided in the attached document. Key proposals include:

·        Significant increases in funds for the Department for the Execution of Judgments;

·        A significant increase in technical co-operation projects focused on ECtHR implementation;

·        A special representative on the implementation of ECtHR judgments;

·        A new sanction by the Committee of Ministers for continued non-implementation;

·        Increased transparency of the implementation monitoring process and engagement with NHRIs/NGOs; and

·        Annual country-by-country assessments of the state of ECtHR implementation and national capacity in each state. 

Any credible strategy would require political will and financial resources commensurate with the scale of the problem. 

Effective implementation of the ECtHR’s judgments will reap huge benefits for the protection of human rights, democracy, and the rule of law; the preservation and strengthening of a common European legal space; and ultimately protecting European security by preventing the rise of authoritarianism. Conversely, continued systemic non-implementation presents grave challenges to Europe’s core values.

The European Court of Human Rights is often described as the “jewel in the crown” of the Council of Europe and its protections for human rights, democracy, and the rule of law.

It is time for the Council of Europe to protect this jewel, if it is to be preserved for future generations.

 

Signed by the EIN Board, composed of:

Chair of EIN Professor Başak Çalı, Co-Director of the Centre for Fundamental Rights, Hertie School of Governance, Berlin

Vice-Chair of EIN Professor Philip Leach, Professor of Human Rights Law at Middlesex University, London

Treasurer of EIN Dr Krassimir Kanev, Director of the Bulgarian Helsinki Committee

Secretary of EIN the Helsinki Foundation for Human Rights, represented by Marcin Szwed

Vice Secretary of EIN, Ramute Remezaite, Head of Implementation at the European Human Rights Advocacy Centre

Vivien Brassoi, Legal Director, European Roma Rights Centre, Hungary

Christian De Vos, Director of Research and Investigations, Physicians for Human Rights and Adjunct Assistant Professor of Political Science, Columbia University

Panayote Dimitras, Founder and Spokesperson of the Greek Helsinki Monitor

Ecaterina-Georgiana Gheorghe, Executive Director, Association for the Defence of Human Rights in Romania (APADOR-CH)

Judgment Watch, represented by Professor Malcolm Langford, Professor of Public Law at the University of Oslo

Kristina Todorovic, Attorney at law at the Lawyers’ Committee for Human Rights (YUCOM), Serbia

 
Discover EIN’s proposals for the work of the Council of Europe on the implementation of judgments of the European Court of Human Rights here.

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

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The European Implementation Network (EIN) and Democracy Reporting International (DRI) are delighted to present “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.

Over the past few years, governments, media and citizens have become increasingly alarmed about the backsliding of fundamental European values. This has led to a series of policy measures designed to halt and reverse the trend. In 2020, the European Commission adopted a new annual rule of law review cycle - and in a separate process, structural funds have been withheld as a result of its negative rule of law assessments. 

With the rule of law becoming an issue of sanctions and hard political controversy, the situation of the rule of law in EU member states should be correctly and exhaustively understood. A missing piece in this puzzle of rule of law shortcomings is the non-implementation of judgments of two key European courts: the European Court of Human Rights and the Court of Justice of the European Union. 

The non-implementation of judgments of the European Courts has become a systemic problem. 37.5% of the leading judgments of the European Court of Human Rights relating to EU states from the last ten years have not been implemented. Each of these judgments represents a significant or structural problem, often with direct consequences for many citizens. And yet, authorities have not implemented them.    

At the same time, the Court of Justice of the European Union (CJEU) is facing increasing contestation. Non-implementation of CJEU judgments is a recurring phenomenon with the EU Member States ignoring CJEU’s judgements since its inception. Yet, the resistance against the Luxembourg-based court has increased in recent years, with courts and governments in EU Member States openly challenging the top body of the EU’s judiciary. 

The EU’s response to the rise of democratic and rule of law backsliding is at an important stage of development. This is a key time to ensure that it is as effective as possible. We hope that this report will help put the implementation of European Courts’ judgments firmly inside the EU’s rule of law agenda, to be seen as an essential requirement of all European states. 

Joint Publication Event: Non-Implementation of European Court Judgments and the Rule of Law

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On Tuesday, 19 April at 11 am, the European Implementation Network (EIN) and Democracy Reporting International (DRI) will publish a joint report on the Non-Implementation of European Court Judgments and the Rule of Law. We will be launching the publication with a live online panel discussion event. You can register for our launch event here.

The panel will focus on the non-implementation of European court judgements, the impact on the rule of law in the EU, and possible solutions for the problem within the EU’s rule of law review cycle. The panellists include: Mr Florian Geyer, Head of Unit, Justice policy and rule of law, European Commission, Ms Sophia in ’t Veld MEP (Renew/The Netherlands), and Mr Christophe Poirel, Director of Human Rights, Council of Europe. Mr George Stafford, Director of EIN, will present the report - and the debate will be moderated by Mr Jakub Jaraczewski, Research Coordinator Rule of Law, DRI. 

Over the last few years, the governments, media and even citizens have become aware of the backsliding of fundamental European values in various countries. The European Union (EU) has adopted a series of policy measures designed to halt and reverse the trend. In 2020, the European Commission adopted a new annual rule of law review cycle. The EU institutions also introduced targeted measures, such as withholding structural funds from countries with severe infringements of the rule of law.

While targeted measures make sense for the extreme cases where governments destroy institutions of the rule of law in a systematic manner, we believe that the annual rule of law review cycle should also capture longer-term problems with the rule of law across all Member States, such as the non-implementation of judgments of two key European courts – the European Court of Human Rights and the Court of Justice of the European Union (hereafter, “the European Courts”).

The non-implementation of European Court judgments has become a systemic problem. 37.5% of the leading ECtHR judgments from the last ten years concerning EU countries have not been implemented. Each of these represents a significant or structural problem, often with direct consequences for many citizens. The non-implementation of Court of Justice of the European Union (CJEU) judgments is also a recurring issue. In recent years, resistance against the Luxembourg-based court has increased, with courts and governments in the EU Member States openly challenging it.

The EU’s response to rule of law challenges is at a crucial moment. We hope that this report will help put the implementation of European Court judgments firmly inside the EU’s rule of law agenda.