CoE’s High-Level Reflection Group provides Recommendations on ECtHR Implementation in its October 2022 Report

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In October the High-Level Reflection Group of the Council of Europe published its’ report relating to the Council of Europe’s role in responding to the new realities and challenges facing Europe and the world. Among other important topics, it addresses the coherence and the effectiveness of the Council of Europe human rights protection system and the implementation of judgments of the European Court of Human Rights.

EIN welcomes the report, its’ prioritisation of the implementation of judgments of the European Court of Human Rights, as well as the recommendations set out by the High-Level Reflection Group.

In July 2022, EIN wrote to the High Level Reflection Group to express deep concern about the current outlook for the implementation of ECtHR judgments and setting out a series of proposals to address this issue. Full details of these proposals are available in the attached document. We glad to see that many of the proposals set out by EIN are also reflected in the High-Level Reflection Group’s approach.

The High-Level Reflection group recognises that "continued efforts are needed, in particular, to address present day and future challenges" with regard to ECtHR implementation. These challenges include the increasing number of judgments delivered by the ECtHR that are pending implementation and the increasing length of time it takes for cases to be fully implemented. The report also highlights “signs of an increasing lack of compliance with the most basic human rights standards”, “which requires serious attention and more resolute action on the part of states within the collective system of the Council of Europe.”

Within this section of the High-Level Reflection Group’s Report, the Group also provide 12 recommendations on ECtHR implementation. Below, we highlight those that were contained in EIN’s call for action:

  • “Organising and maintaining a permanent dialogue with the competent national authorities, both at technical and political level and engaging, as appropriate, with independent agencies, NHRIs, legal professionals, academia or civil society.” 

    We welcome this recommendation which also falls in line with EIN’s proposal on a biennial meeting for litigators, NGOs, and NHRIs that engage in the implementation monitoring process, similar in structure to the biennial meeting organised by the European Court of Human Rights.

  • “Envisaging an increase of the Council of Europe’s co-operation and assistance capacity to support the execution of judgments of the Court, possibly by committing part of the Ordinary Budget to such activities.”

This reflects EIN’s proposal for an increase in the frequency and transparency of technical co-operation projects.

  • “Considering the issuing of graduated sanctions in cases of persistent noncompliance with a judgment by a member state.”

This approach also reflects EIN’s Recommendation to develop a procedure that lies between Interim Resolutions and the infringement procedure, which can create real and credible pressure to implement judgments.

Finally, we also appreciate the acknowledgement, in the High-Level Reflection Group’s report, that an increase of the capacities of the Department for the Execution of Judgments should be envisaged. EIN has advocated for an increase in funding for the Department for the Execution of Judgments; the problem of non-implementation is a resource issue, and adequate resources need to be allocated to this process.

We hope that the recommendations of the High-Level Reflection group can be put into action, in order to urgently address the non-implementation of ECtHR judgments.

Training Event: Implementing Judgments of the European Court of Human Rights in Turkey

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On November 3rd and 4th, EIN and Netherlands Helsinki Committee co-hosted an online training event focused on Implementing Judgments of the European Court of Human Rights (ECtHR) in Turkey. This two-day training aimed to equip NGOs and lawyers with knowledge of the execution process, in order to advocate for the full and effective implementation of ECtHR judgments.

The first day of the training event aimed to provide civil society organizations with an overview of NGO engagement in the ECtHR implementation process. Prof. Dr Basak Cali, EIN Chair, Professor of International law, and Director of the Centre for Fundamental Rights, Hertie School, started the event with an introduction, followed by a discussion with participants about their experiences and training expectations.

Next, the training focused on how NGOs can get involved in the ECtHR implementation process, presented by Ioana Iliescu, EIN Law and Advocacy Office and Agnes Ciccarone, EIN Programme and Finance Manager. The second presentation addressed best practices for NGO submissions, presented by Isik Batmaz, Head of the Section Department for the Execution of Judgments at the Council of Europe.

The second session, on the 4th of November, addressed (the lack of) ECtHR implementation in Turkey in the context of opportunities and challenges experienced by NGOs working on the subject in Turkey. It was introduced and moderated by Ramute Remezaite, Implementation Lead at the European Human Rights Advocacy Centre and EIN Board Member.

Ozlem Zingil, Lawyer at the Truth Justice Memory Center (Hafiza Merkezi) and Mümtaz Murat Kök, Projects and Communications Coordinator at the Media Law Studies Association (Medya ve Hukuk Çalışmaları) discussed their experiences with working on ECtHR implementation and lessons learned.

The final part focused on selected cases, with parallel breakout rooms to enable participants to discuss how to approach cases of particular interest. Participants gained new insights on how to draft submissions and strategies to have maximum impact on the execution process of a judgment and, ultimately, to contribute to better protection of human rights in the EU. Participants then presented their findings with the rest of the group on how they would engage in the implementation process in particular cases.

We thank everyone who participated in this event and the Netherlands Helsinki Committee, who co-organised the training.

Save the Date: EIN Online Training on Implementing Judgments of the European Court of Human Rights in Turkey

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The Netherlands Helsinki Committee and the European Implementation Network are pleased to announce the upcoming online training on Implementing Judgments of the European Court of Human Rights in Turkey. The training will take place between the 3rd and 4th of November 2022.

The online training aims to equip NGOs and lawyers so that they know how to use the Committee of Ministers judgment execution process and advocate for the full and effective implementation of ECtHR judgments. The training is structured in two working sessions each day (2.5 hours each). The first session aims to provide civil society organizations with an overview of NGO engagement in the ECtHR implementation process. The second session addresses (the lack of) ECtHR implementation in Turkey, in the context of opportunities and challenges experienced by NGOs working on the subject in Turkey. The second part of this session will focus on selected cases, with parallel breakout rooms to enable participants to discuss how to approach cases of particular interest.

Date/time

3rd of November 2022, Thursday, 15.00-17.30 TR time, and 4th of November 2022, Friday, 10.30-13.00 TR time

Registration

To apply for participation, please fill in the form HERE.

Type of Training

Webinar: Accepted participants will be provided with a link to connect to the Zoom session one week before the event

Working language

The training will be delivered in a mixture of Turkish and English language, with simultaneous interpretation.

EIN and NHC Event - Time for Action: Human Rights, Democracy, and the Implementation of Judgments of the European Court

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Yesterday, on the 20th of October, EIN co-hosted a briefing with colleagues from the Netherlands Helsinki Committee on the non-implementation of judgments of the European Court of Human Rights (ECtHR), with a particular focus on judgments concerning political persecution. The advocacy event took place in Berlin and was also supported by the Hertie School’s Centre for Fundamental Rights.

This briefing highlighted the critical problem with the non-implementation of ECtHR judgments. As of 1 January 2022, there are 1300 leading judgments pending implementation, which concern issues notably related to structural and/or systemic human rights problems. In addition, this number is rising, meaning that the problem is worsening and threatens democracy, human rights and the rule of law – and, as a result, the overall existence of the ECHR system itself.

The briefing set the scene for the non-implementation of ECtHR judgments across Europe and addressed cases involving victims of political persecution, such as the cases of Osman Kavala, Turkish philanthropist and human rights defender, and Intigam Aliyev, Azerbaijani human rights defender and lawyer. It also included a direct account of what it is like to be a political prisoner, despite having a judgment from the European Court in one’s favour, from Azerbaijani investigative journalist and former political prisoner Khadija Ismayilova. The briefing provided participants with the opportunity to gain more information on these crucial issues and discuss the best way to promote the implementation of ECtHR judgments.

The briefing was chaired by Dr. Hans-Jörg Behrens, Agent of the German Federal Ministry of Justice before the European Court of Human Rights and included interventions by Ramute Remezaite, EIN Board member, Implementation Lead at the European Human Rights Advocacy Centre (EHRAC), Khadija Ismayilova, Azerbaijani investigative journalist, former political prisoner, and Prof. Dr. Başak Çalı, EIN Chair, Professor of International Law, Co-Director of the Centre for Fundamental Rights, Hertie School, Berlin’s University of Governance.

We thank the Netherlands Helsinki Committee for co-hosting with us and the Hertie School’s Centre for Fundamental Rights for hosting the event space and everyone who was able to join us in person and online. 

For those that missed the event, you can watch the live stream here: https://www.facebook.com/NetherlandsHelsinkiCommittee/videos/5959728040706274

Upcoming Event - Time for Action: Human Rights, Democracy, and the Implementation of Judgments of the European Court of Human Rights

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On the 20th of October, EIN and the Netherlands Helsinki Committee will be hosting an event on the non-implementation of the European Court of Human Rights (ECtHR) Judgments. This event is also supported by the Hertie School’s Centre for Fundamental Rights. 

The aim of the event is to highlight the critical problem with the non-implementation of ECtHR judgments. As of 1 January 2022, there are 1300 leading judgments pending implementation. Each pending case represents distinct structural/systemic human rights problems which negatively effects the protection of democracy, human rights, and the rule of law. 

The event will discuss current pending cases involving political prisoners, including Alexei Navalny and Osman Kavala, and it will provide an account of what it is like to be a political prisoner despite having a judgment of ECtHR in one’s favour. The event will be an opportunity for participants to gain more information on these important issues, and to discuss the best way to promote the implementation of judgments of the European Court of Human Rights.

Event Details: 

Date/Time: Thursday 20th October from 17.15 to 19.00 CET (Doors at 17:00)

Location: Berlin, Germany

Chair:
Dr. Hans-Jörg Behrens, Agent of the German Federal Ministry of Justice before the European Court of Human Rights

Interventions:

The overall implementation of ECtHR judgments

Ramute Remezaite, EIN Board member, Implementation Lead at the European Human Rights Advocacy Centre (EHRAC)

The implementation of ECtHR cases concerning victims of political persecution:

Khadija Ismayilova, Azerbaijani investigative journalist and former political prisoner

Prof. Dr. Başak Çalı, EIN Chair, Professor of International Law, Co-Director of the Centre for Fundamental Rights, Hertie School, Berlin’s University of Governance

The language of the event will be English.

Registration form here

The deadline to register is 12:00 CET on the 15th of October.

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

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From 20-22 September 2022, the Council of Europe’s Committee of Minister’s Deputies will meet for their the 1443rd 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 19 members of the Council of Europe.

EIN members/partners, other civil society actors, lawyers and applicants have made 31 Rule 9 submissions for 17 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.

Overview of Submissions

Mahmudov and Agazade Group v. Azerbaijan

Violation: Violation of the right to freedom of expression, arbitrary application of the law on defamation.

Last Examination: CM/Del/Dec(2021)1419/H46-3 - 30 November - 2 December 2021

Latest Submissions:

Communication from an NGO (International Partnership for Human Rights) (19/08/2022) in the case of MAHMUDOV AND AGAZADE v. Azerbaijan (Application No. 35877/04)

Communication from an NGO (Media Rights group) (18/08/2022) in the case of MAHMUDOV AND AGAZADE v. Azerbaijan (Application No. 35877/04)

Ramazanova and others Group v. Azerbaijan

Violation: Breach of the right to freedom of association on account of the MoJ failure to respond on the applicants' requests for registration of their associations.

First examination (Standard procedure)

Latest submissions:

Communication from the applicant (08/09/2022) in the case of Democracy and Human Rights Resource Centre and Mustafayev v. Azerbaijan (Application No. 74288/14) (Ramazanova group, 44363/02)

Communication from the applicant (17/08/2022) in the case of Abdullayev and Others v. Azerbaijan (Application No. 69466/14) (Ramazanova group, 44363/02)

Bell v. Belgium

Violation: Excessive length of civil proceedings.

Last Examination: CM/Del/Dec(2021)1406/H46-6 - June 2021

Latest Submission: Communication from an NHRI (Institut Fédéral pour la protection et la promotion des Droits Humains (IFDH)) (29/07/2022) in the case of BELL v. Belgium (Application No. 44826/05)

Yordanova and Others v. Bulgaria

Violation: Eviction of persons of Roma origin on the basis of legislation not requiring adequate examination of the proportionality of the measure.

Last Examination: CM/Del/Dec(2021)1419/H46-9 - 30 November - 2 December 2021

Latest Submission: Communication from an NGO (Bulgarian Helsinki Committee) (21/07/2022) in the cases of YORDANOVA AND OTHERS and IVANOVA AND CHERKEZOV v. Bulgaria (Applications No. 25446/06, 46577/15)

Ilias and Ahmed Group v. Hungary

Violation: Authorities’ failure to assess the risks of ill-treatment before expelling the applicants, asylum-seekers, to a “safe third country”.

Last Examination: CM/Del/Dec(2021)1419/H46-17 - 30 November - 2 December 2021

Latest Submissions: Communication from an NGO (Hungarian Helsinki Committee) (05/08/2022) in the case of Ilias and Ahmed v. Hungary (Application No. 47287/15)

Communication from the Council of Europe Commissioner for Human Rights (12/08/2022) in the Ilias and Ahmed group of cases v. Hungary (Application No. 47287/15)

László Magyar Group v. Hungary

Violation: Life sentence without parole in combination with the lack of an adequate review mechanism.

Last Examination:CM/Del/Dec(2018)1318/H46-11 - June 2018

Latest Submission: Communication from an NGO (Hungarian Helsinki Committee) (29/07/2022) in the case of LASZLO MAGYAR v. Hungary (Application No. 73593/10)

I.D. Group v. Republic of Moldova

Violation: Poor conditions of detention in facilities under the authority of the Ministries of the Interior and Justice, including lack of access to adequate medical care; absence of an effective remedy.

Last Examination: CM/Del/Dec(2021)1406/H46-19 - June 2021

Latest Submission: Communication from NGOs (Promo-LEX Association and European Prison Litigation Network (08/08/2022) in the case of I.D. v. the Republic of Moldova (Application No. 47203/06)

Tysiąc, R.R., and P. and S. v. Poland

Violation: Absence of an adequate legal framework for the exercise of the right to therapeutic abortion in the event of disagreement between the patient and the specialist doctor (Tysiac) and lack of access to prenatal test enabling to take an informed decision on whether to seek an abortion (R.R.). Failure to provide effective access to reliable information on the conditions and procedures to be followed to access lawful abortion lawful abortion (P. and S.).

Last Examination: CM/Del/Dec(2021)1419/H46-25 - 30 November - 2 December 2021

Latest Submission: Communication from NGOs (Center for Reproductive Rights and the Foundation for Women and Family Planning) (17/08/2022) in the cases of R.R., TYSIAC and P. and S. v. Poland (Applications No. 27617/04, 5410/03, 57375/08)

Cegolea v. Romania

Violation: Discrimination related to the right to stand in parliamentary election and lack of judicial review regarding the fulfilment of an eligibility requirement that disadvantages national minority organisations not yet represented in Parliament

First Examination

Latest Submission: Communication from an NGO (Vox Mentis Foundation) (29/07/2022) in the case of Cegolea v. Romania (Application No. 25560/13)

S.C. Polyinvest S.R.L. v. Romania

Violation: Non-implementation of arbitral awards ordering a State-controlled company to pay various sums to the applicant companies.

Last Examination: CM/Del/Dec(2021)1419/H46-28 - December 2021

Latest submission Communication from the applicant (12/09/2022) in the case of Omegatech Enterprises Ltd. v. Romania (Application No. 24612/07) (judgment S.C. Polyinvest S.R.L. v. Romania, 20752/07) (Sacaleanu group, 73970/01)

Buntov Group v. Russian Federation

Violation: Torture inflicted in a correctional colony and lack of an effective investigation into the applicants’ allegations of ill-treatment.

Last Examination: CM/Del/Dec(2021)1411/H46-29 - September 2021

Latest Submissions:

Communication from an NGO (European Prison Litigation Network) (22/08/2022) in the case of BUNTOV v. Russian Federation (Application No. 27026/10)

Communication from an NGO (Crew Against Torture) (01/08/2022) in the case of BUNTOV v. Russian Federation (Application No. 27026/10)

Communication from the applicant (29/08/2022) in the case of (29/08/2022) in the case of BUNTOV v. Russian Federation (Application No. 27026/10)

Navalnyy and Ofitserov v. Russian Federation

Violation: Criminal convictions based on an unfair trial and an arbitrary application of criminal law (violations of Articles 6 and 7).

Last Examination: CM/Del/Dec(2022)1436/H46-26 - June 2022

Latest Submission: Communication from the applicant (02/06/2022) in the case of NAVALNYY AND OFITSEROV v. Russian Federation (Application No. 46632/13)

 Bati and Others Group v. Türkiye

Violation: Ineffectiveness of investigations against law enforcement officers in allegations of torture and ill-treatment and impunity.

Last Examination: CM/Del/Dec(2021)1411/H46-35 - September 2021

Latest Submission: Communication from NGOs (Truth Justice Memory Center, Human Rights Foundation of Turkey, and Human Rights Association) (29/07/2022)

Selahattin Demirtaş (no. 2) v. Turkey

Violation: Applicant’s arrest and pre-trial detention in the absence of reasonable suspicion that he had committed an offence and for the ulterior purpose of stifling pluralism and limiting freedom of political debate (Article 18 in conjunction with Article 5).

Last examination: CM/Del/Dec(2022)1436/H46-32 - June 2022

Latest submissions: Communication from the applicant (13/09/2022) in the case of Selahattin Demirtas v. Turkey (No. 2) (Application No. 14305/17)

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:  CM/Del/Dec(2022)1436/H46-31 - June 2022

Latest Submissions: Communication from NGOs (Human Rights Watch; International Commission of Jurists; Turkey Human Rights Litigation Support Project) (01/09/2022) and reply from the authorities (09/09/2022) in the case of Kavala v. Türkiye (Application No. 28749/18)

Communication from the applicant (22/08/2022) in the case of Kavala v. Turkey (Application No. 28749/18)

Communication from the representative of the applicant (11/07/2022) in the case of Kavala v. Türkiye (Application No. 28749/18)

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: CM/Del/Dec(2021)1411/H46-40 - September 2021

Latest Submissions: Communication from the applicant (29/08/2022) in the case of ORPHANIDES v. Turkey (Application No. 36705/97) (Xenides Arestis group, 46347/99)

Communication from the applicants (13/09/2022) in the cases of Demades, Diogenous and Tseriotis, Epiphaniou and Others, Evagorou Christou, Hadjiprocopiou and Others, Iordanis Iordanou, Lordos and Others, Ramon, Rock Ruby Hotels LTD, Saveriades, Skyropiia Yialias LTD and Xenides-Arestis v. Turkey (Applications No. 16219/90, 16259/90, 19900/92, 18403/91, 37395/97, 43685/98, 15973/90, 29092/95, 46159/99, 16160/90, 47884/99, 46347/99)

Communication from the applicant (13/09/2022) in the case of LOIZIDOU v. Turkey (Application No. 15318/89) (Xenides Arestis group, 46347/99)

McKerr v. the United Kingdom

Violation: Actions of security forces in Northern Ireland in the 1980s and 1990s; failure to conduct Article 2 - compliant investigations.

Last Examination: CM/Del/Dec(2022)1436/H46-35 - June 2022

Latest Submissions:

Communication from an NGO (Relatives for Justice) (01/09/2022) in the case of MCKERR v. the United Kingdom (Application No. 28883/95)

Communication from an NGO (The Malone House Group) (31/08/2022) in the case of MCKERR v. the United Kingdom (Application No. 28883/95)

Communication from the Council of Europe Commissioner for Human Rights (16/08/2022) in the MCKERR group of cases v. the United Kingdom (Application No. 28883/95)

Communication from an NHRI (Northern Ireland Human Rights Commission) (08/08/2022) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) and reply from the authorities (22/08/2022)

Communication from an NGO (Committee on the Administration of Justice) (29/07/2022) in the case of MCKERR v. the United Kingdom (Application No. 28883/95)

Communication from an NGO (Relatives for Justice) (02/06/2022) in the case of MCKERR v. the United Kingdom (Application No. 28883/95)

EIN Civil Society Briefing September 2022: Republic of Moldova, Turkey, Hungary and Croatia

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On 16 September 2022, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the Committee of Ministers Human Rights Meeting on 20-22 September 2022. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

1. I.D. v. the Republic of Moldova concerns poor material conditions of detention in establishments under the authority of the Ministries of the Interior and Justice and the lack of access to adequate medical care (including specialised medical treatment) in these facilities and the detention facility of the National Anticorruption Centre, together with the absence of effective domestic remedies in both respects (violations of Articles 3 and 13). Vadim VIERU, lawyer at Promo-LEX presented key positive developments, key shortcomings, key facts on the ground, and set forward recommendations.

2. The Skendzic and Krznaric v Croatia group of cases concern violations of the right to life on account of the lack of effective investigations into war crimes committed during the Croatian Homeland War (1991-1995) against the applicants’ next-of-kin who disappeared or were killed (violations of Article 2 in its procedural limb). Vesna TERSELIC, Director of Documenta - Center for Dealing with the Past, and Ms. Milena Čalić JELIC, Legal Advisor, discussed ongoing concerns regarding the promptness and adequacy of war crimes investigations, and set forward recommendations.

4. Ilias and Ahmed v Hungary, concerns the authorities’ failure to comply with their procedural obligation under Article 3 to assess the risks of ill-treatment before removing the two asylum-seeking applicants to Serbia in 2015. Andras LEDERER, Senior Advocacy Officer at the Hungarian Helsinki Committee, discussed domestic legal instruments in force leading to repeated violations, Action Reports, and how these translate to the reality on the ground, setting forward recommendations.

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 Benan MOLU and Ramazan DEMIR, legal representatives of Mr Demirtas.

I.D. v the Republic Moldova

Overview of the case:

The I.D. group of cases concerns violations of Articles 3 and 13 of the Convention on account of poor material conditions of detention in establishments under the authority of the Ministry of Internal Affairs and Ministry of Justice and the lack of access to adequate medical care (including specialized medical treatment) in those facilities, as well as the detention facility of the National Anti-corruption Centre, together with the absence of effective domestic remedies in both respects, as well as the implementation of the effective preventive and compensatory remedy, or a combination of remedies, in respect of inadequate conditions of detention. Other violations found by the Court concern the lack of reasonable clarity as to the scope and manner of the exercise of discretion by the prison authorities as regards the authorization of family visits, contrary to Article 8 of the Convention.

Photo Provided by Promo-LEX

Promo-LEX raised several concerns in relation to the new compensatory mechanism, which are related to:

  • The capacity of the investigative judges to apply the new preventive and compensatory remedy;

  • Risks of misinterpretation of the provisions of laws Nos 163 and 272;

  • A Non-uniform interpretation concerning the pecuniary compensations; the efforts implemented by the authorities to further reduce overcrowding, including through reduced recourse to detention on remand, as well as the construction of a new prison and medical assistance in prisons.

Regarding the efforts to reduce overcrowding, concerns were raised as to the following aspects:

  • prison population rate remains stable in the Republic of Moldova; no prisoner has been released to prevent the spread of COVID-19;

  • authorities failed to develop and adopt policies to reduce overcrowding in prisons by applying release mechanisms due to the COVID-19 pandemic;

  • authorities failed to apply measures to release from detention vulnerable groups of prisoners (such as prisoners with chronic diseases, prisoners over 60 years old, etc.) to reduce overcrowding in prisons and respectively, the COVID-19 associated risks.

Promo-LEX also set out concerns regarding the construction of a new prison, for which the implementation deadline was delayed since 2017 until December 2022, and regarding medical assistance in prisons, noting, inter alia, that:

  • The prison hospital does not comply with the national standards of a medical institution, does not have a health authorization for operation, does not have accreditation for the provision of medical services;

  • The prisoners' right to health is violated due to inadequate treatment, lack of medical staff and noncompliance with national treatment protocols and standards;

  • In the prison nr. 16 there is a lack of medical staff, in the staff states there are no nurse positions, these functions are performed by the detainees. Most medical workers agree to work due to military-grade incentives, which results in higher monthly incomes and faster retirement.

Recommendations:

With regard to the implementation of the preventive and compensatory mechanism, Promo-LEX set forward the following recommendations:

  • The Government to continue to provide statistics to the Committee of Minister's data as to the application in practice of the newly adopted preventive and compensatory remedy;

  • The Supreme Council of Magistracy to ensure that the Investigative Judges respect the terms set by law for examining the cases related to the application of the preventive and compensatory mechanism;

  • Ensure that the practice of the application by the investigative judges of the new remedy is effective and the pecuniary compensation (moral and material) provided to the detainees is equitable and following the ECtHR standards;

With regard to the improvement of detention conditions, Promo-LEX recommended that:

  • The National Prison Administration should implement the recommendations given by the CPT after its last visits during the period of 2015 – 2020, like reducing the levels of violence and reducing the overcrowding in cells;

  • The Government should ensure living space under existing international norms;

  • The Government should improve the quality and quantity of food and water provided to detainee;

With regard to the construction of a new prison, Promo-LEX recommended that:

  • Until the new prison is constructed, the Government should reduce overcrowding, particularly through the wider application of non-custodial measures as an alternative to imprisonment, in the light of the United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules);

  • The Ministry of Justice to provide a detailed timetable for the construction of the new prison in Chișinău and information on its general layout (overall capacity; size and design of accommodation cells; facilities for out-of-cell association activities, including areas for educational and vocational training, workshops, facilities for outdoor exercise and sport, etc.)

With regard to medical assistance in prison, the following recommendations were set forward:

  • The Ministry of Justice and the Ministry of Health, Labor and Social Protection should follow the recommendations given by UN Committee for Prevention of Torture and the recommendations made under the UPR and develop a public policy ensuring the transfer of health workers subordinated to the National Prison Administration under the subordination of the Ministry of Health;

  • The Government should provide appropriate and effective medical care of prisoners and detained persons, including adequate medicines;

  • The Government should ensure the recruitment of qualified medical personnel;

  • The Government should increase the budget allocated for health care in penitentiary institutions, including by developing the capacities and the infrastructure of the Pruncul Prison Hospital – P 16;

  • The Government and parliament should take prompt action to reduce the prison population in conditions allowing effective implementation in detention of the preventive measures required by WHO.

Please see the slides for the full Briefing.

Relevant Documents

Skendzic and Krznaric v Croatia

Overview of the case:

The group of cases concerns the lack of effective investigations into war crimes committed during the Croatian Homeland War (1991-1995) against the applicants’ next-of-kin who disappeared or were killed (violations of Article 2 in its procedural limb). The European Court found the following shortcomings in these investigations:

  • lack of promptness due to inexplicable delays and absence of serious efforts to establish the identity of the perpetrators;

  • lack of adequate investigations on account of:

    • (i) the authorities’ failure to identify and bring the direct perpetrators to justice (only members of the superior chain of command were brought to justice, while the authorities were also under the obligation to identify and bring to justice those who were directly responsible for the killing of the applicants’ next-of-kin);

    • (ii) the authorities’ failure to follow all available leads capable of identifying and bringing perpetrators to justice;

    • (iii) the examination of the circumstances surrounding the killing of the applicants’ next-of-kin remained at the level of a police inquiry, excluding involvement of an investigating judge, despite the existence of a large number of direct witnesses;

  • lack of independence in investigations which were entrusted to police stations employing officers suspected of being involved in the disappearance/killings.

Documenta - Center for Dealig with the Past raised the following key concerns:

  • There has been a decrease in the number of prosecutions and trials following EU accession;

  • Responsible County State attorneys are still lacking capacity for reviewing and investigating dormant war crimes cases;

  • Proceedings hold bias towards ethnic Serbs and there is failure in effectively investigating and indicting perpetrators of war crimes against ethnic Serbs;

  • In absentia trials are creating a high risk of re-opening proceedings;

  • Very limited regional judicial cooperation regarding prosecution of war crimes;

  • Accounting on missing persons is not updated since 2015;

  • The UN Special Rapporteur on Truth, Justice, Compensation and Guarantee of Non-Repetition notes the rise of political interference in the prosecution of war crimes.

The decrease in the number of prosecutions and trials since EU accession was recently highlighted by the UN Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, who has noted that:

  • “progress appears to have stalled in the last 7 years and concerns have risen regarding the prospects of effective social reconciliation, particularly as a result of growing instances of hate speech, the glorification of war crimes, and the relativization of the decisions of the ICTY and national tribunals.”

  • […] “progress was particularly strong in the 90’s and in the early 2000s during Croatia’s process of accession to the European Union. Numerous stakeholders have informed, nonetheless, that the number of prosecutions and trials has significantly decreased since, as did the regional cooperation in this field. Political interference has also reportedly risen.”

  • “Despite earlier progress, cooperation in the region has slowed down hampered by the lack of exchange of information and evidence across borders (which has been described by several interlocutors as a trade on missing persons) as well as the lack of effective investigation and prosecution of war crimes.”

It was indicated that the lack of adequacy and promptness of criminal proceedings is reflected in practice, and several examples were given:

  • The annulment and retrial in the case against Branimir Glavaš, former Member of Croatian Parliament Investigations of war crimes committed in Uzdolje in 1995

  • The investigation into war crimes committed in Bogdanovici in November 1991 Crimes committed during and after the Military Operations „Storm“ and „Flash“

  • War crimes committed against Serb civilians in Vukovar

  • Substantial reduction in the number of final verdicts reached in absentia.

  • Research carried out by Documenta and the Center for Peace, Nonviolence and Human Rights Osijek also indicated that, due to procedural issues “hearings very often start from the beginning, so witnesses who have already been directly heard multiple times are called to testify again”.

Regarding the insufficient capacity of state attorney teams to process cases, Documenta highlighted the limited capacity of county prosecutor’s offices to secure investigation of dormant cases which had been allocated in 2011.

Another concern is the fact that very few proceedings have been initiated for crimes committed by perpetrators against ethnic Serbs, which indicated that the investigations are not impartial irrespective of the ethnicity of those involved:

  • Of the total number of monitored criminal proceedings, during 2020, 40 (91%) were against members of Serbian paramilitary units/Yugoslav People's Army

  • During 2021 there were 38 (90%) of such proceedings

  • Only 1 person indicted as a member of HVO (Croatian Council of Defence – BiH) between 2020 - 2021

  • The UN Special Rapporteur on Truth, Justice, Compensation and Guarantee of Non-Repetition has also noted that “Proceedings have also been criticised for holding a bias towards ethnic Serbs. In this connection, international human rights mechanisms expressed concern that the selection of cases apparently remained disproportionately directed against ethnic Serbs and le noted that according to representatives of victims’ associations, many crimes allegedly committed by members of the Croatian Army and police forces in 1995 had not been investigated or prosecuted.”

The effectiveness of war crimes investigations is affected by the high number of in absentia trials which creates a high risk of overturning decisions:

  • During 2020 and 2021, 86% of former members of Serbian paramilitary formations/Yugoslav People's Army were tried in absentia.

  • For 2020 - 2021, 19% of the proceedings were reopened

  • The UN Special Rapporteur on Truth, Justice, Compensation and Guarantee of Non-Repetition has also noted that “Several of the proceedings conducted earlier on have faced criticism due to the fact that they have been conducted in absentia, as the alleged perpetrators resided in countries from where they could not be extradited. Some persons who were convicted in absentia requested the reopening of their proceedings, which resulted in a substantial reduction in the number of final verdicts reached in absentia.”

The limited regional cooperation is also a concern, which was highlighted by the UN Special Rapporteur on Truth, Justice, Compensation and Guarantee of Non-Repetition and by the chief prosecutor at the UN’s International Residual Mechanism for Criminal Tribunals in The Hague, who recently stated that:

  • Croatia is “taking political decisions to block the justice process” in 1990s war crimes cases.

  • “in the former Yugoslavia, the most significant issue remains regional judicial cooperation” in war crimes cases.

  • Bosnia and Herzegovina and Serbia “are experiencing severe difficulties obtaining cooperation from Croatia”.

Documenta also highlighted concerns regarding the judicial review of criminal investigations, highlighting that the Constitutional Court remedy has been effective for granting compensation (but not for seeing the effective investigations take place), as well as concerns regarding accounting for missing persons.

Please see the slides for the full Briefing.

Recommendations:

Documenta - Center for Dealing with the Past recommended to the Committee of Ministers to:

  • Continue examining the Skendizc and Krznaric group of cases under enhanced procedure;

  • Request the national authorities to accelerate the processing of pending cases, and to reverse the trend of decreasing prosecutions and trials;

  • Ensure that investigations, prosecutions and trials are carried without without ethnic bias (regardless of the ethnicity of the perpetrators and victims);

  • Take steps to increase regional cooperation, exchange of information and evidence across borders and take all necessary efforts to ensure in person trials.

  • Put an end to any political interference in the investigation, prosecution and trials of war crimes;

  • Update the accounting on missing persons and ensure it is accessible to the public;

  • Increase the capacity of county prosecutor’s offices in Osijek, Rijeka, Split and Zagreb to process “dormant cases”.

Relevant Documents

Photo Provided by Hungarian Helsinki Committee

Overview of the case:

The case of Ilias and Ahmed concerns the authorities’ failure to comply with their procedural obligation under Article 3 to assess the risks of ill-treatment before removing the two asylum-seeking applicants to Serbia in 2015. The Court found in particular that “there was an insufficient basis for the government’s decision to establish a general presumption concerning Serbia as a safe third country”, that “the expulsion decisions disregarded the authoritative findings of the UNHCR as to a real risk of denial of access to an effective asylum procedure in Serbia and summary removal from Serbia to North Macedonia and then to Greece, and that the authorities exacerbated the risks facing the applicants by inducing them to enter Serbia illegally instead of negotiating an orderly return”.

On behalf of the Hungarian Helsinki Committee, Andras Lederer discussed the general presumptions concerning the safety of Serbia as a third country and the legal instruments in force. He also highlighted the fact that the government does not foresee any change.

The Hungarian Helsinki Committee highlighted the fact that automatic removals to Serbia continue. The State Borders Act prescribes the automatic removal of unlawfully staying foreigners to the Serbian side of the border fence without identification, individualised procedure, formal decision or contacting the Serbian authorities. Concern also also raised regarding “access” to asylum:

• Sections 267-275 of the Transitional Act introduces a pre-approval system against which no remedy is available;

• Since May 2020, 86 statements of intent were sent to the asylum authority, 12 of these were approved;

•Those fleeing Ukraine who do not fall under the temporary protection scheme are also sent to Serbia;

• Regular denial of access to asylum on the territory, related domestic court decisions sabotaged or not implemented

Recommendations

The Hungarian Helsinki Committee recommend that the Committee of Ministers request information from the authorities concerning:

• The state of play of the reform of the asylum system allegedly underway since at least 20 October 2020, especially how it will contribute to the implementation of the general measures identified in the judgment

• Until the introduction of this reform, how authorities discharge their duties under Article 3 in the framework of the embassy system in cases where prospective applicants are staying in Hungary

Furthermore, the Committee of Ministers should request the authorities to:

• Conduct a new assessment on the situation of asylum-seekers in Serbia

• Repeal Section 51(2)(f) of the Asylum Act and review the related amendment to the Fundamental Law

• Repeal Section 5(1)(b) of the State Borders Act

• Amend Section 51(2)(e) and Section 51/A of the Asylum Act to ensure that the „safe third country” concept is applied in cases where the third country ensures access to territory and procedure

• Take measures that ensure effective access to territory and procedure at the borders and on the territory of Hungary regardless of their migratory status.

Please see the slides for the full Briefing.

Relevant Documents

Selahattin Demirtaş (no.2) 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.

The applicant’s legal representatives, explained that:

  • The charges against the applicant have not changed in substance

  • Witness/anonymous witness statements have not contained any substantially new facts capable of justifying a new suspicion and the substance of these statements had been based on facts that were similar or even identical to those that the Court had already examined in the Demirtaş v. Türkiye (no. 2) [GC] judgment.

  • The witness statements:

    • are contradictory, inconsistent and false,

    • their content and accusations essentially concern the events of 6-8 October and that Demirtaş is a member of/executive for a terrorist organisation—all of which have been carefully assessed and discussed in the Grand Chamber judgment,

    • are added to the case file approximately 2.5, 3.5, 17, 29, 32 and 33 months after the pre-trial detention decision and are used as tools to keep the applicant in prison.

  • Mr Demirtaş has not been released and has been held in pre-trial detention almost six years;

  • Türkiye have not acted in ‘good faith’, in a manner compatible with the ‘conclusions and spirit’ of the Demirtaş judgment (see also Osman Kavala v. Türkiye [GC], (46/4), para. 173).

The legal representatives of Mr. Demirtaş also explain the ongoing judicial harassment against the applicant:

  • ´4 years and 8 months prison sentence for allegedly ‘making propaganda for a terrorist organization’ (referred to as the second set of proceedings before the Committee of Ministers) – used as a tool to prevent the applicant’s release despite the ECtHR judgment and to prevent his participation in any election which may be held prior to 2026;

  • ´Following decisions of conviction, acquittal, separation and joinder of cases in 47 cases filed against the applicant, 20 cases remain pending under different courts;

  • ´New indictment prepared for the dissolution of the HDP and the political ban on politicians including the applicant – The Constitutional Court may prohibit Mr. Demirtaş from becoming the founder or member of any political party for five years;

  • ´Stigmatized as "terrorist" and "murderer" with the statements of high-level public officials'';

  • The Constitutional Court has not delivered any judgment for the application related to the second pre-trial detention of the applicant since 7 November 2019.

Recommendations

The applicant’s legal representatives urged the Committee of Ministers to:

i. continue the supervision of the implementation of the judgment Selahattin Demirtaş v. Türkiye (no. 2) [GC], as individual measures to ensure the applicant’s release and acquittal and other measures that will provide restitio in integrum have not been fulfilled;

ii. request the Government of Türkiye to release Mr Demirtaş immediately;

iii. request the Government of Türkiye to take measures compatible with the Grand Chamber judgment and to drop all the charges brought against the applicant together with the removal of all other negative consequences of the constitutional amendment;

iv. urge the Constitutional Court of Türkiye to conclude, without delay and in line with the Grand Chamber judgment, the individual applications which are listed between paragraphs 23 and 25 of our Rule 9.1 submission dated 17 May 2021;

v. examine the applicant’s situation at each regular and human rights meeting of the Committee until such time that he is released;

vi.invite the Secretary General of the Council of Europe, member states and international human rights organisations to raise the case and the ongoing judicial harassment faced by the applicant in diplomatic talks between members of the Council of Europe and Türkiye;

vii. write a letter to the Minister of Foreign Affairs of Türkiye to urge the Government to fully execute the Grand Chamber judgment;

viii. underline that the continuing detention of Mr. Demirtaş constitutes a violation of Article 46 of the Convention on the binding nature of final judgments of the ECtHR which may trigger Article 46/4 of the Convention.

Please see the slides for the full Briefing.

Relevant Documents

EIN concerned about litigation against the Greek Helsinki Monitor

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Photo Credit: EIN

EIN expresses concern about the charges and upcoming trials concerning Panayote Dimitras. Mr Dimitras is the co-founder and spokesperson of the Greek Helsinki Monitor (“GHM”), which is an EIN member. 

Part of the work of the GHM involves reporting to the Greek authorities instances of public incitement to violence or hatred against certain groups. GHM seeks to carry out this work in-line with the standards of the European Convention on Human Rights and EU legislation.

As a result of GHM’s complaints or complaint reports, various prosecutors have pressed charges in more than 150 cases, from which more than 80 were referred to trial. A worrying trend has developed of charges being brought against Mr Dimitras and GHM because of this work.

In February, EIN issued a public statement expressing concern over ‘false accusation’ charges brought against members of GHM. GHM staff had made the authorities aware of highly concerning public comments made by a Bishop, that GHM and the Central Board of Jewish Communities in Greece viewed to be antisemitic. The authorities pressed charges against GHM for making these reports – a step which was condemned by many international human rights organisations, including Amnesty International and Human Rights Watch. Nevertheless, Mr. Dimitras and Ms. Gilbert were convicted at first instance to a suspended imprisonment of twelve months. The trial on appeal is scheduled for 2023.  

EIN is concerned to see that more litigation has been started against Mr Demitras due to his work in reporting allegedly racist statements. He is now facing three new trials for false accusation and aggravated defamation. All three result from complaint reports submitted by Mr Dimitras between 2017 and 2019, highlighting public statements made by two politicians (Kostas Katsikis and Christos Kalyviotis) and a media figure (Yannis Zouganelis), that Mr Dimitras considered to be racist.

These proceedings risk having a chilling effect on Greek civil society, preventing work which seeks to highlight and condemn racist statements. The prosecution of Mr Dimitras is of great concern for EIN, raising important questions about the use of sanctions to punish and silence legitimate human rights work. 

EU takes up EIN/DRI proposals on the rule of law reports

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Last week the EU Commission published its 2022 Rule of Law Report. The report reviews the state of the rule of law in all 27 EU member states.

Together with Democracy Reporting International (DRI), the European Implementation Network has been leading 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 European Court of Human Rights and the Court of Justice of the European Union. A joint campaign by EIN and DRI has included a series of submissions to the EU’s rule of law consultation process, blogging, public events, private briefings, and the publication of a report ‘Justice Delayed and Justice Denied: Non-Implementation of European Court Judgments and the Rule of Law’.

We argued that the non-implementation of judgments of the European Courts has become a systemic problem. Some 37.5% of the leading judgments of the European Court of Human Rights (ECtHR) relating to EU states from the last ten years are still pending implementation. Each of these judgments relates to a significant or structural problem in the laws or practices of states, often with direct consequences for many citizens. This amounted to a serious rule of law problem: both because the subject-matter of the judgments included rulings concerning the independence and impartiality of the judiciary and the right to fair trial; and because the implementation of judgments is inherently a rule of law issue, which is fundamental to a system of checks and balances. If governments are able to exercise power without the limits placed upon them by courts - for instance, by ignoring court judgments - then the rule of law does not exist.

The joint report from EIN and DRI, published April 2022

In response to this, we proposed that the EU rule of law reports take into account the overall levels of implementation of leading judgments of the European Court of Human Rights. In order to facilitate this, we developed a methodology to assess ECtHR judgment implementation, taking into account three elements: the overall number of leading judgments pending implementation against a state; the percentage of leading judgments from the last ten years pending against a state; and the average length of time that leading judgments had been pending implementation. We applied this methodology to analyse the situation in all 27 EU member states, publishing the outcome in a joint report with DRI in April 2022.

Last week we were very pleased to see that the EU Commission has taken up our proposals. The communication concerning the 2022 reports notes the importance of the implementation of ECtHR judgments to the rule of law.

“The track record of implementing leading judgments of the European Court of Human Rights (ECtHR) is also an important indicator for the functioning of the rule of law in a country. The country chapters therefore for the first time include systematic indicators on the implementation of ECtHR leading judgments by all Member States.”
— Communication from the EU Commission on the 2022 Rule of Law Report

Each of the 27 country chapters includes an assessment of the overall levels of implementation of ECtHR judgments in the state concerned. These assessments apply our methodology of analysing three data points about the implementation of leading judgments, citing the contribution from EIN.

We welcome this development in the EU Commission’s rule of law reporting, hoping that it enhances both the EU’s rule of law procedures and the implementation of judgments of the European Court of Human Rights. We are grateful to the EU Commission for its open engagement on this issue – and to the MEPs who have supported this campaign, including Katerina Barley, Sophie in 't Veld, and Thijs Reuten.

Our project was made possible through the generous support of the Stiftung Mercator Foundation.

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.