Fourth CoE Summit: EIN calls for Reforms to Improve the Implementation of Judgments of the European Court of Human Rights

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The Fourth Summit of the Council of Europe is a crucial opportunity to renew an institution that is central to Europe’s future. 

EIN is deeply concerned about the current outlook for a fundamental aspect of the Council of Europe’s work: the implementation of judgments of the European Court of Human Rights (“the Court” or “ECtHR”). 

The Summit is a vital opportunity to honestly face the challenge of implementation - and to give the Council of Europe the support it needs to ensure that the European Convention of Human Rights system (“the ECHR system”) is both fully functional and protected for future generations.

In this context, last week EIN sent a Briefing Note to the members of the Committee of Ministers, setting out the need for reforms to improve the implementation of judgments of the European Court of Human Rights.

This note sets out the following points: 

  1. The implementation of judgments of the European Court of Human Rights has been invaluable for protecting human rights, democracy and the rule of law in Europe. 

  2. However, there is now a critical problem with the non-implementation of ECtHR judgments. 

  3. The current state of non-implementation has serious negative effects for the protection of fundamental values – threatening the existence of the ECHR system itself. 

  4. An outcome of the Fourth Council of Europe Summit must be well-funded reforms to improve the implementation of ECtHR judgments.

    This should include:

    • A special representative on the implementation of ECtHR judgments; 

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

    • Increased funding for the Department for the Execution of Judgments; 

    • Increased participation in CM/DH meetings by relevant government ministers; 

    • Increased frequency of CM/DH meetings; 

    • Ensuring that Infringement Proceedings are used more frequently, speedily, and resolutely; 

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

    • Increased transparency of the implementation monitoring process and engagement with NHRIs/NGOs. 

We believe that the proposals set out above should form the core of an effective implementation strategy, following the Fourth Summit.

For more details on these proposals, you can access the full EIN Briefing Note below:

EIN Civil Society Briefing February 2023: Turkey, Hungary, and Bulgaria

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On the 27th February 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1459th Committee of Ministers Human Rights Meeting on 7th – 9th March 2023. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

  1. The Oya Ataman v Turkey case concerns the violation of the right to freedom of assembly, ill treatment of applicants as a result of excessive force used during demonstrations. This presentation was given by Mümtaz Murat Kök, Project Coordinator and Editor at Media and Law Studies Association and Beril Onder, Project Lawyer at the Turkey Human Rights Litigation Support Project.

  2. Baka v Hungary case concerns lack of access to a court as regards the premature termination of the applicant’s mandate as President of the Supreme Court which also led to a violation of his right to freedom of expression. This presentation was given by Erika Farkas, Legal Officer at the Hungarian Helsinki Committee.

  3. The Stanev v Bulgaria case concerns the applicant’s unlawful placement in a social care home for persons with mental disabilities; lack of judicial review and poor living conditions and the impossibility to request the restoration of his legal capacity. This presentation was given by Simona Florescu, Litigation Manager at Validity, and Aneta Mircheva, Lawyer at the Network of Independent Experts.

  4. The freedom of expression cases (Öner and Türk v Turkey/ Nedim Sener group/Altug Tanar Akcam group/Artun and Guvener group/ Isikirik Group) which specifically concerns the unjustified interferences with freedom of expression, in particular through criminal proceedings, including defamation, and the consequent chilling effect. Unforeseeable conviction of membership of an illegal organisation for the mere fact of attending a public meeting and expressing views there. This presentation was given by Mümtaz Murat Kök, Project Coordinator and Editor at the Media and Law Studies Association.

Oya Ataman v Turkey

The Oya Ataman v Turkey case concerns violations of the right to freedom of peaceful assembly, including the prosecution of participants and/or the use of excessive force to disperse peaceful demonstrations. Certain cases also concern unjustified detention orders against the participants, failure to carry out effective investigations into the applicants’ allegations of ill-treatment or lack of an effective remedy in this respect (violations of Articles 2, 3, 5, 10, 11 and 13 of the Convention).

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project provided participants with an update on legislative developments that they included in their Rule 9 Submissions:

Law No.2911 on Demonstrations and Public Meetings

  • Law No. 2911 allows local authorities to: 

    • impose unwarranted restrictions on the right of peaceful assembly;

    • impose blanket bans on all demonstrations and events; 

    • enforce dispersal and impose criminal and administrative sanctions against those who attempt to exercise their right to peaceful assembly.

  • Lack of any comprehensive legislative measures in fully aligning Law 2911 with Convention standards.

  • The amendments made between 2014-2018 to Law No. 2911 have already been examined by the CM in its previous meetings: they are not Convention-compliant.

    Additional restrictions in the aftermath of state of emergency

  • After the attempted coup d’état of 15 July 2016, under the state of emergency, Article 11 of Law No. 2935 on the state of emergency granted broad powers to governors, restricting the freedom of assembly and movement along with other freedoms, which significantly affected civil society activities.

  • Severe restrictions such as blanket bans on peaceful assemblies were frequently imposed.

  • Although the State of emergency formally ended on 18 July 2018, serious restrictions placed under the emergency regime were incorporated into permanent legislation.

  • On 25 July 2018, Law No. 7145 (an ‘omnibus law’) introduced emergency-type restrictive measures into several ordinary laws.

    • Amendments to Articles 6 and 7 of Law no. 2911

    • An amendment to Article 11 (C) of Law No. 5442 on Provincial Administration allows (allowing provincial governors to ban the entry or exit of individuals to their provinces for fifteen days).

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project gave participants an update on recent developments concerning the authorities application and interpretation of domestic law:

Blanket and specific bans on demonstrations and events

    • Under Law No. 2911 and Law No. 5442, provincial governors have regularly imposed bans on demonstrations and events in many provinces

    • Some governors automatically extended an existing ban by imposing another ban at the end of the previous one, creating an uninterrupted ban for a period much longer than 30 days.

    • In the Eastern city of Van, a general ban on all public gatherings and events was first imposed on November 21, 2016, and with the additional bans introduced by the authorities, all public gatherings and events were banned uninterruptedly until 27 June 2022.

Police interventions with excessive use of force

  • The examination of Turkish law enforcement officials’ practices during assemblies reveals, in particular, the following:

    • The police systematically enforce the dispersal of assemblies despite their peaceful nature.

    • While dispersing the crowd, the police persistently use excessive force on protestors, which could result in ill-treatment or torture, and mass arrest.

    • The authorities have failed to set up a functioning system for an ex post facto review to assess the reasonableness and proportionality of use of force on protestors.

Criminalisation of peaceful protestors

  • The widespread and systematic use of Law no. 2911 and 5442 against peaceful protestors

    • Criminal sanctions under Law no 2911

    • Misdemeanour fines under Law no. 5326.

    • Large number of criminal investigations and prosecutions under Law no. 2911

  • Peaceful protestors may also easily face other charges under criminal law

    • Article 265 § 1  of the Criminal Code for obstructing the security forces in the execution of their duties by way of resistance together with other persons

    • Article 299 of the Criminal Code for insulting the President of the Republic because of the slogans chanted during assemblies

    • Prevention of Terrorism Act (Law no. 3713

Media and Law Studies Association also provided trial monitoring data and information on criminal proceedings in the context of freedom of assembly. Between 1 September 2021 and 20 June 2022, at least 800 people stood trial for “defying the Law no. 2911 on Demonstrations and Assemblies” in 39 different trials, as recorded through trial monitoring by MLSA.

The majority of these people stood trial for “attending illegal demonstrations and marches and failing to disperse despite being warned and despite the use of force (Article 32/1 of the Law no. 2911).”

They set out examples of repressed assemblies in the Istanbul and Eskişehir Pride Marches, as well as the Saturday Mothers protests.

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project provided their recommendations on general measures, asking the Committee of Ministers to:

  • Continue the supervision on the execution of the Oya Ataman group of cases under the enhanced procedure and at more frequent intervals;

  • Urge Türkiye to revise its Action Plan and address in full the structural problems arising from the domestic legislative framework identified by the ECtHR in the Oya Ataman group; 

  • Call on Türkiye to amend Law No. 2911 to ensure that its provisions are fully in line with the principles set  out in the case law of the ECtHR; 

  • Call on Türkiye to amend Law No. 5442 to ensure that its provisions are fully in line with the principles set  out in the case law of the ECtHR; in particular, amend Article 11(C) which grants broad  powers to governors to ban both peaceful public assemblies and indoor human rights  events;

  • Call on Türkiye to review the 2016 Directive on the use of tear gas and other crowd control weapons to  ensure that it complies in all respects with international standards in relation to the use  of crowd control weapons;

  • Call on Türkiye to put in place an effective ex post facto review mechanism to assess the reasonableness and proportionality of any use of excessive force by law enforcement  officials;

  • Call on Türkiye to stop the criminalization of the members of civil society who exercise their right to freedom of peaceful assembly.

Please see the slides for the full Briefing.

Relevant Documents:

The Baka v Hungary case concerns the premature termination of the applicant’s term of office as President of the Supreme Court, which was found to have violated his right of access to a court as guaranteed by Article 6 § 1 because of the absence of judicial review. The Court found that these measures had been prompted by the views and criticisms expressed by the applicant on issues of public interest (planned major reform of the judicial system) and had violated Article 10 as they had not pursued any legitimate aim linked to the judicial reform at issue, nor had the measures been necessary in a democratic society.

Hungarian Helsinki Committee reminded participants of the key violations found by the ECtHR:

  • Violation of Article 6 ~ undue and premature termination of Judge Baka’s mandate as President of the Supreme Court through ad hominem legislative acts of constitutional rank and therefore beyond judicial control.

  • Violation of Article 10 ~ prompted by views and criticisms he expressed on reforms affecting the judiciary.

  • Exerting a ’chilling effect’ on other judges discouraging them from participating in public debate on legislative reforms affecting the judiciary and on issues concerning the independence of the judiciary.

Hungarian Helsinki Committee provided participants with further developments of this pending case by highlighting it’s impacts on authorities’ systemic undermining and the chilling effect of silencing the judiciary. In 2022, two massive smear campaigns were targeted against individual judges as members of the National Judicial Council:

  • Against Judge Vasvári (spokesperson of the NJC), following a public statement in ‘The Guardian’ stating that „we have been witnessing external and internal influence attempts” and that „we just want a transparent and meritocratic system”. Following these statements, a defamatory campaign in the governmental propaganda media ran for one week describing him as „blood judge”; „judge of terror”, and depicting the NJC as „a putty club”.

  • Against Judge Vasvári (spokesperson of the NJC) & judge Matusik (international rep.)

  • massive smear campaign for over a month & more than 450 publications

  • consciously built up and boosted

    • launched in an anonymous blog of the right-wing media

    • joined by pro-government think tanks

    • discrediting members of the NJC as judges

    • questioning their independence 

Hungarian Helsinki Committee provided recommendations to the CM for Hungarian authorities, who should:

  • evaluate domestic legislation with respect to guarantees and safeguards protecting judges from undue interference

  • address the issue of judicial independence holistically and comprehensively

  • refrain from and condemn any public harassment, intimidation or retaliation against judges, and provide effective protection from personal attacks against judges

  • abstain from any public critique, recommendation, suggestion or solicitation regarding court decisions that may constitute direct or indirect influence on pending court proceedings or otherwise undermine the independence of individual judges in their decision-making

Please see the slides for the full Briefing.

Relevant Documents:

The Stanev v Bulgaria case concerns the unlawful placement of the applicant, suffering from a mental health disorder, in a social care home (violation of Article 5 § 1(e)). The Court found that the placement, considered a social assistance measure, did not comply with the requirements of the domestic legislation because the authorities had not requested the consent of the applicant. The placement also did not comply with the conditions set in the case law of the Court regarding the detention of persons suffering from mental health disorders.

Validity outlined the ECtHR judgment and the implementation process of the case to participants, in addition, they highlighted the need for alternatives to residential care.

The NGOs argued that small group homes and family-type homes perpetuate institutionalization, by ensuring the repetition of the same patterns of violence, neglect and deprivation of rights for persons with disabilities, and by maintaining the same features of institutions.

The NGOs provided an example of violence in a family-type home: https://novini.bg/bylgariya/obshtestvo/465247

They argue that the CM is empowered to monitor small group homes (relevant for both Article 3 and Article 5) and that, under the Stanev judgment, the state should provide for viable alternatives to residential care. This is the only path forward for implementing the Stanev judgment in a manner that is human rights compliant, and does not perpetuate institutionalization.

The current situation in Bulgaria

  • Around 9 000 people with disabilities still living in big institutions (159 big institutions still are operating).

  • 271 small group homes

  • Waiting list – 1 580 people with disabilities are in the waiting list for placement in the residential care, because of lack of another possibility to receive care in the community.

  • The group homes are small institutions. The regime there becomes more and more restrictive.

The NGOs argue that it is imperative that the Committee continues to monitor the implementation of the judgment. They set out recommendations to the Committee of Ministers to request the Bulgarian authorities to:

  1. Develop and implement strategies to ensure that persons with disabilities in family-type homes have a path to live in the community; they have access to a complaint procedure and review of their placement;

  2. Provide data on the number of persons with disabilities having left residential care to live in the community;

  3. Make procedural accommodations to ensure that persons with disabilities participate in court proceedings;

  4. Ensure that procedural accommodations and information are provided before and at signing the contracts for placement in family-type homes.

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Communication from 8 NGOs (23/01/2023) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (03/02/2023) [anglais uniquement] [DH-DD(2023)139-rev]

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) (10/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) [anglais uniquement] [DH-DD(2022)547]

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 and Bulgarian Lawyers for Human Rights) (10/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (25/05/2022) [anglais uniquement] [DH-DD(2022)547-rev]

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]

Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group

The freedom of expression groups of cases (Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group) concern unjustified and disproportionate interferences with the applicants’ freedom of expression on account of criminal proceedings for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole (violations of Article 10).

Media and Law Studies Association updated the participants with recent developments of each case within the group of cases:

1.     Öner and Türk Group of Cases

The Öner and Türk group concerns unjustified convictions of the applicants mainly based on Article 6 § 2 (printing of statements made by a terrorist organisation) and Article 7 § 2 (propaganda in favour of an illegal organisation) of the Anti-Terrorism Law; Article 215 (praising an offence or an offender) and Article 216 (provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences) of the Criminal Code (violations of Article 10).

Article 6/2 of Anti-Terror Law : Printing or publishing declarations or announcements of terrorist organizations:

  • In its entirety, Article 6 of Anti-Terror Law continues to be a source of violations. 

  • Despite the claims of the authorities, the trials based on Article 6/2 of Anti-Terror Law continue and they constituted 1,7% of the charges during the monitoring period.

  • Prolonged trials and violations of the right to fair trial

    Article 6/1 of Anti-Terror Law:  Disclosing or publishing the identity of officials on anti-terrorist duties, or identifying such persons as targets

  • The ambiguous wording of Article 6/1 makes it possible for any public official (even retired ones) to be defined as “an official on anti-terrorist duties.”

    Article 7/2 of Anti- Terror Law: Propaganda in favor of an illegal organization)

  • Amended in 2013 → «the interpretation has been narrowed down the act of making propaganda for a terrorist organization by justifying, praising or inciting its methods, is not recognized as an offense if it does not contain violence, force or threat.»

  • A sentence added in 2019 → «expressions of opinion constituting criticism or not exceeding the limits of reporting, will not constitute a crime.»

  • Article7/2 charges, which were among the charges leveled against individuals in 62 cases, constituted 54% of the terrorism-related charges in this period. In 46 of these trials, journalists were the defendants.

  • Amendments and especially the 2019 addition to the article in no way protect the freedom of criticism or the press.

    Article 215 of the Turkish Penal Code: Praising an offense or an offender

  • The 2013 amendment to the Article 215 of the Turkish Penal Code has not solved the problems with the article and most importantly the problem of “unforeseeability” the Court had found in the case Yasin Özdemir v. Turkey. Individuals can still be charged and sentenced for their expressions which do not pose “an imminent and clear danger to public order.”

  • The lawsuit brought against journalist Cengiz Çandar and activist Kemal Işıktaş proves this point.

  • Indictment filed in 2020 cited social media posts shared in 2017 as evidence for the charges.

Article 216 of the Turkish Penal Code: Provoking the public to hatred, hostility, denigrating a section of the public

  • In their latest action plan, the authorities failed to inform the Committee about the progress or more appropriately the lack of progress regarding Article 216 of the Turkish Penal Code.

  • The article, however, is used more and more to stifle freedom of expression.

  • Examples of popstar Gülşen and journalist Mehmet Güleş demonstrate such tendency.

2.     Nedim Şener Group of Cases

The Nedim Şener group of cases concerns pre-trial detention of journalists on serious charges (offenses against the constitutional order and its functioning and establishing organizations for the purpose of committing crimes) and as per Article 100 of Code of Criminal Procedure.

  • There has been no amendment, no progress

  • Currently at least 61 journalists in prison. 26 out of 61 are in pre-trial detention.

  • Over the past 9 months, 26 journalists have been arrested over the suspicion of «membership in a terrorist organization (Article 314 of TPC and Article 7-1 of ATL)

    • On 16 June 2022, 16 journalists arrested in Diyarbakır

    • On 29 October 2022, 9 journalists arrested in Ankara

    • On 10 January 2023, journalist Sezgin Kartal arrested in Istanbul 

3.     Altuğ Taner Akçam Group of Cases

The Altuğ Taner Akçam group deals with prosecutions under Article 301 of the Criminal Code (publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army), which the Court found not to meet the “quality of law” requirement in view of its “unacceptably broad terms” (violations of Article 10).

Article 301 of the Turkish Penal Code

  • Contrary to the claims of the authorities, the 2008 amendment to the Article 301 has not solved the problems and thus the article continues to be a source of further violations.

  • During the monitoring period 25 people, including lawyers, journalists and politicians stood trial on this charge.

  • Continuous legal harassment of the Diyarbakır Bar Association

4.     Artun and Güvener Group of Cases

The Artun and Güvener group concerns unjustified interferences with the applicants’ right to freedom of expression on account of their criminal convictions for insulting public institutions, officials and the President under Articles 125 and 299 of the Criminal Code (the President, the Republic, police officers, tax inspectors etc.) (violations of Article 10). In the case of Vedat Sorli, the Court also indicated under Article 46 that bringing the relevant domestic law into line with the Convention would be an appropriate form of redress that would put an end to the violation found.

a.     Article 125 of the Turkish Penal Code: insulting

  • No amendment

  • 2005 amendment amended two clauses of the article : (4-openly insulting) and (5- insulting public officials working as a committee). Both increase the stipulated prison sentence.

  • There is no “Convention compliant attitude” when it comes to the application of Article 125.

  • 73 people, including journalists, lawyers, activists and politicians stood trial on these charges. The majority of the insult charges were “insulting a public official. (Article 125/3a)”

  • 2 years and 7 months prison sentence imposed upon the Istanbul Mayor Ekrem İmamoğlu for “insulting public officials who work as part of a committee because of their duties. (Article 125/5).”

b.     Article 299 of the Turkish Penal Code: insulting the president

  • No amendment → The authorities claim that the requirement of the Ministry of Justice authorization for prosecution (NOT investigation) («filtering mechanism») has «eliminated the concerns.». However, the 2005 amendment amended the second clause of the article (2- openly) and increased the stipulated prison sentence.

  • Contrary to the claims of the authorities that all the concerns regarding Article 299 have been eliminated through a “filtering measure” and Convention compliant case law, the article is applied in absolute defiance of the Vedat Şorli judgment of the court to punish criticism and stifle freedom of expression.

  • Furthermore, Article 299 of the Turkish Penal Code increasingly gives way to Article 5 violations as it can be seen in the examples of journalist Sedef Kabaş ; a 70 years old man who shared her remarks and Cihan Kolivar, the president of the Turkish Union of Bread Producers.

5.     Işıkırık Group of Cases

The Işıkırık group concerns Article 220 §§ 6 and 7 of the Criminal Code, which provide that anyone who commits a crime on behalf of an illegal organisation or who knowingly and willingly aids and abets an illegal organisation shall be sentenced as a member of that organisation. Based on these provisions, most of the applicants in this group of cases were sentenced to several years of imprisonment for membership of an illegal organisation for having, for example, peacefully participated in a demonstration called for by an illegal organisation, or expressed a positive opinion about such an organisation, without the prosecution having to prove the elements of actual membership. The Court criticised in particular the wording of the provisions and their extensive interpretation by domestic courts which did not provide sufficient protection against arbitrary interferences by the public authorities (§67) and therefore lacked foreseeability and had a chilling effect (violations of Articles 10 and 11).

a.     Article 220/6 of the Turkish Penal Code: Committing an offense on behalf of an organization without being a member

  • The sentence added to the Article 220/6 in 2013 has not narrowed down the interpretation and application of the article.

  • Furthermore, the article continues to be a source violation with regards to Article 11 and also criminalizes both peaceful demonstrations and journalists covering those demonstrations.

b.     Article 220/7 of the Turkish Penal Code: Aiding and abetting an organization willingly and knowingly without belonging to its structure

  •  Contrary to the claims of the authorities, the problems with Article 220/7 have not been eliminated and the article continues to be a source of violations.

  • During the monitoring period, 58 activists, 38 journalists and 13 politicians were tried on Article 220/7 charges.

  • Furthermore, 5 journalists and a media employee were sentenced for “aiding and abetting an organization willingly and knowingly without belonging to its structure.”

Media and Law Studies Association provided recommendations to the Committee of Ministers to:

  • Re-examine these groups of cases more frequently.

  • Request the authorities to revise their action plan so that they address structural problems arising from the legislative frameworks as identified by the ECtHR in these groups of cases.

  • Reiterate demands for amendments to Article 125 and 301 of the Turkish Penal Code and the abolition of Articles 220/6, 220/7 and 299 of the Turkish Penal Code. 

  • Urge the authorities to consider amending Article 6 of Anti-Terror Law so that it cannot be employed to intimidate investigative journalism.

  • Persistently request the authorities to provide up-to-date and detailed statistics on criminal investigations and prosecutions related to freedom of expression and the press, and to provide comments on these statistics.

  • Reiterate calls for strong high-level political messages from the authorities. 

  • Considering the absence of progress in the implementation of these groups of cases, as well as the repeated and extensive use of these legal provisions in order to target journalists, media employees and other persons exercising freedom of speech, the Chair of the Committee should send a letter to the Minister of Justice of Turkey regarding the non-implementation of these groups of cases.

Please see the slides for the full Briefing.

Relevant Documents:

EIN and GYLA February Training - Implementing Judgments of the ECtHR in Georgia

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On the 14th of February 2023, EIN and the Georgian Young Lawyers’ Association (GYLA) held training in Tbilisi on the implementation of the European Court of Human Rights (ECtHR) judgments in Georgia.

Judgments of the ECtHR have great potential to protect fundamental rights. Governments must provide justice for victims and ensure that repetitive structural and systemic issues do not continue by fully and effectively implementing the ECtHRs rulings. At the same time, NGOs have a vital role in the implementation process as they can contribute to ECtHR implementation by pressuring the national authorities to carry out necessary individual and general measures.

As of January 2022, out of Georgia's leading cases from the last ten years, 61% are still pending implementation. These cases, on average, remain pending for almost four years.

This training aimed to enhance the capacity of civil society in Georgia to engage with the process of implementation of judgments of the ECtHR.

The training event was introduced by Julie Nielen, Second Secretary at the Embassy of the Netherlands to Georgia. George Stafford, EIN Director, and Tamar Oniani, GYLA Head of the International Litigation Team, welcomed participants and provided opening comments.

After participants introduced themselves, George Stafford discussed the challenge of ECtHR non-implementation and why advocating for the implementation of ECtHR judgments can be a key to making progress in human rights protection in Georgia.

Next, Ioana Iliescu, EIN Law and Advocacy Officer, held a presentation about domestic advocacy for ECtHR implementation, setting out examples of good practices which have led to positive developments.

The following presentation was given by Ketevan Tskhomelidze, Legal officer at Department for the Execution of Judgments of the European Court of Human Rights. Ms. Tskhomelidze joined the group online and discussed the basics of the supervision system.

The final presentation was given by Agnes Ciccarone, EIN Programme Manager, provided participants with tips on drafting Rule 9 submissions.

In the afternoon session, EIN held individual meetings with NGOs representatives discussing selected cases pending implementation.

We thank everyone who joined the event, and we hope to see your submissions and engagement with the implementation of ECtHR judgments in the future.

New ‘country visits’ section on the website of the Department for the Execution of ECtHR judgments

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A new section is now available on the website of the DEJ. This section, called “Upcoming missions by the Department”, is available directly from the homepage of the DEJ, and provides dates of planned missions of DEJ lawyers in the countries.

EIN has been advocating for such information to be made public, in order to increase the interaction between NGOs present in the field, and the DEJ lawyers during their country visits. We are therefore very happy about this positive development, and encourage all EIN members and partners to make use of this information to advocate for their recommendations with regard to implementation of ECtHR judgments in their country.
The EIN Secretariat will monitor the DEJ website and inform relevant NGOs about upcoming visits.

We are grateful to the DEJ for their engagement on this issue and for continual reforms to enable input from civil society into the implementation monitoring process. 

The Department for the Execution of Judgments website can be found here.

EIN & GYLA February 2023 Training on Implementing Judgments of the ECtHR in Georgia

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On the 14th of February 2023, EIN and the Georgian Young Lawyers’ Association (GYLA) will be holding a training on the Implementation of ECtHR judgments in Georgia. The training will take place in-person, in Tbilisi.

Judgments of the European Court of Human Rights (ECtHR) have great potential to protect fundamental rights. Governments have an obligation to provide justice for victims, but also to ensure that repetitive structural and systemic issues do not continue happening by fully and effectively implementing the rulings.

As of January 2022, 61% of Georgia's leading cases from the last ten years are still pending implementation. The average time leading cases have been pending for is almost four years. 

NGOs have a vital role in the implementation process as they can pressure the national authorities to take measures and they can contribute to the improvement of ECtHR implementation.

This training aims to enhance the capacity of civil society in Georgia to engage with the process of implementation of judgments of the ECtHR. The training will be structured in two sessions.

The first session aims to provide civil society organizations with an overview of the implementation process in Strasbourg and the mandate of the Committee of Ministers of the Council of Europe. In addition, it will provide insights into how civil society organizations can become more engaged with the ECtHR implementation process at the national level.

The second session will offer a platform to NGO representatives for individual meetings with EIN staff members: appointments will be proposed to NGO representatives willing to get first-hand advice for cases of interest to them.

Venue - Rooms Hotel, Tbilisi, Georgia

Working languages - The training will be held in English. Interpretation in Georgian will be available. 

Registration deadline 5th February - https://forms.gle/AiJcR85HSPFvkXsw6

Participation is free of charge.

Participants will be invited for lunch.

The number of participants is limited to 25 persons.

Training Event: Implementing ECtHR Judgments Concerning Disability Rights and Mental Health in Romania

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On the 16th – 17th of January 2023, EIN held a two-day training session for NGOs, civil society activists, and self-representatives on implementation and Disability Rights and Mental Health in Romania.

This in-person training aimed to equip participants with the knowledge and tools they need to use the Committee of Ministers’ judgment execution process and to empower them to advocate for the full and effective implementation of the European Court of Human Rights (ECtHR) judgments in their field of work. 

There are currently 13 leading ECtHR judgments pending implementation in Romania which concern the rights of persons with intellectual and psycho-social disabilities and mental health: Centre for Legal Resources on behalf of Valentin Campeanu v. Romania, E.B. v. Romania, Cinta v. Romania, N. v. Romania, N v. Romania (no. 2), Parascineti v. Romania, Cristian Teodorescu v. Romania, R.D. and I.M.D. v. Romania, Ţicu v. Romania, Solcan v. Romania, Stepanian v. Romania, B. v. Romania (no. 2), Epure v. Romania.

EIN is aware that the disability rights movement in Romania faces persistent challenges, given the disconnect between the standards set out by the UN Convention on the Rights of Persons with Disabilities and the legal and practical realities on the ground. As the European Convention of Human Rights is a living instrument, the jurisprudence of the Committee of Ministers is also subject to evolution – an evolution which can be influenced by civil society organizations’ involvement in the process. The decisions of the Committee of Ministers can, in turn, function as effective advocacy tools at national level.

Georgiana Pascu, Program Manager at the Center for Legal Resources (CLR), introduced CLR’s activities which focus on accessible justice for persons with disabilities and its’ aim to enhance the implementation of ECtHR judgments concerning the rights of persons with intellectual and psycho-social disabilities and mental health in Romania.

The training was held by Ioana Iliescu, Law and Advocacy Officer at the European Implementation Network. In the first session, participants were provided with insights into why advocating for ECtHR implementation is necessary, but also how it can facilitate human rights progress on the ground. Further, Ms. Iliescu explained the basics of the ECtHR implementation process, with a focus on the key elements involved. 

The second session addressed how participants can get involved in the implementation process before the Committee of Ministers, providing participants with advice on making effective Rule 9 submissions to the Committee of Ministers, and presenting possibilities for expanding their “arsenal” of advocacy tools.

The third session of the training focused on the leading judgments concerning disability rights in Romania which are pending implementation, as well as their status of implementation, and on examples of good practices from other Rule 9 submissions made in ECtHR judgments concerning disability rights in other states.

The final training session concluded with an exercise giving participants the opportunity to discuss how they would engage with the implementation of the ECtHR judgments Parascineti v. Romania, which concerns living conditions and care afforded to patients in psychiatric hospital facilities, and Cristian Teodorescu v. Romania, which concerns legislative deficiencies as regards the procedure and safeguards for involuntary placement in psychiatric hospital facilities.

We thank everyone who joined the two-day training event, and we hope to see your submissions and engagement with the implementation of ECtHR judgments in the future. 

EIN Concerned by Further Persecution of Panayote Dimitras

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In 2021, migrants contacted the Greek Helsinki Monitor (GHM) concerning their arrival in Greece and their wish to apply to asylum. GHM co-founder and spokesperson Panayote Dimitras alerted the Hellenic Police, the Coast Guard, the Greek migration authorities, the UN Refugee Agency in Greece and the Greek Ombudsman about the arrival of migrant individuals in two Greek islands. 

Following these events, in October 2022, the Greek newspaper Kathimerini, published an article entitled “The Turkish coast guard and the activist: Trafficking ring with Greek connections”, alleging the involvement of human rights defenders in migrant trafficking into Greek Islands, indirectly referring to Mr. Dimitras as “the head of a human rights NGO” or “Greek head of the NGO”, as well as to human rights activist Tommy Olsen of Aegean Boat Report, and to criminal investigations filed against them on charges of “facilitating the entry of third country nationals into Greek territory".

At the end of 2022, Mr. Dimitras was summoned to appear before an investigating judge in connection with the following charges: a) forming and joining a criminal organization, b) facilitation by two or more [persons] of the entry into Greek territory of a citizen of a third country for profit and by profession concurrently and c) facilitation of illegal residence of a citizen of a third country for profit consecutively.  Furthermore, the prosecution has now proposed a restraining order which includes a ban to work for the Greek Helsinki Monitor in general, house arrest or ban to leave the country accompanied with bi-monthly presence at police station and a caution of 10,000 euros.

EIN expresses grave concern in relation to these renewed judicial measures taken against Mr. Dimitras, and with regard to the criminalisation of legitimate human rights work on the rights of migrants in Greece.

EIN Seminar: How can NGOs and NHRIs participate effectively in the execution process of the ECtHR Judgments?

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On November 30, 2022, EIN organised a Seminar in French on “How can NGOs and NHRIs participate effectively in the execution process of the European Court of Human Rights Judgments?” 

Since 2006, the rules of procedure of the Council of Europe's Committee of Ministers, the body which supervises the execution of the judgments of the European Court of Human Rights (ECtHR), gave the possibility to NGOs/NHRIs and other professional organizations to submit written communications to support the execution of the judgments of the Court.

The seminar brought together French-speaking representatives of NGOs, NHRIs and lawyers in the human rights sector who are interested in participating in the execution of the ECtHR judgments.

This seminar highlighted the vital role they can play in the implementation process. These organisations have immense knowledge of human rights issues in their respective country and can relay this information to the Committee of Ministers through the Rule 9 Submission mechanism.

The seminar began with a general discussion on the day's objectives by Agnès Ciccarone, EIN, Project Manager, and participants shared their motivation to be involved in the execution of ECtHR judgments and how they can do so.

Prune Missoffe, Head of Analysis and Advocacy, and Nicolas Ferran, Head of Litigation, Observatoire International Des Prisons, shared their experience in participating in the execution process of the JMB v France judgment. 

The final discussion of the seminar focused on how NGOs could increase the impact with the Committee of Ministers of the Council of Europe, which allowed participants to gain more insight into their role in the implementation process and discuss the best way to promote the implementation of ECtHR judgments.

We thank Observatoire International Des Prisons for sharing their experiences with the execution process and La Cimade for providing the location for the seminar. We would alo like to thank lawyer Flor Tercero and her NGO, ADDE, for her support in making this event possible.

Relevant Resources:

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

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From 6-8 December 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 45 cases from 21 members of the Council of Europe.

40 EIN members/partners, other civil society actors, lawyers and applicants have made the following submissions for 23 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.

Overview of Submissions

Luli and others group v. Albania

Violation: Excessive length of civil and criminal proceedings and absence of a remedy in that respect.

Last Examination: CM/Del/Dec(2020)1377/H46-1 - June 2020

Chiragov and others v. Armenia

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

Last Examination: CM/Del/Dec(2022)/1443/A1 - September 2022 

Latest Submission:

 1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (28/10/2022) (EHRAC) in the case of CHIRAGOV AND OTHERS v. Armenia (Application No. 13216/05) and SARGSYAN v. Azerbaijan (Application No. 40167/06)

Khadija Ismayilova group v. Azerbaijan

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

Last Examination: CM/Del/Dec(2022)1436/H46-1 - June 2022 

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (27/10/2022) (Legal Education Society) in the case of Khadija Ismayilova v. Azerbaijan (Application No. 65286/13)

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: CM/Del/Dec(2022)1443/H46-3 - September 2022

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (14/11/2022) in the case of Aliyev v. Azerbaijan (Application No. 68762/14) (Mammadli group, 47145/14)

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (14/11/2022) in the case of Azizov and Novruzlu v. Azerbaijan (Application No. 65583/13) (Mammadli group, 47145/14)

 1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (21/11/2022) in the case of Yunusova and Yunusov v. Azerbaijan (No. 2) (Application No. 68817/14) (Mammadli group, 47145/14)

Namazov group v. Azerbaijan

Violation: Lack of procedural safeguards in disciplinary proceedings, having led to the applicants’ disbarment for breach of professional ethics following verbal altercations with a judge.

Last Examination: CM/Del/Dec(2021)1411/H46-4 - September 2021 

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from NGOs (20/10/2022) (European Human Rights Advocacy Centre, the Independent Lawyers Network and the International Partnership for Human Rights) in the case of Namazov v. Azerbaijan (Application No. 74354/13)

Sargsyan v. Azerbaijan

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

 Last Examination: CM/Del/Dec(2022)/1443/A1 - September 2022

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (28/10/2022) (EHRAC) in the case of CHIRAGOV AND OTHERS v. Armenia (Application No. 13216/05) and SARGSYAN v. Azerbaijan (Application No. 40167/06)

United Macedonian Organisation Ilinden and others group v. Bulgaria

 Violation: Unjustified refusals by the courts to register an association aiming at achieving "the recognition of the Macedonian minority in Bulgaria".

Last Examination: CM/Del/Dec(2022)1428/H46-7 - March 2022

Latest Submission:

 1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (25/10/2022) in the case of UMO ILINDEN AND OTHERS v. Bulgaria (Application No. 59491/00)

J.M.B. and others v. France

Violation: Poor conditions of detention (overcrowding) and lack of an effective preventive remedy.

Last Examination: CM/Del/Dec(2021)1411/H46-12 - September 2021

Latest Submission:

1451e réunion (décembre 2022) (DH) - Règle 9.4 - Communication d'une autre organisation (Conseil national des barreaux) (02/11/2022) relative à l'affaire J.M.B. et autres c. France (requête n° 9671/15)  

1451e réunion (décembre 2022) (DH) - Règle 9.4 - Communication d'une autre organisation (Syndicat de la magistrature)) (02/11/2022) relative à l'affaire J.M.B. c. France (requête n° 9671/15)

1451e réunion (décembre 2022) (DH) - Règle 9.2 - Communication d'une NHRI (Commission nationale consultative des droits de l’homme (CNCDH) et Contrôleur général des lieux de privation de liberté (CGLPL)) (02/11/2022) relative à l'affaire J.M.B. c. France (requête n° 9671/15)

Khan v. France

Violation: Lack of care and protection of an unaccompanied foreign minor given his living conditions in the Calais “lande” and the non-enforcement of the order of the juvenile judge aimed at protecting him.

Last Examination: CM/Del/Dec(2021)1419/H46-13 - 30 November - 2 December 2021

Latest Submission:

1451e réunion (décembre 2022) (DH) - Règle 9.2 - Communication d'une ONG (Collectif d’associations de Calais) (24/10/2022) relative à l'affaire Khan c. France (requête n° 12267/16)

1451e réunion (décembre 2022) (DH) - Règle 9.2 - Communication d'une ONG (Défenseurs des droits de l'homme) (13/10/2022) dans l'affaire Khan c. France (requête n°°12267/16)  

Identoba and others group v. Georgia

Violation: Lack of protection against homophobic attacks during demonstrations.

Last Examination: CM/Del/Dec(2021)1419/H46-14 - 30 November -2 December 2021

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (27/10/2022) (Social Justice Center) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12)

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from NGOs (18/10/2022) (Social Justice Center and EHRAC) in the case of Mikeladze and Others v. Georgia (Application No. 54217/16) (Identoba and Others group, 73235/12)

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (21/10/2022) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12)

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from NGOs (19/10/2022) (European Human Rights Advocacy Centre, the Georgian Young Lawyers' Association and the Women's Initiatives Supporting Group) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12)

Tkhelidze v. Georgia

Violation: Failure to protect from domestic violence and to conduct an effective investigation into police inaction. 

First Examination

 Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (19/10/2022) in the case of Tkhelidze v. Georgia (Application No. 33056/17)

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from NGOs (26/10/2022) (Georgian Young Lawyers’ Association, Union Sapari, European Human Rights Advocacy Centre, International Partnership for Human Rights) in the case of Tkhelidze v. Georgia (Application No. 33056/17)

Bekir-Ousta and others group v. Greece

Violation: Refusal of domestic courts to register associations.

Last Examination:

CM/Del/Dec(2022)1436/H46-8 - June 2022 

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicants (12/10/2022) in the case of BEKIR-OUSTA AND OTHERS v. Greece (Application No. 35151/05)

1451st meeting (December 2022) (DH) - Rule 9.3 - Communication from an IGO (The Expert Council on NGO Law of the Conference of INGOs of the Council of Europe) (19/10/2022) in the case of Bekir-Ousta and Others v. Greece (Application No. 35151/05)

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (Greek Helsinki Monitor) (29/09/2022) in the case of BEKIR-OUSTA AND OTHERS v. Greece (Application No. 35151/05)

Gubacsi group v. Hungary

 Violation: Inhuman and degrading treatment by law enforcement officers and/or the lack of adequate investigations in this respect.

Last Examination:

CM/Del/Dec(2021)1419/H46-16 - 30 November - 2 December 2021 

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (26/10/2022) (Hungarian Helsinki Committee) in the case of GUBACSI v. Hungary (Application No. 44686/07)

X. v. North Macedonia

 Violation: Lack of legislation governing the conditions and procedures for changing on birth certificates the registered sex of transgender people.

Last Examination:

CM/Del/Dec(2021)1419/H46-24 - December 2021 

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from NGOs (Sexual and Health Rights of Marginalized Communities (MARGINS), and TransFormA) (03/10/2022) in the case of X v. "the former Yugoslav Republic of Macedonia" (Application No. 29683/16)

Al Nashiri group v. Poland

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

Last Examination: CM/Del/Dec(2022)1428/H46-21 - March 2022

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (18/10/2022) in the case of AL NASHIRI v. Poland (Application No. 28761/11)

Reczkowicz group and Broda and Bojara v. Poland

 Violation: Tribunal not established by law due, inter alia, to the fact that Supreme Court judges were appointed in a deficient procedure involving the National Council of the Judiciary, a body which since 2018 offered no sufficient guarantees of independence; violation of the right to access to court on account of the absence of judicial examination of the premature termination of the applicants’ term of office as vice-presidents of a regional court.

 First Examination

 Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (Helsinki Foundation for Human Rights (HFHR)) (18/10/2022) in the case of Broda and Bojara v. Poland (Application No. 26691/18)

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (Helsinki Foundation for Human Rights (HFHR)) (17/10/2022) in the case of Reczkowicz v. Poland (Application No. 43447/19)

Catan and others group v. Russia Federation

 Violation: Violation of the right to education of children and parents using Latin-script schools in the Transnistrian region of the Republic of Moldova. 

Last Examination: CM/Del/Dec(2022)1436/H46-21 - June 2022 

Latest Submission:

 1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (24/10/2022) (Promo-Lex) in the cases of MOZER and CATAN AND OTHERS v. Russian Federation (Applications No. 11138/10, 43370/04)

Mozer group v. Russia Federation

Violation: Various violations relating to the Transnistrian region of the Republic of Moldova. 

Last Examination: CM/Del/Dec(2022)1436/H46-25 - June 2022

Latest Submission:

 1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (04/10/2022) in the case of Istratiy v. Russian Federation (Application No. 15956/11) (Mozer group, 11138/10)  

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (24/10/2022) (Promo-Lex) in the cases of MOZER and CATAN AND OTHERS v. Russian Federation (Applications No. 11138/10, 43370/04)

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

Violation: Non-implementation of arbitral awards or final domestic court decisions ordering State-controlled companies to pay various sums to the applicant companies.

Last Examination: CM/Del/Dec(2022)1443/H46-22 - September

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (05/12/2022) in the case of Omegatech Enterprises Ltd. v. Romania (Application No. 24612/07) (judgment S.C. Polyinvest S.R.L. and Others (No. 20752/07))

Kačapor and others group v. Serbia

Violation: Non-enforcement of domestic decisions, including against socially-owned companies.

Last Examination: CM/Del/Dec(2020)1377/H46-35 - June 2020 

Latest Submission:

 Applicant Communications

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (20/10/2022) in the case of Popovic and Others v. Serbia (Application No. 31634/20) (R. Kacapor group, 2269/06)

NGO/NHRI Communications

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (02/11/2022) (Lawyers' Committee for Human Rights (YUCOM)) in the case of R. KACAPOR v. Serbia (Application No. 2269/06)

Selahattin Demirtaş (no. 2) group v. Türkiye

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

Last Examination:  CM/Del/Dec(2022)1443/H46-29 - September 2022

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (14/11/2022) in the case of Encu and others v. Turkey (Application No. 56543/16) (Selahattin Demirtas (no. 2) group, 14305/17)

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (17/10/2022) in the case of Selahattin Demirtas v. Turkey (No. 2) (Application No. 14305/17)

1451st meeting (December 2022) (DH) - Rules 9.2 and 9.6 - Reply from the authorities (14/11/2022) following a communication from NGOs (04/11/2022) 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)1443/H46-30 - September 2022 

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.1 - Communication from the applicant (12/10/2022) in the case of Kavala v. Turkey (Application No. 28749/18)

Opuz group v. Türkiye

Violation: Failure to provide protection from domestic violence.

Last Examination: CM/Del/Dec(2020)1390/H46-24 - December 2020 

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (İNSAN HAKLARI DERNEĞİ (HUMAN RIGHTS ASSOCIATION)) (21/10/2022) in the case of OPUZ v. Turkey (Application No. 33401/02)

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (Association for Struggle Against Sexual Violence) (18/10/2022) in the case of OPUZ v. Turkey (Application No. 33401/02)

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (Mor Cati Women's shelter Foundation) (12/10/2022) in the case of OPUZ v. Turkey (Application No. 33401/02)

Mckerr group v. 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)/1443/H46-32 - September 2022

Latest Submission:

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (28/10/2022) (Committee on the Administration of Justice) in the case of MCKERR v. the United Kingdom (Application No. 28883/95)

EIN Civil Society Briefing November 2022: France, Poland, and Turkey

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On 28 November 2022, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1451st Committee of Ministers Human Rights Meeting on 6 – 8 November 2022. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

1.     The J.M.B. and others v France case concerns prison overcrowding and poor conditions of detention and lack of an effective preventive remedy. This presentation was given by Prune Missoffe, Head of Analyses and Advocacy, and Julie Fragonas, Trainee Lawyer at Observatoire International des Prisons, Section France.

2.     A. The Xero Flor W Polsce SP. Z.O.O. v Poland case concerns an infringement of the applicant company’s right to a fair hearing due to the domestic courts' failure, in the context of civil proceedings, to examine its argument that secondary legislation limiting its right to compensation was unconstitutional.

2.     B. The Reczkowicz group case concerns an infringement of the right to tribunal established by law, due to the fact that the judges of the Disciplinary Chamber in the Supreme Court that dismissed the applicant’s cassation appeal against disciplinary penalty in 2019 were appointed in a deficient judicial appointment procedure involving the National Council of the Judiciary lacking independence from legislature and executive

 2.     C.  Broda and Bojara v Poland case concerns an infringement of the right to access to court on account of the premature termination of the applicants’ term of office as vice-presidents of a regional court on the basis of temporary legislation in force between 12 August 2017 and 12 February 2018, which did not allow for examination either by an ordinary court or by another body exercising judicial duties.

Marcin Szwed, Lawyer at Helsinki Foundation for Human Rights, presented on these cases concerning Poland.

3.     The Opuz group v Turkey case was presented by Elif Ege, Programme Coordinator at Mor Çatı, concerning the failure of the authorities to protect women from domestic violence, despite having been reasonably informed of the real and imminent risks and threats.

Overview of the case:

The J.M.B v France case concerns the structural problem of degrading treatment suffered by 27 of the applicants, due to prison overcrowding and poor conditions in the detention centres during different periods (2006 to date). It also concerns the lack of an effective preventive domestic remedy for 31 of the applicants, where administrative interim proceedings are ineffective in practice, due to the limited scope of the judge's injunctions and the difficulties in enforcing the overcrowding and dilapidation of prisons measures. 

Observatoire International des Prisons reminded participants of the last Committee of Ministers Decisions in the case from 2021:

·      Occupancy rates in the prisons concerned demonstrate the existence of a structural problem, where the Court recommended the government to adopt general measures aimed at “guaranteeing prisoners conditions of detention that comply with Article 3, in particular by ensuring the definitive reduction of prison overcrowding”.

·      Lack of an effective domestic solution to remedy living conditions that violate human dignity, and the Court recommended the government create an effective legal remedy to put an end to the inhumanity of living conditions in prisons.

Observatoire International des Prisons provided information on recent developments concerning prison overcrowding since the Courts judgment:

o  Prison overcrowding is a worsening situation, as the occupancy rate has increased to 141.5 % since the last CM examination.

o  Degrading living conditions are exacerbated by dilapidated and unsanitary conditions

o  There is a lack of a coherent long-term strategy

o   Constructing new prisons to address prison overcrowding fails to address the structural problem.

o   Regarding the new judicial remedy: there is no assessment tool of its’ efficiency; some detainees cannot benefit from it; it is not an effective tool to remedy overcrowding;

o   Regarding the “Référé-liberté” remedy: it is not an effective remedy either, as the issues identified by the ECtHR remain: there are delays with regard to the execution of the injunctions issued and there is a failure to order sufficient measures.

Observatoire International des Prisons outlined their recommendations to participants:

  • On prison overcrowding

    • Establishing a binding prison regulation mechanism

    • Adopting a national action plan ensuring the definitive reduction of prison overcrowding

    • Discontinuing prison expansion programmes and revising budgetary priorities

  • On the new judicial remedy

    • Creating monitoring tools to assess the effectiveness of the remedy

    • Reinforcing the effectiveness of the remedy

  • On the preexisting “référé-liberté”

    • Expanding the scope of measures a judge can order

    • Reinforcing the execution procedures

Please see the slides for the full Briefing.

Relevant Documents:

Overview of the Case:

This case concerns an infringement of the applicant company’s right to a fair hearing due to the domestic courts' failure to examine its argument that secondary legislation limiting its right to compensation was unconstitutional. It also concerns the infringement of the applicant company’s right to a tribunal established by law due to the participation of Judge M.M. in the Constitutional Court’s panel that rejected its constitutional complaint.

Helsinki Foundation for Human Rights reminded participants of the Court’s Judgment:

  • There was a violation of a right to a ‘tribunal established by law’ (Article 6 § 1 ECHR);

  • The judge was elected with a manifest breach of domestic law;

  • The violation ‘concerned a fundamental rule of the election procedure, namely the rule that a judge of the Constitutional Court was to be elected by the Sejm whose term of office covered the date on which his seat became vacant.’

  • An additional violation of Article 6: lack of justification of domestic courts for non-referring legal question to the Constitutional Tribunal

Helsinki Foundation for Human Rights provided participants with recent developments in the case:

  • Unlawfully elected persons continue to participate in the Constitutional Tribunal’s panels:

    • Between 7 May 2021 and 28 November 2022 the CT issued 16 judgments (out of total 21) and 45 decisions on discontinuation of proceedings (out of total 88) in irregular panels;

    • There were 39 decisions on discontinuation of proceedings initiated by constitutional complaints issued by the CT in panels with unlawfully elected persons

  • The Constitutional Tribunal questions the legitimacy of the Court’s judgments:

    • Judgment of 24 November 2021, no. K 6/21

    • Judgment of 10 March 2022, no. K 7/21

Helsinki Foundation for Human Rights outlines their recommendations for the case:

  • HFHR’s Rule 9 submission – 30 March 2022;

  • Unlawfully elected persons must be prevented from adjudication in the Constitutional Tribunal;

  • Domestic authorities must refrain from questioning the validity of the Court’s rulings;

  • The CoM should address in recommendations the problems with the status of decisions issued by irregular panels; and the prevention of external undue influence on the appointment of judges.

Relevant Documents

Overview of the Case
This case concerns an infringement of the right to access to the court on account of the premature termination of the applicants’ term of office as vice presidents of a regional court on the basis of temporary legislation in force between 12 August 2017 and 12 February 2018, which did not allow for examination either by an ordinary court or by another body exercising judicial duties

Helsinki Foundation for Human Rights reminded participants of the Court’s Judgment:

  • The Court ruled that there was a violation of Article 6 § 1 ECHR;

  • The applicants were completely deprived of access to court with regard to their dismissal from the office of vice presidents of courts;

  • The Minister’s decision did not contain any statement of reasons;

  • There was no available protection against arbitrary dismissals;

Helsinki Foundation for Human Rights provided participants with recent developments in the case:

  • The provisions on the basis of which the applicants were dismissed are no longer in force;

  • Currently, the Minister of Justice may remove the president/vice-president of court only on specific grounds enumerated in the law:

    • gross or persistent failure to discharge the duties;

    • remaining vice-president/president in office is incompatible with the interest of administration of justice;

    • particular inefficiency of president/vice-president in exercising administrative supervision or organising works in the court or lower courts;

    • voluntary resignation of president/vice-president.

  • The Minister must consult the college of a given court and if it opposes the dismissal, the Minister must also consult the National Council of Judiciary;

  • However, the negative opinion of the NCJ is not binding on the Minister unless it was issued with 2/3 majority;

  • The Minister’s decision cannot be challenged in court.

Helsinki Foundation for Human Rights outlines their recommendations for the case:

  • HFHR’s Rule 9 submission – 18 October 2022;

  • Implementation of the judgment on the general level requires the adoption of proper legislative measures;

  • There is a need for legislative change: the powers of the Minister of Justice to dismiss presidents/vice-presidents of courts must be limited in order to protect independence of the judiciary:

    • negative opinion of the NCJ should be binding on the Minister of Justice (as it was until 2017);

    • NCJ must be an independent and lawfully constituted organ;

    • limitation of the MoJ’s discretion in the appointment of court presidents will also be advisable

  • The decision of the Minister of Justice on the dismissal of presidents/vice-presidents of courts must be appealable to court;

  • Domestic authorities must refrain from questioning the validity of the Court’s rulings.

Please see the slides for the full Briefing.

Relevant Documents

NGO/NHRI Communications

1451st meeting (December 2022) (DH) - Rule 9.6 - Reply from the authorities (03/11/2022) following a communication from an NGO (Helsinki Foundation for Human Rights (HFHR)) (18/10/2022) in the case of Broda and Bojara v. Poland (Application No. 26691/18) [anglais uniquement] [DH-DD(2022)1168]

1451st meeting (December 2022) (DH) - Rule 9.2 - Communication from an NGO (Helsinki Foundation for Human Rights (HFHR)) (18/10/2022) in the case of Broda and Bojara v. Poland (Application No. 26691/18) [anglais uniquement] [DH-DD(2022)1139]

Reczkowicz group v Poland


Overview of the Case
This case concerns an infringement of the right to tribunal established by law, due to the fact that the judges of the Disciplinary Chamber in the Supreme Court that dismissed the applicant’s cassation appeal against disciplinary penalty in 2019 were appointed in a deficient judicial appointment procedure involving the National Council of the Judiciary lacking independence from legislature and executive (violation of Article 6 of the Convention).

Helsinki Foundation for Human Rights reminded participants of the Court’s judgment:

  • The Court ruled that there was a violation of a right to a ‘tribunal established by law’ (Article 6 § 1 ECHR);

  • Judges of the Disciplinary Chamber were appointed with manifest violations of domestic law;

  • Unconstitutionality of the current model of the election of judicial members of the National Council of the Judiciary (NCJ);

  • NCJ is no longer an independent body;

  • The Court presented a similar approach in subsequent cases concerning unlawfully elected judges of the Supreme Court.

Helsinki Foundation for Human Rights provided participants with recent developments in the case:

  • The independence of the NCJ has not been restored;

  • The Disciplinary Chamber was dissolved and replaced by the Professional Responsibility Chamber (PRC);

  • There are controversies around the PRC with regard to:

    • The procedure for the assignment of judges to the PRC;

    • 6 out of 11 judges assigned to PRC were appointed upon the request of reorganised NCJ.

  • Limited effectiveness of the procedure for verification of independence and impartiality of judges;

  • Disciplinary actions against judges who rely on the ECHR and EU standards.

Helsinki Foundation for Human Rights outlines their recommendations for the case; the Committee of Ministers should call for:

  • Restoration of the NCJ independence through reform of the procedure for the election of judicial members of the NCJ.

  • Unlawfully appointed persons must not participate in adjudication of individual cases;

  • The status of judgments issued by unlawfully appointed persons must be regulated;

  • Judges who apply standards developed by the ECtHR in Reczkowicz and other judgments must not face disciplinary charges;

  • Domestic authorities must refrain from questioning validity of the Court’s rulings.

HFHR’s Rule 9 submission of 14 October 2022 is available here.

Please see the slides for the full Briefing.

Relevant Documents

Overview of the Case

This group of cases concerns the failure of the authorities to protect women (the applicants or their female relatives) from domestic violence, despite having been reasonably informed of the real and imminent risks and threats (Articles 2 and 3). In the cases of Opuz, M.G. and Halime Kılıç, the Court also found that the failure to protect the women was discriminatory on grounds of gender (violation of Article 14 in conjunction with Articles 2 and 3).

Mor Çatı provided an update and recommendations for individual measures in the M.G. case, after reminding participants that, in the CM’s latest decision, it had reiterated “the importance of continuing to monitor the applicants’ safety, since their former husbands are not in detention:

  • The appeal proceedings are still pending and the applicant’s ex-husband has not been detained and continues to make threats against her.

  • The national authorities should speed up the proceedings in order to ensure that the perpetrator is brought to justice effectively, and should also urgently take measures to ensure the applicant’s safety.

Mor Çatı reminded participants that, on 20 March 2021, Turkey decided to withdraw from the Istanbul Convention. In relation to the latest Action Plan, Mor Çatı stated that the existing laws are presented as general measures; however, the main issue on the ground is the lack of implementation of these laws. There are no monitoring and evaluation processes to achieve standards in the implementation of the laws and there are no any sanctions against bad practitioners.

Mor Çatı provided updated information on the following areas:

  • Barriers to justice

    • Victims hesitate to file complaints due to distrust of system, deterrent behavior of public officials, lack of information, lack of qualified free legal support, long duration of the legal procedures, lack of protection and social and psychological support during long duration of legal procedures.

  • Reasonable time to ensure that investigative procedural steps are completed

    • Taking the statement of the suspect takes up to 1 year or more.

    • The trial process: The local court proceedings takes up to 1-2 years. It can take up to 2-3 years on average to conclude appealed case decisions. It can take approximately about 2-3 more years for cases before the Court of Cassation.

  • Risk assessment

    • The Penal Code does not include a specific regulation for risk assessment in the context of domestic violence offence, these measures are only available in the Law No. 6284.

    • Prosecutor’s Offices, Criminal Courts and Family Courts fail to conduct risk assessment in respect of perpetrators who repeatedly commit violent crimes against women.

  • Implementation of arrest warrants

    • Law enforcement do not conduct an effective search to execute the arrest warrants; arrests are made if the perpetrator is found by chance.

    • Arrests for warrants are sometimes never executed and years may go by. Those who are not arrested until the statute of limitations is expired have their

      sentence repealed.

  • Non-Deterrent Effect of Sentences and de facto impunity  

    • Sentences are usually imposed at the lower limit and a discretionary mitigation (mitigation for good conduct) is applied.

    • Mitigated sentences given for the offenses of bodily harm with intent, threat and insult are usually commuted to a fine, followed by a deferment of the announcement of the verdict, as a result of which even the fine is not paid de facto.

  • Discretionary mitigation and mitigation of sentences on account of unjust provocation

    • In the case of more serious offenses where the convict has started to serve the sentence, the full term of imprisonment is not served due to the practice of conditional release; due to legal regulations such as suspension of sentence, de facto impunity takes place even when the convict has started to serve the sentence.

    • Contrary to the legal provisions, the mitigation of sentences on account of “unjust provocation” results in a significant reduction in sentences based on a

      sexist practice.

  • Grounds for impunity

    • The courts ignore less serious offenses (e.g. offense of libel) when there is more than one type of crime is inflicted by the perpetrator.

    • Court decisions are influenced by the physical appearance (e.g. well-dressed etc.) and economic class of the perpetrator.

    • It is observed that the grounds for acquittals often refer to expressions such as “defendant’s persistent denial of charges”; and the presumption of innocence is used as a legal cover-up for impunity.

Mor Çatı set out their recommendations for the implementation of the Opuz group of cases. The CM should call on the authorities to:

  • Re-become a party to Istanbul Convention.

  • Establish state-wide effective, comprehensive and coordinated policies encompassing all relevant measures to prevent and combat all forms of violence.

  • In order to ensure an effective implementation of both the Penal Code and the Law No.6284, the state should present data on the existing official complaint mechanisms, how many complaints have been filed to these mechanisms and what the results were and on monitoring and evaluation mechanisms for the implementation of the relevant legal framework, including the number and result of investigations towards public officers for bad practice. The statistical data should be disaggregated by gender, age, type and frequency of violence, relationship between perpetrator and survivor, geographical location and disability status.

  • Ensure that bad practices by public officials are sanctioned.

  • Facilitate for women the right to file complaints also with the police stations in their own neighborhoods rather than making mandatory referrals to specialised units such as the Bureaus of Combatting Domestic Violence and Violence Against Women.  

  • Promptly provide legal support in criminal cases to victims without administrative obstacles.  

  • Take measures to ensure that investigative procedural steps are completed within 6 months to maximum 1 year, including by taking the statement of the suspect at the investigation stage and collecting evidence or conducting an inquiry within a reasonable time if the suspect cannot be reached.

  • Provide data on the number of cases where risk assessment is conducted and detailed information on the tools used for risk assessment.

  • Provide information on how and to what extent the 2020 Circular is enforced and on sanctions for non-implementation.

  • Carry out a holistic risk assessment that includes a danger assessment, tailored specifically to cases of violence against women.

  • Take measures to ensure that arrest warrants are implemented effectively.

  • Provide data on how many arrest warrants are given, how many of them are for convicted perpetrators, how many of these warrants are executed, the mechanisms implemented to execute arrest warrants

  • Take measures (awareness-raising, training and capacity-building measures, etc.) to avoid sexist practices in the mitigation of sentences and judgments.

  • Provide information on what legislative measures are envisaged to ensure that investigations in less serious offences are initiated even in the absence of a complaint by domestic violence victim.

  • Take measures to enable effective implementation of sentences (e.g. To prevent the de facto impunity as a result of converting fines to fees.)

  • Provide data on the implementation of the recent changes in the Penal Code regarding the application of “good conduct” in cases of violence against women.

Please see the slides for the full Briefing.

Relevant Documents