At their General Assembly on 1st December 2018 in Strasbourg, EIN members agreed to a joint statement on the need for changes to address the crisis with the implementation of ECtHR judgments. The Joint Statement is accompanied by concrete proposals on how to increase NGOs engagement within the ECHR implementation monitoring process.
You can find both the Statement and the list of proposals here.
On Saturday 1st December 2018 EIN held its first General Assembly, following the launch of the network in 2016. The event reflected the growing desire of Europe’s civil society to work not simply to obtain judgments from the European Court of Human Rights, but to ensure that those judgments are put into practice to protect human rights for the people of Europe.
Participants in the EIN General Assembly. Photo: EIN/ Anton Burkov
An expanding network
EIN’s General Assembly involved 41 representatives from 29 organisations. 32 of the participants were from EIN member organisations or individual EIN members; 8 were observers from organisations that are interested in joining; and one participant came from OSF, one of the main EIN donors.
The popularity of the General Assembly reflected the growth in EIN’s membership, which has expanded from 8 founding members in 2016 to 29 members today.
A focus on upholding rights in practice
The assembly was focused around the governance of the network to date, success stories from members, and how the network will operate in future to repeat these successes and further the implementation of ECtHR judgments as effectively as possible.
A series of valuable contributions in the full session highlighted the need to re-focus activity on ensuring that judgments result in real changes to peoples’ lives. The discussion became more detailed in four break-out groups that focused on particular areas of EIN activity: how members can support each other; EIN’s strategic criteria; how to spread information about the implementation system; and EIN training.
The discussions produced a huge range of ideas, which will be reflected in an amended plan for EIN’s activities in 2019.
An expanding board
Members of the newly elected board. Photo: EIN
The enthusiasm for greater engagement with implementation was reflected in the interest of members to join EIN’s governing board. There were seven candidates standing for board membership: including three existing board members and four new candidates. The assembly agreed for all of the candidates to be selected. Along with the three continuing board members, this means that there are now 10 members of EIN’s board.
You can find more details of the new EIN board and its membership here.
A joint statement
EIN members also agreed to a joint statement on the need for changes to address the crisis with the implementation of ECtHR judgments. The statement and further details are available here.
On 23 November 2018, EIN held its quarterly civil society briefing, ahead of the 1331st CM-DH meeting.
Presentations were given on the following cases:
1- Alekseyev v Russia (Application No 4916/07) and Bayev v Russia (Application No 67667/09) – Repeated bans on the holding of LGTBI marches and pickets; fines imposed for displaying banners considered to promote homosexuality among minors (against laws prohibiting such “propaganda”).
2- Makaratzis v Greece (Application No 50385/99) – Ill-treatment by coastguards and other state agents and a lack of effective investigations.
3- Merabishvili v Georgia (Application 72508/13) – Failure by the domestic courts to give relevant and sufficient reasons to justify continuation of detention on remand; continued detention on remand with the predominant purpose of obtaining information from the applicant about third persons.
4- Bekir Ousta v Greece (Application 35151/05) – Refusal of domestic courts to register the applicants’ associations.
Participants in the briefing. Photo: EIN
Over 35 participants attended the briefing, including participants from the Permanent Representations to the Council of Europe, the office of the Commissioner for Human Rights, and other CoE staff members. The main recommendations from the briefing are available here.
1- Alekseyev v Russian Federation (Application No 4916/07) and Bayev v Russia (Application No 67667/09)
The Alekseyev v. Russia case addresses repeated bans on demonstrations promoting tolerance and respect for the human rights of LGBTI persons in 2005, 2006 and 2007, and the absence of an effective remedy to challenge those bans. The European Court of Human Rights (the Court) found violations of Convention Articles 11 (right to freedom of assembly), 13 (right to an effective remedy), and 14 (prohibition of discrimination) taken in conjunction with Article 11.
Nigel Warner from ILGA Europe reporting about the Alekseyev and Bayev v RF cases. Photo: EIN
The Bayev v. Russia case addresses violations of the right to freedom of expression and discrimination on account of fines imposed on the applicants for displaying banners considered to promote homosexuality among minors. The banners were held by the Russian courts to be against the regional laws prohibiting such “propaganda”, adopted in several regions since 2006, and followed by a nation-wide law of 2013 similar to that effect (violations of Article 10 and of Article 14 in conjunction with Article 10).
The main argument advanced by the RF in support of these laws – that they are necessary to protect minors from information about homosexuality – was dismissed by the ECtHR as “lacking any evidentiary basis”.
The execution of judgments process in the Alekseyev case has now been proceeding for 7 ½ years. Over that time, in numerous Decisions, the CM has repeatedly expressed concern that the competent authorities have refused the majority of requests to hold public events similar to those in the Alekseyev judgment. It has also made numerous warnings against the introduction of regional and federal laws prohibiting so-called “propaganda of non-traditional sexual relationships” (the “propaganda” laws). These were ignored, and despite assurances by the Russian government to the contrary, these laws have been used on many occasions to refuse authorisation of public events in support of the rights of LGBTI persons. As far as the Bayev case is concerned, the judgment is relatively recent (June 2017).
In his presentation, Nigel Warner focused on the main recommendations listed in the Rule 9.2 communication submitted on those cases by Coming Out, a St Petersburg-based NGO, and ILGA Europe, in October 2018. According to Mr Warner, the latest Action Plan of the Russian Federation on those cases offers no evidence of any improvement or prospect of improvement in the situation. Furthermore, it appears to repudiate the Bayev judgment, citing a ruling of the RF Constitutional Court to the effect that the “propaganda laws” are consistent with the constitution. The “propaganda laws” continue to be used to the detriment of LGTB youth.
In view of this situation, Mr Warner therefore invited the CM to:
repeat its request to the Russian authorities to adopt a comprehensive action plan to ensure execution of the Alekseyev and Bayev judgments. This request should, as a minimum, include the repeal of legislation prohibiting so-called “propaganda of homosexual relations”; and
continue requesting information on the treatment of notifications to hold public events similar to those in the Alekseyev case.
The memo of Mr Warner is available here. His power point presentation is here. The October 2018 rule 9.2 submission form ILGA Europe and Coming Out is here. You can access the October 2018 Action Plan from the Russian Federation here.
2- Makaratzis and others group of cases v Greece (Application No 50385/99)
These cases concern ill-treatment and the unauthorized and disproportionate use of force by law enforcement officials.
An update on the group was delivered by Panayote Dimitras from the Greek Helsinki Monitor (GHM), which represents the victims in nine of thirteen cases of the group.
Mr Dimitras first underlined the positive points included in Greece’s communication dated 4/10/2018 on the Makaratzis group of cases, i.e. the beginning of the functioning of the National Mechanism for the Investigation of Arbitrary Behaviour (hereafter “the Mechanism”) within the framework of the Greek Ombudsman; and the agreement of the Government with the Mechanism recommendation that letters of apology be sent to victims of the incriminating acts.
Panayote Dimitras from the Greek Helsinki Monitor on the Makaratzis group of cases. Photo: EIN
He further highlighted the historical decision of the Supreme Court Prosecutor, in the Chowdury and others v Greece case, to file an appeal for the cassation of a domestic court judgment for the benefit of the law, to comply with the ECtHR judgment ruling that this domestic judgment was violating the ECHR. He reminded that GHM had recommended as a fundamental remedy to execute ECtHR judgments the filing of such appeals for cassation by the Supreme Court Prosecutor in case where the violations ruled by the ECtHR resulted from domestic court judgments.
Despite these positive developments, there is still need for further progress. With regard to the work of the Ombudsman as the Mechanism for the investigation of arbitrary behaviour, in particular, Mr Dimitras regretted the lack of transparency and information on the Mechanism. GHM, which represents the victims in nine out of thirteen cases has never received any communication from the Mechanism. Most importantly, Mr Dimitras expressed his concern over the decision by the Ombudsman on almost all new cases not to carry out his own investigations but only to supervise them, and entrust the disciplinary investigations to what GHM considers as objectively partial investigation bodies. He also recalled that, in its Report on Greece of 2 November 2018, the UN Human Rights Committee evaluated the answers from Greece related to the work of the Ombudsman and the effectiveness of the Mechanism as either partially satisfactory or not satisfactory.
With regard to the Makaratzis group of cases, GHM therefore urged the CM to ask the Greek government to:
reopen all disciplinary investigations in the 13 cases of the Makaratzis group;
request the Supreme Court Prosecutor to file appeals for cassation for the benefit of law of ten domestic judgments in the Makaratzis group of cases found by the ECtHR to be in violation of the ECHR;
provide detailed information on the punishment of law enforcement officials for misconduct, ill-treatment or disproportionate use of force;
make sure that the Ombudsman investigates himself the torture or ill-treatment allegations;
empower the Ombudsman to impose sanctions. To do so, the law should be amended so that the Mechanism can impose penalties; concretely, a solution would be to remove the Mechanism from the Ombudsman and make it independent.
introduce the necessary amendments so that the definition of torture is compatible with Article 1 of UN CAT
The memo of Mr Dimitras on this group of cases is available here. The latest communication from the Greek government (September 2017) is here. You can also download the Rules 9.2. September and October submissions by the Greek Helsinki Monitor.
3. Merabishvili v Georgia (Application 72508/13)
Georgian MP Otar Kakhidze and another Georgian MP updating on the Merabishvili case. Photo: EIN.
The case concerns violations suffered by the applicant, a formerPrime Minister of Georgia, in the context of the criminal proceedings instituted against him in December 2012 and January 2013, for alleged embezzlement and the abuse of official authority (violations of Article 5 § 3 and Article 18 taken in conjunction with Article 5 § 1 of the Convention).
The presentation on this case was given by Mr Kakhidze, MP of Georgia, on the basis of the Rule 9 submission filed on this case by EHRAC in September 2018.
Mr Kakhidze noted that, following the release of Ilgar Mammadov on 13 August 2018, Mr Merabishvili was the only convicted individual against whom a violation of Article 18 of the Convention had been found who remained in detention.
In its Action Plan, the Government proposes to undertake further investigative measures taking full account of the Grand Chamber’s findings. “The only potential investigative mechanism in which Mr Merabishvili has confidence”, stated by Mr Kakhidze, “is an investigation by the Parliamentary Commission (a Temporary Investigative Commission, set up pursuant to the Rules of Procedure of the Parliament of Georgia, Chapter 6, Articles 55-70”). Mr Kakhidze reminded that in September 2017 he requested that such a Parliamentary Commission be established to investigate Mr Merabishvili’s covert removal. Despite the fact that this request remains pending before Parliament, the Government rejected this proposal in its Action Plan (para. 33).
Mr. Kakhidze stated that without Mr. Merabishvili’s early release another investigation was not an answer to the established breach of Article 18/5. He emphasized that even the judges dissenting on violation of Article 18 agreed that Mr. Merabishvili was removed from his cell. Mr Kakhidze also reminded that an official internal inquiry of Merabishvili’s covert removal was conducted in 2014, and another formal investigation was launched in 2016 by the “reformed” prosecution service with a “newly appointed chief prosecutor”. However, the outcome which they published in 2017 clearly contradicted the ECtHR findings, both in the chamber and GC.
The Georgian Government indicated that the current domestic law prevented mobile telephone records and cell tower data from being examined as part of any further investigation, as the offence being investigated in relation to Mr Merabishvili’s removal fell within the category of less grave crimes (Action Plan, paras 34-36). It therefore proposed to amend the domestic legislation in order to permit such investigative steps to be carried out (Action Plan, para. 37). However, as Mr Kakhidze underlined, the Government failed to provide any further information as to what specific amendments it proposed to make, within what time period, whether such amendments would be retrospective (i.e. could be applied in Mr Merabishvili’s case) or whether practically this would have any effect (i.e. whether the relevant records in this case continue to exist almost 5 years after the event in question).
The Government also indicated that it has already undertaken a number of General Measures, in light of the Grand Chamber’s judgment, including:
a. Extending the period of time for storing video surveillance footage from 24 to 120 hours (Action Plan, para. 66; Order N35 amended by Order N19 (20 March 2017)); and
b. Creation of State Inspector’s Service SIS (Action Plan, paras 74-5).
Mr Kakhidze underlined that, in reality, video surveillance footage in detention facilities are stored for 30 days, but the Government tries to make the impression that “the system change” will be seen by the CM as an effective general measure. He noted that the proposed SIS was entirely irrelevant to Mr Merabishvili’s case as the crimes that it is empowered to investigate does not include any crimes related to Mr Merabishvili’s covert removal.
Mr. Kakhidze submitted that the Government intends to take the Committee of Ministers’ attention from individual measures to general legislative measures which, in his opinion, aims at delaying Mr. Merabishvili’s early release. According to him, the applicant’s continuous detention still has ulterior purposes disclosed by the Court when establishing violation of Article 18 in conjunction with Article 5.
As previously submitted (see letter to the Committee of Ministers dated 26 January 2018), in order to effectively implement the Grand Chamber judgment in his case, the Georgian authorities should therefore:
Re-open the criminal proceedings against him;
Pending the outcome of the re-opening of the criminal proceedings, order Mr Merabishvili’s release; and
Ensure rigorous investigation of his covert removal by an independent body.
You can download the text of the EHRAC rule 9 submission on this case, as well as all attachments: annexe 1, 2, 3 , 4 and 5. The power point presentation of Mr Kakhidze is here. The October 2018 Action Plan from the Georgian government can be downloaded here. The November 2018 Rule 9.2. submission by the Public Defender of Georgia can be downloaded here.
Other documents presented by Mr Kakhidze:
Nov 2018 letter from Georgian MPs to the CM-DH.
October statement from Georgian NGOs on the crisis of institutions in Georgia
Excerpt from the Georgian Public Defender Report 2018
4. Bekir Ousta and others group of cases v Greece (Application No 35151/05)
These cases concern violations of the right to freedom of association (Article 11) due to the refusal to register Turkish minority associations (Bekir-Ousta and Others and Emin and Others; final domestic decisions in 2006 and 2005 respectively).
Photo: EIN
Mr Dimitras, from the Greek Helsinki Monitor, gave a summary of the developments since the last examination of the case by the CM, in December 2017. In February 2018, the Cultural Association of Turkish Women of the Prefecture of Xanthi was refused registration on similar grounds as in the present group of cases. In its 2018 communications, mentioned Mr Dimitras, Greece has refused to address the CM December 2017 concerns on these developments. More importantly, the Supreme Court Judgment dissolving the Turkish Union of Xanthi(which was the first of the three Turkish minority associations of the group of cases that filed an application for the reopening of the domestic proceedings), was considered by the Greek government as irrevocable. This means, Mr Dimitras explained, “that any similar applications for the reopening of the proceedings on the basis of Articles 29 and 30 of Law 4491/2017 by ethnic Turkish and ethnic Macedonian minority associations vindicated by the ECtHR will have no chance to become admissible by domestic courts”.
Bearing in mind these developments, Mr Dimitras called on the CM to ask the Greek government to:
provide explanations for the two domestic court decisions not to register the new Cultural Association of Turkish Women in the Prefecture of Xhanti, and to reject as inadmissible the Turkish Union of Xhanti’s application to have its dissolution annulled;
promptly introduce a legislative amendment that will change the procedure so as to introduce a simple registration of associations, along the line of (for instance) the French model;
request that the Supreme Court Prosecutor to file appeals for cassation against all domestic judgments that were found by the ECtHR to violate the ECHR, including the four judgments related to the Bekir -Ousta associations.
The memo of Mr Dimitras and his recommendations are available here. The Rule 9.2. submission of the Greek Helsinki Monitor published in September and October 2018 are there. The December 2017 CM decision on this case is here.
On 11 and 12 October 2018, the European Implementation Network (EIN) organised its first thematic training seminar for non-governmental organisations (NGOs). The event, which took place at the European Youth Centre in Strasbourg, brought together 17 civil society representatives from across Europe to explore ways to advocate for the implementation of judgments of the European Court of Human Rights (ECtHR, ‘the (Strasbourg) Court’) in the field of asylum and migration.
Participants in the Training. Photo: EIN
NGOs in Council of Europe (CoE) member states possess a wealth of data and knowledge from the ground about domestic legislation, policies, administrative and judicial practices affecting the rights of asylum seekers, refugees, and migrants – information that is arguably crucial to be brought to the attention of the Committee of Ministers, the CoE’s decision-making body responsible for assessing whether a state has complied with its obligation to implement, or ‘execute’, the judgments handed down against it by the Strasbourg Court.
Especially (but not exclusively) where implementation is protracted or stalled, civil society can inject a degree of urgency into the judgment execution process, contribute to changing its direction, or prevent the CM from ending its supervision of the execution process prematurely. One powerful, but strikingly underutilised avenue for doing so is for NGOs and National Human Rights Institutions (NHRIs) to submit information to the CM in accordance with Rule 9.2 of the Rules of the Committee of Ministers. Yet, the total number of civil society submissions is very low, as stressed by EIN Co-Director George Stafford at a recent committee hearing at the Parliamentary Assembly of the CoE.
The thematic area of asylum and migration forms no exception in this regard. Important judgments remain unimplemented, and a number of cases have been pending before the CM for many years. The space for domestic advocacy for the rights of some of the most vulnerable members of our societies is shrinking in several states across Europe, with populism and anti-immigrant sentiment being on the rise. Still, NGOs have intervened in only a handful of asylum and migration related cases by submitting ‘Rule 9’s, notably because information about how the process works is not readily available.
EIN regards the lack of civil society engagement in the judgment execution process as among the key reasons for prevailing implementation challenges. Our training activities aim to enable NGOs to meaningfully engage with the judgment execution process, thus allowing for a balanced assessment on the status of implementation of many important ECtHR cases.
Thus, EIN’s thematic training seminar on making effective Rule 9 submissions to advance implementation of ECtHR judgments in the field of asylum and migration covered a number of topics over the course of one-and-a-half days.
The seminar was preceded by a thematic briefing on implementation challenges in the field of asylum and migration, organised jointly by EIN and the Open Society Justice Initiative as a side-event to the autumn part session of the Parliamentary Assembly of the Council of Europe (PACE).
The first session of the training itself was devoted to presentations by two representatives of the Council of Europe’s Department for the Execution of Judgments and by EIN Bureau members about the CM judgment execution process and the avenues for NGOs to engage with it. This was followed by selected participants sharing their experience of researching and drafting Rule 9.2 submissions in relevant cases against Italy, Greece and the Russian Federation. Building upon this foundation, an interactive group exercise on how to decide on the scope, and develop the content and recommendations in a Rule 9.2 submission regarding one of three cases currently pending before the CM concluded the first day of the training.
The second day broadened the focus beyond Rule 9 submissions, kicking off with a presentation on EIN’s Strasbourg-based advocacy. Together with representatives of the CoE’s European Programme for Human Rights Education for Legal Professionals (HELP) and the Office of the Commissioner for Human Rights, participants then explored ways to engage CoE entities other than the Committee of Ministers and the latter’s secretariat in their efforts to promote implementation of asylum and migration related ECtHR judgments. The ultimate session had participants brainstorm about tangible ways to move forward in their advocacy regarding specific cases, and about how to overcome prevailing obstacles to full and effective implementation.
EIN wishes to thank all participants and all speakers from the Council of Europe for their active contributions to this seminar. With participants having been selected on the basis of the anticipated impact for human rights of the work they are carrying out (or planning to carry out) to promote the implementation of specific ECtHR judgments in their country, EIN is looking forward to seeing training participants submit Rule 9s in the cases they are working on.
Your NGO is also considering preparing a Rule 9 communication? Consult EIN’s Handbook for NGOs on implementation of judgments of the European Court of Human Rights for helpful tips, and get in touch with us (director@einnetwork.org) if you are seeking further advice on how to research and draft your submission.
Photos: EIN
On 10 October 2018, EIN held a thematic briefing as a side-event to the autumn part session of the Parliamentary Assembly of the Council of Europe (PACE). Unlike the civil society briefings regularly organised by EIN in advance of the Committee of Ministers quarterly Human Rights meetings, the aim of the thematic briefings is to put a spotlight on implementation challenges related to serious cases where specific provisions of the ECHR are breached. The October 2018 briefing, organised jointly with the Open Society Justice Initiative (OSJI), focused on implementation of judgments related to asylum and migration.
Recent PACE reports have documented alarming trends in the treatment of asylum seekers, refugees, and migrants across Europe. The European Court of Human Rights (ECtHR) has developed a rich body of case law in this field that could protect the rights of foreign nationals. Yet, many of these judgments lack state enforcement or remain unimplemented. In the face of populism and rising anti-immigrant sentiment, a concerted effort is needed – involving, inter alia, governments, national parliaments, civil society, and Council of Europe entities – to ensure that asylum and migration policies are fully compliant with states’ obligations under the European Convention on Human Rights.
You can access the leaflet for the event here.
The speakers of the side-event. Photo: Council of Europe (CoE) communication department.
The side-event brought together a range of actors to discuss the state of execution of key migration and asylum-related ECtHR judgments, and the additional measures that European states must take to ensure the protection of the human rights of migrants, refugees, and asylum seekers.
Participants in the side-event. Photo: CoE Communication Department.
REDRESS Director Rupert Skilbeck. Photo: CoE Communication Department.
Rupert Skilbeck, Director of REDRESS, focused his presentation on the protection of refugees and migrants from violence by state agents, and challenges linked to the implementation of the Zontul v Greece case.
Sophie Scheytt, Head of Advocacy at Sea-Watch Germany. Photo: CoE Communication Department.
In her intervention, “From push-backs to pull-backs?”, Sophie Scheytt, Head of Advocacy at Sea-Watch Germany, addressed the Italian authorities’ support for Libyan pull-back operations in the Mediterranean.
Simon Cox, lawyer at the Open Society Justice Initiative, concluded the briefing to showcase how the Greek Government’s immigration policy impacts on forced labour of migrant farm workers.
Evangelos Venizelos. Photo: CoE communication department.
Tineke Strik. Photo: CoE communication department.
EIN would like to thank PACE members Evangelos Venizelos, Tineke Strik and Petra De Sutter, who kindly agreed to co-sponsor the event.
Participants in the hearing. Photo: EIN
On 9 October, EIN was invited to participate in a hearing of the Committee of Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE). This hearing focused on the implementation of judgments of the European Court of Human Rights and took place in the context of the report prepared by PACE member Evangelos Venizelos.
The hearing was the occasion for EIN Co-Director George Stafford to provide information about the difficulties faced by civil society when engaging with the monitoring process for the implementation of ECtHR judgments. Significant barriers to the involvement of civil society in this process are the lack of openness and transparency in the system: the supervision system is very closed, lacks easy-to-access information. In addition, it contains almost no official guidance, and can only be engaged with in two particular languages. These things mean that expertise and time is required to engage in it. These are things that NGOs are very short of.
EIN Treasurer and EIN Co-Director George Stafford at the hearing. Photo: EIN
EIN tries to support civil society organisations’ efforts to overcome these problems, mainly by providing information and training. It has also just published a handbook on the implementation process, which contains the key information about how organisations can participate in the supervision process.
At the end of his intervention, EIN Co-Director George Stafford called for comprehensive improvements under three broad headings - information, inclusion and training - to help NGOs and NHRIs engage in the process.
You can access the full text of the presentation of EIN Co-Director George Stafford here.
The European Implementation Network (EIN) convened a quarterly civil society briefing to Permanent Representations of the Council of Europe on 10 September 2018.
This briefing, which was the third in 2018, focused on analyses by civil society representatives to support the implementation of cases of the European Court of Human Rights (ECtHR) scheduled for review from 18-20 September 2018 at the 1324th Human Rights Meeting of the Committee of Ministers’ Deputies. The Committee is responsible for supervising the judgment execution process.
Representatives of 24 Permanent Representations to the Council of Europe attended the briefing at the Palais de l’Europe.
The following ECtHR judgments were presented and discussed: P. and S. v Poland, Gongadze v Ukraine, Nisiotis Group v Greece and Manushaqe Puto and Others and Driza Group v Albania.
NGO representatives Katarzyna Wisniewska, Olena Protsenko, Simon Palmer (chair), Prof. Konstantinos Tsitselikis and Ina Xhepa. Photo: EIN
A summary of points in the form of main recommendations made by each of the presenters in support of the implementation of the respective cases can be found here.
P. and S. v Poland (Application No 57375/08)
The 2012 judgment in the case of P. and S. v. Poland (application no. 57375/08) is one of three important decisions of the European Court of Human Rights (ECtHR) concerning access to legal abortion in Poland. In all three cases, the ECtHR ruled that the rights of the applicants were violated because of the practical difficulties they experienced in exercising their right to legal abortion. To fully implement these judgments, the Court stated that the national authorities must take steps to guarantee not only theoretical but also practical access to abortion under the conditions provided by law. On 21 September 2017, the Committee of Ministers issued a decision asking the Polish government to present information on the guarantees of effective access to legal procedures for pregnancy termination.
In June 2018, the Polish Government sent a report indicating that, in its opinion, the current regulations ensured effective access both to abortion and to information on the possibility of underdoing such a procedure.
Referring to this Report, Ms Katarzyna Wisniewska, Coordinator of the Strategic Litigation Programme at the Helsinki Foundation for Human Rights (Poland), highlighted that the Polish government did not fully and thoroughly address the matters invoked by the Committee of Ministers in its September 2017 decision. First of all, the procedure of imposing financial penalties on medical facilities for non-performance of the contract with the National Health Fund is not an effective measure to protect women applying for abortion, commented Ms Wisniewska. Second, the date on the complaints filed with the Commissioner for Patients' Rights and the National Health Fund concerning refusals to perform an abortion was not included in the Government’s report.
In terms of recommendations to support implementation of the judgment, Ms Wisniewska therefore noted the need for detailed data on such complaints and the way they were tackled. She also called for detailed information on disciplinary measures against doctors related to the refusal to perform abortion and how they were conducted. Moreover, she expressed her concern that analytical works would be ongoing at the Ministry of Health to amend the provisions concerning the objection to an opinion or decision of the doctor, and insisted on the need to introduce mechanisms to ensure that the right to abortion is not nullified by doctors’ invocation of the conscience clause.
The memo by Ms Wisnieska identifying the main recommendations on the case can be found here. The recent submission of the Helsinki Foundation for Human Rights on the case (August 2018) is available here. The latest communication the Polish authorities submitted on 22 June 2018 can be found here.
Gongadze v Ukraine (Application No 34056/02
From left to right: Olena Protsenko (Ukrainian Helsinki Human Rights Union), speaking about the Gongadze case, and Katarzyna Wisniewska (Helsinki Foundation for Human Rights). Photo: EIN
This case concerns the killing of Georgyi Gongadze, a journalist, in 2000, and lack of effective investigation.
In her briefing, Ms Olena Protsenko, Lawyer at the Centre for Strategic Litigation of the Ukrainian Helsinki Human Rights Union, stated that, with regard to general measures, positive achievements had been reached through the introduction of four new corpus delicti into the Criminal Code of Ukraine. She underlined though that this legislation would only concern – and thus protect – journalists belonging to a certain mass media or a journalist association, and therefore not bloggers or non-professional reporters. In addition, the Ukrainian legislation only applies in cases where criminal proceedings are already open, and does not operate on a rapid response basis to ensure active protection of journalists. With regard to investigation, Ms Protsenko highlighted the lack of effective investigations, and the victims’ inability to access the criminal files during the pre-trial investigation.
Ms Protsenko put forth several recommendations to support implementation of this case, starting first and foremost with the need to adopt a broad notion of media which encompasses all media actors, and to create emergency protection remedies for journalists at risk and their families. She also called for the creation of special investigative units with specialised expertise and methods of investigation for police officers investigating crimes against journalists.
The memo from Ms Protsenko can be found here. The very recent Rule 9.2 submission from the Ukrainian Helsinki Human Rights Union on this case can be found here. The June 2018 Action Plan from the national authorities is here.
Nisiotis Group v Greece (Application No 34704/08)
The Nisiotis Group v Greece concerns the inhuman and/or degrading treatment of the applicants arising from poor conditions of detention in overcrowded prisons in Greece (violation of Art. 3)., notably in Ioannina, Korydallos, Diavata/ Thessaloniki, Alikarnassos, Patra, Larissa, Corfu, Korydallos prison Hospital, Hios, Komotini, Nafplio and Korinthos in relation to more than 1,200 applicants.
Professor Konstantinos Tsitselikis, University of Macedonia-Thessaloniki, Hellenic League for Human Rights, reporting about the state of execution in the Nisiotis group v Greece. Photo: EIN
“The Greek prison system suffers for long from structural deficiencies. Overcrowding is the most important of them”, said Professor Konstantinos Tsitselikis from the University of Macedonia-Thessaloniki, and Member of the Hellenic League for Human Rights, at the start of his presentation.
The governments of the past years sought to build new prisons or to reduce the number of the inmates. Indeed new prisons have been opened (such as in Nigrita, Agia, or Domokos, but partially remain non-operational) and laws passed for early release and favourable arrangements for inmates in cases where smaller sentences are imposed. This helped to drop the total number of inmates by 20% since 2015, but it is still more than ten thousand, a critical threshold affecting the whole prison system in Greece.
With regard to living conditions and health care services, the situation has improved compared to the pre-2015 situation, but not to the point of removing structural problems. Serious infrastructure and staffing problems have not been sufficiently dealt with. The current staffing numbers are inadequate to care for the enormous numbers of inpatients and outpatients (hundreds of inmates are registered as in- and outpatients each month). Although the law provides for the integration of Korydallos Psychiatric Hospital for Inmates and the Prison Hospital, as well as the special treatment facilities for drug-addicted prisoners to the (Public) National Health System (NHS) of the Ministry of Health, in practice prison medical services still belong to the prison administration structure. After long waiting time, a presidential decree for the incorporation of the Korydallos hospital in NHS has been drafted by the Minister of Justice in March 2018, but it is not in force.
The Government’s latest action report to the CM shows that deficiencies are at least acknowledged. However, the “Strategic plan for the prison system 2018-2020” that the government has elaborated, and which entered into force in January 2018, still has not been implemented. In his recommendations, Prof. Tsitselikis therefore asks for full enforcement of the “Strategic plan” of the Government through a specific timetable. Going forward, he also called for the incorporation of the Korydallos hospitals to the NHS and guarantee for proper medical care to all prisoners. He concluded by highlighting the need for allocation of funds for prisons, to upgrade prison premises and staff.
The memo of Professor Tsitselikis can be found here. The September 2018 Rule 9.2 communication from the Hellenic League for Human Rights on this case is here. The July 2018 communication from the Greek authorities concerning this group of cases can be found here.
Manushaqe Puto and Others Group and Driza Group v Albania (Applications No 604/07 and 33771/02)
These cases relate to the non-enforcement of final domestic court and administrative decisions relating to the applicants’ rights to restitution or compensation for property nationalised under the communist regime. In its pilot judgment, the ECtHR ordered the Albanian Government to set up an efficient compensation scheme. In order to do this, the Court found that the authorities needed to provide a list of final judicial and administrative decisions which recognized, restituted and/or compensated former-owners for property, the financial bill stemming from this list, an updated Land Value Map, the adoption of an Action Plan for the enforcement of this Court pilot judgment, and finally the establishment of an effective mechanism for the execution of the aforementioned decisions.
Even though some progress has been made since the delivery of the first Action Plan four years ago, Ms Ina Xhepa, Director of the European Centre (Albania), underlined that further steps were needed.
Ina Xhepa, Director of the European Centre, Albania. Photo: EIN
First, the Property Management Agency (PMA) established by the law should further proceed with the examination of unaddressed claims and applications awaiting a final decision. This process started to be fully operative in December 2017, with a delay of almost two years after the law no. 133/2015 entered into force, due to justified problems such as human resources and pleadings before the Constitutional Court. Ms Xhepa reminded that, whilst up to now about 28% of all pending claims have been addressed, the deadline to finalize the entire evaluation process was February 2019.
Secondly, the amendments made in 20.12.2017 to the by-law which provides the rules and procedures for the evaluation and compensation process entails a real complex process. In addition, the frequent amendments made to the by-laws by the Government, entails a lack of legal certainty toward the owners.
Eventually, the current juridical reform in Albania impacts the whole system, as the Constitutional Court cannot deliberate on any claim presented before it.
In her recommendations, Ms Xhepa therefore called on to the State Authorities to complete the implementation of the Action Plan within the time limits set forth and to accelerate the process of execution of the final decisions which were not appealed at any instance or court.
Ms Xhepa’s memo is available here. The Action Report communicated by the Albanian authorities in August 2018 is here.
We are very pleased to announce the appointment of Anne-Katrin Speck and George Stafford as co-directors of EIN.
Anne holds an LLM in International Human Rights Law and is a Research Associate on the Human Rights Law Implementation (HRLIP) Project at Middlesex University, London, where she is also studying for a PhD.
She previously worked within the Secretariat of the Parliamentary Assembly of the Council of Europe.
George qualified as a barrister in London, where he also worked as a judicial advisor in the Court of Appeal.
Since then he has worked as a legal researcher with the Georgian Young Lawyers’ Association in Tbilisi, as a press officer at the European Court of Human Rights, and on a project on the impact of the ECHR at the Council of Europe.
Anne and George will act as co-directors, each working half-time. George will start on 1 October 2018, while Anne will start on 1 January 2019
For many NGOs wanting to support implementation of ECtHR judgments, the Strasbourg judgment execution process presents daunting challenges. Although there is accessible information about the outlines of the process and the general role of NGOs, engaging effectively requires much more: a detailed understanding how the process works, (for example, how cases are categorised, the differing procedures under which they may be treated, the different stages of the process), and a clear grasp of what to say and when to say it. Without this understanding, NGO submissions can lack impact, even for such basic reasons as including the wrong type of information or the information being submitted too late.
EIN’s new handbook is an important step towards demystifying the process. Prepared with the benefit of input from experienced NGOs during implementation training workshops and with detailed technical advice by the Department for the Execution of Judgments, it provides comprehensive guidance for NGOs, injured parties and their legal advisers. It sets out both a clear description of the Council of Europe’s supervision procedure, and a detailed step-by-step guide to how NGOs and injured parties can engage with this procedure most effectively.
There is wide concern that in many Council of Europe member States implementation of ECtHR judgments is all too often inadequate. NGOs have a vital role to play in improving the quality of implementation. But, in part because of the “black box” that has existed around the judgment execution process, NGOs have intervened in only a small fraction of cases. EIN hopes that this handbook will enable a significant improvement in both the quantity and quality of submissions by NGOs and thereby make a real contribution to improving implementation of ECtHR judgments.
Participants in the hearing. Photo: EIN
On 9 October, EIN was invited to participate in a hearing of the Committee of Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE). This hearing focused on the implementation of judgments of the European Court of Human Rights and took place in the context of the report prepared by PACE member Evangelos Venizelos.
The hearing was the occasion for EIN Co-Director George Stafford to provide information about the difficulties faced by civil society when engaging with the monitoring process for the implementation of ECtHR judgments. Significant barriers to the involvement of civil society in this process are the lack of openness and transparency in the system: the supervision system is very closed, lacks easy-to-access information. In addition, it contains almost no official guidance, and can only be engaged with in two particular languages. These things mean that expertise and time is required to engage in it. These are things that NGOs are very short of.
EIN Treasurer and EIN Co-Director George Stafford at the hearing. Photo: EIN
EIN tries to support civil society organisations’ efforts to overcome these problems, mainly by providing information and training. It has also just published a handbook on the implementation process, which contains the key information about how organisations can participate in the supervision process.
At the end of his intervention, EIN Co-Director George Stafford called for comprehensive improvements under three broad headings - information, inclusion and training - to help NGOs and NHRIs engage in the process.
You can access the full text of the presentation of EIN Co-Director George Stafford here.
This past year, the European Implementation Network (EIN) cooperated with the Luskin School of Public Affairs at the University of California, Los Angeles (UCLA) in an effort to help the Network explore future strategies and plans in support of the implementation of judgments of European Court of Human Rights (ECtHR).
Four UCLA students completing the degree of Masters of Public Policy (MPP) – Paola Perez, Hillary Smith, Siyuan Meng and Daniel Coltellaro – worked with EIN to develop an initial system to quickly rank and compare ECtHR judgments still pending full implementation. The main approach taken by the students was to find a system that could potentially allow EIN to prioritize its future work with the assistance of enhanced evaluation measurements.
The four students involved in the study. From left to right: Paola Perez, Hillary Smith, Siyuan Meng and Daniel Coltellaro.
This project was completed as part of the Luskin School’s Applied Policy Project. In their final year of study, students work in teams with a real world client to provide recommendations on addressing relevant policy issues. These topics may range from criminal justice reform to environmental protection policy. Selected clients can have influence at any level of policy-making, such as government entities, non-profit organisations, private businesses and even politicians.
The project provides students with an opportunity to demonstrate skills learned in the two-year MPP programme while engaging with stakeholders to create tangible results that hopefully generate positive impact outside of simply pursuing activities for profit. Past years’ teams have worked on various foreign policy projects, but the selection of EIN as a client marks the first time a group of Luskin MPP students have helped assist in the development of international human rights policy more specifically.
The four students, all passionate about international affairs, human rights and organisational management, were from different parts of the world and were excited to work with a European non-profit like EIN. The initial system they designed for EIN was built on value criteria, used ECtHR data and checked for consistency through a bias analysis.
EIN worked with the team to identify as objectively as possible values by which a pending, non-implemented case could be judged. These included variables such as the length of time pending since the final judgment, the number of repetitive violations attached to each leading case, and others. The HUDOC-EXEC online database provided details for each case that could be used as values for the comparison. The students normalised the values, then used an analytical hierarchy process (AHP) to weigh the values in a relative pairwise analysis. AHP has been used across a variety of fields and helps decision-makers narrow down potential alternatives. In this case, it was used to narrow down pending cases through ordering by values. This ultimately provided a final score indicating EIN’s predicted interest in working on a case and in focusing on cases from prospective countries.
After creating the evaluation system, the students were able to run some initial tests. This led them to identifying countries where high counts of repetitive cases indicated large-scale systematic judicial failures, violation patterns across states and continent, and areas that could drastically benefit from increased engagement.
In late May, the students presented their project in Los Angeles to their cohort, Luskin professors, researchers and policy-makers. Following their graduation, all of the students will be continuing with their policy careers in the US. Perez is completing her medical residence in Los Angeles; Smith will be working on world heritage preservation in Boston; Meng has accepted a role at a major Chinese-California investment firm; and Coltellaro is preparing to take the US Department of State’s Foreign Service Officer Test in fall 2018.
In late March 2018, the European Implementation Network (EIN) put out a call for applications from civil society organisations for its second regional training workshop on the implementation of judgments of the European Court of Human Rights (ECtHR). The training took place at the European Youth Centre in Strasbourg from 21 to 22 June. The first workshop was held from 2 to 3 February at the Helsinki Foundation for Human Rights in Warsaw.
Group photograph of the participants at the training. Photo: EIN
The training was conceived based on the fact that civil society organisations have a critical role to play in the process that underpins the supervision of the implementation of ECtHR judgments by the Committee of Ministers – the Council of Europe’s decision-making body responsible for the judgement implementation process. The access that is afforded to NGOs and other civil society organisations is made possible under Rule 9.2. of the Rules of the Committee of Ministers.
Nigel Warner, EIN Treasurer, and Kevin Steeves, EIN Director, open the regional training workshop. Photo: Ramute Remezaite.
Yet there is little readily accessible information on how the judgement execution process works and how civil society organisations can engage to best effect. The result is that this powerful mechanism for implementing human rights judgments is very underutilised. The total number of NGO submissions is consistently low, normally in the range of 70-90 each year. In contrast, there are well over 800 government action plans and action reports being submitted annually to the Committee of Ministers. As a result, there is not enough non-governmental analysis and perspective being presented to the Committee of Ministers in order for it to make a balanced assessment on the status of implementation of many important ECtHR cases.
This lack of knowledge and engagement by NGOs and other civil society organisations needs to be understood in the larger context of the many, many thousands of ECtHR cases still pending implementation or only partially implemented each year. In 2017, 7,500 cases were pending. Of these approximately 1,400 cases are so-called “leading cases” that require the putting in place of broader measures (so-called “general measures”) in the form of domestic legal, policy and institutional reforms needed to prevent repetition of the violation in question in the future. It is on these cases where civil society input in particular is required in order to help societies realise real positive change in the overall context of promoting and protecting human rights in Europe.
From the many applications received, 22 lawyers and other experts from NGOs and other civil society organisations from across Europe were selected for the training workshop. Those other qualified applicants not selected due to limited space may be considered for similar training in the future as well as for thematic training on implementation that EIN expects to conduct on topics such as asylum and migration, fair trials and others.
Other workshop participants and presenters included EIN secretariat staff and Bureau members, a Head of Division in the Council of Europe’s Department for the Execution of Judgments of the ECtHR, a Legal Adviser of the National Consultative Commission on Human Rights in France, a Head of Division as well as an Adviser to the Council of Europe's Commissioner for Human Rights, and others.
Workshop participants covered a number of topics over the course of the one-and-a-half days of interactive training. These included the various facets of the judgment execution process, the role of NGOs in the process, best practices on how to prepare Rule 9.2 submissions and advocacy strategies and tactics both in Strasbourg and at the national level. The workshop combined presentations by experts on how to engage effectively in the judgment execution process; sharing of learning by participants who have already engaged with implementation; and group exercises to help participants develop the content and recommendations in submissions they expect to prepare in the future for the Committee of Ministers.
NB: All gallery pictures from EIN
The European Implementation Network (EIN) convened a quarterly civil society briefing to Permanent Representations to the Council of Europe on 28 May 2018. This briefing was first established by the Open Society Justice Initiative in 2014 and subsequently co-convened with EIN from 2015 to 2017. The event is now fully conducted by the Network as of the beginning of 2018.
The latest briefing was the second in 2018. It focused on providing analyses by civil society representatives to support the implementation of cases of the European Court of Human Rights (ECtHR) that were scheduled for review from 5 to 7 June at the 1318th Human Rights Meeting of the Committee of Ministers’ Deputies. The Committee is responsible for supervising the judgment execution process.
The event at the Palais de l’Europe was attended by over 30 participants, including representatives of 22 Permanent Representations to the Council of Europe and a representative of the Council of Europe’s Commissioner for Human Rights.
Representatives of Permanent Representations attending the briefing. Photo: EIN
The following ECtHR judgments were presented and discussed: Balsan v Romania, Laszlo Magyar Group v Hungary, Identoba and others group v Georgia, and Yuriy Nikolayevich Ivanov + Zhovner group, Burmych and others v Ukraine. The first two of these four cases were under first examination by the Committee of Ministers’ Deputies.
A summary of points in the form of 3-5 recommendations made by each of the presenters in support of the implementation of the respective cases can be found here .
Balsan v Romania (Application No 49645/09)
This case concerns the failure by the national authorities to adequately protect the applicant from domestic violence inflicted by her spouse in 2007 and 2008. The Court ruled that:
"… the violence suffered by the applicant can be regarded as gender-based violence, which is a form of discrimination against women. Despite the adoption of the Government of a law and a national strategy on preventing and combating violence, the overall unresponsiveness of the judicial system and the impunity enjoyed by the aggressors, indicated that there was an insufficient commitment to take appropriate action to address domestic violence."
The ECtHR found a violation of Article 3 and of Article 14 in conjunction with Article 3.
Ms Georghe presenting on the Balsan case. Photo: EIN
Ms Ecaterina-Georgiana Gheorghe, Legal Officer, Association for the Defence of Human Rights in Romania – the Helsinki Committee, underlined in her presentation how the ECtHR also noted its concern with the fact that the national authorities had considered the domestic violence to have been provoked and that the violence was not severe enough to fall within the scope of the criminal law. In terms of recommendations to support implementation of the judgment, Ms Gheorghe noted the need for the Romanian police to adopt new working procedures concerning restraining orders to immediately and effectively protect victims and restrain attackers. Furthermore, there are too few shelters nationwide and in fact in eight counties in Romania there are no shelters at all.
The memo by Ms Gheorghe identifying the main domestic violence problems and recommendations on the case can be found here. The latest action plan of the Romanian authorities submitted on 16 April 2018 can be found here.
Laszlo Magyar Group v Hungary (Application No 73593/10)
This group concerns the execution of the judgment reached by the ECtHR in the case of Laszlo Magyar v Hungary, establishing that life imprisonment without the possibility of parole (whole/actual life sentence) imposed upon the applicant violated Article 3 of the Convention; and the judgment in the T.P. and A.T. v Hungary case, establishing that, irrespective of the new “mandatory pardon procedure” introduced for whole lifers, Hungarian rules on life imprisonment without parole still violate Article 3. In the case of Laszlo Magyar, the Court also found violation of the right to a fair trial (Article 6) because of the excessive length of the criminal proceedings against the applicant, which lasted from 2002 to 2010.
In her briefing, Ms Nora Novoszadek, Senior Legal Officer, Hungarian Helsinki Committee, stated that the national authorities had not yet taken any general measures to execute the judgments in this group of cases. She also noted that the pending constitutional complaint procedures initiated by Laszlo Magyar and an applicant in a pending case before the ECtHR, which the national authorities stated need to be awaited before any general measures can be undertaken, had no relevance in terms of the execution of the judgments in the Laszlo Magyar v Hungary case.
Ms Novoszadek. Photo: EIN
Ms Novoszadek put forth several recommendations to support implementation of this group of cases, starting first and foremost with the need to abolish the institution of life imprisonment without the possibility of parole. It would be necessary to ensure that a review complying with the ECtHR standards takes place no later than 25 years after the imposition of every life sentence, with further periodic reviews after that.
The memo from Ms Novoszadek can be found here . The 2016 Rule 9.2 submission from the Hungarian Helsinki Committee can be found here. The 2018 Action Plan from the national authorities is here.
Identoba and Others Group v Georgia (Application No 73235/12)
The case of Identoba and others v Georgia concerns the failure of the national authorities to provide adequate protection against inhuman and degrading treatment inflicted by private individuals on LGBT activists during a peaceful demonstration in May 2012 (violations of Article 3 in conjunction with Article 14). There was also a failure to conduct any effective investigation into these events (violations of Article 3 in conjunction with Article 14). In addition, the Court held that the authorities breached their obligation to ensure that the march could take place peacefully by failing to contain violent counter-demonstrators (violation of Article 11 in conjunction with Article 14).
Ms Jalagania (on the right-hand side) together with EIN Director Kevin Steeves and the other presenters. Photo: EIN
Ms Lika Jalagania, Project Coordinator, Human Rights Education and Monitoring Centre, noted in her presentation the fact that anti-discrimination legislation was adopted in 2014. Additionally, the Government put forth a Human Rights Strategy for 2014-2020 along with a series of specific annual Action Plans. However, implementation is lacking due to shortcomings in the law. The recommendations of the Public Defender’s Office (which acts as an enforcement mechanism under the law) are not legally binding. Furthermore, private entities are not obliged to provide any information in the case examination process. As of today, Parliament has not adopted relevant changes in the law to the extent that the effective institutional and procedural guarantees of the equality mechanisms are still lacking.
Going forward, Ms Jalagania noted the need for the national authorities to implement the proposals made by the Public Defender of Georgia and the European Commission against Racism and Intolerance to strengthen the enforcement mechanisms of the Law on the Elimination of All Forms of Discrimination. An enhanced commitment by the national authorities was also required to improve the monitoring and prosecution of hate crimes and incidents and discrimination cases, including by setting up a unified data collection system and an effective investigations model.
The memo of Ms Jalagania can be found here. You can also find the communication from the Public Defender of Georgia from April 2018 here. The Rule 9.2 communication of May 2018 from the Human Rights Education and Monitoring Centre, the Women’s Initiatives Support Group and ILGA-Europe is here.
Yuriy Nikolayevich Ivanov + Zhovner Group, Burmych and Others v Ukraine (Applications No 40450/04, 56848/00, 46852/13)
These cases relate to the chronic problem of non-enforcement or delayed enforcement of domestic judicial decisions in Ukraine, especially against the State and State-owned or -controlled entities, together with the lack of an effective remedy in respect to these cases (violations of Article 6, 13 and Article 1 of Protocol 1).
Most notable, in October 2017, the Grand Chamber delivered its judgement in the Burmych case, effectively transmitting over 12,000 pending and future similar cases to the Committee of Ministers to be dealt with in the context of the general measures that would be required going forward to execute the Ivanov pilot judgment. This includes providing redress for all the domestic judicial decisions that remain non-enforced or delayed as well as payment of the debt stemming from the judgment.
Mr Shcherbatyuk. Photo: EIN
Mr Maksym Shscherbatyuk, Programme Director, Ukrainian Helsinki Human Rights Union, focused his presentation on the root causes of the problem of non-enforcement or delayed enforcement of domestic judicial decisions in Ukraine. These include the excessive use of moratoriums, the scale and scope of the State’s social benefit responsibilities and obligations, the public’s lack of trust in the judiciary, and others. He also noted that the national authorities have allocated 1 billion UAH to cover the debt even though it appears that at least 31 billion UAH may be needed. Mr Shscherbatyuk recommended the abolishment or limitation of moratoriums that make it impossible to enforce court decisions against the State and State-owned and -controlled companies in various sectors; and the establishment of a special mechanism to help align the amount of the State’s obligatory social obligations with the State budget.
Mr Shscherbatyuk’s memo is here; the 2017 Rule 9.2 submission by the Ukrainian Helsinki Human Rights Union and answer from the authorities can be found here; and the 2018 Action Plan from the Ukrainian authorities is here.
Chair Andrew Drzemczewski and the NGO representatives. Photo: EIN
On 5 March 2018, the European Implementation Network (EIN) convened a quarterly civil society briefing on cases of the European Court of Human Rights (ECtHR) scheduled for review at the 1310th Human Rights Meeting of the Committee of Ministers’ (CM) Deputies on 13-14 March.
This event was the first of four briefings that will be organised by EIN in 2018. The next briefings are expected to be held in May, September and November - each one approximately two weeks before the respective Human Rights Meetings of the Committee of Ministers’ Deputies.
The meeting took place at the Palais de l’Europe and was attended by representatives of over 20 delegations, including the EU delegation to the Council of Europe.
The following cases were discussed: Zorica Jovanovic v Serbia, Bragadireanu v Romania, Ciorap v the Republic of Moldova, and Kehayov v Bulgaria. Whilst the first case deals with failure to provide information as to the fate of new-born babies alleged to have died in maternity wards, the three other cases concern poor conditions of detention.
A summary of points in the form of 3-5 recommendations made by all presenters on their respective cases can be found here. Further information on the discussions held at the briefing is provided below.
Zorica Jovanovic v Serbia (Application No 21794/08)
This case concerns failure to provide information as to the fate of new-born babies alleged to have died in maternity wards. In its judgment, the ECtHR held that there had been a violation of Article 8 of the Convention – respect for family life. The Court also ordered remedial measures. Given the significant number of potential applicants, Serbian authorities had to take appropriate measures to establish a mechanism to provide individual redress to all parents in a similar situation, within one year of the judgment becoming final, on 9 September 2013.
Ana Jankovic-Jovanovic, Lawyers' Committee for Human Rights, Belgrade. Photo: EIN
In her presentation, Ms Jankovic-Jovanovic, Legal Adviser at the Lawyers' Committee for Human Rights (Belgrade), pointed out that the Republic of Serbia had not yet enacted the special law, lex specialis, which should establish a mechanism capable of investigating the “missing babies” cases upon parents’ complaints (applications). She also underlined the weaknesses of the Draft Law proposed by State Authorities – and currently withdrawn from the parliamentary procedure – which would not allow for investigations of “missing babies” cases and underlined the need to establish a “proper investigative mechanism”. The memo from the Lawyers’ Committee for Human Rights can be found here. The submissions pursuant to Rule 9.2 of the Committee of Ministers’ Rules for the Supervision of the Execution of Judgments can be found here (2016) and here (2017). The 2017 revised Action Plan from Serbia on this case is available here.
Bragadireanu v Romania group of cases (Application No 22088/04)
These cases concern inhuman and/or degrading treatment suffered by the applicants on account of overcrowding and poor material conditions in prisons and police detention facilities and the lack of an effective remedy in this regard; the inadequacy of the medical care provided to some of the applicants and several other dysfunctions regarding the protection of the prisoners' rights (violations of Article 3; and violation of Article 13 in the case of Marcu). On 25 January 2018, the Government of Romania communicated its “Timetable for the Implementation of measures 2018 – 2024 to resolve the issue of prison overcrowding and conditions of detention with a view to executing the pilot-judgment Rezmiveș and others against Romania delivered by the ECtHR on 25 April 2017”.
Ms Gheorghe, Legal Officer at the Association for the Defence of Human Rights in Romania - the Helsinki Committee, underlined in her presentation that this document had not been debated or submitted to public consultations. In addition, she highlighted the fact that financial resources to build new accommodation places in prison were not detailed, with the exception of EEA grants. Her memo identifying key problems and recommendations on detention conditions in Romanian prisons and police lock-ups can be found here. The latest action plan of the Romanian authorities submitted in January 2018 can be found here.
Ciorap v the Republic of Moldova (Application Nos 12066/02, 9190/03, 39806/05)
The Ciorap group of cases mainly concern poor conditions of detention in Prison No. 13 in Chisinau and the lack of effective domestic remedies in this respect. The ECtHR found the following main problems regarding conditions of detention in Prison No. 13: (extreme) overcrowding; unsanitary conditions / hygiene; insufficiency and low quantity of food.
On 11 January 2018, the Government of the Republic of Moldova submitted a revised Action Plan for the execution of these judgments. In respect of general measures, it mainly refers to a compensatory remedy that entered into force on 20 December 2017 (Law No 163 of 20 July 2017). The Government admitted that the overcrowding of Prison No. 13 still was a problem, as well as the “massive granting of prosecutors’ motions for pre‐trial detention”.
Nadejda Hriptievschi, Legal Resources Centre from Moldova. Photo: EIN
Nadejda Hriptievschi, Director of Programmes at the Legal Resources Centre from Moldova, focused in her presentation on material conditions of detention in Prison No. 13, as well as on the domestic remedy introduced for detention in poor conditions. She highlighted the possibility to overcome the problem of overcrowding through the application of non-custodial preventive measures, until the construction of a new prison is finished. She also called for training measures for relevant stakeholders to ensure that “the new remedy introduced to address the problem of detention in bad conditions (be) effectively applied in practice”.
The memo of Ms Hriptievschi can be found here. You can also find the Rule 9.2. communications from the Legal Resources Centre from Moldova on this case here (2016) and here (2018).
Kehayov v Bulgaria (Application Nos 41035/98 36925/10)
This group of cases concerns inhuman and degrading treatment of the applicants in penitentiary facilities between 1996 and 2016, in particular owing to overcrowding, poor sanitary and material conditions, limited possibilities for out-of-cell activities, inadequate medical care and prolonged application of a restrictive penitentiary regime, in respect of accused or convicted persons, combined with the effects of inadequate material conditions (violations of Article 3). In certain cases, the Court also found that there was no preventive remedy and that there were various shortcomings in the functioning of the domestic compensatory remedy (violations of Article 13).
Ecaterina-Georgiana Gheorghe, Association for the Defence of Human Rights in Romania, the Helsinki-Committee, and Adela Katchaounova, Bulgarian Helsinki Committee. Photo: EIN
Ms Katchaounova, Legal Programme Director at the Bulgarian Helsinki Committee, underlined that, whilst one could witness some improvement of living conditions in some prisons and prison hostels, there was still need for renovation in prisons buildings. Similarly, conditions in investigative detention facilities remained problematic, she said. As far as the legal remedy is concerned, Ms Katchaounova underlined the progress made through the 2017 Act which amended Article 3 of the Execution of Punishments and Pre-Trial Detention Act, noting however that it was too early to estimate the effectiveness of these dedicated preventive and compensatory remedies. Ms Katchaounova’s memo and the most recent Rule 9.2. submission made by the Bulgarian Helsinki Committee on this group of cases can be found here. You can also consult the 2017 Action Plan of Bulgaria on this group of cases and its addendum.
The European Implementation Network (EIN) recently welcomed four new members: the Accountability Unit; the Netherlands Helsinki Committee; the Stitching Justice Initiative; and Fair Trails.
“We are excited to have new members joining our growing network of NGOs and individuals who collectively are committed to supporting the full implementation of judgments of the European Court of Human Rights. We look forward to working with our new colleagues by harnessing the energy and expertise of civil society organisations in the field of human rights protection,” said Kevin Steeves, EIN Director.
The Accountability Unit (AU) works to advance conflict-related gender-based rights through litigation, advocacy, research and policy advice in Turkey. The monitoring and implementation of judgments of the European Court of Human Rights (ECtHR) is a core consideration of AU’s work. This relates to the provision of legal assistance on available domestic legal accountability mechanisms to victims and petitioning local authorities, including ministries, national human rights bodies and ombudsmen. AU also supports strengthening of domestic laws and implementation of human rights through advocacy submissions to the Council of Europe, EU, OSCE and UN mechanisms. AU has prepared submissions to the Committee of Ministers based on Article 14 to bring state practice and behaviour in line with international law and ECtHR case law.
The Netherlands Helsinki Committee (NHC) aims to contribute to defending, building and securing human rights and the rule of law in Europe, mostly but not exclusively in the eastern European part of the OSCE region. NHC sets up capacity-building projects for government institutions and civil society organisations and engages in advocacy with national governments and intergovernmental organisations. NHC has over the past decades developed and coordinated several projects to train and accompany NGOs and lawyers in submitting cases to the ECtHR, the most extensive of these having focused on Armenia, Azerbaijan and Georgia during the period of 2006 to 2011. Priorities in the future include building advocacy for the implementation of ECtHR judgments, in particular at the national level.
The Stichting Justice Initiative (SJI) is dedicated to the legal protection of victims of human rights violations connected to armed conflict and counter-terrorism operations, torture and gender-based violence in the post-Soviet region. SJI has been conducting activities around implementation of ECtHR judgments for over eight years, including regular submissions to the Committee of Ministers, post-judgment follow-up on the domestic level in Russia and advocacy in Strasbourg and the diplomatic community in Moscow. Since that time, it has ensured in-depth legal follow-up on the domestic level on over 40 ECtHR judgments, including by applying to the Russian Constitutional Court, overturning the conviction of a torture victim at the Russian Supreme Court, and challenging the application of amnesties, statute of limitations, classification of case materials, and many other issues at the local level in the North Caucasus region of Russia.
Fair Trials is an international criminal justice watchdog working to uphold the right to a fair trial according to internationally recognised standards of justice. They lead in efforts to create and implement EU-wide standards on the procedural rights of suspects and accused persons and regularly intervene in cases before the ECtHR related to fair trials issues. Among other initiatives, Fair Trials coordinates the Legal Experts Advisory Panel (LEAP), composed of representatives of over 150 criminal defence law firms, academic institutions and civil society organisations. A LEAP working group was formed in 2017 to monitor judgments of the ECtHR. It then accesses the wider LEAP network to help in ensuring proper implementation of respective judgments, including litigation support, legislative and policy advocacy, or training.
EIN now has 25 members from 17 countries – 19 NGO and six individual members. EIN membership is open to all civil society organisations or individuals adhering to the founding statute of EIN and working towards effective implementation of ECtHR judgments. All membership applications are reviewed and approved by the EIN Board.
On 6 February 2018, the European Implementation Network (EIN) was invited by the Council of Europe Chairmanship of Denmark to participate in a civil society consultation in Copenhagen.
The purpose of the event was to seek feedback from NGOs and other civil society organisations on the draft political declaration on the European Convention on Human Rights. Building on the so-called “Interlaken Process” involving the respective Convention conferences held between 2010 and 2015 in Interlaken, Izmir, Brighton and Brussels, the final declaration will be adopted by the member states of the Council of Europe at a meeting of ministers in mid-April in Copenhagen.
The Danish Chairmanship team.
Photo: EIN
The consultation took the form of a roundtable discussion with over 20 representatives from international, European and Danish NGOs and civil society organisations, including the Legal Resources Centre from Moldova which is an EIN member. The event was chaired by Rasmus Kieffer-Kristensen, Head of the Initiative on the European Court of Human Rights (ECtHR) at the Danish Ministry of Justice; along with Jonas Christoffersen, Director of the Danish Institute of Human Rights.
The chairs noted during the introduction the main goals of the Chairmanship regarding the next declaration, namely to reaffirm member state commitments to the Convention system. At the same time, the Chairmanship intended to address what it assessed as the main challenges affecting the Convention system including those related to the efficiency of the ECtHR, such as the current caseload and the full implementation of judgments. Denmark also hoped to propose new ideas for the future, such as instituting debates on serious instances of non-execution of ECtHR judgments at the annual ministers’ meetings.
NGO representatives at the consultation. Photo: EIN
The EIN Director, Kevin Steeves, and other NGOs representatives thanked the Danish Chairmanship for organising the roundtable. In terms of initial feedback on the draft declaration, text dealing with the themes of national implementation and the execution of judgments, for example, was largely welcomed. In turn, EIN and other NGOs noted concerns with some core elements of the draft declaration. These included the Chairmanship’s interpretation of the principle of subsidiarity regarding the primary role of national systems in safeguarding human rights; and the associated margin of appreciation that national courts are afforded in implementing the Convention and when. NGO representatives cautioned against any language that could be interpreted as challenging the role and authority of the ECtHR, including around asylum and immigration and in the context of dealing with cases stemming from conflicts. Similar questions were asked of language in the draft declaration suggesting the need for “enhanced dialogue” between member states and the ECtHR including the engagement of “States Parties and their populations” in debates on Convention rights.
After the consultation, EIN teamed up with five other NGOs to adopt a joint statement on the draft declaration. This was the second joint effort by the NGOs, following the first NGO response to the Danish initiative stemming from the High-Level Expert Conference called ‘2019 and Beyond: Taking Stock and Moving Forward from the Interlaken Process’, which was held in Denmark at the end of November 2017. In the second declaration several specific recommendations for amendments to the draft declaration were made. In total, EIN and the other NGOs argued that the amendments were necessary in order for the final declaration to clearly state the Court’s independence and more broadly the universality of human rights.
In addition to the member state replies on the Danish draft declaration, there have also been responses from the ECtHR itself as well as other important stakeholders such as the Conference of International NGOs of the Council of Europe.
In the case of the ECtHR, it prepared an opinion on the draft declaration. In particular, the Court noted that:
“[i]t has been the consistent message of the Court throughout the reform process that the implementation phase of the procedure is in need of improvement. … The Court therefore considers that the critical importance of effective execution for the overall functioning of the Convention system calls for special emphasis in the declaration. It invites the Conference to explicitly reiterate the States Parties’ strong commitment to the full, effective and prompt execution of judgments of the Court, …”
EIN will continue to analyse developments and meet with relevant stakeholders in order to monitor the process leading up to the adoption of the final declaration in Copenhagen in mid-April.
The European Implementation Network (EIN) held its first-ever training seminar at the Helsinki Foundation for Human Rights in Warsaw from 2 to 3 February 2018.
The design of the training centred on the Council of Europe (CoE) process that underpins the supervision of the implementation of the judgments of the European Court of Human Rights (ECtHR).
Presentation by Nikolaos Sitaropoulos, Head of Division, Department for the Execution of Judgments, Council of Europe. Photo: EIN
Under Rule 9.2 of the Rules of the Committee of Ministers (CM), the CoE’s decision-making body responsible for ensuring the implementation of ECtHR judgments, civil society organisations can make submissions in support of the implementation process. These inputs and associated advocacy efforts in Strasbourg and domestically are vital to an effective, transparent and participatory execution process. They provide the CM with up-to-date and accurate information and analyses on the state of implementation and enable civil society organisations to take part directly in the execution process.
Yet civil society organisations active in CoE member states currently underutilise the opportunities afforded to them by Rule 9.2 submissions. The impetus for the training stemmed in fact from an EIN analysis in mid-2017. This showed that there were only 90 such submissions in all of 2016 in the face of nearly 10,000 cases pending implementation, including 1,500 leading cases. In comparison, governments submitted 227 Action Plans and 460 Action Reports in 2016, respectively.
As a result, there is an ongoing need to increase the involvement of NGOs in making Rule 9.2 submissions to adequately complement the information on the status of implementation coming from governmental sources; and ensure that the information and analyses provided are pertinent to overcoming the respective challenges to implementation as seen through the lens of the work of NGOs and other civil society organisations.
Over 25 participants took part in Warsaw training event, including staff from EIN members and partners, the Head of a Division in the CoE’s Department for the Execution of Judgments, the Government Co-Agent for the Coordination of the Execution of Judgments, the Polish Ombudsman and others.
Through a mix of interactive sessions, the training in Warsaw allowed participants to enhance their skills related to the execution process of the CoE and to better understand and navigate the opportunities offered for getting involved in this process. Participants benefited from the experience of others and shared best practices in preparing and drafting impactful Rule 9.2. submissions. The training focused as well on advocacy activities in Strasbourg and domestically to ensure the follow-up to submissions.
Discussion with Adam Bodnar, Polish Ombudsman. Photo: EIN
Presentation by Sebastian Kurek, Government Co-Agent for the Coordination of the Execution of Judgments, Ministry of Foreign Affairs, Poland. Photo: EIN
The feedback received from the participants was very positive overall. As a result, EIN made relevant enhancements and adjustments based on the suggestions received and is now calling for applications for the next training seminar to be held in Strasbourg from 21 to 22 June 2018. More information including the application form, which is due by 26 April, can be found here.
EIN Secretariat near the European Court of Human Rights and other Council of Europe organs.
Photo: Agnès Ciccarone
EIN launches new office in Strasbourg
On 3 January 2018, the European Implementation Network (EIN) opened its first physical office in Strasbourg. The office serves as the secretariat for Network members and partners across Europe and is located at the premises of René Cassin Foundation - International Institute of Human Rights.
Based just next to the European Court of Human Rights (ECtHR), the office will enable the Network to maintain regular operations and activities and strengthen interaction and engagement with Council of Europe entities and Permanent Representations of Council of Europe member states in support of the implementation of human rights judgments of the ECtHR.
The move was made possible thanks to Jean-Paul Costa, President of the René Cassin Foundation; Sébastien Touzé, the Foundation’s Director; and the rest of the Foundation team, who agreed to provide EIN with its own working space separate from the Foundation.
President Costa said:
‘I am delighted to see EIN in Strasbourg and welcome the Network at our premises in the René Cassin Foundation. EIN has a vital role to play in ensuring that NGOs and other civil society organisations can act to advance the implementation of judgments of the European Court of Human Right. I expect the Network to be at the forefront of these efforts in the years to come and look forward to seeing the benefits of their civil society presence in Strasbourg and the support they provide to Network members and partners across Europe.’
The move to a physical office marks another important development in EIN history. Initially conceived as a project of Judgment Watch, an organisation in Geneva dedicated to advocating the implementation of human rights judgments across the globe, EIN and the Open Society Justice Initiative began convening joint quarterly briefings in 2015 on ECtHR judgments for the Committee of Ministers, the Council of Europe body that supervises the implementation process. In January 2017, EIN was legally registered as an association in Strasbourg following its launch event in December 2016 at the ECtHR. The first EIN Director as well as the Finance and Events Officer were hired during 2017. The inaugural EIN training seminar for Network members and partners, focused on strengthening the role of NGOs in the judgment execution process of the Committee of Ministers, took place in Warsaw in February 2018 at the Helsinki Foundation for Human Rights.
Kevin Steeves, EIN Director, and Agnès Ciccarone, EIN Finance and Events Officer, in front of the René Cassin Foundation, home of the EIN Secretariat.
Photo, Kevin Steeves
Photo, Kevin Steeves
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European Implementation Network
EIN works with NGOs and others across Europe, to make judgments of the European Court of Human Rights provide real protections of fundamental rights.
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