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

/

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

/

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

/

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

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

/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

/

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

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

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

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

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

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

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

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

/

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

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

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

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

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

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

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

/

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

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

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

Event Details: 

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

Location: Berlin, Germany

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

Interventions:

The overall implementation of ECtHR judgments

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

The implementation of ECtHR cases concerning victims of political persecution:

Khadija Ismayilova, Azerbaijani investigative journalist and former political prisoner

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

The language of the event will be English.

Registration form here

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

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

/

From 20-22 September 2022, the Council of Europe’s Committee of Minister’s Deputies will meet for their the 1443rd Human Rights Meeting. This meeting will examine several judgments of the European Court of Human Rights that are still pending implementation. The agenda consists of 32 cases from 19 members of the Council of Europe.

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

Overview of Submissions

Mahmudov and Agazade Group v. Azerbaijan

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

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

Latest Submissions:

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

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

Ramazanova and others Group v. Azerbaijan

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

First examination (Standard procedure)

Latest submissions:

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

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

Bell v. Belgium

Violation: Excessive length of civil proceedings.

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

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

Yordanova and Others v. Bulgaria

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

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

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

Ilias and Ahmed Group v. Hungary

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

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

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

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

László Magyar Group v. Hungary

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

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

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

I.D. Group v. Republic of Moldova

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

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

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

Tysiąc, R.R., and P. and S. v. Poland

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

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

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

Cegolea v. Romania

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

First Examination

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

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

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

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

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

Buntov Group v. Russian Federation

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

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

Latest Submissions:

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

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

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

Navalnyy and Ofitserov v. Russian Federation

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

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

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

 Bati and Others Group v. Türkiye

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

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

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

Selahattin Demirtaş (no. 2) v. Turkey

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

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

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

Kavala v. Türkiye

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

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

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

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

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

Xenides-Arestis Group v. Türkiye

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

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

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

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

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

McKerr v. the United Kingdom

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

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

Latest Submissions:

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

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

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

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

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

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

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

/

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

The Briefing focused on the following cases:

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

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

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

3. Selahattin Demirtas (no.2) v Turkey, which concerns the unjustified detention of the applicant without reasonable suspicion that he had committed an offence, with the ulterior purpose of stifling pluralism and limiting freedom of political debate; and unforeseeable lifting of parliamentary immunity and subsequent criminal proceedings to penalise the applicant for political speech. The case was briefed on by Benan MOLU and Ramazan DEMIR, legal representatives of Mr Demirtas.

I.D. v the Republic Moldova

Overview of the case:

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

Photo Provided by Promo-LEX

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

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

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

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

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

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

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

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

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

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

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

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

Recommendations:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents

Skendzic and Krznaric v Croatia

Overview of the case:

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

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

  • lack of adequate investigations on account of:

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

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

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

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

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

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

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

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

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

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

  • Accounting on missing persons is not updated since 2015;

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

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

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

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

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

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

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

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

  • War crimes committed against Serb civilians in Vukovar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Please see the slides for the full Briefing.

Recommendations:

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

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

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

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

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

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

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

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

Relevant Documents

Photo Provided by Hungarian Helsinki Committee

Overview of the case:

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

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

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

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

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

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

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

Recommendations

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

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

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

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

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

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents

Selahattin Demirtaş (no.2) v Turkey

Overview of the case:

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

The briefing particularly focused on the Government’s argument that “new pieces of evidence” that had not been examined by the ECtHR have emerged and that the substance of the allegations against Mr. Demirtaş is now different.

The applicant’s legal representatives, explained that:

  • The charges against the applicant have not changed in substance

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

  • The witness statements:

    • are contradictory, inconsistent and false,

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

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

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

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

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

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

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

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

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

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

Recommendations

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

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

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

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

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

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents

EIN concerned about litigation against the Greek Helsinki Monitor

/

Photo Credit: EIN

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

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

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

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

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

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

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

/

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

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

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

The joint report from EIN and DRI, published April 2022

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

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

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

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

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

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

Overview: EIN June Conference 2022

/

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

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

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

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

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

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

The working group to implement judgments in Slovenia

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

Advocating for the creation of a parliamentary monitoring mechanism in Moldova

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

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

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

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

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

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

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

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

After Russia: reinvigorating the Convention system

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

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

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

Involving the EU in the implementation of ECtHR judgments

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

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

Session 3: Strategies for promoting judgment implementation

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

How to Nudge States Towards Implementing ECtHR Judgments

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

Implementing Judgments Concerning Grievous Human Rights Violations During the Troubles

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

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

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

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

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

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

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

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

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

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

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





Looking forward: what can civil society do? 

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

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

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

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

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

Update on the Infringement Proceedings in the case of Osman Kavala

/

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

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

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

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

What are infringement proceedings?

Under Article 46 (4) of the ECHR, if the Committee of Ministers considers that a state refuses to abide by a final judgment, it may refer to the ECtHR the question whether that state has failed to fulfil its obligation. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken.

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

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

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

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

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

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

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

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

What happens now?

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

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

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

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

/

About the Conference

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

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

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

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

EIN General Assembly June 2022

/

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

It was the first in-person meeting of the Network since the hybrid event organised in November 2021. 26 members came to Strasbourg, 3 joined us online, and 3 members were represented via proxy. At the meeting, major documents for the life of the Network were discussed and adopted, such as the annual accounts, and a change in the Statutes. It was also a unique opportunity for EIN members to take stock of the work achieved by the Network on advocating for the implementation of ECtHR judgments to be higher on the agenda. 

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

 

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

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

/

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

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

 

Overview of Submissions

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

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

Latest Submission:

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

MAMMADLI GROUP v. Azerbaijan

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

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

 Latest Submissions:

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

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

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

VASILESCU GROUP v. Belgium

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

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

 Latest Submission:

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

S.Z GROUP and KOLEVI v. Bulgaria

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

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

 Latest Submission:

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

STANEV v. Bulgaria

Photo Credit: Validity

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

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

 Latest Submissions:

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

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

BEKIR OUSTA AND OTHERS GROUP v. Greece

Violation: Refusal of domestic courts to register associations.

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

Latest Submissions:

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

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

CORDELLA AND OTHERS v. Italy

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

 Last Examination: March 2021- CM/Del/Dec(2021)1398/H46-14

 Latest Submission:

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


DI SARNO AND OTHERS v. Italy

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

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

 Latest Submission:

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

 L. v. Lithuania

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

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

 Latest Submission:

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

OZDIL AND OTHERS v. Republic of Moldova

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

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

 Latest Submission:

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

 M.K. AND OTHERS v. Poland

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

First Examination 

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

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

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

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

 Violations: Insufficient reasons of courts for refusal to refer a legal question to the Constitutional Court. Tribunal not established by law due to grave irregularities in the election of one of the Constitutional Court's judges examining the applicant company’s constitutional complaint.

 First Examination

Latest Submission:

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

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

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

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

 Latest Submissions:

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

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

GOMI v. Turkey

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

First Examination

Latest Submissions:

Recent submission to be uploaded

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

SELAHATTİN DEMİRTAŞ (No. 2) GROUP v. Turkey

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

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

 Latest Submissions:

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

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

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

/

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

The Briefing focused on the following cases:

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

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

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

Overview of the case:

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

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

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

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

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

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

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

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

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

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

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

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

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

  • implementation of an effective remedy.

Please see the slides for the full Briefing.

Relevant Documents (French)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Khadija Ismayilova highlighted latest developments in general measures:

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

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

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

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

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

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

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

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

  • Provide compensation for travel ban and asset freezing;

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents

Selahattin Demirtaş (No. 2) case v. Turkey

Overview of the case

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

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

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

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

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

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

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

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

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

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

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

Relevant Document

9.2 Submissions

9.1 Submissions

CM Decisions

 

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

/

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

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

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

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

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

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

More information about the project via our news publication here.

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

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

/

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

·        A special representative on the implementation of ECtHR judgments;

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

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

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

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

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

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

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

 

Signed by the EIN Board, composed of:

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

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

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

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

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

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

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

Panayote Dimitras, Founder and Spokesperson of the Greek Helsinki Monitor

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

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

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

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

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

/

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

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

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

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

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

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