Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting in December 2023

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From the 5th to the 7th of December 2023, the Committee of Ministers will meet for their quarterly Human Rights Meeting. During this meeting, the Committee of Ministers will examine 43 leading judgments of the European Court of Human Rights that are pending implementation.

EIN members and partners, other civil society actors, lawyers and applicants have made 53 Rule 9 submissions for 28 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.


Overview of Submissions

Sharxhi and others v. Albania

Violation: Demolition of the applicants’ flats and business premises in disregard of an interim court order restraining the authorities from taking any action that could breach property rights.

Last Examination: March 2023 - CM/Del/Dec(2023)1459/H46-1

Latest Submission: Rule 9.1 - Communication from the applicant (25/10/2023) in the case of Sharxhi and Others v. Albania (Application No. 10613/16)

Muradyan v. Armenia

Violation: Failure to provide plausible explanation for the injury sustained by the applicant’s son, a military conscript, and his ensuing death. Lack of an effective investigation into his death.

Last Examination: September 2019 - CM/Del/Dec(2019)1355/H46-1

Latest Submissions: Rules 9.2 and 9.6 - Reply from the authorities (27/11/2023) following a communication from an NGO (Helsinki Citizens' Assembly – Vanadzor) (16/11/2023) in the case of Muradyan v. Armenia (Application No. 11275/07)

Rules 9.2 and 9.6 - Communication from an NGO (Helsinki Citizens' Assembly – Vanadzor) (24/10/2023) in the case of Muradyan v. Armenia (Application No. 11275/07) and reply from the authorities (08/11/2023)

Muradova group, Mammadov (Jalaloglu) Group, and Mikayil Mammadov Group v. Azerbaijan

Violation: Excessive use of force by the security forces and lack of effective investigations.

Last Examination: 30 November - 2 December 2021 -CM/Del/Dec(2021)1419/H46-5

Latest Submissions: Rule 9.2 - Communication from an NGO (Legal Education Society) (26/06/2023) in the Muradova (Application No. 22684/05), Mammadov (Jalaloglu) (Application No. 34445/04), and Mikayil Mammadov groups (Application No. 4762/05) v. Azerbaijan

Sejdić and Finci Group v. Bosnia and Herzegovina

Violation: Ethnic-based discrimination on account of the ineligibility of persons not affiliated with one of the “constituent peoples” (Bosniaks, Croats or Serbs) to stand for election to the House of Peoples and the Presidency.

Last Examination: June 2023 - CM/Del/Dec(2023)1468/H46-4

Latest Submission: Rule 9.2 - Communication from an NGO (Minority Rights Group International) (23/10/2023) in the case of SEJDIC AND FINCI v. Bosnia and Herzegovina (Application No. 27996/06)

International Bank for Commerce and Development ad and others group v. Bulgaria

Violation: Unfairness of the proceedings concerning the withdrawal of a bank licence and the bank’s insolvency.

Last Examination: June 2018 - CM/Del/Dec(2018)1318/H46-6

Latest Submissions: Rule 9.1 - Communication from the applicant (20/11/2023) in the case of Korporativna Targovska Banka AD v. Bulgaria (Application No. 46564/15) (International Bank for Commerce and Development AD group, 7031/05) 

Rule 9.1 - Communication from the applicant (16/08/2023) in the case of Korporativna Targovska Banka AD v. Bulgaria (Application No. 46564/15) (INTERNATIONAL BANK FOR COMMERCE AND DEVELOPMENT AD group, 7031/05)

Rule 9.1 - Communication from the applicant (20/10/2023) in the case of Korporativna Targovska Banka AD v. Bulgaria (Application No. 46564/15) (INTERNATIONAL BANK FOR COMMERCE AND DEVELOPMENT AD group, 7031/05) 

Rule 9.1 - Communication from the applicant (20/09/2023) in the case of Korporativna Targovska Banka AD v. Bulgaria (Application No. 46564/15) (International Bank for Commerce and Development AD group, 7031/05)

Velikova Group v. Bulgaria

Violation: Excessive use of force by law enforcement agents; ineffective investigations.

Last Examination: 30 November - 2 December 2021 - CM/Del/Dec(2021)1419/H46-10

Latest Submissions: Rule 9.2 - Communication from an NGO (BULGARIAN HELSINKI COMMITTEE (BHC)) (23/10/2023) in the VELIKOVA group of cases v. Bulgaria (Application No. 41488/98)

Statileo Group v. Croatia

Violation: Statutory limitations on use of property by landlords, including through the rent control scheme for flats subject to protected leases.

Last Examination: June 2023 - CM/Del/Dec(2023)1468/H46-9

Latest Submissions: Rule 9.2 - Communication from an NGO (Udruga Proljece) (10/11/2023) in the case of STATILEO v. Croatia (Application No. 12027/10)

Identoba and others group v. Georgia

Violation: Lack of protection against homophobic attacks during demonstrations.

Last Examination: December 2022 - CM/Del/Dec(2022)1451/H46-13

Latest Submissions: Rule 9.2 - Communication from an NGO (Tolerance and Diversity Institute (TDI)) (30/10/2023) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) 

Rule 9.2 - Communication from NGOs (Social Justice Center and European Human Rights Advocacy Centre) (19/10/2023) in the case of Mikeladze and Others v. Georgia (Application No. 54217/16) (Identoba and Others group, 73235/12) 

Rule 9.2 - Communication from NGOs (European Human Rights Advocacy Centre (EHRAC), Women's Initiatives Support Group (WISG) and Georgian Young Lawyers' Association (GYLA)) (16/10/2023) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) 

Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (19/10/2023) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) 

Rule 9.4 - Communication from another Organisation (Council of Europe Commissioner for Human Rights) (24/10/2023) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12)

Tkhelidze Group v. Georgia

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

Last Examination: December 2022 - CM/Del/Dec(2022)1451/H46-14

Latest Submissions: Rule 9.2 - Communication from an NHRI (The Public Defender of Georgia) (03/11/2023) in the case of Tkhelidze v. Georgia (Application No. 33056/17) 

Rule 9.2 - Communication from NGOs (Georgian Young Lawyers’ Association (GYLA), European Human Rights Advocacy Centre (EHRAC) and Union Sapari) (20/10/2023) 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 or dissolution of the applicants’ associations.

Last Examination: June 2023 - CM/Del/Dec(2023)1468/H46-12

Latest Submissions: Rule 9.1 - Communication from the applicant (25/10/2023) in the case of BEKIR-OUSTA AND OTHERS v. Greece (Application No. 35151/05) 

Rule 9.2 - Communication from an NGO (Greek Helsinki Monitor) (13/11/2023) in the case of Bekir-Ousta and Others v. Greece (Application No. 35151/05) 

Rule 9.2 - Communication from an NGO (Greek Helsinki Monitor) (16/10/2023) in the case of BEKIR-OUSTA AND OTHERS v. Greece (Application No. 35151/05) 

Rule 9.2 - Communication from an NGO (Federation of Western Thrace Turks in Europe) (14/09/2023) in the case of BEKIR-OUSTA AND OTHERS v. Greece (Application No. 35151/05)

Sidiropoulos and Papakostas Group v. Greece

Violation: Use of potentially lethal force and ill-treatment by law enforcement agents and lack of effective investigations.

Last Examination: September 2021 - CM/Del/Dec(2021)1411/H46-15

Latest Submissions: Rule 9.2 - Communication from an NGO (Greek Helsinki Monitor) (18/10/2023) in the case of Sidiropoulos and Papakostas v. Greece (Application No. 33349/10) 

Rule 9.2 - Communication from an NGO (Pro Bono Publico) (16/10/2023) in the case of Sidiropoulos and Papakostas v. Greece (Application No. 33349/10) [anglais uniquement]

Baka v. Hungary

Violation: Lack of access to a court as regards the premature termination of the applicant’s mandate as President of the Supreme Court which also led to a violation of his right to freedom of expression.

Last Examination: March 2023 - CM/Del/Dec(2023)1459/H46-11

Latest Submission: Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee (HHC)) (05/10/2023) in the case of BAKA v. Hungary (Application No. 20261/12)

Cestaro Group v. Italy

Violation: Ill-treatment by the police; inadequate criminal legislation to punish acts of torture and inhuman and degrading treatment.

Last Examination: December 2019 - CM/Del/Dec(2019)1362/H46-14

Latest Submissions: Rule 9.2 - Communication from an NGO (Associazione Luca Coscioni Per La Liberta Di Ricerca Scientifica) (19/01/2023) in the case of CESTARO v. Italy (Application No. 6884/11)

Cosovan v. Republic of Moldova

Violation: Lack of adequate medical care in prison, lack of domestic remedies, and lack of sufficient reasons for prolongation of pre-trial detention.

First Examination

Latest Submissions: Rule 9.2 - Communication from NGOs (Promo-LEX and European Prison Litigation Network) and an NHRI (The People’s Advocate Office) (24/10/2023) in the case of Cosovan v. the Republic of Moldova (Application No. 13472/18)

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: December 2022 - CM/Del/Dec(2022)1451/H46-22

Latest Submissions: Rule 9.2 - Communication from NGOs (Transgender Europe, Coalition MARGINS, TransFormA and ILGA Europe) (27/07/2023) in the case of X. v. the “former Yugoslav Republic of Macedonia” (Application No. 29683/16)

Strand Lobben and others group v. Norway

Violation: Various shortcomings in the decision-making processes in child welfare proceedings.

Last Examination: September 2022 - CM/Del/Dec(2022)1443/H46-18

Latest Submissions: Rule 9.2 - Communication from an NGO (Menneskerett Norge) (17/02/2023) in the case of Strand Lobben and others v. Norway (Application No. 37283/13) 

Rule 9.2 - Communication from an NGO (Menneskerett Norge) (16/11/2022) in the case of Strand Lobben and others v. Norway (Application No. 37283/13) 

Rule 9.1 - Communication from the applicant (17/05/2023) in the case of A.S. v. Norway (Application No. 60371/15) (Strand Lobben and Others group, 37283/13) 

Rule 9.1 - Communication from the applicant (27/02/2023) in the case of A.S. v. Norway (Application No. 60371/15) (Strand Lobben and Others group, 37283/13) 

Juszczyszyn and Żurek v. Poland

Violation: Unforeseeable suspension of a judge, by a tribunal not established by law, predominantly aiming to sanction and dissuade him from verifying the lawfulness of appointment of judges upon recommendation of the reformed National Council of the Judiciary (NCJ) (Juszczyszyn) and application of a set of measures against a former judicial member of the NCJ in connection with his views in defence of judicial independence (Żurek).

First Examination

Latest Submissions: Rule 9.2 - Communication from an NGO (Helsinki Foundation for Human Rights (HFHR)) (28/08/2023) in the case of Juszczyszyn v. Poland (Application No. 35599/20) 

Rules 9.2 and 9.6 - Reply from the authorities (20/04/2023) following a communication from an NGO (Helsinki Foundation for Human Rights) (31/03/2023) in the cases of Xero Flor w Polsce sp. z o.o., Reczkowicz group, Grzeda, Broda and Bojara, Juszczyszyn and Zurek v. Poland (Applications No. 4907/18, 43447/19, 43572/18, 26691/18, 35599/20, 39650/18)

Reczkowicz Group, Broda and Bojara, and Grzęda v. Poland

Violation: Tribunal not established by law due to, inter alia, systemic dysfunction in the judicial appointments’ procedures (Reczkowicz group) and lack of access to court regarding the termination of the applicants’ terms of office (Broda and Bojara, Grzęda).

Last Examination: June 2023 - CM/Del/Dec(2023)1468/H46-18

Latest Submissions: Rule 9.1 - Communication from the applicant (14/11/2023) in the case of Advance Pharma sp. z o.o v. Poland (Application No. 1469/20) (Reczkowicz group, 43447/19) 

Rule 9.2 - Communication from an NGO (Helsinki Foundation for Human Rights) (26/10/2023) in the cases of Reczkowicz, Advance Pharma sp. z o.o and Dolinska-Ficek and Ozimek v. Poland (Applications No. 43447/19, 1469/20, 49868/19) 

Rule 9.2 - Communication from an NGO (Polish Judges Association Iustitia) (30/05/2023) in the cases of Broda and Bojara, Xero Flor w Polsce sp. z o.o. and Dolinska - Ficek and Ozimek v. Poland (Applications No. 26691/18, 4907/18, 49868/19) 

Xero Flor w Polsce sp. z o.o. v. Poland

Violation: 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.

Last Examination: June 2023 - CM/Del/Dec(2023)1468/H46-20

Latest Submissions: Rule 9.1 - Communication from the applicant (14/11/2023) in the case of Advance Pharma sp. z o.o v. Poland (Application No. 1469/20) (Reczkowicz group, 43447/19) 

Rule 9.2 - Communication from an NGO (Helsinki Foundation for Human Rights) (26/10/2023) in the cases of Reczkowicz, Advance Pharma sp. z o.o and Dolinska-Ficek and Ozimek v. Poland (Applications No. 43447/19, 1469/20, 49868/19) 

Rule 9.2 - Communication from an NGO (Polish Judges Association Iustitia) (30/05/2023) in the cases of Broda and Bojara, Xero Flor w Polsce sp. z o.o. and Dolinska - Ficek and Ozimek v. Poland (Applications No. 26691/18, 4907/18, 49868/19) 

E.B. and M.G.C. Group v. Romania

Violation: Breaches of the State’s positive obligation effectively to apply a criminal-law system punishing any non-consensual sexual acts, in particular when the victims are children and persons with psychosocial disabilities.

Last Examination: 29 September – 1 October 2020 - CM/Del/Dec(2020)1383/H46-15

Latest Submissions: Rule 9.2 - Communication from an NGO (Network for Preventing and Combating Violence against Women (”The Network”)) (18/10/2023) in the M.G.C. group of cases v. Romania (Application No. 61495/11)

Săcăleanu Group v. Romania

Violation: Failure or substantial delay in the enforcement of final domestic judicial decisions against the State and State-owned enterprises.

Last Examination: March 2023 - CM/Del/Dec(2023)1459/H46-17 and September 2023 CM/Del/Dec(2023)1475/H46-30

Latest Submissions: Rule 9.1 - Communication from the applicant (28/11/2023) in the case of Omegatech Enterprises Ltd. v. Romania (Application No. 24612/07) (judgment S.C. Polyinvest S.R.L. and Others v. Romania (No. 20752/07)) (Sacaleanu group (73970/01) [anglais uniquement] [DH-DD(2023)1466]

Rule 9.1 - Communication from the applicant (27/11/2023) in the case of Omegatech Enterprises Ltd. v. Romania (Application No. 24612/07) (judgment S.C. Polyinvest S.R.L. and Others v. Romania (No. 20752/07)) (Sacaleanu group (73970/01) 

Rule 9.1 - Communication from the applicant (16/10/2023) in the case of Omegatech Enterprises Ltd. v. Romania (Application No. 24612/07) (judgment S.C. Polyinvest S.R.L. and Others v. Romania (No. 20752/07)) (Sacaleanu group (73970/01)

Alekseyev, Bayev and others, Berkman Group, and Zhdanov and others v. Russian Federation

Violation: Discrimination on grounds of sexual orientation in the exercise of the right to freedom of peaceful assembly (Alekseyev, Bayev and Others, Berkman group). Refusal to register LGBT associations (Zdganov and Others).

Last Examination: December 2018 - CM/Del/Dec(2018)1331/H46-24, First examination, and First examination.

Latest Submission: Rule 9.2 - Communication from an NGO (Crew Against Torture) (13/09/2023) in the cases of Zhdanov and Others, ALEKSEYEV group, Bayev and Others and Berkman group v. Russian Federation (Applications No. 12200/08, 4916/07, 67667/09, 46712/15)

Magnitskiy and others and Mazepa and others group v. Russian Federation

Violation: High-profile murder cases and lack of effective investigation.

First Examination

Latest Submission: Rule 9.2 - Communication from an NGO (EHRAC) (17/10/2023) in the case of Mazepa and Others v. Russian Federation (Application No. 15086/07)

Navalnyy and Ofitserov Group v. Russian Federation

Violation: Different violations relating to various repressive measures taken by the authorities against Mr Aleksey Navalnyy, with strong factual links between them.

Last Examination: June 2023 - CM/Del/Dec(2023)1468/H46-30

Latest Submissions: Rule 9.1 - Communication from the applicant (03/11/2023) in the case of NAVALNYY AND OFITSEROV v. Russia (Application No. 46632/13)

R. Kačapor and others group v. Serbia

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

Last Examination: December 2022 - CM/Del/Dec(2022)1451/H46-37

Latest Submissions: Rule 9.1 - Communication from the applicant (02/08/2023) in the case of Zemljoradnicka Zadruga Paor v. Serbia (Application No. 13246/22) (R. Kacapor group, 2269/06)

Selahattin Demirtaş (no. 2) Group v. Türkiye

Violation: Unjustified detention of the applicants without reasonable suspicion that they 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. (Individual measures)

Last Examination: September 2023 - CM/Del/Dec(2023)1475/H46-38

Latest Submission: Rules 9.2 and 9.6 - Communication from NGOs (Turkey Human Rights Litigation Support Project, HRW, ICJ, IFHR) (23/10/2023) in the case of Yuksekdag Senoglu and Others v. Türkiye (Application No. 14332/17) (Selahattin Demirtas (No. 2) group, 14305/17) and reply from the authorities (02/11/2023) 

Opuz Group v. Türkiye

Violation: Failure to provide protection from domestic violence.

Last Examination: December 2022 - CM/Del/Dec(2022)1451/H46-41

Latest Submissions: Rule 9.2 - Communication from an NGO (‘Mor Çatı’ Women’s Shelter Foundation) (30/10/2023) in the case of OPUZ v. Turkey (Application No. 33401/02) 

Rule 9.2 - Communication from an NGO ('Mor Çatı' Women’s Shelter Foundation) (17/10/2023) in the OPUZ group of cases v. Turkey (Application No. 33401/02) 

Ahmet Yildirim Group v. Türkiye

Violation: Restriction of access to the internet and wholesale blocking of internet sites.

Last Examination: March 2021 - CM/Del/Dec(2021)1398/H46-31

Latest Submissions: Rule 9.2 - Communication from an NGO (Ifade Ozgurlugu Dernegi (IFOD – Freedom of Expression Association)) (03/11/2023) in the case of AHMET YILDIRIM v. Turkey (Application No. 3111/10) 

Rules 9.2 and 9.6 - Communication from NGOs (Media and Law Studies Association, Free Web Turkey Platform) (18/10/2023) in the cases of AHMET YILDIRIM and Cengiz and Others v. Turkey (Applications No. 3111/10, 48226/10) and reply from the authorities (02/11/2023)

EIN Civil Society Briefing November 2023 - Hungary, Türkiye, and Georgia

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On the 27th of November 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1483rd Committee of Ministers Human Rights Meeting which takes place between 5th – 7th December 2023. The event was held in person in Strasbourg, and facilitated by Ioulietta Bisiouli, EIN Director.

The Briefing focused on the following cases:

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

  • Selahattin Demirtaş (No. 2) v Türkiye 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. The case was presented by Ramazan Demir, Legal Representative of the applicant.

  • Identoba and others v Georgia concerns the lack of protection against homophobic attacks during demonstrations, presented by David Javakhishvili, International Litigation Lawyer at GYLA, and Toby Collis, Lawyer at EHRAC.


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


The Hungarian Helsinki Committee discussed the lack of a remedy against removal and the judicial reform of 2023, setting out general measures required:

  • Providing guarantees for procedural fairness in cases involving the removal of judges

  • Ensuring that measures leading to the removal of judges will be open to effective review

The NGO also addressed the government’s excuse for non-execution:

“those measures which were criticised and put under scrutiny in the case of Baka, all resulted from a one-time constitutional reform” - this excuse is not valid

In 2023, there is still no remedy against removal:

  • The chief justice can be removed from office without legal remedy by 2/3 majority of the Parliament

  • The decision on impeachment is political and not subject to judicial remedy

The Hungarian Helsinki Committee also outline repeating patterns of political pressure on the judiciary:

  1. Removal of judge Baka through ad hominem legislation

  2. Removal of senior judges by forced early retirement via legislative acts

  3. Election of new Kúria President through ad hominem legislation

  4. Removal of a lower-court judge from the bench (case of judge Szabó) after she turned to the CJEU

  5. Possibility of impeaching the Kúria President without judicial remedy

  6. Overruling judicial decisions

The NGO provided comments on the Judicial Reform of 2023:

Hungary passed a judicial reform in May 2023

  • To fulfill undertakings towards the European Union

  • A possibility not taken to implement the Baka judgment

  • No new rules on the impeachment procedure, still no remedy

  • New rules on the eligibility and election of the Kúria President and Vice-president

  • More guarantees against undue interference by court administration

Hacking the requirement of excluding re-election of the Kúria President

  • The Kúria President cannot be re-elected, but can remain in office for an indefinite period

  • Undermines the whole reform regarding the status of the Kúria President

The Hungarian Helsinki Committee also discussed the freedom of expression violation and the ongoing chilling effect on judges:

A New Kúria President was elected in 2020 through ad hominem legislative acts of constitutional rank, without former experience as judge and against the objection of the National Judicial Council. The UN  Special Rapporteur criticised this as “an attack against the independence of the judiciary in violation of the principle of separation of powers”, while the EC Rule of Law Report noted it was “not in line with European standards”.

The Chilling Effect

The chilling effect preventing judges from speaking out publicly against measures undermining the independence of the judiciary is caused by:

  • National measures (smear campaigns, political attacks, legal measures, abusive lawsuits).

  • Adopted and/or applied with the aim to dissuade or deter natural persons from fulfilling their professional duties.

  • Aiming at creating a self-censorship.

Since 2017, the Committee has called on the Hungarian authorities to fully guarantee and safeguard judges’ freedom of expression, to take measures to lift and countervail the chilling effect, and to evaluate the domestic legislation regarding guarantees against undue interference. The Hungarian Helsinki Committee emphasized that none of these expected measures were taken, and that the situation has not been addressed but rather aggravated.

Furthermore, smear campaigns against judges have continued, with the same pattern, in several waves:

  • Target: judges as members of the National Judicial Council (NJC)

  • Method: discrediting members of the NJC as judges

  • Aim: discouraging judges from speaking out

    Smear attacks continue even during the NJC elections.

The new Kúria President has had an active role in the silencing of judges, having:

As regards the New Code of Ethics for Judges adopted by the NJC, it significantly extends the freedom of expression of judges, especially with respect to criticising legislation. However, the Kúria President challenged the new Code before the Constitutional Court requesting its annulment and questioning the legal authority of the NJC to adopt the Code. The proceedings are still pending.

The Hungarian Helsinki Committee called on the Committee of Ministers to:

  1. Continue examining the case under enhanced procedure

  2. Take into account the changed context of the execution

  3. Require legislative changes

    • to exclude political pressure through the Kúria President

    • to remove the possibility of prolongation of the mandate of Kúria President by political minority

    • to guarantee freedom of expression of judges in accordance with ECtHR judgments

  4. Require Hungarian authorities to refrain from

    • public critique of judicial decisions

    • legislative steps overruling judicial decisions

    • smear campaigns against judges

  5. Evaluate the domestic legislation regarding guarantees against undue interference

See slides for full briefing.

Relevant Documents

NGO Communications:

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee (HHC)) (05/10/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)1245]

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from NGOs (Amnesty International and Hungarian Helsinki Committee) (26/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)157]

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Association of Hungarian Judges (MABIE)) (27/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)156]

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Res Iudicata - Association of Judges for Social Awareness) (24/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)145]

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (European Association of Judges (EAJ)) (18/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)116]

1428th meeting (March 2022) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee) (24/02/2022) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2022)286]

CM Decisions:

1459th meeting (DH), March 2023 - H46-11 Baka v. Hungary (Application No. 20261/12) [CM/Del/Dec(2023)1459/H46-11]

1428th meeting (DH), March 2022 - H46-14 Baka v. Hungary (Application No. 20261/12) [CM/Del/Dec(2022)1428/H46-14]

The Selahattin Demirtaş (No. 2) v Türkiye case concerns the arrest and pre-trial detention of, and criminal proceedings against, the applicant, a member of the National Assembly and one of the leaders of the Peoples’ Democratic Party (HDP, a pro-Kurdish opposition party).

The applicant’s legal representative, Mr. Ramazan Demir reminded the participants of the key facts of the case:

  • Mr Selahattin Demirtaş, who was at the time one of the co-chairs of and a member of parliament for the Peoples’ Democratic Party (HDP) was placed in pre-trial detention since 2016 on account of allegations that his speeches and statements incited acts of violence between 6-8 October 2014. He was not released after judgment.

  • The case was referred to the Grand Chamber, and he was placed in pre-trial detention again under new investigation related to events between 6-8 October 2014. According to the Grand Chamber judgment delivered in December 2020: 

    • The second pre-trial detention decision was a continuation of the first pre-trial detention decision. 

    • The applicant was detained with political motives under Article 18.

    • Mr. Selahattin Demirtaş must be released immediately.

Ramazan Demir outlined the Government’s arguments:

The Government’s Arguments

  • The applicant’s detention subject to the Court’s judgment has ended;

  • The current detention falls outside the scope of the present application;

  • New charges, evidence and allegations (i.e. witness and anonymous witness statements) were in substance different from those examined by the Court in its judgment;

  • The necessary individual measures have been taken.

The Government alleges that Mr Demirtaş’s continued detention, on the basis of a new charge, amounted to a new fact, raising a new problem, one that had not been examined by the Court. However:

  • 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 organization';

    • 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.

Ongoing judicial harassment against the applicant:

  • The 4 years and 8 months prison sentence in the second set of proceedings was used as a tool to prevent the applicant’s release and to prevent his participation in any election.

  • There have been 47 cases filed against the applicant, and 10 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 has not delivered any judgment for the application related to the second pre-trial detention of the applicant since 7 November 2019.

In terms of recommendations, Ramazan Demir requested the Committee of Ministers to:

  1. Request the Government of Türkiye to release Mr Demirtaş immediately;

  2. 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;

  3. Urge the Constitutional Court of Türkiye to conclude, without delay and in line with the Grand Chamber judgment, the individual applications listed between paragraphs 23 and 25 of the applicant’s Rule 9.1 submission dated 17 May 2021;

  4. 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;

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

  6. 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;

  7. Write a letter to the Minister of Foreign Affairs of Türkiye to urge the Government to fully execute the Grand Chamber judgment.

See slides for full briefing.

Relevant Documents

Applicant Communications:

1475th meeting (September 2023) (DH) - Rule 9.1 - Communication from the applicant (31/07/2023) in the case of Selahattin Demirtas v. Türkiye (no. 2) (Application No. 14305/17) [anglais uniquement] [DH-DD(2023)920]

1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (10/01/2023) in the case of Selahattin Demirtas v. Türkiye (no. 2) (Application No. 14305/17) [Anglais uniquement] [DH-DD(2023)65]

NGO Communications:

1483rd meeting (December 2023) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Türkiye Human Rights Litigation Support Project, HRW, ICJ, IFHR) (23/10/2023) in the case of Yuksekdag Senoglu and Others v. Türkiye (Application No. 14332/17) (Selahattin Demirtas (No. 2) group, 14305/17) and reply from the authorities (02/11/2023) [anglais uniquement] [DH-DD(2023)1326-rev]

1468th meeting (June 2023) (DH) - Rule 9.6 - Reply from the authorities (11/05/2023) following a communication from an NGO (Media and Law Studies Association (MLSA)) (14/04/2023) in the case of Selahattin Demirtas v. Türkiye (No. 2) (Application No. 14305/17) [anglais uniquement] [DH-DD(2023)589]

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Media and Law Studies Association (MLSA)) (14/04/2023) in the case of Selahattin Demirtas v. Türkiye (No. 2) (Application No. 14305/17) [anglais uniquement] [DH-DD(2023)518]

CM Decisions:

1475th meeting (DH), September 2023 - H46-38 Selahattin Demirtaş (No. 2) group v. Türkiye (Application No. 14305/17) [CM/Del/Dec(2023)1475/H46-38]

1468th meeting (DH), June 2023 - H46-33 Selahattin Demirtaş (No. 2) group v. Türkiye (Application No. 14305/17) [CM/Del/Dec(2023)1468/H46-33]

1459th meeting (DH), March 2023 - H46-26 Selahattin Demirtaş (No. 2) group v. Türkiye (Application No. 14305/17) [CM/Del/Dec(2023)1459/H46-26]

The Identoba and Others v Georgia group of cases concerns several violations regarding the lack of protection against homophobic attacks or religiously motivated attacks by private individuals during marches/meetings.

GYLA and EHRAC provided participants with a summary of the group of cases & action plans/reports:

The Identoba group is a collection of cases from Georgia concerning:

  • Degrading treatment of the applicants on account of abusive and humiliating police conduct, motivated by homophobic and/or transphobic hatred; and/or

  • Authorities’ failure to provide adequate protection against, and in some instances official acquiescence and connivance in, inhuman and degrading treatment inflicted by private individuals on LGBTI activists and Jehovah’s Witnesses; and/or

  • Absence of effective investigations into these facts, including lack of investigation into discriminatory motives, including issues of discrimination on LGBTI status, religious status (Jehovah’s Witness/ Muslim groups),

  • A number of cases in the group have been closed, but 3 remain open, and individual measures have been insufficient:

Summary of Action Plans/Reports:

  • The Government provided early Action Plans in 2016 - 2017, and annual Action Reports since 2018. An Action Report was submitted recently (for the December 2023 meeting) asking the Committee to end supervision.

  • The report outlines recent individual measures – in summary, investigations are ongoing and 2 persons have been charged in the Mikeladze case. No police officers have been charged or identified in the other cases. 

  • Regarding general measures, the Action Report emphasized:

    • Zero tolerance messages against hate crimes is a ‘priority’ and an ‘ongoing process.’

    • Authorities cooperate on the organisation of Pride events. However, it was not possible to hold the July 8, 2023 Tbilisi Pride event: “a particularly large number of counter demonstrators made it complicated to control them in a wide area.”

    • The investigations of attacks during previous marches are ongoing.

    • A department of human rights protection was set up and specialised investigation of hate crimes was developed through hate crime training (only specialised investigators/ prosecutors investigate hate crimes).

    • Collecting data: a memorandum was signed on data collection. Complete data for 2022 was published.

    • The National Human Rights Strategy was approved and adopted in 2023, and authorities are now working on an Action Plan.

GYLA and EHRAC outlined the status of individual measures:

Individual Measures

  • Aghdgomelashvili and Japaridze v. Georgia  (App. no. 7224/11)

    • To date, no individual has been determined charged or convicted.

    • Victims have not been granted adequate access to pertinent information or documentation.

    • The criminal responsibility of police officers will be excluded due to the expiration of the statute of limitations on December 15, 2023

  • WISG and Others v. Georgia  (App. no. 73204/13)

    • Not a single individual has been found criminally responsible or held to account.

    • Prosecutor declined request for the acknowledgment of all those interviewed as victims.

  • Mikeladze and Others v Georgia (54217/16)

    • No investigative activity took place between 2015 to 2021.

    • Criminal charges were brought against two former police officers.

    • For the remaining applicants: investigation ongoing and not yet granted victim status.

GYLA and EHRAC outlined developments pertinent to general measures:

General Measures: Zero-tolerance messages

  • Anti-LGBT sentiment and statements continue to form at the highest points of Government. The NGOs provided statements made by the Prime Minister as an example:

  • “March should not take place as it is unacceptable to the majority of the population”, then he followed up on this by saying “We have our traditions, rules and everyone should respect our rules and traditions. … I would also like to point out that, unfortunately, behind the organizers ... are revanchist, radical groups. In particular, the radical opposition led by Saakashvili. They are involved, absolutely, I declare this with full responsibility, that they are organizing this march.” - Prime Minister- Irakli Garibashvili

  • Shortly after, the angry mob started to attack journalists and offices of various NGOs.

GYLA and EHRAC highlighted the impact and chilling effect on freedom of peaceful assembly from these cases:

  • 5 July 2021 - Publicly organized violent attacks on journalists because of their support for LGBTQI

    • More than 50 journalists were beaten and some were hospitalized while covering a protest against a gay rights rally in Georgia's capital, Tbilisi;

    • Due to the large-scale aggression of violent groups, the “Pride March” was canceled;

    • None of the organizers of the hate groups have been charged;

    • No investigation has been initiated into the alleged violations of State itself.

  • In 2022, Tbilisi Pride decided not to hold a March of Dignity - Chilling Effect';

  • 8 July 2023 - At least 2000 anti-LGBTIQ+ individuals attacked the NGO Tbilisi Pride’s Pride Festival in Tbilisi, Georgia;

    • Tbilisi Pride had to cancel all the Pride-related events following the attack;

    • None of the organizers or participants of the hate groups have been charged.

The NGO highlighed deficiencies of the investigation of hate crimes and refusal of establishment specialized investigative unit:

  • The investigative units are not launching investigations.

  • The government refuses to initiate investigations with respect to the omissions of police officers and the negligence of MIA's high-ranking officials.

  • The prosecutor's office continues to refuse to grant victim status or involve victims.

  • The government has not established a specialized investigative unit.

  • Discriminatory motive is not included as an aggravating factor for administrative offences.

Results of impunity

  • Aleksandre Lashkarava, a cameraman severely beaten by members of a hate group, passed away soon after event. The investigation is still ongoing.

  • Some journalists have left the country, while others have left the profession.

  • Due to the physical injuries sustained, cameraman Ilia Tvaliashvili suffered permanent negative consequences on his body and is under restricted work.

  • The organizers of hate groups continue to publicly plan assaults on Pride events. None of them have been charged or detained.

  • The legal representatives of the victims do not even have access to the criminal case materials related to the organizers.

The National Human Rights Strategy and Action Plan

“The National Strategy for the Protection of Human Rights for 2022-2030 was adopted by the Parliament in March 2023  without including the needs of the LGBTI community”. - Public Defender of Georgia

GYLA and EHRAC concluded with their individual and general measures recommendations to the Committee of Ministers:

Individual measures

  • The responsible authorities should carry out effective, timely, independent investigations, including identification of police officers involved, and ensure that statute of limitations do not lead to impunity;

  • Authorities must reclassify the crimes commensurate with their seriousness; and

  • Authorities should grant victim status and adequate victim participation.

General measures

  • Authorities must create a specialized investigative unit capable of investigating the hate crimes;

  • Authorities must observe its positive obligation to protect LBGTQI persons at events from violence and effectively investigate these incidents, particularly those arising out of the violence on 5-6 July 2021, and 08 July 2023, and particularly the organisers of the events;

  • The Government must reconsider its official tolerance of the repetitive violent acts committed by organizers of hate crimes, and discontinue anti-LGTBQI sentiments;

  • Together with civil society actors, the State should establish the measures necessary to enable the safe and peaceful gatherings of LGBTQI activists and take preventive measures to deter violence, hatred and discriminatory attitudes and behaviour.

See slides for full briefing.

Relevant Documents:

NGO Communications:

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from an NGO (Tolerance and Diversity Institute (TDI)) (30/10/2023) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) [anglais uniquement] [DH-DD(2023)1370]

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from NGOs (Social Justice Center and European Human Rights Advocacy Centre) (19/10/2023) in the case of Mikeladze and Others v. Georgia (Application No. 54217/16) (Identoba and Others group, 73235/12) [anglais uniquement] [DH-DD(2023)1310]

NHRI Communications:

1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (19/10/2023) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) [anglais uniquement] [DH-DD(2023)1311]

CM Decisions:

1451st meeting (DH), December 2022 - H46-13 Identoba and Others group v. Georgia (Application No. 73235/12) [CM/Del/Dec(2022)1451/H46-13]

1419th meeting (DH), 30 November- 2 December 2021 - H46-14 Identoba and Others group v. Georgia (Application No. 73235/12) [CM/Del/Dec(2021)1419/H46-14]

Protecting Freedom of Expression through ECtHR judgments: Insights from the EIN Capacity-building Conference in Leipzig

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On November 20th and 21st, the European Implementation Network organised a capacity-building conference in Leipzig, Germany. The conference, which brought together about 50 experts from 26 European civil society organisations, academics, and journalists, aimed at empowering civil society and its allies across Europe to promote free speech reforms through the implementation of ECtHR judgments. It addressed the complexities surrounding the implementation of ECtHR judgments related to freedom of expression in Europe, shedding light on the challenges faced by civil society in ensuring the execution of relevant judgments, and shared best practices for free speech advocacy.

 
 
 

Setting the Stage

The conference opened with a speech delivered by EIN Chair Prof. Dr. Başak Çalı, who placed emphasis on the importance of addressing the high number of pending freedom of expression leading judgments - approximately 100 - and the pivotal role of civil society in advocating for their execution to safeguard free speech in Europe.

The first session provided an introduction into the ECtHR implementation process and how NGOs can use it to advance freedom of expression in Europe. EIN Director Ioulietta Bisiouli discussed the general principles of the ECtHR implementation process and the impact of unimplemented free speech-related judgments on the democratic functioning and the upholding of the rule of law in European countries. The EIN Director underlined the primordial importance of upholding the Convention system through ensuring unwavering respect for its implementation mechanism, including in relation to free speech judgments, and recalled the human rights role of the Committee of Ministers, as well as the Deputies’ duty to hold recalcitrant States to account for their failures to achieve a timely and effective implementation of the ECtHR judgments.

The session continued with a presentation by EIN Finance and Programme Manager Agnès Ciccarone, who provided insights into how NGOs can enhance their impact on ECtHR implementation through effective Rule 9 submissions, outlining “The Dos and Don’ts for Rule 9 submissions in the implementation process”. Research on best practices for free speech advocacy was presented by EIN Law and Advocacy Officer Ioana Iliescu, emphasising on the need for constructive engagement with the national authorities, coalition-building, and effective communication about (non-)implementation of judgments, notably by working with the media.

 

The discussions in substance

The second session of the conference featured four panel discussions as well as two keynote speeches on a number of selected free speech-related topics that are addressed by the ECtHR case-law in a recurrent manner.

Civil and criminal defamation

Panel 1 : Georgiana Gheorghe, Andreas Takis, Dr. Başak Çalı, Tina Đaković, Nora Wehofsits (from left to right).

The first panel discussion was carried out with the participation of Georgiana Gheorghe, Executive Director at APADOR-CH, Tina Đaković, Organization and Program Coordinator at Human Rights House Zagreb, Nora Wehofsits, International Advocacy Officer at Human Rights House Foundation, and Andreas Takis, President of the Board of the Hellenic League for Human Rights.

The panel addressed the issue of defamation and the distinction between statements of fact and value judgments. Panellists highlighted the challenges faced in various European countries, such as the long-standing failure of national courts to apply relevant  Art. 10 standards, in a continued pattern of non-compliance with multiple violation-finding judgments rendered by the ECtHR in the course of more than 1.5 decades (Greece), the thorny path to decriminalisation of defamation and the difficulties in consolidating the progress achieved (Romania), the disproportionate amount of damages awarded in defamation lawsuits, the need for stronger legislation and the provision of concrete criteria regarding the proportionality test between personality and free speech-related rights. The broader discussion highlighted the significance of anti-SLAPP advocacy and the role played by other mechanisms, such as the Council of Europe Commissioner for Human Rights, in triggering a political discussion capable of addressing this growing phenomenon in Europe. Overall, the panel underlined the need for a balanced legal approach to uphold freedom of expression while safeguarding individual personality rights.

Censorship and state control over the media

Ioulietta Bisiouli & Cristina Frumosu-Durnea.

Following this panel, Cristina Frumosu-Durnea, Program Manager at Independent Journalism Centre in Moldova, held a keynote speech focusing on the implementation of the Manole and Others case, which concerns censorship and state control over media bodies. The speaker shed light on censorship challenges and State control faced by the media, placing emphasis on the importance of research, active engagement and the strategic choice of timing when engaging with the implementation process to achieve an effective case supervision by the Committee of Ministers.

Protection of journalistic sources and access to public information

Panel 2: Nóra Novoszádek, Dr. Dariia Opryshko, Ioulietta Bisiouli, Ilaria Fevola, Dr. Dirk Voorhoof, Wiebke Hangst (from left to right).

The second panel consisted of Dr. Dariia Opryshko, Senior Fellow at the Institute for Information, Telecommunications and Media Law of the University of Münster and consultant of the NGO “Human Rights Platform”, Wiebke Hangst, Legal Officer at Media Defence, Ilaria Fevola, Legal officer at Article 19, Nóra Novoszádek, Senior Legal Officer at the Hungarian Helsinki Committee, as well as, Dr. Dirk Voorhoof, Professor emeritus on Freedom of Expression. The panel delved into the protection of journalistic sources and access to public information. 

The importance of civil society engagement was underscored in the context of Ukraine, highlighting the need for both national and international involvement to stimulate political will and foster positive developments. The particular importance of upholding freedom of expression in the context of the work of human rights defenders was also underlined, including in relation to Hungary, along with the need for advocacy to elevate national issues to higher platforms, such as the EU, compelling respondent States to engage in the implementation process.

Panellists also brought into focus the impact of recourse to novel spyware on the protection of journalistic sources, emphasising on the existence of a worrisome correlation between high levels of unimplemented freedom of expression judgments and enhanced recourse to the use of such spyware by the same member States. Furthermore, the speakers looked into the forging of strategies for creating awareness and advocating for freedom of expression; the value of involving legal experts and academia in the implementation process, which led to full implementation of judgments concerning the protection of journalistic sources in Luxembourg, Belgium and the Netherlands; and the need to approach judgments as advocacy opportunities even before they are delivered, by making relevant third party interventions before the Court. An important conclusion of this panel was that significant delays in the implementation process can also occur as a result of the complacency of member States which otherwise adhere more strictly to democratic principles and generally uphold the rule of law. Vigilance as to the effectiveness of the implementation mechanism is therefore always required.

Freedom of expression of magistrates

Panel 3: Konrad Siemaszko, Georgiana Gheorghe, Kerem Altiparmak, Adela Katchaounova, Erika Farkas (from left to right).

The second day of the conference kicked off with a third panel discussion with the participation of Adela Katchaounova, Legal Defense Programme Director at the Bulgarian Helsinki Committee, Georgiana Gheorghe, Executive Director at APADOR-CH, Konrad Siemaszko, Lawyer and Head of the Freedom of Expression Programme at the Helsinki Foundation for Human Rights, as well as Erika Farkas, Legal Officer at the Hungarian Helsinki Committee.

The panel addressed the issues surrounding the freedom of expression of magistrates. Panellists discussed the chilling effect of political attacks and disciplinary measures on magistrates, as well as advocacy strategies based on experiences from different European countries, including Bulgaria, Hungary, Poland and Romania. Panellists addressed how positive developments in this field are often dependent on the windows of opportunity created by changes in the political context. They also discussed the fact that the ‘chilling effect’ of restrictions to the freedom of expression of magistrates is rather part of broader political strategies aiming at weakening judicial independence. Successfully advocating for freedom of expression in this context therefore requires a multifaceted approach, which includes recognising broader patterns, cultivating alliances, integrating individual narratives, leveraging media attention at every stage of implementation, as well as grounding advocacy strategies in foundational principles and resources.

Safety and security of journalists and other media actors

Panel 4: Vafa Fati-Zada (on screen), Dr. Dariia Opryshko, Szabolcs Hegyi, Ilaria Fevola, Veysel Ok (from left to right).

The fourth panel discussion featured Dr. Dariia Opryshko, Senior Fellow at the Institute for Information, Telecommunications and Media Law of the University of Münster and consultant of the NGO “Human Rights Platform”, Vafa Fati-Zada at the Justice for Journalists Foundation, Veysel Ok, Attorney at Law and Co-Director of the Media Law and Studies Association (MLSA), as well as Ilaria Fevola, Legal officer at Article 19.

The panel focused on the safety and security of journalists and other media actors, who are fundamental pillars of a free and vibrant democracy. Journalists often face important risks such as censorship, intimidation and violence which can even result in serious bodily harm and the loss of life, in their pursuit of truth and unhindered dissemination of public information. Panellists discussed the positive developments in strengthening the legal framework for the protection and safety of journalists which were recorded in Ukraine after 2014, while underlining the challenges in ensuring effective investigations into attacks against journalists that remain unaddressed. Other good practices which have ensured the safety, well-being, and release from prison of journalists working in difficult contexts and jurisdictions have also been contributed. The speakers furthermore addressed the important, ongoing challenges faced by journalists and the media in Turkey, whereas the worrisome correlation between the increasing use of strategic lawsuits against public participation (SLAPPs) and risks in the safety and security of journalists most often targeted by SLAPPs was also explored.

Monitoring freedom of expression judgments in the specific context of the Russian Federation

Violetta Fitsner.

The session was closed by a keynote speech by OVD-Info Advocacy Lawyer, Violetta Fitsner, who gave a sobering account of the challenges in implementing (inter alia) freedom of expression judgments in Russia,[1] emphasising on the need for continued civil society engagement with the implementation process and the necessity to continue raising implementation concerns with alternative international human rights mechanisms, but also underscoring the resilience, determination and commitment of Russian human rights defenders to bringing ECtHR judgments to fruition.  

Putting implementation skills into practice

The third session of the 2-day conference consisted in break-out practical exercises, allowing participants to apply the knowledge and skills garnered throughout the capacity-building event. Participants worked in groups to brainstorm on the strategy and the content of mock Rule 9 submissions in ECtHR free speech-related judgements.

Empowering Voices: Charting the Future of Freedom of Expression Implementation in Europe

In her concluding remarks, EIN Director Ioulietta Bisiouli highlighted the primordial importance of participation to the implementation process, including in connection with free speech-related judgments. While recognising the crucial role political will plays for the timely and effective implementation of ECtHR judgments, she underlined the significance of knowledge about and active engagement of civil society with the implementation process with a view to addressing existing gaps and unlocking the full potential of the Convention system and its implementation mechanism in cases where such political will is weak or inexistent. She  concluded by emphasising on the importance of individual responsibility for upholding the Convention system and on the need to read the Reykjavík principles as an invitation to renew the European societies’ bond therewith and to acknowledge the importance of the Convention system as a unique mechanism, capable of bringing about tangible progress and improvement in the level of enjoyment of human rights of European citizens, under the condition that the inherent weaknesses of the implementation mechanism be acknowledged and effectively countered.

The EIN Leipzig capacity-building conference was not just a gathering of like-minded people. It was a meeting that allowed an in-depth exploration of challenges and opportunities for addressing them in the context of implementation of ECtHR freedom of expression and media freedom-related judgments. Participants left Leipzig armed with a global overview of the state of play in this field, as well as with concrete tools and best practices on advocating for the effective execution of free speech judgments, with the ultimate aim of putting them to good use and thus making a lasting positive impact on the upholding of the rule of law in Europe. The conference, which only kicked off in substance the relevant EIN project foreseen to be concluded in the first part of 2025, thus marked a significant step forward towards a more robust, informed, and engaged civil society in the pursuit of a Europe where freedom of expression is not just acknowledged in judgments but also turns into a tangible, concrete, effectively protected and respected right.

We extend our sincere gratitude to the Swedish Postcode Lottery, the Fritt Ord Foundation and the Isocrates Foundation for their generous funding, which enables us to undertake this important project, as well as to the Mediencampus Villa Ida in Leipzig for providing an ideal venue for our capacity-building conference and for effectively and gracefully assisting us in organising all the related logistics. Above all, we sincerely thank all the speakers, moderators and participants for making the Leipzig capacity-building event a true success. We will continue engaging with you bilaterally with a view to increasing the number of submissions and the overall effective engagement with the implementation mechanism in respect of ECtHR free speech-related judgments.

[1] Russia ceased to be a party to the Convention on September 16, 2022, but considers itself not a party from March 16, 2022 (date when Russia ceased to be a Member of the CoE). The authorities promulgated laws prohibiting implementation of the judgments of the ECtHR adopted after March 15, 2022, and stopped any communications with the Court and the Committee of Ministers.

Capacity Building: ENNHRI, EIN and CoE Department on Execution of Judgments of the ECtHR

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On November 15th, EIN, ENNHRI and the Council of Europe’s Department of Execution for the Judgment of the European Court of Human Rights facilitated a capacity-building training session in Strasbourg, France.

The training focused on enhancing the capacity of National Human Rights Institutions (“NHRI”) to contribute to the implementation of judgments of the European Court of Human Rights (“ECtHR”). The programme consisted of an introduction and three sessions on topics surrounding the ECtHR implementation process.

Opening comments and instructions were made by Leena Leikas, Chair of ENNHRI Legal Working Group and Ioulietta Bisiouli, EIN Director, who set out the objectives & the structure of the training.

The first session addressed why NHRIs should take part in the implementation process and address the non-implementation of judgments of the ECtHR as a rule of law problem, This discussion was led by Paula Nowek, Human Rights Officer (Legal) at ENNHRI Secretariat, Patrick Schäfer, Head of Section of the Department for the Execution of Judgments of the European Court of Human Rights, Council of Europe, and Ioulietta Bisiouli, EIN Director.

The next session aimed to provide NHRIs with an overview of the implementation process in Strasbourg and the mandate of the Council of Europe Committee of Ministers and their role. This session covered the supervision of the execution of judgments and decisions of the ECHR led by Patrick Schäfer, Head of Section of the Department for the Execution of Judgments of the European Court of Human Rights, Council of Europe, and how to write effective Rule 9 submissions by Gohar Simonyan, Legal Officer, Department for the Execution of Judgments of the European Court of Human Rights, Council of Europe. This session concluded with a presentation about NHRI’s role in the implementation process presented by Michael O’Neill, Head of Legal at Irish Human Rights & Equality Commission, who shared his experience.

Agnes Ciccarone, EIN Programme Manager, outlined the “The Dos and Don’ts for Rule 9 submissions in the implementation process”, followed by Laurens Lavrysen, Jurist at the Belgian NHRI (FIRM), who presented his own experience with submitting Rule 9 submissions to the implementation process. The next session offered participants practical insights into how to draft Rule 9 submissions to the Committee of Ministers by working in small groups to discuss how they would submit a Rule 9 for a pending ECtHR case.

The last session addressed how NHRIs can become more engaged with the ECtHR judgments implementation process at the national level and the national advocacy strategies that could be employed by NHRIs. Ioulietta Bisiouli, EIN Director, introduced the topic by discussing why national advocacy for the implementation of judgments is necessary. Next, Ioana Iliescu, EIN Law and Advocacy Officer, set out examples of how NHRIs can advocate for implementation at the national level. Finally, Simona Drenik Bavdek, Assistant Head of the Center for Human Rights at the Human Rights Ombudsman of the Republic of Slovenia, shared her experiences on setting up a national oversight mechanism for ECtHR implementation in Slovenia.

The training wrapped up with a peer exchange/discussion with participants. Leena Leikas, Chair of ENNHRI Legal Working Group, Patrick Schäfer, Head of Section of the Department for the Execution of Judgments of the European Court of Human Rights, Council of Europe, and Ioulietta Bisiouli, EIN Director, closed the training session and thanked all participants for attending and their engagement.

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

EIN Civil Society Briefing September 2023: Hungary, Bulgaria, Greece & the UK

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On the 15th of September 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1475th Committee of Ministers Human Rights Meeting on 19th – 21st September 2023. The event was held in person in Strasbourg, facilitated by Ioulietta Bisiouli, EIN Director.

The Briefing focused on the following cases:


The Ilias and Ahmed v. Hungary case concerns authorities’ failure to comply with their procedural obligation 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.

Hungarian Helsinki Committee provided participants with the legislative developments and challenges:

Positive changes:

  • The “safe transit country” inadmissibility ground according to Section 51(2)(f) of the Asylum Act (found against EU law by the CJEU) was abolished as of 1 January 2023.

Remaining gaps:

  • There has been no reassessment of the legislative presumption of Serbia being a „safe third country” carried out by the Hungarian authorities.

  • Section XIV (4) of the Fundamental Law, which provided the constitutional foundation for the 'safe transit country' concept remains to be in force.

  • Sections 5 (1a) and (1b) of Act LXXXIX of 2007 on the State Border legalizing summary removals to Serbia remain to be in force.

  • Section 5 (1b) of Act LXXXIX of 2007 on the State Border extending the above legalization to the whole territory of the country under the state of crisis due to mass migration remains to be in force.

Hungarian Helsinki Committee continued to outline the embassy system and the summary removals to Serbia:

The Government’s communication, 26.6.2023:

„The legislative presumption of “safe third country” for Serbia has not been applied by the asylum authority and the national courts since the introduction of the transitional asylum procedure as of 26 May 2020 (“Embassy procedure”)”

C-823/21, Commission v. Hungary, 22.6.2023:

In the respective infringement procedure the CJEU ruled that:

By making the possibility, for certain third-country nationals or stateless persons present in its territory or at its borders of making an application for international protection subject to the prior submission of a declaration of intent at a Hungarian embassy situated in a third country and to the grant of a travel document enabling them to enter Hungarian territory, Hungary has failed to fulfil its obligations under the Asylum procedures directive.

Summary removals to Serbia

Legislation:

Section 5(1)(b) of the Act LXXXIX of 2007 on State Borders that regularized collective expulsions to Serbia remain to be in force.

Refusal to implement judgments:

  • R.N. v. Hungary 4.4.2023.

  • H.K. v. Hungary, 22.9.2022.

  • Shazad v. Hungary, 8.10.2021.

  • C-808/18, Commission v. Hungary,17.12.2020.

Hungarian Helsinki Committee highlighted the impacts of the war against Ukraine on the case:

Late January 2023, the practice at the Hungarian/Ukrainian border has changed. According to the new rules only those are granted entry:

  • who have the necessary and valid travel documents (e.g. visa, passport);

  • who are not under the effect of an entry ban;

  • •those third-country nationals who did not enter Ukraine after 24 February 2022.

As a result, third-country nationals (non Ukrainians) who have returned to Ukraine after the war are refused entry to Hungary. The non-refoulement examination bares serious shortcomings.

Hungarian Helsinki Committee provided their recommendations to the Committee of Ministers:

The HHC respectfully recommends the CM to continue examining the execution of the judgment.

Recommendations to the Government of Hungary:

  • Conduct a new adequate assessment of all existing sources on the situation of asylum seekers in Serbia.

  • Amend Section 51(2)(e) and Section 51/A of the Asylum Act to ensure that the “safe third country” concept is applied and expulsion is ordered only if the third country takes back the asylum seeker in an orderly manner.

  • Repeal the legislation legalizing summary removals and until it is done refrain from the unlawful practice on continuing these removals.

  • Take measures to ensure effective access to territory and procedure for those seeking protection at the borders and on the territory of Hungary.

  • Refrain from unlawful refusals at the Hungarian-Ukrainian border.

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee) (01/08/2023) in the case of Ilias and Ahmed v. Hungary (Application No. 47287/15) [anglais uniquement] [DH-DD(2023)960]

CM Decisions

1443rd meeting (DH), September 2022 - H46-11 Ilias and Ahmed group v. Hungary (Application No. 47287/15) [CM/Del/Dec(2022)1443/H46-11]

The Safi and Others v. Greece case concerns the ineffective investigation into a coastguard operation in 2014 in the Aegean Sea during which eleven relatives of the migrant applicants who were aboard a fishing boat drowned. The major shortcomings identified by the Court are the following: lack of investigation into the allegedly flawed translations of applicants’ statements which constituted an integral part of the case file; insufficient participation of the applicants in the criminal proceedings, who were not granted access to the recordings between the coastguards and to data from an island radar which were of significant evidentiary value; there were lines of further investigation which were clearly necessary but which were not pursued by the prosecuting authorities thus compromising their ability to shed full light on the circumstances of the sinking.

Mr Minos Mouzourakis from Refugee Support Aegean and Mr Stephanos Stavros, Human Rights Lawyer, outlined the key elements and context of the case:

  • Boat with 27 persons towed by Hellenic Coast Guard sank off Farmakonisi on 20 January 2014. 11 people drowned

  • Archived criminal proceedings against Coast Guard officials in the incident, as well as military officers subjecting applicants to degrading treatment upon arrival

  • Court awarded non-pecuniary damage

    Violations found by the Court

  • Substantive violation of Article 2: delayed notification of JRCC, ill-equipped vessel without rescue equipment

  • Procedural violation of Article 2: deficiencies in interpretation and transcript of testimonies, denial of access to evidence, dismissal of submissions without due reasoning

  • Substantive violation of Article 3: degrading stripping and bodily search of survivors

Safi v. Greece in context – the Pylos shipwreck and beyond

  • Sinking of a trawler with an estimated 750 passengers in the Greek SAR zone on 14 June 2023. Only 104 survived.

  • CommDH called for effective investigation & highlighted that Pylos is “not an isolated incident” à explicit link of Pylos with Safi v. Greece

  • European Ombudsman opened own-initiative inquiry into Frontex role, including in the Pylos case

  • 40 survivors lodged criminal complaint before the Piraeus Naval Court Prosecutor on 13 September 2023 – preliminary investigation pending

    vBeyond Pylos: UN Special Procedures August 2023 concerns regarding failure to provide prompt & effective assistance to people in distress and call for investigation into Coast Guard alleged breaches of the right to life

Refugee Support Aegean and Mr Stephanos Stavros note the substantial and procedural obligations of the case to participants:

Substantive obligations under Article 2 ECHR: Coast Guard operations

Indicative cases

  • Farmakonisi 20 Jan 2014 - 11 dead - Safi v. Greece App No 5418/15 (Judgment)

  • Agathonisi 16 Mar 2018 - 16 dead - F.M. v. Greece App No 17622/21 (Communicated)

  • Pylos - 14 Jun 2023 - 600+ dead or missing - Pending domestic criminal proceedings

Key issues

  • Absence of interpretation services at the Coast Guard (JRCC, vessels) for effective communication

  • Delay in search and rescue

  • Absence of video-recording of Coast Guard rescue operations

  • Absence of adequate search and rescue equipment in deployed vessels

Conclusion: Safi v. Greece involves complex problems relating to the adequacy of resources, design and roll-out of Coast Guard operations at sea & on search and rescue

Procedural obligations under Article 2 ECHR: Effectiveness of investigations

(Coast Guard responsibility investigated by Piraeus Naval Court Prosecutor)

Indicative cases (others concerning sea and land)

  • Farmakonisi 20 Jan 2014 - Archived - Safi v. Greece App No 5418/15 (Judgment)

  • Pserimos 22 Sep 2014 - Archived - Alkhatib v. Greece App No 3566/16 (Communicated)

  • Symi 31 Aug 2015 - Acquitted before trial - Almukhlas v. Greece App No 22776/18 (Communicated)

  • Agathonisi 16 Mar 2018 - Complaint dismissed - F.M. v. Greece App No 17622/21 (Communicated)

  • Pylos 14 Jun 2023 - Pending preliminary examination

Key issues

  • Preliminary interrogation & initial evidence collection by Coast Guard officials

  • Piraeus Naval Court Prosecutor not promptly intervened

  • Limited number of witness testimonies

  • Deficiencies in interpretation

  • Deficiencies in inspections, use of available digital evidence etc.

Refugee Support Aegean and Mr Stephanos Stavros provide their conclusions & recommendations to the Committee of Ministers:

Conclusions

  • Violations occurred in January 2014 relevant through time: similar incidents e.g. in Agathonisi (2018), Pylos (2023)

  • Execution raises complex issues as regards the adequacy of resources, design and roll-out of Coast Guard operations at sea & on search and rescue

  • Assessment of investigations raises complex issues on institutional set-up (interrogation officials, prosecutors’ approach), adequacy of selection and modalities of witness examination, assessment of evidence et al.

  • Safi v. Greece should be transferred to enhanced supervision

Recommendations

  1. The regulatory framework governing Coast Guard operations in the area of border protection and search and rescue should be updated in full compliance with international, EU and national law and in particular Regulation (EU) 656/2014 and the Asylum Procedures Directive (2013/32/EU). Such a revision would ensure correct and sufficient guidance on how to assess distress phases, to safeguard the life and integrity of third parties on board in the management of incidents concerning refugees at sea, and to guarantee access to the asylum procedure.  

  2. Greek authorities should ensure sufficient and adequate interpretation services to enable effective communication of interested parties with EKSED, 112 and involved Coast Guard vessels.

  3. Coast Guard operations and vessel courses should be fully audio- and video- recorded, with a view to improving coordination, prevention of instances of ill-  

    treatment and effective investigation of complaints.

  4. Greek authorities should immediately cease practices endangering human lives at sea e.g. unreasonable use of firearms, push backs and abandonment  

    of people on life-rafts.

  5. The Prosecutor of the Naval Court of Piraeus should immediately intervene in cases involving the Coast Guard. Preliminary interrogations should not be  

    conducted by Coast Guard officers, in conformity with Circular 1/2023.

  6. Testimonies should be collected from all passengers, otherwise a substantial number, with an adequate, certified and independent interpreter in a  

    language they understand.

  7. Inspections, expert reports and forensic reports should be independent and reliable in line with international standards. Digital evidence, where available,  should be used in the criminal investigation of incidents.

  8. Survivors of shipwrecks should immediately be referred to adequate living conditions and support services, and should not be detained. The authorities  

    should immediately register missing persons, collect DNA samples and issue certificate of missing persons to their relatives.

Please see the slides for the full Briefing.

Relevant Documents

NGO Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from NGOs (AIRE Centre, HIAS Greece, and Equal Rights Beyond Borders) (18/08/2023) in the case of Safi and Others v. Greece (Application No. 5418/15) [anglais uniquement] [DH-DD(2023)1024]

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from NGOs (Refugee support Aegean (RSA) and Stiftung PRO ASYL) (17/08/2023) in the case of Safi and Others v. Greece (Application No. 5418/15) [anglais uniquement] [DH-DD(2023)1023]

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Hellenic League for Human Rights) (23/06/2023) in the case of Safi and Others v. Greece (Application No. 5418/15) [anglais uniquement] [DH-DD(2023)814]

Umo Ilinden and Others v. Bulgaria 

The Umo Ilinden and Others v. Bulgaria case concerns the unjustified refusals of the courts, between 1999 and 2015, to register associations the aim of which is to achieve the recognition of and protect the interests of "the Macedonian minority in Bulgaria”. The refusals were based on considerations of national security, protection of public order and the rights of others (goals aiming at “the recognition of the Macedonian minority” and alleged separatist ideas) and on the constitutional prohibition on associations pursuing political goals, as well as failure to meet formal legal requirements.

Mr Krassimir Kanev from the Bulgarian Helsinki Committee outlines to participants the underlying reasons for the refusals:

  • Persistent denial of the Macedonian identity at the national level

  • Fear that recognition will bring its spread

  • Contempt of “ethnic apostasy”

  • Denial, restriction and persecution of an ethnic group brings assimilation

  • Recognition of a Macedonian association would lead to a recognition of a Macedonian minority in Bulgaria

  • Recognition will amount to a betrayal of the victims of the wars of “national unification”

Bulgarian Helsinki Committee provide participants with developments with the Macedonian groups’ dynamics:

  • Proliferation of the Macedonian groups

  • Renouncing radicalism of demands

  • Persistent attempts to obtain recognition and to register associations

  • Attempts to use all available or imagined opportunities

  • Activism more pronounced among the senior age groups

Bulgarian Helsinki Committee highlight to participants the trends in justifications of refusals:

First phase: Macedonian groups - threat to national security and territorial integrity

  • Example (Case Description): “The refusals were based on considerations of national security, protection of public order and the rights of others (goals aiming at “the recognition of the Macedonian minority” and alleged separatist ideas) and on the constitutional prohibition on associations pursuing political goals, as well as failure to meet formal legal requirements.”

Second phase: overt discrimination. Macedonians – threat to the “unity of the nation”

  • Example (SCA on the refusal to register SRMVCT in June 2021): “Such an ethnic group does not exist as a separate and established group of people with religious, linguistic, cultural or other characteristics that distinguish them from the rest of the population. In these circumstances, the establishment of an association with the goals and means specified in its constitutive act, essentially pursues the artificial creation, imposition and advertising of the idea of the existence among a certain part of the Bulgarian population of ethnic identity other than the national one…”

Third phase: mixed reasons

  • RA and the regional courts – overt discriminatory reasons based on the goals and the Macedonian identity of the members

  • SCA – disregards entirely the reasons of the lower court and justifies refusals by non-compliance with formal legal requirements. E.g.:

    • Improper regulation of representation;

    • Lack of regulation of property relations upon termination of membership;

    • Lack of regulation of for-profit activities.

Bulgarian Helsinki Committee note recent developments and their conclusions to participants:

  • No Macedonian organisation registered in Bulgaria

  • Continued refusals on grounds identical to those, which the ECtHR considered and systematically rejected in its previous judgments

  • New ground – Macedonian identity as a threat to the “unity of the nation”

  • Formal legal requirements at the last instance

  • At present:

    • At least 17 cases of refusals to register pending before the ECtHR;

    • 1 refusal to register pending before the HRC;

    • At least 2 cases of violations of freedom of assembly pending before the ECtHR;

    • 1 registered organisation dissolved in 2020.

  • Government’s action plans – mostly reports on series of unsuccessful attempts at registration

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Bulgarian Helsinki Committee (BHC)) (20/07/2023) in the case of UMO Ilinden and Others v. Bulgaria (Application No. 59491/00) [anglais uniquement] [DH-DD(2023)931]

CM Decisions

1451st meeting (DH), December 2022 - H46-8 Groupe Organisation Macédonienne unie Ilinden et autres c. Bulgarie (Requête n° 59491/00) [CM/Del/Dec(2022)1451/H46-8]

1428th meeting (DH), March 2022 - H46-7 United Macedonian Organisation Ilinden and Others group v. Bulgaria (Application No. 59491/00) [CM/Del/Dec(2022)1428/H46-7]

McKerr Group v. the United Kingdom

The McKerr Group v. the United Kingdom case concerns 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.

Committee on the Administration of Justice provided an overview of the case to participants:

  • CAJ is principal human rights NGO in Northern Ireland and affiliated to EIN and FIDH.

  • 1998 Good Friday Agreement guarantees incorporation of ECHR into Northern Ireland law with remedies for victims and direct access to courts.

  • 2014 Stormont House Agreement provided for new transitional justice mechanisms.

  • McKerr Group: ‘Package of Measures’ & peace process reforms: 

    • Inquests, Civil Proceedings. 

    • Police Investigations, independent ‘called in’, police ombudsman investigations 

  • Learning also from Package of Measures as to safeguards needed in transitional justice mechanisms to ensure effective and independent investigations in Northern Ireland.

Committee on the Administration outlined to participants the Northern Ireland Troubles (Legacy and Reconciliation) Bill:

Core elements of Bill:

  • Closing down existing ‘Package of Measures’ permanently

  • Amnesty: the ‘Conditional Immunities Scheme’

  • Establishing the Independent Commission for Reconciliation and Information Recovery (ICRIR)

  • Abandonment of UK-Ireland Stormont House Agreement 2014

  • Ministerial amendments to Bill published evening after June Committee of Ministers meeting - Commissioner Mijatović amendments leave “the fundamental problems with the Bill intact.”

UK Ministers: Objectives of the Bill:

Secretary of State for Northern Ireland Brandon Lewis MP: 

  • •In introducing Bill stated purpose was to end investigations into veterans, who would no longer have to fear ‘a knock at the door’ (UK Parliament, 24 May 22, vol 715, Col 115)

  • •Stated that due to the Bill “no longer will our [military] veterans be hounded and hauled in for questioning about events that happened decades ago.” (Conservative Home, 9 June 2022)

  • Military Veterans Minister: Johnny Mercer MP spoke of  ‘vexatious’ investigations, prosecutions’  (UK Parliament debate on Bill,  June 2023).

  • •Ministers have implied lawyers, human rights groups, judges, prosecutors, independent institutions and officers have created a ‘pernicious counter narrative’ and are ‘rewriting history’.

  • •By contrast UNSR Pablo DeGrieff  UN Doc: A/HRC/34/62/Add (2016) found Northern Ireland impunity gap was in ‘apparent selectivity’ in prosecutions during the conflict.

  • •CAJ-academic study found key arguments deployed that legacy cases are ‘imbalanced’ against the security forces “are neither factually nor legally accurate and lack intellectual credibility.”

Committee on the Administration shared developments on the closure of Civil Litigation and Legacy Inquests:

Closure of Civil Litigation

575 civil cases against military alone (June 2022), estimated over 1000 in total.

Cases currently delivering significant truth recovery and reparations, examples:

  • Liam Holden [2023] NIKB 39, found to have been tortured by Army, posthumous damages for “waterboarding, hooding and threats to kill, malicious prosecution and misfeasance in public office” of approx. EUR €385,000. 

  • McParland March 2023, child witnessed sectarian killing on doorstep in 1994, court held police “turned a blind eye to Informant 1’s serious criminality” … and actively protected him “from any effective investigation and from prosecution”  despite admitted “involvement in previous murders and criminality.” EUR €100,000

  • Legacy Bill: closes down all Troubles-related civil litigation taken after May 2022.

  • Amendments to Bill to prohibit all claims relating to Interim Custody Orders (internment, regardless of when proceedings taken).

Closure of Legacy Inquests

  • Lord Chief Justice’s Five Year Plan of legacy inquests – 18 competed , 36 outstanding (16 at hearing)

  • Plus 10 new inquests also directed by Attorney General (state and non state actors).

  • Stormont House Agreement would have left inquest system intact.

  • Original bill closed inquests save those substantively commenced by May 2023.

  • Ministers amended Bill in Lords to close down more inquests, only those that have completed proceedings by May 2024 can proceed. 

  • Ministers’ complained coronial judges progressing inquests too ‘expeditiously’.

Legacy Inquests:

Northern Ireland’s ‘truth trials’

UK Command Paper preceding bill claims “the vast majority” of killings by the security forces were lawful. 

Majority of Inquests concerning State cases contradicting official truth: 

  • Stephen Geddis (aged 10), shot dead by British soldier on 30 August 1975, Coroner held (verdict 06.09.22) that the victim posed no threat, and the firing was not justified.

  • Thomas Mills, shot dead by British soldier in July 1972, Coroner held (verdict 13.05.22) that the soldier was not justified in opening fire and the force used was disproportionate to the threat perceived.

  • Pat McElhone, shot dead by British soldier on 7th August 1974, Coroner held (verdict 21.01.21) that the shooting cannot be justified.

  • Ballymurphy massacre, ten civilians shot dead by the British army in August 1971 (Francis Quinn, Fr Hugh Mullan, Noel Phillips, Joan Connolly, Daniel Teggart, Joseph Murphy, Edward Doherty, John Laverty, Joseph Corr, and John James McKerr.) Corner held (verdict 11.05.21) that the killings were unjustified.

  • Kathleen Thompson, shot dead by British solider on 6th November 1971. Coroner held (29.06.22) that the shooting was ‘unjustified.’

  • Leo Norney (17) shot dead by British soldier on 13 September 1975. Corner held (verdict 03.07.23) that Leo was ‘entirely innocent’ and that he had been deliberately killed by Paratrooper McKay.

Committee on the Administration provided insights into investigations & conditional immunities scheme:

PSNI, Call in, Ombudsman Investigations:

In relation to pre-1998 conflict related cases:

  • Bill will close down and prohibit from May 2024 all criminal Investigations by police, ‘call in’  and Police Ombudsman. Exemption permitting investigative reports to be produced after cut-off date, removed from the Bill by Ministerial amendment.

  • No transitional arrangement, unlike SHA.

  • Prohibition on investigations permanent – even after ICRIR ceases operations.

  • Police Ombudsman: 442 complaints; 167 allocated for investigation but only 69 anticipated for completion before May 2024. Amendments augmented prohibitions on Ombudsman investigating conflict-related human rights violations.

  • ‘Call In’ independent Police Team: Operation Kenova, Turma, Mizzenmast, Glenanne.

  • NI Police Legacy Investigations Branch (LIB): over 1,000 cases; 30 cases referred to prosecutors (most (Irish) republican and (British) loyalist armed groups). 

Conditional Immunities Scheme

  • Voted out by upper chamber of UK Parliament (House of Lords) but reinstated by lower chamber, House of Commons.

  • Government Amendments leave low subjective threshold of immunity intact.

  • The ICRIR must grant immunity to applicants who give information they themselves believe to be true. Applicants do not have to give any new information at all – former soldiers could rely on original statements with no legal standing.

  • No exemption for torture. Opposition introduced exemption for immunity for sexual offences, but investigations still prohibited.

  • Revoking immunity on basis of a fresh terrorist conviction added: but police will still be statute barred from investigating original offence, even after ICRIR ceases.

  • Ministerial amendments expressly incentivise applications for immunity by abolishing the ‘Early Release Scheme’ under Good Friday Agreement.

Committee on the Administration provided feed back on the ICRIR’s independence and effectiveness:

ICRIR Independence:

  • Committee of Ministers concerns regarding role of Secretary of State (SoS) in ‘establishment and oversight of ICRIR’.

  • Appointments: SoS appoints all Commissioners. Amendment that SoS to ‘consult’ re appointing Chief Commissioner-  but recruitment has already happened.

  • Budget and Oversight: SoS controls budget and provides all oversight of ICRIR.

  • Mandate: Sops can limit Commissioners’ terms and close ICRIR at any time.

  • Caseload: SoS extensive powers to shape caseload of ICRIR.

  • National Security + Veto: SoS can redact ICRIR reports to families.

  • Composition of investigators: departs from Ombudsman & Call-in practice.

ICRIR: Effectiveness

  • ‘Reviews’ can include criminal investigations with police powers but such powers of (search, questioning) will not be operable against a person who has immunity. 

  • Ministers rejected amendments requiring ICRIR ‘reviews’ to be ECHR compatible. 

  • Ministers rejected amendments to strengthen powers to compel disclosure of documents from public authorities.

  • ICRIR by contrast has broad ‘Supply of information’ powers to summons individuals subject to a £5,000 fine or even imprisonment for refusing to hand over a document, with no express safeguards (e.g. journalistic sources, legal privilege).

  • ICRIR has no control over its own caseload or final content of its reports.

Please see the slides for the full Briefing.

Relevant Documents

NGO Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Relatives for Justice) (23/08/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) [anglais uniquement] [DH-DD(2023)1032]

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Committee on the Administration of Justice) (02/08/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) [anglais uniquement] [DH-DD(2023)957]

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NGO (Malone House group) (31/07/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) [anglais uniquement] [DH-DD(2023)953]

NHRI Communications

1475th meeting (September 2023) (DH) - Rule 9.2 - Communication from an NHRI (Northern Ireland Human Rights Commission) (04/07/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95) [anglais uniquement] [DH-DD(2023)856]

1443rd meeting (September 2022) (DH) - Rules 9.2 and 9.6 - 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) [anglais uniquement] [DH-DD(2022)856-rev]

CM Decisions

1468th meeting (DH), June 2023 - H46-41 McKerr group v. the United Kingdom (Application No. 28883/95) [CM/Del/Dec(2023)1468/H46-41]

1459th meeting (DH), March 2023 - H46-35 McKerr group v. the United Kingdom (Application No. 28883/95) [CM/Del/Dec(2023)1459/H46-35]

Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting in September 2023

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From 19th -21st September 2023, the Committee of Ministers will meet for their quarterly Human Rights Meeting. During this meeting, the Committee of Ministers will examine 44 leading judgments of the European Court of Human Rights that are pending implementation.

EIN members and partners, other civil society actors, lawyers and applicants have made the 43 Rule 9 submissions for 27 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.

Overview of Submissions

Strazimiri v. Albania

Violation: Poor conditions of detention and inadequate medical treatment of a mentally ill person subject to a court-ordered compulsory medical treatment; unlawful detention in an inadequate (penitentiary) institution without proper psychiatric treatment; failure to examine speedily the lawfulness of the applicant's detention; absence of right to compensation.

Last Examination: September 2022 - CM/Del/Dec(2022)1443/H46-1

Latest Submissions:

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: December 2022 - CM/Del/Dec(2022)1451/H46-2

Latest Submissions:

Mushegh Saghatelyan v. Armenia

Violation: Ill-treatment by the police and absence of any official investigation; unlawful arrest and detention; disproportionate and unnecessary dispersal of protests.

Last Examination: 30 November - 2 December 2021-  CM/Del/Dec(2021)1419/H46-1

Latest Submissions:

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: June 2023 - CM/Del/Dec(2023)1468/H46-3

Latest Submissions:

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: December 2022 -  CM/Del/Dec(2022)1451/H46-6

Latest Submissions:

L.B Group & W.D v. Belgium

Violation: Structural problem concerning the care of persons with mental health problems detained in prison.

Last Examination: September 2021 - CM/Del/Dec(2021)1411/H46-6

Latest Submissions:

Vasilescu Group v. Belgium

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

Last Examination: June 2022 - CM/Del/Dec(2022)1436/H46-3

Latest Submissions:

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: December 2022 - CM/Del/Dec(2022)1451/H46-8

Latest Submissions:

S.Z Group & 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: June 2023 - CM/Del/Dec(2023)1468/H46-8

Latest Submissions:

Y.T. Group v. Bulgaria

 Violation: Unjustified refusals by the courts to the applicants’ applications for gender reassignment. 

First examination - (group in standard procedure) 

Latest Submissions:

M.H. and Others v. Croatia

Violation: Lack of effective investigation into the death of the applicants’ daughter at the Croatian border; inadequate conditions of detention of migrant children; lack of administrative and court diligence and expedition concerning asylum seeking applicants’ detention and asylum proceedings; collective expulsion; violation of the right of individual application.

First Examination

Latest Submissions:

Violation: Conditions of detention of asylum seekers and irregular migrants (including minors) and lack of an effective remedy to challenge conditions of detention; living conditions of asylum seekers; ineffective remedies against expulsion due to shortcomings in asylum procedure.

Last Examination: 29 September – 1 October 2020 - CM/Del/Dec(2020)1383/H46-7

Latest Submissions:             

Ilias and Ahmed v. Hungary

Violation: Authorities’ failure to assess the risks of ill-treatment before expelling the applicants, asylum-seekers, to a “safe third country” (Ilias and Ahmed); applicant’s collective expulsion without identifying him and examining his situation (Shahzad).

 Last Examination: September 2022 - CM/Del/Dec(2022)1443/H46-11 

Latest Submissions:

Laszlo Magyar v. Hungary

Violation: Life sentence without parole in combination with the lack of an adequate review mechanism, life sentence with parole after 40 years.

Last Examination: September 2022 - CM/Del/Dec(2022)1443/H46-12

 Latest Submissions:

Talpis Group, J.L., & M.S. v. Italy

Violation: Failure to comply with the positive obligation to properly assess the risk to life in domestic violence cases and to secure a timely and adequate response. Sexism in the perception of the phenomenon of violence against women, including in court decisions, leading to secondary victimisation. Impunity for domestic violence acts due to a combination of judicial passivity and intervening changes to the prescription regime.

Last Examination:

  • J.L - First examination.

  • M.S. - First examination.

Latest Submissions:

L. v. Lithuania

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

Last Examination: June 2022 - CM/Del/Dec(2022)1436/H46-13

Latest Submissions:

Levinta v. The Republic of Moldova

Violation: Ill-treatment and torture in police custody; ineffective investigations; lack of an effective remedy; conviction based on evidence obtained under torture.

 Last Examination: September 2021 - CM/Del/Dec(2021)1411/H46-23

Latest Submissions:

Petrescu v. Portugal

Violation: Overcrowding and poor conditions of detention in prisons and lack of effective remedies.

Last Examination: March 2021- CM/Del/Dec(2021)1398/H46-20

Latest Submissions:

Bucur and Toma v. Romania

Violation: Conviction of a whistle-blower for having disclosed information on the illegal secret surveillance of citizens by the Intelligence Service; lack of safeguards in the statutory framework governing secret surveillance.

Last Examination: December 2022 - CM/Del/Dec(2022)1451/H46-28

Latest Submissions:

S.C. Polyinvest S.R.L. and Others (Applications Concerning S.C. Polyinvest S.R.L. (No. 20752/07) and Omegatech Enterprises Ltd. (No. 24612/07)) & Seven Other Similar Applications v. Romania

Violation: Non-implementation of court’s or arbitral awards ordering State-controlled companies to pay various sums to the applicants/applicant companies.

Last Examination: March 2023 - CM/Del/Dec(2023)1459/H46-17

Latest Submissions:

Dmitriyevskiy Group v. Russia

Violation: Unjustified prosecution for alleged hate speech and/or extremism.

First Examination.

Latest Submission:

Taganrog LRO and Others v. Russia

Violation: Various rights of the Jehovah’s Witnesses

Last Examination: December 2022 - CM/Del/Dec(2022)1451/H46-33

Latest Submissions:

 Bati and Others v. Turkey

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

Last Examination: September 2022- CM/Del/Dec(2022)1443/H46-27

Latest Submissions:

Selahattin Demirtas v. Turkey (No. 2)

Violation: Unjustified detention of the applicants without reasonable suspicion that they 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: June 2023 - CM/Del/Dec(2023)1468/H46-33

Latest Submissions:

Kavala v. Turkey

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

Last Examination: June 2023 -  CM/Del/Dec(2023)1468/H46-35

Latest Submissions:

Xenides-Arestis Group v. Turkey

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

Last Examination: September 2022 - CM/Del/Dec(2022)1443/H46-31

Latest Submissions:

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: June 2023 - CM/Del/Dec(2023)1468/H46-41

Latest Submissions:

Webinar: From Court to Practice: Implementing ECtHR Rulings on Legal Gender Recognition

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On July 13th, EIN and Transgender Europe (TGEU) collaborated on a webinar titled ‘Webinar: From Court to Practice: Implementing European Court of Human Rights Rulings’. This training event aimed to share knowledge and experiences for those advocating for legal gender recognition, seeking to hold their governments accountable and seeking to be involved in the ECtHR implementation process before the Committee of Ministers’. 

The training began with welcome remarks from Richard Köhler, TGEU Expert Advisor and Senior Policy Officer.

The first session covered the basics of the ECtHR implementation process. Agnes Ciccarone, EIN Program and Finance Manager, and Ioana Iliescu, EIN Law and Advocacy Officer, presented on the topic, explaining how the process works and how NGOs and lawyers can get involved in ECtHR implementation.

The second half of the training event focused on sharing experiences by lawyers & activists on the X v North Macedonia and X and Y v Romania cases.

The webinar ended with a Q&A session, allowing participants to engage with presenters, who provided valuable insights on engaging with the implementation process of ECtHR judgments concerning legal gender recognition.

We thank TGEU for collaborating with EIN on the event and thank everyone who joined.

EU Commission Rule of Law Report 2023 & Non-Implementation of ECtHR Judgments

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Last week, the EU Commission published its 2023 Rule of Law Report, analysing four areas concerning the rule of law: the justice system, the anti-corruption framework, media pluralism and freedom, and other institutional issues related to checks and balances, and examining developments within each of the 27 EU countries. 

EIN is pleased that the Commission is now systematically including the non-implementation of judgments of the European Court of Human Rights in its 2023 Rule of Law report. The report states:

“Included in the Rule of Law report for the first-time last year, the track record of implementing leading judgments of the European Court of Human Rights (ECtHR) is an important indicator for the functioning of the rule of law in a country. The country chapters therefore again include systematic indicators on the implementation of ECtHR leading judgments by all Member States, showing also the change compared to last year. Performance continues to vary between Member States. Overall, around 40% of the leading judgments of the ECtHR relating to EU Member States from the last 10 years have not been implemented, similar to last year’s figure.”

Furthermore, individual country chapters on the rule of law situation in member states include EIN’s key data sets: the percentage of pending leading judgments over the last ten years, the average time lending judgments have been pending, and the number of leading judgments pending implementation.

Over the last two years, EIN has worked closely with Democracy Reporting International (DRI) in advocating for the EU’s Rule of Law Report to take into account the non-implementation of European Courts’ judgments, and to use other tools to tackle the failure of certain Member States to fully implement reforms in line with the European Court’s judgments. On the 3rd of July 2023, we launched our latest report ‘Justice Delayed and Justice Denied: Non-Implementation of European Court Judgments and the Rule of Law’, which shows that the non-implementation of ECtHR judgments is slightly worsening from year to year. As of 1 January 2023, there were 616 leading ECtHR judgments pending implementation in EU states, 40 % of leading judgments from the last ten years are pending implementation in EU states, and the average length of time that leading ECtHR judgments concerning EU states have been pending implementation was 5 years and 1 month.

For future editions of the European Commission’s Rule of Law Report and the EU’s ongoing work on the rule of law, we set out the following recommendations to the European Commission and to EU institutions:

Recommendations

1. The future editions of the European Commission Rule of Law Report should also include specific recommendations for (a) states with particularly concerning records of ECtHR implementation overall; and (b) states with ECtHR and CJEU judgments pending implementation concerning the areas covered by the Report, especially those of independence and impartiality of the judiciary.

2. The European Commission should consistently use other tools available, including infringement procedures and financial pressure, to tackle the failure of certain Member States to fully implement reforms in line with the CJEU and ECtHR judgments. 

3. The EU institutions should raise the issue of ECtHR and CJEU judgment non-implementation and the data in the Justice Delayed and Justice Denied report in discussions with Member State governments and national parliaments.

4. The EU should fund civil society activities designed to enhance ECtHR and CJEU judgement implementation, as well as Council of Europe activities designed to enhance ECtHR judgement implementation.

We welcome this continued development in the EU Commission’s rule of law reporting, which enhances both the EU’s rule of law procedures and sheds light on the overall record of implementation of judgments of the European Court of Human Rights. We are grateful to the EU Commission for its open engagement on this issue.

For more on individual countries’ implementation records, see our implementation country map.

Workshop: The Impact of Lawyering on Migration and Asylum Policies – Rethinking Our Legal Strategies

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On the 6th and 7th of July, EIN participated in Mediterranean Migration & Asylum Policy Hub’s (MedMa) Workshop on the impact of lawyering on migration and asylum policies – rethinking our legal strategies in Cascais, Portugal.

The workshop provided an opportunity for migration/asylum law practitioners, policy experts and other key stakeholders to discuss and share experiences and knowledge on migration/asylum lawyering, including its challenges and pitfalls. Participants reflected on the choices and strategies of pro-migrant lawyers, whether as litigators, academics or legal advisors to campaigning NGOs, and the impacts of lawyering on state policy and practice, including unintended harmful consequences. The workshop also covered current migration policy debates and discussed the future role of lawyering in driving narrative and policy change around migration and asylum.

This workshop was a response to the shift from the welcoming of refugees towards the espousal of deterrence policies and policies against secondary movements of asylum seekers has been swift, policies that include moving refugees to countries outside the EU and international law.

It is now crucial that stakeholders take stock of the significant work undertaken by lawyers on a national and international level and its impact on shaping migration and asylum policy.

Civil society has followed up on the execution of judgments through communications to the Council of Europe’s Committee of Ministers; however, the pace in the execution of judgements by ECtHR remains slow and evidences the need for synergies on a national level between civil society, national human rights institutions and other stakeholders.

The workshop was comprised of four-panel discussions with various stakeholders, including border securitization, externalization of refugees, the regularisation-legal pathways, and implementation & advocacy.

We thank MedMa for inviting EIN to speak on the implementation and advocacy of immigrants and refugees and thank everyone who joined. We hope to see your submissions and engagement in the implementation process of ECtHR judgments in the future.

Webinar Registration: From Court to Practice: Implementing European Court of Human Rights Rulings

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In the past years, the European Court of Human Rights (ECtHR) has delivered several leading judgments concerning the rights of transgender people and their right to legal gender recognition. These cases concern the lack of a clear and predictable legal framework governing the conditions and procedures relating to gender reassignment, as well as the refusal of national authorities to recognise the real identity of transgender persons. How can these legal wins also translate into real change for transgender people? 

Implementation of ECtHR judgments - and the positive developments it brings - often requires civil society involvement in order to ensure that governments implement Court judgments effectively and in full. This is particularly relevant where general measures are needed, and the government must enact new laws and public policies. For instance, when a Strasbourg judgment requires the government to establish clear and accessible procedures for legal gender recognition.

On July 13th, from 10:00 to 11:30 CEST, EIN will be co-hosting an online training event alongside Transgender Europe on implementing judgments of the European Court of Human Rights relating to legal gender recognition and how NGOs and lawyers can be involved in the process.

During this webinar participants will learn how to: 

  • navigate the implementation process;

  • hold their country accountable for human rights violations;

  • get the most out of European Court of Human Rights rulings.

Who is this webinar for?

This webinar is of particular interest for lawyers and activists from countries that currently have cases in the implementation process. This includes Bulgaria, Georgia, Hungary, Lithuania, North Macedonia, and Romania. It is also for lawyers and activists thinking about bringing cases to the European Court of Human Rights and, of course, those with pending cases. 

I am not a lawyer, can I still attend?

We invite trans activists without legal training to attend the webinar. Wherever possible, we will use plain language and avoid legal jargon.

If you still have questions, email richard@tgeu.org

The webinar will be in English and will provide Russian – English simultaneous interpretation.

We look forward to seeing you at this online event.

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

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

The attacks on fundamental European values in recent years has continued to raise concern for European stakeholders – governments, the media, and citizens alike. The EU has introduced a series of policy measures designed to halt and reverse this phenomenon, ranging from the new annual rule of law review cycle, to targeted measures, such as withholding structural funds from countries with severe infringements of the rule of law.

In 2022, following civil society 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 ECtHR and the CJEU (hereafter, “the European Courts”) – the EU Commission has included this type of data in its annual Rule of Law Report. This development allowed the EU to identify longer-term problems with the rule of law across all Member States that had previously been overlooked.

As of 1 January 2023, there were 616 leading ECtHR judgments waiting to be implemented across the EU. Each of these represents a human rights problem that has not been resolved – and which, therefore, is likely to recur.

Some 40 % of leading judgments concerning EU states from the last ten years are yet to be implemented. This means that the systemic human rights issues these judgments identify have not yet been resolved; it indicates that national authorities in Europe are not sufficiently active in dealing with a significant proportion of human rights issues identified by the ECtHR.

The average length of time that leading ECtHR judgments concerning EU states have been pending implementation is 5 years and 1 month. Some cases require extensive reforms that can – and should – take many years to implement. It should, however, be possible to implement the majority of leading judgments in a relatively short period of time. The longer leading judgments have been pending, the greater the concern that implementation is not being carried out.

In view of these recommendations, EIN and DRI set out the following recommendations to the European Commission and to EU institutions:

Report Recommendations

1. The European Commission should analyse the level of implementation of the European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) judgments in European Union (EU) Member States in its annual Rule of Law Report. The Report should also include specific recommendations for (a) states with particularly concerning records of ECtHR implementation overall; and (b) states with ECtHR and CJEU judgments pending implementation concerning the areas covered by the Report, especially those of independence and impartiality of the judiciary.

2. The European Commission should consistently use other tools available, including infringement procedures and financial pressure, to tackle the failure of certain Member States to fully implement reforms in line with the CJEU and ECtHR judgments. 

3. The EU institutions should raise the issue of ECtHR and CJEU judgment non-implementation and the data in this report in discussions with Member State governments and national parliaments.

4. The EU should fund civil society activities designed to enhance ECtHR and CJEU judgement implementation, as well as Council of Europe activities designed to enhance ECtHR judgement implementation.

For more on individual countries’ implementation records, see our implementation country map.

EIN General Assembly 2023

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Photo de Sigmund sur Unsplash

On 27th June, EIN organised its yearly General Assembly. This year, the event was held online.

The meeting was the opportunity to go through institutional matters and adopt the EIN 2022 accounts as well as budget for 2023 and 2024. Members were informed by EIN Treasurer Krassimir Kanev and our independent auditor about the very positive funding situation of EIN.

EIN Chair Başak Çalı gave an overview of the achievements since June 2022, and presented the new projects launched by EIN in 2023 - a project about the rule of law (follow-up to the 2021-2022 project), and a project about freedom of expression - and invited all members to take an active part in these activities.

The new Director of EIN, Ioulietta Bisiouli, who will take up her functions on 7th August, was also present to introduce herself and exchange with members.

The General Assembly concluded with a partial renewal of the EIN Board: we are very happy to announce that Anna-Katrin Speck, doctoral researcher, and Kerem Altiparmak, individual member, both joined the EIN Board. The first meeting of the new EIN Board will take place end September 2023.

Call for Interest - Supporting Freedom of Expression Through ECtHR Implementation

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On 1st June, EIN launched a new project aimed at protecting freedom of expression by supporting ECtHR implementation, which will last for two years. The project aims at mapping ECtHR judgments pending implementation and NGOs working on freedom of expression, and helping them to use the ECtHR judgments implementation avenue to push for freedom of speech in Europe.

A two-day event will be organised in the second half of November (20-21 November, Mediencampus, Leipzig) for partners in the project. Activities will include assistance with drafting written submissions to the Council of Europe’s implementation monitoring process, and advice on advocacy best practices at national level to promote ECtHR implementation; briefings on cases concerning freedom of expression or media freedom to delegates of the Committee of Ministers of the Council of Europe; training and a conference to share lessons-learnt and best practices among stakeholders, and reporting on the overall state of implementation of ECtHR judgments concerning free speech.

EIN has a limited number of grants to allocate to NGOs committed to take part in our project.

Applications from NGOs which are specialized in the defense of freedom of expression but do not work yet on the implementation of ECtHR judgments are welcome. If your NGO already works on the implementation of FoE pending judgments, you might also benefit from our support.  At this stage, if your organisation is interested in applying for a grant, we kindly ask you to fill in this form by the end of July: https://forms.gle/jrd4bH2RqbLXcShMA.

Partners who will receive a grant from EIN in the frame of the project “Promoting Free Speech with European Judgments” will be considered Beneficiaries and will sign a subgrant agreement with EIN. For more information about the eligible activities, please see the Guidelines for beneficiaries.

The expertise of your organizations would be a valuable contribution to advocacy efforts for the implementation of ECHR judgments on free speech and can help turn judgments from the ECHR into real changes.

Save the Date: Rule of Law 2023 Report Launch Virtual Event

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The European Implementation Network (EIN) and Democracy Reporting International (DRI) would like to invite you to join us for the virtual launch of our 2023 report on the non-implementation of regional courts’ judgments.

The launch will be held as an online panel debate on Monday, 3 July between 16:00 and 17:30 ECT with our distinguished speakers:

Ambassador Vesna Kos, Head of the EU Delegation to the Council of Europe, European External Action Service;

Prof Jörg Polakiewicz, Director of Legal Advice and Public International Law, Council of Europe and

Dr Marcin Szwed, Helsinki Foundation for Human Rights.

The report will be presented by 

Ms Ioana Iliescu, Law and Advocacy Officer, EIN and

Dr Nino Tsereteli, Research Officer, DRI.

The debate will be moderated by Jakub Jaraczewski, Research Coordinator, DRI.

 

About the launch event:
The launch event will be opened with a presentation of the report’s findings and recommendations, followed by a moderated panel debate on how the EU and the Council of Europe can cooperate better on enforcing the implementation of the judgments of the two European courts. As part of this, concrete examples from national cases will also be introduced to be explored by the panel. We will close the debate with a Q&A session with the online audience.

The participation is free of charge and open to all interested stakeholders.

Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting in June 2023

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From 5th -7th June 2023, the Committee of Ministers will meet for their quarterly Human Rights Meeting. During this meeting, the Committee of Ministers will examine 41 leading judgments of the European Court of Human Rights that are pending implementation.

EIN members and partners, other civil society actors, lawyers and applicants have made the 36 Rule 9 submissions for 24 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.

 Overview of Submissions

Oganezova v. Armenia

Violation: Lack of protection against homophobic attacks and hate speech; failure to carry out effective investigation; absence of effective domestic criminal-law mechanism for investigating discrimination complaints.

First Examination.

Latest Submissions:

1468th meeting (June 2023) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Pink Armenia and EHRAC) (02/05/2023) in the case of Oganezova v. Armenia (Application No. 71367/12) and reply from the authorities (17/05/2023)

Makuchyan and Minasyan v. Azerbaijan 

Violation: Failure to continue to enforce prison sentence for ethnic hate crime committed abroad, after transfer to Azerbaijan.

First Examination.

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.1 - Communication from the applicant (18/04/2023) in the case of Makuchyan and Minasyan v. Azerbaijan (Application No. 17247/13)

1468th meeting (June 2023) (DH) - Rule 9.1 - Communication from the applicant (29/03/2023) in the case of Makuchyan and Minasyan v. Azerbaijan (Application No. 17247/13)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from NGOs (Democracy Development Foundation, Protection of Rights without Borders, Helsinki Citizens’ Assembly Vanadzor, Transparency International Anti-Corruption Center, Law Development and Protection Foundation) (17/04/2023) in the case of Makuchyan and Minasyan v. Azerbaijan (Application No. 17247/13)

Mammadli group v. Azerbaijan

 Violation: Arrest and pre-trial detention to punish the applicants for 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 2023 -  CM/Del/Dec(2023)1459/H46-3

 Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from IGOs (Election Monitoring and Democracy Studies Center) (28/04/2023) in the case of Mammadli v. Azerbaijan (Application No. 47145/14)

Sejdić and Finci Group v. Bosnia and Herzegovina

Violation: Ethnic-based discrimination on account of the ineligibility of persons not affiliated with one of the “constituent peoples” (Bosniaks, Croats or Serbs) to stand for election to the House of Peoples and the Presidency. 

Last Examination: March 2023 - CM/Del/Dec(2023)1459/H46-36

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.4 - Communication from the Council of Europe Commissioner for Human Rights (24/04/2023) in the case of SEJDIC AND FINCI v. Bosnia and Herzegovina (Application No. 27996/06)

Statileo Group v. Croatia

Violation: Statutory limitations on use of property by landlords, including through the rent control scheme for flats subject to protected leases.

 Last Examination: 30 November – 2 December 2021- CM/Del/Dec(2021)1419/H46-11

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from NGOs (Association of Ownership and Possession of Apartment, Owners with Protected Tenants) (18/04/2023) in the case of STATILEO v. Croatia (Application No. 12027/10)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Udruga Proljeće) (31/03/2023) in the STATILEO group of cases v. Croatia (Application No. 12027/10)

1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Reply from the authorities (17/02/2023) following a communication from an NGO (Association of Ownership and Possession of Apartment Owners with Protected Tenants) (02/02/2023) in the case of STATILEO v. Croatia (Application No. 12027/10)

Moustahi v. France

Violation: Detention and rapid return of two foreign unaccompanied minors from Mayotte to the Comoros, without an examination of their individual situation

Last Examination: March 2022 - CM/Del/Dec(2022)1428/H46-10

Latest Submissions:

1468e réunion (juin 2023) (DH) - Règle 9.2 - Communication d'une INDH (Défenseur des droits) (14/04/2023) dans l’affaire Moustahi c. France (requête n° 9347/14)

1468e réunion (juin 2023) (DH) - Règle 9.2 - Communication d'ONG (GISTI, Avocats pour la Défense des Droits des Etrangers (ADDE) et Syndicat des avocats de France (SAF)) (19/04/2023) dans l’affaire Moustahi c. France (requête n° 9347/14)

1468e réunion (juin 2023) (DH) - Règle 9.2 - Communication d'une ONG (La Cimade) (18/04/2023) dans l’affaire Moustahi c. France (requête n° 9347/14)

Tsintsabadze Group v. Georgia

Violation: Lack of effective investigations into allegations of ill-treatment or violations of the right to life; excessive use of force by the police in the course of arrest and/or while detaining suspects.

Last Examination: March 2022 - CM/Del/Dec(2022)1428/H46-12

Latest Submissions:  

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from NGOs (GYLA and EHRAC) (21/04/2023) in the case of TSINTSABADZE v. Georgia (Application No. 35403/06)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (25/04/2023) in the case of TSINTSABADZE v. Georgia (Application No. 35403/06)

Bekir-Ousta and Others Group v. Greece

Violation: Refusal of domestic courts to register associations or dissolution of the applicants’ associations.

Last Examination: December 2022 - CM/Del/Dec(2022)/1451/H46-15

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Greek Helsinki Monitor) (17/04/2023) in the cases of BEKIR-OUSTA AND OTHERS and HOUSE OF MACEDONIAN CIVILIZATION AND OTHERS v. Greece (Applications No. 35151/05, 1295/10)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Federation of Western Thrace Turks in Europe) (21/03/2023) in the group of cases BEKIR-OUSTA AND OTHERS v. Greece (Application No. 35151/05)

Sy and Itraro and Molino v. Italy

Violation: Detention in ordinary prison of persons mentally ill (Sy) and failure to protect their right to life (Citraro and Molino).

First Examination.

Latest Submission:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (StraLi for Strategic Litigation) (09/05/2023) in the case of Sy v. Italy (Application No. 11791/20)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (StraLi for Strategic Litigation) (09/03/2023) in the case of Sy v. Italy (Application No. 11791/20)

Sarban Group v. Republic of Moldova

Violation: Various violations mainly arising from pre-trial detention.

Last Examination: 30 November – 2 December 2021 - CM/Del/Dec(2021)1419/H46-23

Latest Submissions:

1468th meeting (June 2023) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (LRCM) (21/04/2023) in the case of SARBAN v. the Republic of Moldova (Application No. 3456/05) and reply from the authorities (28/04/2023)

T.M and C.M Group v. Republic of Moldova

Violation: Authorities' failure to provide protection from domestic violence

 Last Examination: March 2020 - CM/Del/Dec(2021)1369/H46-17

 Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Submisison Women’s Law Centre) (15/03/2023) in the case of T.M. and C.M. v. the Republic of Moldova (Application No. 26608/11)

Reczkowicz Group, Broda and Bojara, and Grzęda v. Poland

 Violation: Tribunal not established by law due, inter alia, systemic dysfunction in the judicial appointments procedure.

 Last Examination: December 2022 - CM/Del/Dec(2022)1451/H46-25

Grzęda - First examination

Latest Submissions:

1468th meeting (June 2023) (DH) - Rules 9.2 and 9.6 - Reply from the authorities (20/04/2023) following a communication from an NGO (Helsinki Foundation for Human Rights) (31/03/2023) in the cases of Xero Flor w Polsce sp. z o.o., Reczkowicz group, Grzeda, Broda and Bojara, Juszczyszyn and Zurek v. Poland (Applications No. 4907/18, 43447/19, 43572/18, 26691/18, 35599/20, 39650/18)

 Tysiąc, R.R., and, P. and A. 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: September 2022 CM/Del/Dec(2022)1443/H46-19 

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from NGOs (Foundation for Women and Family Planning and the Center for Reproductive Rights) (18/04/2023) in the cases of R.R., TYSIAC and P. and S. v. Poland (Applications No. 27617/04, 5410/03, 57375/08)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from NGOs (Foundation for Women and Family Planning and the Center for Reproductive Rights) (18/04/2023) in the cases of R.R., TYSIAC and P. and S. v. Poland (Applications No. 27617/04, 5410/03, 57375/08)

Xero Flor W Polsce SP. Z O.O. v. Poland

 Violation: 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.

Last Examination: December 2022 CM/Del/Dec(2022)1451/H46-34

Latest Submissions:

1468th meeting (June 2023) (DH) - Rules 9.2 and 9.6 - Reply from the authorities (20/04/2023) following a communication from an NGO (Helsinki Foundation for Human Rights) (31/03/2023) in the cases of Xero Flor w Polsce sp. z o.o., Reczkowicz group, Grzeda, Broda and Bojara, Juszczyszyn and Zurek v. Poland (Applications No. 4907/18, 43447/19, 43572/18, 26691/18, 35599/20, 39650/18)

Centre for Legal Resources on Behalf of Valentin Câmpeanu & N. (no. 2) v. Romania

Violation: Deficiencies in the legal protection and medical and social care afforded to vulnerable persons.

Lack of legal safeguards allowing an incapacitated person to have a say in the proceedings leading to the change of a legal guardian.

Last Examination: June 2019 - CM/Del/Dec(2019)1348/H46-20

N. (no. 2) v Romania - First examination

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Centre for Legal Resources) (21/04/2023) in the cases of CENTRE FOR LEGAL RESOURCES ON BEHALF OF VALENTIN CAMPEANU and N. v. Romania (no. 2) (Applications No. 47848/08, 38048/18)

N. v. Romania and R.D. and I.M.D. v. Romania

Violation: Unlawful psychiatric confinement as security measures and deficiencies in the judicial review proceedings. Absence of a legal basis for compulsory administration of medical treatment to such patients.

Last Examination: March 2022 - CM/Del/Dec(2022)1428/H46-23

R.D. and I.M.D - First examination 

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Centre for Legal Resources) (21/04/2023) in the cases of R.D. and I.M.D., and N. v. Romania (Applications No. 35402/14, 59152/08)

Parascineti & Cristian Teodorescu Group v. Romania

Violation: Issues related to the living conditions and treatment of patients subjected to involuntary placements in psychiatric hospitals and to the procedure and safeguards for such placements.

Last Examination: June 2020 - CM/Del/Dec(2020)1377/H46-28

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Centre for Legal Resources) (21/04/2023) in the cases of CRISTIAN TEODORESCU and PARASCINETI v. Romania (Applications No. 22883/05, 32060/05)

Finogenov and Others v. Russian Federation

Violation: Loss of life and injuries caused during a mass hostage-rescue operation at the “Nord-Ost” theatre in Moscow and lack of effective investigation.

Last Examination: September 2016 - CM/Del/Dec(2016)1265/H46-23

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.1 - Communication from the applicant 21/04/2023) in the case of FINOGENOV AND OTHERS v. Russia (Application No. 18299/03)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Centre de la protection internationale) (21/04/2023) in the case of Tagayeva and Others v. Russia (Application No. 26562/07) (Finogenov and Others group, 18299/03)

Navalnyy and Ofitserov Group 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: March 2023 - CM/Del/Dec(2023)1459/H46-22

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.1 - Communication from the applicant (12/04/2023) in the case of NAVALNYY AND OFITSEROV v. Russia (Application No. 46632/13)

Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi Group & Hasan and Eylem Zengin Group v. Türkiye

Violation: Structural and administrative problems leading to various differences in treatment between followers of the Alevi faith and adherents of the majority branch of Islam, including compulsory religious education classes.

Last Examination: 30 November – 2 December 2021- CM/Del/Dec(2021)1419/H46-36 & December 2022 - CM/Del/Dec(2022)1451/A2b

Latest Submissions:

468th meeting (June 2023) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Alevi Philosophy Center Association) (19/04/2023) in the cases of ZENGIN, CUMHURIYETCI EGITIM VE KULTUR MERKEZI VAKFI and IZZETTIN DOGAN AND OTHERS v. Turkey (Applications No. 1448/04, 32093/10, 62649/10) and reply from the authorities (27/04/2023)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Norwegian Helsinki Committee’s Freedom of Belief Initiative) (18/04/2023) in the cases of ZENGIN, CUMHURIYETCI EGITIM VE KULTUR MERKEZI VAKFI and IZZETTIN DOGAN AND OTHERS v. Turkey (Applications No. 1448/04, 32093/10, 62649/10)

Selahattin Demirtaş (no. 2) v. Türkiye

Violation: 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. Unforeseeable lifting of the parliamentary immunity and subsequent criminal proceedings to penalise the applicant for his political speeches. (Individual measures)

Last Examination: March 2023 - CM/Del/Dec(2023)1459/H46-26

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Media and Law Studies Association (MLSA)) (14/04/2023) 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: December 2022 - CM/Del/Dec(2022)1451/H46-40

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.1 - Communication from the applicant's legal representatives (20/04/2023) in the case of Kavala v. Türkiye (Application No. 28749/18) and reply from the Director General of DGI (09/05/2023)

Ülke Group v. Türkiye

Violations: Repetitive convictions and prosecutions for refusing to carry out compulsory military service on account of religious beliefs or convictions as pacifists and conscientious objectors.

Last Examination: June 2020 - CM/Del/Dec(2020)1377/H46-40

Latest Submissions:

1468th meeting (June 2023) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (European Association of Jehovah’s Witnesses) (26/04/2023) in the cases of ULKE, BULDU AND OTHERS, ERCEP and FETI DEMIRTAS v. Turkey (Applications No. 39437/98, 14017/08, 43965/04, 5260/07) and reply from the authorities (12/05/2023)

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from NGOs (The Conscientious Objection Watch, War Resisters’ International, The European Bureau for Conscientious Objection, Connection e.V and International Fellowship of Reconciliation) (17/04/2023) in the case of ULKE v. Turkey (Application No. 39437/98)

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: March 2023 - CM/Del/Dec(2023)1459/H46-35

Latest Submissions:

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Committee on the Administration of Justice) (05/05/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95)

 

New EIN Project: Protecting Freedom of Expression by Supporting ECtHR Implementation

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This week, EIN is launching a new project which aims to protect free speech in Europe in every country where there is a relevant ECtHR judgment pending implementation. It will do so by empowering civil society to engage with the implementation process of these judgments, by providing them with training, resources, and mentoring.

Violations of the right to free speech are central to the crisis of democratic backsliding in European states. The healthy functioning of democracies is being curtailed (and sometimes undermined) by a mixture of: draconian defamation laws that silence journalists through court proceedings; the undermining of free debate through the excessive ownership of media outlets by the state or those linked to it; and even widespread violence against reporters.

Photo by Markus Winkler on Unsplash

The European Court of Human Rights (“ECtHR”) has issued 330 leading judgments finding a violation of the right to free speech. These judgments concern the most critical free speech issues in Europe today, including defamation laws, media ownership, and journalists’ safety.

However, at the time of writing, 50% of the leading free speech judgments handed down by the ECtHR in the last 10 years are still pending implementation. There are currently 105 leading ECtHR judgments on free speech pending implementation overall.  

EIN will promote free speech reforms across Europe by giving civil society the training, resources, and mentoring they need to push forward the implementation of judgments of the European Court of Human Rights.

The project is set to run for 2 years (June 2023 - May 2025). Project activities would include:

Photo by Maayan Nemanov on Unsplash

  • Reaching out to NGOs, lawyers, and journalists specialising in media freedom in all countries where there are relevant ECtHR cases pending implementation, and ensuring that as many cases as possible are being monitored or engaged with by a local partner;

  • Inviting the target group to a capacity-building conference, to be provided with extensive training and resources about how to promote ECtHR judgment implementation in their country;

  • The creation of a research note on best practices, to be circulated to all relevant stakeholders;

  • Ongoing mentoring for partners through legal advice, liaison with the Council of Europe, assistance with drafting written submissions to the Council of Europe’s implementation monitoring process, and advice on advocacy best practices at national level to promote ECtHR implementation;

  • In the second year of the project, a second conference to share lessons-learnt and best practices among stakeholders;

  • Briefings on cases concerning freedom of expression or media freedom to delegates of the Committee of Ministers of the Council of Europe;

  • Reporting on the overall state of implementation of ECtHR judgments concerning free speech, to be distributed to all relevant partners and institutions throughout Europe.

The project will be kindly funded by the Swedish Postcode lottery, Fritt Ord Foundation and the Isocrates Foundation.

EIN Civil Society Briefing May 2023: Bosnia and Herzegovina and Romania

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On the 25th May 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1468th Committee of Ministers Human Rights Meeting on 7th – 9th June 2023. The event was held in person in Strasbourg, facilitated by Ioana Iliescu, EIN Law and Advocacy Officer.

The Briefing focused on the following cases:

  • The Sejdic and Finci v. Bosnia and Herzegovina case, which concerns ethnic-based discrimination on account of the ineligibility of persons not affiliated with one of the “constituent peoples” (Bosniaks, Croats or Serbs) to stand for election to the House of Peoples and the Presidency. This presentation was given by Chelsea Gonzalez, Legal Project Officer, from Minority Rights Group International.

  • The Cristian Teodorescu v. România group and Parascineti v. România judgment concern: a) ill-treatment in psychiatric hospitals due to overcrowding, poor sanitary and hygiene conditions, including the absence of an individual bed, and the impossibility to spend time outdoors due to staff shortages; and b) legislative deficiencies as regards the procedure and safeguards for involuntary placement in psychiatric hospital facilities and general failure of the competent authorities to apply this procedure. This presentation was given by Georgiana Pascu, Program Manager from the Centre for Legal Resources.

  • The N. v. România and R.D. and I.M.D. v. România cases concern: a) unlawful psychiatric confinement as security measures and deficiencies in the judicial review proceedings and b) the absence of a legal basis for compulsory administration of treatment to such patients. This presentation was given by Georgiana Pascu, Program Manager from the Centre for Legal Resources.

  • The Centre for Legal Resources on behalf of Valentin Campeanu v. Romania case concerns: a) deficiencies in the legal protection and medical and social care afforded to vulnerable persons; b) the ineffectiveness of criminal investigations into deaths of persons with disabilities in mental health institutions; and c) safeguards and remedies regarding placement in residential social care facilities and psychiatric hospitals. This presentation was given by Georgiana Pascu, Program Manager from the Centre for Legal Resources.

    Elisabeta Moldovan, self-representative and Co-president of the Ceva de Spus Association, made a statement regarding her personal experience of a placement in a mental health hospital, with translation support from Alina Ursoi, psychologist and support staff member at the UnLoc Association.

Sejdic And Finci v. Bosnia and Herzegovina

The Sejdic and Finci v. Bosnia and Herzegovina case concerns discrimination against the applicants on account of their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (i.e. Bosniaks, Croats or Serbs) or due to their failure to meet a combination of the requirements of ethnic origin and place of residence (violations of Article 1 of Protocol No. 12).

Minority Rights Group International provided participants with explanations regarding the Dayton Accords and Electoral Quotas, explaining the effects of the quota system, which disenfranchises minorities, discriminates against constituent peoples living in ‘wrong’ entity and facilitates the trickling down of discrimination to local level.

Minority Rights Group International discussed the Council of Europe Commissioner for Human Rights Rule 9 Submission from April 2023, setting out the Commissioner’s primary concerns regarding the recent developments at national level:

  • “[N]o clarity as to what [the changes to the Constitution and electoral legislation] entail”.

  • Legislative reform discussions: “legitimate representation of constituent people”.

  • Special rights for constituent peoples, excluding minorities.

  • “Even if this only means preserving the existing situation, this implies that being just a citizen is considered to be of a lower status, as opposed to being a member of one constituent people, which would be contrary to the principle of non-discrimination.”

    The CoE Commissioner argues that the failure to execute these judgments is leading to a deterioration of situation in BiH, and to amplified ethnic tensions. The system based on ethnic discrimination leads to increased threats to stability; the rise of hate speech; the glorification of war criminals; and genocidal denial. Furthermore, she argues that:

  • “[F]ull elimination of ethnic discrimination from both the Constitution and the electoral legislation”.

  • “It is imperative that the authorities place focus on building a state based on the equality of citizens, rather than on further embedding ethnic discrimination in the Constitution and the electoral legislation.”

Minority Rights Group International outlined to participants the case’s current status of implementation:

  • There has been no progress in 14 years.

  • The discriminatory provisions remain in Constitution and electoral legislation.

  • There have been 4 general elections under discriminatory framework and 4 Interim Resolutions by CoM.

  • There has been no outreach to non-constituent minorities or the plaintiffs, and recent legislative reforms do not address implementation.

Minority Rights Group International set out their their current concerns regarding the case to participants:

  • The lack of outreach to non-constituent minorities to ensure changes from implementation

  • 2021 Interim Resolution (CoM), March decision (CoM) and BiH authorities do not reference participation of non-constituent minorities in legislative reform

  • Ongoing exclusion of minorities from bodies tasked with enacting reforms

Minority Rights Group International provided their recommendations, asking the Committee of Ministers to:

  • Appeal to Member States to request action to ensure implementation with judgments.

  • Issue an Interim Resolution stipulating that process of amending the Electoral Law and Constitution must be participatory and involve robust consultation of non-constituent minorities, which should address the Constitutional, Electoral Law amendments, judgment implementation, requesting:

    • Timeline for implementation with time for meaningful consultation of minorities

    • Representatives from minority groups named to any oversight body

    • Meaningful consultation of plaintiffs in Sejdić and Finci group of cases

    • Specific mechanisms to ensure minority and CSO participation

    • BiH to share draft amendments with CoM prior to adoption.


      Please see the slides for the full Briefing.

Relevant Documents:

The Parascineti v. România concerns the ill-treatment suffered by the applicant during his involuntary placement in the psychiatric unit of the Sighetu Marmaţiei Hospital between 5 and 13 July 2005, due to overcrowding, poor sanitary and hygiene conditions, including the absence of an individual bed, and the impossibility to spend time outdoors due to staff shortages (violation of Article 3).

Centre for Legal Resources România outlined the conditions in psychiatric hospitals in Romania to participants:

  • 16,073 psychiatric beds nationwide

  • 4 security (forensic) psychiatric hospitals

  • Chronic wards accommodate more than 8000 patients

Centre for Legal Resources România reminded participants of their findings of their visit to the institutions in 2019 & 202:

  • 8 residents locked in 6 cages

  • Tied with shirts and strips of cloth

  • Lack of specialized staff and significant underfunding

  • Situations with a high risk of injury, self-harm and aggression

Centre for Legal Resources România explained to participants the lack of adequate health care services and staff and Inefficient investigations of the causes of deaths in Botoșani:

  • 24 March 2023: An 87-year-old patient died in the hallway of the medical unit without anyone jumping to his aid.

    • On Thursday morning, around 5am, a nurse found him dead in the main hallway on the ground floor. Three hours earlier, a nurse had administered the treatment in a ward on the third floor - in the "Medical" section.

    • What happened to the patient in the meantime, no one in the hospital knows. The manager shrugs when asked when the old man left the ward

  • 24 May 2023: A man aged just 47, brought in to withdraw, died before doctors' eyes. They called an ambulance, but it was too late. The man was in ethanolic withdrawal at the psychiatric ward - acute ward.

  • 28 Nov. 22: patient died after choking on food

  • 15 June 2022: an 18-year-old patient stabbed himself in the chest with a knife. He had several admissions to psychiatrists. The ambulance with emergency doctors could not save him

Cristian Teodorescu v. România

The Cristian Teodorescu v. România case concerns the unlawful placement of the applicants in psychiatric hospitals, or in one case (Ulisei Grosu) the applicant’s arrest by police with a view to such placement, without compliance with the procedure prescribed by the Mental Health Act and without any justification relating to their mental health condition (violations of Article 5 § 1(e)).

CLR reminded participants of the main issues in the case:

  • Failure to comply with Mental Health Act procedure and placement without justification relating to mental health condition.

  • Failure to comply with the legal requirement to obtain consent for medical treatment.

  • Inconsistent knowledge among healthcare professionals about the relevant procedures.

The NGO provided an overview of the unlawful involuntary placements in psychiatric hospitals:

  • There is no mental health department within the Ministry of Health.

  • The Ministry of Health has not requested EU budget for the mental health community services (Cohesion Policy budget)

  • The latest communication (March 2023) from authorities does not refer to the living conditions and rights of persons in psychiatric hospitals.

  • No public data on involuntary placements in psychiatric hospitals and the transfers between social and psychiatric system

  • In 2018, CLR collected some data from several psychiatric hospitals through freedom of information requests (only some hospitals responded):

    • Out of 524 involuntary admissions, only 112 were referred to the courts for judicial review.

    • There was not even a single case in which court overturned the decision of involuntary placement.

    • 206 people involuntarily placed in psychiatric hospitals came from residential centers for people with disabilities.

    • There were 2139 "social cases”.

  • There is a lack of progress at national level.

  • The lack of community-based mental health and social care services leads to involuntary placements and to de facto involuntary placements, which are being used as measure of “first resort” instead of a measure of last resort (as Article 5 of the European Convention requires). This leads to an overload of the system of mental health hospitals and to overcrowding and low compliance with procedural guarantees.

  • There is no independent body with monitoring, control and sanctioning powers.

  • CLR’s cooperation protocol with the Ministry of Labour and Social Solidarity was recently rescinded due to reports and criminal complaints filed by CLR following abuses in social care private homes financed with local authority money.

CLR provided their recommendations, asking the Committee of Ministers to:

  • Urge the national authorities to provide a concrete action plan for the implementation of these judgments.

  • Increase the frequency of examination of these cases.

  • Instruct the Secretariat to prepare an interim resolution.

  • Request data on the number of patients with mental disabilities treated in emergency wards of county hospitals

  • Request the authorities to equip psychiatric wards with equipment for emergency medical interventions.

  • Request the authorities to:

    • Provide recent disaggregated statistics on non-voluntary admission procedures in psychiatric hospitals and units since 2018.

    • Adopt a concrete legislative framework on access to justice of non-voluntary hospitalizations and investigate the causes of deaths.

    • Urgently allocate of a concrete budget plan for the community psychiatry system.

    • Appoint a coordinator at government level for the execution of the obligations arising from the judgments of the ECtHR against Romania in the field of psychiatry and mental health.

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Centre for Legal Resources) (21/04/2023) in the cases of CRISTIAN TEODORESCU and PARASCINETI v. Romania (Applications No. 22883/05, 32060/05) [anglais uniquement] [DH-DD(2023)539]

CM Decisions

1377 meeting (DH) June 2020 - H46-28 Parascineti and Cristian Teodorescu group v. Romania (Applications Nos. 32060/05 and 22883/05) [CM/Del/Dec(2020)1377/H46-28]

1362 meeting (DH) December 2019 - H46-18 Parascineti and Cristian Teodorescu group v. Romania (Applications Nos. 32060/05 and 22883/05) [CM/Del/Dec(2019)1362/H46-18]

1265 meeting (September 2016) - H46-22 Parascineti group v. Romania (Application No. 32060/05) and group Cristian Teodorescu (Application No. 22883/05) / 1265e réunion (septembre 2016) - Parascineti c. Roumanie (Requête n° 32060/05) et groupe Cristian Teodorescu (Requête n° 2883/05) [CM/Del/Dec(2016)1265/H46-22]

N. v. Romania and R.D. and I.M.D. v. Romania

The N. v. Romania case concerns the psychiatric confinement of the applicant, who has been diagnosed with a psychiatric condition. Although the detention was first imposed in 2001 as a security measure during criminal investigations, the Court only examined the situation, as the complaints about the earlier period were out of time.

The R.D. and I.M.D. v. Romania case concerns the non-voluntary confinement of the applicants in a psychiatric hospital for the purpose of compelling them to undergo medical treatment and about the obligation to undergo that medical treatment.

CLR provided an overview of the main issues in the N v. Romania case:

  • Unlawful psychiatric confinement as a security measure for the purpose of compelling them to undergo medical treatment.

  • Measure imposed following criminal proceedings condemning the applicants to compulsory psychiatric treatment, based on medical reports of expertise dated 3 years before the date of confinement in the psychiatric hospital without proper examination by the domestic courts of the degree of social danger justifying the safety measure or of the degree of social danger of the criminal offense.

  • Absence of a legal framework concerning the obligation to undergo medical treatment: Criminal Code does not offer to people diagnosed with a psychiatric condition sufficient guarantees against arbitrariness as concerns the administration of medical treatment.

The NGO outlined the challenges of non-voluntary psychiatric confinement:

  • No legislative provisions to set clear limits on when and under what conditions a non-voluntary psychiatric confinement (as security measure) can be taken.

  • Many involuntary placement measures which are not legal, are arbitrary and unjustified.

  • Lack of safeguards: persons with mental health conditions who commit criminal acts without discernment and are placed in forensic psychiatric hospitals receive a “life sentence”.

  • On June 2020, 1,424 persons were admitted to psychiatric and security measures hospitals. Approximately 14% had a disability certificate (the majority having mental disabilities). 80% of the people admitted were reported as having a mental disability. However, without disability certificates they cannot receive procedural adaptations.

  • Inconsistencies between the relevant legislative provisions and the factual situation

    • Provisions of the Criminal Code in force (art. 109 and 110) stipulate that both the obligation to medical treatment and hospitalization are taken "until recovery or until an improvement is obtained that removes the state of danger" - in this situation the Romanian authorities have not yet identified a solution that is applicable to persons with intellectual disabilities.

    • Persons with intellectual or psycho-social disabilities under involuntary confinement security measures risk being detained for life. 

  • Medical confinement: there is no clear procedure applicable for the re-examination or changing of measures for medical confinement, as regards the periodicity of medical examinations. There is no legislative framework to ensure legal aid in this area.

  • No dedicated spaces and services for the needs of persons with mental health conditions who are currently detained in forensic psychiatric hospitals, and whose detention review would lead to their release.

CLR provided their recommendations, asking the Committee of Ministers to request the Romanian authorities to:

  • Adopt of a legislative framework to regulate in concrete terms the situation of persons subjected to security measures (involuntary confinements in forensic psychiatric hospitals and medical confinements) and the need for periodic reassessments, in order to ensure that they do not remain in psychiatric hospitals indefinitely.   

  • Enact a clear legislative framework to regulate the situation of persons subjected to security measures and to ensure legal assistance for persons with mental health conditions subjected to security measures (and all mental health institutions). 

  • Amend the Criminal Code to identify a solution applicable to persons with intellectual or psychosocial disabilities, for whom "the full recovery" is not possible, and to provide them with sufficient guarantees against arbitrariness in the administration of medical treatment. 

  • Carry out regular monitoring visits to forensic psychiatric hospitals and communicate the conclusions of the monitoring visits to the Committee of Ministers in order to have a close observation of the developments on the ground. 


Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1468th meeting (June 2023) (DH) - Rule 9.2 - Communication from an NGO (Centre for Legal Resources) (21/04/2023) in the cases of R.D. and I.M.D., and N. v. Romania (Applications No. 35402/14, 59152/08) [anglais uniquement] [DH-DD(2023)538]

CM Decisions in N. v. România:

1428th meeting (DH), March 2022 - H46-23 N. v. Romania (Application No. 59152/08) [CM/Del/Dec(2022)1428/H46-23]

1411th meeting (DH), 14-16 September 2021 - H46-27 N. v. Romania (Application No. 59152/08) [CM/Del/Dec(2021)1411/H46-27]

1331 meeting (DH) December 2018 - H46-22 N. v. Romania (Application No. 59152/08) [CM/Del/Dec(2018)1331/H46-22]

The Centre for Legal Resources on behalf of Valentin Campeanu v. Romania case concerns the authorities’ failure to protect the right to life of Mr Câmpeanu, a young man of Roma origin, orphaned, HIV-positive and with “severe intellectual disability” (substantial violation of Article 2).

CLR outlines to participants the several human rights violations of the case:

  1. Authorities’ failure to protect the right to life of a young man, orphaned, HIV-positive and with “severe intellectual disability”.

  2. Ineffectiveness of the investigation and the court proceedings into his death 

  3. Lack in domestic law of a legal framework suited to the specific needs of people with mental disabilities and allowing for the examination of the allegations concerning the violation of Mr Câmpeanu’s right to life by an independent authority. The Court stated that Romania must adopt measures to ensure that “persons with mental disabilities in a situation comparable to that of Mr Câmpeanu are afforded independent representation, enabling them to have Convention complaints relating to their health and treatment examined before a court or other independent body”.

CLR provided information on recent developments on legal protections for vulnerable adults:

  • Law no. 140/2022 which regulates the protection measures for people with intellectual and/or psychosocial disabilities was enacted, but there are important concerns regarding its' implementation.

  • There are approx. 90.000 cases involving the judicial protection of ”incapable” adults, for which this law will be applied.

  • Concerns regarding the implementation Law no. 140/2022 :

    • Lack of training of the professionals working with persons with disabilities.

    • Methodology is hindering the process: high costs and expenses are not supported from the national health fund.

    • Lack of concrete and clear information regarding the mechanism for conducting medical and psychosocial evaluation reports.

    • The norm which states that the institution of the personal representative will be regulated by a special law has still not been drafted, thus persons in situations comparable with Valentin Campeanu remain without protection.

CLR discussed data on the effectiveness of criminal investigations into deaths in mental health institutions:

  • Data provided by the authorities refers to the number of suspicious death case files but not the number of deaths in institutions.

  • There is no information on the number of convictions

  • CLR provided data on deaths in mental health institutions in 2019:

    • 336 deaths in 67 psychiatric units with 8064 beds; out of which only 215 notification of deaths (54 of them to the Monitoring Council, 183 to Police and Prosecutors, 15 to other institutions).

    • Causes of death: Lung disease (73); Asphyxia (17); Heart disease (175); Tumors (7); Suicide (4); Other causes (60).

    • In 2022, there were 1029 reported deaths in social care homes.

  • Examples of ongoing similar cases: young woman with mental disabilities with broken femur for months at Zătreni social care home.

The NGO outlined challenges to the safeguards and remedies regarding placement in residential social care facilities and psychiatric hospitals:

  • The manner and extent to which its decisions can be appealed, the so-called “grey area of consent”

  • Non-transparent procedure of transfers between social homes to psychiatric units – social homes and back.

  • Lack of informed consent.

  • The Monitoring Council is still not fully operational (Law no. 8/2016).

CLR provided their recommendations, asking the Committee of Ministers to request the national authorities to:

  • Elaborate the law that regulates the institution of the personal representative and the provision of the necessary funds so that this can effectively contribute to access to justice for vulnerable persons and to the deinstitutionalization process;

  • Allocate the necessary budget for carrying out psychiatric and psychological assessments of persons in need of supported-decision measures (which are mandatory requested by the national courts).

  • Ensure, through the institutions responsible for the ongoing training of magistrates and lawyers, at least one training course per year in the field of adequate communication with persons with intellectual disabilities /or psychosocial disabilities. 

  • Allocate adequate resources for staff and logistics of the Monitoring Council so that the institution can ensure the effective representation of persons with disabilities in the defense of their fundamental rights and freedoms and ensure their access to justice.  

  • Establish proper collaboration with the human rights NGOs and self-representatives and allow unrestricted access to public and private residential social centers and hospitals or psychiatric wards so that the objective monitoring of the respect for the rights of persons with disabilities can be carried out.

  • Regulate and develop social services in the community and community psychiatry in order to effectively prevent the medical and social neglect of vulnerable patients in psychiatric hospitals and social care homes and to achieve the deinstitutionalization indicator foreseen in Law 7/2023, and ensure that sufficient funding is allocated to communities and local authorities to support these services and the implementation of Law no. 7/2023.  

  • Systematically collect and publish data on cases involving persons with disabilities by the responsible authorities (the National Union of Romanian Bar Associations, the Public Prosecutor’s Office, Courts of Appeal, the Monitoring Council, psychiatric hospitals and residential social care centres).

  • Develop concrete and standard complaint mechanisms accessible to people with disabilities institutionalized.

Please see the slides for the full Briefing.

Relevant Documents:

The Reykjavik Declaration: Re-committing to the Convention system and to implementation of judgments of the European Court

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Last week, following the Fourth Summit of the Council of Europe, the Heads of State and Government have recommitted to the Convention System, underlining the “shared responsibility” between the states, the Court and the Committee of Ministers, in order to ensure the proper functioning of the Convention system.

Through the Reykjavik Declaration, Member States recalled the responsibility for complying with the judgments of the Court which is incumbent on the “executive, national and local authorities, national courts and national parliaments”.  The ECtHR judgment implementation process is addressed in the Declaration’s Appendix IV “Recommitting to the Convention System as the cornerstone of the Council of Europe’s protection of human rights”.

Member States commit to tackling the non-implementation of judgments of the European Court by developing a more “co-operative, inclusive and political approach based on dialogue”. For this purpose, they have undertaken to:

  • Affirm the need for a co-operative and inclusive approach, based on dialogue, in the supervision process to assist States in the execution of the Court’s judgments;

  • Scale up co-operation programmes to assist member States in the implementation of judgments, which may involve, as appropriate, States facing the same or similar issues in implementation, and increase synergy between the Department for the Execution of Judgments and the Council of Europe co-operation programmes;

  • Call for greater synergy between Council of Europe monitoring and advisory bodies, the Department for the Execution of Judgments and other relevant Council of Europe departments, as appropriate, to facilitate the exchange of good practice and expertise among member States, and underline the importance of holding an annual meeting with national co-ordinators for the execution of judgments and the Department for the Execution of Judgments;

  • Call for a strengthening of the institutional dialogue between the Court and the Committee of Ministers on general issues related to the execution of judgments;

  • Invite the President of the Committee of Ministers, the Secretary General, the President of the Parliamentary Assembly and the President of the Congress of Local and Regional Authorities to strengthen their political dialogue with their respective national interlocutors on the implementation of judgments;

  • Invite national authorities, as appropriate, to strengthen co-operation with local and regional authorities in order to facilitate the process of executing the judgments which concern them;

  • Call for a strengthening of political dialogue in the event of difficulties in the implementation of judgments and encourage the participation of high-level representatives from the respondent State;

  • Call on the Committee of Ministers to continue their work enhancing the tools available in the supervision of the execution of judgments with clear and predictable, gradual steps in the event of non-execution or persistent refusal to execute the final judgments of the Court, in an appropriate and flexible way, that takes into account the specificities of each case.

We are glad to see the renewed commitment of the Council of Europe to the implementation of judgments of the European Court of Human Rights. Many of these undertakings are in line with EIN’s proposals in its call for Reforms to Improve the Implementation of Judgments of the European Court of Human Rights in view of the Fourth Summit. EIN will closely monitor the execution of these important undertakings and put the expertise of its network at the disposal of all relevant stakeholders to advance the full, timely and effective implementation of ECtHR judgments. 

Trapped between the ECHR and the UN CRPD: how both the non-implementation and the implementation of ECtHR judgments concerning mental disability risk prolonging an invisible human rights crisis

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by Ioana Iliescu, EIN Law and Advocacy Officer

Introduction

Leading judgments of the European Court of Human Rights (“the Court”) concerning psychiatry and mental health have proven to be one of the most challenging systemic human rights issues to address. Their implementation requires political will, national capacity, a high amount of financial and human resources, as well as overcoming stigma and achieving a paradigm shift at societal level.

Romania has thirteen leading judgments pending implementation before the Committee of Ministers which concern psychiatry and mental health, by far the most of all Council of Europe states on this thematic. In June 2023, the Committee of Ministers will examine six of these cases, which concern issues ranging from, inter alia, the need for an independent and effective system of legal protection for vulnerable adults, overcrowding and poor material conditions in psychiatric hospitals and the lack of safeguards for involuntary placement in psychiatric hospitals. The fact that the Committee of Ministers is taking a strong interest in these cases is highly welcome, especially at a time when the Parliamentary Assembly of the Council of Europe and the Council of Europe Development Bank have also been active in addressing underlying causes of coercive practices in mental health settings.

This blog post mainly addresses the issues pertaining to the Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, Parascineti v. Romania and Cristian Teodorescu v. Romania judgments, but the approach proposed herein is relevant for alleviating issues in the other disability judgments as well.

Photo by Andy Li on Unsplash

There is a serious humanitarian problem with regard to the respect and protection of the rights of persons with mental disabilities living in institutional settings in Romania. This blog argues that the only effective way to address the problems identified in these judgments is through a human rights-based approach to disability, which includes the creation of proper community-based care services available for persons with disabilities, and de-institutionalization. This is required by the UN Convention on the Rights of Persons with Disabilities (UN CRPD). However, in previous instances concerning similar issues, the Committee of Ministers has encouraged the creation of “medical residential centers” and the direction of a ‘deinstitutionalization’ strategy in Bulgaria which is faulty. The latter has been highly criticized for being contrary to the UN CRPD, as it moves people from large institutions to smaller buildings. This approach is both unnecessary and harmful. The Committee of Ministers should take into account the human-rights based approach prescribed by the UN CRPD in such cases, in order to ensure the development of effective long-term solutions to these systemic problems.

A serious, invisible humanitarian issue: persons with disabilities in mental health institutions

Persons with mental disabilities living in institutional settings in Romania do not have sufficient access to justice to lodge numerous (or even few) applications before the Court, although the human rights violations they face are systematic, wide-ranging, and affect approx. 30 000 people in Romania[i]. They are subjected to ill-treatment, medical neglect, and abuse; they live in overcrowded, poor material conditions of detention. They are placed in institutions by their legal guardians or the state, with whom they are often in a conflict of interest or have never met. When they are voluntarily committed, it is mainly due to a lack of alternative options in the community. Even if they want to leave mental health institutions, they are pressured and manipulated to remain. They are unable or afraid to complain, as they are fully dependent on the staff and management of the institutions where they are placed. Nils Muiznieks, former Council of Europe Commissioner for Human Rights, in his 2014 address to the PACE Committee on Equality and Non-Discrimination explained: „Many who could otherwise function in the community without a great deal of support have become unable or afraid to leave these institutions, because they have known nothing else” and this pattern “cultivates a feeling of helplessness; (…) erodes one’s confidence in one’s ability to make choices; (…) deprive(s) people of life experiences and skills needed to build up autonomy and identity”.

When supervising and implementing these judgments, consideration must be given to this vicious circle which defines life in mental health institutions[ii], and the web of underlying shortcomings which help cause it.

The need for a human-rights based approach to disability: community-based living and treatment alternatives as prerequisites to effective long-term solutions

A major underlying factor causing pressure on the psychiatric and social care system in Romania, leading to these violations, is the lack of alternative community-based mental health and social care services for persons with mental disabilities, including the lack of alternative living options. When such services and alternatives are unavailable, the only resort becomes placement in psychiatric hospitals and social care homes. However, according to the Court’s rulings, the deprivation of liberty of persons with mental disabilities is unlawful when compulsory confinement is not warranted (Stanev v. Bulgaria [GC], 2012, § 145). This is also problematic under other instruments of the Council of Europe and contrary to the standards of the UN Convention on the Rights of Persons with Disabilities. Compulsory psychiatric confinement (both de facto and de jure) cannot be warranted when it is caused by a lack of community services and alternatives. The overabundance of placement measures, due to lack of alternatives, leads to pressure on the mental health system, overloading it and giving way to violations.

Several practices, some of which have already been identified in previous CM-DH notes in the Cristian Teodorescu v. Romania case, contribute to the perpetuation of unlawful deprivation of liberty in psychiatric hospitals and the ‘system overload’: voluntary patients are de facto involuntarily detained, without the necessary legal safeguards; patients who do not require psychiatric treatment but do not have families or suitable accommodation in social care facilities remain under involuntary placements; persons with intellectual disabilities are subjected to involuntary placements in forensic psychiatric confinement (as a security measure), despite the fact there is no case for recovery from intellectual disabilities.  Such practices could be avoided if effective community-based alternatives existed.

Furthermore, the overcrowding caused by excessive unnecessary placements, and insufficient staffing, taken together, diminish the capacity of psychiatric hospitals to abide by the legal provisions and respect legal safeguards concerning placements and periodic, timely reviews.

With regard to the new legal framework suited to the specific needs of people with mental disabilities[iii], which pertains to the implementation of the Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania judgment, alternative, community-based mental health and social care services are essential to ensure the effectiveness of this reform. The Romanian government, in their latest communication, discussed the new legislation on supporting the de-institutionalization process for adults with disabilities; the implementation of this law is key in ensuring the efficiency of the legal framework which is meant to provide a tailor-made responses for the independent representation of persons with disabilities. In addition, the judiciary gives weight to the living situation and independent life skills of persons with mental disabilities when assessing requests to vacate guardianship and determine protection measures.

Addressing the overcrowding and living conditions of detention in psychiatric hospitals, overcoming the deficiencies in the care of persons with mental disabilities in institutions, ensuring the efficiency of the reform on representation for persons with mental disabilities and putting an end to the practice of unlawful involuntary placements: these are all directly dependent on the creation of effective alternative community-based mental health and social care services, including living alternatives. Without these, the same paternalistic approach, the same prejudices, stigma and mentality, and the same human rights violations will continue to occur.

Concerns about the Committee of Ministers’ previous approach in disability cases validating trans-institutionalization

The Committee of Ministers is not legally bound to apply other human rights instruments which grant higher protection than the European Convention of Human Rights. This had led to a discrepancy between the standards of the UN CRPD and the jurisprudence of the Committee of Ministers in two Bulgarian judgments concerning psychiatry and mental health, which are pending implementation. For example, in Nencheva and others v. Bulgaria, the Committee “invited the authorities to finalise without delay the creation of 20 new medical residential centres”, while in Stanev v. Bulgaria, the Committee referred to measures adopted by the authorities, which “go in the right direction”.

This type of approach on the part of the Committee of Ministers may be seen as encouraging measures which help perpetuate institutionalization. The building of 20 new residential centers means that these institutions will be occupied for years by generations of children with mental disabilities, who will remain at-risk in institutional settings, rather than living in family-type settings as is their right.

As regards Bulgaria’s deinstitutionalization strategy, civil society, the UN and the Council of Europe itself have raised continuous concerns about the way Bulgaria is carrying out its’ deinstitutionalization strategy, by investing in the building of small institutions, and essentially moving residents from large buildings to smaller buildings. This tokenistic approach keeps people in institutions, unseen in society, and ensures that the same patterns continue, as the new institutions are built. Despite these concerns, the Committee of Ministers has stated the measures taken by Bulgaria “go in the right direction”, which, in the light of these criticisms, may raise objections from other human rights actors.

Positive developments in the Committee of Ministers’ jurisprudence in disability cases

On the positive side, in the Stanev v. Bulgaria case, in March 2023, the Committee did question the effectiveness of building new family type-homes in remote locations, where qualified staff and services are hard to come by. However, while the importance of location and qualified staff is undeniable, the creation of small new institutions remains a measure that violates the UN CRPD because it perpetuates institutionalization, even when these two key factors are addressed.

Another important positive development in the Stanev case, was that, in March 2023, the Committee also noted the importance of availability of social services when establishing new facilities in communities.

The scope of implementation of the key Romanian leading cases on psychiatry and mental health is not identical with the Bulgarian ones[iv]. This means that it is unlikely that the Committee of Ministers would comment on how Romania is conducting its’ deinstitutionalization strategy, but it should still address the importance of proper deinstitutionalization and alternative community-based treatment and social services. In any case, the lessons learned above remain relevant in both national contexts.

Conclusion

There is a gap between the standards of the UN CRPD and the standards of the European Court of Human Rights, the latter being more lax when it comes to using coercive measures against people with mental disabilities[v]. Neither the right to liberty and security, nor the right to live independently and be included in the community (while not protected by the European Convention of Human Rights and thus not directly relevant for the supervision mandate of the Committee of Ministers), can be respected if persons with mental disabilities are subjected to institutionalization and deprivation of liberty based on their disability.

Clearly, implementation measures concerning psychiatry and mental health must remain within the scope of the judgement. Even when the scope of the case is narrow, these measures should not contravene other relevant international human rights instruments, such as the UN CRPD. At the same time, the scope must be seen and interpreted both in the letter and in the spirit of the law: the validation of formalistic measures which slow down the process of fulfilling other social rights, guaranteed by other human rights instruments, should be avoided.

Furthermore, while the wording of the judgments pending implementation against Romania does not explicitly dictate the need for alternative community-based mental health and social care services in order to address the issues in these judgments, their upcoming examination presents an opportunity for the Committee to develop its’ jurisprudence with a well-rounded approach and understanding of the circularity of human rights violations which defines the lives of many persons with mental disabilities living in psychiatric hospitals and social care homes, who need independent and effective representation, and the real causes behind these systemic issues. In order to ensure the development of effective long-term solutions to these systemic problems, the Committee should align its’ approach with the UN CRPD, rather than take a strictly formalistic approach based only on the wording of the ECtHR judgment. 

Without alternative, community-based mental health and social care services, people with mental disabilities will remain trapped in unescapable patterns of human rights violations.

Footnotes

[i] According to statistics by the National Authorities for the Rights of Persons with Disabilities, on 31.12.2022, 16 418 persons with disabilities were institutionalized. According to the data from the Romanian Ministry of Health there are 16,073 psychiatric beds nationwide, out of which 8841 are in chronic wards.

[ii] This vicious circle is portrayed by the Gorbatyuk v. Ukraine case, which concerned the applicant’s impossibility to secure a review of her legal capacity. Before applying to the Court, she was living independently and working. Following the delivery of the ECtHR judgment, she was institutionalized by her guardian (the same one she had tried to have removed), and her state of health has severely deteriorated. The authorities have not paid just satisfaction to her, and her right to claim compensation has expired. She now remains under a conflict-of-interest legal guardianship, unable to claim compensation, unable to challenge the guardianship, deprived of liberty, living in an institution.

[iii] Relevant in the implementation of the Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania judgment; see the Romanian government’s updated communication on general measures, provided on 22 March 2023 (DH-DD(2023)354-rev).

[iv] For example, the Stanev v. Bulgaria cases concerns (inter alia) the unlawful placement in social care homes and the lack of judicial review, while the Romanian cases concern: the unlawful placement in psychiatric hospitals (Cristian Teodorescu v. Romania), the deficiencies in the legal protection and medical and social care afforded to vulnerable persons and the lack of safeguards and remedies regarding placement in both residential social care facilities and psychiatric hospitals (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania).

[v] The Council of Europe itself has been criticized for promoting legislation on coercive mental health measures in Europe (through the draft Additional Protocol to the Oviedo Convention) by the Working Group on Arbitrary Detention; the Special Rapporteur on the rights of persons with disabilities; the Chair of the Committee on the Rights of Person with Disabilities and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN experts and international civil society: https://rm.coe.int/letter-un-bodies-to-sg/16808e5e28; https://www.hrw.org/news/2020/11/04/what-does-council-europe-have-against-people-disabilities ; https://news.un.org/en/story/2021/05/1092982

EIN saddened by the loss of Jean-Paul Costa

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In the course of a distinguished legal career, Jean-Paul Costa was appointed as a judge at the European Court of Human Rights in 1998. He served as the Court’s President between 2007 and his retirement from the Court in 2011.

After stepping down from his role at the Court, Mr Costa remained active in the human rights field. In particular, he became President of the René-Cassin Foundation, a human rights organisation based next to the European Court of Human Rights in Strasbourg. It was in this capacity that his work crossed paths with EIN. In 2017 Mr Costa was instrumental in arranging for EIN to occupy an office space in the building of the René-Cassin Foundation. EIN had just been created: it was short of funding and had no base. The establishment of the EIN office in a key location, for an affordable rent, was therefore hugely beneficial for us a young network. EIN was extremely grateful to Mr Costa for this gesture, as well as his warm support over the following years.

Jean-Paul Costa died on Thursday 27 April, aged 81. EIN is saddened by the loss of a tireless defender of human rights.

You can read more about the life of Jean-Paul Costa and his contribution to the protection of human rights across Europe here.