Ministers’ Deputies

CM Documents

CM/AS(2007)Quest490-prov      10 January 2007[1]

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984 Meeting, 17 January 2007
3 Parliamentary Assembly

3.1a Written Question No. 490 to the Committee of Ministers by Mrs Oskina: “Pressure exercised by States on the European Court of Human Rights applicants”

Draft Reply by the Committee of Ministers

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Question:

Since 1998, Natalia Zakharova, a Russian national living in France, has been separated from her daughter Maria, born to her marriage with French national Patrick Ouary in 1995. After their divorce, French judicial authorities placed Masha, against her mother’s will, into an adoptive family where the girl has been staying since. The mother is allowed to see her child only once every three weeks within the premises of the social service in the presence of a supervisor.

Considering the taking away of a child as a grave violation of her human rights, Natalia Zakharova, in despair to find justice in France, applied to the European Court of Human Rights. That application resulted in French authorities’ immediate sanctions: a criminal case was fabricated against her on the charge of an attempt of arson of her former husband’s house. On this ground, a preventive measure (contrôle judiciaire) has been applied to Mrs. Zakharova, prohibiting her to leave her place of residence and obliging her to weekly appear at the police office.

In November 2005, when the Zakharova case was under consideration by the European Court of Human Rights, her criminal case was forwarded to a French court, one of the charges being that her story had become known to the media, thus damaging France’s image.

It is absolutely evident that we are dealing with flagrant attempts to intimidate and exercise pressure on an European Court of Human Rights applicant defending her rights.

Considering the right to individual application to the Court and to fair trial as one of the main achievements of the Council of Europe’s 50-year existence, Mrs. Vera Oskina asks the Committee of Ministers:

-           what mechanisms are at the Committee of Ministers’ disposal in order to put an end to pressure exercised by States on European Court of Human Rights applicants;

-           what specific steps does the Committee of Ministers intend to take in order to protect Natalia Zakharova from the French authorities’ persecution with regard to her application to the European Court of Human Rights;

-           whether, in particular, the Committee of Ministers or its Chairperson intend to officially address the French authorities, expressing the Council of Europe’s concern over the situation;

-           whether the Committee of Ministers intends to bring the case of Natalia Zakharova to the attention of the Commissioner for Human Rights so that he offers her necessary assistance, including in the Court proceedings.

Draft reply:

1.         The Committee of Ministers has carefully examined Written Question No. 490 by Mrs Oskina, and wishes to make the following points in reply.

2.         First, as regards the honourable parliamentarian’s enquiry as to the mechanisms available to prevent states from exerting pressure on applicants before the European Court of Human Rights, the Committee recalls that Article 34 of the European Convention on Human Rights provides, in fine, that “The High Contracting Parties undertake not to hinder in any way the effective exercise of this right” [i.e., the right of individual application]. In its judgments the European Court does not fail to point out violations of this Article, and in the context of its supervision of the execution of the Court’s judgments, the Committee of Ministers pays great attention to the adoption of preventive measures with regard to such violations which clearly defy the spirit of the European human rights protection system.

3.         Secondly, with regard to the specific situation of Ms Zakharova and the alleged interferences with her application before the European Court, the Committee of Ministers wishes to point out that it is not in a position to determine the truth in a controversial matter. Accordingly it will not comment on the merits of the allegations made by Ms Oskina.  It nonetheless notes that in her application No. 57306/00, Ms Zakharova made no complaint in this respect.

4.         As to the question of whether it intends officially to address the French authorities, the Committee recalls that this has been done implicitly in the process of elaborating the present reply, and the French government has submitted detailed information concerning the situation of Ms Zakharova and her daughter. The Committee also recalls that the terms of reference of the Council of Europe Commissioner for Human Rights specifically exclude his taking up individual cases, and in addition Ms Zakharova’s application to the European Court was declared inadmissible.

5.         The Committee notes that, in the framework of the proceedings of the European Court, the government of the Russian Federation, informed by the Registrar of its right to intervene (Article 36§1 and 44§1 of the rules), indicated by letter dated 13 September 2004 that it did not intend to avail itself of that right.

6.         Finally, the Committee notes that the Court, in an amply reasoned decision, observed with regard to the fact that the applicant’s daughter (“M.”) was kept in care, that in December 1998, it was noticeable that M. presented serious behavioural disturbances and alarming symptoms. These faded gradually after she was placed in care. The judicial authorities commissioned regular medical and psychological observations as well as social investigations which established that the fact of being in care was beneficial to her development and that contact with her parents was sometimes to some extent a cause of regression.

7.         The Court also took the view that the reasons put forward by the domestic courts in support of their decisions to concerning M’s placement in care were adequate in the light of the interest of the child which comes before all other considerations in cases of this kind.