CONTENTS

A. General items

B. Examination of cases – Proposals from the Chair

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

1

12

MANUSHAQE PUTO AND OTHERS

DRIZA GROUP

ALBANIA

17/12/2012

02/06/2008

Non-enforcement of final domestic court and administrative decisions relating to the applicants’ right to restitution or compensation (whether pecuniary or in kind) for property nationalised under the communist regime (violation of articles 6§1, 1, Protocol No.1 and 13).

The Court, in the pilot judgment Manushaqe Puto and others, requested the setting-up of an effective compensation mechanism before 17 June 2014.

Express serious concern with the lack of adequate progress in setting-up of an effective compensation mechanism, despite the Committee’s repeated requests, the last being made in the Interim Resolution CM/ResDH(2013)115, and despite the approaching deadline set by the Court for the implementation of the Manushaqe Puto judgment.

1172nd meeting

June 2013

2

14

MINASYAN AND SEMERJYAN GROUP

ARMENIA

23/09/2009

Violations of the applicants' right to peaceful enjoyment of their possessions due to the expropriation of their flats or the deprivation of their right to use of flats under conditions that are not prescribed by law (Article 1 of Protocol No. 1).

Follow-up to the decision taken at the 1172nd meeting.

1172nd meeting

June 2013

3

16

MAHMUDOV AND AGAZADE GROUP

AZERBAIJAN

18/03/2009

Violation of right to freedom of expression.

Follow-up to the decision taken at the 1179th meeting.

1179th meeting

September 2013

4

19

NAMAT ALIYEV GROUP

AZERBAIJAN

08/07/2010

Various irregularities in the context of the 2005 elections and lack of safeguards against arbitrariness.

Follow-up to the decision adopted at the 1179th meeting.

1179th meeting

September 2013

5

22

M.S.S.

BELGIUM AND GREECE

21/01/2011

Expulsion of an asylum seeker from Belgium to Greece.

Follow-up to the decision adopted at the 1164th meeting

1164th meeting

March 2013

6

25

SEJDIĆ AND FINCI

BOSNIA AND HERZEGOVINA

22/12/2009

Violation of the right to free elections and discrimination against minorities.

Follow-up to the decision adopted at the 1179th meeting.

1179th meeting

September 2013

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

7

27

MAKTOUF AND DAMJANOVIĆ

BOSNIA AND HERZEGOVINA

18/07/2013

Violation of the rule of non-retroactivity of punishments in war crimes cases (violations of Article 7).

Examination of the action plan.

New judgment

8

29

UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS GROUP

BULGARIA

19/04/2006

Infringement of the freedom of association of an organisation which aims to achieve "the recognition of the Macedonian minority in Bulgaria" - refusals to register their association in 1998-99 and 2002-04, based on considerations of national security (alleged separatist ideas) when the applicants had not hinted at any intention to use violence or other undemocratic means to achieve their aims, as well as on the constitutional prohibition for associations to pursue political goals (violation of Art. 11).

Assessment of the status of execution and transfer from standard to enhanced supervision procedure.

1100th meeting

(December 2010, p. 58)

9

32

D.H. AND OTHERS

CZECH REPUBLIC

13/11/2007

Discrimination in the enjoyment of the applicants’ right to education due to their assignment to special schools (schools for children with special needs including those suffering from a mental or social handicap) between 1996 and 1999, on account of their Roma origin (violation of Article 14 in conjunction with Article 2 of Protocol No. 1).

Assessment of the information provided in June and October 2013 concerning the implementation of the consolidated action plan of the Czech authorities.

1157th meeting

December 2012

10

35

BEKIR-OUSTA AND OTHERS GROUP

GREECE

11/01/2008

Violation of the right to freedom of association.

Follow-up to the decision adopted at the 1172nd meeting.

1172nd meeting

June 2013

11

38

- MICHELIOUDAKIS,

- DIAMANTIDES No. 2 GROUP,

- GLYKANTZI

- KONTI-ARVANITI GROUP

GREECE

03/07/2012

19/08/2005

30/01/2013

10/07/2003

Excessive length of criminal (Michelioudakis case) and civil (Glykantzi case) proceedings and lack of an effective remedy (pilot judgments) (deadline expires on 30/01/2014).

Follow-up to the decision adopted at the 1179th meeting.

1179th meeting

September 2013

12

41

CIORAP GROUP

BECCIEV GROUP

PALADI GROUP

REPUBLIC OF MOLDOVA

19/09/2007

Cases mainly concerning poor material conditions of detention, including lack of adequate access to medical care, and lack of effective remedies (Articles 3 + 13), as well as the non-compliance with an interim measure on medical assistance (Article 34).

Taking stock of the recent information provided by the Moldovan authorities.

1100th meeting

(December 2010, pp. 215, 224, 225)

13

46

LINDHEIM AND OTHERS

NORWAY

22/10/2012

Violation of lessors' right of property due to a statutory provision allowing lessees to claim the indefinite extension of certain long lease contracts on unchanged conditions with the result that rent due bears no relation to the actual value of the land (Article 1 of Protocol No. 1)

Assessment of the measures reported so far.

First examination

14

48

GRZELAK

POLAND

22/11/2010

Discrimination against a non-believer pupil, due to the absence of a mark for “religion/ethics” in consequent of the failure to provide alternative ethics classes.

Evaluation of progress made and identification of outstanding questions.

First examination

15

50

GEORGEL AND GEORGETA STOICESCU

ROMANIA

26/10/2011

Failure by the authorities to protect the physical and psychological integrity of the applicant, attacked by a pack of stray dogs in Bucharest, in 2000 (violation of Article 8); Lack of access to court in particular in view of the dismissal of the applicant’s civil case without an examination on the merits, on the ground that she had failed to identify the authority against which she should have brought her claim (violation of Article 6§1).

Assessment of the status of execution on the basis of the revised action plan submitted by the authorities on 08/10/2013.

First examination

16

52

CATAN AND OTHERS

RUSSIAN FEDERATION[1]

19/10/2012

Violation of the right to education concerning children and parents from Moldovan/Romanian language schools in the Transdniestrian region of the Republic of Moldova (violation of Article 2 of Protocol No. 1 by the Russian Federation).

To urge the Russian authorities to provide rapidly relevant information, in the form of an action plan or action report.

First examination

17

53

GRUDIĆ

SERBIA

24/09/2012

Violation of the applicants’ right to peaceful enjoyment of their possession since the payment of their pensions earned in Kosovo* was suspended for more than a decade in breach of the relevant domestic law.

The new deadline set by the Court for taking the necessary measures expired on 24/09/2013.

Follow-up to the decision adopted at the 1179th meeting.

1179th meeting

September 2013

18

55

KURIĆ AND OTHERS

SLOVENIA

26/06/2012

Violation of the right to private and family life following the “erasure” of the resident status of an entire category of former citizens of Socialist Federal Republic of Yugoslavia at the time of Slovenia’s declaration of independence.

The deadline set by the Court to introduce a compensation scheme expired on 26/06/2013.

Follow-up to the decision adopted at the 1179th meeting.

1179th meeting

September 2013

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

19

58

DEL RÍO PRADA

SPAIN

21/10/2013

Retrospective application of a new precedent of the Supreme Court (known as the “Parot doctrine”) which was not foreseeable for the applicant - who was serving a sentence following multiple convictions - and which had the effect of refusing her early release (violations of Articles 7 and 5§1).

Assessment of the information provided on 31 October and 15 November 2013 and classification

New judgment

20

61

63

- CYPRUS AGAINST TURKEY

- VARNAVA

TURKEY

10/05/2001

18/09/2009

14 violations in relation to the situation in the northern part of Cyprus.

Lack of effective investigation on the fate of nine Greek Cypriot who disappeared during the military operations by Turkey in Cyprus in 1974.

Continuation of the debate on the missing persons, in accordance with the decision adopted at the 1164th meeting (March 2013).

Examination of the issue of payment of the just satisfaction in the Varnava case.

1172nd meeting

June 2013

1179th meeting

September 2013

21

65

YURIY NIKOLAYEVICH IVANOV

ZHOVNER

UKRAINE

15/01/2010

29/09/2004

Non-enforcement of domestic court decisions against the State or State owned enterprises (Art. 6§1 + 1 P1), pilot judgment, deadline expired in July 2011.

To take stock of the latest developments in the setting up of a domestic remedy.

1164th meeting

March 2013

22

68

OLEKSANDR VOLKOV

UKRAINE

27/05/2013

Unlawful dismissal of the applicant from his post as judge at the Supreme Court (Articles 6 + 8).

Follow-up to the decision adopted at the 1179th meeting.

1179th meeting

September 2013

23

71

TYMOSHENKO

UKRAINE

30/07/2013

Restriction of liberty also for other reasons than those permissible under Article 5 (Article 18 in conjunction with Article 5).

Assessment of responses given by the Ukrainian authorities to the Committee’s requests in its last decision.

1179th meeting

September 2013

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

24

73

HIRST No. 2 GROUP

UNITED KINGDOM

06/10/2005

Blanket ban on voting imposed automatically on the applicants due to their status as convicted offenders detained in prison (violation of Article 3 of Protocol No. 1). Pilot judgment of 23/11/2010, Greens and M.T. (60041/08 and 60054/08, final on 11/04/2011).

Follow-up to the decision adopted at the 1179th meeting inviting the authorities to submit information on the proposed timescale for adoption of the legislative proposals.

1179th meeting

September 2013

Applications: 604/07, 33771/02

Judgments final on 17/12/2012, 02/06/2008

MANUSHAQE PUTO AND OTHERS

DRIZA GROUP

Enhanced procedure: pilot judgment, complex problem

Reference texts:

Interim Resolution CM/ResDH(2013)115

Information document CM/Inf/DH(2011)36

Memorandum on the individual measures H/Exec(2013)2

Letter from the Registry of the European Court (Manushaqe Puto and others) (11/01/2013) DH-DD(2013)29

Communications from Albania

Driza group and Manushaqe Puto and others (27/11/2013) DH-DD(2013)1290E, (30/08/2013)
DH-DD(2013)1008,

Action plan (general measures for the Driza group) (06/05/2011) DH-DD(2011)316

Information submitted on this group of cases which can be found on the web site of the Department for the Execution of Court’s judgments:
http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/ALB-Driza_fr.asp

Communications from NGOs

From Defending Property, Pursuing Justice (18/07/2013) DH-DD(2013)883 and reply by Albania
DH-DD(2013)1011

From "Pronësi me Drejtësi" Association (PDA) and "Bregdeti" Riveira Association (BA) and reply by Albania (May 2013) DH-DD(2013)600

Decision adopted at the 1172nd meeting (June 2013)

Case description: These cases concern the structural problem of failure to enforce final, domestic judicial and administrative decisions relating to the right of the applicants to restitution or compensation (whether pecuniary or in kind) for property nationalised under the communist regime (violations of Article 6§1 and Article 1 of Protocol No. 1) and the lack of an effective remedy in this respect (violations of Article 13). In view of the scale of the problem, the European Court delivered a pilot judgment in the Manushaqe Puto and others case (final on 17/12/2012) in which it requests the setting-up of an effective compensation mechanism within 18 months, namely before the 17 June 2014.

Other violations were also found in this group of cases: bailiffs' failure to secure enforcement of a Supreme Court decision, which recognised the applicants' property claim and ordered the occupiers to cease occupation of the untitled land (violation of Article 6§1, and of Article 1 of Protocol No. 1 in the case of Bushati); lack of legal certainty and lack of impartiality of the Supreme Court (violations of Article 6§1, in the case of Driza); excessive length of civil proceedings and lack of an effective remedy in this respect (violations of Articles 6§1 and 13, case of Gjonboçari and others).

Status of execution :

Individual measures: All individual measures have been adopted in the cases of Beshiri and others, Bushati and others, Hamzaraj (No. 1), Nuri, Ramadhi and five others, Vrioni and others and Caush Driza. In the case of Eltari, the Court reserved the question of the application of Article 41. In the cases of Manushaqe Puto and Delvina, the Court awarded a sum covering notably the pecuniary damage, the payment of which has not yet been confirmed. To date, several questions still remain open in the cases of Driza and Gjonboçari (for further details see the document H/Exec(2013)2).

General measures: In the framework of the supervision that it has been conducting since 2007 on the execution of this group of cases, the Committee has called on the Albanian authorities on many occasions to take rapidly all necessary measures, without further delay, to execute the numerous final domestic decisions concerning the rights over property nationalised during the communist regime. In order to encourage action from the authorities, the Committee identified with them, notably thanks to the support of the Human Rights Trust Fund, a series of general measures to be urgently adopted, to achieve the establishment of an effective compensation mechanism, namely:

•           the establishment of a list of final decisions,

•           the finalisation of the land valuation map,

•           and then, on the basis of these elements, the calculation of the cost of the execution of the decisions, in order to be able to define the resources needed, to adopt the final execution mechanism, and to execute – at the initiative of the authorities – the decisions in question, by adopting a step by step approach.

(See, in particular, the decision adopted in June 2012 at the 1144th meeting).

Having regard to the persistent ineffectiveness of the existing compensation mechanism, as well as the need to urgently grant the applicants appropriate and rapid damages at the national level, the European Court considered it necessary to apply the pilot judgment procedure in the case of Manushaqe Puto and others and set an 18 month deadline for the Albanian authorities to put in place an effective compensation mechanism. This deadline expires on 17 June 2014. The pilot judgment confirms the decisions which have been adopted by the Committee since its 1144th meeting, including the requirement to take rapid measures.

To date, only one of the measures identified as essential by the Committee and the European Court has been adopted: the finalisation of the land valuation map. Incomplete lists of decisions have been compiled, but the Committee has not yet received any precise information on the number of final administrative decisions to execute, the cost of the execution of all relevant decisions, the resources required, information which is indispensable for adopting a final and viable execution mechanism.

At its last examination (1172nd meeting, June 2013), the Committee adopted an interim resolution (CM/ResDH(2013)115) to stimulate the national execution process of this group of cases. In this interim resolution, the Committee called on the Albanian authorities, at the highest level, to give the highest priority to the preparation of an action plan capable of establishing, within the deadline set by the European Court, an effective compensation mechanism, which takes account of the measures already identified with the support of the Committee.

The general measures required in the case of Gjonboçari to remedy the excessive length of civil proceedings and the lack of an effective remedy are examined in the context of the Marini case (3738/02).

Application

Case

Judgment of

Final on

604/07+

MANUSHAQE PUTO AND OTHERS

31/07/2012

17/12/2012

DRIZA GROUP

33771/02

DRIZA

13/11/2007

02/06/2008

7352/03

BESHIRI AND OTHERS

22/08/2006

12/02/2007

6397/04

BUSHATI AND OTHERS

08/12/2009

14/02/2012

08/03/2010

14/05/2012

10810/05

CAUSH DRIZA

15/03/2011

15/06/2011

49106/06

DELVINA

08/03/2011

21/05/2013

08/06/2011

07/10/2013

16530/06

ELTARI

08/03/2011

15/09/2011

10508/02

GJONBOÇARI AND OTHERS

23/10/2007

31/03/2008

45264/04

HAMZARAJ No.1

03/02/2009

06/07/2009

12306/04

NURI

03/02/2009

06/07/2009

38222/02

RAMADHI AND 5 OTHERS

13/11/2007

02/06/2008

35720/04+

VRIONI AND OTHERS^[2]

29/09/20090

7/12/2010

29/12/2009

11/04/2011

Application: 23/06/2009

Judgment final on: 23/09/2009

MINASYAN AND SEMERJYAN GROUP

Enhanced procedure: Complex problem

Reference texts:

Action report (21/05/2013) DH-DD(2013)583

Communication from the applicants' representative (30/05/2013) (Tunyan and others) DH-DD(2013)631

Decision adopted at the 1172nd meeting (June 2013)

Case description:

Violation of the right to peaceful enjoyment of possessions due to unlawful deprivation, by domestic courts, of property, under conditions that were not prescribed by law but only by governmental decrees, during an expropriation process for the purpose of implementing State construction projects in the centre of Yerevan.

Similar violation of the right of accommodation (recognised as a special property right under Armenian law where accorded by owners and registered with the authorities), as the Court noted that this right was terminated in the context of above-mentioned expropriation proceedings in an unforeseeable and arbitrary manner by domestic courts through reliance on legal rules which were not applicable to this kind of situation.

Status of execution: Individual measures: The Article 41 judgments in the Minasyan and Semerjyan and Hovhannisyan and Shiroyan cases were delivered respectively on 07/06/2011 and on 15/11/2011. Noting that restitutio in integrum was not possible due to the demolition of the respective flats, the Court considered that the most appropriate and fair solution would be to award the applicants the probable value of their share in the flat at the material time converted to current value to offset the effects of inflation.

The same approach was followed in the recent judgments in the cases of Danielyan and others and Tunyan and others. The just satisfaction awarded was paid in all cases (including default interest in the Tunyan case, see DH-DD(2013)631).

General measures: At their 1172nd meeting (June 2013), the Deputies took note of the action report provided by the Armenian authorities on 21/05/2013 for the execution of this group of cases and instructed the Secretariat to present a detailed assessment of the said action report.

Application

Case

Judgment of

Final on

27651/05

MINASYAN AND SEMERJYAN

23/06/2009

07/06/2011

23/09/2009

07/09/2011

5065/06

HOVHANNISYAN AND SHIROYAN

20/07/2010

15/11/2011

20/10/2010

15/02/2012

13916/06

YERANOSYAN AND OTHERS

20/07/2010

20/10/2010

25825/05

DANIELYAN AND OTHERS

09/10/2012

09/01/2013

22812/05

TUNYAN AND OTHERS

09/10/2012

11/02/2013

Application: 35877/04

Judgment final on 18/03/2009

MAHMUDOV AND AGAZADE GROUP

Enhanced procedure: Complex problem

Reference texts:

Interim Resolution CM/ResDH(2013)199

Information document CM/Inf/DH(2011)7

Information submitted on this group of cases which can be found on the web site of the Department for the Execution of Court’s judgments:
http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/AZE-ai2_en.asp

Communication from Azerbaijan (27/11/2013) DH-DD(2013)1293E

Draft Law on Protection from Defamation CDL-REF(2013)022 submitted to the Venice Commission

Opinion 692/2012 of the Venice Commission on the Draft Law on Protection from Defamation and other Legislative Provisions Regulating the Protection from Defamation in the Republic of Azerbaijan (14/10/2013)

CDL-AD(2013)024

Communication from NGOs (Media Rights Institute and Helsinki Foundation for Human rights) (07/11/2013)
DH-DD(2013)1292E

Decision adopted at the 1179th meeting (September 2013)

Case description: Violations of the right to freedom of expression (violations of Article 10) of the applicants, journalists, due in particular to (in both cases) unjustified use of imprisonment as a sanction for defamation (the Court found no special circumstances justifying such a sanction, such as incitement to violence or racial hatred, in any of the cases) and (in Fatullayev case) also insufficient reasons invoked to justify defamation as regards some statements and arbitrary application of anti-terror legislation to sanction other subsequent statements.

The Fatullayev case also concerns violations of the right to an impartial tribunal as the judge in the first defamation case had already found against the applicant in a civil defamation case based on the same statements (violation of Article 6§1); declarations made by the public prosecutor in the case related to the application of the anti-terror legislation disrespected the presumption of innocence of the applicant (violation of Article 6§2).

In the first case, the applicants never served their prison sentences as a result of an amnesty; in the Fatullayev case the applicant was still serving his eight-year prison sentence when the Court's judgment was delivered and the Court accordingly ordered his immediate release.

Status of execution: Individual measures: The individual measures in these two cases were closed at the 1128th meeting (November-December 2011).

General measures: The Committee considered that the execution of these judgments required mainly three main sets of measures to be taken by the Azerbaijani authorities (see previous summaries of the status of execution, in particular the Order of Business of the 1172nd and 1179th meetings).

            1)         Legislative measures

The Azerbaijani authorities informed the Committee that they were in the process of preparing a law on defamation which, in their opinion, would prevent similar violations of the Convention in the future. The authorities also took the initiative to request the assistance of the Venice Commission in drafting this piece of legislation (see DH-DD(2012)1002). The Committee welcomed this cooperation and requested to be regularly informed of all the developments regarding the preparation and adoption of the draft law.

However, while the process with the Venice Commission was on-going, it was brought to the Committee’s attention that on 14 May 2013, the Parliament of Azerbaijan had adopted legislative amendments to the Criminal Code. These amendments impose criminal penalties for defamation and insult on the Internet. In their written submission of 29/05/2013 (DH-DD(2013)619), the Azerbaijani authorities explained that these amendments have been introduced in order to provide private individuals with legal protection against libel and insult on the Internet but will not affect the cooperation with the Venice Commission. On 4 June 2013, the President of Azerbaijan signed the amendments to the Criminal Code, which entered into force.

At the 1172nd meeting, held 4-6 June 2013, the Committee deeply regretted that these amendments had been adopted while the cooperation with the Venice Commission was on-going. Against this background, the Committee urged the authorities to fully cooperate with the Venice Commission and expressed confidence that this cooperation would cover all relevant provisions pertaining to defamation in Azerbaijan.

In the absence of any progress in the drafting of the amendments to the law on defamation required by the present judgments and in the absence of any information in response to the Committee’s repeated calls to receive further information, the Committee adopted Interim Resolution CM/ResDH(2013)199 at its 1179th meeting (September 2013), reiterating its regret that the amendments had been adopted while the cooperation process with the Venice Commission was underway and noting that consultation could have facilitated the adoption of legislative measures contributing to the execution of the present judgments. The Committee strongly urged the authorities of Azerbaijan to take, without any further delay, all necessary measures with a view to aligning the relevant legislation pertaining to defamation and its implementation with the Convention requirements as interpreted by the Court’s case law.

            2)         Measures required to prevent the arbitrary application of the legislation

In the above-mentioned interim resolution, the Committee of Ministers also called upon the authorities to provide without any further delay tangible information on the measures taken or envisaged to guarantee a non-arbitrary application of the legislation by the domestic courts.

3)         Measures required to prevent violations of Article 6 §§1 and 2 similar to those found in the case Fatullayev

In the above-mentioned interim resolution, the Committee of Ministers further called upon the authorities to provide without any further delay tangible information on the measures taken or envisaged to ensure the right to an impartial tribunal as well as the respect of the presumption of innocence.

So far no information has been received from the Azerbaijani authorities in response to the above Interim resolution.

The Venice Commission adopted its Opinion on the Legislation pertaining to the protection against defamation at its 96th Plenary on 11-12 October 2013.

Application

Case

Judgment of

Final on

35877/04

MAHMUDOV AND AGAZADE

18/12/2008

18/03/2009

40984/07

FATULLAYEV

22/04/2010

4/10/2010

Application: 18705/06

Judgment final on 08/07/2010

NAMAT ALIYEV GROUP

Enhanced procedure: Complex problem

Reference texts:

Communication from Azerbaijan (02/12/2013) DH-DD(2013)1306E

Action plan (Nadir Orujov case) (04/07/2013) DH-DD(2013)822

National Program for Action to raise effectiveness of the Protection of Human Rights and Freedoms in the Republic of Azerbaijan (27/12/2011) DH-DD(2012)260

Action plan (Khanhuseyn Aliyev case) (03/10/2012) DH-DD(2013)821

Communication from the applicant (10/09/2012) (Kerimova case) DH-DD(2013)823

Joint opinion on the proposed amendments at the Electoral Code of the Republic of Azerbaijan by the Venice Commission and OSCE/ODIHR, adopted by the Venice Commission at its 75th plenary session (13-14 June 2008), doc CDL-AD(2008)011

Parliamentary Assembly, Resolution 1917(2013) “The honouring of obligations and commitments by Azerbaijan” and report by the Monitoring Committee (Doc. 13084)

Communication from a NGO (Legal Education Society - HMC) (25/09/2013) (Abil, Khanhuseyn and Atakishi) DH-DD(2013)1125

Decision adopted at the 1179th meeting (September 2013)

Case description: These cases concern various violations of the right to free elections (Article 3 of Protocol No. 1) of the applicants (members of the opposition parties or independent candidates) in that the electoral commissions and the courts have in an arbitrary manner and without motivation and / or through procedures that did not afford safeguards against arbitrariness:

-           rejected complaints regarding irregularities or breaches of electoral law (case Namat Aliyev);

-           cancelled the registration as a candidate (sub-group Orujoc consisting of the cases Orujov, Khanhuseyn Aliyev, Abil and Atakishi cases) or the election (sub-group Kerimova consisting of the cases Kerimova, Mammadov (No. 2), and Hajil) of the applicants;

and that the Constitutional Court annulled the elections in the electoral constituencies of certain applicants without sufficient and relevant reasons, without affording procedural safeguards to the parties (including the inability to participate in the hearing) and without any transparency (case Kerimli and Alibeyli).

All the cases concern the parliamentary elections of November 2005.

With regard to the decisions of the electoral commissions (constituency electoral commissions and central electoral commission (“CEC”), the Court, in particular, found the following irregularities:

- the applicants’ complaints and evidence were dismissed without motivation;

- the statements and witness testimony against the applicants were accepted without a proper examination to determine their truthfulness and credibility (see in particular the Namat Aliyev case and the sub-group Orujov);

- lack of independent examination and reasoning in the decisions cancelling the applicants’ registration as candidates or their election;

- the applicants’ lack of participation in the hearing (see in particular the Orujov sub-group). 

With regard to the decisions of the domestic courts (including the Supreme Court), the Court, in particular, found the following shortcomings:

- refusal to examine evidence submitted failure to take steps ex officio to clarify outstanding issues owing to excessive formalism stemming from the civil procedure rules (see in particular Namat Aliyev case);

- the domestic courts merely and simply reiterated the findings made by the electoral commissions;

- the applicants did not have sufficient time to prepare their defence in the expedited procedure;

- erroneous application of the electoral law.

Status of execution:

Individual measures: During its first examination of the case, at the 1179th meeting (September 2013), the Committee considered that it was not possible to redress the consequences of the violations found apart from the just satisfaction since the 2005 elections had taken place and their results were final.

Subsequently, the NGO Legal Education Society sent a communication (DH-DD(2013)1125), indicating that the Supreme Court rejected in 2013 the reopening of proceedings in the cases of Abil, Khanhuseyn Aliyev and Atakishi following the judgments of the European Court.

General measures: During its last examination of this group of cases at the 1179th meeting, the Committee invited the authorities to provide, as a matter of urgency, a consolidated action plan with the measures taken or under way, to put in place safeguards against arbitrariness of procedures before electoral commissions and domestic courts. This action plan is still awaited.

Application

Case

Judgment of

Final on

18705/06

NAMAT ALIYEV

08/04/2010

08/07/2010

16511/06

ABIL

21/02/2012

21/05/2012

18469/06

ATAKISHI

28/02/2012

28/05/2012

6984/06

HAJILI

10/01/2012

10/04/2012

18475/06+

KERIMLI AND ALIBEYLI

10/01/2012

04/06/2012

20799/06

KERIMOVA

30/09/2010

30/12/2010

19554/06

KHANHUSEYN ALIYEV

21/02/2012

21/05/2012

4641/06

MAMMADOV No. 2

10/01/2012

10/04/2012

4508/06

ORUJOV

26/07/2011

26/10/2011

Application: 30696/09

Judgment final on 21/01/2011

M.S.S.

Enhanced procedure: structural and complex problem

Reference texts:

Information document CM/Inf/DH(2012)19

Information document CM/Inf/DH(2012)26 (measures in response to the violation of Article 13 by Belgium)

Communications from Belgium which can be found on the web site of the Department for the Execution of Court’s judgments: http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/BEL-ai_fr.asp

Communication from Greece (08/11/2013) DH-DD(2013)1225

Communications from Greece which can be found on the web site of the Department for the Execution of Court’s judgments: http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/GRC-MSS_fr.asp

Submission by the United Nations Special Rapporteur on the human rights of migrants pursuant to Article 46.2 of the European Convention on Human rights, of his reports on his visits to Italy and Greece (cases of Hirsi Jamaa v. Italy and the group of cases of  M.S.S. v. Greece) (12/07/2013) DH-DD(2013)1289E

Communication from a NGO (HLHR - Hellenic League for Human Rights) (12/11/2013) DH-DD(2013)1277

Decision adopted at the 1164th meeting (March 2013)

Case description:

Violations found against Greece:

Degrading treatment suffered by the applicant (an Afghan national who entered the European Union through Greece and was fingerprinted there, then arrived in Belgium and applied for asylum, was then transferred back to Greece under the Dublin II Regulation) due to the conditions under which he was detained at the holding centre next to Athens International Airport in 2009 (overcrowding, lack of bed/mattress, insufficient ventilation, no regular access to toilets or sanitary facilities, no outdoor exercise (violation of Article 3).

Regarding the conditions of detention, it is recalled that similar issues as those in question in the M.S.S. judgment were raised in other cases (S.D., Tabesh, A.A., Kaja, Efremidze) concerning conditions of detention in different detention facilities; additional issues were raised more recently in the Rahimi, Mahmundi and others and R.U. judgments, the first concerning a foreign unaccompanied minor, the second concerning also a pregnant woman); these are examined within the framework of the M.S.S. case, including violation of Article 13 on account of lack of effective remedy to complain about conditions of detention (R.U., Rahimi, Mahmundi and others judgments). It is recalled that the measures taken with respect to the violations of Article 5 found in those cases are examined separately (group S.D.).

Situation incompatible with Article 3 on account of the applicant's living conditions due to the authorities' inaction regarding the situation in which he had found himself for several months: living on the street, without recourse or access to sanitary facilities and without means of providing for his essential needs (violation of Article 3).

Finally, the case concerns shortcomings in the Greek authorities' examination of the applicant's asylum request and the risk he faced of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy (violation of Article 13 taken in conjunction with Article 3).

Violations found against Belgium:

The transfer of the applicant by Belgium to Greece under the Dublin II Regulation exposed him to the risks arising from deficiencies in the asylum procedure in Greece (violation of Article 3).

The applicant's expulsion, knowingly brought about by the Belgian authorities, exposed him to detention and living conditions in Greece that amounted to degrading treatment (violation of Article 3).

The applicant did not have at his disposal a domestic remedy whereby he might obtain both the suspension of the measure at issue and a thorough and rigorous examination of the complaints arising under Article 3 (violation of Article 13 in conjunction with Article 3).

Status of execution: Individual measures: At their 1144th meeting (June 2012), the Deputies noted that as from 9 May 2012 the applicant enjoys in Belgium refugee status and consequently decided to close the examination of the individual measures.

General Measures: On 20 July 2011, the Belgian and the Greek authorities provided their respective action plans. At their 1144th meeting, the Deputies endorsed the assessment presented in the memorandum prepared by the Secretariat (CM/Inf/DH(2012)19) containing a detailed assessment of the two action plans.

Concerning Belgium:

Having regard to the fact that Belgium stopped transferring asylum seekers to Greece and with regard, in general, to the measures adopted concerning the application of the sovereignty clause of the “Dublin II” Regulation, the Deputies decided at the 1144th meeting to close the examination of the general measures following the violations of Article 3 found against Belgium.

Concerning the general measures following the violation of Article 13, the Deputies took note (1150th meeting, September 2012) of the positive developments observed in the recent case-law of the Aliens’ Appeals Board (CCE) (presented in document DD(2012)553). They also invited the Belgian authorities to answer the outstanding questions identified in document CM/Inf/DH(2012)26 (endorsed by the Deputies). On 20 February 2013, the Belgian authorities provided a revised action plan (DH-DD(2013)175), in which they indicated that they were holding consultations with a view to replying to these questions. No new information has been provided since then.

Concerning Greece:

During the last examination of the case at the 1164th meeting, the Deputies bearing in mind that the effectiveness of the asylum system in Greece was expected to have a positive impact on conditions of detention and living conditions of asylum seekers, decided to focus their examination on issues concerning the asylum procedure. While noting the efforts made to improve the asylum system, the Committee urged the Greek authorities to intensify their efforts with a view to accelerating the delayed reforms (in particular the functioning of the new Asylum Service) and to resolving practical problems regarding access to the asylum procedure and introduction of asylum claims while in detention. Finally, the Committee invited the Greek authorities to provide information on a number of issues (the functioning of the Asylum Service and the Appeals Committee, in particular staffing and training provided, the proportion of asylum requests granted or rejected and the asylum request processing time both in first and second instance, the implementation of forced returns, including the measures taken to guarantee that the Xenius Zeus programme is carried out with full respect to the principle of non-refoulment).

As regards the conditions of detention and the living conditions of asylum seekers, the Committee, in view of the forthcoming examination of those issues, invited the Greek authorities to provide updated information on the questions identified in memorandum CM/inf/DH(2012)19 and the Notes of the 1164th meeting.

In addition to the information provided at the 1164th meeting, the Greek authorities submitted a revised action plan on 20/06/2013 on migration management, which had been presented to Council of the European Union on 17/01/2013. The authorities also indicated that the Asylum Service had started operating on 07/06/2013 and that the Appeals Committee responsible for considering requests for international protection at second instance would start operating very soon. Finally, they indicated that the first reception centre in Athens started operating on 15/03/2013 and two more reception centres (in Lesbos island and an additional centre in Athens) would be fully operational by the end of 2013. Updated information on the new asylum procedure was provided on 8/11/2013.

Application

Case

Judgment of

Final on

30696/09

M.S.S.

21/01/2011

Grand Chamber

Application: 27996/06

Judgment final on 22/12/2009

SEJDIĆ AND FINCI

Enhanced procedure: Complex problem

Reference texts:

Interim Resolutions CM/ResDH(2011)291, CM/ResDH(2012)233

Recommendation 2025(2013) of Parliamentary Assembly

Declaration by the Commissioner Füle after consultation with political parties in Bosnia and Herzegovina (11/04/2013)

Declaration by the EU High Representative Ashton and Commissioner Füle (04/07/2013)

Memo 13/840 by the European Commission after the first part of the third round of the High Level Dialogue on the Accession Process (HLDAP) (01/10/2013)

Statement by Secretary General Jagland on the first part of the third round of HLDAP DC112(2013) (02/10/2013)

Conclusions by the Commissioner Füle after the third round of HLDAP (10/10/2013)

EU Commission Bosnia and Herzegovina 2013 Progress Report SWD(2013)415 (16/10/2013)

Decision adopted at the 1179th meeting (September 2013)

Case description: Violation of the right to free elections and discrimination against the applicants (citizens of Bosnia and Herzegovina of Roma and Jewish origin) who were ineligible to stand for election to the House of Peoples of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (Bosniacs, Croats or Serbs) (violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1). General discrimination against the applicants due to their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (violation of Article 1 of Protocol No. 12).

Status of execution:

Necessity to change the Constitution and the electoral legislation: The Committee of Ministers has always considered that a number of amendments to the Constitution of Bosnia and Herzegovina and its electoral legislation should be adopted for the execution of this judgment. However, the authorities and political leaders of Bosnia and Herzegovina have not been able to reach a consensus on these amendments despite the Committee’s repeated calls to that effect (see, in particular, Interim Resolution CM/ResDH(2011)291 adopted at the 1128th meeting (December 2011) as well as the decisions adopted since the 1078th meeting (March 2010).

Last DH meeting: At its 1179th meeting (September 2013) (DH), the Committee had an exchange of views on the implementation of this judgment with the Minister of Justice of Bosnia and Herzegovina Mr Bariša Čolak. The Minister stressed that all political stakeholders in Bosnia and Herzegovina were fully committed to finding an appropriate solution for the execution of this judgment. He underlined the complexity of the issues raised and indicated that all relevant political stakeholders in Bosnia and Herzegovina had recently intensified their efforts with a view to reaching a consensus.

In its decision, the Committee strongly urged the authorities and political leaders of Bosnia and Herzegovina to deploy all their efforts to reach a consensus at the third round of the High-level Dialogue on the Accession Process (HLDAP) with the European Union on 1 October 2013. The Committee also requested the authorities to provide concrete information on the solutions envisaged by the political leaders regarding the constitutional and legislative amendments as well as a clear time-table for their adoption. Lastly, the Committee instructed the Secretariat to prepare and circulate a draft interim resolution should the political leaders fail to make any decisive progress in reaching a consensus.

To date the authorities have not provided any information in response to the Committee’s above-mentioned decision.

Application

Case

Judgment of

Final on

27996/06

SEJDIĆ AND FINCI

22/12/2009

Grand Chamber

Application n°

Case

Judgment of

Final on

27996/06

SEJDIĆ AND FINCI

22/12/2009

Grand Chamber

Application: 2312/08+

Judgment final on 18/07/2013

MAKTOUF AND DAMJANOVIĆ

Enhanced procedure: complex problem

Reference texts:

Action plan (23/10/2013) DH-DD(2013)1161E

Case description: This case concerns the retrospective application of criminal law laying down heavier sentences for war crimes than the law in force when the crimes were committed (the domestic courts applied the more stringent criminal law - 2003 Criminal Code of Bosnia and Herzegovina - instead of the 1976 Criminal Code of the Socialist Federative Republic of Yugoslavia which had been applicable at the time of their commission of the war crimes) (violation of Article 7).

Status of execution: Individual measures: The first applicant had been released before the delivery of the European Court’s judgment and is currently living in Malaysia (§10). The second applicant was serving his sentence when the European Court delivered its judgment (§18).

Both applicants requested the reopening of proceedings following the delivery of the European Court’s judgment. The Court of Bosnia and Herzegovina (referred to as the State Court in the European Court’s judgment) granted leave for reopening of proceedings on 4 October 2013 in the case of the second applicant and on 8 October 2013 in the case of the first applicant. The same court ordered on 11 October 2013 the immediate release of the second applicant who was subsequently released.

General measures: According to the authorities, the violation in the present case stemmed from the case-law of the Constitutional Court and the Court of Bosnia and Herzegovina. It was therefore necessary that the domestic courts changed their case-law. Accordingly, the Constitutional Court took into consideration the present judgment and changed its case-law with a view to aligning it with the European Court’s findings in a decision rendered on 27 September 2013 in a similar case (i.e. the Constitutional Court found in that case that the application of the 2003 Criminal Code was to the detriment of the applicant as he could have received a milder sentence if the 1976 Criminal Code had been applied). The authorities indicated that there were approximately 15 appeals pending concerning complaints under Article 7 before the Constitutional Court. It is expected that the Constitutional Court will examine those cases in the light of the Court’s findings in the Maktouf judgment. The authorities stressed in this respect that decisions of the Constitutional Court were binding upon all courts in Bosnia and Herzegovina.

The authorities furthermore indicated that publication measures have been taken and that the European Court’s judgment was widely disseminated to all relevant courts and authorities in the country. The authorities also envisaged to take awareness-raising measures, notably to organise a seminar aimed at raising awareness on the requirements of this judgment among the criminal law judges and prosecutors of the courts dealing with war crimes.

Application

Case

Judgment of

Final on

2312/08+

MAKTOUF AND DAMJANOVIĆ

18/07/2013

Grand Chamber

Application: 59491/00

Judgment final on 19/04/2006

UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS GROUP

Examination of a possible transfer under enhanced procedure

Reference texts:

Revised action plan (28/11/2013) DH-DD(2013)1291E

Action plan (16/10/2013) DH-DD(2013)1124

Communication from an ONG The Bulgarian Helsinki Committee (06/03/2011) DH-DD(2011)249

Last public notes and decisions (1100th meeting, December 2010, p. 58).

Case description: These cases concern the unjustified refusals of the courts, in 1998-99 and 2002-04, to register an association aiming at achieving "the recognition of the Macedonian minority in Bulgaria", refusals based on the one hand on considerations of national security, protection of public order and the rights of others (alleged separatist ideas) and on the other hand on the constitutional prohibition for associations to pursue political goals (violations of Art. 11).

As concerns the first type of considerations, the Court found that the applicants have not advocated the use violence or other undemocratic means to achieve their aims and that the expression of separatist ideas in speeches and program documents should therefore benefit from the protection of Article 11 of the Convention.

Concerning the second type of considerations, the Court found that the fact that the goals of the association are labelled as “political” – and therefore reserved, according to the Bulgarian courts, solely to political parties – was not a sufficient ground for refusing registration. Namely, it underlined the fact that the domestic law did not allow the associations to participate in elections and that therefore there was no “pressing social need” to require them to register as a political party.

Status of execution: The authorities submitted an action plan on 16/10/2013 (see DH DD(2013)1124).

Individual measures: A request for registration from an association named UMO Ilinden was introduced by part of the applicants on 27/10/2010. The association’s articles are broadly similar to those examined by the Court in the cases in question.

By a judgment of 03/02/2012, the Blagoevgrad Regional Court refused to register the association for the following reasons:

1.    in spite of the instructions given to them, the applicants did not supplement their request for registration and did not indicate which of the versions of the articles of the association presented to the court had in fact been adopted;

2.    the goals of the association were formulated in a manner which could generate animosities and incite national hatred, although the activities and the means chosen by the association were nonviolent and that there was no obstacle for persons who consider themselves “Macedonians” to create an association.

On 23/04/2012, the Sofia Court of Appeal confirmed the judgment and added that some of the aims of the association had a political character and were also directed against the unity of the nation, as they openly opposed part of the Bulgarian citizens against another part. By decisions of 30/04/2013 and 15/07/2013, the Supreme Court of Cassation declared inadmissible the cassation appeal of UMO Ilinden, on the ground that legislative changes had taken away its competence to control judgments concerning registration of associations.

General measures: The main relevant information can be summarised as follows :

- Dissemination and awareness-raising measures: the authorities disseminated the judgments. A manual concerning the right to freedom of association was distributed following the adoption by the European Court of the first judgment of this group. Moreover, several trainings for judges, prosecutors, lawyers and representatives of the local authorities took place in 2007 and 2008, organised by the National Institute of Justice, the Ministry of Justice and the Department for execution of the judgments of the Court.

- Refusals to register associations similar to UMO Ilinden: by judgments which became final in December 2009 and July 2011, the domestic courts refused to register two associations aiming at the defence of the interests of persons who consider themselves “Macedonians” (“Macedonian cultural and educational association Nikola Vaptzarov” and “Union of the Macedonians from Bulgaria who had experienced repressions”). The articles of those two associations are almost identical and the grounds given by the Sofia Court of Appeal to refuse registration in the two proceedings are also similar. On the one hand, the Court of appeal noted that there was no Macedonian minority in Bulgaria and that suggesting the existence of such a minority is a threat to the unity of the nation and the territorial integrity of the country. On the other hand, it considered that the association wished to pursue aims reserved solely to the political parties. In those two proceedings, the associations did not introduce valid cassation appeals.

- Technical consultations relating to the new refusals of registration: meetings took place in Sofia in March and in October 2013, with the participation of representatives of the Sofia Court of Appeal, the Supreme Court of Cassation, the Ministry of Justice and the Department for Execution of the judgments, in order to discuss the questions raised by the recent refusals to allow registration concerning the execution of this group of cases.

Application

Case

Judgment of

Final on

59491/00

UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS

19/01/2006

19/04/2006

34960/04

UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS No. 2

18/10/2011

08/03/2012

Application: 57325/00

Judgment final on 13/11/2007

D.H. AND OTHERS

Enhanced procedure: complex problem

Reference texts:

Information document CM/Inf/DH(2010)47

Communications from the Czech Republic

Consolidated action plan (16/11/2012) DH-DD(2012)1074

Updated action plan (18/06/2013) – Information on the implementation DH-DD(2013)718

Information on the implementation of the action plan (17/10/2013) DH-DD(2013)1133

Communication from the authorities (26/11/2013) DH-DD(2013)1284

Communications from NGOs

From Open Society Justice Initiative (27/11/2012) DH-DD(2012)1137,

From Open society justice Initiative, COSIV, European Roma Rights Centre, Amnesty international and Liga Lydských Práv (13/11/2012) DH-DD(2012)1089

From Amnesty International (20/11/2013)DH-DD(2013)1295E

Decision adopted at the 1157th meeting (December 2012)

Case description: Discrimination in the enjoyment of the applicants' right to education due to their assignment to special schools (schools for children with special needs including those suffering from a mental or social handicap) between 1996 and 1999 on account of their Roma origin (Violation of Article 14 in conjunction with Article 2 of Protocol No. 1).

Status of execution:

Individual measures: education in the Czech Republic is compulsory for all children from six to fifteen. The applicants are all older than fifteen and therefore are no longer in the compulsory schooling system. No further individual measure appears necessary.

General measures: In April 2009, the Czech authorities submitted a wide-ranging action plan, updated in 2009 and early 2010. Further information was provided in May 2012. An analysis by the Secretariat of the measures set out in the Action plan is presented in document CM/Inf/DH(2010)47. Since the examination of that document in December 2010, the Committee has repeatedly underlined the importance of achieving concrete progress on the ground.

In November 2012, the Czech authorities submitted a consolidated action plan titled “Equal Opportunities” (see DH-DD(2012)1047), which includes a short, medium and long term strategy along with a time-table and the budget foreseen for the implementation of the planned measures. The plan aims at effective prevention of possible discrimination caused by the placement of Roma pupils outside of the mainstream education system.

Concerning the short and medium-term measures, the authorities decided in particular:

-       to amend the existing legislation in order to eliminate the possibility to place pupils without a disability in classes or study groups for pupils with disabilities;

-       to revise existing diagnostic tools (used to identify pupils with a “slight mental disability”) in order to remove what the authorities themselves referred to as “well-founded doubts” about reliability and cultural neutrality;

-       to put in place a functioning non-discriminatory supervision of the quality of diagnostics and of decision-making at all levels;

-       to perform annual surveys to establish the number of Roma pupils educated in programmes with a “slight mental disability”.

The long-term measures planned include setting up a standing forum of non-governmental organisations on the question of equal opportunities in education.

At the 1157th meeting in December 2012, the Committee took note with interest of the consolidated action plan, highlighting however that according to the statistics the authorities had presented, the overall percentage of Roma pupils educated in programmes for pupils with a “slight mental disability” remained disproportionately high even if a slight decrease in this percentage was recorded. The Committee welcomed the Czech authorities’ commitment to ensure monitoring of the implementation of the measures foreseen and to adopt, on the basis of an assessment of the situation during and after their adoption, all additional measures which might prove necessary. Finally, the Committee reiterated the importance of rapidly obtaining concrete results and invited the authorities to “keep it regularly informed of all developments in the implementation of the Action plan and in the authorities’ reflection on the development of the concrete situation on the ground”.

In line with this decision, in June and October 2013 the Czech authorities submitted information on the implementation of the consolidated action plan (see documents DH-DD(2013)718 and DH-DD(2013)1133), which provides as follows:

-       The legislative amendment aimed at removing the possibility to place pupils without a disability in classes or study groups for pupils with disabilities has not come into effect on 1 September 2013 as initially foreseen in the consolidated Action plan, but is expected to enter into force as of 1 December 2013.

-       For the revision of the existing diagnostic tools, an expert group has been set up, methodology is being drafted and a new diagnostic tool should start to be implemented by the end of 2013. According to the consolidated action plan, the revision of diagnostic tools should have ended in December 2013; however, the information on the implementation indicates that this process will be ongoing for the next two years.

-       The supervision mechanism to control the functioning of the diagnostic system will be an audit body established by legislation and more particularly an amendment to the Education Act. This amendment’s coming into effect was initially foreseen for 1 January 2014 but is now expected to be introduced on 1 September 2014.

-       A survey to establish the number of Roma pupils educated in programmes with a “slight mental disability” has been carried out according to the timetable of the consolidated action plan, with outputs to be available in November 2013.

As far as the long-term measures are concerned, the authorities indicated in particular that a forum of non-governmental organisations on equal opportunities has been established and met twice, the last time in April 2013. Given the fact that the Czech government has resigned and a temporary government has been established, the work of the forum shall be resumed after a new minister of education is appointed as part of the government formed after the October 2013 elections.

Application

Case

Judgment of

Final on

57325/00

D.H. AND OTHERS

13/11/2007

Grand Chamber

Application: 35151/05

Judgment final on 11/01/2008

BEKIR-OUSTA AND OTHERS GROUP

Enhanced procedure: complex problem

Reference texts:

Communication from Greece (13/11/2013) DH-DD(2013)1224

Communication from Greece (25/10/2013) DH-DD(2013)1177

Information submitted on this group of cases can be consulted on the Website of the Department for execution of Judgments at: http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/GRC-Bekir-Ousta_en.asp

Communication from the applicants' representative (26/11/2013) DH-DD(2013)1288E

Decision adopted at the 1172nd meeting (June 2013)

Case description: Violations of the right to freedom of association (Article 11) due to the refusal to register associations (cases Bekir-Ousta and others and Emin and others; domestic decisions of last instance in 2006 and 2005 respectively) and to the dissolution of an association (case Tourkiki Enosi Xanthis and others; domestic decision of last instance in 2005) on the grounds that their aim was to promote the idea that an ethnic minority existed in Greece as opposed to the religious minority recognised by the Lausanne Treaty in 1923.

Concerning the cases Bekir-Ousta and others and Emin and others, the European Court noted that “the contested measure relied on a mere suspicion about the true intentions of the founders of the association and the actions that it might have led to once it had started functioning”. Moreover, the Court considered that “even assuming that the true aim of the association was to promote the idea that an ethnic minority existed in Greece, this cannot be in itself considered as a threat to a democratic society”. The Court noted in this respect that “nothing in the association’s statute suggested that its members were advocating the use of violence or of anti‑democratic or anti-constitutional means”. The Court recalled that Greek legislation (Article 12 of the Constitution and Article 81 of the Civil Code) does not set up a system of preventive control for the establishment of non-profit associations. The Court also noted that the Greek courts could order the dissolution of the associations mentioned above, if they subsequently pursued an aim different to the one stated in their statutes, or if their functioning proved to be contrary to public order. Consequently the Court concluded that the impugned measure was disproportionate to the aim pursued.

In the case Tourkiki Enosi Xanthis and others, the European Court underlined the radical nature of the measure at issue, namely the dissolution of the association and noted in particular that prior to its dissolution the relevant association had continued its activities for about half a century without hindrance and without any indication that its members have ever used violence or rejected democratic principles.

Violation of Article 6§1 in the case of Tourkiki Enosi Xanthis and others due to the excessive length of civil proceedings related to the dissolution of the association.

Status of execution: Individual measures:

1) The issue of payment of just satisfaction in the case Tourkiki Enosi Xanthis in respect of non-pecuniary damage suffered as a result of the violation of Article 6§1 was closed at the 1144th meeting (see detailed notes and decision adopted during that meeting).

2) Applications for revocation of the previous decisions refusing the registration of the associations (cases Bekir‑Ousta and others and Emin and others) and of the previous decision of dissolution (case Tourkiki Enosi Xanthis and others)

Since the beginning of its supervision of the execution of these cases, the Committee has closely followed developments at the national level on the applicants’ requests for revocation of the previous decisions refusing registration and ordering dissolution, following the European Court’s judgments.

These developments were extensively detailed in previous summaries of the status of execution (see in particular the Order of business of the 1157th meeting and the decision adopted by the Committee, 4‑6 December 2012).

The Committee noted that in its judgment No. 353/2012 (published on 24/2/2012), the Court of Cassation had dismissed the appeal in cassation lodged by the association Tourkiki Enosi Xanthis concluding that, in the context of a non-contentious procedure, such as the one initiated by the applicant association, the revocation or revision of a final domestic judgment is not possible on the basis of a judgment of the European Court as the latter does not constitute ‘’a change of circumstances’’ under Article 758 § 1 of the Code of Civil Procedure.

The Committee also recalled the commitment reiterated by the Greek authorities to implementing fully and completely the judgments under consideration, which have been under the supervision of the Committee of Ministers since 2008 and without excluding any avenue in that respect.

Since then, the authorities (DH-DD(2013)452) and the applicants’ representative (DH-DD(2013)453) focused on developments relating to the applicants’ appeals in cassation in the cases of Bekir-Ousta and others and Emin and others, against the decisions of the Court of Appeal of Thrace rejecting their request for revocation of the refusal to register their associations. According to this information, the hearing before the Court of Cassation took place on 22 March 2013 and the decisions were expected the following months.

At its last examination of the case (1172nd meeting, June 2013), during which the Committee focused on the individual measures, it noted with concern that, since the above-mentioned judgment of the Court of Cassation (No. 353/2012) no precise and concrete information has been presented to the Committee to date on the measures taken or envisaged. However, the Committee noted with interest the information provided during the meeting according to which other avenues were being explored, including an amendment to the non-contentious procedure provided in the code of civil procedure. Given in particular the time that has elapsed since the Court's judgments became final, the Committee urged the authorities to inform it in writing, with an indicative timetable on measures that they are currently exploring so that the associations’ requests for registration could now be subject to an examination on the merits. The Committee decided to resume consideration of this question at its 1186th meeting in order to make a substantive assessment of the developments regarding individual measures, based on the information that the authorities will provide in good time for that meeting.

In their letter dated 23/10/2013 (received on 25/10/2013), the authorities indicated that the Court of cassation also dismissed on procedural grounds the applicants’ appeals in cassation in the cases of Bekir-Ousta and others and Emin and others (the judgments in the Emin and Bekir-Ousta cases were provided in Greek).

In addition, the authorities noted that they have received a letter by the Ministry of Justice (21/10/2013) according to which the competent authorities are considering afresh to amend the code of civil procedure in order to find the most appropriate solution to execute the individual measures in the judgments under examination.

General measures:

1) Violation of Article 6§1 in the case of Tourkiki Enosi Xanthis and Others: The issue of excessive length of civil proceedings is being examined in the context of the pilot judgment Glykantzi/Konti Arvaniti group of cases (53401/99).

2) Violations of Article 11: The Committee has closely followed the measures of information and awareness raising of the instances concerned to abide by the Court’s judgments in accordance with Article 46 of the Convention (see the last Notes of the Order of Business – 1172nd meeting).

Furthermore, the Committee had noted with interest judgment No. 24/2012 of the Court of Cassation, delivered in another case «South Evros Cultural and Educational Association of Western Thrace Minority» and which was brought to its attention by the Greek authorities. It noted, in particular, that by overturning the decision of the Court of Appeal of Thrace refusing the registration of the applicant association, the Court of Cassation directly applied the European Convention (Article 11), as interpreted in the Court’s case-law. The Committee also noted the Greek authorities’ position that this judgment could have an impact on the registration of associations in the framework of proceedings complying with the requirements of the Convention and in particular of Article 11.

According to the information provided by the authorities on 25/10/2013, following the above-mentioned judgment of the Court of cassation, the Court of appeal of Thrace (as referring court) accepted the registration of the «South Evros Cultural and Educational Association of Western Thrace Minority» (the judgment in Greek was appended to the communication by the authorities). The authorities have also sent three new decisions registering associations that have been delivered by the courts of the Thrace region.

Application

Case

Judgment of

Final on

35151/05

BEKIR-OUSTA AND OTHERS

11/10/2007

11/01/2008

34144/05

EMIN AND OTHERS

27/03/2008

01/12/2008

26698/05

TOURKIKI ENOSI XANTHIS AND OTHERS

27/03/2008

29/09/2008

Applications: 54447/10, 71563/01, 40150/09, 53401/99

Judgments final on 03/07/2012, 19/08/2005, 30/01/2013, 10/07/2003

MICHELIOUDAKIS

DIAMANTIDES No. 2 GROUP

GLYKANTZI

KONTI-ARVANITI GROUP

Enhanced procedure: pilot judgments, complex structural problem

Reference texts:

Final Resolution ResDH(2005)66 concerning cases relating to excessive length of criminal proceedings in Greece (case of Tarighi Wageh Dashti against Greece and 7 others)

Interim Resolution CM/ResDH(2007)74 on excessively lengthy proceedings in Greek administrative courts and the lack of an effective domestic remedy

Action plan – supplementary information (Michelioudakis, Diamantides No. 2 group, Glykantzi and Konti-Arvaniti group) (23/10/2013) DH-DD(2013)1162

Action plan (Glykantzi case) (29/07/2013) DH-DD(2013)892

Action plan (Michelioudakis case) (01/02/2013) DH-DD(2013)96

Communications from Greece (Michelioudakis case) (03/07/2013 and 04/07/2013) DH-DD(2013)789

Communication from Greece (Michelioudakis case) (08/04/2013) DH-DD(2013)390

Communication from Greece (Michelioudakis case) (17/12/2012) DH-DD(2012)1186

Letter from the Registry of the European Court (Michelioudakis case) (19/06/2013) DH-DD(2013)788

Decision adopted at the 1179th meeting (September 2013)

Case description: Cases concerning violations of right to a fair trial on account of excessive length of criminal (in the Diamantides No. 2 group) and of civil proceedings (in the Konti-Arvaniti group) and the absence of an effective remedy in this respect (violations of Articles 6§1 and 13).

In the two pilot judgments (in the case of Michelioudakis for criminal proceedings and in the case of Glykantzi for civil cases), the Court highlighted that the structural nature of the problem identified in these cases was confirmed by the fact that over 250 cases against Greece, completely or partially relating to excessive length of court proceedings, were currently pending before it (among those 250 cases over 50 of them concerned proceedings before criminal courts, while over 70 of them concerned proceedings before civil courts). The Court therefore concluded that Greece must, within one year from the date on which the judgments became final (namely by 03/07/2013 regarding the Michelioudakis case and by 30/01/2014 regarding the Glykantzi case), put in place an effective domestic remedy, or a set of remedies, capable of affording adequate and sufficient redress in cases in which the reasonable time limit was exceeded and to do so in accordance with Convention principles as set out in the Court’s case law.

Pending the introduction of this remedy, the Court adjourned the proceedings in all similar applications pending before it, subject to the Court having the faculty, at any time, to declare inadmissible a case of this type or to strike it out of the list of cases following a friendly settlement between the parties or a settlement of the dispute by other means.

Status of execution: Individual measures: The proceedings are still pending in two criminal cases and eleven civil cases. As far as five of those civil cases are concerned, the Greek authorities indicated that the applicants have not taken the necessary procedural steps so that these proceedings are completed. The authorities specified that the Greek legal system regulating civil procedure is based on the principle that the procedural initiative lies with the parties in the litigation.

General measures:

1. Impact of the measures taken with a view to shortening the length of proceedings and improving the efficiency of courts

            a. In proceedings before civil courts:

In its decision adopted at the 1179th meeting (September 2013), the Committee invited the Greek authorities to provide information on the impact of the measures taken with a view to shortening the length of proceedings and improving the efficiency of functioning of civil courts (for a detailed description see the notes in the order of business of the 1179th meeting). However, the Greek authorities have provided no information concerning this issue in their updated action plan of 24/10/2013.

            b. In proceedings before criminal courts

The Greek authorities provided the following information in response to the Committee’s decisions adopted at the 1172nd and 1179th meetings (June and September 2013):

-    Proceedings have been accelerated in criminal cases thanks to the introduction of a single judge formation in criminal courts (consequently the single-judge Criminal Court of Athens decided 2850 cases, of Thessalonica 1030 cases and of Piraeus 687 cases. In addition, in Athens and Piraeus there was an increase of 70% of cases heard among those registered);

-    A significant number of cases (offences committed before 31/12/2011 which carry a maximum sentence of imprisonment of 1 year and/or a fine) have been struck out (in Thessalonica: 9732; in Heraklion: 4517; in Lamia: 3000; in Volos: 2383; in Ioannina: 1760; in Piraeus: 1541) which resulted in decongestion of courts;

-       The reclassification of certain minor misdemeanours as petty offences by virtue of article 24 § 3 and art. 38 of L. No 4055/2012 resulted in the prescription of many offences and, consequently, in the decrease of the workload of the criminal courts;

-       Implementation of art. 27 §§ 3 and 4 of L. No 4055/2012 by prosecutors resulted in the rapid closure of anonymous or manifestly ill-founded complaints. 

2. Introduction of a remedy regarding the excessive length of proceedings

This question has been closely followed by the Committee since its 1150th meeting (September 2012).

At the 1179th meeting, the Committee noted that the Court decided to extend the deadline for the introduction of a remedy in the case of Michelioudakis until 30 January 2014, which is also the deadline for the execution of the Glykantzi pilot judgment. It further noted that the Greek authorities prepared a draft law in response to the two pilot judgments aimed at introducing a compensatory remedy. The Committee urged the authorities to bring the legislative process to an end before the deadline set by the Court and invited them to keep the Committee informed regularly of the legislative time-table. According to the up-dated action plan of 24/10/2013, it was in the priorities of the Ministry of Justice, Transparency and Human Rights to introduce the draft law into Parliament in November, with a view to its adoption. On 29 November 2013, the draft law was transmitted to Parliament.

Application

Case

Judgment of

Final on

54447/10

MICHELIOUDAKIS

03/04/2012

03/07/2012

71563/01

DIAMANTIDES No. 2 GROUP (list of cases)

19/05/2005

19/08/2005

40150/09

GLYKANTZI

30/10/2012

30/01/2013

53401/99

KONTI-ARVANITI GROUP (list of cases)

10/04/03

10/07/2003

Application: 12066/02, 9190/03, 39806/05

Judgment final on 19/09/2007, 04/01/2006, 10/03/2009

CIORAP GROUP

BECCIEV GROUP

PALADI GROUP

Enhanced procedure: complex problem

Reference texts:

Action plan (21/10/2013) DH-DD(2013)1168

Public notes and decisions adopted at the 1100th meeting (December 2010, pp. 215, 224, 225)

Case description: These groups of cases concern mainly the poor material conditions of detention in penitentiary establishments under the authority of the Ministries of the Interior (Becciev group) and of Justice (Ciorap group) and the lack of access to adequate medical care (including specialised medical treatment) in these facilities (Paladi group), together with the absence of effective domestic remedies in both respects (violations of Articles 3 and 13):

-      The poor material conditions of detention result from inadequate sanitary conditions, poor ventilation and heating, lack of access to natural and artificial light, lack of outdoor exercise/opportunities for recreation, and substandard provision of food. These conditions are exacerbated by the severe overcrowding in prisons.

-      As regards access to medical care, including specialised medical treatment, the Court found violations notably because of the authorities’ unexplained and unjustified failure to provide emergency medical assistance and care for serious and chronic illnesses in accordance with medical professionals’ recommendations (Istratii and others; Holomiov; Ostrovar) and the failure to follow medical professionals’ recommendations for transfer to specialised institutions, as well as the lack of diligence on the part of the domestic courts in deciding these matters (Paladi; Oprea).

Other violations which occurred during the applicants’ detention:

As regards Article 3, the Court found an additional violation of this provision in the Ciorap case on account of the repeated force-feeding of the applicant.

The Court also found violations of Article 8 on account of the censorship by the prison authorities of the applicants’ correspondence (Ciorap; Ostrovar), the failure to ensure acceptable conditions for meetings with family members due to the installation of a glass partition in the meeting room (Ciorap) and the lack of reasonable clarity as to the scope and manner of exercise of discretion of the prison authorities as regards the authorisation of family visits (Ostrovar).

Further, the Court found a violation of Article 34 on account of the failure to comply, in a timely manner, with the Court’s indications under its Rule 39 to keep the applicant in a specialised medical institution (Paladi).

Lastly, the Court found a violation of Article 6§1 on account of the excessive length of criminal proceedings (Holomiov).

In some cases, the Court also found violations of other Articles: ill-treatment by police and lack of effective investigation thereof (Article 3); unlawful and/or excessively long detention on remand (Article 5§§1 + 3) and absence of judicial review of its lawfulness (Article 5§4); lack of access to court (Article 6§1); and lack of fair trial (Article 6§1).

Status of execution: The Committee of Ministers has been examining these cases since 2006. The Moldovan authorities provided updated information on 21/10/2013 (see the action plan in DH DD(2013)1168).

Individual measures:

a)    As regards the just satisfaction awarded in respect of pecuniary and non-pecuniary damages and costs and expenses: Confirmation of payment has been received in all cases.

b)    On the current conditions of detention: The information provided does not permit to establish a full overview of the current situation of each applicant. It seems that in some cases, the applicants are no longer detained (Becciev; Holomiov; Malai; Mitrofan; Ostrovar; Paladi; Rotaru). In one case, it is unclear whether the applicants are still detained (Istratii and others). Information is therefore urgently required to clarify their situation. Further, detailed information is also required concerning those applicants who still seem to be detained in order to assess whether their current conditions of detention are in compliance with the Convention and the Court’s case-law (Arseniev; Ciorap; Constantin Modarca; Culev; Hadji; Haritonov; I.D.; Oprea).

c)    Concerning other individual measures resulting from the other violations found by the Court in these cases: No information has been submitted in this respect in the latest submission from the Moldovan authorities. Such information is therefore required, most notably the cases of I.D. (ill-treatment by police and lack of effective investigation) and Mitrofan (unfair trial on account of the failure to provide reasons for his conviction).

General measures: The Moldovan authorities are beneficiaries of a specific project of the Human Rights Trust Fund on “implementing pilot, ‘quasi-pilot’ judgments and judgments revealing systemic and structural problems in the field of detention on remand and remedies to challenge conditions of detention” (HRTF project 18, covering 6 beneficiary countries). Consultations with the Moldovan authorities were carried out within the context of this project with a view to exploring possible avenues for finding solutions to the problems posed by this group of cases, including as regards domestic remedies. Following a mission by the Council of Europe experts to Chișinău on 11-14 December 2012, an expert report was provided to the Moldovan authorities in March 2013. A meeting to discuss with all relevant domestic authorities the experts’ proposals for measures to implement these judgments was organised in Chișinău on 12 July 2013.

In response, the Moldovan authorities provided an action plan on 21 October 2013 (see DH DD(2013)1168) detailing a range of measures taken and envisaged to improve material conditions in detention facilities, both under the authority of the Ministry of the Interior and the Ministry of Justice, to fight overcrowding and to improve access to medical care. The action plan also highlights that according to an amendment to the Code of Execution of Sentences, a person detained can be held in a police remand centre for a maximum of 72 hours (cf. paras 68-98 of the action plan).

As regards domestic remedies, the action plan specifies that the Supreme Court issued instructions to all domestic courts on how to apply its rationale from the Ciorap No. 2 case. The Explanatory Decision of the Supreme Court No. 8 of 24 December 2012 explains the applicable law and procedure by which a person can claim compensation for a breach of Articles 3, 5 or 8 of the Convention (cf. paras. 99-105 of the action plan).

The government intends to assess, until the second half of 2014, whether there is a need to introduce new remedies, or whether it would be sufficient to improve the existing remedies. For the moment, there appears to be no consensus amongst the domestic authorities as to the modalities of a domestic remedy to challenge conditions of detention (i.e. remedial mechanism).

As to the publication and dissemination of the Court’s judgments, it is indicated that these were published and widely disseminated to the authorities concerned (cf. para. 67 of the action plan).

The action plan finally refers to a number of other measures still envisaged (cf. paras. 106-128 of the action plan): The extensive “Strategy for justice sector reform 2011-2015” programme aims, inter alia, at considerably reforming the penitentiary system. In this context, support is also foreseen for the further development of the probation service.

In addition, the government intends to generally review the domestic system for the execution of the European Court’s judgments, in particular as regards the implementation of general measures. Legislative amendments in this respect are expected to be adopted by the end of 2013.

It is also envisaged to enhance the monitoring capacities of the Ombudsman, including concerning the issue of conditions of detention.

No updated information has been provided on the measures adopted and/or envisaged in respect of the other violations examined within the context of these cases (violations of Articles 3, 6§1, 8 and 34). As regards the issue of excessive length of criminal proceedings (Article 6§1), it is recalled that the domestic remedy adopted in response to the Olaru and others pilot judgment (in force since 1 July 2011) is also applicable in respect of such complaints. As regards the issue of force-feeding of detainees on hunger-strike (Article 3), it is recalled that the Law on Pre-trial Detention was amended on 9 October 2003 so as to prohibit this measure. Concerning conditions for meetings with family members (Article 8), it is recalled that the glass partition at the CFECC remand Centre (Centre against Economic Crime and Corruption) was dismantled.

General measures in response to the other violations found in these cases are examined as follows:

-    irregularities surrounding detention on remand: Şarban group;

-    ill-treatment by police and lack of effective investigations: Corsacov group;

-    failure to provide reasons for convictions in criminal proceedings: Vetrenko group;

-    failure to examine appeals for lack of payment of court fees: Clionov group.

CIORAP GROUP

Application

Case

Judgment of

Final on

12066/02

CIORAP

19/06/2007

19/09/2007

10614/06+

ARSENIEV

20/03/2012

20/06/2012

32896/07

CIORAP No. 3

04/12/2012

04/03/2013

37829/08

CONSTANTIN MODARCA

13/11/2012

13/02/2013

60179/09

CULEV

17/04/2012

17/07/2012

32844/07+

HADJI

14/02/2012

14/05/2012

15868/07

HARITONOV

05/07/2011

05/10/2011

30649/05

HOLOMIOV

07/11/2006

07/02/2007

47203/06

I.D.

30/11/2010

11/04/2011

8721/05+

ISTRATII AND OTHERS

27/03/2007

27/06/2007

53487/99

MERIAKRI

01/03/2005

06/07/2005

50054/07

MITROFAN

15/01/2013

15/04/2013

35207/03

OSTROVAR

13/09/2005

15/02/2006

51216/06

ROTARU

15/02/2011

15/05/2011

BECCIEV GROUP

Application

Case

Judgment of

Final on

9190/03

BECCIEV

04/10/2005

04/01/2006

7101/06

MALAI

13/11/2008

13/02/2009

7481/06

CIORAP n°2

20/07/2010

20/10/2010

PALADI GROUP

Application

Case

Judgment of

Final on

39806/05

PALADI

10/03/2009

Grand Chamber

38055/06

OPREA

21/12/2010

21/03/2011

Application: 13221/08+

Judgment final on 22/10/2012

LINDHEIM AND OTHERS

Enhanced procedure: complex problem

Reference texts:

Action plan (104/04/2013) DH-DD(2013)501

Case description: This case concerns the State's failure to strike a fair balance between the interests of the applicant landowners (the lessors) and the leaseholders (the lessees), notably because of an amendment, in 2004, to the Ground Lease Act 1996. According to this amendment, anyone holding a certain long lease of land is entitled, at the expiry of the contractual term, to claim an extension of the lease on the same conditions as those applicable under the initial lease and without limitation in time; rent can be increased only in line with general inflation, not the rising value of land (violation of Article 1 of Protocol No. 1). As a consequence, the lessors received a particularly low level of annual rent (less than 0.25% of the plots’ market value), bearing no relation to the actual value of the land, and increases in the value of the lands were primarily vested in the lessees as a result of a redemption scheme (see §§ 129 and 132 of the judgment).

Under Article 46, the Court held “by way of a general observation that the problem underlying the violation of Article 1 of Protocol No. 1 concerns the legislation itself and that its findings extend beyond the sole interests of the applicants in the instant case” (there appear to exist between 300,000 and 350,000 ground lease contracts in Norway in a population of 5 million inhabitants – see §§ 12 and 99 of the judgment). Consequently the Court concluded “that the respondent State should take appropriate legislative and/or other general measures to secure in its domestic legal order a mechanism which will ensure a fair balance between the interests of lessors on the one hand, and the general interests of the community on the other hand, in accordance with the principles of protection of property rights under the Convention” (see § 137 of the judgment).

Status of execution: The authorities submitted an action plan on 10/04/2013 (see DH-DD(2013)501) and provided updated information on 22/10/2013.

Individual measures: A request for reopening of the domestic proceedings challenging the new statutory regime, submitted by one of the applicants (Ms Lindheim) on 30 October 2012, is pending before the Norwegian Supreme Court.

The just satisfaction awarded to the applicants in respect of costs of domestic proceedings as well as costs and expenses before the Court was paid within the deadline.

General measures: Provisional measures were rapidly taken after the Court’s judgment became final: a provisional act on extension of ground lease contracts on plots for permanent and holiday homes was adopted in December 2012 and applies until 1 July 2014. Pursuant to this provisional act, any extension of lease contracts on unchanged conditions will only be valid until the necessary amendments of the Ground Lease Act 1996 will have entered into force.

In parallel, the Norwegian Government tasked a committee on 15 February 2013 to elaborate the necessary legislative amendments to the Ground Lease Act 1996 with a view to bringing the rules on extension of ground lease contracts in line with Article 1 of Protocol No. 1. The committee delivered its report on 15 October 2013. The Government will now consider the report, with the aim of implementing the necessary amendments by 1 July 2014.

Further, judicial proceedings on a class action for damages brought by a group of lessors claiming compensation for loss of income and relying on the Court’s judgment were stayed pending the adoption of the expected legislative amendments.

A translation of the judgment was published on the principal website for legal information in Norway.

Application

Case

Judgment of

Final on

13221/08+

LINDHEIM AND OTHERS

12/06/2012

22/10/2012

Application: 7710/02

Judgment final on 22/11/2010

GRZELAK

Enhanced procedure: complex problem

Reference texts:

Action plan (31/07/2013) DH-DD(2013)957

Initial action report (15/01/2013) DH-DD(2013)309

Case description: discrimination during the entire period of his schooling against a non-believer pupil due to the absence of a mark for “religion/ethics” on his school certificates in consequence of the failure to provide alternative ethics classes instead of religious instruction (violation of Article 14 in conjunction with Article 9).

Status of execution

Individual measures: the applicant is no longer in compulsory education. The European Court concluded that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage.

General measures: in the action report submitted on 15/01/2013, the authorities indicated that the violation resulted first, from the fact that the authorities had incorrectly completed the applicant`s school reports, and, secondly, because no courses of ethics had been organised despite repeated requests. In consequence, in order to prevent new, similar violations, the authorities implemented several awareness-raising measures. Thereby, the Ministry of National Education sent a letter to all school superintendents (kuratorzy oświaty) asking them to pay particular attention to the actions undertaken by schools in order to ensure availability of ethics classes to all interested pupils. Moreover, the judgment of the Court was translated and published on the website of the Ministry of National Education, accompanied by detailed information on the conditions and methods of organisation of ethics` classes.

In the revised action plan submitted on 31/07/2013, the authorities clarified that the real reason for the violation was rather a broader problem concerning the availability of ethics classes in polish schools. Indeed, according to the 1992 Ordinance on the organisation of religious instruction in State schools (still in force), school authorities are only obliged to organise a course of ethics if there are a minimum of three pupils interested in following it. In the applicant`s situation, as this number had not been reached, the classes were not organised. To guarantee that each interested pupil benefit from a course of ethics, even in cases where there are not enough pupils for the course in class, the Ministry of National Education decided to introduce a course of distance learning of ethics (e-learning). Since this implementation requires notably amendments to the Education System Act, drafting curricula, the adoption of implementing regulations and the organisation of a public tender procedure, it is envisaged that the e-learning of ethics will be proposed from September 2015.

Application

Case

Judgment of

Final on

7710/02

GRZELAK

15/06/2010

22/11/2010

Application: 9718/03

Judgment final on 26/10/2011

GEORGEL AND GEORGETA STOICESCU

Enhanced procedure: complex problem

Reference texts:

Revised action plan (08/10/2013) DH-DD(2013)1096

Case description: The case concerns the failure by the authorities to protect the physical and psychological integrity of the applicant, attacked by a pack of stray dogs in Bucharest, in 2000 and to provide her with appropriate redress for the injuries sustained (violation of Article 8).

The European Court noted that the problem of stray dogs developed dramatically and became a public health and safety issue, having regard to the large number of persons attacked and injured by these dogs. Although the responsibility for this general situation also lied with the civil society, the authorities did not take sufficient measures to address “the serious problem of public health and threat to the physical integrity of the population represented by a large number of stray dogs”. At the date of the judgment of the European Court, this problem seemed to persist (see §§ 54, 58 and 61 of the judgment).

The case also concerns the lack of access to court (violation of Article 6§1). In this respect, the European Court noted that the applicant’s civil action for damages had been dismissed without an examination on the merits, on the ground that she had failed to identify the local authority against which she should have brought her claim. The Court also found that the applicant had to pay court fees which were not returned to her although the County Court ruled that she was exempted by law from paying them for this type of action

Status of execution: On 08/10/2013, the Romanian authorities provided a revised action plan concerning the execution of this judgment (DH-DD(2013)1096). 

Individual measures: The applicant died in 2007. The European Court awarded her husband, Mr. Georgel Stoicescu, just satisfaction for the non-pecuniary damage suffered, paid by the authorities within the time-limit set by the judgment. The Romanian authorities consider that no further measures are necessary for the execution of this judgment.

General measures: Regarding the violation of Article 8 found by the Court, the Romanian authorities indicated that a new law amending the Emergency Ordinance No. 155/2011 on the issue of stray dogs came into force at the end of September 2013. This law aims at addressing the problem of public health and threat to the physical integrity caused by the stray dogs that the Court identified in its judgment.

Regarding the violation of Article 6§1 found by the Court, the Romanian government considers that the publication and the dissemination of the Court’s judgment, already carried out, represent measures which can prevent similar violations.

Application

Case

Judgment of

Final on

9718/03

GEORGEL AND GEORGETA STOICESCU

26/07/2011

26/10/2011

Application: 43370/04

Judgment final on 19/10/2012

CATAN AND OTHERS

Enhanced procedure: complex problem

Reference texts:

Communication from the applicants (04/03/2013) DH-DD(2013)238

Communication from NGOs (Promox-LEX and Interights) (04/03/2013) DH-DD(2013)287

Case description: Violation of the right to education concerning 170 children or parents of children from Moldovan/Romanian language schools located in the Transdniestrian region of the Republic of Moldova (violation of Article 2 of Protocol No. 1 by the Russian Federation). Pursuant to the “Moldavian Republic of Transdniestria” (the “MRT”) “law” on languages, they had suffered from the forced closure of these schools between August 2002 and July 2004, as well as measures of harassment.

The European Court observed that there was no evidence of any direct participation by Russian agents in the measures taken against the applicants, nor of Russian involvement in or approbation for the “MRT”‘s language policy in general. Nonetheless, it held that Russia exercised effective control over the “MRT” during the period in question and that by virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia incurred responsibility under the Convention for the violation of the applicants’ rights to education.

Status of execution: An action plan or action report is still awaited from the authorities of the Russian Federation. The six-month deadline in which such a document should have been provided, according to the Committee of Ministers’ working methods, expired on 19 April 2013. On three occasions (June, September and October 2013), the Department for the execution of judgments sent letters to the Russian authorities asking them, in accordance with these working methods, to submit an action plan or action report to the Committee of Ministers.

Moreover, the Russian authorities have not confirmed the payment of the sums awarded by the Court to the applicants by way of just satisfaction (in respect of non-pecuniary damage and costs and expenses). The payment deadline expired on 19 January 2013.

Application

Case

Judgment of

Final on

43370/04+

CATAN AND OTHERS

19/10/2012

Grand Chamber

Application: 31925/08

Judgment final on 24/09/2012

GRUDIĆ

Enhanced procedure: complex problem

Reference texts:

Communication from Serbia (follow-up report) (24/10/2013) DH-DD(2013)1153

Decision adopted at the 1179th meeting (September 2013)

Case description: The case concerns a violation of the applicants’ right to peaceful enjoyment of their possessions on account of the fact that the payment of their pensions earned in Kosovo^* was suspended by the Serbian Pensions and Disability Insurance Fund (SPDIF) for more than a decade in breach of the relevant domestic law (violation of Article 1 of Protocol No. 1).

In view of the large number of potential applicants, the European Court indicated under Article 46 that the Serbian authorities had to take all appropriate measures to ensure that the relevant laws were implemented in order to secure payment of the pensions and arrears in question within six months from the date on which the judgment became final (i.e. until 24/03/2013) (§99 and §3(d) of the operative part of the judgment). The European Court also noted that certain reasonable and speedy factual and/or administrative verification procedures might be necessary in this regard.

Status of execution

Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage suffered. It also indicated that the Serbian authorities had to pay to the applicants the pecuniary damage sustained, which included their pensions due as of 9 June 1999 and 15 January 2000, respectively, together with statutory interest (§92). On 9 January 2013, the Serbian authorities indicated that the sums in question were paid to the applicants on 24 December 2012. Consequently, no other measures appear to be necessary in respect of the applicants.

General measures: In accordance to the action plan of 10 January 2013, the Serbian authorities issued a public invitation on 20 February 2013 so that all individuals eligible for resumption of the payment of their pensions earned in Kosovo* apply either in person or by mail to SPDIF until 20 April 2013. This deadline is not however preclusive and the eligible individuals will also be able to request resumption of payment of their pensions after that date. The public invitation, which was published in a number of newspapers in Serbia and in Kosovo*, as well as on the website of SPDIF (www.pio.rs), clearly specified what documents should be submitted together with an application.

The Serbian authorities put in place the following procedure for the resumption of payment of pensions earned in Kosovo*: first, each application will be verified in order to determine whether the applicant is eligible for resumption of pension payment. Once the verification procedure is completed, a decision will be taken in each case setting out whether or not the applicant is entitled for the resumption of pension payment. If and when a positive decision is taken, the payment of pensions will be resumed immediately.

At the 1179th meeting (September 2013 (DH)), the Committee noted that SPDIF decided recently to resume payment of pensions. The Committee further noted that most of the applications were rejected and stressed in this respect the importance of ensuring that any refusal of resumption of payment of pension had a clear basis in domestic law and was subject to effective judicial review in line with the Convention requirements. It invited the Serbian authorities, in close co-operation with the Secretariat, to provide further information as regards the resumed payment of pensions, including the legislative provisions justifying refusal of such payments and the handling of the payment of arrears.

In response, in their submission dated 24 October 2013, the Serbian authorities provided the following information: The authorities have received 8,238 applications since the public invitation was published. In 1,295 of these applications, the applicants submitted the relevant documents in accordance with this public invitation. The authorities also noted that the applicants submitted incomplete documents in the 6,943 remaining cases. However, in many cases the authorities were unable to deliver letters to the applicants at their designated addresses. The Serbian authorities therefore held a meeting with the representatives of UNMIK on 22 October 2013. At that meeting, the representatives of UNMIK expressed their willingness to offer their assistance concerning the delivery of letters to the applicants.

The authorities also indicated that 51 decisions have been taken to resume payment of pensions. These decisions also stipulated payment of arrears up to 12 months back due to the applicable statute of limitation.

The Serbian authorities furthermore stressed that 1,244 applications for resumption of payment of pensions were rejected mostly on account of the fact that these applicants were receiving pensions in Kosovo^*. Namely, pursuant to the relevant legal provision, a pension beneficiary entitled to two or several pensions on the territory of Republic of Serbia may only exercise the right to one pension according to his/her own choice. The authorities emphasised that this legal situation was different from the Grudić case, in which the Court found no evidence that the applicants were recipients of the so-called “Kosovo* pensions” (§82 of the judgment).

As regards the judicial review, the Serbian authorities indicated that it was open to applicants whose applications for resumption of payment of pension were rejected to lodge an appeal to the second instance administrative authority. Should this appeal be rejected, it is possible to bring administrative proceedings before the Administrative Court. The Serbian authorities therefore consider that refusals to resume payment of pension at issue have a clear basis in domestic law and are subject to effective judicial review.

Application

Case

Judgment of

Final on

31925/08

GRUDIĆ

17/04/2012

24/09/2012

Application: 26828/06

Judgment final on 26/06/2012

KURIĆ AND OTHERS

Enhanced procedure: pilot judgment

Reference texts:

Communication from Slovenia (23/10/2013) DH-DD(2013)1171

Communication from Slovenia (additional information) (13/11/2013) DH-DD(2013)1276

Communication from Slovenia (additional information) (22/11/2013) DH-DD(2013)1283

Decision adopted at the 1179th meeting (September 2013)

Case description: The case primarily concerns a violation of the applicants’ right to their private and/or family lives in that they had been deprived, automatically and without prior notification, of their status as permanent residents in Slovenia after its declaration of independence (violation of Article 8). The “erasure” of the resident status concerned an entire category of former citizens of Socialist Federal Republic of Yugoslavia (the “SFRY”) who had permanent residence in Slovenia and the citizenship of one of the other SFRY republics at the time of Slovenia’s declaration of independence. 

The case also concerns the lack of an effective remedy on account of the applicants’ complaints under Article 8 (violation of Article 13 in conjunction with Article 8).

Lastly, the case concerns the discrimination against the applicants whose situation was significantly altered after the declaration of independence of Slovenia when compared with that of aliens who did not originate from other SFRY republics (violation of Article 14 in conjunction with Article 8).

In this case, the Court applied the pilot-judgment procedure and requested the respondent State to introduce within one year after the judgment became final (i.e. by 26/06/2013), an ad hoc domestic compensation scheme for the “erased” who are still denied compensation for the infringement of their fundamental rights. At the same time, the Court decided to adjourn for one year the examination of all similar applications pending the adoption of the remedial measures at issue.

Status of execution

Individual measures: On 12 September 2012, the Slovenian authorities paid to the applicants the just satisfaction awarded in respect of non-pecuniary damages. As far as the question of compensation for pecuniary damages is concerned, the Court considered that this question must be reserved having due regard to any agreement which might be reached between the Government and the applicants and in the light of the individual or general measures that may be taken by the authorities in the execution of the present judgment. The Court also invited the Government and the applicants to submit, within three months, their written observations on the matter.

Following the delivery of the Court’s judgment, the Slovenian authorities started friendly settlement negotiations with the applicants. However, the authorities requested the extension of the deadline set by the Court on two occasions because it was not possible to conclude these negotiations. The last deadline concerning the friendly settlement negotiations set by the Court on 7 March 2013 expired on 24 June 2013. On 24 June 2013, the Slovenian authorities informed the Court of the content of the offers made to the applicants ranging from 60 318 EUR to 234 255 EUR (these offers were made on the basis of the individual circumstances of each applicant). However, no information has been provided to the Committee on the outcome of these negotiations.

General measures: The Slovenian authorities have so far provided the following information to the Committee:

a) Legislative measures: A special draft law setting up a compensation scheme for the “erased” was prepared. On 25 July 2013, the Government approved the draft law and transmitted it to Parliament. Parliament adopted the draft law in first reading on 24 September 2013 and the competent parliamentary body adopted the amendments to the draft law at the second reading on 5 November 2013. The Slovenian Parliament adopted the draft law on 21 November 2013 (see details below). The deadline set by the Court to the Slovenian authorities expired on 26 June 2013.

b) Beneficiaries: The draft law provides that the beneficiaries of the compensation scheme will be the “erased” persons who obtained a residence permit or Slovenian citizenship. At its 1179th meeting (September 2013) (DH), the Committee of Ministers urged the Slovenian authorities, in the course of further readings of the law in Parliament and its explanatory notes, to devote special attention to developing a proper solution with regard to the application of the scheme to those beneficiaries who applied for citizenship or permanent residence permits and were rejected. In their submission of 23 October 2013, the Slovenian authorities indicated that amendments to the draft law would be prepared on the basis of the Committee’s decision and be tabled by 30 October 2013 at the latest. In their submission of 13 November 2013, the Slovenian authorities indicated that the scope of the beneficiaries was modified at the second reading of the draft law.

It is recalled that the authorities provided the following statistical information regarding the number of “erased” persons: 25 671 persons were erased (1 302 of them have deceased since their erasure). Out of 24 369 “erased” persons, 10 046 have settled their residence status (2 807 persons have obtained residence permit and 7 239 persons have obtained Slovenian citizenship). An unspecified number of “erased” persons have voluntarily left Slovenia. 987 applications for residence permits have been received recently (175 applications have been rejected so far, while 138 residence permits have been issued; 674 applications are currently being examined).

c) Compensation scheme: The amount of compensation shall be calculated on the basis of the number of months that a beneficiary remained “erased” (50 EUR of compensation shall be paid for each month of “erasure”). The amount of lump sum compensation was determined on the basis of other compensation schemes that were introduced in Slovenia in the past, such as compensation awarded to victims of war and post-war violence in Slovenia. The lump sum compensation will cover both pecuniary and non-pecuniary damages sustained. Administrative proceedings will apply to lump-sum compensation claims.

The reimbursement procedure will be as follows: The beneficiaries who will be entitled to receive more than 1 000 EUR of compensation will be paid an initial amount of 1 000 EUR immediately. The outstanding sums will be paid in several instalments.

In addition to the lump sum compensation, the beneficiaries will also be entitled to claim additional damages that they incurred during the period of their erasure if such damages exceed the total amount of the compensation awarded in administrative proceedings. The beneficiaries are expected to prove these additional damages in court proceedings. The amount of the compensation to be awarded for additional damages shall not exceed three times the lump-sum compensation.

d) Other measures: The beneficiaries will also be entitled to a range of other benefits in medical, social, education and other sectors aimed at facilitating their reintegration in the Slovenian society.

Application

Case

Judgment of

Final on

26828/06

KURIĆ AND OTHERS

26/06/2012

Grand Chamber

Application: 42750/09

Judgment final on 21/10/2013

DEL RIO PRADA

Classification proposal

Reference texts:

Communication from Spain (11/11/2013) DH-DD(2013)1248

Communication from Spain (individual measures) (31/10/2013) DH-DD(2013)1176

Communication from NGOs (Collective of victims of terrorism in the Basque country and on behalf of 9 other NGOs) (26/11/2013) and reply of the authorities (29/11/2013) DH-DD(2013)1294E

Case description: This case concerns the retrospective application of a new precedent set by the Supreme Court in its judgment No. 197/2006 (known as the “Parot doctrine”), which was not foreseeable for the applicant and which adversely modified the scope of the penalty that had been imposed to her, authorising her continued detention beyond the date initially foreseen for her final release (violations of Articles 7 and 5§1).

The applicant was sentenced between 1988 and 2000 to imprisonment totalling over 3,000 years for terrorist attack-related offences. All these sentences were handed down under the 1973 Criminal Code – repealed in 1995 – which set a thirty-year maximum limit of imprisonment in case of multiple convictions (Art. 70§2). The 1973 Code also provided for remissions of sentence for work done in prison (Art. 100). The thirty-year limit was applied to the applicant by a court decision given in 2000, after her last conviction. In accordance with the constant prison and court practice at that time, the remissions of sentence for work in prison were applied to the thirty-year maximum limit of imprisonment. Judgment No. 197/2006 of the Supreme Court made a departure in case-law, whereby the remissions of sentence were to be applied to each of the imposed sentences individually. The application of this departure in case-law to the applicant in 2008 resulted in postponing the date of her final release from 2 July 2008 (date set under the former method) to 27 June 2017 (date of the expiry of the thirty‑year maximum limit).

The European Court considered that the recourse in the present case to the new approach to the application of remissions of sentence led to the redefinition of the “scope” of the penalty imposed to the applicant (§109). Consequently, the application of the new precedent to her situation breached the prohibition of retrospective application of the criminal law to the detriment of the accused. At the same time, since the continued detention of the applicant after 2 July 2008 had been authorised based on a departure from case-law the applicant could not have foreseen, the European Court concluded that since 3 July 2008 the applicant’s detention had not been “lawful” (§132).

Under Article 46 of the Convention, having regard to the particular circumstances of the case and to the urgent need to put an end to the violations of the Convention it had found, the Court indicated that it was incumbent on the respondent State to ensure that the applicant was released at the earliest possible date.

Status of execution: On 31 October and 15 November 2013, the Spanish authorities presented preliminary information which can be summarised as follows:

Individual measures: In response to the European Court’s judgment, the applicant was released on 22 October 2013, following a decision given the same day by the Audiencia Nacional.

Payment of the just satisfaction: The amount awarded for non-pecuniary damage was withheld by the authorities to offset against the applicant’s domestic debts. These debts result from the compensation due to the victims of the terrorist-related offences for which the applicant was convicted. The authorities also withheld the amounts awarded to the applicant for costs and expenses to offset against these debts. In this respect, it appears from the information provided by the authorities that the applicant’s counsel was paid by her.

General measures: The judgment was immediately published and widely disseminated.

The authorities underlined that the implementation of the judgment lies within the sole authority of the judiciary and that the judgment does not disclose a structural problem or a problem in the implementation of the criminal law now in force. It concerns the retrospective application of a precedent set by the Supreme Court in 2006 to sentences imposed for acts committed under the Criminal Code of 1973, which is no longer in force.

The criminal courts have already given several decisions following the judgment of the European Court, by which they upheld applications for release filed by convicted persons, upon assessment of the specific circumstances of each applicant. According to the information provided, as of 14 November 2013, twenty-five persons had been released.

The Criminal Division of the Supreme Court, sitting in plenary session, endorsed the approach of the criminal courts in an agreement adopted on 12 November 2013. The agreement provides that the remissions of sentence applied to convictions handed down before 28 February 2006 under the Criminal Code of 1973 shall be calculated on the maximum limit of imprisonment set at 30 years by Article 70 of this Code, in accordance with the practice in force before judgment No. 197/2006 of the Supreme Court. Under the agreement, the decisions given by the criminal courts in the abovementioned cases can be appealed on points of law before the Supreme Court.

Application

Case

Judgment of

Final on

42750/09

DEL RIO PRADA

21/10/2013

Grand Chamber

Application: 25781/94

Judgment final on 10/05/2001

CYPRUS AGAINST TURKEY

Enhanced procedure: Inter-state case

Reference texts:

Interim Resolutions ResDH(2005)44, CM/ResDH(2007)25

Records of the 1164th meeting (March 2013) (confidential)

Information provided by Turkey

Communication concerning the question of missing persons (27/02/2013) DH-DD(2013)221

Intervention at the 1164th meeting (March 2013) (missing persons, property rights of displaced persons)
DH-DD(2013)240 (restricted)

Intervention at the 1157th meeting (December 2012) (property rights of displaced persons and of enclaved persons, missing persons) DH-DD(2012)1147 (restricted)

Communication concerning the question of missing persons (29/11/2013) DH-DD(2013)1302E

Information provided by Cyprus

Property rights of displaced persons and of persons living in the northern part of Cyprus, missing persons (01/03/2012) DH-DD(2012)259

Intervention at the 1157th meeting (December 2012) (Property rights of enclaved Greek Cypriots and their heirs, missing persons) DH-DD(2012)1148 (restricted)

Intervention at the 1164th meeting (March 2013) (missing persons) DH-DD(2013)241 (restricted)

Communication from a NGO (Organisation of relatives of undeclared prisoners and missing persons of Cyprus) (25/02/13) and reply of the Turkish authorities (04/03/13) DH-DD(2013)234

Decision adopted at the 1164th meeting (March 2013)

Decision adopted at the 1172nd meeting (June 2013)

Case description: Fourteen violations in relation to the situation in the northern part of Cyprus since the military intervention by Turkey in July and August 1974 concerning:

- home and immovable property of displaced Greek Cypriots (violation of Article 8 and 13 and Article 1 of Protocol No. 1)

- living conditions of Greek Cypriots in Karpas region of the northern part of Cyprus (violation of Articles 3, 8, 9, 10 and 13 and Articles 1 and 2 of Protocol No. 1)

- Greek-Cypriot missing persons and their relatives (violation of Articles 2, 3 and 5)

- rights of Turkish Cypriots living in northern part of Cyprus (violation of Article 6).

Status of execution:

I. Issues currently examined by the Committee of Ministers

1) Home and immovable property of displaced Greek Cypriots 

a) Measures taken by the respondent state and findings of the European Court in this respect

Following the judgment of 22/12/2005 in the Xenides-Arestis case, an "Immovable Property Commission" was set up under "Law No. 67/2005 on the compensation, exchange or restitution of immovable property". In its judgment in application of Article 41 in the Xenides-Arestis case, the Court found that "the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005".

In its inadmissibility decision in the Demopoulos and 7 other cases delivered on 5 March 2010, the Grand Chamber found that Law 67/2005, which set up the Immovable Property Commission in the northern part of Cyprus, "provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots" (§127 of that decision).

b) Assessment of the Committee of Ministers

At the June and September 2010 meetings, the Committee examined the question of the consequences of the Grand Chamber's inadmissibility decision in the Demopoulos case.

For more details on the positions expressed in that regard, see the Records of the June 2010 meeting (confidential document CM/Del/Act/DH(2010)1086-final) and the information document CM/Inf/DH(2011)32. The Secretariat's assessment of this issue is presented in two information documents, namely CM/Inf/DH(2010)21 and CM/Inf/DH(2010)36.

c) Request of the Government of Cyprus for a suspension of the examination of this issue

In December 2011 (1128th Deputies’ meeting, DH), the delegation of Cyprus requested the Committee of Ministers to suspend its examination of this question until the Court has pronounced itself on the application filed with the Court by the Government of Cyprus, in November 2011, under Article 41 of the Convention.

Whilst taking note of this request, the Committee decided to continue its discussion at its Human Rights meeting of March 2012. Since then, on the occasion of its examination of the issue (June/December 2012 and March 2013) the Committee noted that there have been no new developments on this issue.

d) Latest examination by the Committee of Ministers

In June 2013, the Committee decided to resume consideration of these questions at its DH 1193rd meeting of (March 2014) (DH), in the light of all relevant facts.

2) Property rights of Greek Cypriots residing in the northern part of Cyprus

For more details see the notes prepared for the 1172nd meeting (June 2013).

Latest examination by the Committee of Ministers

At its 1172nd meeting, the Committee took note of the assessment of these questions presented in Information document CM/Inf/DH(2013)23, prepared by the Secretariat. The Committee invited interested delegations to provide the Secretariat by 30 June 2013 with the precise questions they considered still needed to be clarified and decided to resume the examination of the property rights of enclaved persons at the latest at its 1193rd meeting (June 2014), in the light of the responses submitted by the Turkish delegation to these questions. Only the delegation of Cyprus submitted questions in the time limit laid down (see DH-DD(2013)741).

3) Greek Cypriot missing persons and their relatives

For more details see the notes prepared for the 1164th meeting (March 2013).

Latest examinations by the Committee of Ministers

At their 1164th meeting (March 2013) (DH), the Deputies notably recalled the necessity to adopt a proactive approach as regards effective investigations into the fate of persons who are still missing and called on Turkey to continue providing the Committee on Missing Persons in Cyprus (CMP) with all relevant information and access to all relevant places. In this respect, the Deputies welcomed the permissions granted so far and the assurance of the Turkish authorities that they will continue granting the CMP access to other relevant military zones.

As regards identified persons, while underlining once again the urgency to effectively investigate the deaths of these persons, the Deputies welcomed the additional concrete investigative steps taken by the Turkish authorities and invited them to regularly inform the Committee of the progress made in this respect as well as of any results achieved. On this last point, the Deputies also underlined the crucial importance of investigators having access to forensic data and evidence kept by the CMP and in addition called upon the Turkish authorities to continue granting them access to the relevant Turkish archives and reports. The Deputies agreed in addition to invite the CMP for an exchange of views at one of their forthcoming meetings (DH).

At the 1172nd meeting (June 2013) (DH), the Committee noted that the CMP had accepted the invitation for an exchange of views and that it had been agreed that this exchange of views would take place at the 1186th meeting (December 2013) (DH).

II. Issues whose examination has been closed:

Following the measures adopted by the authorities of the respondent state with a view to complying with the present judgment, the Committee of Ministers decided to close the examination of the following issues:

1) living conditions of the Greek Cypriots living in northern Cyprus, as regards secondary education, the censorship of schoolbooks and the freedom of religion,

2) rights of Turkish Cypriots living in northern part of Cyprus (competence of the military courts).

For more details, see Interim resolutions ResDH(2005)44 and CM/ResDH(2007)25.

Application

Case

Judgment of

Final on

25781/94

CYPRUS AGAINST TURKEY

10/05/2001

Grand Chamber

Application: 16064/90

Judgment final on 18/09/2009

VARNAVA AND OTHERS

Enhanced procedure: complex problem

Reference texts:

Interim Resolution CM/ResDH(2013)201

Communication from Turkey concerning the missing persons(27/02/2013) DH-DD(2013)221

Intervention from Turkey at the 1164th meeting (March 2013) (missing persons) DH-DD(2013)240 (Restricted)

Communications from the applicants’ representative

(22/02/2013) DH-DD(2013)201, (29/05/2013) DH-DD(2013)623 (10/09/2013) DH-DD(2013)948,
(12/09/2013) DH-DD(2013)973; (29/11/2013) DH-DD(2013)1301E

Decision adopted at the 1179th meeting (September 2013)

Case description: Failure to conduct effective investigations into the fate of nine Greek Cypriots who had disappeared during the military operations carried out by Turkey in Cyprus in 1974 (violation of Article 2); inhuman treatment of the relatives of the missing persons due to the authorities' silence in face of their real concerns (violation of Article 3); and failure to conduct effective investigations into the whereabouts of two of the nine missing men, in respect of whom there has been an arguable claim that they had been detained at the time of their disappearance (violation of Article 5).

Status of execution: Individual measures: the Turkish authorities have indicated that the Committee of Missing Persons in Cyprus (CMP) continues its work regarding the eight persons who are still missing in this case (see also the measures examined within the framework of the Cyprus against Turkey case). They submitted information on the progress of the investigation opened in relation to the case of Mr Hadjipanteli, whose remains have been found and identified by the CMP in 2007 (see DH-DD(2013)221).

As regards the question of the payment of the just satisfaction, at the 1179th meeting (September 2013) (DH), the Committee adopted Interim Resolution CM/ResDH(2013)201, deeply deploring that Turkey had still not complied with its unconditional obligation to pay the sums awarded in the judgment of the European Court, and exhorting Turkey to pay, without further delay, these sums, as well as the default interest due.

General measures: see the measures examined within the framework of the Cyprus against Turkey case.

Application

Case

Judgment of

Final on

16064/90+

VARNAVA AND OTHERS

18/09/2009

Grand Chamber

Application: 40450/04, 56848/00

Judgment final on 15/01/2010, 29/09/2004

YURIY NIKOLAYEVICH IVANOV

ZHOVNER GROUP

Enhanced procedure: pilot judgment, complex problem

Reference texts:

Information documents CM/Inf/DH(2007)30-rev, CM/Inf/DH(2012)29, CM/Inf/DH(2013)11

Interim Resolutions CM/ResDH(2008)1, CM/ResDH(2009)159, CM/ResDH(2010)222,
CM/ResDH(2011)184, CM/ResDH(2012)234

Communications from the Registry of the European Court

(21/01/2011) DH-DD(2011)54, (09/09/2011) DH-DD(2011)757

Press release (29/02/2012) ECHR 086 (2012)

Correspondence between the Chairman of the Ministers’ Deputies and the Registrar of the European Court (17/07/213) DH-DD(2013)830

Communication from the Registry of the European Court (26/07/2013) DH-DD(2013)861

Communications from Ukraine

Communication on the general measures (24/10/2013) (Ivanov) DH-DD(2013)1165

(20/09/2013) DH-DD(2013)1051, (05/12/2012) DH-DD(2012)1139, (01/11/2012) DH-DD(2012)1065, (09/09/2011) DH-DD(2011)705, (30/07/2012) DH-DD(2012)775, (03/06/2011) DH-DD(2011)433

Decision adopted at the 1164th meeting (March 2013)

Case description: Important structural problem of non-enforcement or delayed enforcement of domestic judicial decisions, mostly delivered against the State and against State enterprises, and lack of an effective remedy in this respect (violations of Articles 6§1, 13 and Article 1 of Protocol No. 1).

Pilot judgment delivered by the Court in October 2010 in the Yuriy Nikolayevich Ivanov case: The Court noted that specific reforms in Ukraine's legislation and administrative practice should be implemented without delay to resolve this problem and set a specific deadline to 15/07/2011 for the setting-up of an effective domestic remedy in this respect. The Court further invited the respondent state to settle on ad hoc basis all similar applications lodged with it before the delivery of the pilot judgment (1600) and decided to adjourn the examination of similar cases.

Status of execution: The Committee of Ministers has been examining the cases in the Zhovner group since 2004. It adopted five Interim Resolutions so far (two before the pilot judgment and three since then; the last Interim Resolution was adopted at the last Human Rights meeting held in December 2012).

Individual measures: Information on individual measures is still awaited in a number of cases in the Zhovner group (i.e. the enforcement of domestic judicial decisions), as well as information on the payment of the just satisfaction awarded by the Court.

General measures: Since the pilot judgment, the Committee has mainly concentrated on the issue of setting up domestic remedies: the law “On State guarantees concerning execution of judicial decisions” was adopted by Parliament on 5 June 2012 and entered into force on 1 January 2013. It introduced a new specific procedure for the execution of domestic judicial decisions delivered against the State after its entry into force. However, a domestic remedy in respect of the “old” judicial decisions, that is those delivered before 1st January 2013, was still required.

In this situation, the Registrar of the Court, in his letter of 24 June 2013, drew the attention of the Chairman of the Committee to the fact that the Court continues to receive numerous new repetitive applications (500 per month on average since the beginning of 2013). In response, high-level consultations were organised in Kyiv on 12 September 2013 with the participation of representatives of the Registry of the Court, the Department for the Execution of the Court’s judgments and the Secretariat of the Committee of Ministers, with a view to discussing possible solutions to the still outstanding problems.

On 19 September 2013, Parliament adopted amendments to the above-mentioned law, enlarging its applicability to “old” judicial decisions (the amendments are in force since 16 October 2013). The Ukrainian authorities provided, on 24 October 2013, certain details concerning these amendments which established three payment orders of debts by giving priority to those originating from (1) pensions and various social benefits, (2) from work relations, followed by (3) “all other” debts. The amount of the necessary budgetary funds will be established by yearly budgetary laws. The creditors will have six months in order to apply to the authorities. However, the debt in question can still be claimed even if this deadline is not met. Besides, the government will have one year to draw up the list of debts.

Application

Case

Judgment of

Final on

40450/04

YURIY NIKOLAYEVICH IVANOV

15/10/2009

15/01/2010

56848/00

ZHOVNER GROUP (list of cases)

29/06/2004

29/09/2004

Application: 21722/11

Judgment final on 27/05/2013

OLEKSANDR VOLKOV

Enhanced procedure: urgent individual measures, complex problem

Reference texts:

Action plan (22/07/2013) DH-DD(2013)834

Communication from the authorities (24/10/2013)DH-DD(2013)1166

Communication from the applicant (19/07/2013) DH-DD(2013)836

Communication from the applicant’s representative (15/11/2013) DH-DD(2013)1274

Communications from NGOs which can be found on the web site of the Department for the Execution of Court’s judgments: (http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/UKR-ai4_en.asp

Decision adopted at the 1179th meeting (September 2013)

Case description: The case concerns 4 violations of the applicant’s right to a fair hearing on account of his unlawful dismissal from his post as a judge at the Supreme Court of Ukraine in June 2010 (Article 6§1):

1)    Dismissal proceedings not independent and not impartial and lack of effective judicial control;

2)    Absence, in domestic legislation, of a limitation period for the proceedings against the applicant;

3)    Different irregularities in the voting process before Parliament concerning the applicant’s dismissal (absence of the majority of MPs, and those present deliberately and unlawfully cast multiple votes belonging to their absent peers);

4)    Irregularities in the setting-up and composition of the special chamber of the High Administrative Court dealing with the applicant’s case.

The dismissal was also found to amount to a violation of the applicant’s right to respect for private life (Article 8) as the interference was not compatible with the domestic law and as, moreover, the domestic law did not meet the requirements of foreseeability and did not provide appropriate protection against arbitrariness.

Considering the special circumstances identified in the judgment, the Court made specific indications under Article 46 in order to execute this judgment, as follows:

On individual measures: The Court held “that the respondent State shall secure the applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date” (§§207-208).

On general measures: The Court noted that “the present case discloses serious systemic problems as regards the functioning of the Ukrainian judiciary” (§199). The Court indicated that Ukraine should urgently put in place general reforms in its legal system, notably by taking “a number of general measures aimed at reforming the system of judicial discipline. These measures should include legislative reform involving the restructuring of the institutional basis of the system. Furthermore, these measures should entail the development of appropriate forms and principles of coherent application of domestic law in this field” (§§200 + 202).

Status of execution: The Committee of Ministers examined this case for the first time at its 1172nd meeting (June 2013) (DH). The Ukrainian authorities submitted an action plan on 22/07/2013 (see DH-DD(2013)834) and updated information on 24/10/2013 (see DH-DD(2013)1166).

Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage. As regards the question of compensation for pecuniary damage, the Court held that it was not ready for decision and accordingly reserved that question.

As regards the applicant’s reinstatement in his previous post, it is recalled that the applicant informed the Committee in July 2013 (see DH-DD(2013)836) that following the European Court’s judgment, he wrote to the then President of the Supreme Court in February 2013, asking for his reinstatement on the basis of the European Court’s judgment. His request was rejected in March 2013 on the basis that the Parliament’s resolution to dismiss him remained valid. In July 2013, upon another request, he received a confirmation from the President of the Supreme Court that there are currently 2 judicial vacancies at the Supreme Court.

In this connection, the applicant further informed the Committee that already in February 2013, a Member of Parliament submitted a draft resolution to Parliament, proposing to annul the Parliament’s previous resolution to dismiss him.

In its decision adopted at the 1179th meeting (September 2013) (DH), the Committee, considering Ukraine’s unconditional obligation to secure the applicant’s reinstatement in his previous post as judge at the Supreme Court at the earliest possible date, urged the Ukrainian authorities to fulfil this obligation without delay, also noting the present opportunity of vacancies at the Supreme Court.

The Ukrainian authorities have reported no progress in this respect in their latest information submitted on 24 October 2013.

On 15 November 2013, the applicant submitted a new communication (DH-DD(2013)1274), in particular complaining about certain payment problems and the absence of action on the part of the Ukrainian Government to ensure his reinstatement as judge of the Supreme Court. In this context, he informed the Committee that on 5 November 2013, the Ukrainian Parliament elected a new judge to the Supreme Court, as a result of which there now remains only one vacancy.

General measures: At its last examination of this case at the 1179th meeting, the Committee noted with interest the measures envisaged by the Ukrainian authorities in their action plan of 22 July 2013[7], notably the restructuring of the institutional basis of the system of judicial discipline including the necessary constitutional changes. The Committee emphasised however that a number of aspects of the system of judicial discipline also require measures so as to remedy the other shortcomings found by the Court in this case (e.g. the effective judicial control by the High Administrative Court over decisions taken by the High Council of Justice; the definition of “breach of oath”; different procedural safeguards, including limitation periods and an appropriate scale of sanctions; respect for the principle of proportionality). Consequently, the Committee urged the Ukrainian authorities to transmit a revised action plan setting out the progress achieved and the additional measures envisaged in response to the outstanding questions, accompanied with a provisional timetable for their adoption and implementation, by the end of October 2013 at the latest.

In response to this decision, the Ukrainian authorities provided further information on 24 October 2013, according to which the Constitutional Court has held the proposed constitutional amendments (draft “Law on the amendments to the Constitution of Ukraine as regards the strengthening the independence of judges”) to be in conformity with the Constitution. Subsequently, these amendments were approved by Parliament in 1st reading on 10 October 2013.

Application

Case

Judgment of

Final on

21722/11

OLEKSANDR VOLKOV

09/01/2013

27/05/2013

Application: 49872/11

Judgment final on 30/07/2013

TYMOSHENKO

Enhanced procedure: urgent individual measures and complex problem

Reference texts:

Action plan (26/11/2013) DH-DD(2013)1282E

Communication from the applicant (04/09/2013) DH-DD(2013)940

Communication from the authorities (24/10/2013) DH-DD(2013)1167

Decision adopted at the 1179th meeting (September 2013)

Case description: This case concerns 4 violations of the applicant’s right to liberty and security (Articles 5§1 + 5§4 + 5§5 and Article 18 taken together with Article 5) on various accounts in the context of criminal proceedings initiated against her, most notably those initiated in April 2011 for alleged abuse of power while serving as Prime Minister of Ukraine, in relation to an agreement on gas importation concluded between the State-owned enterprise Naftogaz of Ukraine and the Russian enterprise Gazprom in January 2009.

As regards the violation of Article 18 taken together with Article 5, the Court noted the overall similarity of the circumstances of this case to those examined in Lutsenko v. Ukraine and held notably that “although the applicant’s detention was formally effected for the purposes envisaged by Article 5§1(c) of the Convention, both the factual context and the reasoning advanced by the authorities … suggest that the actual purpose … was to punish the applicant for a lack of respect towards the court which it was claimed she had been manifesting by her behaviour during the proceedings. In the light of these considerations and using a similar approach to the one … applied … in the Lutsenko case, the Court cannot but find that the restriction of the applicant’s liberty permitted under Article 5§1(c) was applied not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons” (see §§299-300 of the judgment).

The other violations found by the Court concern other aspects of the applicant’s detention on remand from her arrest on 5 August 2011 until her conviction on 11 October 2011 (violation of Article 5§1); the inadequate scope and nature of the judicial review of the lawfulness of her continued detention on remand (violation of Article 5§4); and the lack of an effective opportunity to receive compensation for her unlawful detention (violation of Article 5§5).

Status of execution: The Committee of Ministers examined this case for the first time at its 1179th meeting (September 2013) (DH). The Ukrainian authorities provided information on 24/10/2013 (see DH-DD(2013)1167).

Individual measures: The applicant did not submit any claims in respect of damage during the proceedings before the European Court. She has, however, sought redress by requesting the reopening of the criminal proceedings in the context of which the present violations took place.

During its examination of this case at the 1179th meeting (September 2013) (DH), the Committee noted with concern that the High Specialised Court for Civil and Criminal Cases, on 6 September 2013, rejected her request on formal grounds, without any substantial examination of the possible impact of the violation of Article 18 taken together with Article 5 on these proceedings. Consequently, the Committee invited the Ukrainian authorities to provide information on further possibilities which could be explored to ensure that the authorities draw all necessary consequences from the Court’s findings in the present case.

The Ukrainian authorities’ response was provided on 24 October 2013 (see DH-DD(2013)1167): the European Court had not found the applicant’s conviction unlawful and implementation of its judgment did not require any possibility to challenge the lawfulness of detention on remand once this detention had ceased.

General measures: It is recalled that the general measures in response to the violations of Articles 5§1, 5§4 and 5§5 relating to detention on remand are examined in the context of the Kharchenko group of cases.

In its decision adopted at the 1179th meeting, the Committee, recalling their decision in the Lutsenko case, reiterated the need to receive information from the Ukrainian authorities on the measures adopted and/or envisaged to ensure compliance with Article 18 taken together with Article 5 in the Ukrainian justice system, over and above the reform of the Code of Criminal Procedure, as well as its encouragement to continue to make full use of the co-operation programmes of which Ukraine is a beneficiary, with a view to putting rapidly in place these measures.

Responding to this in their communication of 24/10/2013 (see DH-DD(2013)1167), the Ukrainian authorities indicated their position that the general measures required for the execution of the present judgment were the same as for the Kharchenko group of cases. The Ukrainian authorities in particular referred to the new Code of Criminal Procedure. They also provided information on the publication and dissemination of the present judgment and indicated that they are considering the possibility to participate in international technical assistance programmes in order to maximise the execution of the Court’s judgments. No other information was transmitted.

Application

Case

Judgment of

Final on

49872/11

TYMOSHENKO

30/04/2013

30/07/2013

Application: 74025/01

Judgment final on 06/10/2005

HIRST No 2. GROUP

Enhanced procedure: pilot judgment

Reference texts:

Interim Resolution CM/ResDH(2009)160

Letter from the Registry of the European Court of Human Rights concerning the case of Firth and 2,280 others (23/10/2013) DH-DD(2013)1151

Letter from the Registry of the European Court concerning the case of Firth and 2353 others (Greens and M.T. case) (18/03/2013) DH-DD(2013)310

Communication from the United Kingdom (13/11/2013) DH-DD(2013)1261

Communication from the United Kingdom (09/10/2013) DH-DD(2013)1094

Communication from the United Kingdom (03/06/2013) DH-DD(2013)680

Action Plan (23/11/2012) DH-DD(2012)1106

Decision adopted at the 1179th meeting (September 2013)

Case description: Blanket ban on voting imposed automatically on the applicants due to their status as convicted offenders detained in prison (Violation of Article 3 of Protocol No. 1). Pilot judgment of 23/11/2010, Greens and M.T. (60041/08 and 60054/08, final on 11/04/2011).

Status of execution: Individual measures: In the event that the applicants are detained, their eligibility to vote will depend on the general measures adopted (see §§ 72, 93 and 94 of the judgment in Hirst).

General measures: Since the judgment in Hirst No. 2 became final in 2005, some initiatives were taken with a view to implementing the judgment, including two public consultations on possible changes to the law. However, no concrete steps were taken, and the Committee of Ministers expressed serious concern about the substantial delay in implementing the judgment in the interim resolution adopted on 3 December 2009. In the light of this delay, the European Court delivered a pilot judgment which gave the United Kingdom authorities until 23 November 2012 to introduce legislative proposals to amend the electoral law imposing a blanket restriction on voting rights of convicted offenders detained in prison, and achieve compliance with the Court's judgment in Hirst No. 2.

On 22 November 2012, the authorities introduced to Parliament legislative proposals on the voting rights of convicted offenders detained in prison (see Action plan (DH-DD(2012)1106), which were noted by the Committee with great interest at its examination of the cases in December 2012. However, the Committee, recalling §115 of the pilot judgment, which states that the legislative proposals should be introduced “with a view to the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst No. 2 according to any time-scale determined by the Committee of Ministers” also invited the authorities to keep the Committee regularly informed of progress made and on the proposed timescale.

Following that decision, the authorities submitted an updated action plan indicating that the legislative proposals were being reviewed in a process called “pre-legislative scrutiny” by a specially appointed parliamentary committee. That committee was due to make public recommendations to the government by 31 October 2013.

At its last examination of the cases, in September 2013, the Committee underlined the urgency of bringing the legislative process to a conclusion and urged the authorities to provide information on the proposed timescale without further delay.

The authorities subsequently submitted an updated action plans indicating that the parliamentary committee’s reporting date to Government has been extended until 18 December 2013, in motions passed by both Houses of Parliament (see the communications from the United Kingdom authorities DD-DH (2013)1094 and DD‑DH(2013)1261). Moreover, the Secretary General attended to give evidence before the parliamentary committee on 6 November 2013.

Once the parliamentary committee has reported, the government will introduce a finalised version of a Bill to parliament. No indication has been given on the proposed timescale for the enactment of the legislative proposals.

Meanwhile, on 23 October 2013, the Registry of the Court informed the Committee that the Court had decided to resume the examination of the 2,281 applications against the United Kingdom raising similar issues, which had been adjourned as a result of the pilot judgment (see the Court’s letter of 23 October 2013 addressed to the Committee DH-DD(2013)1151).

Application

Case

Judgment of

Final on

74025/01

HIRST No. 2

06/10/2005

Grand Chamber

60041/08+

GREENS AND M.T.

23/11/2010

11/04/2011

C. Classification of cases[10]

D. Supervision of payment of the just satisfaction

E. Action plans

ALBANIA / ALBANIE

58555/10

RRAPO

25/09/2012

25/12/2012

DH-DD(2013)1029

ARMENIA / ARMENIE

3627/06

GRIGORYAN

10/07/2012

17/12/2012

DH-DD(2013)1235

BOSNIA AND HERZGOVINA / BOSNIE-HERZEGOVINE

12959/05+

MAGO AND OTHERS

03/05/2012

24/09/2012

DH-DD(2013)1229

CZECH REPUBLIC / REPUBLIQUE TCHEQUE

37679/08

BUREŠ

18/10/2012

18/01/2013

DH-DD(2013)1143

GREECE / GRECE

54447/10

SAMPANI AND OTHERS

11/12/2013

29/04/2013

DH-DD(2013)1221

REPUBLIC OF MOLDOVA / REPUBLIQUE DE MOLDOVA

30951/10

GOROBET

11/10/2011

11/01/2012

DH-DD(2013)1213

THE NETHERLANDS / PAYS-BAS

11804/09

K.

27/11/2012

Decision with undertakings / Décision avec engagement

DH-DD(2013)1237

ROMANIA / ROUMANIE

55421/10

GHIURĂU

20/11/2012

29/04/2013

DH-DD(2013)1187

8759/05

CSOMA

15/01/2013

15/04/2013

DH-DD(2013)1218

SAN MARINO / SAINT-MARIN

44853/10

TONIOLO[11]

26/06/2012

19/11/2012

DH-DD(2013)1157

SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUE

5515/09

HORVÁTH

27/11/2012

27/02/2013

DH-DD(2013)1129

SPAIN / ESPAGNE

17966/10

MANZANAS MARTIN

03/04/2012

05/03/2013

03/07/2012

DH-DD(2013)1145

SWEDEN / SUEDE

36124/06

OLSBY

21/06/2012

21/09/2012

DH-DD(2013)1053

UKRAINE

38773/05

SAVITSKYY

26/07/2012

26/10/2012

DH-DD(2013)1013

387/03

FEDORCHENKO AND LOZENKO

20/09/2012

20/12/2012

DH-DD(2013)1012