CONTENTS

B. Classification of cases[1]

Application

Case

Judgment of

Final on

3344/13

ATAUN ROJO

07/10/2014

07/01/2015

74016/12

ETXEBARRIA CABALLERO

07/10/2014

07/01/2015

C. Examination of cases proposed for the present meeting – Proposal from the Chair

1

MAHMUDOV AND AGAZADE GROUP

AZERBAIJAN

18/03/2009

Violation of right to freedom of expression, arbitrary application of law.

To follow up the decision adopted at the 1230th meeting.

1230th meeting

June 2015

2

NAMAT ALIYEV GROUP

AZERBAIJAN

08/07/2010

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

To follow up the decision adopted at the 1230th meeting.

1230th meeting

June 2015

3

ILGAR MAMMADOV

AZERBAIJAN

13/10/2014

Imprisonment for reasons other than those permitted by Article 5, namely to punish the applicant for having criticised the government (Article 18 taken in conjunction with Article 5).

To follow up the decision adopted at the 1230th meeting.

1230th meeting

June 2015

4

INSANOV

AZERBAIJAN

14/06/2013

Violation of Article 3 due to inhuman and degrading detention conditions; Violations of Article 6 in criminal and civil proceedings.

To assess the action plan and to request outstanding information, in particular, under the individual measures.

First examination

5

DUMONT GROUP

BELGIUM

28/07/2005

Excessive length of civil and criminal proceedings (Article 6 § 1) and, in several cases, lack of an effective remedy (Article 13).

To call for an update of the information on individual and general measures, no follow-up having been given to date, to the decision adopted by the Committee in September 2013. 

1179th meeting

September 2013

6

KEHAYOV GROUP +

NESHKOV AND OTHERS

BULGARIA

18/04/2005

01/06/2015

Structural problem highlighted by the European Court in the Neshkov and Others pilot judgment concerning conditions of detention in investigative detention facilities and prisons (overcrowding, poor sanitary and material conditions) and lack of an effective remedy in this respect.

The deadline set by the Court for introducing effective preventive and compensatory remedies expires on 01/12/2016.

To assess the measures taken and/or envisaged, in accordance with the revised action plan submitted on 06/07/2015 and to underline the importance of introducing effective domestic remedies by the deadline set in the Neshkov and Others pilot judgment

1172nd meeting

June 2013

7

- DJANGOZOV GROUP

- KITOV GROUP

- DIMITROV AND HAMANOV

- FINGER

BULGARIA

08/10/2004

03/07/2003

10/08/2011

10/08/2011

Excessive length of judicial proceedings, pilot judgments, deadline expired in August 2012.

To assess the progress achieved in the outstanding questions.

To examine the proposal of the authorities to conclude the Committee’s supervision of the pilot judgments Finger and Dimitrov and Hamanov and 54 cases of the Kitov and Djangozov groups, as well as of their action plan for the outstanding questions.

1179th meeting

September 2013

8

MAKARATZIS GROUP

GREECE

20/12/2004

a) Use of potentially lethal force by police officers and shortcomings of the domestic law regulating the use of arms by law enforcement officers (Article 2)

b) Ill-treatment of individuals under police responsibility (Article 3) and

c) Ineffective investigations or failure to investigate incidents of risk of life due to use of force by police officers or ill-treatment by police (Articles 2 and 3).

To assess the measures taken to prevent future violations as a result of ill-treatment under police responsibility and the failure to investigate incidents of risk of life or ill-treatment by law enforcement officers.

1157th meeting

December 2012

9

ISTVÁN GÁBOR KOVÁCS GROUP + VARGA AND OTHERS

HUNGARY

17/04/2012

10/06/2015

Structural problem highlighted by the European Court applying the pilot judgment procedure: inhuman and/or degrading treatment due to overcrowding and poor material conditions of detention (Article 3), lack of effective remedies in that regard (Article 13 in conjunction with Article 3) and several other dysfunctions regarding the protection of prisoners' rights.

To assess the measures already taken and/or still envisaged according to the updated action plan of 3 July 2015 and to emphasise the importance of the timely compliance with the pilot judgment delivered by the Court.

First examination

10

MOSTACCIUOLO GIUSEPPE No. 1 GROUP +

GAGLIONE AND OTHERS

ITALY

29/03/2006

20/06/2011

Insufficient amount and delay in payment of the awards made in the context of “Pinto” remedy; excessive length of the “Pinto” proceedings (violations of Articles 6 § 1 and/or 1 of Protocol No. 1).

To review the progress made in ensuring payment of sums awarded under the “Pinto” Law and to address the questions raised by the 2012 reform of the remedy.

To adopt a final resolution in 34 cases relating to the resolved problem of the insufficient amount of the compensation awarded in the context of the “Pinto” remedy.

1172nd meeting

June 2013

11

GENDERDOC-M

REPUBLIC OF MOLDOVA

12/09/2012

Violation of the right to peaceful assembly (violation of Article 11); lack of an effective remedy in this respect (violation of Article 13 in conjunction with Article 11); discrimination on account of the authorities’ failure to authorise demonstrations which they considered to promote homosexuality (violation of Article 14 in conjunction with Article 11).

To take stock of the updated action plans of March 2014 and July 2015 and to identify the outstanding questions.

First examination

12

LINDHEIM AND OTHERS

NORWAY

22/10/2012

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

To assess the action report and in the light of the measures taken to decide on the proposal to transfer the case to the standard procedure.

1186th meeting

December 2013

13

AL NASHIRI GROUP

POLAND

16/02/2015

Various violations related to secret rendition operations.

To examine the urgent individual measures.

1230th meeting

June 2015

14

PODBIELSKI GROUP KUDŁA GROUP

POLAND

26/10/2000

30/10/1998

Excessive length of criminal and civil proceedings (Article 6 § 1), and lack of an effective remedy (Article 13).

To assess the status of execution of these two groups of cases.

1179th meeting

September 2013

15

OAO NEFTYANAYA KOMPANIYA YUKOS

RUSSIAN FEDERATION

08/03/2012,

15/12/2014

Insufficient time for the preparation of the defence of the applicant company (Article 6); unlawful imposition and calculation of penalties in tax-assessment proceedings (Article 1 of Protocol No. 1); unfair proceedings to enforce payment of taxes and penalties imposed (Article 1 of Protocol No.1).

To express concern about the failure to provide, within the deadline set by the Court, a distribution plan for the award made in respect of pecuniary damage and to strongly encourage the Russian authorities to provide it without further delay.

1230th meeting

June 2015

16

KHASHIYEV AND AKAYEVA GROUP

RUSSIAN FEDERATION

06/07/2005

Group of cases concerning the action of the security forces, mostly in the Chechen Republic (Articles 2, 3, 5, 6, 8, 13, 38 and Article 1 of Protocol No. 1).

Specific measures indicated under Art. 46 concerning the continued suffering of the families of disappeared persons and concerning the ineffectiveness of criminal investigations into all abuses.

To take stock of the information provided in response to the last decision adopted at the 1222nd meeting.

1222nd meeting

March 2015

17

CATAN AND OTHERS

RUSSIAN FEDERATION[2]

19/10/2012

Violation of the right to education of the applicants, children or 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 follow up the decision adopted at the 1230th meeting.

1230th meeting

June 2015

18

GERASIMOV AND OTHERS

RUSSIAN FEDERATION

01/10/2014

Failure or serious delay of the authorities in abiding by final domestic judicial decisions and lack of a remedy in respect of decisions ordering in-kind obligations (Articles 6, 13 and Article 1 of Protocol No. 1). Pilot judgment requiring the setting-up of a remedy and the granting of redress in existing applications.

To assess the action plan provided on 17 July 2015 and, in particular, to encourage the authorities to undertake all necessary efforts with a view to meeting the Court’s deadline for the setting-up of the domestic remedy.

1222nd meeting

March 2015

19

GARABAYEV GROUP

RUSSIAN FEDERATION

08/09/2014

Different violations related to extradition (Articles 3, 5, 13 and 34).

Indications under Article 46, notably to ensure effective protection against abduction and irregular transfer, as well as effective investigations into such allegations.

To examine the information received from the Russian authorities in response to the last decision adopted at the 1233rd meeting.

1233rd meeting

8-9 July 2015

20

ALIŠIĆ AND OTHERS

SERBIA AND SLOVENIA^[3]

16/07/2014

Violations of the applicants’ right to peaceful enjoyment of their property on account of their inability to recover their “old” foreign-currency savings deposited in Bosnian-Herzegovinian branches of banks incorporated in Serbia and Slovenia respectively (violations of Article 1 of Protocol No. 1).

To follow up the decision adopted at the 1230th meeting.

1230th meeting

June 2015

21

CYPRUS v. TURKEY

TURKEY

10/05/2001

12/05/2014

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

To continue the debate on the issue of the property rights of enclaved persons, in accordance with the decision adopted at the 1222nd meeting (March 2015).

To continue the debate on the issue of the payment of the just satisfaction, in accordance with the decision adopted at the 1230th meeting (June 2015).

1172nd meeting

June 2013

22

VARNAVA AND OTHERS

XENIDES-ARESTIS GROUP

TURKEY

18/09/2009

22/03/2006

23/05/2007

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

Continuous denial of access to property in the northern part of Cyprus and consequent loss of control thereof (Article 1 Protocol No. 1). Violation of the right to respect for applicants' home in some cases (Article 8).

To examine the issue of payment of the just satisfaction.

1230th meeting

June 2015

23

YURIY NIKOLAYEVICH IVANOV

ZHOVNER GROUP

UKRAINE

15/01/2010

29/09/2004

Non-enforcement of domestic court decisions against the State or State owned enterprises (Articles 6 § 1 and 1 Protocol No. 1), pilot judgment, deadline expired in July 2011.

To take stock of the current situation and to urge the authorities to take resolute measures with a view to finding a long term viable solution to the problem at issue.

1230th meeting

June 2015

24

AGROKOMPLEKS

UKRAINE

08/03/2012

09/12/2013

Unfairness of commercial proceedings involving the applicant company and infringement of the right to peaceful enjoyment of its possessions.

To take stock of the situation with respect to the payment of just satisfaction and to request additional information in respect of the general measures.

First examination

25

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).

To follow up the decision adopted at the 1208th meeting urging the United Kingdom authorities to introduce a bill to amend the blanket ban on prisoner voting as soon as possible.

1208th meeting

September 2014

Application: 35877/04

Judgment final on 18/03/2009

MAHMUDOV AND AGAZADE GROUP

Enhanced procedure: Complex problem

Reference texts:

Letter from the Chair of the Committee of Ministers (27/01/2014) DH-DD(2014)149

Letter from the Secretariat (01/07/2014) Follow-up to the decision adopted at the 1201st meeting
DH-DD(2014)859 and reply by the authorities (31/07/2014) DH-DD(2014)907

Interim Resolutions CM/ResDH(2013)199, CM/ResDH(2014)183

Information document CM/Inf/DH(2011)7

Reply to Interim Resolution CM/ResDH(2014)183 (26/11/2014) DH-DD(2014)1454

Communication from the authorities (20/09/2014) DH-DD(2014)1115

Action plan (26/02/2014) DH-DD(2014)276, (13/01/2014) DD(2014)50

Information previously 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

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

Observations of the Commissioner for Human Rights on Azerbaijan, CommDH(2014)10 (23/04/2014) and comments of the Azerbaijani authorities on the observations of the Commissioner

Communication from NGOs Institute for Reporters' Freedom and Safety, Media Rights Institute) (28/05/2014) DH-DD(2014)735

Statement by the Secretary General on the arrest of Leyla Yunus (01/08/2014)

Statement by the Commissioner for Human Rights “Concerns over the situation of human rights defenders in Azerbaijan” (07/08/2014)

Statement by the Secretary General expressing concern for the situation of human rights defenders in Azerbaijan (11/08/2014)

Statement by the Secretary General on the first meeting of the Joint Working Group on Human Rights Issues (22/10/2014)

Statement by the Commissioner for Human Rights “Azerbaijan: Stop reprisals against human rights defenders” (24/10/2014)

Decision adopted at the 1230th meeting (June 2015)

Case description: Violations of the right to freedom of expression (violations of Article 10) of the applicant journalists due, in particular, (in both cases) to 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); and (in the Fatullayev case) to insufficient reasons invoked to justify defamation as regards some statements and to the 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 this case, relating to the application of anti-terror legislation, were also found to violate the applicant’s right to presumption of innocence (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: Important and targeted individual measures were adopted in these cases, leading to the closure of this question (for more details see the decision adopted at the 1128th meeting (November-December 2011).

General measures: The Committee considered that the execution of these judgments required three main sets of measures to be taken by the Azerbaijani authorities:

-       those related to defamation;

-       those aiming to prevent the arbitrary application of the legislation;

-       those aiming to prevent violations of Article 6 §§ 1 and 2, similar to those found in the case Fatullayev.

In the absence of any concrete progress (despite the submission of information by the Azerbaijani authorities), the Committee adopted Interim Resolution CM/ResDH(2013)199 at its 1179th meeting (September 2013).

Subsequently, the government provided certain information, including on the issue of the independence of the judiciary, on training, on a decision of the Plenum of the Supreme Court (DH-DD(2014)50, DH-DD(2014)276, DH-DD(2014)1115) - for further details, see the annotated order of business and the decisions adopted at the September 2014 meeting (CM/Del/Dec(2014)1208).

Taking into account the absence of progress in the adoption of measures which had been announced, and in order to support and assist the authorities to achieve the necessary reforms, the Committee of Minsters adopted, at its 1208th meeting (September 2014), Interim Resolution CM/ResDH(2014)183.

In response to this resolution, the authorities provided information (DH-DD(2014)1454), in particular, on: the participation of Azerbaijani judges at the conference on "The application of the European Convention on Human Rights at the domestic level and the role of domestic judges" held on 24-25 October 2014 in the framework of the Azerbaijani Chairmanship of the Committee of Ministers; a second meeting of the joint working group on human rights issues (December 2014); the composition of the Judicial Legal Council and the selection process of judges (see the notes of the1222nd meeting (DH) of March 2015, CM/Del/Dec(2015)1222).

During the examination of this group of cases in December 2014, in view of the number of outstanding questions,[4] the Committee considered that it was essential to obtain, as a matter of priority and urgently, tangible results in two areas:

- Defamation: the Committee reiterated its call on the authorities to ensure progress (including with the provision of a timetable) in the adoption of the necessary legislative amendments aimed at reducing the possibility of imposing prison sentences in defamation cases, on the basis of the proposal of the Plenum of the Supreme Court; and in the elaboration of the larger draft “law on defamation”, in close co-operation with the Venice Commission

- The arbitrary application of the criminal law to limit freedom of expression: the Committee urged the highest State authorities to intervene and provide the necessary guidance to prevent this type of violation and reiterated, to this end, the importance of a new general decision by the Plenum of the Supreme Court to guide judges and prosecutors. In this regard, the Committee also noted the importance of strengthening relevant training activities organised for judges and prosecutors.

The Committee underlined the importance of full co-operation with the Venice Commission in order to achieve the expected results.

Regarding the applicants' representative, Mr Intigam Aliyev, the Committee expressed its concern at the lack of information on the charges against him.

At the 1230th meeting (June 2015), the Committee deeply deplored the absence of any information in response to its latest decision, as well as of any progress.

The Committee exhorted in particular the authorities to cooperate fully with the Committee of Ministers and to deploy all their efforts to adopt the necessary measures to eliminate the causes of the violations found by the Court. In this context, it strongly reiterated its call upon the authorities to seize the opportunities offered by the Action Plan of the Council of Europe for Azerbaijan.

The Committee also strongly deplored the absence of information on the criminal charges or on the reasons for the conviction, in April 2015, of Mr Intigam Aliyev, to seven and a half years’ imprisonment, and reiterated its request to receive this information without delay.

The Committee decided to resume consideration of these cases at its 1236th meeting (September 2015) (DH).

As regards the general question of the independence of the judiciary, this group of cases has similarities with the Namat Aliyev group of cases (18705/06), also on the Committee’s order of business at this meeting.

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:

Communications from Azerbaijan

Replies to the questions raised by the delegations following the decision adopted at the 1222nd meeting (13/04/2015) DH-DD(2015)406; (11/02/2015) DH-DD(2015)179; Updated consolidated action plan (03/07/2014) DH-DD(2014)873; Consolidated Action Plan (27/02/2014) DH-DD(2014)277-rev; Communication (02/12/2013) DH-DD(2013)1306; Action plan (Khanhuseyn Aliyev case) (03/10/2012) DH-DD(2013)821;

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

Questions addressed to Azerbaijan pursuant to the decision adopted at the 1222nd meeting (DH) (25/03/2015) DH-DD(2015)334

Letter from the Secretariat to the Azerbaijani authorities (07/01/2015) DH-DD(2015)148

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)

Decision adopted at the 1230th meeting (June 2015)

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 domestic 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 (Namat Aliyev and Karimov cases);

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

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 ability to participate in the hearing) and without any transparency (Kerimli and Alibeyli case).

All the cases concern the parliamentary elections of November 2005.

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

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

- 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);

- the 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:

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

- the erroneous application of the electoral law.

Status of execution: Individual measures: Since the first examination of this group of cases at the 1179th meeting (September 2013), the Committee accepted that it was not possible to eliminate the effects of the violations otherwise than by the just satisfaction awarded by the Court as the elections of November 2005 had been completed and their results confirmed as final (see along the same lines the European Court’s findings in its decision of 09/12/2010 to strike out of the list the applications in the Gambar and Others case). 

General measures: A detailed assessment of the measures expected to address the Court’s findings was made in the Notes of the 1179th meeting (September 2013) (DH) (see CM/Del/Dec(2013)1179). On the basis of this assessment, the Committee underlined the importance, in every democratic society, of an electoral system containing remedies to prevent arbitrariness and found that the main measures presented by the authorities, namely the training and awareness-raising activities put in place for the members of the electoral commissions, did not alone respond to the findings of the Court in particular to those concluding that the procedures before the electoral commissions and the national courts did not afford safeguards against arbitrariness.

The Committee has subsequently examined regularly this group of cases. The authorities submitted several communications to the Committee: a first communication on this group DH-DD(2013)136; a consolidated action plan DH-DD(2014)277-rev, assessed in June 2014; a consolidated updated action plan DH-DD(2014)873, assessed in September 2014; and additional information DH-DD(2015)179, assessed in March 2015.

Progress made

The Committee’s analysis of the information provided was the following (see last decisions adopted at the 1208th meeting in September 2014 and at the 1222nd meeting in March 2015).

-      Concerning the electoral commissions, the Committee considered that the reforms adopted in addition to training measures, and in particular, the introduction of expert groups, would not be sufficient to resolve the problems revealed as regards the independence, transparency and legal quality of the procedure before these commissions;

-      Regarding the effectiveness of judicial review, the Committee noted with interest the measures adopted (including training measures; the introduction, in 2011, of the Code of Administrative Procedure for electoral disputes to remedy the excessive formalism previously imposed by the Code of Civil Procedure; and a series of measures to improve the independence of the judiciary, particularly in the light of the recommendations made during expertise in the framework of the Eastern Partnership); but noted at the same time that the effectiveness of these reforms would have to be demonstrated in practice.

Concerning the measures to be adopted urgently, before the November 2015 elections

In view of the imminence of the next legislative elections in November 2015, the Committee, during its 2015 March meeting, underlined the importance of properly functioning electoral commissions and of courts with the capacity to review the legality of the decisions of these commissions. Therefore, it urged the authorities to initiate, without delay, any action capable of further improving the system of control of the regularity of these elections in order to prevent any arbitrariness and, in particular to:

-       co-operate with the Venice Commission and make full use of the additional possibilities offered by the Action Plan of the Council of Europe for Azerbaijan;

-       make sure that a clear message is sent to electoral commissions by the highest competent authorities that no illegality nor arbitrary action will be tolerated.

In this context, the Committee underlined the crucial importance of targeted practical guidance from the Supreme Court, based on the European Court’s judgments, complemented, if necessary, by appropriate instructions to electoral commissions.

It also underlined the importance of ensuring that the proceedings before the Constitutional Court provide the guarantees required by the Convention, in particular, as regards the right to appear in person before it and with regard to transparency (case of Kerimli and Alibeyli).

With a view to the examination of this group of cases at its 1230th meeting (June 2015) (DH), several delegations provided written questions to the authorities of Azerbaijan (document DH-DD(2015)334) concerning additional specific measures envisaged the co-operation with the Venice Commission and the concrete effects of the measures adopted as well as how their effect could be assessed.

In their reply of 13 April 2015 (DH‑DD(2015)406), the authorities referred to the information they had already presented, to the actions proposed in Chapter 4 of the Action Plan of the Council of Europe for Azerbaijan 2014‑2016 (“Free and fair elections, functioning of political parties") and indicated, that the co-operation with the Venice Commission was to be continued in this context. They further indicated that the effects of the measures taken would only be assessed during and after the parliamentary elections in November 2015.

In its decision of June 2015, the Committee deeply deplored the absence of any information from the authorities in response to its latest decision concerning concrete actions aimed at further improving the system of control of the regularity of these elections in order to prevent any arbitrariness during the upcoming elections in November 2015.

The Committee exhorted the authorities to fully co-operate with it and to deploy all their efforts to adopt the necessary measures to eliminate the causes of the violations found by the Court.

It reiterated strongly its decision of March 2015 and decided to resume consideration of this group of cases at its 1236th meeting (September 2015) (DH).

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

12535/06

KARIMOV

25/09/2014

25/12/2014

Application: 15172/13

Judgment final on 13/10/2014

ILGAR MAMMADOV

Enhanced procedure: Complex problem and urgent individual measures

Reference texts:

Interim Resolution CM/ResDH(2015)43

Communications from the authorities

(03/08/2015) Letter of the Secretary General on the Council of Europe to the Minister of Justice of Azerbaijan

Communication from the Minister of Justice (17/08/2015) DH-DD(2015)859, 05/08/2015) Response of Azerbaijan to the communication from the applicant's representative of 30/07/2015 DH-DD(2015)780, Communication further to the decision adopted at the 1214th meeting (15/12/2014) DH-DD(2014)1521,

Action plan (26/11/2014) DH-DD(2014)1450

Communications from the applicant

(30/07/2015) DH-DD(2015)778, (17/07/2015) DH-DD(2015)769, (27/05/2015) DH-DD(2015)566,
(15/05/2015) DH-DD(2015)525, (06/02/2015) DH-DD(2015)158; (04/02/2015) DH-DD(2015)152,

Concerning the decisions adopted at the 1214th meeting (DH) (18/12/2014) DH-DD(2014)1533

Communications from NGOs

From Freedom Now (17/08/2015) DH-DD(2015)844

From Helsinki Foundation for Human Rights, Public Association for Assistance to Free Economy (25/02/2015) DH-DD(2015)264

Decision adopted at the 1230th meeting (June 2015)

Case description: This case concerns several violations (Articles 5 §§ 1(c), 5 § 4, 6 § 2, as well as Article 18 taken in conjunction with Article 5) suffered by the applicant, a political opposition activist, which took place in the context of the criminal proceedings instituted against him in February 2013 for denouncing on his blog the authorities’ official version of the Ismayilli riots of 23 January 2013. These events were provoked by an incident implicating the son of the Minister of Labour and the nephew of a local politician.

The applicant was arrested and placed in custody on 4 February 2013, effective until the first-instance court’s judgment of 17 March 2014 which sentenced him to 7 years’ imprisonment. When the European Court delivered its judgment, he lodged an appeal. According to the latest information, since the judgment of the European Court, the appeal court found against the applicant and the matter is pending before the Supreme Court.

The European Court found, in particular, that the arrest and detention of the applicant took place in absence of any reasonable suspicion that he had committed an offence. It also found that the domestic courts, both at the first instance and on appeal, had limited themselves in all of their decisions to an automatic endorsement of the prosecution’s requests without having conducted a genuine review of the lawfulness of the detention (violations of Article 5 §§ 1(c) and 4).

Recalling that the charges brought against the applicant were not based on reasonable suspicion, the Court further found that the actual purpose of the impugned measures was to punish the applicant for having criticised the government and attempted to disseminate what he believed to be true information which the Government was trying to hide. The Court thus established that the restriction of the applicant’s liberty was applied for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence (violation of Article 18 taken in conjunction with Article 5).

Finally, this case concerns the violation of the applicant’s right to the presumption of innocence on account of the statements made to the press by the Prosecutor General and the Minister of the Interior encouraging the public to believe that the applicant was guilty (violation of Article 6§2).

Status of execution: An action plan was provided by the authorities on 26 November 2014 (DH‑DD(2014)1450) indicating that a training would be organised with a view to the successful implementation of the regulations on pre-trial detention and another one would be organised for prosecutors, regarding respect for the presumption of innocence. The Committee examined the case at each DH meeting since December 2014. It adopted Interim Resolution CM/ResDH(2015)43 in March 2015.

Individual measures: Since its first examination of this case in December 2014, the Committee has been underlining that the violations found by the Court, in particular that of Article 18 taken in conjunction with Article 5, casted doubt on the merit of the criminal proceedings instituted against the applicant.

Therefore, in December 2014, it addressed a call to the authorities to ensure the applicant’s release without delay. As the release did not take place the Committee, in its above-mentioned interim resolution, reiterated with insistence its call to the authorities to ensure without further delay the applicant’s release. At the last examination of the case in June 2015, the Committee initiated a new call, this time to the highest State authorities, to act without further delay with a view to ensuring by all appropriate means the immediate release of the applicant.

It also called upon the authorities, at each examination of the case, to adopt the other measures necessary to erase the consequences of the violations established, in particular that of Article 18 taken in conjunction with Article 5.

Notwithstanding these calls, the information available to the Committee indicates the applicant is still imprisoned and the criminal proceedings against him are still pending before the Supreme Court. The latter postponed sine die the examination of his appeal. In its last decision, the Committee expressed its very serious concern about this situation.

In June 2015, the Committee decided to resume consideration of this case at its 1236th meeting (September 2015) (DH) and, if the applicant is not released by the meeting, to consider the adoption of stronger measures.

The applicant's representative submitted several communications to the Committee of Ministers, concerning, in particular, the proceedings before the Supreme Court (see “status of execution” above).

On 30 July 2015, he informed the Secretariat (DH-DD(2015)778) that the applicant had been assaulted in prison by a fellow inmate accusing him of having "insulted [the] President" and indicated that urgent action was necessary. In a letter of the same day, the Secretariat forwarded these allegations to the Azerbaijani authorities, drawing their attention to the urgency to take measures to ensure the applicant’s security and recalling the wording of the Committee’s last decision in this case. In their reply of 5 August 2015 (DH-DD(2015)780), the authorities indicated that according to information from the Ministry of Justice, the applicant's allegations are groundless, that the applicant and his lawyer did not bring them to the attention of the prison authorities or other relevant authorities, and that the applicant and his lawyer are trying to misinform the Committee of Ministers.

In addition, on 3 August 2015, the Secretary General of the Council of Europe sent a letter to the Minister of Justice of Azerbaijan regarding the allegations of physical assault against the applicant. He urged him to investigate thoroughly and rapidly on this matter, to put in place with immediate effect the necessary measures to ensure the applicant's personnal security and to ensure that his conditions of detention are fully in line with the standards of the Convention. The Secretary General also recalled the necessity of ensuring that the judgment of the European Court in the case of Ilgar Mammadov be fully and effectively implemented without delay. The response of the Minister of Justice of Azerbaijan has been distributed to the Deputies (DH‑DD(2015)859).

General measures: During the first examination of the case in December 2014, the Committee recalled the general problem of the arbitrary application of criminal legislation to restrict freedom of expression and conveyed its particular concern regarding the finding of a violation of Article 18 in conjunction with Article 5, to the extent that the proceedings against the applicant were engaged in order to silence or punish him for criticising the government. Therefore, it called upon the Azerbaijani authorities to furnish, without delay, concrete and comprehensive information on the measures taken and/or planned to avoid criminal proceedings being instituted without a legitimate basis and to ensure effective judicial review of such attempts by the Prosecutor’s office.

The Committee also expressed concern about the repetitive nature of the breach of presumption of innocence (Article 6 § 2) by the Prosecutor General’s Office and members of the government, despite several judgments of the Court which, since 2010, have indicated the precise requirements of the Convention in this regard, and insisted on the necessity of rapid and decisive action in order to prevent similar violations in the future.

Given the lack of the progress, the Committee reiterated its requests with insistence in Interim Resolution CM/ResDH(2015)43. In June 2015, it underlined the urgency of obtaining information on the general measures envisaged to avoid any circumvention of legislation by prosecutors and/or judges for purposes other than those prescribed, as well as to prevent new violations of the presumption of innocence.

The violations of Article 5 of the Convention concerning arrest and detention on remand are examined in the context of the Farhad Aliyev group of cases (37138/06).

Application

Case

Judgment of

Final on

15172/13

ILGAR MAMMADOV

22/05/2014

13/10/2014

Application

Case

Judgment of

Final on

15172/13

ILGAR MAMMADOV

22/05/2014

13/10/2014

Application: 16133/08

Judgment final on 14/06/2013

INSANOV

Enhanced procedure: Complex problem

Reference texts:

Communication from the authorities

Action plan DH-DD(2014)492

Communications from the applicant and / or his representatives

(22/05/2015) DH-DD(2015)704, (19/01/2015) DH-DD(2015)124 (21/12/2014) DH-DD(2015)125;

(08/04/2014) DH-DD(2014)678, (08/04/2014) DH-DD(2014)670, (17/02/2014) DH-DD(2014)393,

(10/12/2013 and 25/11/2013) DH-DD(2013)1375, (18/09/2013 and 26/09/2013) DH-DD(2013)1147

Case description: The applicant (former Minister of Health Care) has been detained since 2007 in conditions found by the European Court to be inhuman and degrading (violation of Article 3): first, from 20 April 2007 to 28 September 2007 in Detention Facility No.1, then, following his conviction in particular for forgery in public office, from 28 September 2007 in Penal Facility No.13, in respect of which the European Court criticised the cumulative effects of overcrowding; absence of heating (until 2009) and poor sanitary conditions. The case also concerns a violation of Article 6 § 1 as the applicant was refused the opportunity to attend hearings in the civil proceedings concerning the conditions of his detention and alleged lack of adequate medical assistance.

The Court also found a violation of Article 6 § 1 taken together with Article 6 § 3(c) and (d) in respect of the criminal proceedings against the applicant, as he was not able to question certain witnesses about evidence which was decisive in the case against him; nor did he have sufficient opportunities to consult with his lawyers in a confidential setting throughout the trial. In this respect, the European Court indicated that “the most appropriate form of redress would, in principle, be the reopening of the proceedings in order to guarantee the conduct of the trial in accordance with the requirements of Article 6 of the Convention” (§ 195).

Status of execution: Individual measures: Since the judgment became final, the applicant and his legal representatives submitted a number of Rule 9 communications (see reference texts) confirming that he remains detained in Penal Facility no.13 in conditions which he considers inhuman and degrading. The authorities have not provided any information about the applicant’s detention conditions. However, the action plan of 7 April 2014 does indicate that following the judgment of the European Court, the civil proceedings in which the applicant complained about his detention conditions were reopened by the Plenum of the Supreme Court on 15 November 2013 and referred to the Baku Court of Appeal.

Following the European Court’s judgment, the Plenum of the Supreme Court also reopened the applicant’s criminal proceedings and referred them to the Baku Court of Appeal for re-examination on 15 November 2013. On 25 February 2014, the Baku Court of Appeal upheld the decisions taken in the proceedings impugned by the European Court.

In their action plan, the authorities indicate that during the re-opened criminal proceedings the Court of Appeal heard witnesses on behalf of the applicant, and gave him the opportunity to question those witnesses. The plan also indicates that the applicant was allowed to communicate with his lawyer, and had adequate time and facilities to prepare his defence. However, in his submissions, the applicant strongly criticises the re-opened proceedings. He complains that the witnesses he invited were not heard. He also states that he was not able to participate in the hearings because he was placed in a transparent, sound-proof cabin and could only communicate through a microphone, which was controlled by the Chairman of the trial who turned it off when he wanted to speak. The authorities in their action plan confirm that the applicant was placed in a transparent cabin, but indicate that this was due to his aggressive behaviour in the courtroom.

General measures: According to the authorities’ action plan, Baku Detention Facility no.1 was demolished on 29 May 2009 and replaced by the new Baku Detention Facility; the showers and toilets in Penal Facility No.13 have recently been renovated.

No information is provided on any general measures taken or envisaged to remedy the violations of Article 6 which arose in the applicant’s civil and criminal proceedings.

Application

Case

Judgment of

Final on

16133/08

INSANOV

14/03/2013

14/06/2013

Application: 49525/99

Judgment final on: 28/07/2005

DUMONT GROUP

Enhanced procedure: complex problem

Reference texts:

Decision adopted at the 1179th meeting (September 2013)

Case description: The cases in this group concern the excessive length of civil and criminal proceedings (violations of Article 6 § 1). Eight of these cases are mostly or only related to the excessive length of proceedings before the Brussels First Instance Court. Proceedings began between 1982 and 2002 and were closed when the European Court delivered its judgments, except in five cases (see status of execution). The cases of Raway and Wera also concern the lack of an effective remedy to complain about the excessive length of civil proceedings (violation of Article 13).

Status of execution: No information has been provided by the authorities in this group of cases since 2008. The outstanding questions were last examined by the Committee in September 2013. They have also been regularly raised in bilateral contacts in writing and in bilateral consultations (most recently in 2014 and 2015).

Individual measures: At its last examination of this group of cases, the Committee reminded the Belgian authorities that in the cases of Barbier, Denée, Heremans and Leroy, information was still awaited as soon as possible on whether the impugned proceedings are still pending and, if this was the case, on the measures taken with a view to their acceleration. No response was submitted to this request. In the other cases, the impugned proceedings are closed and no individual measure is necessary.

General measures:

1) Measures to avoid excessive length of civil and criminal proceedings:

a) Measures taken at national level:

A number of measures had already been presented in the context of the Oval S.P.R.L. and others group of cases (concerning in particular the situation of the Brussels Court of Appeal, see Final Resolution CM/ResDH(2011)189). In addition, the authorities indicated that the Law of 26/04/2007 amending the Judicial Code with a view to reducing the judicial backlog had been adopted. This law was aimed at reducing the length of proceedings (notably: the acceleration of the exchange of arguments between parties, the fixing of a timetable of the proceedings by the judge, fines against parties who manifestly waste time or otherwise abuse the proceedings, accountability of judges if time-limits laid down by the law for judges’ deliberations are exceeded etc.). The budget of the Ministry of Justice had also been increased up until 2008.

b) Measures taken concerning Brussels courts:

Concerning the Brussels courts (first instance and Court of Appeal), there were difficulties in the recruitment of magistrates, particularly because of the requirements of bilingualism for this function. The relevant provisions have been amended to relax these requirements and to provide more means for a judge to examine cases in the French language, which are the majority before the Brussels courts.

c) Effects of these measures

At national level, the first signs of the effects of the measures adopted on the number of pending cases (2008) were encouraging. However, up-to-date information on the effect of these measures on the average length of the proceedings is outstanding.

At the Brussels courts’ level, the positive effects of the measures taken concerning the Brussels Court of Appeal were acknowledged in Final Resolution CM/ResDH(2011)189, mentioned above. However, information is outstanding on the effects of the measures taken at the level of the Brussels First Instance Court.

In these circumstances, in September 2013 the Committee had invited the authorities to provide as soon as possible a presentation of the current situation concerning the length of civil and criminal proceedings, both at the national level and at the Brussels First Instance Court.

2) Remedies in respect of the excessive length of judicial proceedings

a) Civil proceedings

- Preventive remedy: the above-mentioned law of 26/04/2007 amending the Judicial Code with a view to reducing the judicial backlog entails several provisions making it possible to request the acceleration of civil proceedings.

- Compensatory remedy: in the Depauw v. Belgium decision (15/05/2007), the European Court found that since 28/03/2007 a compensatory remedy exists, by which it is possible to complain about and obtain compensation for the excessive length of civil proceedings. This remedy is based on case-law that had acquired a sufficient degree of legal certainty (the judgment of the Court of Cassation of 28/09/2006).

b) Criminal proceedings

- Preventive remedy: the Court held, in particular, in the Beheydt v. Belgium decision (09/10/2007), that Article 21 ter of the preliminary part of the Code of Criminal Procedure provides a possibility to obtain a positive finding to the effect that proceedings are too lengthy and to get redress for such a violation of Article 6 of the Convention.

 Compensatory remedy: In the Phserowsky v. Belgium decision (07/04/2009), the Court held that there was no reason why the compensatory remedy (based on Articles 1382 and 1383 of the civil code and accepted in the Depauw decision concerning the length of civil proceedings) would not also apply concerning the length of criminal proceedings. In 2010, the Court noted however that since 28 March 2007, it has no information concerning appeals that would have been lodged on the basis of Articles 1382 and 1383 of the Civil Code, which raises questions as to such an omission (Poncelet v. Belgium judgment of 30/03/2012). At its last examination of this group in September 2013, the Committee of Ministers invited the Belgian authorities to submit, as soon as possible, examples of court decisions confirming the effectiveness of this remedy. To date, no example has been transmitted. In this respect, it is to be noted that in the Panju judgment (final on 23/03/2015), the European Court considered that the government had not demonstrated that the compensatory remedy based on Articles 1382 and 1383 of the civil code was used in practice in criminal proceedings.

It is also recalled that the Committee of Ministers dealt separately with questions concerning the excessive length of pre-trial investigations (Final Resolution CM/ResDH(2011)190 in the Stratégies et Communications and Dumoulin group of cases, and De Clerck and others group of cases, presently pending before the Committee under the standard procedure).

Application

Case

Judgment of

Final on

49525/99

DUMONT

28/04/2005

28/07/2005

24731/03

BARBIER

20/09/2007

20/12/2007

44826/05

BELL

04/11/2008

06/04/2009

50575/99

DE LANDSHEER

15/07/2005

15/10/2005

27535/04

DE SAEDELEER

24/07/2007

24/10/2007

51788/99

DE STAERKE

28/04/2005

28/07/2005

31634/03

DENÉE

04/12/2007

04/03/2008

2115/04

DEPAUW

10/06/2008

10/09/2008

21861/03

HAMER

27/11/2007

27/02/2008

28171/04

HEREMANS

24/04/2008

24/07/2008

25694/06

HEYRMAN

09/10/2012

09/10/2012

6203/04

IWANKOWSKI AND OTHERS

27/11/2007

27/02/2008

5950/05

JOUAN

12/02/2008

12/05/2008

18211/03

LENARDON

26/10/2006

26/01/2007

35327/05

LEONARDI

03/02/2009

03/05/2009

52098/99

LEROY

15/07/2005

15/10/2005

46046/99

MARIEN

03/11/2005

03/02/2006

40628/04

NAGLER AND NALIMMO B.V.B.A.

17/07/2007

17/10/2007

11013/05

NICOLAI DE GORHEZ

16/10/2007

31/03/2008

44807/06

POELMANS

03/02/2009

03/05/2009

25864/04

RAWAY AND WERA

27/11/2007

27/02/2008

52112/99

REYNTIENS

28/04/2005

28/07/2005

50236/99

ROBYNS DE SCHNEIDAUER

28/04/2005

28/07/2005

29198/05

SCHINCKUS

01/04/2008

01/07/2008

Application: 41035/98, 36925/10+

Judgment final on 18/04/2005, 01/06/2015

KEHAYOV GROUP +

NESHKOV AND OTHERS

Enhanced procedure: Complex problem and pilot judgment

Reference texts:

Information document CM/Inf/DH(2011)45

Revised action plan (31/08/2015) DH-DD(2015)755-rev, Action plan (06/07/2015) DH-DD(2015)755,

Revised action plan (08/12/2014) DH-DD(2014)1490,

Action plan (16/04/2015) (Harakchiev and Tolumov) DH-DD(2015)433

Decision adopted at the 1172nd meeting (June 2013)

Case description: This group of cases concerns the inhuman and degrading treatment of the applicants in penitentiary facilities between 1996 and 2014, in particular owing to overcrowding, poor sanitary and material conditions, limited possibilities for out-of-cell activities, inadequate medical care and prolonged application of a restrictive penitentiary regime combined with the effects of inadequate material conditions (violations of Article 3). In certain cases, the Court also found that there was no preventive remedy and that there were various shortcomings in the functioning of the domestic compensatory remedy (violations of Article 13). In the Harakchiev and Tolumov case, the Court recommended, under Article 46, that the automatic imposition of a highly restrictive prison regime (“special regime”) on all life prisoners for an initial period of five years should be abolished.

On 27/01/2015, the Court adopted a pilot judgment in the case of Neshkov and Others. The Court found that there were systemic problems in terms of overcrowding and poor material conditions and recommended that these problems be resolved without delay. It also found that Bulgaria’s compensatory remedy for poor detention conditions was no longer effective, owing to negative developments in domestic case-law. The Court asked that the authorities create effective preventive and compensatory remedies, within 18 months of the judgment becoming final. This deadline expires on 01/12/2016.

Some of the cases also concern violations of Articles 3, 5, 6 §§ 1 and 3(e), 8 and 13.

Status of execution: The authorities submitted revised action plans on 08/12/2014 and on 06/07/2015 (DH‑DD(2014)1490 and DD(2015)755). The main measures outlined in these action plans are summarised below. In addition, the authorities provided a revised action plan on 31/08/2015 (DH-DD(2015)755-rev), currently under assessment. Some factual information presented in this revised action plan has been summarised below.

Individual measures: In 17 older cases, the individual measures have already been examined by the Committee which found that no further measures were necessary (see CM/Inf/DH(2011)45). In the cases of Shahanov and Sabev, the applicants’ conditions of detention changed before the Court delivered its judgments and the applicants have not complained about their current situation either to the Court or to the Committee. The applicant Tsekov from the Neshkov and others case was released in March 2015. However, further information and/or clarifications are required about the measures taken to improve conditions and/or to review the detention regime of some of the applicants in the recent cases of Chervenkov, Harakchiev and Tolumov, Manolov, Neshkov and Others and Halil Adem Hasan. Following the indications given by the Court in Neshkov and Others, moreover, the authorities offered to transfer Mr Zlatev to another prison. He refused the offer in writing, however, and stated that he wished to remain in Burgas prison. He is currently detained there alone in a cell measuring 6m². Lastly, in the case of Iordan Petrov, the criminal proceedings against the applicant were reopened in September 2013, a review is under way and the applicant is detained on the basis of a court order. It is not possible, however, to carry out an investigation into the applicant’s ill-treatment because the time-limit for prosecution has expired. 

General measures:

Effective domestic remedies to be introduced by 01/12/2016: Following the Neshkov and Others judgment, the Bulgarian authorities set up a working group to prepare the legislative reforms needed to introduce effective domestic remedies. The group is expected to present its findings in October 2015. In addition, the authorities consider that the measures aimed at improving detention conditions are also of relevance in ensuring the effectiveness of a future preventive remedy.

Overcrowding: The number of persons held in prisons and investigative detention facilities has fallen significantly (from respectively 9,371 and 1,244 in March 2013 to respectively 7,527 and 975 in June 2015). The authorities have recently reviewed the living space in penitentiary facilities in order to update the figures on capacity. The new data, which shows an overall capacity similar to the one presented in July 2015, is currently being analysed by the authorities.

According to the data available at the beginning of July 2015, even though the number of prisoners is lower than the maximum capacity of all the men’s prisons combined, based on 4m² of living space per person, many closed prisons remain overcrowded. This is due to the fact that open prison hostels, which do not accept repeat offenders at the initial placement stage, are under-utilised. To overcome the problem of overcrowding, the authorities are planning to introduce legislative reforms and to bring two closed prison hostels into operation in an effort to reduce overcrowding in Burgas and Varna prisons.

Criminal and penitentiary policy measures: In recent years, wider use has been made of non-custodial sanctions and the prison population has declined. Following the pilot judgment in the Neshkov and Others case, working groups were set up to look into the possibility of relaxing the conditions for parole, to review the concept of “dangerous recidivism” and to expand the opportunities for initial placement in open prison hostels. A draft law widening the scope of electronic surveillance was also published in June 2015.

Material conditions of detention: The authorities have indicated that many prisons are in need of substantial upgrading. The Directorate General for the Execution of Punishments has prepared an analysis of the most urgent needs for repairs for each prison and prison hostel. The overall cost of these urgent repairs has been estimated at around 15,030,000 BGN (around 7,500,000 EUR).

Reconstruction and renovation work: Recently completed or ongoing work, funded by the Norwegian Financial Mechanism, should help to improve conditions of detention in several facilities and to reduce occupancy rates in Varna and Burgas prisons thanks to the commissioning of two closed prison hostels.

Out-of-cell activities: The authorities are planning gradually to close most of the investigative detention facilities and to transfer the inmates to prisons, so as to be able to offer them more activities and better conditions.

Medical care: Since 01/01/2014, detainees have been covered by health insurance from the time they are taken into custody. The authorities attribute the shortage of medical staff to unattractive working conditions in prisons and the shortage of medical staff in the country as a whole. To remedy this problem, facilities can enter into civil contracts with doctors who are not on their payroll. In addition, the authorities are considering changing the law to require confidential medical records to be kept for prisoners.

Application of the “special regime” in prison and measures to ensure that irreducible life sentences are de facto reducible: The authorities are continuing to explore the possibility of abolishing irreducible life sentences. In any event, they are considering abolishing the automatic imposition of a highly restrictive prison regime on all life prisoners for an initial period of at least five years.

Application

Case

Judgment of

Final on

36925/10+

NESHKOV AND OTHERS

27/01/2015

01/06/2015

KEHAYOV GROUP

41035/98

KEHAYOV

18/01/2005

18/04/2005

54578/00

ALEXOV

22/05/2008

22/08/2008

45358/04

CHERVENKOV

27/11/2012

27/02/2013

55389/00

DOBREV

10/08/2006

10/11/2006

54659/00

GAVAZOV

06/03/2008

06/06/2008

61507/00

GEORGIEV ANDREI

26/07/2007

26/10/2007

4374/05

HALIL ADEM HASAN

10/03/2015

10/06/2015

15018/11+

HARAKCHIEV AND TOLUMOV

08/07/2014

08/10/2014

44082/98

I.I.

09/06/2005

09/09/2005

4473/02+

ILIEV AND OTHERS

10/02/2011

10/05/2011

22926/04

IORDAN PETROV

24/01/2012

24/04/2012

41211/98

IOVCHEV

02/02/2006

02/05/2006

391/03

IŞYAR

20/11/2008

20/02/2009

55712/00

KOSTADINOV

07/02/2008

07/05/2008

28674/03

KOSTOV SLAVCHO

27/11/2008

27/02/2009

57830/00

MALECHKOV

28/06/2007

28/09/2007

23810/05

MANOLOV

04/11/2014

04/02/2015

18382/05

RADKOV No. 2

10/02/2011

10/05/2011

27887/06

SABEV

28/05/2013

28/08/2013

16391/05

SHAHANOV

10/01/2012

10/04/2012

37449/02

SHISHMANOV

08/01/2009

08/04/2009

49438/99

STAYKOV

12/10/2006

12/01/2007

50765/99

TODOROV TODOR

05/04/2007

05/07/2007

56856/00

YORDANOV

10/08/2006

10/11/2006

Application: 37104/97, 45950/99, 48059/06, 37346/05

Judgment final on: 03/07/2003, 08/10/2004, 10/08/2011

DJANGOZOV GROUP

KITOV GROUP

DIMITROV AND HAMANOV FINGER

Enhanced procedure : pilot judgment + complex problem

Reference texts:

Information document CM/Inf/DH(2012)36

Comments of the Secretariat concerning the legislative reform aimed at the introduction of a remedy allowing the accused to request that his case be sent to a court DH-DD(2013)901 (restricted)

Interim Resolution CM/ResDH(2010)223

Communications from the authorities

Revised action plan (Kitov and Djangozov) (22/06/2015) DH-DD(2015)672,

Action report (15/06/2015) DH-DD(2015)664

Decision adopted at the 1179th meeting (September 2013)

Case description: These cases concern the excessive length of criminal (Kitov group) and civil proceedings (Djangozov group), as well as the lack of an effective remedy in that regard (violations of Articles 6 § 1 and 13). In addition, in two pilot judgments - Dimitrov and Hamanov (criminal proceedings) and Finger (civil proceedings) - the Court found that there was a structural problem concerning the length of judicial proceedings and indicated that the Bulgarian authorities should adopt an effective remedy or a combination of remedies which comply with the criteria established in its case-law within one year of the pilot judgments' becoming final. This time limit expired on 10/08/2012.

Several cases in the Kitov group concern different violations related to the applicants' detention between 1993 and 2003. The general measures concerning these violations are being examined or have been adopted within the framework of other cases or groups of cases.

Status of execution: The authorities provided an action report for the pilot judgments Finger and Dimitrov and Hamanov and 54 cases concerning length of civil and criminal proceedings (DH-DD(2015)664) on 17/06/2015, as well as a revised action plan for the outstanding questions concerning the Kitov and Djangozov groups (DH-DD(2015)672) on 22/06/2015.

General measures:

1. Compensatory remedies introduced after the pilot judgments Dimitrov and Hamanov and Finger

The Bulgarian authorities have adopted an administrative compensatory remedy which can be lodged with the Minister of Justice after the judicial proceedings have ended and a judicial compensatory remedy which is available to persons who are parties to pending judicial proceedings. The latter remedy is also available to parties in judicial proceedings which have ended, after exhaustion of the administrative remedy (for further details, see CM/Inf/DH(2012)36).

On 18/06/2013, the Court adopted two inadmissibility decisions in the cases Valcheva and Abrashev and Balakchiev and others in which it found that, taken together, the two remedies could be considered effective. It has confirmed its position in more recent judgments and decisions.

The authorities have provided information on the functioning of these two remedies for the period 2013-2015. The payment of the compensation awarded by the Minister of Justice is generally made within one month. The first examples of case-law related to the judicial remedy indicate that the domestic courts apply the criteria developed in the European Court’s case-law. The authorities have undertaken to monitor the case-law related to certain specific aspects of the requirements of the Court’s case-law (namely concerning the possibility to obtain compensation for delays attributable to the police investigation authorities).

2. Acceleratory remedies in civil and criminal matters

An acceleratory remedy in civil matters has existed since 1999 and can prevent delays in certain situations.

Furthermore, a law providing for the modification of the Code of Criminal Procedure entered into force on 17/08/2013. It provides for the possibility for an accused to request that his case be sent to the court or closed if more than one or two years have passed since he or she has been charged. If a bill of indictment is not introduced within three months, the court is obliged to put an end to the criminal proceedings by a decision which is final. This possibility is not available to persons charged with a serious intentional criminal offence having caused the death of a person.

In its decision adopted during the 1179th meeting (September 2013) DH, the Committee considered that this remedy raised questions concerning its compatibility with the requirements of the Convention, in particular in the area of effective investigation.

3. Measures aimed at reducing the length of civil and criminal proceedings

a) Administrative measures taken or envisaged: The courts now have electronic case‑management systems. The prosecution has put in place electronic registers to facilitate the follow-up of cases at the investigation stage.

Moreover, the courts and prosecutors’ offices are regularly subject to inspections by the Supreme Judicial Council’s Inspectorate which takes disciplinary measures for failure to comply with time-limits set in law for dealing with cases and examines complaints for excessive length of proceedings.

Furthermore, the Supreme Judicial Council published in 2014 analyses relating to the workload of the courts in 2013. These analyses show that the majority of the courts have an adequate workload. Only certain courts, most of them situated in Sofia, can be considered as overburdened. Several types of measures are envisaged to remedy their specific problems, such as a reform of the judicial map, better assessment of the workload of judges, modifications to the rules of local competence, better management of the buildings used by judicial bodies, introduction of new statistical codes to improve the follow-up of cases, etc. In addition, the Supreme Judicial Council regularly transfers judges’ positions to courts which are overburdened. 

As concerns in particular the situation of the courts in Sofia, a renovated building has been put at the disposal of the civil sections of the Sofia District Court since April 2015 and another building is currently being renovated to host the criminal sections of the same court. Ninety-four new positions for administrative agents and 30 positions of judges have been created. Nevertheless, in 2014 the vast majority of complaints concerning excessive length of judicial proceedings examined by the Supreme Judicial Council’s Inspectorate still concerned the Sofia region.

b) Specific measures aimed at reducing the length of civil proceedings: According to the authorities, the new Code of Civil Procedure, which entered into force in 2008, reduced the number of hearings necessary for the resolution of a case (because of the discipline required from parties and judges in the area of evidence-gathering). Thus, most of the civil courts have an adequate workload and disposition time. Furthermore, the rules restraining access to the Supreme Court of Cassation reduced the time necessary for the examination of cases by this court. The number of civil cases pending for over two years before the highest court has decreased from 181 in 2010 to 23 in 2014. However, the length of civil proceedings suspended to await the outcome of criminal proceedings/the examination of civil action in criminal proceedings partly depend on the swift examination of criminal proceedings. Also, difficulties persist before the courts which have a very high workload, such as those situated in Sofia.

c) Specific measures aimed at reducing the length of criminal proceedings: A new Code of Criminal Proceedings entered into force in 2006, making short procedures more widely applicable. Amendments were introduced in 2010 and 2012, namely to limit the unjustified referrals of cases to the stage of the pre-trial investigation and to the lower courts. Positive trends have been observed as concerns the number of pre-trial investigations pending for more than one year. Most of the criminal courts have an appropriate workload and disposition time. However, the authorities consider that there is a need to assess further the impact of the measures adopted, and the need to take additional measures in some respects, to avoid delays during the pre-trial investigation as well as delays caused by referrals to the stage of pre-trial investigation and the lower court, the absence of co‑accused and the excessive workload of certain courts.

d) judicial statistics: In 2013 and 2014, the number of cases registered, as well as the number of cases pending at the end of the year before all of the Bulgarian courts, decreased.

Individual measures: The proceedings in all these cases have now ended, with the exception of the Kavalovi and Kotsev and Ermenkova civil cases. The applicants whose detention was challenged by the European Court in some of the cases have been released.

Application

Case

Judgment of

Final on

45950/99

DJANGOZOV GROUP (list of cases)

08/07/2004

08/10/2004

37104/97

KITOV GROUP (list of cases)

03/04/2003

03/07/2003

48059/06+

DIMITROV AND HAMANOV

10/05/2011

10/08/2011

37346/05

FINGER

10/05/2011

10/08/2011

Application/

Requête

Case / Affaire

Judgment of / arrêt du

Final on / définitif le

48059/06+

DIMITROV AND HAMANOV

10/05/2011

10/08/2011

37346/05

FINGER

10/05/2011

10/08/2011

DJANGOZOV GROUP

28899/04

ANTOANETA IVANOVA

24/02/2011

24/02/2011

56793/00

BABICHKIN

10/08/2006

10/11/2006

53988/07

BASHIKAROVA AND OTHERS

05/02/2013

05/02/2013

28583/03

BRATOVANOV

23/04/2009

23/07/2009

2930/04

DEYANOV

30/09/2010

30/12/2010

47829/99

DIMITROV

23/09/2004

23/12/2004

30481/05

DIMOVA AND MINKOVA

19/07/2011

19/07/2011

22381/05

GEORGIEV

27/05/2010

27/08/2010

15154/02

GIVEZOV

22/05/2008

22/08/2008

62722/00

GOSPODINOV

10/05/2007

10/08/2007

58497/00

HADJIBAKALOV

08/06/2006

08/09/2006

24720/04

HADZHINIKOLOV

26/07/2011

26/07/2011

25805/05

HOLEVICH

19/07/2011

19/07/2011

7254/02

ILIEVI

28/05/2009

28/08/2009

41140/05

IVANOV

05/07/2012

05/07/2012

10905/04

IVANOVA MARIA

18/03/2010

18/06/2010

14226/04

IVANOVI

07/01/2010

07/04/2010

55350/00

KAMBOUROV

14/02/2008

14/05/2008

60939/00

KARCHEVA AND SHTARBOVA

28/09/2006

28/12/2006

44626/98

KIURKCHIAN

24/03/2005

24/06/2005

76763/01

KOSTOVA

03/05/2007

03/08/2007

12499/05

KOTSEVA-DENCHEVA

10/06/2010

10/09/2010

9161/02

KOUNCHEVA

03/07/2008

03/10/2008

57641/00

KOVACHEVA AND HADJIILIEVA

29/03/2007

29/06/2007

77147/01

KUIYUMDJIYAN

24/05/2007

24/08/2007

20568/02

MARINOVA AND RADEVA

02/07/2009

02/10/2009

50954/99

MASLENKOVI

08/11/2007

02/06/2008

69316/01

MERDZHANOV

22/05/2008

22/08/2008

15099/04

NACHEV

05/11/2009

05/02/2010

35745/05

NENKOVA‑LALOVA

11/12/2012

29/04/2013

44184/05+

NIKOLOV AND OTHERS

21/02/2012

21/05/2012

4434/05

NIKOVA

21/12/2010

21/12/2010

72855/01

PARASHKEVANOVA

03/05/2007

03/08/2007

3662/06

PAVLOV

06/03/2012

06/03/2012

39855/03

PAVLOVA

14/01/2010

14/04/2010

19532/05

PETROVA

24/04/2012

24/04/2012

32455/05

ROSITSA GEORGIEVA

05/07/2011

05/07/2011

38646/04

GOSPODINOVA

10/02/2011

10/02/2011

59523/00

SIMIZOV

18/10/2007

18/01/2008

39832/98

TODOROV NIKOLAI PETKOV

18/01/2005

18/04/2005

55956/00

VATEVI

28/09/2006

28/12/2006

28936/03

VELIKIN AND OTHERS

02/09/2010

02/12/2010

KITOV GROUP

42983/04

ALEKSANDROVI

22/01/2013

22/01/2013

61662/00

ANGELOV VASIL

12/04/2007

12/07/2007

61596/00

ATANASOV AND OVCHAROV

17/01/2008

17/04/2008

70843/01

BALABANOV

03/07/2008

03/10/2008

11486/04

DINUCCI

24/02/2011

24/02/2011

68356/01

DOINOV

27/09/2007

27/12/2007

16850/04

KANCHEV

24/02/2011

24/02/2011

76965/01

KARMO

06/12/2007

06/03/2008

1509/05

KOSTOV AND YANKOV

22/04/2010

22/07/2010

71605/01

MIRCHEV AND OTHERS

27/11/2008

27/02/2009

37355/97

S.H.K.

23/10/03

23/01/04

16880/02

SHEREMETOV

22/05/2008

22/08/2008

Application 50385/99

Judgment final on 20/12/2004

MAKARATZIS GROUP

Enhanced procedure: Complex problem

Reference texts:

Information documents CM/Inf/DH(2009)16-rev, CM/Inf/DH(2012)40

Communication from the authorities

Action report (09/07/2015) DH-DD(2015)757

Communication from the applicant’s representative

(30/11/12) (Petropoulou-Tsakiris) DH-DD(2012)1131

Decision adopted at the 1157th meeting (December 2012)

Case description: Use of potentially lethal force by the police in the absence of an adequate legislative and administrative framework governing the use of firearms (violation of positive obligation pursuant to Article 2 to protect life in the cases Makaratzis, Celniku, Karagiannopoulos and Leonidis); ill-treatment by police forces (violation of Article 3 in the cases of Bekos and Koutropoulos, Alsayed Allaham, Petropoulou-Tsakyri, Zelilof, Galotskin and Stefanou); treatment by coastguards amounting to an act of torture (violation of Article 3 in the case of Zontul); absence of effective investigations (procedural violations of Article 2 in the cases of Makaratzis, Celniku, Karagiannopoulos and of Article 3 in the cases of Bekos-Koutropoulos, Petropoulou-Tsakiris, Zelilof, Galotskin and Zontul); failure to investigate whether or not racist motives on the part of the police may have played a role in some cases (violation of Article 14 combined with Article 3 in the cases of Bekos-Koutropoulos, Petropoulou-Tsakiris).

The Galotskin and Stefanou cases also concern the excessive length of criminal proceedings (violation of Article 6 § 1).

Status of execution: Individual measures: At the 1157th meeting (December 2012) (DH), the Greek authorities indicated that in all cases the reopening of criminal proceedings against law enforcement officers, which were found to be inadequate by the Court, was not possible under domestic law. Reopening of disciplinary proceedings following a judgment of the European Court by which it was found that the disciplinary proceedings were ineffective, could be requested by the Executive Committee of “the Office for addressing arbitrary incidents to control abuse” (hereafter, “the Office”), established by law 3938/2011, in respect of judgments of the Court delivered after 31 March 2011 (when this law came into force). Consequently, according to the authorities, the reopening of disciplinary proceedings would be possible only in the Zontul case. Such a reopening could be considered, as soon as the Committee established by Law 3938/11 becomes operational. 

General measures: At its 1157th meeting the Committee of Ministers welcomed the repeal of Law No. 29/1943 on the use of firearms that was criticised by the European Court, noted that the new national legislation introduced a modern and comprehensive legislative framework for the use of firearms by the police and decided to close the supervision of the general measures taken by Greece to prevent similar violations of Article 2.

Furthermore, the Committee of Ministers welcomed the establishment by Law No. 3938/2011 of a three-member Executive Committee to head the Office, competent both to assess the possibility of opening new administrative investigations in cases where failures have been identified by the European Court and to deal with new abuse complaints.

Lastly, the Committee invited the Greek authorities to keep it updated on the effective functioning of the three-member Executive Committee. It follows from the information provided by the Greek authorities (see DH‑DD(2015)757) that:

As regards the operation of the Office

Law No. 3938/2011 established the Office, which operates within the Ministry of Citizen Protection and reports directly to the Minister. The Office is headed by a decision-making three-member Executive Committee composed of an honorary judicial officer, one member of the Office of the Legal Council of the State and one honorary prosecutor. The members are appointed by the Minister for Citizen Protection. The Committee is assisted by supporting staff, seconded from the judiciary and the four services under its mandate (the Police, the Port Police, the Coastguard and the Fire Brigade).

The Office is tasked with the collection, recording, assessment and further transmission for investigation to the competent bodies of complaints against personnel of the above four agencies. According to the Greek authorities, the Office “aims at providing more effective investigations of incidents of citizen ill-treatment or insults to human dignity by uniformed staff.” Under Article 1 § 5, the Office is empowered to request the reopening of an administrative investigation in cases where the European Court holds that the initial investigation was ineffective. According to § 6 of Article 1 of the law, the prescription for the disciplinary offences shall not apply between the termination of the disciplinary proceedings and the delivery of the Court’s judgment to the Office.

The article regulating the composition of the Office was first amended by Law No. 4058/2012 and subsequently by Article 10 § 2 of Law No 4249/2014, so as to widen the circle of persons qualified to become members of its Executive Committee. It was also provided that the Ombudsman would be a consultative member of the Office. Furthermore, under the said article the jurisdiction of the Office was extended, to include incidents motivated by discriminatory motives (race, ethnic origin, religious beliefs, handicap, age, sexual orientation or gender identity).

According to the Greek authorities, the Office has not, so far, become operational, due to a) the reluctance of qualified personnel to be appointed as members of the Executive Committee (there was no response to the call for applications for the unremunerated posts of the Executive Committee, launched on 31 August 2011) and b) financial constraints. The latter cause was reiterated by the Greek authorities during the high-level bilateral consultations held in December 2014 in Athens. However, the Minister for Citizen Protection, addressing the members of Parliament on 18 May 2015, stressed that there is a political will to make the Office as effective as possible.

The CPT in its report published in October 2014 stated that at the time of its visit to Greece (April 2013) the Office was not functioning, no staff was seconded to it and the members of its Executive Committee had not been appointed due to lack of interest among qualified candidates. Furthermore, the CPT considered that the delay in the functioning of the Office could be seen as an opportunity to reconsider its mandate and its modus operandi with a view to rendering it completely independent of the Ministry of Civil Protection, empowering it to monitor the quality of the investigations into complaints referred back to the police or other law enforcement bodies and undertaking itself the investigation of the most serious cases. Lastly, it should be noted that the CPT carried out an ad hoc visit to Greece from 14 to 23 April 2015 in order to examine, among other things, the effectiveness of the investigations concerning allegations of ill-treatment by law enforcement officers. The relevant report has not yet been published.

As regards other general measures aiming at combatting ill-treatment by law enforcement officers and racially and hate motivated crimes.

Two departments were established within the Greek Police (in Athens and in Thessaloniki), empowered to investigate racially motivated incidents. Sixty-eight branches empowered to deal with racially motivated incidents are operational within Security Divisions all over the country. Following recommendations by national and international organisations involved in the protection of human rights, circular letter No. 7100/25/14 of 8 November.2014 was released by which law enforcement officers are instructed to respect the rights of all individuals during police operations irrespective of race, skin colour, religion, ethnic origin, sexual orientation, gender identity or handicap. The Greek authorities also mentioned that a computerised data processing system for all complaints concerning racially or hate motivated incidents is fully operational. Furthermore, incidents of ill-treatment of immigrants are dealt with by the Department of Internal Affairs of the Greek Police which investigated, between 2009 and 2013, 142 complaints of ill-treatment and referred to criminal justice 50 of them.

Moreover, the Prosecutor of the Court of Cassation released a circular by which he demanded that all complaints of ill-treatment by law enforcement officers are immediately referred to the competent prosecutors for investigation. Lastly, on 18 May 2015, the Minister of Civil Protection, addressing the Greek Parliament on the effectiveness of the investigations into ill-treatment by police officers, stressed that all files concerning complaints of ill-treatment by police officers were transmitted to the Prosecutor of the Court of Cassation for judicial investigation. As regards disciplinary proceedings, the Minister said the following: a) all files will be re-opened if new data emerge, b) in the last four months four police officers were punished for ill-treatment and c) the Disciplinary Code of law enforcement officers will be amended following consultations with the CPT, Human Rights Watch, the UN and the Greek Ombudsman, so that disciplinary committees consist exclusively of lawyers and University faculties’ teaching staff.

Application

Case

Judgment of

Final on

50385/99

MAKARATZIS

20/12/2004

Grand Chamber

25771/03

ALSAYED ALLAHAM

18/01/2007

23/05/2007

15250/02

BEKOS AND KOUTROPOULOS

13/12/2005

13/03/2006

21449/04

CELNIKU

05/07/2007

05/10/2007

2945/07

GALOTSKIN

14/01/2010

14/04/2010

27850/03

KARAGIANNOPOULOS

21/06/2007

21/09/2007

43326/05

LEONIDIS

08/01/2009

05/06/2009

44803/04

PETROPOULOU-TSAKIRIS

06/12/2007

06/03/2008

2954/07

STEFANOU

22/04/2010

04/10/2010

17060/03

ZELILOF

24/05/2007

24/08/2007

12294/07

ZONTUL

17/01/2012

17/04/2012

Application: 15707/10, 14097/12+

Judgment final on 17/04/2012, 10/06/2015

VARGA AND OTHERS ISTVÁN GÁBOR KOVÁCS GROUP

Enhanced procedure: Structural problem, pilot judgment

Reference texts:

Communications from the authorities

Action plan (03/07/2015) DH-DD(2015)753,

Action report (István Gábor Kovács group) (25/03/2015) DH-DD(2015)622

Communications from NGOS

From Hungarian Helsinki Committee (07/11/2014) (István Gábor Kovács and Szél) (07/11/2014)
DH-DD(2014)1527

From Hungarian Helsinki Committee (30/01/2015) (István Gábor Kovács) DH-DD(2015)231

Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 3 to 12 April 2013 CPT/Inf (2014) 13 and response of the Hungarian Government CPT/Inf (2014) 14

Case description: Group of cases concerning inhuman and/or degrading treatment due to the applicants’ poor conditions of (both pre-trial and post-conviction) detention resulting mainly from a structural problem of overcrowding in Hungarian prison facilities (violations of Article 3), and lack of effective preventive and compensatory remedies in this respect (violations of Article 13 read in conjunction with Article 3).

In view of the scale of the problem, the European Court delivered a pilot judgment finding the above-mentioned violations in the case of Varga and others and requested the respondent State to “produce, under the supervision of the Committee of Ministers, within six months from the date on which this judgment becomes final”, that is by 10 December 2015, “a time frame in which to make appropriate arrangements and to put in practice preventive and compensatory remedies in respect of alleged violations of Article 3 of the Convention on account of inhuman and degrading conditions of detention.”

Previously, the Court had already found violations of Article 3 on account of similar conditions of detention in cases belonging to the István Gábor Kovács group and had underlined the seriousness of the problem and the need for the authorities to “react rapidly in order to secure appropriate conditions of detention for detainees” (namely in the cases of Szél, István Gábor Kovács and Fehér).

Other violations were also found in this group of cases: degrading treatment of the paraplegic applicant due to his conditions of detention in a non-purpose-built institution and under a special security regime (violation of Article 3 in the case of Engel); inhuman and degrading treatment due to the conditions of detention under a special security regime for an extended period of time and lack of an effective remedy to challenge the security classification (violations of Article 3 and of Article 13 read in conjunction with Article 3 in the case of Csüllög); disproportionate statutory restrictions on family visits during pre-trial detention (violations of Article 8 in the cases of István Gábor Kovács and Hagyö) and lack of an effective remedy in this respect (violation of Article 13 read in conjunction with Article 8 in the case of Hagyö); insufficient reasons given by the domestic courts to justify the applicant's detention on remand and infringement of the principle of equality of arms as he had no access to the relevant material of the investigation when challenging his detention (violations of Article 5 §§ 3 and 4 in the case of Hagyö).

Status of execution: Action plans were received for a number of individual cases; the latest updated action plan for the entire group was received on 3 July 2015.

Individual measures: The just satisfaction awarded by the Court (for non-pecuniary damage and costs and expenses) was paid on time in all cases belonging to the István Gábor Kovács group.

As regards other individual measures: according to the European Court’s judgment, the applicant in the case of Engel (No. 46857/06) was transferred to a purpose-built institution on 15 December 2006, where he was placed in a single cell designed for disabled inmates. The authorities submitted that he is no longer detained under the special security regime (“Grade 4”). In the cases of Csüllög (No. 30042/08), István Gábor Kovács (No. 15707/10) and Hagyö (No. 52624/10), the applicants are no longer detained.

For the cases of Szél (No. 30221/06), Fehér (No. 69095/10) and Varga and others (No. 14097/12), information is awaited on the applicants’ current situation.

General measures: 1) Overcrowding and material conditions of detention: In their communications, the Hungarian authorities listed a number of measures already taken and/or still envisaged in order to solve the problem of overcrowding in detention facilities:

·              The Occupancy level balancing programme of the National Prison Administration (NPA), which was launched in October 2008 and consists of relocating detainees to less crowded penal institutions, as far as possible, near their residence or family;

·              A more efficient management of capacities of penal institutions pursuant to Act CCXL of 2013, which entered into force on 1 January 2015 and shifted the competence to decide on the beginning and place of the enforcement of a sentence from the judicial authorities to the NPA;

·              The construction of new prisons or prison units as well as renovation and re-activation of old ones, which led to the creation of 160 places for inmates in 2013;

·              The promotion of alternative sanctions: The new Criminal Code, in force since 1 July 2013, introduced the new alternative sanction of “restitutive work”; moreover, it is intended to improve the rules and conditions of house arrest;

·              The Government’s Programme and Report on Capacity Expansion in Penal Institutions (of 14 January 2015) which take into consideration the recommendations of the CPT and outlines new domestic standards of placement going beyond the personal space required by the CPT. Based on the average number of detainees in 2014 there are currently 7,409 places short of what would be required to meet these standards. The number of places in Hungarian penal institutions would have to be increased by nearly 70%. The government aims at completing this process by the end of 2018.

2) Restrictions on family visits during pre-trial detention and lack of an effective remedy in this respect: The Government emphasised that the violation found by the Court (in István Gábor Kovács) resulted from the house regulations of Szeged Prison, which had in the meantime been amended. Since 1 January 2015, Act No. CCXL of 2013 provides for at least two visits per month to be granted to inmates detained under general and light regime rules and to pre-trial detainees. In addition, under certain regimes, contacts can be allowed outside the institution on up to five occasions per year. Effective domestic remedies are also available in case of denial of requests for visits. As regards the violation of Article 13 in the case of Hagyó, the Government submitted that it resulted from an individual error of the Chief Public Prosecutor.

3) The general measures required in respect of the other violations found in the case of Hagyö are examined in the X.Y. group of cases (No. 43888/08).

4) The judgments have been translated and published on the government’s website and disseminated to the prison authorities.

Application

Case

Judgment of

Final on

14097/12+

VARGA AND OTHERS

10/03/2015

10/06/2015

ISTVÁN GÁBOR KOVÁCS GROUP

15707/10

ISTVÁN GÁBOR KOVÁCS

17/01/2012

17/04/2012

30042/08

CSÜLLÖG

07/06/2011

07/09/2011

46857/06

ENGEL

20/05/2010

20/08/2010

69095/10

FEHÉR

02/07/2013

02/10/2013

52624/10

HAGYÓ

23/04/2013

23/07/2013

30221/06

SZÉL

07/06/2011

07/09/2011

Applications: 64705/01, 45867/07

Judgment final on: 29/03/2006, 20/06/2011

MOSTACCIUOLO Giuseppe No. 1 GROUP

GAGLIONE AND OTHERS

Enhanced procedure: complex problem

Reference texts:

Information document CM/Inf/DH(2013)21

Interim resolutions CM/ResDH(2010)224 ; CM/ResDH(2009)42 ; CM/ResDH(2007)2

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers (14/12/2011) DD(2012)4

Reply from the Secretary of the Committee of Ministers to the Registrar (27/03/2012) DD(2012)4-add

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers (22/06/2012) DD(2012)4-add2

Reply from the Chair of the Committee of Ministers to the Registrar (09/10/2012) DD(2012)4-add3

Letter from the Registrar of the European Court (13/12/2012) DH-DD(2013)468

Letter from the Secretariat (08/08/2012) DH-DD(2012)806

Reply from the authorities to the Secretariat’s letter (19/10/2012) DH-DD(2012)1001

Communications from the authorities

Communication prepared for the visit of Mr Klaas de Vries (rapporteur APCOE) in Italy on 22-23 October 2014 concerning the Ceteroni, Luordo and Mostacciuolo group of cases (07/07/2015) DH-DD(2015)760, Communication prepared for the visit of Mr Klaas de Vries (rapporteur APCOE) in Italy on 22-23 October 2014 concerning the Mostacciuolo group of cases (07/07/2015) DH-DD(2015)761,

(02/07/2015) DH-DD(2015)731, (05/09/2013) DH-DD(2013)1016,

Statement by the Italian delegation (1172nd meeting, June 2013) DH-DD(2013)727,

(16/04/2013) DH-DD(2013)415, Action plan (30/03/2012) DH-DD(2012)395,

Action plan (18/10/2011) DH-DD(2011)899

Decision adopted at the 1172nd meeting (June 2013)

Case description:

1) Insufficient amount and delays in the payment of compensation awarded in the context of a compensatory remedy available since 2001 to victims of excessively lengthy proceedings (violations of Article 6 § 1 and/or Article 1 of Protocol No. 1).

In its quasi-pilot judgment Gaglione and others (475 applicants), the European Court found that delays by the Italian authorities in enforcing “Pinto” decisions ranged from nine to 49 months, and that in 65% of the cases there was a 19-month delay. Under Article 46, it drew attention to the existence of a widespread problem: on 7 December 2010, more than 3,900 applications concerning, inter alia, delays in paying compensation under the “Pinto” Law were pending before the Court. The number of applications has increased from more than 600 lodged in 2007 to more than 1,300 in 2010. By 31 December 2008, more than EUR 81,000,000 had been paid as “Pinto” compensation and approximately EUR 36,500,000 remained payable (§§ 52, 53). The Court saw in this failure on the part of the State not only an aggravating factor with regard to its responsibility under the Convention, but also a threat to the future of the system put in place by the Convention: it observed that general measures at national level were undoubtedly required to re-establish the effectiveness of the "Pinto" remedy, including earmarking more funds in the budget for the swift enforcement of “Pinto” decisions (§§ 55, 59).

2) Some of these cases also concern the excessive length of the proceedings brought in the context of this compensatory remedy (violations of Article 6 § 1).

In the case of Belperio and Ciarmoli (judgment of 21/03/2010), the European Court found in particular that the cases pending before it and concerning the length of “Pinto” proceedings may point to a general problem in the functioning of the remedy in question (§ 54).

Status of execution: Individual measures: As regards proceedings still pending when the judgments of the European Court became final, the Italian authorities indicated that they had been brought to the attention of the domestic courts with a view to expediting them.

General measures:

1) Amount of compensation awarded by the domestic courts in “Pinto” proceedings

After the facts in all the cases in this group concerning the issue at hand, the plenary Court of Cassation affirmed the principle that the case-law of the Strasbourg Court must be taken into account by Italian courts in applying the “Pinto” Law and that, consequently, when determining the amount of compensation, reference must be made to the amounts granted in similar cases by the Strasbourg Court (see Court of Cassation, Nos. 1338, 1339, 1340 and 1341, of 27 November 2003). The Court of Cassation’s subsequent judgments, in cases concerning this issue, duly took account of the criteria set by the European Court for determining the amount of compensation and the domestic case-law is now consolidated on this point (see ex multis No. 2247 of 2 February 2007, No. 16086 of 8 July 2009 and No. 13608 of 4 June 2010). These developments have also been noted by the European Court (ECHR, Simaldone v. Italy, No. 22644/03, 31 March 2009, § 13).

2) Problem of delays in the payment of compensation awarded in “Pinto” proceedings

At its 1172nd meeting, the Committee of Ministers stressed the urgent need to stop the flow of repetitive applications before the European Court caused by deficiencies in the “Pinto” remedy and invited the Italian authorities to provide information on the earmarking of necessary funds for the payment of arrears in compensation awarded under the “Pinto” law.

As regards the repetitive cases brought before the European Court and which concern the “Pinto” remedy, the Italian authorities have implemented a specific initiative (“Pinto action plan” – DH-DD(2013)1016) which has already enabled, including through the adoption of numerous unilateral declarations and friendly settlements, more than 4,300 applications to be struck out from the list of cases between June 2013 and June 2015, thus halving the number of applications pending before the Court.[10]

As regards the situation at national level, it appears from the latest communication from the Italian authorities dated 7 July 2015 (DH-DD(2015)761) that three ministries are involved in paying the “Pinto” debt:

- the Ministry of Justice is responsible for paying “Pinto” compensation awarded for excessive length of civil and criminal proceedings,

- the Ministry of Economic Affairs is responsible for paying amounts awarded in compensation for the excessive length of administrative and accounting proceedings, and  

- the Ministry of Defence is responsible for liabilities arising from the excessive length of military proceedings.

a)     Ministry of Justice

The Italian authorities considered that the size of the debt accumulated in respect of these payments, amounting to approximately EUR 450 million,^[11] made targeted action necessary. In order to clear the debt, therefore, they drew up a specific action plan, whose implementation will be made possible by two major factors:

-    first, the budget law for 2015-2017, adopted on 23 December 2014, provided for the earmarking, for each of the three years, of EUR 180 million for payments to be made under the “Pinto” Law;

-    secondly, an agreement was concluded in May 2015 between the Ministry of Justice and the Bank of Italy, whereby the Bank would provide the human resources needed to assist the Ministry of Justice with all the preliminaries relating to the payment of sums awarded under the “Pinto” Law.

To begin with, the plan will be implemented, on a trial basis, at the Rome Court of Appeal which, even though the statistics show a reduction in the number of “Pinto” cases pending before it, receives more claims of this type than any other court (14,262 applications pending as at 31 December 2014).^[12]

As regards the arrangements for payment, under the plan, the Courts of Appeal will continue to pay the sums awarded in the decisions given to date. The Ministry of Justice, however, will be directly responsible for paying any sums that might be awarded in the future. In this way, the Courts of Appeal will able to focus on eliminating the arrears and the Ministry of Justice to ensure that any sums awarded under new “Pinto” decisions are paid within 120 days of the award being made.

b)     Ministries of Economic Affairs and Defence

No information has been submitted concerning the payment of “Pinto” arrears to be made by these two ministries.

3) Problem of excessive length of “Pinto” proceedings

The amendments made to the “Pinto” Law in 2012 (see point 4 below) included the introduction of a written procedure for examining claims for compensation which are now dealt with by a single judge, in camera, on the basis of documentation submitted by the applicant.

The authorities’ view is that this simplified procedure, which applies to cases brought under this law as of 11 September 2012, will help to prevent violations based on the excessive length of “Pinto” proceedings. The initial statistics did indeed show that the average length of these proceedings had decreased from two years to two months (see DH-DD(2013)727). More recent figures show that, in the Courts of Appeal of Rome and Perugia, the average length of “Pinto” proceedings has decreased from 1,054 to 80 days and from 798 to 41 days respectively (see DH-DD(2015)761). It is further noted that there has been a 67% reduction in the volume of litigation under the “Pinto” Law (DH-DD(2015)761).

4) Reform of the “Pinto” remedy 

Amendments were made to the “Pinto” Law by Legislative Decree No. 83, issued on 22 June 2012, converted by Law No. 134 of 7 August 2012. Among other things, the new provisions made access to the “Pinto” remedy conditional upon termination of the main proceedings and excluded or limited the compensation in certain cases. The provision to the effect that payment of compensation is to be made within the limit of the available funds has not been amended and the purely compensatory nature of the “Pinto” remedy has also been maintained.

a)     Payment of “Pinto” compensation within the limit of the available funds

At its 1172nd meeting (June 2013) (DH), the Committee of Ministers reiterated its invitation to the authorities to provide information on the lifting of the budgetary ceiling on the payment of compensation awarded under the “Pinto” Law and on the earmarking of necessary funds for the payment of the arrears in this compensation.

The authorities argue that, since 2013, the section of the budget that concerns payment of “Pinto” compensation is now financed not, as was previously the case, on the basis of “available funds” (as stipulated in the “Pinto” Law) but rather with reference to “relevant financial needs” (see DH-DD(2015)761). Furthermore, to ensure that “Pinto” compensation is paid even when the earmarked funds have been used up, the Ministry of Justice is authorised, as of 2013, to request additional funds which are then advanced by the Bank of Italy. The Ministry of Justice received EUR 2 million under this arrangement in 2013. The Italian authorities point out that the issue of the constitutionality of the article of the “Pinto” Law stipulating that compensation is to be made within the limit of the “available funds” has been raised in the Constitutional Court.

No information has been submitted concerning the financing of the payments to be made by the Ministries of Economic Affairs and Defence.

b)     Other issues raised by the 2012 legislative amendments

At its 1157th meeting (December 2012) (DH), the Committee of Ministers noted with concern that some of these amendments might raise issues as to their compatibility with the requirements of the Convention and the Court’s case-law on effectiveness of remedies and compensation criteria (see also the letter from the Director of Human Rights to the Italian authorities - DH-DD(2012)806). The Deputies referred in particular to the fact that access to the “Pinto” remedy was conditional upon the termination of the main proceedings and to the decision to exclude de plano compensation for proceedings that have lasted six years or less.

In June 2013, the authorities indicated that the legislative office of the Ministry of Justice was examining the issues raised in connection with this reform in order to determine whether it was necessary to amend the law (see DH-DD(2013)727).

Application

Case

Judgment of

Final on

64705/01

MOSTACCIUOLO GIUSEPPE No. 1 GROUP

(list of cases)

29/03/2006

Grand Chamber

45867/07+

GAGLIONE AND OTHERS

21/12/2010

20/06/2011

Application No.

Case

Judgment of

Final on

24818/03

ARMANDO IANNELLI

12/02/2013

12/05/2013

20619/03+

ASCIERTO AND BUFFOLINO

05/11/2013

05/11/2013

15015/03+

BENCIVENGA AND OTHERS

05/11/2013

05/11/2013

18477/03

TIZIANO BIANCHI

02/11/2010

02/02/2011

19876/03+

BONALZOO S.R.L.

07/12/2010

07/03/2011

62156/00

BONASIA AND POZZI

08/07/2008

08/10/2008

24817/03

ANGELO CARUSO

02/04/2013

02/04/2013

3978/03

CONCERIA MADERA S.R.L. No. 2

21/09/2010

21/12/2010

43465/02

COOPERATIVA ‘SANNIO VERDE’ S.R.L.

15/11/2012

15/11/2012

32671/03

DI BRITA

14/10/2008

14/01/2009

1452/03

FONTANA

13/11/2008

13/02/2009

32740/02+

GALASSO AND OTHERS

16/07/2013

16/07/2013

28104/02+

GHIROTTI AND BENASSI

06/04/2010

06/07/2010

13175/03

GIUSTI

18/10/2011

18/01/2012

11213/04

LANDINO

16/03/2010

16/06/2010

24886/03

MAIO

18/03/2008

18/06/2008

37947/02+

MARTINETTI AND CAVAZZUTI

20/04/2010

20/07/2010

32810/02

MARZOLA CENTRI DI FISIOKINESITERAPIA S.A.S.

16/03/2010

16/06/2010

62250/00

MAUGERI SILVIO

08/07/2008

08/10/2008

37197/03

MEZZAPESA AND PLATI

24/04/2012

24/04/2012

34389/02+

PACIFICO AND OTHERS

15/11/2012

15/02/2013

39567/02

PARENTI (HEIR) AND DEIDDA

25/09/2012

25/09/2012

27036/03+

SALVATORE AND OTHERS

18/01/2011

18/01/2011

11013/04+

SANCHIRICO AND LAMORTE

16/03/2010

16/06/2010

44031/02+

STREGA ALBERTI BENEVENTO S.P.A.

09/11/2010

09/02/2011

64897/01

ZULLO ERNESTINA

29/03/2006

Grand Chamber

20191/03

ARAGOSA

18/12/2007

18/03/2008

62354/00

BIEFFE RIFUGI ANTIATOMICI S.R.L.

08/07/2008

08/10/2008

45836/99

CAPONE AND CENTRELLA

16/10/2007

31/03/2008

62155/00

PROVIDE S.R.L.

05/07/2007

05/10/2007

39933/03

BUONFARDIECI

18/12/2007

18/03/2008

41062/05

CAPRIATI

26/07/2011

26/07/2011

20193/03+

PISCITELLI AND OTHERS

12/10/2010

12/01/2011

36624/02

SILVERI No. 2 

19/10/2010

19/01/2011

Application: 9106/06

Judgment final on 12/09/2012

GENDERDOC-M

Enhanced procedure: Complex problem

Reference texts:

Communications from the authorities

Action plan (09/07/2015) DH-DD(2015)758, Action plan (27/03/2014) DH-DD(2014)444

Communication from NGOs

From Genderdoc-M and Ilga Europe (09/05/2014) and reply from the authorities (21/05/2014) DH-DD(2014)691

From Genderdoc-M and Ilga Europe (21/08/2015) and reply from the authorities (01/09/2015) DH-DD(2015)883

Case description: Violation of the applicant NGO’s right to peaceful assembly arising from the ban on holding a demonstration planned for May 2005 to encourage the adoption of laws to protect sexual minorities from discrimination (violation of Article 11); lack of an effective remedy on account of the post-hoc character of the judicial remedy available in the domestic legislation (violation of Article 13 in conjunction with Article 11); discrimination against the applicant NGO on account of the difference in treatment between it and other NGOs which were allowed by the authorities to hold demonstrations in the same period of time, of the authorities’ disapproval of demonstrations which they considered to promote homosexuality, and of the unclear reasons adduced by the authorities when rejecting the applicant’s request to hold a demonstration (violation of Article 14 in conjunction with Article 11).

Status of execution: Individual measures: The Moldovan authorities indicated that the applicant NGO has organised demonstrations without any restrictions having been imposed by the local authorities since 2005 when the violation took place. In particular, the authorities referred to two recent public events held by the applicant NGO: the event held in May 2014 was planned in collaboration with the police as far as security measures and the itinerary to be followed were concerned; counter-demonstrators were effectively stopped and the participants followed their itinerary. Likewise, adequate police protection was provided for the event of May 2015, which took place with larger participation of civil society. Counter-demonstrators were prevented from obstructing the event and no acts of violence or serious disturbances were observed (see, also the press release issued by the applicant NGO after this event http://gdm.md/ro/content/marsul-egalitatii).   

The authorities also noted that the Anti-discrimination Council (see below, under general measures) has received no complaints from the applicant NGO about any interference with its right to peaceful assembly.

General measures:

a) Legislative measures taken for the protection of the right to peaceful assembly and the introduction of an effective remedy

The law on the Organisation and Conduct of Assemblies,^[13] which was in force when the violations in the present case occurred, was repealed and a new Law on Assembly was adopted in February 2008.^[14] This new law was adopted in response to the violations found by the European Court in cases concerning the right to peaceful assembly and provides as follows:

-       The requirement to obtain authorisation to hold a public event was lifted (only the organisers of public events involving more than 50 participants are under the obligation to notify the local public authorities that they intend to organise a public event; this notification should contain information on the time and the place of the event and should be made five days prior to the date of the event);

-       Procedures applicable for the notification of spontaneous public gatherings were simplified;

-       The local administration does not have the right to take a decision to change the place and time proposed by the organisers for holding an assembly. The local authorities can only recommend to the organisers a change of place and time where this is necessary for the peaceful holding of the gathering;

-       An assembly can be prohibited or the time, place or form of holding of an assembly can be changed by a court decision upon a reasoned request made by a local administration. Reasons for prohibition are that the assembly is intended to instigate aggression, war, national, racial, ethnic or religious hatred, public discrimination or violence, or to undermine national security or the territorial integrity of the State, perpetration of crimes, violation of public order or organisation of mass riots, violation of public morality, the rights and freedoms of other persons or endangering their lives and health (Article 8 of the Law).  

-       A court decision in such cases should be taken within three days after a request is made (this decision can be appealed within three days). Initiation of judicial proceedings shall not suspend the right to hold a public event.

b) Measures taken to prevent discrimination against the LGBT community

On 25 May 2012 Parliament adopted Anti-discrimination Law^[15] which supplemented other pre-existing anti-discrimination legislation. The new Law provides for general indications as to what constitutes discrimination (sexual orientation is explicitly mentioned with regard to employment issues) and introduces procedures and remedies for settlement of discrimination-related disputes. An “Anti-discrimination Council” with quasi-judicial and investigatory powers was set up under the new law. The Council is designed, inter alia, to monitor the implementation of the anti-discrimination legislation, examine complaints of alleged discrimination, request the initiation of disciplinary proceedings against officials who committed discriminatory actions, and refer to the relevant authorities in cases of discriminatory acts containing the elements of a crime. In the Council’s practice, discrimination against the LGBT community has been considered to be covered by the Law even if no issue has so far been raised in the specific context of freedom of assembly.

Following the adoption of the new law, the Government started the process of harmonisation of the existing legislation. Consequently, Article 90/1 of the Contravention Code which sanctioned “dissemination of information and/or committing acts aimed at promoting … (relationships other than those related to marriage and family)” was amended by the deletion of the phrase in parenthesis. This article is currently applicable only to dissemination of information and/or conduct of acts aimed at promoting prostitution, paedophilia and pornography.

c) Change of practice

The Moldovan authorities provided statistical information to demonstrate that the practice has changed since the adoption of the Law on Assemblies. Between 2008 and 2012 the Chișinău Municipality received around 3,500 notifications to hold public gatherings. Around 1,800 of these notifications concerned public gatherings with a limited number of participants. Around 1,600 of the notifications were approved by the authorities since they required certain arrangements (e.g. change in the traffic circulation, medical emergency services and other arrangements for the safety of the participants). In eight cases, the requests to hold public events at a specific time and place overlapped with other requests. In those cases the authorities gave priority to the notifications lodged first. In three cases the authorities sought a judicial order because they wanted to change the time and place of the public gathering. In all these cases the judicial orders were rendered three days prior to the event. The authorities also specified that between 2013 and first half of 2015, fourteen disputes between the local authorities and organisers were brought before courts. No court decision was given to prohibit a public event.

In addition, the authorities referred to five recent public events to demonstrate good practices which concerned LGBT rights and which took place on the following dates: on 14 February 2013 (march by the applicant NGO in Chisinau to defend the right to peaceful assembly); on 19 May 2013 (protest by the applicant NGO in front of the Embassy of the United States and the Art Academy); on 12 June 2013 (protest by the applicant NGO in front of the Embassy of the Russian Federation); on 5 July and 6 September 2013 (events held by “GayBelarusi”, Amnesty International, Hyde Park, Anti-discrimination Coalition). The authorities stressed that some of these events took place under police protection as a result of the presence of counter-demonstrators.

d) Training and awareness-raising

The relevant European Court case-law and the Anti-discrimination law were included in the curricula for continuous training of judges and prosecutors at the National Institute of Justice (NIJ). In 2012 NIJ conducted trainings and other events on the interpretation and implementation of the Anti-discrimination law for 273 judges and 53 prosecutors.

Application

Case

Judgment of

Final on

9106/06

GENDERDOC-M

12/06/2012

12/09/2012

Application: 13221/08+

Judgment final on 22/10/2012

LINDHEIM AND OTHERS

Enhanced procedure: Complex problem

Reference texts:

Communications from the authorities

Action report (30/06/2015) DH-DD(2015)706, Updated action plan (10/04/2015) DH-DD(2015)417

Action plan (15/07/2014) DH-DD(2014)1024, Action plan (104/04/2013) DH-DD(2013)501

Decision adopted at the 1186th meeting (December 2013)

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 November 2004, of 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 applicant lessors received a particularly low level of annual rent (less than 0.25% of the plots’ market values), bearing no relation to the actual value of the land, and increases in the value of the lands were primarily vested in the lessee but not in the lessor (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).

In addition, the Court found under Article 41 that “in the particular circumstances of the instant case, … the respondent State should be dispensed from liability with regard to legal acts or situations that antedate the present judgment” and accordingly dismissed the applicants’ claims for compensation for loss of income (pecuniary damage).

Status of execution: The authorities submitted an action report on 30 June 2015 (DH-DD(2015)706) and additional information was provided on 25 August 2015.

Individual measures: A request for reopening of her case before the Norwegian Supreme Court (see § 18 of the judgment), submitted on 30 October 2012 by one of the applicants (Ms Lindheim) on the basis of the European Court’s judgment, is pending. On 19 November 2013, the Supreme Court decided to stay the proceedings in view of the expected amendments to the Ground Lease Act. The authorities submitted in their action report that the national procedural rules leave it up to the applicant to decide whether she will resume the reopening proceedings.

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. In June 2014 the Parliament extended its term of validity until 1 July 2015. 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 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 into line with Article 1 of Protocol No. 1. The committee delivered its report on 15 October 2013. On 27 March 2015, the government proposed a Bill with amendments to the Ground Lease Act of 1996. In June 2015, the Parliament adopted the Bill with some minor adjustments and the amended Ground Lease Act entered into force on 1 July 2015.

According to these amendments, lessees still have a right to extension of the ground lease when the contract expires. However, if the lessee now chooses to extend the contract, the amended law grants the lessor a one-off upward rent adjustment fixed to 2% of the value of the undeveloped plot. This rent adjustment is modified by a rent “ceiling” of NOK 9,000 per decare (1,000 m²) of ground, adjusted every year (after 1 January 2002) in accordance with inflation (currently about NOK 11,300, approx. EUR 1,250). The amendment also contains a safeguard clause for exceptional cases, according to which the rent adjustment can exceed the ceiling in cases of extraordinarily high value of the undeveloped land. The amendment further introduced a mechanism allowing both parties to claim another one-off upward or downward adjustment of the rent to 2% of the market value of the undeveloped plot 30 years after extension of the contract. As regards contracts previously extended on unchanged conditions pursuant to the former rules of the Ground Lease Act 1996 (as in force since November 2004), the amended Ground Lease Act has retrospective effect, so that lessors are entitled to claim (ex nunc) rent adjustment according to the new rules.

Judicial proceedings on a class action for damages brought in August 2012 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. The Norwegian authorities’ submitted that according to the domestic procedural law, it is now up to the plaintiffs to decide whether they will resume the proceedings.

A translation of the judgment of the European Court has also been published.

Application

Case

Judgment of

Final on

13221/08+

LINDHEIM AND OTHERS

12/06/2012

22/10/2012