CONTENTS

A. General items

B. Examination of cases – Proposals from the Chair

1

13

MANUSHAQE PUTO AND OTHERS

DRIZA GROUP

ALBANIA

17/12/2012

02/06/2008

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

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

Follow-up to the decision adopted at the 1201st meeting and assessment of the progress achieved in the implementation of the action plan.

1201st meeting

June 2014

2

16

VIRABYAN

ARMENIA

02/01/2013

Ill-treatment of the applicant in police custody and failure to carry out an effective investigation, including into allegations that the ill-treatment was politically motivated (violation of Article 3 alone, and of Article 14 in conjunction with Article 3 procedural limb); violation of the presumption of innocence (Article 6(2)).

To assess the updated action plan and to request for further information, in particular on the re-opened investigations and legislative amendments under consideration.

First examination

3

20

MAHMUDOV AND AGAZADE GROUP

AZERBAIJAN

18/03/2009

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

Follow-up to the decision adopted at the 1214th meeting.

1214th meeting

December 2014

4

23

NAMAT ALIYEV GROUP

AZERBAIJAN

08/07/2010

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

Follow-up to the decision adopted at the 1222nd meeting.

1222nd meeting

March 2015

5

27

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).

Follow-up to the decision adopted at the 1222nd meeting.

1222nd meeting

March 2015

6

30

L.B. GROUP

BELGIUM

02/01/2013

Structural problem concerning the care of persons with mental health problems like the applicants, who are kept in a prison environment due to, in particular, the lack of capacity to receive them in the external psychiatric system (Articles 3 and 5).

Assessment of the progress achieved and identification of the outstanding questions for the individual and general measures in this group of cases.

First examination

7

34

SEJDIĆ AND FINCI GROUP

BOSNIA AND HERZEGOVINA

22/12/2009

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

To assess the state of play of the execution process after the elections held in October 2014.

1214th meeting

December 2014

8

36

M.S.S. AND RAHIMI GROUPS

GREECE

21/01/2011

Conditions of detention of asylum seekers and irregular migrants (Article 3) and lack of an effective remedy to challenge conditions of detention (Articles 3 and 13); living conditions of asylum seekers (Article 3). Ineffective asylum procedure and lack of an effective remedy to challenge the shortcomings of the asylum procedure (Articles 3 and 13).

Assessment of the general measures regarding the establishment of an effective guardianship system for third country unaccompanied minors.

1214th meeting

December 2014

1222nd meeting

March 2015

9

40

NISIOTIS GROUP

GREECE

20/06/2011

Prison overcrowding and other poor conditions in prisons amounting to inhuman and degrading treatment.

Assessment of the general measures taken to decrease overcrowding and improve conditions of detention in prisons, and identification of outstanding issues.

1172nd meeting

June 2013

10

43

LUNTRE AND OTHERS GROUP

REPUBLIC OF MOLDOVA

15/09/2004

Failure or substantial delay in the enforcement of final domestic judicial decisions and lack of effective remedy in this respect; violations of the right to respect for property (Articles 6 § 1 + 13, Article 1 of Protocol No.1).

To take stock of the measures adopted so far and to invite the authorities to provide information on the effective implementation of these measures.

1059th meeting June 2009

(p. 122)

11

48

AL NASHIRI GROUP

POLAND

16/02/2015

Various violations related to secret rendition operations.

Examination of urgent individual measures.

1222nd meeting

March 2015

12

52

HORYCH GROUP

POLAND

17/07/2012

Strict imposition of the “dangerous detainee” regime, exceeding the legitimate requirements of security in prison (violation of Article 3).

Restrictions imposed on the applicants’ visiting rights due to their classification as “dangerous detainees” and failure to ensure proper conditions for those visits (violation of Article 8).

Assessment of the updated action plan and request for further information (in particular on the legislative amendments under consideration)

1208th meeting

September 2014

13

56

ŢICU + GHEORGHE PREDESCU

ROMANIA

01/01/2014

25/05/2014

Ill-treatment in prison due to the inadequate management of the applicants’ psychiatric pathologies (violations of Article 3).

Lack of investigation into allegations of ill-treatment by other prisoners

(procedural violation of Article 3 in Ţicu case).

Assessment of the information presented by the authorities on 27 March 2015 as regards the individual measures

1208th meeting

September 2014

14

59

MOLDOVAN GROUP

ROMANIA

05/07/2005

Consequences of racially-motivated violence in 1993, against villagers of Roma origin, in particular improper living conditions following the destruction of their homes, and the general discriminatory attitude of the authorities, including their prolonged failure to put an end to the breaches of the applicants' rights (Articles 3, 6, 8, 13, and 14 in conjunction with Articles 6 and 8).

To assess the progress made in the implementation of these judgments in the light of the action plan presented by the authorities on 1 April 2015

1214th meeting

December 2014

15

62

ALEKSEYEV

RUSSIAN FEDERATION

11/04/2011

Repeated bans on marches concerning homosexual rights (violation of Article 11; violation of Article 13 in conjunction with Article 11; violation of Article 14 in conjunction with Article 11).

To examine the information provided in response to the Committee’s last decision of September 2014.

1208th meeting

September 2014

16

67

GARABAYEV GROUP

RUSSIAN FEDERATION

30/01/2008

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 1214th meeting.

1214th meeting

December 2014

17

73

CATAN AND OTHERS

RUSSIAN FEDERATION[1]

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).

Follow-up to the interim resolution adopted at the 1222nd meeting.

1222nd meeting

March 2015

18

75

OAO NEFTYANAYA KOMPANIYA YUKOS[2]

RUSSIAN FEDERATION

08/03/2012,

15/12/2014

Insufficient time for the preparation of its 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 stress the fast approaching deadline for the drawing-up of an action plan concerning the distribution of the just satisfaction awarded for pecuniary damage and to reiterate the call upon the authorities to respect this deadline.

1222nd meeting

March 2015

19

77

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 make assessment of the information provided and identify the outstanding issues bearing in mind the deadline set by the Court (16 July 2015).

1222nd meeting

March 2015

20

83

TARAKHEL

SWITZERLAND

04/11/2014

Violation of Article 3 in the event of transfer of the applicant family (an asylum-seeking couple with six minor children) from Switzerland to Italy under the “Dublin Regulation” without receiving sufficient assurances from the Italian authorities about its conditions in Italy.

Assessment of the action report and proposal to adopt a final resolution.

First examination

21

86

EL-MASRI

“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA”

13/12/2012

Various violations related to the CIA secret rendition operations.

Follow-up to the decision adopted at the 1122nd meeting (March 2015).

1222nd meeting

March 2015

22

91

INCAL GROUP

GÖZEL AND ÖZER GROUP

TURKEY

09/06/1998

Violations of the right to freedom of expression.

Taking stock of the measures already taken and identifying the outstanding questions.

1201st meeting

June 2014

23

96

CYPRUS AGAINST TURKEY

TURKEY

10/05/2001

12/05/2014

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

Continuation of the debate on the missing persons, in accordance with the decision adopted at the 1222nd meeting (March 2015).

1186th meeting

December 2013

24

101

VARNAVA AND OTHERS

TURKEY

18/09/2009

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

Continuation of the debate on the missing persons and on the just satisfaction, in accordance with the decision adopted at the 1222nd meeting (March 2015).

1186th meeting

December 2013

1214th meeting

December 2014

25

103

XENIDES-ARESTIS GROUP

TURKEY

22/03/2006

23/05/2007

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).

Examination of the issue of payment of the just satisfaction, in accordance with the decision adopted at the 1222nd meeting (March 2015).

1214th meeting

December 2014

26

105

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 + 1 Protocol No. 1), pilot judgment, deadline expired in July 2011.

To follow up on the last decision adopted at the December 2014 meeting and to take stock of the latest developments concerning the functioning of the domestic remedy introduced

1214th meeting

December 2014

27

109

OLEKSANDR VOLKOV

UKRAINE

27/05/2013

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

To examine the updated action plan received in April 2015 and to stress the need for rapid advances in further reform efforts, in particular as regards the required reform of the Constitution.

1222nd meeting

March 2015

Applications: 604/07, 33771/02

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

MANUSHAQE PUTO AND OTHERS

DRIZA GROUP

Enhanced procedure: Pilot judgment, complex problem

Reference texts:

Interim Resolution CM/ResDH(2013)115

Information document CM/Inf/DH(2011)36

Memorandum on the individual measures H/Exec(2015)11

Memorandum on the general measures H/Exec(2015)16

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

Communications from Albania

(18/05/2015) DH-DD(2015)523 (restricted), Updated action plan (27/10/2014) DH-DD(2014)1368;
Updated action plan (20/05/2014) DH-DD(2014)677; Action plan (24/04/2014) DH-DD(2014)539;
Presentation of the action plan (10/03/2014) DH-DD(2014)365;

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

Decision adopted at the 1201st meeting (June 2014)

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

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

Status of execution: Individual measures: All individual measures have been adopted in the cases of Beshiri and others, Bushati and others, Hamzaraj (No. 1), Nuri, Ramadhi and five others, Vrioni and others and Caush Driza. In the case of Eltari, the Court reserved the question of the application of Article 41. On 15 May 2014 the authorities confirmed the payment of sums covering the pecuniary damages awarded by the Court in the cases of Manushaqe Puto and Delvina. To date, several questions still remain open in the cases of Driza and Gjonboçari (for further details see the document H/Exec(2015)11).

General measures: In the framework of the supervision which it has exercised since 2007 of this group of cases, the Committee has called on the Albanian authorities on many occasions to take all necessary measures, without further delay, to execute the numerous final domestic decisions concerning the rights over property nationalised during the communist regime. A series of general measures have been identified for urgent adoption in order to achieve the establishment of an effective compensation mechanism:

•      the establishment of a list of final decisions,

•      the finalisation of the land valuation map,

•      and then, on the basis of these elements, the calculation of the cost of the execution of the decisions, in order to be able to define the resources needed, to adopt the final execution mechanism, and to execute – at the initiative of the authorities – the decisions in question, by adopting a step-by-step approach (see, in particular, the decision adopted in June 2012 at the 1144th meeting).

Given the failure to put in place essential measures, in June 2013 the Committee adopted an interim resolution (CM/ResDH(2013)115) and called on the Albanian authorities to attach the highest priority to the preparation of a comprehensive action plan capable of establishing, within the deadline set by the Court, an effective compensation mechanism, taking into account the measures already identified by the Committee. In December 2013 (1186th meeting) the Deputy Minister of Justice assured the Committee of the political will and the commitment of the newly elected Government to adopt all necessary measures to set up a compensation mechanism, as required by the Manushaqe Puto pilot judgment.

Following consultations in Tirana on 13-14 February 2014 between the authorities and the Department for the Execution of the judgments of the European Court, and in reply to the decision taken by the Committee at its 1193rd meeting (March 2014) (DH), the Albanian Council of Ministers formally adopted, on 24 April 2014, an action plan setting out a comprehensive list of measures aimed at introducing an effective compensation mechanism by June 2015 (see DH-DD(2014)1368).

Updated action plans were submitted on 24 April 2014 and 27 October 2014 (see DH-DD(2014)677 and DH‑DD(2014)1368). At its 1201st meeting (June 2014) (DH), the Committee noted with satisfaction that the measures foreseen were being adopted as planned and strongly encouraged the authorities to intensity their efforts with a view to reducing the time-frame as much as possible.

In February 2015, the authorities requested the Council of Europe for expert support in drafting the law on compensation and/or restitution of property. Accordingly, a co-operation project was designed by the Human Rights National Implementation Division of the Council of Europe in co-operation with the Department for the Execution of Judgments. Within the framework of that project, in March 2015 two independent experts participated in the working group tasked with preparing draft law.

A first draft of the law was submitted to the Department for the Execution of Judgments on 1 April 2015 and on 23 April 2015 representatives from the Department went to Tirana to consult on the draft with the Albanian authorities. In this context, the Deputy Prime Minister expressed the Government’s commitment to take into account the comments made during the consultations in the further work on the draft law. On 18 May 2015, the authorities submitted an updated action plan, together with the revised draft law (DH-DD(2015)523). The draft law is expected to be approved by the Council of Ministers and transmitted to the Parliament in September 2015, with a delay of approximately 2 months in relation to the calendar announced by the authorities in April 2014.

The general measures required in the case of Gjonboçari to remedy the excessive length of civil proceedings and the lack of an effective remedy are examined in the context of the Luli group of cases (64480/09).

Application

Case

Judgment of

Final on

604/07+

MANUSHAQE PUTO AND OTHERS

31/07/2012

04/11/2014

17/12/2012

23/03/2015

25408/06+

KARAGJOZI AND OTHERS

08/04/2014

DRIZA GROUP

33771/02

DRIZA

13/11/2007

02/06/2008

7352/03

BESHIRI AND OTHERS

22/08/2006

12/02/2007

6397/04

BUSHATI AND OTHERS

08/12/2009

14/02/2012

08/03/2010

14/05/2012

10810/05

CAUSH DRIZA

15/03/2011

15/06/2011

49106/06

DELVINA

08/03/2011

21/05/2013

08/06/2011

07/10/2013

16530/06

ELTARI

08/03/2011

10/06/2014

15/09/2011

10/09/2014

10508/02

GJONBOÇARI AND OTHERS

23/10/2007

31/03/2008

45264/04

HAMZARAJ No.1

03/02/2009

06/07/2009

12306/04

NURI

03/02/2009

06/07/2009

38222/02

RAMADHI AND 5 OTHERS

13/11/2007

02/06/2008

35720/04+

VRIONI AND OTHERS^[4]

29/09/2009

07/12/2010

29/12/2009

11/04/2011

37295/05+

SILIQI AND OTHERS

10/03/2015

10/03/2015

Application: 40094/05

Judgment final on 02/01/2013

VIRABYAN

Enhanced procedure: Complex problem

Reference texts:

H/Exec(2015)14 - Measures for the execution of the judgments of the European Court of Human Rights

Communications from the authorities

Updated action plan (16/02/2015) DH-DD(2015)206; Consolidated action plan (25/02/2014) DH-DD(2014)328

Communications from NGOs

From Helsinki Citizens' Assembly-Vanadzor (26/09/2014) DH-DD(2014)1231 and reply by the authorities (19/11/2014) DH-DD(2014)1425

From Helsinki Citizens Assembly - Vanadzor and Spitak Helsinki Group) (25/09/2013) DH-DD(2013)1118

From Rule of Law (25/09/2013) DH-DD(2013)1117

Case description: The applicant (a member of one of the main opposition parties at the material time in Armenia) was subjected to ill-treatment characterised as torture by the European Court, while in police custody on 23 April 2004 (substantive violation of Article 3) and no effective investigation was carried out into his allegations of ill-treatment. The motion of the applicant to start criminal proceedings into his ill-treatment was dismissed by the Erebuni and Nubarashen district prosecutor; that decision was upheld by the Appeal Court and the Court of Cassation (procedural violation of Article 3).

The authorities also failed to carry out an effective investigation into the applicant’s allegations that his ill‑treatment was politically motivated despite the existence of plausible information which was sufficient to alert the authorities to the need to carry out an initial verification, and depending on the outcome, investigate (violation of Article 14 taken in conjunction with Article 3 in its procedural limb).

The applicant was formally charged with inflicting violence on a public official. The grounds on which the criminal proceedings against the applicant were terminated violated the presumption of innocence. The prosecutor’s decision of 30 August 2004 on termination of the proceedings taken at the pre-trial stage and up-held by the courts, was couched in terms leaving no doubt that the applicant had committed an offence (violation of Article 6 § 2).

Status of execution: an updated action plan was submitted on 16 February 2015.

Individual measures: the just satisfaction was paid within the deadline, including non-pecuniary damages.

Reopening of investigation (procedural violations of Article 3 alone, and in conjunction with Article 14): On 1 September 2014 the investigation on the applicant’s allegations of ill-treatment was re-opened, and the case was referred to the Special Investigative Service for the latter to conduct the investigation. The investigation is now under way.

Reopening of criminal proceedings (violation of Article 6 § 2): On 24 October 2013, the Court of Cassation quashed the decisions on ‘’Termination of criminal proceedings in respect of the applicant’’, and the impugned prosecution decision of 30 August 2004 was revoked by the prosecutor on 19 August 2014. The criminal case was subsequently transferred to Erebuni Criminal Investigation Department and is pending.

General measures

Substantive violation of Article 3: the Criminal Code will be amended to include a provision that all public officials who engage in conduct that constitutes torture are charged accordingly, and that the penalty reflects the gravity of the act of torture. The Criminal Procedure Code will be amended to stipulate the minimum rights of an arrested person from the outset of the de facto deprivation of liberty, including the right to have the fact of one’s detention notified to a third party; access to a lawyer, and access to a medical doctor.  

The draft amendments to the Criminal Code and the Criminal Procedure Code have been submitted to the Government for final approval. However, no information has been provided on the next steps or time-table for the adoption of those draft texts.

Periodic training and seminars have been organised for police officers and law-enforcement agencies on the Convention and the European Court’s case law. According to Order No. 20 of the Chief of Police of Armenia, dated 27 November 2013, “On Ensuring the Application of Legal Standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment”, investigative bodies should ensure that their actions are fully in compliance with CPT standards.

Procedural violation of Article 3 (alone, and in conjunction with Article 14): The Special Investigation Service (SIS) was established by the law of 28 November 2007 on the “Special Investigation Service”. The SIS is an independent body reporting to the Prosecutor General. Amongst other activities, it conducts preliminary investigations in cases related to crimes committed by officials and employees implementing State services. Moreover, it has a specialised unit, the Department for the Investigation of Torture, which conducts preliminary investigations into cases of ill-treatment.

The draft amendments to the Criminal Code include any discriminatory motive for torture as an integral part of the new definition of torture. This change aims, inter alia, to widen the scope of situations where an incident can be qualified as torture, and stresses the importance of criminalisation and adequate sanctioning of discriminatory acts of torture. The new, draft Criminal Procedure Code enshrines, as a principle equality of all, without discrimination.

Violation of Article 6 § 2: The impugned decision was taken on the basis of Article 37 subparagraph 2(2) of the Criminal Code. Since then, Article 37 has been amended and the relevant subparagraph removed. Moreover, according to the amended Article 37, in such cases criminal proceedings may not be terminated if the accused objects.

Among others, the Virabyan case is included in the curricula of the Police Academy, Civil Servant training courses, and the Justice Academy of Armenia. The judgment was translated and published on the official website of the Ministry of Justice.

Application

Case

Judgment of

Final on

40094/05

VIRABYAN

02/10/2012

02/01/2013

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 1214th meeting (December 2014)

Case description: Violations of the right to freedom of expression (violations of Article 10) of the applicant, journalists due, in particular, to (in both cases) unjustified use of imprisonment as a sanction for defamation (the Court found no special circumstances justifying such a sanction, such as incitement to violence or racial hatred); 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 the anti-terror legislation, were also found to violate the presumption of innocence of the applicant (violation of Article 6 § 2).

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

Status of execution: Individual measures: 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 mainly 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 a series of 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 of 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).

During its last examination of this group of cases in December 2014, in view of the number of outstanding questions[15], 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.

The Committee expressed its concern about the absence of information on the charges against the applicants' representative, Mr. Intigam Aliyev.

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

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

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

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 1222nd meeting (March 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 (sub-group Kerimova consisting of the cases Kerimova, Mammadov (No. 2), and Hajil) of the applicants;

and that the Constitutional Court annulled the elections in the electoral constituencies of certain applicants without sufficient and relevant reasons, without affording procedural safeguards to the parties (including the 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 motivation;

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

- 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 September 2013 DH meeting (1179th meeting – see the notes of the meeting). 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 in September 2014 and 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).

Finally, 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 scheduled for autumn 2015.

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

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

Communication from the applicant

(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

Communication from a NGO

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

Decision adopted at the 1222nd meeting (March 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 its 1214th meeting (December 2014) (DH), then at its 1222nd meeting (March 2015) (DH), during which it adopted Interim Resolution CM/ResDH(2015)43.

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 Interim Resolution CM/ResDH(2015)43 adopted in March 2015, reiterated with insistence its call to the authorities to ensure without further delay the applicant’s release.

It also called upon them 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, about which the Committee expressed its deep concern.  

On 15 and 27 May 2015, the applicant's representative submitted communications to the Committee of Ministers, stating, first, that the Supreme Court has not yet set a hearing date and that this is contrary to law and, secondly, that he has addressed a complaint to the Prosecutor General against the judges who had ruled in his case.

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 adopted in March 2015.

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: 22831/08

Judgment final on 02/01/2013

L.B. GROUP

Enhanced procedure: Urgent individual measures + structural problems

Reference texts:

Communications from the authorities

(10/06/2014) DH-DD(2014)818, Action plan (with appendix) (10/02/2014) DH-DD(2014)208

Case description: The applicants were subject to decisions of internment, in accordance with the “social defence law”, taken during the criminal proceedings against them or whilst they were serving their prison sentences. The Court noted their prolonged detention in institutions, namely prison psychiatric wings, not offering care appropriate to their mental health disorders (violations of Article 5 § 1 for all cases in the group; violations of Article 3 in certain cases). It underlined that the situation arose from a structural problem: on the one hand, the support provided to internees in prison psychiatric wings is inadequate and, on the other hand, their placement outside prison is often impossible either because of the lack of places in psychiatric hospitals or because the legislative system does not allow the authorities responsible for the implementation of the internment (the Commissions for Social Defence) to enforce the placement in an external institution.

The Court also noted in several cases the lack of an effective remedy to complain about such conditions of detention (violations of Article 5 § 4). First, it recalled that even if the Commissions for Social Defence could meet the requirements of Article 5 § 4 in principle, the limitation of their capacities in the context of the above-mentioned structural problem (lack of places in specialised institutions and lack of legal jurisdiction to enforce a placement in an external institution) in reality prevented them from reviewing the appropriateness of the place of detention. In certain cases, the Court also noted the lack of an effective judicial remedy, either in interlocutory proceedings (where judges considered themselves to be incompetent on the question of the detention facilities) or outside interlocutory proceedings (the Court not being informed of any relevant examples of jurisprudence).

Status of execution: The measures adopted or in the process of being adopted by Belgium are presented in the revised action plan dated 10 February 2014 (DH-DD(2014)208) and in a communication dated 10 June 2014 (DH-DD(2014)818).

Individual measures: According to the information transmitted to the Committee of Ministers, the applicants L.B. and Dufoort (information transmitted by the authorities) and the applicant Soussi (information taken from the judgment[20]) have been conditionally released, whereas the other applicants are still detained in prison psychiatric wings. In their communication dated 10 June 2014, the Belgian authorities underlined the difficulty of making fundamental changes to the support provided to the applicants while the structural problem persists (see general measures). For more details on the proceedings conducted concerning several applicants but not having not led to a significant change in their care, see DH-DD(2014)818 et DH-DD(2014)208.

General measures :

Articles 3 and 5 § 1

The action plan (DH-DD(2014)208) indicates, in particular, that the relevant ministries are working on the development of a census of the internee population, the availability of health care and the needs in this field. The aim is to target better actions to improve the care plan for internees. A reflection is also currently in progress concerning ways to improve the support provided to internees, depending on their needs, and to allow, as far as possible, their reclassification (in order to re-integrate them into society[21]).

The additional information provided (DH-DD(2014)818) sets out the following:

A “multi-year internment plan” dated 2007 is currently being executed in successive phases. For low risk internees, it aims to encourage out-patient care and classic residential care. For medium risk security internees, it aims to develop residential care (Intensive Treatment Units, psychiatric care homes and protected housings initiatives). 601 beds/places have already been created, including 225 in psychiatric hospital; 243 in psychiatric care homes and 133 in protected housing initiatives. 75 beds have been reserved for sex offenders, including 32 in psychiatric hospital; 15 in psychiatric care homes and 28 in protected housing initiatives. Finally, for high risk internees, an extension of the Social Defence Establishment in Paivfe was completed in 2008 (45 places) and two new forensic psychiatric centres are being/will be built, in Gand (264 places – the construction project has ended and the reception of the first internees was announced for summer 2014) and in Anvers (180 places – the construction project is scheduled to end in 2016). The aim of the current phase of the “internment plan” is progressively to release the internees from prison and to place them in institutions offering the necessary care and to prepare them for social integration. A network and a health care system are currently being put in place in each appeal court district.

A new law on internment was adopted on 5 May 2014, recognising, for the first time, the delivery of care as an objective of internment, as well as the protection of society.

Article 5§4

The action plan bases itself on a series of judicial decisions (2011-2014) to conclude that, in Belgium, there exist effective remedies which can be used by internees allowing, on the one hand, a change in their care and, on the other hand, compensation for having been detained in inadequate conditions.

Application

Case

Judgment of

Final on

22831/08

L.B.

02/10/2012

02/01/2013

43418/09

CLAES

10/01/2013

10/04/2013

43653/09

DUFOORT

10/01/2013

10/04/2013

53448/10

SWENNEN

10/01/2013

10/04/2013

43687/09

CARYN

09/01/2014

09/04/2014

43733/09

GELAUDE

09/01/2014

09/04/2014

22283/10

LANKESTER

09/01/2014

09/04/2014

43717/09

MOREELS

09/01/2014

09/04/2014

43663/09

OUKILI

09/01/2014

09/04/2014

28785/11

PLAISIER

09/01/2014

09/04/2014

50658/09

SAADOUNI

09/01/2014

09/04/2014

330/09

VAN MEROYE

09/01/2014

09/04/2014

49484/11+

SMITS AND OTHERS

03/02/2015

03/02/2015

49861/12+

VANDER VELDE AND SOUSSI[22]

03/02/2015

03/02/2015

Application: 27996/06

Judgment final on 22/12/2009

SEJDIĆ AND FINCI GROUP

Enhanced procedure: Complex problem

Reference texts:

Interim Resolutions CM/ResDH(2011)291, CM/ResDH(2012)233, CM/ResDH(2013)259

Communication from the authorities

(19/05/2015) DH-DD(2015)541

Decision adopted at the 1214th meeting (December 2014)

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

In the Zornić judgment (final as of 15 December 2014), the Court indicated, under Article 46 of the Convention, that “the finding of a violation in  the present case was the direct result of the failure of the authorities of the respondent State to introduce measures to ensure compliance with the judgment in Sejdić and Finci”. The Court furthermore indicated that “the failure of the respondent State to introduce constitutional and legislative proposals to put an end to the current incompatibility of the Constitution and the electoral law with [the Convention] is not only an aggravating factor as regards the State’s responsibility under the Convention for an existing or past state of affairs but also represented a threat to the future effectiveness of the Convention machinery” (§40 of the judgment).

Status of execution: Necessity to amend the Constitution and the electoral legislation: The Committee of Ministers has always considered that a number of amendments to the Constitution of Bosnia and Herzegovina and its electoral legislation should be adopted for the execution of the Sejdić and Finci judgment. However, in order for these amendments to be adopted, it was necessary for political leaders reach a consensus on their content.

The Committee of Ministers’ examination of this case: The Committee of Ministers has been examining the Sejdić and Finci case very closely since the judgment of the Court became final and has adopted three interim resolutions calling on authorities and political leaders to ensure that the constitutional and legislative framework be brought in line with the Convention requirements. The Committee has also stressed, both in these interim resolutions and its numerous decisions, that the execution of this judgment constitutes a legal obligation of Bosnia and Herzegovina.

In its latest decision adopted at the December 2014 meeting (DH), the Committee noted with profound concern and disappointment that the elections which took place in Bosnia and Herzegovina on 12 October 2014 were held under the same regulatory framework which the Court found to be discriminatory. The Committee encouraged therefore the authorities and political leaders of Bosnia and Herzegovina to give a fresh impetus to their endeavours and in particular to intensify their efforts to reach rapidly a consensus on the content of the constitutional and legislative amendments required to execute this judgment and to ensure that the necessary amendments are adopted as a matter of priority.

Information provided by the authorities of Bosnia and Herzegovina: In reply to the above-mentioned decision of the Committee, the authorities of Bosnia and Herzegovina reiterated in their submission of 19 May 2015 their strong commitment to abide fully by the Court’s judgments in these cases and provided the following information on the recent developments:

a) Written Commitment: In December 2014, the EU Foreign Affairs Council agreed on a renewed EU approach towards Bosnia and Herzegovina on its EU accession path pursuant to which all conditions, including the implementation of the Sejdić and Finci ruling, will have to be met.[24] The Council indicated in particular that it would decide on the entry into force of the Stabilisation and Association Agreement (SAA) once a written commitment to undertake reforms for EU accession has been agreed by the Presidency of Bosnia and Herzegovina, signed by its political leaders and endorsed by Parliament. In line with these conclusions, on 29 January 2015 the Presidency of Bosnia and Herzegovina adopted a written commitment. It was also signed by the leaders of the major political parties and on 23 February 2015 endorsed by Parliament. The written commitment spelled out that special attention would be given to the execution of the Sejdić and Finci judgment. On 16 March 2015, the EU Foreign Affairs Council welcomed this development.[25]

b) State-level Government: In March 2015, the Council of Ministers has been formed following the results of the elections held in October 2014. Given that the Council of Ministers has been formed recently, there was no adequate time to put in place the constitutional reform required to implement these judgments.

Application

Case

Judgment of

Final on

27996/06

SEJDIĆ AND FINCI

22/12/2009

Grand Chamber

3681/06

ZORNIĆ

15/07/2014

15/12/2014

Application: 30696/09

Judgment final on 21/01/2011

M.S.S. AND RAHIMI GROUPS

Enhanced procedure: structural and complex problem

Reference texts:

Information documents H/EXEC(2014)4rev, H/Exec(2015)6rev, CM/Inf/DH(2012)19

Communications from Greece

(17/03/2015) DH-DD(2015)323, (13/01/2015) DH-DD(2015)82, (10/10/2014); (08/01/2015) DH-DD(2015)33

 DH-DD(2014)1240 ; (22/09/2014) DH-DD(2014)1134, Action plan (07/03/2012) DH-DD(2012)333

Previous communications http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/GRC-MSS_fr.asp

Resolution 1810 (2011) of Parliamentary Assembly: Unaccompanied children in Europe: issues of arrival, stay and return

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection

Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection

Communications by the United Nations Special Rapporteur on the human rights of migrants rights on his visits to Italy and Greece (cases of Hirsi Jamaa v. Italy" and the group of cases of "M.S.S. v. Greece" (12/07/2013)

DH-DD(2013)1289

Communication from the UNHCR (30/01/2015) DH-DD(2015)147

Communication from the UNHCR (21/05/2014) DH-DD(2014)715

Communications from NGOs

From International Commission of Jurists (ICJ) and from the European Council on Refugees and Exiles (ECRE) (22/05/2014) DH-DD(2014)721

From Greek Council for Refugees (28/04/2014) DH-DD(2014)591

From Open Society Justice Initiative (31/03/2014) DH-DD(2014)488

From HLHR - Hellenic League for Human Rights (12/11/13) DH-DD(2013)1277

Decision adopted at the 1214th meeting (December 2014)

Decision adopted at the 1222nd meeting (March 2015)

Case description: These cases concern the degrading treatment of the applicants (asylum seekers or irregular migrants) on account of their conditions of detention (such as overcrowding, lack of bed/mattress, insufficient ventilation, lack of regular access to toilets or sanitary facilities, lack of outdoor exercise, unsuitable food or inadequate allowances for food etc.) in various detention facilities (such as police stations, premises of authorities in charge of immigration or foreign nationals, border posts or the special holding facility at the Athens International Airport) (violations of Article 3).

The M.S.S. case itself also concerns the applicant’s degrading treatment as an asylum seeker given his living conditions in Greece resulting from the authorities' inaction in respect of the situation in which he had found himself: living on the street, without recourse or access to sanitary facilities and without means of providing for his essential needs (violation of Article 3).

Lastly, some cases from the M.S.S. group concern violations of the applicants’ right to an effective remedy on two grounds (violations of Article 13 taken in conjunction with Article 3):

-       deficiencies in the examination of the applicant’s asylum application and the risk of his expulsion to the country of his origin without any serious examination of the merits of his asylum application and without any access to an effective remedy (M.S.S. case); or

-       lack of an effective remedy to complain about the conditions of detention (B.M. case).

Similar Article 3 issues arise in other cases but are dealt with in a separate group since those cases concern also Article 5 immigration issues. Details are footnoted below.^[26]

In particular, the Rahimi case concerns, inter alia, the degrading treatment of the applicant, a third country unaccompanied minor on account of his conditions of detention in the Pagani detention centre and his living conditions in Greece after his release resulting from the authorities’ failure to take care of him  (violation of Article 3). The case furthermore concerns the lack of an effective remedy to challenge the conditions of detention (violation of Article 13).

The European Court noted in this respect that as the applicant, a third country unaccompanied minor, belonged to the most vulnerable group of persons, the Greek authorities were required to take adequate measures to take care of him and protect him (§ 87 in Rahimi). Notably, the public prosecutor responsible for minors had an obligation to take steps to ensure that a guardian was appointed for the applicant; however, no guardian was appointed for him (§§ 88-89 in Rahimi).

The European Court furthermore noted that the Commissioner for Human Rights, UNHCR and Amnesty International, as well as the Greek Ombudsman, had already expressed deep concern at the fact that Greek prosecutors, although designated by law as the temporary guardians of minors seeking asylum, rarely intervened in matters relating to their living conditions and treatment (§§89, 91 in Rahimi).

Status of execution: Individual measures: From the information in the relevant Court judgments it appears that all the applicants are now adults.

General measures: In their action plan submitted on 7 March 2012, the Greek authorities provided a range of information on the measures envisaged to prevent similar violations in respect of unaccompanied minors. At its 1214th meeting (December 2014) (DH), the Committee, regretting that no information had been provided as to the appointment of guardians for unaccompanied minors, called upon the Greek authorities to put in place a mechanism securing the appointment of guardians for all unaccompanied minors and decided to resume consideration of this specific question at its meeting in June 2015 (DH). At its 1222nd meeting (March 2015) (DH), the Committee furthermore called upon the authorities to ensure, as a matter of priority, the full protection of the rights of unaccompanied minors on the basis of an effective guardianship system.

In their submission dated 17 March 2015,  the Greek authorities provided the following information:

Legislative measures: Pursuant to the Greek legislation, the prosecutor is the legal guardian of an unaccompanied minor until a permanent guardian is assigned by a court decision. In this capacity, prosecutors are entitled to initiate proceedings in order to appoint permanent guardians. Given the large number of unaccompanied minors and the lack of sufficient resources, in practice prosecutors appoint ad hoc persons responsible for taking specific actions in the interest of minors, such as enrolment in school. Considering the scope of the problem raised by the inefficient guardianship system in Greece, the authorities envisage taking legislative measures to prevent similar violations.

A special commission was set up within the Ministry of Justice, Transparency and Human Rights. The commission has reviewed the legislative framework governing the appointment of guardians for unaccompanied minors and made its proposals. The authorities are currently considering these proposals and, in particular the funds required to be secured for their implementation.

The Greek authorities furthermore indicated that the issue of unaccompanied third country minors is a fundamental challenge for the newly elected government. Following consultations with civil society, the Greek Government will pursue its efforts to establish a guardianship system within the framework of the transposition of EU Directives No. 2013/32 and No. 2013/33.

Statistical information: The authorities indicated that the number of arrested third country unaccompanied minors in 2012 amounted to 5,840; in 2013 to 3,122; and as of July 2014 to 970. In 2014, the prosecutors of Mytilini, Samos, Rhodes and Chios, which are the main points of entry of irregular migrants to Greece, appointed guardians for 424 unaccompanied minors.

In December 2014, the UNHCR indicated in its report that the protection of unaccompanied minors in Greece “remains inadequate” and that “the guardianship system remains highly insufficient”. The UNHCR noted in particular that in practice prosecutors handle hundreds of case-files at any given time without having specialised support units or staff. Consequently, real and effective contact with minors is rarely established. The UNHCR also observed that 956 cases of unaccompanied minors were received by prosecutors in 2012.

Lastly, in its report on its 2013 visit, published in 2014, the CPT indicated that in practice there is absolutely no contact between the prosecutor in his capacity of temporary guardian and unaccompanied minors, who are “merely left in limbo”. The CPT therefore recommended that all unaccompanied minors should be provided with a guardian who keeps them informed of their legal situation and effectively protects their interests[27].

Application

Case

Judgment of

Final on

M.S.S. GROUP

30696/09

M.S.S.[28]

21/01/2011

Grand Chamber

53709/11

A.F.

13/06/2013

07/10/2013

53608/11

B.M.

19/12/2013

19/03/2014

58164/10

BYGYLASHVILI

25/09/2012

25/12/2012

22910/10

CHKHARTISHVILI

02/05/2013

02/08/2013

2134/12+

DE LOS SANTOS AND DE LA CRUZ

26/06/2014

26/09/2014

78456/11

F.H.

31/07/2014

31/10/2014

70427/11

HORSHILL

01/08/2013

01/11/2013

32927/03

KAJA

27/07/2006

27/10/2006

26452/11

TATISHVILI

31/07/2014

31/10/2014

RAHIMI GROUP

8687/08

RAHIMI

05/04/2011

05/07/2011

36657/11

BARJAMAJ

02/05/2013

02/08/2013

71825/11

HOUSEIN

24/10/2013

24/01/2014

Application: 34704/08

Judgment final on: 20/06/2011

NISIOTIS GROUP

Enhanced procedure: Structural / complex problem

Reference texts:

H/Exec(2015)12 - Information provided by the Greek authorities and information from other sources in response to Nisiotis group of cases.

Communications from the authorities

(06/03/2015) DH-DD(2015)288, (08/01/2014) DH-DD(2015)230,
Updated action plan (04/04/2013) DH-DD(2013)407, Action plan (03/01/2012) DH-DD(2012)187

The Greek Ombudsman Annual Report 2009

CPT Report on the visit to Greece carried out from 4 to 16 April 2013 CPT/Inf (2014) 26) and Government’s response CPT/Inf (2014) 27

CPT public statement concerning Greece (15/03/2011) CPT/Inf(2011)10

CPT report on the visit to Greece carried out from 19 to 27 January 2011 CPT/Inf(2012)1 and Government’s response (CPT/Inf (2012)2)

Communications from the applicants' representative (28/01/2013 and 30/07/2012) DH-DD(2013)408

Decision adopted at the 1172nd meeting (June 2013)

Case description: These cases concern the applicants’ inhuman and/or degrading treatment on account of the poor conditions of their detention in overcrowded prisons in Greece (notably, in Ioannina, Korydallos, Larisa, Alikarnassos and Tripoli) between 2005 and 2013 (violations of Article 3).

The European Court indicated that the conditions of detention were “manifestly below the norms provided by international texts in this field and in particular the requirements of Article 3 of the Convention” (§ 28 of the Taggatidis judgment). Taking into consideration the CPT reports and the Council of Europe recommendations, as well as the Greek Ombudsman’s reports of 2009 and 2010, the Court furthermore noted that there was a problem of serious overcrowding in Greek prisons. 

Regarding the Ioannina prison, the Court held under Article 46 that a “drastic and rapid intervention by the authorities is required in order to take the appropriate measures that shall render the conditions of detention in this prison in conformity with the requirements of Article 3 of the Convention and that shall avoid future violations such as the one found in the present cases” (Tzamalis § 51; Samaras § 73).

Status of execution: Individual measures: In their letters of 16 November 2011, 21 May 2012 and 4 March 2013, the authorities indicated that all applicants have either been released, granted stays of execution of their prison terms or transferred to other prisons in order to ensure that they are no longer detained in poor conditions. Information is however still awaited on the current situation of the applicants in the Tsokas and Athanasiou cases.

The Court awarded just satisfaction in respect of non-pecuniary damage to all applicants. In several communications related to the Samaras and Taggatidis cases, the applicants’ representative raised certain issues in connection to the just satisfaction awarded. Those issues are currently being discussed with the authorities in the context of bilateral consultations.

General measures: On 3 January 2012, the Greek authorities provided their action plan setting out the measures aimed at preventing similar violations. This action plan was subsequently updated on 4 April 2013.

At its 1172nd meeting in June 2013 (DH), the Committee noted that prison overcrowding was a structural problem in Greece and invited the Greek authorities to provide precise information on the practical impact of the measures taken in respect of the number of detainees in the Ioannina prison as compared to its official capacity, the living space available per prisoner and the amount of time that detainees spend outside their cells. The Committee furthermore urged the authorities to continue their efforts to draw up a comprehensive strategy against overcrowding in all prisons and inform the Committee thereof.

In reply to the above-mentioned decision of the Committee of Ministers, on 8 January 2014 and on 6 March 2015 the Greek authorities provided detailed information on the measures aimed at decreasing overcrowding in the Ioannina prison, as well as in other prisons in Greece and improving the conditions of detention of prisoners (see document H/Exec(2015)12). The measures that the Greek authorities took or envisage taking are summarised below.

 I.   Measures aimed at decreasing overcrowding and improving conditions of detention in the Ioannina prison: The Greek authorities indicated that in the period from 2009 to 2014, the prison population in the Ioannina prison was decreased by 13.29%. Nevertheless, as of March 2015, 151 prisoners were detained in the Ioannina prison, while its official capacity was 80 persons. The prison underwent extensive refurbishment work and new areas were created for inmates.

II.   Measures aimed at decreasing overcrowding and improving conditions of detention in general: They include 1) measures aimed at decreasing and modulating the number of the prison population (e.g. early release schemes, conversion of certain prison terms to fines or community service, house arrest under electronic surveillance, transfer of detainees to less populated rural prisons etc.), 2) measures aimed at increasing the capacity of prisons and 3) measures aimed at improving conditions of detention (e.g. refurbishment of prisons).

III.   Impact of the measures taken: the Greek authorities indicated that about 4,200 detainees had been released before 5 November 2013 on the basis of conversion of prison terms to fines or community service. As of 12 August 2014, a further 800 detainees benefited from the early release scheme introduced in 2014. However, according to the information provided by the Minister of Justice to the Greek Parliament, as of 20 November 2014, there were 11,988 prisoners in Greece, while the overall capacity of all prisons stood at 9,886 places.

Application

Case

Judgment of

Final on

34704/08

NISIOTIS

10/02/2011

20/06/2011

40146/11

KANAKIS (No. 2)

12/12/2013

12/03/2014

11677/11

NIECIECKI

04/12/2012

04/03/2013

11463/09

SAMARAS AND OTHERS

28/02/2012

28/05/2012

2889/09

TAGGATIDIS AND OTHERS

11/10/2011

08/03/2012

41513/12

TSOKAS AND OTHERS

28/05/2014

28/08/2014

15894/09

TZAMALIS AND OTHERS

04/12/2012

04/03/2013

740/13

LOGOTHETIS AND OTHERS

25/09/2014

25/12/2014

36546/10

NIKOLAOS ATHANASIOU AND OTHERS

23/10/2014

23/01/2015

50765/11

PAPAKONSTANTINOU

13/11/2014

13/02/2015

Application: 2916/02

Judgment final on 15/09/2004

LUNTRE AND OTHERS GROUP

Enhanced procedure: Structural problem

Reference texts:

Action plan (06/01/2015) DH-DD(2015)48

Decision adopted at the 1059th meeting (June 2009) (p. 122)

Case description: This group includes 55 cases in which the final judgments of the European Court date from between December 2004 and 2011. They concern failure or substantial delay in the enforcement of final domestic judicial decisions, most of which were delivered against the State or State companies and the lack of any effective remedy in this respect. These cases also concern violations of the right to peaceful enjoyment of the applicants’ possessions on account of the failure to enforce decisions (violations of Article 6 § 1, Article 13 and Article 1 of Protocol No. 1). The violations in these cases occurred as a result of the ineffectiveness of the bailiff system at the relevant time (in particular in decisions delivered against private debtors) and/or the unavailability of budgetary funds for the enforcement of judgment debts against the State.

Lastly, the Court found violations of Article 6 § 1 on account of the excessive length of proceedings (Mazepa case) and on account of the breach of the principle of legal certainty (Tudor-Auto S.R.L. and Triplu-Tudor S.R.L. case).

Status of execution: The information provided by the Moldovan authorities in the Action Plan of 14 January 2015 can be summarised as follows:

Individual measures: The domestic court decisions in 45 cases in this group were enforced and in two cases the European Court has reserved the issue of just satisfaction but has not yet delivered just satisfaction judgment. In eight cases the domestic court decisions have not been enforced (in four of these eight cases enforcement proceedings are pending; in one case the applicant reapplied to the European Court and subsequently the Government made an offer for the settlement of the case, –no decision has been taken in this respect so far; in two cases the decisions were not enforced because it was impossible to find the whereabouts of private debtors and one case the local authorities had no available means to enforce the decision). 

General measures:

1) Violations of Article 6 § 1 and of Article 1 of Protocol No. 1

Ø  Reform and modernisation of the national enforcement system

In 2010, the enforcement system was reformed following the coming into force of the Law on Bailiffs and the amendments introduced to the Code of Execution. These laws liberalised the bailiffs’ profession and created self-administration bodies. They gave bailiffs certain procedural powers, including the right to apply injunctive and preventive measures for securing enforcement (e.g. a bailiff has the authority to block all money transfers from a debtor’s bank account in case the debtor fails to honour his debt). All measures enforced by bailiffs are subject to either judicial control or a judge’s approval (it is noted in this respect that, in order to harmonise judicial practice, the Supreme Court of Justice in its explanatory decision of 16 December 2013 provided clarifications on how the above-mentioned legislation should be implemented in line with Convention standards).

Ø  Budgetary issues

Issues related generally to the enforcement of decisions delivered against the State

Law No. 847 on the budgetary system and budgetary process, adopted on 25 March 2005 and amended in 2011, provides that execution writs against the State should be enforced within six months whether or not specific budgetary allocations for the execution of court decisions have been made in the State budget (however, the total amount of payments for enforcement of decisions cannot exceed 20% of the State budget in a given year). Where an execution writ is not enforced within six months, a creditor can request the bailiff to start the procedure of forced enforcement as provided for by the Code of Execution. Under this procedure the bailiff has the power to seize State property or take other measures to ensure that a domestic court decision is enforced.

Issues related to compensation for depreciated savings in the Saving Bank

According to Law No. 1530 of 2002, domestic court decisions awarding compensation for depreciated savings (i.e. savings deposited in the State-owned Saving Bank which lost their value in 1990s as a result of devaluation) were supposed to be enforced on the basis of a mechanism set up for this purpose. However, this mechanism did not function because of a lack of funds. The authorities have therefore adopted measures to determine the number of beneficiaries who will receive compensation in a given year so that the appropriate budget can be allocated (50 million Moldovan leis (MDL) (approximately 2,67 million Euros) was allocated for this purpose in 2014).

Issues related to restitution or compensation for properties nationalised on account of political repression

Several measures were taken to ensure the execution of domestic court decisions which ordered the restitution of or the payment of compensation for properties nationalised on account of political repression. Law No. 1225 of 08/12/1992 was amended in 2011 and in 2012 to clarify the mechanism for awarding compensation or the restitution of nationalised properties and established an obligation on the Government to allocate funds to local authorities in this regard. Currently, at the request of local authorities, the Government is allocating funds with a view to paying monetary compensation to victims of political repression in lieu of the transfer of real property. In 2013, 24,987,328 MDL (approximately 1,53 million Euros) and in 2014, 19,054,497 MDL (approximately 1.01 million Euros) were allocated in this respect. According to the audit report of the Court of Accounts from May 2014, the overall compensation paid between 2008 and 2013 was 117.1 million MDL (approximately 7.33 million Euros).

Issues related to the allocation of social housing privileges or the payment of compensation in lieu of accommodation 

Certain reforms were made to the social housing scheme in December 2009 (see §§ 31 and 57 of the Olaru and others judgment on the merits).

Ø  Reform of the Justice Sector

The problem of non-enforcement of judicial decisions is dealt with within the framework of the ongoing overall reform of the justice sector. The Strategy for Justice Reform for 2011-2016 addresses the issue of non-enforcement of judicial decisions and proposes a range of reforms aimed at strengthening the institutional capacity of private bailiffs and at ensuring that judicial decisions are enforced within reasonable time limits. Specifically, it includes procedures for monitoring the impact of legislation in the area of enforcement of judgments and the introduction of necessary amendments; preventing deficiencies in the management of information systems and databases pertinent to the enforcement of court judgments, and organising training for judges and bailiffs on the practical implementation of the compensatory remedy in accordance with Law No. 87 (i.e. the remedy law adopted in response to the Olaru and others judgment, see below).

In the framework of the implementation of the reform of the justice sector, a working group composed of bailiffs, judges, lawyers, law professors and representatives of the Ministry of Justice was established. The working group carried out a review of the legislation, identified the shortcomings and proposed amendments to improve it (draft amendments were proposed to the Code of Execution, to the Code for Civil Procedure and to the Law No. 87 and were submitted to the Government for examination on 10 July 2014). These amendments are aimed at redressing legislative deficiencies and inadequacies which hinder efficient execution; they include: the introduction of the possibility for a creditor to change bailiff when he/she fails to carry out his/her duties; offering bailiffs wider competences as regards access to a debtor’s bank account; the introduction of the possibility for a creditor to lodge objections before a court against a decision of a bailiff.

2) Violations of Article 13 in conjunction with Article 6

Ø  Compensatory remedy for failure to enforce a decision within a reasonable time

Article 1 of Law No. 87 provides that its provisions should be interpreted and applied in accordance with national legislation, the Convention and the European Court’s case-law. The Law also provides that a claim for compensation in a non-enforcement case may be submitted while enforcement proceedings are pending or at the latest six months after their termination. If domestic courts find a breach, compensation can be obtained for pecuniary and non-pecuniary damages, as well as for costs and expenses.

In its decision of 24 January 2012 in the case of Balan, the European Court found that “Law No. 87 was designed, in principle, to address the issue of delayed enforcement of judgments in an effective and meaningful manner, taking account of the Convention requirements”. The Court therefore declared the case inadmissible because the applicant had not availed himself of this new remedy.

3) Training and awareness raising

The National Institute of Justice is organising continuous training activities for judges, including on the standards pertinent to Article 6 and Article 1 of the Protocol No.1. Bailiffs also benefit from periodic training activities organised under the auspices of the National Union of Bailiffs in cooperation with international partners and non-governmental organisations.

4) Other violations

General measures in response to the issue of excessive length of judicial proceedings are being examined in the context of the Cravcenco group and those in response to the issue of the infringement of the principle of legal certainty under the Popov (No. 2) group.

Application

Case

Judgment of

Final on

2916/02

LUNTRE AND OTHERS GROUP

(list of cases)

15/06/2004

15/09/2004

Application: 28761/11

Judgment final on 16/02/2015

AL NASHIRI GROUP

Enhanced procedure: Urgent individual measures and complex problem

Reference texts:

Communication from the authorities

(15/05/2015) DH-DD(2015)515

Relevant documents from the Council of Europe

Reply adopted by the Committee of Ministers to the 2007 PACE report on “secret detentions and illegal transfer of detainees involving Council of Europe member States”  (January 2008) CM/AS(2008)Rec1801

Recommendation of the Committee of Ministers to member States on “special investigation techniques” in relation to serious crimes including acts of terrorism Rec(2005)10

Secret detentions and illegal transfers of detainees involving Council of Europe member States: second report

Resolution 1562(2007) of Parliamentary Assembly

Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member States Resolution 1507(2006) of Parliamentary Assembly

Opinion of the Venice Commission on PACE Recommendation 1801(2007) on “secret detentions and illegal transfers of detainees involving Council of Europe member States CDL(2007)082 updated in 2015 (CDL‑AD(2015)006)

Opinion of the Venice Commission on the International legal obligations of Council of Europe member States in respect of secret detention facilities and inter-state transport of prisoners CDL-AD(2006)009

Communications froms NGOs

From Open Society Justice (26/05/2015) (Al-Nashiri) and reply from the authorities (03/06/2015)

DH-DD(2015)585

From Human Rights in Practice (26/05/2015) (Husayn (Abu Zubaydah)) and reply from the authorities (03/06/2015) DH-DD(2015)586

Relevant documents from other sources

See also relevant documents from the European Parliament; ^[30] relevant documents from the United Nations ^[31]

United States Senate, Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (declassification revisions December 2014)

Decision adopted at the 1222nd meeting (March 2015)

Case description: The cases concern the violation of a number of Convention rights arising from the fact that the applicants were victims of a secret “rendition” operation. The European Court found it established beyond reasonable doubt that the applicants arrived in Poland on board CIA rendition aircraft on 5 December 2002; were detained in a CIA detention facility in Stare Kiejkuty where they were subjected to ill-treatment and torture; and were subsequently transferred from Poland in June and September 2003, respectively.

The Court found that their transfer from Poland exposed them to a real risk of a flagrant denial of justice due to the possibility they would face trials before United States’ military commissions using evidence obtained under torture. In this context, the Court also notes that Mr Husayn has not been listed for trial and his indefinite detention without charge in itself amounts to a flagrant denial of justice. Mr Al Nashiri has been charged with capital offences before the military commissions and the Court found that he faced a real risk of being subjected to the death penalty.

Detailed summary of the violations found by the European Court:

• Failure to comply with Article 38 because the authorities refused to furnish all the necessary facilities in the proceedings before the European Court;
• Violation of Article 3 (procedural) on account of the authorities’ failure to carry out an effective investigation into the applicants’ allegations of serious violations of the Convention, including torture, ill‑treatment and undisclosed detention;
• Violation of Article 3 (substantive) on account of the authorities’ complicity in the CIA High-Value Detainees Programme, which enabled the US authorities to subject the applicants to torture and ill‑treatment on the respondent State’s territory and to transfer the applicant from its territory despite the existence of a real risk that they would be subjected to treatment contrary to Article 3;
• Violation of Article 5 on account of the applicants’ undisclosed detention on the respondent State’s territory and the fact that the Polish authorities enabled the United States authorities to transfer the applicants from its territory, despite the existence of a real risk that they would be subjected to further undisclosed detention;
• Violation of Article 8 because the interference with the applicants’ private and family life was not in accordance with the law;
• Violation of Article 13 taken in conjunction with Article 3, and in Husayn also in conjunction with Articles 5 and 8, on account of the lack of effective remedies in respect of the applicants’ grievances;
• Violation of Article 6 § 1 on account of the transfer of the applicants from the respondent State’s territory despite the existence of a real risk they could face a flagrant denial of justice;
• In Al Nashiri violation of Articles 2, 3 and Article 1 of Protocol No. 6 on account of the transfer of the applicant from the respondent State’s territory despite the existence of a real risk that he could be subjected to the death penalty.

Status of execution: The Polish authorities submitted information on 15 May 2015.

Urgent Individual measures: The applicants are currently detained in the Internment Facility at the United States Guantánamo Bay Naval Base in Cuba.

Proceedings against Mr Al Nashiri before a military commission, and in which he faces the death penalty, were initiated in 2008 and are pending. According to the judgment, the trial was set to begin on 2 September 2014.^[32] In response to the applicant’s request, the European Court indicated under Article 46 that the actions and inactions of the Polish authorities had exposed him to the death penalty. The proceedings against him before the military commission were pending and that risk continued. Accordingly, the Convention required the authorities to seek to remove that risk as soon as possible by seeking assurances from the United States authorities that the applicant would not be subjected to the death penalty. As also indicated by the European Court, there was a real risk that proceedings before Military Commissions would use evidence obtained under torture, exposing the applicant to a flagrant denial of justice.^[33]

According to the judgment and the information submitted, Mr Husayn had not been listed for trial before a Military Commission; he has been detained without charge since 2002 and was transferred to Guantánamo in 2006. The last review of the legality of his detention took place on 27 March 2007.^[34]

According to the information submitted, on 9 October 2014, before the judgments became final, the Polish authorities raised the issue of providing assurances that Mr Al Nashiri would not be subjected to the death penalty, in a meeting between the Under-Secretary of State at the Ministry of Foreign Affairs of the Republic of Poland and the Principal Deputy Legal Adviser of the Office of the Legal Adviser of the United States Department of State.

After the judgments became final, the Polish authorities sent two diplomatic notes to the Embassy of the United States in Warsaw. The first was dated 6 March 2015 and requested assurances that Mr Al Nashiri would not be subjected to the death penalty. The United States Embassy in Warsaw confirmed that this note was transmitted to the relevant United States authorities. The second was dated 13 May 2015, and again requested assurances that Mr Al-Nahsiri would not be subjected to the death penalty. It also requested assurances that the applicants would not be deprived of the right to a fair trial and exposed to a flagrant denial of justice.

Individual measures: A criminal investigation into allegations concerning the existence of a CIA secret detention facility in Poland was opened on 11 March 2008. The investigation is seemingly against persons unknown. It has been extended a number of times and remains pending.^[35] According to the information submitted, Polish prosecutors have submitted six requests for legal assistance to the United States Justice Department. One request was refused; no response was given to the other five. The Polish authorities are following up these requests in bilateral contacts with the United States authorities.

Application

Case

Judgment of

Final on

28761/11

AL NASHIRI

24/07/2014

16/02/2015

7511/13

HUSAYN (ABU ZUBAYDAH)

24/07/2014

16/02/2015

Application: 13621/08

Judgment final on 17/07/2012

HORYCH GROUP

Enhanced procedure: Complex problem

Reference texts:

Updated action plan (19/12/2014) DH-DD(2015)58

Action plan (20/06/2014) DH-DD(2014)855

Decision adopted at the 1208th meeting (September 2014)

Case description: Whilst in prison, between 2001 and 2012, the applicants were classified as dangerous detainees and subjected to the “dangerous detainee” regime, pursuant to Article 212a of the Code of Execution of Criminal Sentences. In accordance with this regime the applicants were placed in solitary cells on a high-security ward and were permitted only a single hour-long solitary walk per day in a segregated area. They were also subject to a “personal check”, including strip searches, on leaving and entering the cell; handcuffing when outside the cell and on the high-security ward; and supervision by two prison guards when outside the cell and the special ward.

The European Court concluded that the strict, rigid rules for the imposition of the special regime, the lack of a meaningful review, and the duration and severity of the measures taken exceeded the legitimate requirements of security in prison (violations of Article 3). It also found in the Horych case that the restrictions imposed on the applicant’s visiting rights due to his classification as a “dangerous detainee” and the failure to ensure proper conditions for those visits, did not respect the right to family life. In the Piechowicz case the Court found that the applicant was refused a number of visits and his correspondence was censored (violations of Article 8).

In addition, in the Piechowicz case the European Court found violations due to the excessive length of the applicant`s pre-trial detention and to restrictions on his access to case-files in proceedings to challenge the lawfulness of that detention (Articles 5 § 3 and 5 § 4 respectively). In Glowacki, the Court considered excessive the length of criminal proceedings (Article 6 § 1).

Status of execution: Preliminary information was received in July 2013 and discussed in bilateral contacts. An action plan in this group of cases was submitted on 20 June 2014 (see DH-DD(2014)855).

At its last examination of the cases in September 2014, the Committee assessed the action plan and asked the authorities to provide updated information in particular concerning:

-       the current practice related to solitary confinement, regular handcuffing and strip searches;

-       the remedies available to detainees to challenge their classification under the regime;

-       the scope and timetable of the legislative amendments under consideration;

-       Information about visiting conditions for “dangerous detainees” outside of Gdansk and Krakow Detention Centres.

In response, an updated action plan was submitted on 19 December 2014 (see DH-DD(2015)58).

Individual measures: The applicants have either been released or are serving their sentences but are no longer subject to the “dangerous detainee” regime. No further individual measures appear necessary.

General measures:

Treatment of detainees under the regime

Measures were taken to improve the treatment of detainees subject to the regime. Directors of Regional Prison Services were obliged to increase their supervision of cases of detainees subject to the regime for more than a year and reminded that “dangerous detainees” should have access to cultural, educational and sport activities. The Director General of Prison Services also issued Instruction No. 16, in force from 13 August 2010, aimed at intensifying and harmonising activities targeting dangerous detainees in order to counterbalance the negative consequences of their limited social interaction. The issues concerning “dangerous detainee” status were included in the trainings curricula of prison staff.

Since the facts in these cases, the Act on measures of direct coercion and firearms entered into force (on 5 June 2013). This Act guarantees that the application of measures of direct coercion, including joint-shackles, will be limited to “particularly justified cases”. Under the Act, decisions on the use of shackles are taken on the basis of the circumstances of each particular case, taking into account the existing level of threat to the safety of the facility, society or detainees. The use of strip searches remains regulated by the regime in place at the time of the judgments.

Classification under the regime, and the possibility to challenge that classification

Several measures were implemented by the authorities to guarantee a more meaningful application and review of the regime at issue by Penitentiary Commissions (these Commissions are responsible for applying the regime and reviewing the necessity of its continued application). A letter to Regional Directors of Penitentiary Services from the Director General of Prison Services obliged Penitentiary Commissions to change their practice and to apply “dangerous detainee” status only on an exceptional basis; to maintain it in a restrictive manner; and carefully to consider all circumstances against further application of the regime. The judgments in the cases of Horych and Piechowicz were also disseminated to penitentiary judges.

Replying to the last decision of the Committee, the authorities confirmed that detainees could challenge their classification under the regime before the domestic courts, on the basis that the classification did not comply with the law. The domestic courts can uphold, revoke or change a decision on classification. According to the authorities, given the awareness-raising measures already implemented, domestic courts should interpret “non-compliance with the law” widely, taking into account also international legal norms and the Constitution.

Legislative amendments before Parliament

Legislative amendments to the Code of Execution of Criminal Sentences were introduced to Parliament in November 2014 and are currently being discussed. According to the action plan, these amendments envisage removing the strict and rigid imposition of the regime by eliminating its automatic application to certain categories of detainees. Moreover, the amendments aim at creating a possibility for the gradual easing of the restrictions under the regime through the assessment of the need for their application, in particular strip-searches. However, no detailed information is provided on how the amendments will apply in practice, or on the time-table for the legislative process.

Impact of measures already taken

The statistical data indicates a reduction in the number of “dangerous detainees” (from 260 on 30 June 2012, to 169 on 12 September 2014). In addition, the authorities also report that the number of decisions by penitentiary commissions to revoke dangerous detainee status has increased in recent years. In its latest report the CPT notes that “there has been a continued reduction in the number of such prisoners throughout the country in recent years”.

Violation of Article 8:

The authorities provided detailed information on the improvements made to visiting centres in two locations (Gdansk and Crakow). They also underlined that a number of measures had been taken to eliminate the stress caused to minors when visiting t those facilities, in particular by locating visiting rooms outside passageways and close to the entrance and providing for specially equipped children`s areas. No information is provided in relation to visiting conditions in other locations, despite a request for such information in the last decision of the Committee.

Measures implemented by the Polish authorities to address other violations found by the European Court in these judgments are currently examined by the Committee: violation of Article 5 § 3 in the Trzaska group and violation of Article 6 § 1 in the Kudła group. Violations of Article 8 in the Piechowicz case present similarities to those found in the Klamecki No. 2 group, (closed by Final Resolution CM/ResDH(2013)228 and that of Article 5 § 4 similar to that found in the Chruścińskicase, closed by Final Resolution CM/ResDH(2011)142).

Application

Case

Judgment of

Final on

13621/08

HORYCH

17/04/2012

17/07/2012

1608/08

GŁOWACKI

30/10/2012

30/01/2013

13421/03

PAWEŁ PAWLAK

30/10/2012

30/01/2013

20071/07

PIECHOWICZ

17/04/2012

17/07/2012

Applications: 24575/10, 19696/10

Judgments final on 01/01/2014, 25/05/2014

ŢICU + GHEORGHE PREDESCU

Enhanced procedure: complex problem + urgent individual measures

Reference texts:

Communication from the authorities on the individual and general measures (27/03/2015) DH-DD(2015)418

Communication from the authorities on the individual measures (02/09/2014) DH-DD(2014)1053

Action plan (02/07/2014) DH-DD(2014)856-rev

Decision adopted at the 1208th meeting (September 2014)

Case description: These cases concern the ill-treatment suffered by the applicants in prison due to the inadequate management of their psychiatric conditions (violations of Article 3). They highlight several deficiencies: the placement of the applicants in ordinary detention facilities, severely overcrowded; the lack of adequate medical care in a prison environment and in penitentiary hospitals, including the failure to ensure to the first applicant constant psychiatric supervision and to the second applicant assistance and counselling to help him accept and deal with his illness; the failure to submit the second applicant to a forensic psychiatric examination, despite his repeated requests (violations of Article 3).

The case of Ţicu also concerns the lack of an investigation into the repeated acts of violence the applicant claimed to have suffered from other prisoners during his detention at the Iaşi prison (2009 - 2010). Despite medical findings attesting to abuse, the prosecutor’s office, took no action on the complaints of the applicant and the information provided by the prison director, completely ignoring the vulnerability of the applicant (procedural violation of Article 3).

Status of execution: On 2 July 2014, the authorities provided an action plan in these cases, followed by clarifications on the individual measures on 2 September 2014. This information was assessed by the Committee of Ministers at its 1208th meeting (DH) (September 2014). In response to the Committee’s decision, the authorities provided on 27 March 2015 updated information on the detention conditions and the medical care made available to the applicants. They further indicated that they would submit updated information on the other individual measures required in the case of Ţicu and on the general measures required in both cases by the end of June 2015 at the latest.

1. Individual measures:

a) Violations of Article 3: The applicants’ current situation can be summarised as follows:

Case of Ţicu: the applicant was first detained at the Iaşi prison where he had an individual living space of approximately 1.65 m². On 20 January 2015, he benefited from a change in the prison regime, as he was reclassified from the closed regime to the semi-open regime. As a consequence of this change, the applicant was transferred to the Vaslui prison, where he occupies a cell of 32 m², which has 10 beds. The authorities assure that the number of prisoners in this cell never exceeds the number of available beds. Since he is classified in the semi-open regime, the applicant benefits daily from 6 hours of outdoor activities during winter and 8 hours during summer.

The applicant’s mental health condition is periodically assessed by specialists. He underwent a psychiatric assessment on 12 January 2015, which concluded that, at that time, he did not require treatment for mental illness. According to the authorities, arrangements are now in place to ensure that the care provided to the applicant is compatible with the requirements of Article 3. He is in contact with the prison nurses, who are under an obligation to alert the prison physician if they note that the applicant’s health has deteriorated. The physician will determine if it is necessary to transfer the applicant to a prison or public hospital for reassessment of his health and of the treatment provided to him. If the applicant requires immediate psychiatric care, the general physician can refer the applicant to an external psychiatrist (the Valsui prison does not have a psychiatrist).

Case of Gheorghe Predescu: according to the information provided by the authorities, the applicant was transferred from the Craiova prison (where he shared a cell with approximately 38 other inmates) to the prison of Giurgiu, where he shares a cell with 5 other prisoners. According to the authorities, as no conflict between the applicant and the other inmates has been reported, it is preferable to keep the applicant in a collective cell, to avoid his isolation.

In April 2014, the applicant was submitted to a forensic psychiatric examination by the National Institute for Forensic Medicine “Mina Minovici”, which concluded that his mental health condition was compatible with detention. The applicant’s psychological condition is periodically assessed by specialists. He was thus admitted to the psychiatric ward of the Jilava prison hospital in March 2014 and in June/July 2014 and treatment including psychotropic drugs was prescribed and provided.

The applicant withheld consent to a new hospitalisation scheduled for January 2015. The Giurgiu prison does not have a psychiatrist, but if the applicant requires immediate psychiatric care, the prison general practitioner can refer him to an external psychiatrist.

Conclusions: The Romanian authorities consider that the applicants’ medical care and current detention conditions are appropriate to their health condition. They undertake to follow the applicants’ situation in order to adopt any other measure required to ensure that the treatments provided to them remains compatible with their health condition and the requirements of Article 3.

b) Procedural violation of Article 3 (case of Ţicu): in the action plan of 2 July 2014, the Romanian authorities indicated that the finding of the European Court would be notified to the competent authorities, which would assess the possibility of opening an investigation into the applicant’s allegations concerning the acts of violence he suffered at the Iaşi prison.

2. General measures: The information provided in the action plan of 2 July 2014 can be summarised as follows:

a) Violations of Article 3: in accordance with Law No. 254/2013 on the execution of custodial sentences and measures, which entered into force on 1 February 2014, special psychiatric sections will be organised in the detention facilities and the penitentiary hospitals designated by the National Prison Administration to accommodate prisoners suffering from severe mental health problems. These sections will have specialised staff capable of providing the required treatment to prisoners and of ensuring the running of specific intervention programs (see Article 73 §§ 6 and 7 of Law No. 254/2013). They will be established once the Government has adopted the rules for the implementation of Law No. 254/2013, the text of which is currently subject to public debate.

At present, prisoners suffering from mental health problems receive medical care and pharmaceutical treatment according to an individual treatment protocol established under the recommendations of a specialised medical doctor. They are monitored on a daily basis by the medical staff of the detention facility and they are included in a programme for prisoners with mental disabilities. They are periodically transferred to the psychiatric sections in penitentiary hospitals to reassess their health condition.

b) Procedural violation of Article 3 (case of Ţicu): The general measures required to remedy this violation are examined in the group of cases Pantea v. Romania.

Application

Case

Judgment of

Final on

24575/10

ŢICU

01/10/2013

01/01/2014

19696/10

GHEORGHE PREDESCU

25/02/2014

25/05/2014

Application: 41138/98

Judgment final on 05/07/2005

MOLDOVAN AND OTHERS GROUP

Enhanced procedure: complex problem

Reference texts:

Information document CM/Inf/DH(2011)37

Communications from Romania

Revised action plan (24/04/2015) DH-DD(2015)444-rev; (04/02/2015) (Emergency Regulation No. 93/2014)
DH-DD(2015)190 ; (22/10/2014) DH-DD(2014)1286; (09/09/2014) DH-DD(2014)1158;
(16/062014) DH-DD(2014)823; (10/01/2014) (DH-DD(2014)126; Additional information on general measures (16/02/2012) DH-DD(2012)202; Revised action plan/report (12/09/2011) DH-DD(2011)708

Communications from NGO

From the European Roma Rights Centre 2 et Romani CRISS) (24/02/2014) DH-DD(2014)286

From ERRC and reply from the government (19/07/2011) DH-DD(2011)581;

Communication from an NGO and reply of the Government (14/08/2009) DD(2009)415,

From ERRC and reply from the government (29/04/2009) DD(2009)238

From European Roma Rights Center and Romani Criss) (01/06/2015) and reply from the authorities (08/06/2015) DH-DD(2015)600E

Decision adopted at the 1214th meeting (December 2014)

Case description: These cases concern the consequences of racially-motivated violence in 1993 against villagers of Roma origin, in particular improper living conditions following the destruction of their homes. They also concern the general discriminatory attitude of the authorities, including their prolonged failure to put an end to the breaches of the applicants' rights (Articles 3, 6, 8, 13, and 14 in conjunction with Articles 6 and 8). The violent incidents at the origin of these cases occurred in the locality of Hădăreni (Mureş County).

The case of Moldovan and others involved 25 applicants, 18 of whom agreed to a friendly settlement of their case (see Moldovan and Others (No. 1)). As regards the remainder of the applicants, the European Court found violations of the provisions mentioned in the preceding paragraph (see Moldovan and Others (No. 2)). The case of Lăcătuş and Others concerns three other applicants from the same community.

Status of execution: Individual measures: Some applicants have left Hădăreni since the time of the incidents at issue and the Romanian authorities consider that no individual measure is necessary in their respect (this concerns in particular the applicants in the case of Lăcătuş and others and some of the applicants in the cases of Moldovan and Others (Nos. 1 and 2)). Other applicants continue to reside in Hădăreni and the authorities consider that the individual measures concerning them are linked to the general measures adopted at the level of this locality.

Payment of the just satisfaction/amounts otherwise due: The Romanian authorities paid to the applicants the amounts awarded as just satisfaction by the European Court and those that they had undertaken to pay in the framework of the friendly settlement. These amounts covered the pecuniary and non-pecuniary damage and, for some applicants, the costs and expenses.

General measures: In the context of the friendly settlement, the Romanian authorities undertook to adopt a certain number of general measures aimed in particular at fighting discrimination, preventing intercommunity conflicts and improving the economic, social, educational and housing situation of the Roma community in Hădăreni. These measures are also relevant for the implementation of the judgment on the merits Moldovan and Others (No. 2) and of the judgment Lăcătuş and Others.

The general measures taken as of June 2011 and the issues outstanding at that time are presented in Information document CM/Inf/DH(2011)37. Since May 2011, a working group now placed under the coordination of the Ministry of Foreign Affairs has been responsible for the monitoring of the implementation of the judgments Moldovan and Others (Nos. 1 and 2). Initially, this group had identified a series of measures which remained to be taken and had set itself the objective of preparing a new organisational and budgetary framework for adoption. Due to persistent obstacles encountered on the ground (for more details, see DH-DD(2012)202), the working group was compelled to revise its initial strategy, by adapting the list of envisaged measures to the current needs of the community and to the economic situation in the region.

On 28 April 2014, the Prime Minister approved the new strategy for the execution of these judgments, which foresaw:

-          adopting a legislative act which sets out the framework for the construction of a medical centre and of an industrial site in Hădăreni (following a feasibility study ordered by the local authorities in May 2014, it was determined that the latter would serve for manufacturing concrete products);

-     carrying out an assessment of the measures already adopted, to determine their impact and to identify the additional measures that might be necessary for the full implementation of these judgments, including as regards housing.

On 1 April 2015, the Romanian authorities presented the progress achieved in implementing this strategy, through an updated action plan, supplemented on 24 April 2015 following bilateral discussions with the Secretariat. Its salient points can be summarised as follows:

On 29 December 2014, the Government adopted Emergency Regulation No. 93/2014, which sets out the framework for the construction of the medical centre and the industrial site. This Regulation came into force the day following its adoption and is currently awaiting approval by the Parliament. It foresees that the construction works will be carried out under the supervision of the National Company for Investment, a structure attached to the Ministry of Regional Development and Public Administration, on land made available by the local authorities. Financing shall be earmarked from the investment budget at the disposal of this Ministry. The main stages of these works are already planned (see the action plan).

Furthermore, the Romanian authorities have thoroughly assessed the impact of the measures taken between 2005 and 2014 for the implementation of these judgments and, on the basis of the conclusions of this assessment, defined three areas for additional action:

-       strengthening the cohesion between the three ethnic communities in Hădăreni (Romanian, Hungarian and Roma) and the communication between them and the local authorities, through community development programmes which contribute to improving the mutual knowledge of the values, culture and traditions of each of these communities;

-       through the school mediator employed in Hădăreni in September 2014, raising awareness of the adult population in this locality of the possibility of completing their primary and/or secondary education by participating in the governmental programme “the second chance” (which allows, in particular, access to the job qualification trainings organised in Mureş county);

-       carrying out an assessment of the current housing conditions and needs of the community of Hădăreni by September 2015 at the latest, so that the working group is able to define, if necessary, additional measures in this area.

According to the authorities, the measures defined in the first two areas should continue as long as the situation in Hădăreni so requires. Having regard to the time-frame envisaged for the third area, the authorities will present updated information on the implementation of all the measures announced in the action plan by November 2015 at the latest.

On 25 July 2014, in proceedings brought by the applicants against the Romanian Government, the Cluj Court of Appeal found that the European Court’s judgments had not been fully implemented and ordered the Government to ensure: (i) the reconstruction of three houses; (ii) the construction of the industrial site and of the medical centre; and (iii) the hiring of a counsellor for Roma and of a school mediator in Hădăreni. The Court of Appeal further awarded the applicants damages in respect of the non-pecuniary damage suffered on account of this partial non-implementation. This decision is not yet final: the Government lodged an appeal in cassation against it.

Other developments: On 24 February 2014 two non-governmental organisations submitted a communication under Rule 9§2 to the Committee of Ministers. Relying on two studies carried out at national level, they outlined a number of shortcomings in the conception and the implementation of the measures adopted up to that date in Hădăreni. In this connection, the authorities envisage organising consultations with non-governmental organisation by September 2015 at the latest. The aim of these consultations is to explore the manner in which the NGOs could support the execution of these judgments, in particular as regards the conception and implementation of community development programs in Hădăreni.

Application

Case

Judgment of

Final on

41138/98+

MOLDOVAN AND OTHERS, JUDGMENT No.1

05/07/2005

Friendly settlement

41138/98+

MOLDOVAN AND OTHERS, JUDGMENT No. 2

12/07/2005

30/11/2005

12694/04

LĂCĂTUŞ AND OTHERS

13/11/2012

13/02/2013

Application: 4916/07

Judgment final on 11/04/2011

ALEKSEYEV

Enhanced procedure: complex problem

Reference texts:

H/Exec(2015)13 - Statistical information on the organisation of public events similar to those at issue in Moscow, St Petersburg, Kostroma, Murmansk, Tumen and Arkhangelsk between 1 May 2014 and 1 February 2015.

H/Exec(2014)5 Statistical information on the organisation of public events similar to those at issue in Moscow, St Petersburg, Kostroma and Arkhangelsk between 1 July 2013 and 1 May 2014

Communications from the Russian Federation

Action plan (08/04/2015) DH-DD(2015)405, (15/07/2014) DH-DD(2014)914;

Action plan (10/01/2014) DH-DD(2014)57; (25/01/2013) DH-DD(2013)67

Communications from NGOs (15/05/2015) DH-DD(2015)565, (15/05/2015) DH-DD(2015)564,

(04/02/2014) DH-DD(2014)228, (17/02/2014) DH-DD(2014)280; (11/08/2014) DH-DD(2014)983,

(02/06/2015) DH-DD(2015)612E

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

Venice Commission Opinion on the issue of the prohibition of so-called “propaganda of homosexuality” in the light of the recent legislation in some member States of the Council of Europe adopted on 14-15 June 2013
(CDL-AD(2013)022)

Decision adopted at the 1208th meeting (September 2014)

Case description: Disproportionate interference with the applicant's right to freedom of assembly due to the repeated bans, over a period of three years (2006, 2007 and 2008), on the holding of gay rights marches and pickets imposed by the Moscow authorities on account of their failure adequately to assess the risk to the safety of the participants and public order, including an acceptable assessment of relevant facts (violation of Article 11); lack of an effective remedy in this respect, on account of the absence of any legally binding time-frame for the authorities and the courts, requiring them to give a final decision before the planned date of the march or the picketing (violation of Article 13 in conjunction with Article 11); discrimination against the applicant and other participants in the proposed events on the grounds of their sexual orientation, since the authorities failed to justify the bans in a way compatible with Convention requirements (violation of Article 14 in conjunction with Article 11).

In its judgment, the Court also referred to the fact, inter alia, that the gay pride parade organised by the applicant was to call for promotion of the respect of human rights and tolerance towards sexual minorities and would have not involved any demonstration of obscenity; its participants had not intended to exhibit nudity, engage in sexually provocative behaviour or criticise public morals or religious views.

Status of execution: Individual measures: The Committee of Ministers has repeatedly, since the first examination of this case in June 2011, expressed concern with regard to the situation persisting in Moscow, where the violations found by the Court have still not been remedied, as the applicant is still not able to hold events similar to those described in the present judgment in Moscow. This situation appears closely connected with the general measures described below.

General measures: At its 1208th meeting (September 2014) (DH), the Committee examined the information provided by the Russian authorities on the following issues: 1) statistical information on the organisation of public events similar to those at issue in four cities between 1 July 2013 and 1 May 2014 (see H/Exec(2014)5); 2) the practical implementation of the legislation prohibiting “homosexual propaganda” among minors; 3) the implementation of the Constitutional Court’s decision of 14 February 2013 on the need for courts to settle disputes concerning the holding of public events before the foreseen date of such events; 4) the state of progress in the adoption of the draft Code of Administrative Procedure (see decision adopted at the 1208th meeting).

The Committee’s decision adopted at the 1208th meeting and the information provided (DH-DD(2015)405) in response to that decision are summarised below:

1) Statistical information on the organisation of public events similar to those at issue in Moscow and St Petersburg, as well as in the Kostroma, Arkhangelsk, Murmansk and Tyumen regions between 1 May 2014 and 1 February 2015 (see § 3 of the Committee’s last decision):

Twenty requests were made to the authorities to hold public events similar to those in the present judgment during the reference period. Out of these 20 requests, one was immediately accepted (in Kostroma region; planned for 2 June 2014) but this event did not take place because emergency repair works had to be carried out in the area where the event was supposed to take place, and another one (in Murmansk region) was accepted and took place after the organisers agreed to the authorities’ proposal to change the place of the event. Consequently, only one public event out of all these for which the organisers lodged requests actually took place. In addition, three public gatherings (two in Saint Petersburg and one in Murmansk) took place without any requests having been made to the authorities.

The Russian authorities also provided detailed information on the complaints lodged against the decisions in which the authorities did not agree with the holding of public events (see, for full details broken up by region under the column “judicial review”, document H/Exec(2015)13).

2) Measures to ensure that the Federal Law prohibiting “propaganda of non-traditional sexual relations” among minors does not hinder the effective exercise of the right to peaceful assembly (§ 4 and 5 of the Committee of Ministers’ last decision)

The Constitutional Court of the Russian Federation in its decision of 23 September 2014 examined the constitutionality of Article 6.21 of the Code of Administrative Offences (as amended by the above-mentioned Federal Law), which provides for an administrative sanction in respect of “propaganda of non-traditional sexual relations among minors”. The Constitutional Court found that this provision complied with the Constitution. According to the Constitutional Court, the prohibition of “propaganda of non-traditional sexual relations among minors” should not be interpreted broadly. Consequently, this prohibition should not be interpreted as a ban imposed on “non-traditional sexual relations”. Nor was it introduced with the intention of interfering with the sphere of individual autonomy, including the sexual identity of a person. Moreover, this prohibition should not be an obstacle to impartial public discussion on issues related to the legal status of sexual minorities and should not create impediments to the expression by sexual minorities of their opinion through all legal means, including the organisation and holding of public events.  

However, the administrative sanction in respect of “propaganda of non-traditional sexual relations” was introduced with the aim of protecting certain values, such as family and childhood, as well as preventing harm to minors’ health, their moral values and spiritual development. According to the Constitutional Court, public actions aimed at disseminating information popularising “non-traditional sexual relations” among minors or imposing on them such relations could be considered as unlawful, depending on the circumstances of each case.

The Constitutional Court gave certain indications to the courts on the requirements for the commission of the offence. Accordingly, the courts should take into consideration all the circumstances and facts when deciding whether a certain expression could be considered as unlawful propaganda or not. In addition, the courts should take into consideration the time, venue and the manner in which the expression was disseminated, as well as the motives of the person disseminating the expression.  

The Constitutional Court underlined that all public authorities and courts are under an obligation to take into consideration the findings in its judgment.

According to the Russian authorities, the judgment of the Constitutional Court should facilitate the development and the harmonisation of the interpretation of the relevant legislation by the local authorities and the judiciary.

3) Adoption of the Code of Administrative Procedure (§ 6 of the Committee of Ministers’ last decision)

The Code of Administrative Procedure was adopted on 8 March 2015 and will come into force on 15 September 2015. It provides, among other things, that the courts have to settle disputes concerning holding of public events within ten days of a complaint being lodged but not later than the day before the holding of a public event. If the complaint was lodged on the date of the planned event, the court should take a decision on the same day. Judges are under the obligation to consider such complaints even during the weekends or public holidays, if necessary. On the request of a party, a judge can order immediate enforcement of a decision.

Application

Case

Judgment of

Final on

4916/07

ALEKSEYEV

21/10/2010

11/04/2011

Application: 38411/02

Judgment final on 30/01/2008

GARABAYEV GROUP

Enhanced procedure: complex problem

Reference texts:

Interim Resolution CM/ResDH(2013)200

Letter from the Committee of Ministers' Chairman to the Minister for Foreign Affairs of the Russian Federation (05/04/13) DH-DD(2013)394

H/Exec(2014)7rev2 Overview of the incidents of alleged abductions/disappearances of applicants

Recent communications from the applicants

From Human Rights Institute (24/07/2014) (Izakov case and Mukhitdinov case) DH-DD(2014)913

Nizamov and others case: (24/11/2014) DH-DD(2014)1461; (23/03/2015) DH-DD(2015)388 ;

(25/03/2015) DH-DD(2015)393

Kasymakhunov case (28/05/2015) DH-DD(2015)581, (27/11/2014) DH-DD(2014)1455,
(13/05/2015) DH-DD(2015)522, Yakubov case (30/04/2014) DH-DD(2014)571,

Azimov case (05/12/2013) DH-DD(2013)1313

From Human Rights Institute (Mamazhonov case) (18/06/2013) DH-DD(2013)720

Recent communications from the Russian Federation

Action plan (13/04/2015) DH-DD(2015)424, (20/11/2014) DH-DD(2014)1431, (11/11/2014) DH-DD(2014)1357

Updated action plan (15/7/2014) DH-DD(2014)887

Abdulazhon Isakov case (18/08/2014) DH-DD(2014)979;

Yakubov case (30/04/2014) DH-DD(2014)581, (21/05/2014) DH-DD(2014)685

Azimov case (14/01/2014) DH-DD(2014)151; Action plan (10/01/2014) DH-DD(2014)58;

Mamazhanov case (08/07/2013) DH-DD(2013)768

Action plan (02/07/2013) DH-DD(2013)763 ; Action plan / action report (01/02/2013) DH-DD(2013)93;

Action plan (09/02/2012) DH-DD(2012)152

Communication from the UNHCR: (27/05/2015) DH-DD(2015)567, (28/05/2014) DH-DD(2014)717

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

Letters from the Registry of the European Court

Kadirzhanov case (13/09/2013) DH(DD(2013)970 ; Saliyev case (12/07/2013) DH-DD(2013)926,

Mamazhonov case (09/07/2013) DH-DD(2013)783 ; Abdulkhakov case (28/02/2013) DH-DD(2013)228 ;

Kasymakhunov No. 2 case (24/01/2013) DH-DD(2013)75 ; Savriddin Dzhurayev case (26/01/2012) DD(2012)214

Decision adopted at the 1214th meeting (December 2014)

Case description: The present group of cases concern different violations related to extradition (Articles 3, 5, 13, 34 and 38).

Most of the cases concern violations of Article 5§1 due to the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to extradition and of time-limits for such detention. They also concern violations of Article 5§4 due to the lack of the possibility for a person detained pending extradition to initiate judicial review of the lawfulness of his detention.

Many cases also concern Articles 3, 13 and 34 of the Convention. In a number of cases, the European Court found that there would be a violation of Article 3 if the applicants were extradited to the requesting countries and that there was a violation of Article 13 as the domestic courts failed to scrutinise rigorously the applicants' allegations of risk of ill-treatment.

In another number of cases, the Court found that Article 3 had effectively been breached as the applicants had been removed from Russian territory despite the risks of ill-treatment.

In six of these cases (Iskandarov, Abdulkhakov, Savriddin Dzhurayev, Nizomkhon Dzhurayev, Ermakov, Kasymakhunov), the Court found that the applicants could not have been abducted/ have disappeared and forcibly transferred from Russian territory without the knowledge and passive or active involvement of the Russian authorities.

In Savriddin Dzhurayev, Ermakov, Kasymakhunov and Mamazhonov the Court also found that the authorities had breached Article 3 by failing to protect the applicants against exposure to the risk of torture and ill-treatment and also by omitting to hold an effective investigation into the disappearance/abduction incidents.

Further, in seven cases (Abdulkhakov, Savriddin Dzhurayev, Zokhidov, Nizomkhon Dzhurayev, Ermakov, Kasymakhunov, Mamazhonov), the Court considered that by failing to comply with the interim measure indicated under Rule 39 and prohibiting the applicants’ removal from Russian territory in a few cases, the authorities hindered the applicants’ right of individual petition in violation of Article 34.

The issue related to the violation of Article 38 found by the Court in the case of Nizomkhon Dzhurayev is examined in the context of the Trubnikov group of cases.

As regards the problem of abductions/disappearances and forcible transfers to Tajikistan and Uzbekistan, the Court noted, under Article 46, in the Savriddin Dzhurayev judgment (final on 9 September 2013), that “alarming complaints about [such] disappearance and forcible transfer of applicants … continue[d] to be regularly lodged with [it], notwithstanding the indication of interim measures and the Government’s assurances that those measures would be complied with” (§243). In this situation, the Court indicated under Article 46 that “the State’s obligations under the [cited] judgment require[d] the resolution of [that] recurrent problem without delay” (§259), and that the “decisive general measures” to be taken “should include improving domestic remedies in extradition and expulsion cases, ensuring the lawfulness of any State action in this area, effective protection of potential victims in line with the interim measures indicated by the Court and effective investigation into every breach of such measures or similar unlawful acts” (§258). Special attention was drawn to the two latter measures, with the Court insisting on 1) the creation of an appropriate practical mechanism capable of effectively protecting applicants against kidnapping (§262), and 2) the close scrutiny of investigations into the applicants’ disappearances at an appropriate official level (§263). The Court also found that in the circumstances of the case, it was incumbent on the respondent State to find out and use in good faith such legal, diplomatic and/or practical means as may be necessary to secure to the maximum possible extent the applicant’s rights under Article 3 (§253). The Court also indicated that it was not impossible for the respondent State to take remedial measures to protect the applicant against the existing risks to his life and health in a foreign jurisdiction (§254).

Status of execution: Individual measures: For previous submissions of the Russian authorities - concerning the measures adopted to prevent the extradition/expulsion of the applicants in violation of the Convention; the investigations carried out into abduction incidents/alleged abductions; the measures taken to protect applicants at risk and to ensure that applicants found in detention in other States do not suffer treatment contrary to the Convention - see the action plans for this group published on the website of the Department for the Execution some of which are noted in the Reference texts above.

In their latest updated action plan of 13 April 2015, the Russian authorities provided additional information regarding the individual situation of some of the applicants in this group:

Temporary asylum has been provided, or its term has been extended, for seven applicants (having final Court’s judgment prohibiting their removal).[39] No applications for temporary asylum have been submitted by the four applicants in the Nizamov and Others case. The bailiff service continued to apply for suspension of enforcement of administrative expulsions in the relevant cases.

In addition, in order to obtain up-to-date information on the current status of the applicants remaining in Tajikistan and Uzbekistan, relevant requests have been sent to the authorities of those States. Information in this regard is awaited.

As regards the investigation into the disappearances in the cases of Mamazhonov and Yakubov, the Russian authorities submitted the following information. It was established that Mr Mamazhonov is currently serving an 8‑year prison sentence in his native Uzbekistan. The authorities quoted the applicant as stating that he had returned to Uzbekistan voluntarily immediately after his release from custody and describing his return trip. The authorities asserted that the information submitted by the applicant did not conflict with other evidence in the case, and the findings of the Court’s judgment in his respect were based on the assumptions of his lawyer. The Russian authorities had thus decided to close the criminal case.

As to Mr Yakubov, following their request for legal assistance submitted to their Uzbek counterparts, the Russian authorities have received the applicant’s testimony related to the circumstances of his voluntary return trip to his country of origin and have found established that he was at liberty in Uzbekistan. The authorities quoted the applicant describing his return trip and stating that, upon his arrival in Tashkent, he had applied to law‑enforcement authorities to obtain explanations concerning the criminal case opened against him there. The authorities further submitted that, upon his arrival, the applicant had been arrested for illegal border crossing but was later amnestied. They additionally asserted that this testimony did not contradict the evidence in their possession and recalled that the facts of the alleged abduction and forced transfer were now being examined by the European Court in the context of a new application.  

General measures: Since the Court delivered its judgment in the Iskandarov case in September 2010, the Committee has been confronted with several judgments relating to further disappearances and/or forcible transfers and also repeated allegations of such incidents (see the letters from the Court’s Registry DD(2012)214, DH-DD(2012)1046, DH-DD(2013)75, DH-DD(2013)783 and the submissions of the NGOs and applicants’ representatives DH-DD(2012)158, DH-DD(2012)422, DH-DD(2013)218, DH-DD(2013)720, DH‑DD(2014)571, DH-DD(2014)913). In view of these incidents, the Committee has focused its attention on this problem.

In response to this situation, the Russian authorities adopted a number of awareness-raising measures and instructions. The Committee however considered that these measures were insufficient and invited the authorities to adopt special protective measures in respect of the applicants who are exposed to such risks and underlined the need for special measures to ensure rapid and effective investigations into such incidents. Consequently, in September 2013 the Committee adopted an Interim Resolution (CM/ResDH(2013)200), exhorting the authorities to develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants belonging to the risk group benefit from immediate and effective protection against unlawful or irregular removal from the Russian territory.

In their action plan of 10 January 2014, the Russian authorities indicated, inter alia, that an interdepartmental co‑ordination meeting had been held in which it was decided to enhance co-operation between certain State authorities namely, the Prosecutor General’s Office, the Federal Migration Service, the Federal Bailiff Service, the Ministry of the Interior, the Ministry of Foreign Affairs and the Federal Security Service (see DH‑DD(2014)58).

At its 1193rd meeting in March 2014, following the report of a new alleged abduction incident, the Committee strongly urged the Russian authorities to promptly provide information on how they would ensure the practical implementation of the required protective and preventive mechanism and to transmit further details concerning the measures aimed at improving the efficiency of the investigations in all similar cases. At its 1201st meeting in June 2014, following the report of another new alleged abduction incident, the Committee requested the Russian authorities to ensure that relevant individuals are informed of the protective measures available. At its 1208th meeting in September 2014, following the report of two new alleged abduction incidents, the Committee, inter alia, strongly insisted that the Russian authorities henceforth take immediate and direct responsibility for the physical safety of all applicants who have received a final judgment or benefit from an interim measure indicated by the Court prohibiting their extradition or expulsion, in particular to Uzbekistan and Tajikistan, and that such persons are automatically considered by the Russian authorities subject to special protective measures, to be determined by the authorities on the basis of their particular circumstances, drawn as appropriate from the list of measures afforded to witnesses and victims in criminal proceedings.

In their action plans of 11 and 20 November 2014 (see DH-DD(2014)1357 and DH-DD(2014)1431), the Russian authorities submitted that the Federal Migration Service’s (FMS) territorial bodies had been instructed to organise meetings with the applicants whose removal was prohibited by an interim measure or a final judgment by the Court in order to find out their situation and apprise them of the opportunity to apply for special protective measures to the police, should any real threat of a criminal offence against them arise. Regional prosecutors had also been instructed, inter alia, to apprise the persons concerned, at the moment of their release from custody, of their right to complain to law-enforcement bodies in the event of certain risks, to investigate and decide on such complaints immediately, to monitor systematically persons concerned remaining outside of custody and to report all relevant facts to the Prosecutor General’s office.

In their updated action plan of 13 April 2015 (see DH-DD(2015)424), the Russian authorities submitted that the FMS territorial bodies had been arranging the meetings as planned. The regional and territorial prosecutors had also been arranging meetings with persons concerned remaining outside of custody. No person concerned had been released from custody since December 2014, and no complaints of attempted abduction or forced removal had been registered.

The authorities had continued to provide temporary asylum or refugee status, as applicable under Russian law. Prosecutors had monitored respect of the rights of persons who have applied for temporary asylum/refugee status, including the lawfulness of the decisions on such applications.

The authorities submitted that in addition to the regular forwarding of the latest copy of the Committee’s decision and of the updated list of persons whose removal was prohibited by an interim measure or a final judgment by the Court to all relevant bodies, these documents had also been published on the internal website of the Russian Supreme Court, accessible to all courts of general jurisdiction, including justices of peace.

Application

Case

Judgment of

Final on

38411/02

GARABAYEV GROUP (list of cases)

07/06/2007

30/01/2008

Application: 43370/04

Judgment final on 19/10/2012

CATAN AND OTHERS

Enhanced procedure: complex problem

Reference texts:

Interim Resolution CM/ResDH(2015)46

Interim Resolution CM/ResDH(2014)184

Records (confidential)

1222nd meeting (March 2015), 1214th meeting (December 2014), 1208th meeting (September 2014);

1193rd meeting (March 2014), 1186th meeting (December 2013)

Communication from the Russian Federation

(05/03/2015) DH-DD(2015)265

Communication from the Republic of Moldova

(09/03/2015) DH-DD(2015)267, (02/12/2014) DH-DD(2014)1466, (15/09/2014) DH-DD(2014)1096;