Report | Doc. 13087 | 07 January 2013
Ensuring the viability of the Strasbourg Court: structural deficiencies in States Parties
Committee on Legal Affairs and Human Rights
Summary
States Parties bear the “primary responsibility” for ensuring the European Convention on Human Rights is applied effectively at national level, alongside the European Court of Human Rights and the Committee of Ministers.
The Committee on Legal Affairs and Human Rights deplores the fact that the Court is “still overloaded with a large number of repetitive cases revealing widespread dysfunctions in national legal orders”. It lists nine States (Bulgaria, Greece, Italy, the Republic of Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine) which continue to have “major structural problems” – adding that countries with a high proportion of complaints in relation to their population should also face scrutiny.
The committee calls on States Parties to the Convention to create strategies and action plans to deal with their structural problems, and amend their laws in line with the Court’s case law. States Parties should also consider establishing a national body responsible solely for the execution of the Court’s judgments. Moreover, national parliaments should be actively involved in the implementation of these judgments, and in particular of those revealing structural deficiencies.
The Council of Europe governments are also called on to “increase pressure and take firmer measures” in cases of dilatory and continuous non-compliance with the Court’s judgments.
A. Draft
resolution ![(1)
Draft
resolution adopted unanimously by the committee on 12 November 2012.](/nw/images/icon_footnoteCall.png)
(open)B. Draft
recommendation ![(2)
Draft
recommendation adopted unanimously by the committee on 12 November
2012.](/nw/images/icon_footnoteCall.png)
(open)C. Explanatory memorandum by Mr Kivalov, rapporteur
(open)1. Introduction
1.1. The rapporteur's mandate
![(3)
Doc. 12370 of 28 September 2010, Reference No. 3716.](/nw/images/icon_footnoteCall.png)
![(4)
For an update on the
status of the report Mr de Vries is currently working on, see “Reports
under preparation in the Committees of the Parliamentary Assembly
of the Council of Europe,” <a href='http://assembly.coe.int/CommitteeDocs/2012/AS_Inf_2012_E.pdf'>AS/Inf
(2012) 10</a> of 25 October 2012.](/nw/images/icon_footnoteCall.png)
1.2. Previous work of the committee
![(5)
These seven reports
gave rise to seven resolutions and six recommendations. See Resolution 1226 (2000) and Recommendation
1477 (2000) of 14 January 2000; Resolution 1268 (2002) and Recommendation
1546 (2002) of 22 January 2002; Resolution 1297 (2002) and Recommendation
1576 (2002) of 23 September 2002; Resolution 1381 (2004) of 22 June 2004; Resolution 1411 (2004) and Recommendation
1685 (2004) of 23 November 2004; Resolution 1516 (2006) and Recommendation
1764 (2006) of 2 October 2006; Resolution 1787 (2011) and Recommendation
1955 (2011) of 26 January 2011.](/nw/images/icon_footnoteCall.png)
![(6)
“Implementation of
judgments of the European Court of Human Rights”, 7th Report, Mr
Christos Pourgourides (Cyprus, EPP/CD), Doc. 12455 of 20 December 2010.](/nw/images/icon_footnoteCall.png)
![(7)
See Resolution 1787 (2011).](/nw/images/icon_footnoteCall.png)
![(8)
“Guaranteeing
the authority and effectiveness of the European Convention on Human
Rights”, report by Ms Marie-Louise Bemelmans-Videc (Netherlands,
EPP/CD), Doc. 12811 of 3 January 2012, paragraph 33.](/nw/images/icon_footnoteCall.png)
1.3. Purpose of the present report
2. Definition of terms
2.1. Structural/systemic problem and pilot judgment procedure
![(9)
According to Committee
of Ministers’ practice, individual measures are aimed at ensuring
that the violation has ceased and its consequences for the injured
party have been erased, whereas general measures are aimed at preventing further
similar violations of the Convention. See in particular the 5th
Annual Report of the Committee of Ministers on “Supervision of the
execution of judgments and decisions of the European Court of Human
Rights”, Council of Europe, April 2012, p. 16.](/nw/images/icon_footnoteCall.png)
![(10)
See “States with major
structural/systemic problems before the European Court of Human
Rights: statistics”, <a href='http://assembly.coe.int/CommitteeDocs/2011/ajinfdoc05 2011rev_EN.pdf'>AS/Jur/Inf
(2011) 05 rev 2</a> of 18 April 2011.](/nw/images/icon_footnoteCall.png)
![(11)
Rule 61, European Court
of Human Rights’ <a href='http://www.echr.coe.int/NR/rdonlyres/6AC1A02E-9A3C-4E06-94EF-E0BD377731DA/0/REGLEMENT_EN_2012.pdf'>Rules
of Court</a> of 1 May 2012, pp. 33-34. This rule was inserted in response
to the request addressed to the Court, at the February 2010 Interlaken
Conference on the Court’s future, to “develop clear and predictable
standards for the pilot judgment procedure as regards selection
of applications, the procedure to be followed and the treatment
of adjourned cases”. “New rule introduced concerning handling of
systemic and structural human rights violations in Europe”, press
release issued by the Registrar of the Court, <a href='http://strasbourgconsortium.org/content/blurb/files/New rule on pilot judgment procedure 23.03.11 (1).pdf'>No.
256</a> of 24 March 2011. See also “Pilot Judgments”, <a href='http://www.echr.coe.int/NR/rdonlyres/61CA1D79-DB68-4EF3-A8F8-FF6F5D3B3BB0/0/FICHES_Arrets_pilotes_EN.pdf'>Factsheet</a> prepared by the European Court of Human Rights Press
Unit, July 2012.](/nw/images/icon_footnoteCall.png)
![(12)
“Implementation of
the Interlaken Declaration”, First Report by the CCDH, <a href='http://www.coe.int/t/dghl/standardsetting/cddh/Interim_Activity_Reports/CDDH_2010_010 Add I - CDDH first report on implementation of the Interlaken Declaration FINAL EN 18-06-10.pdf'>CDDH(2010)010
Addendum I</a> of 18 June 2010, Appendix III, paragraph 6.](/nw/images/icon_footnoteCall.png)
![(13)
5th Annual Report 2011,
op. cit., p. 40.](/nw/images/icon_footnoteCall.png)
2.2. Leading cases and clone cases
![(14)
For
example, see “Supervision of the execution of judgments of the European
Court of Human Rights,” 4th Annual Report 2010 by the Committee
of Ministers of April 2011, Appendix 2, p. 29.](/nw/images/icon_footnoteCall.png)
![(15)
Ibid.](/nw/images/icon_footnoteCall.png)
![(16)
Ibid.](/nw/images/icon_footnoteCall.png)
![(17)
“The Pilot-Judgment
Procedure”, <a href='http://www.echr.coe.int/NR/rdonlyres/DF4E8456-77B3-4E67-8944-B908143A7E2C/0/Information_Note_on_the_PJP_for_Website.pdf'>Information
note</a> issued by the Registrar of the European Court of Human
Rights, 2009, paragraph 3.](/nw/images/icon_footnoteCall.png)
![(18)
In the 5th Annual Report
2011, they have been grouped together with leading cases; see p.
31.](/nw/images/icon_footnoteCall.png)
![(19)
4th Annual Report,
op. cit. That said, the Committee of Ministers stresses that it
may sometimes be difficult to establish this when the case is examined
for the first time (for example, it may happen that a case initially
qualified as “isolated” is subsequently re-qualified as “leading”
in the light of new information attesting to the existence of a
general problem).](/nw/images/icon_footnoteCall.png)
3. Overview of substantial structural/systemic deficiencies
3.1. Identifying the range of States with substantial structural/systemic deficiencies
![(20)
See <a href='http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Statistics/Statistical+data/'>Statistical
information</a> of the European Court of Human Rights.](/nw/images/icon_footnoteCall.png)
![(21)
See
Execution of Judgments of the European Court of Human Rights, <a href='http://www.coe.int/t/dghl/monitoring/execution/Documents/Publications_en.asp'>Publications</a> of the Committee of Ministers.](/nw/images/icon_footnoteCall.png)
![(22)
<a href='http://www.echr.coe.int/NR/rdonlyres/219E9A92-716A-4337-99DE-053358F536B3/0/2011_Rapport_Annuel_EN.pdf'>Annual
Report 2011</a> by the Registry of the European Court of Human Rights,
2012, p. 153.](/nw/images/icon_footnoteCall.png)
![(23)
Ibid.](/nw/images/icon_footnoteCall.png)
![(24)
<a href='http://www.echr.coe.int/NR/rdonlyres/11CE0BB3-9386-48DC-B012-AB2C046FEC7C/0/STATS_EN_2011.PDF'>Analysis
of Statistics 2011</a> by the European Court of Human Rights, January 2012,
Table 2: Applications allocated per Contracting State and population,
p. 12.](/nw/images/icon_footnoteCall.png)
![(25)
See Appendix 1.](/nw/images/icon_footnoteCall.png)
![(26)
Annual
Report 2011, op. cit.](/nw/images/icon_footnoteCall.png)
![(27)
Analysis
of Statistics 2011, op. cit.](/nw/images/icon_footnoteCall.png)
![(28)
See notably, “Outstanding
issues concerning the practical modalities of implementation of
the new twin track supervision system”, Information document by
the Department of the Execution of Judgments of the European Court
of Human Rights, <a href='https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Inf/DH(2010)45&Language=lanEnglish&Ver=final&Site=CM&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864'>CM/Inf/DH(2010)45
final</a> of 7 December 2010, paragraph 10.](/nw/images/icon_footnoteCall.png)
![(29)
Application No. 46344/06,
judgment of 2 September 2010.](/nw/images/icon_footnoteCall.png)
![(30)
Application No. 23032/02,
judgment of 6 October 2005.](/nw/images/icon_footnoteCall.png)
![(31)
Applications Nos. 60041/08
and 60054/08, judgment of 23 November 2010.](/nw/images/icon_footnoteCall.png)
![(32)
“Implementation
of judgments of the European Court of Human Rights”, reply from
the Committee of Ministers to Assembly Recommendation 1955 (2011), Doc.
12801.](/nw/images/icon_footnoteCall.png)
![(33)
Ibid, paragraph 2.](/nw/images/icon_footnoteCall.png)
![(34)
For general information
on the execution of judgments, see “<a href='http://www.coe.int/t/dghl/monitoring/execution/Default_en.asp'>Execution
of Judgments of the European Court of Human Rights</a>”. To verify the status of a particular case, see also
“<a href='http://www.coe.int/t/dghl/monitoring/execution/Reports/pendingCases_en.asp'>Pending
cases: current state of execution</a>,” Database of cases pending before the Committee of
Ministers.](/nw/images/icon_footnoteCall.png)
3.2. Overview
3.2.1. Excessive length of judicial proceedings
![(35)
For example, see “Ceteroni
Group of cases v. Italy”, Decisions by the Deputies in “1136th Meeting
(DH), 6-8 March 2012: Annotated order of Business and decisions
adopted”, <a href='https://wcd.coe.int/ViewDoc.jsp?id=1918329&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383'>CM/Del/Dec(2012)1136</a> of 13 March 2012.](/nw/images/icon_footnoteCall.png)
- introducing remedies aimed specifically at speeding up criminal proceedings;
- employing the “concentration principle” whereby evidence is brought together in first instance proceedings (Bulgaria,
Ukraine);
- changing the character of second instance proceedings from “second first instance” proceedings to proper appeal proceedings;
- limiting the grounds for lodging a further appeal to the Supreme Court;
- simplifying summons arrangements by introducing the possibility of serving a summons by delivering it to a person’s mailbox or affixing it to that person’s front door (Bulgaria
);
- modifying and reducing the scope of the supervisory review procedure and the related issue of impartiality (Russia, Ukraine);
- introducing a minimal court fee in proceedings as an administrative measure to deter manifestly ill-founded applications;
- simplifying specific procedures, including civil proceedings by limiting the types of civil proceedings to three (Italy);
- rationalising and accelerating proceedings before administrative courts and streamlining provisions (Greece);
- introducing “participative proceedings”, namely the obligation to appoint a representative when the number of parties to a case reaches a certain level (20 for example).
![(39)
For
instance, Poland’s law on complaints against excessive length of
proceedings of 2004.](/nw/images/icon_footnoteCall.png)
![(40)
As
indicated by the Polish parliamentary delegation, the Polish authorities
regularly translate, publish and disseminate Court judgments and
also applies some of the additional measures mentioned below. In
Turkey, the website <a href='http://www.inhak.adalet.gov.tr/'>www.inhak.adalet.gov.tr</a> was launched in order to facilitate access to the Court’s
case law in Turkish.](/nw/images/icon_footnoteCall.png)
- establishing assessment and monitoring mechanisms, particularly through the collection and analysis of statistical data (Bulgaria);
- reducing the length of trials and introducing simplified procedures for judicial review;
- digitalising case files, allowing for easier, faster access (Italy and Turkey);
- introducing a uniform method of managing civil case files in appellate courts and tribunals (Italy, end of March 2011);
- circulating best practices widely;
- increasing the number of judges.
![(44)
<a href='http://www.coe.int/t/dghl/monitoring/execution/Reports/pendingCases_en.asp?CaseTitleOrNumber=gaglione&StateCode=ITA&SectionCode='>www.coe.int/t/dghl/monitoring/execution/Reports/pendingCases_en.asp?CaseTitleOrNumber=gaglione&StateCode=ITA&SectionCode=.</a>](/nw/images/icon_footnoteCall.png)
![(45)
Zwozniak v. Poland, Application
No. 25728/05, judgment of 13 November 2007.](/nw/images/icon_footnoteCall.png)
![(46)
For example,
see Action plan concerning the Fuchs group of cases v. Poland (Application
No. 33870/96), <a href='https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1995085&SecMode=1&DocId=1826150&Usage=2'>DH-DD(2011)1073E</a> of 24 November 2011.](/nw/images/icon_footnoteCall.png)
![(47)
“Supervision of the
execution of judgments and decisions of the European Court of Human
Rights,” <a href='http://www.coe.int/t/dghl/monitoring/execution/Source/Publications/CM_annreport2011_en.pdf'>Annual
report, 2011</a> by the Committee of Ministers, April 2012, p. 70.](/nw/images/icon_footnoteCall.png)
![(48)
Ibid.](/nw/images/icon_footnoteCall.png)
![(49)
See “Execution of judgments
of the European Court of Human Rights concerning the excessive length
of judicial proceedings in Italy”, interim resolution by the Committee
of Ministers, <a href='https://wcd.coe.int/ViewDoc.jsp?Ref=CM/ResDH%282010%29224&Language=lanEnglish&Site=DG4&BackColorInternet=B9BDEE&BackColorIntranet=FFCD4F&BackColorLogged=FFC679'>CM/ResDH(2010)224</a> of 2 December 2010.](/nw/images/icon_footnoteCall.png)
3.2.2. Chronic non-enforcement of domestic judicial decisions
![(50)
In response to the
Moldovan situation as regards the non-enforcement of local judgments,
the Strasbourg Court delivered a pilot judgment in the case of <a href='http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=853081&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649'>Olaru
and Others v. Moldova</a>, Applications Nos. 476/07, 22539/05, 17911/08, and 13136/07,
judgment of 28 July 2009.](/nw/images/icon_footnoteCall.png)
![(51)
Similarly, the Strasbourg
Court issued pilot judgments in response to Romania’s problems with
non-enforcement. See <a href='http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=704075&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649'>Sabin
Popescu v. Romania</a>, Application No. 48102/99, judgment of 2 March 2004,
and <a href='http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=786381&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649'>Sacaleanu
v. Romania</a>, Application No. 73970/01, judgment of 6 September 2005.](/nw/images/icon_footnoteCall.png)
![(52)
The importance of this
issue for the Russian Federation was underlined in the pilot judgment
of <a href='http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=845494&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649'>Burdov
v. Russian Federation (No. 2)</a>, Application No. 33509/04, judgment of 15 January 2009.
See also “Execution of the judgments of the European Court of Human
Rights in 145 cases against the Russian Federation relative to the
failure of serious delay in abiding by final domestic judicial decisions
delivered against the State and its entities as well as the absence
of an effective remedy”, interim resolution by the Committee of
Ministers, <a href='https://wcd.coe.int/ViewDoc.jsp?id=1423205&Site=DC'>CM/ResDH(2009)43</a> of 19 March 2009, and “Execution of the pilot judgment
of the European Court of Human Rights in the case of Burdov No.
2 against the Russian Federation relative to the failure or serious
delay in abiding by final domestic judicial decisions delivered
against the State and its entities as well as the absence of an
effective remedy”, interim resolution by the Committee of Ministers, <a href='https://wcd.coe.int/ViewDoc.jsp?id=1556781&Site=CM'>CM/ResDH(2009)158</a> of 3 December 2009.](/nw/images/icon_footnoteCall.png)
![(53)
In October 2009, the
Strasbourg Court delivered a pilot judgment on this issue in the
case of <a href='http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=856141&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649'>Yuriy
Nikolayevich Ivanov v. Ukraine</a>, Application No. 40450/04, judgment of 15 October 2009,
where the Court ordered Ukraine to introduce an effective remedy
for what it identified as structural problems in the country’s legal
system, namely, the prolonged non-enforcement of final domestic
judgments and the absence of an effective domestic remedy to deal
with this situation. On 21 February 2012, the Strasbourg Court took
the decision to resume the examination of applications raising similar
issues.](/nw/images/icon_footnoteCall.png)
- deficient legislation and administrative practices;
- delays in legislative changes;
- inefficiency of the bailiff system;
- lack of co-ordination between enforcement agencies;
- failure of the courts to identify the debtor clearly.
- The Moldovan government has taken concrete measures to eliminate this systemic problem by introducing special legislation in July 2011 regarding non-enforcement of final domestic judgments and unreasonable length of proceedings.
![]()
Non-enforcement nevertheless remains a reality in the Moldovan bailiff system.
- Similarly, the Romanian authorities have adopted some positive measures in this area. In October
and November 2011,
they submitted two revised action plans with information on the reforms carried out in response to the Strasbourg Court's judgments. It is indicated in particular that an inter-ministerial group prepared a draft law with a view to rendering the restitution and compensation process more effective, and a calendar for the adoption of the draft law was provided. At this stage, however, the calendar provided does not indicate whether the anticipated measures can be put in place before the expiry of the 18-month deadline set by the pilot judgment. As regards the progress of the restitution and compensation process, the data submitted do not afford a clear view of the overall number of claims that are yet to be satisfied, as they only concern part of the restitution laws which have governed these issues thus far. Since Mr Pourgourides’ above-mentioned report of December 2010, the Proprietatea Fund, set up by Romania to deal with the payment of compensation awarded to owners of nationalised property, remains unlisted on the stock exchange (a measure which was due to take place in 2005, according to Romania Law No. 247/2005). The Fund has, however, been paying dividends to its shareholders since 2007, and since March 2008 its shares may be sold by means of direct transactions under the supervision of the stock exchange regulatory authority.
- The Committee of Ministers recognised as a delayed but positive and effective remedy the Russian Federation’s adoption of two federal laws providing a new domestic remedy for excessive length of judicial proceedings and delayed enforcement of domestic judgments delivered against the State (“the Compensation Act”), as well as the Russian authorities’ (in particular the federal Supreme Court, the Supreme Commercial Court, the Ministry of Finance, and Federal Treasury’s) implementation of measures to guarantee the effectiveness of the new compensation remedy at a domestic level. In addition, the Committee of Ministers welcomed the comprehensive measures taken by the Russian Federation with a view to settling similar individual applications lodged prior to the pilot judgment Burdov v. Russian Federation (No. 2), allowing the Court to strike 800 cases from its docket. The Committee of Ministers recalled nevertheless that the Russian Federation remained under the obligation to adopt other general measures, bearing in mind the Court’s findings as set out in the pilot judgment, in order to fully address the issue of non-execution of judicial decisions under examination in the context of the Timofeyev group of cases, to which the Burdov No. 2 case was henceforth joined.
- The law “on State guarantees concerning execution of judicial decisions”, adopted by the Ukrainian Parliament on 5 June 2012 and which will come into force on 1 January 2013, provides a new procedure for the enforcement of judicial decisions delivered against the State. The essence of this new procedure would be that the State would undertake to execute a judgment at the expense of the State budget if the debtor concerned, that is the State, local body, or enterprise, failed for whatever reason to comply with the judgment. If some delay still occurred, automatic compensation would be payable. At its 1144th June 2012 human rights meeting, the Committee of Ministers welcomed the adoption of this law and encouraged the Ukrainian authorities to continue their efforts with a view to resolving the problem of non-execution of domestic judicial decisions.
3.2.3. Deaths and ill-treatment attributable to law enforcement officials, and a lack of effective investigations thereof
![(61)
See,
in particular, amendments to the Minister of Interior Act, which
entered into force on 1 July 2012. They introduced an “absolute
necessity” standard on the use of weapons, physical force and auxiliary
means by police staff.](/nw/images/icon_footnoteCall.png)
![(62)
Concerning Bulgaria,
see Interim Resolution CM/ResDH(2007)107 of 17 October 2007: <a href='https://wcd.coe.int/ViewDoc.jsp?Ref=CM/ResDH(2007)107&Language=lanEnglish'>https://wcd.coe.int/ViewDoc.jsp?Ref=CM/ResDH(2007)107&Language=lanEnglish</a>.](/nw/images/icon_footnoteCall.png)
- the excessive length of investigations against State officials involved;
- the lack of independence of the authorities who conducted those investigations;
- the impossibility for applicants to have access to the records of the investigations;
- the impossibility for the applicants to interview witnesses and accused officers;
- impunity resulting from the application of statutes of limitations and amnesty laws;
- decisions of deferment of judgment or stays of execution of sentences issued against the accused officers;
- failure to suspend State officials from their duties despite the existence of proceedings against them for abuse;
- the lack of medical expertise prepared in good time;
- the lenient sentences imposed on police officers;
- conditional dismissals that applied to officers convicted of abuse.
- The Committee of Ministers has recommend that the Bulgarian Government take further measures to ensure the proper investigation of certain individual cases, procedural safeguards during police custody and civil society monitoring mechanisms. Bulgaria has also been requested to provide further information on the content of training and awareness-raising measures on human rights standards for law enforcement officials.
![]()
Certain recently adopted or amended decrees and other legislation
were regarded as falling short of Convention standards
and more detailed information regarding measures envisaged or already adopted to ensure the effectiveness of investigations was requested.
The Committee for the Prevention of Torture stressed that the problem of ill-treatment by police officers persisted, and recommended that the Minister of Internal Affairs of Bulgaria deliver a firm message of “zero tolerance” of ill-treatment to all police staff, to be backed up by appropriate training programmes.
According to the Bulgarian parliamentary delegation,
the Ministry of Interior is taking several awareness-raising measures on human rights standards, in particular through its Academy, which trains the Ministry’s staff in the area of the protection of security and public order.
- The Moldovan authorities adopted a number of measures, notably in response to the concerns raised by the CPT. Amendments were introduced to the Criminal Code, and in 2006 the Code of Police Ethics was approved by the government.
- The Russian Federation’s new law on police enforcement entered into force in March 2011. In its last specific decision of December 2010, the Committee of Ministers encouraged the Russian authorities to fully seize the opportunity offered by Russia’s ongoing comprehensive reform to ensure that the legal and regulatory framework for police activities contains all necessary safeguards against police arbitrariness and abuses, like those found by the European Court of Human Rights in its judgments. The new system put in place is presently under examination by the Committee of Ministers.
- Turkey’s Ministry of Justice organised the “High Level Conference and Workshop on Decisions of the European Court of Human Rights on Turkey, Issues and Solutions” in November 2011. At the meeting, Turkey notified the participants that questions concerning effective investigations and prosecutions would be reconsidered in the framework of professional training projects for judges and prosecutors, in collaboration with the High Council of Judges and Prosecutors and the Academy of Justice. The authorities also noted that according to the provisions of the new Criminal Code, the prescription periods for different crimes linked with ill treatment and torture had been increased to a significant degree.
The Batý v. Turkey
group of cases, however, highlights the problem of impunity of law enforcement officials.
- Similarly, the Ukrainian authorities have adopted a number of measures to prevent new, similar violations. On 12 January 2005, a number of amendments were introduced to the Law on the Militia. Ukraine is also expecting improvements stemming from the recent adoption of the new Code of Criminal Procedure, whose new Articles 176-179, 181, 203, 204, 207, 211, 212, 214 specifically target “the practice of unregistered detention by police” and “the use of administrative arrest for criminal investigation purposes”.
In addition, measures have been taken to strengthen professional and in-service training of police officers in human rights by including the study of the Convention's requirements and the case law on Article 3 in the curriculum of educational establishments under the Ministry of Internal Affairs and the National Academy of Prosecutors. Problems of ill-treatment were also discussed during training programmes for judges and law-enforcement bodies organised by the Office of the Government Agent and NGOs.
3.2.4. Unlawful detention and excessive length of detention on remand
![(74)
Brega
v. Moldova, Application No. 52100/08, judgment of April
20, 2010.](/nw/images/icon_footnoteCall.png)
![(75)
Trzaska v. Poland, Application No,
25792/94, judgment of 11 July 2000.](/nw/images/icon_footnoteCall.png)
![(76)
Kharchenko
v. Ukraine, Application No. 40107/02, judgment of 10
February 2011.](/nw/images/icon_footnoteCall.png)
![(77)
Main cases Demirel
group; Demirel v. Turkey and
other similar cases, Application No. 39324/98, judgment final on
28 April 2003, DH-DD(2011)578. Number of cases concerned: 152.](/nw/images/icon_footnoteCall.png)
![(78)
Cahit
Demirel v. Turkey, Application No. 18623/03, judgment of 7 July
2009, paragraph 46.](/nw/images/icon_footnoteCall.png)
![(79)
Interim Resolution
CM/ResDH(2010)35 of 4 March 2010, Execution of the judgments of
the European Court of Human Rights in 31 cases against the Russian
Federation mainly concerning conditions of detention in remand prisons.](/nw/images/icon_footnoteCall.png)
- the prevailing mentality, professional practice in the judiciary, and lack of motivation;
- the domestic courts’ failure to provide “relevant and sufficient” grounds for their decisions ordering or prolonging detention on remand;
- the domestic courts rendering judgments without taking into consideration the Convention’s requirements;
- the police’s wide-spread practice of unregistered detention;
- failure to bring the arrested person before a judge promptly;
- failure to consider alternative preventive measures;
- inadequate domestic legislation;
- lack of a clear procedure allowing for the speedy review of the lawfulness of detention on remand;
- absence of a domestic remedy letting applicants challenge the lawfulness of their detention on remand;
- absence of a right to compensation for unlawful detention on remand.
- The Polish authorities have made substantial changes in their State’s legal system in order to clarify the rules on the imposition and extension of detention, and to introduce and promote alternative measures. For instance, the Code of Criminal Procedure was reformed in 1997, 2000 and 2007. In 2011, in addition to their regular monitoring of the overall detention situation, the authorities also introduced closer supervision of the grounds for and length of detention, as well as of the efficient conduct of the relevant criminal proceedings.
- The Code of Criminal Procedure, Law No. 5271, which came into force on 1 June 2005 in Turkey, provides safeguards intended to prevent future violations of the same kind.
- On 9 November 2011, the Ukrainian authorities presented an action plan that provided a strategy for taking legislative measures, as well as administrative measures aimed at changing detention practices. Emphasis was put on the adoption of a new Code of Criminal Procedure in 2012, which, according to the authorities, would eliminate the legislative shortcomings underlying the recurrent violations of Article 5, paragraphs 1, 3, and 4 of the Convention. The new Code of Criminal Procedure was adopted in April 2012.
- Similarly, on 9 February 2012, the Russian authorities submitted an action plan.
The Constitutional Court and the Supreme Court also adopted a number of decisions in an effort to remedy the existing uncertainty as to the legal provisions governing detention pending extradition.
They provided the lower courts with guidelines and clarifications on how to apply the general provisions to suspects and to accused persons in detention on remand, as well as to persons detained pending extradition. Since 2008, these decisions have been supplemented by instructions issued by the General Prosecutor’s Office. The General Prosecutor’s Office also clarified how a detainee’s risk of possible ill-treatment in countries requesting extradition should be assessed by prosecutors when issuing an extradition order. In addition, the Russian authorities are currently considering the need for legislative amendments with a view to bringing the Code of Criminal Procedure into line with the Convention’s requirements.
- In Turkey, for example, when deciding whether to extend detention on remand, a domestic judge should indicate the presence of “relevant and sufficient reasons” for doing so, that is explain to what extent the applicant's release would still pose a risk after the passage of some time, in particular in the later stages of the court proceedings.
- The decisions of the Supreme Court of Justice of the Republic of Moldova upholding the need for judicial decisions to be made in light of the Strasbourg Court’s findings are a welcome step. These decisions demonstrate the increased attention paid by the Moldovan judicial community to resolving this important issue. However, increased efforts are needed to effectively change the judiciary’s daily practice,
and it is not yet clear whether the guidelines contained in the decisions of the Supreme Court of Justice are binding on lower courts. Clarification with regard to this matter would be useful. Consequently, the Republic of Moldova was invited to submit to the Committee of Ministers an action plan on the implementation of the relevant judgments of the Court. Such an action plan is still awaited from the Moldovan authorities.
- At its 1136th human rights meeting in March 2012, the Committee of Ministers noted with satisfaction the progress achieved by the Polish authorities.
A positive trend is visible in recent detention statistics, and Polish courts increasingly appear to be applying alternative measures to detention. The Committee of Ministers also welcomed the commitment of the authorities to resolving this issue, as shown by the continued monitoring of the length of and grounds for pre-trial detention, as well as by the training activities for judges and prosecutors. The Committee of Ministers invited the authorities to continue their efforts in relation to training and awareness-raising measures, in particular as regards the promotion of alternate measures to detention and the further reduction of the use of medium- and long-term detention. As a result of the significant progress achieved and the commitment shown by the Polish authorities, it was decided that the supervision of the execution of this group of detention cases would continue under the standard procedure.
In addition, Polish authorities have taken steps to improve the judiciary’s awareness of the Strasbourg Court’s judgments concerning the excessive length of detention on remand.
The Ministry of Justice has contacted all the presidents of the appellate courts, and provided an analysis of the Strasbourg Court’s case law pertaining to the requirements for the reasoning behind placing individuals in detention on remand.
- According to the most recent information, concerning the execution of the judgment in the case of Kharchenko v. Ukraine,
provided by the Ministry of Justice of Ukraine to our committee on 26 April 2012, the Ukrainian government has published and translated the judgment and has sent copies to the Supreme Court, the High Specialised Court of Ukraine for civil and criminal cases, and every Court of Appeal. It has also organised round table discussions on this matter with judges who decide whether pre-trial detention should be granted.
3.3. Parliamentary control
![(89)
See also Resolution 1516 (2006) on the implementation of judgments of the European Court
of Human Rights.](/nw/images/icon_footnoteCall.png)
- Romania has a parliamentary subcommittee, established in 2005, of the Committee on Legal Matters, Discipline and Immunities of the Lower Chamber, which monitors the implementation of adverse judgments of the European Court of Human Rights. This subcommittee organises joint hearings on legislative remedies with the governmental commission tasked with the implementation of the above-mentioned pilot judgment in Maria Atanasiu and Others v. Romania, monitors the implementation of other judgments finding violations of the Convention by Romania, and promotes and assists in legislative reforms. Since 2011, the government is legally obliged to submit a draft remedial law within three months of any adverse judgment that requires such a law, and to provide an accompanying statement on Romania’s compliance with the Convention for each draft law affecting human rights, which it submits to parliament.
- Italy has a “joint permanent committee”, established in 2009, of both the legislative and the executive branches, tasked with guiding parliament in its legislative work, by informing parliament about the specific requirements of the Convention and of relevant judgments of the Strasbourg Court, and by advising parliament on the need for the adoption or amendment of specific laws in order to comply with the Convention as interpreted by the Court. The government is legally obliged to continuously brief the parliament on Strasbourg Court judgments finding violations of the Convention by Italy, and, separately, to supply the parliament with an annual report on the state of the execution of these judgments. Specialised parliamentary committees are tasked with examining this information.
- Since 2006, the Ukrainian Parliament examines draft remedial laws tabled by the government and suggestions for the parliament’s own drafting of legislation. The Parliamentary Ombudsman is also briefed on adverse European Court of Human Rights’ judgments. In addition, building on the experience of two draft laws
that purported to bring about comprehensive national parliamentary control over law enforcement, a joint memorandum of understanding between the Committee on Justice of the Ukrainian Parliament and the then rapporteur of the Assembly’s Committee on Legal Affairs and Human Rights, Mr Christos Pourgourides, was signed in 2009 that introduced an experimental mechanism for limited parliamentary scrutiny of Strasbourg Court judgments’ implementation. This mechanism was to take the form of Committee on Justice meetings with the Government agent at the European Court of Human Rights and representatives of the Ministry of Justice, and result in the drafting of remedial laws and amendments based on the information and recommendations provided by the participants in those meetings. Moreover, the draft law “On amendments to the Law of Ukraine ‘On the execution of judgments and implementation of practice of the European Court of Human Rights’”
is awaiting its second reading. It will introduce a new clause stipulating that the Verkhovna Rada exercises parliamentary control over the implementation of Court judgments. Those responsible for representing Ukraine before the Strasbourg Court and co-ordinating the implementation of its judgments
will be obliged to report to the Verkhovna Rada annually, no later than 1 March, about the state of implementation of the Court’s judgments. They will also have to present proposals concerning general measures, particularly legislative amendments. The adoption of this draft law will establish procedures in line with the Council of Europe’s standards.
- In Bulgaria, a Bill put forward by a group of parliamentarians (Civil Advocacy Initiative of the Institute of Modern Politics) ascribes similar obligations to the Bulgarian Assembly.
It will therefore be useful to follow closely this positive initiative.
4. Conclusion and proposals
4.1. Measures to be taken at the stage of evaluating the admissibility of applications before the Court
- establishing centres for the analysis of applications, with the help of non-governmental human rights organisations and in close co-operation with the Court’s Registry, that are better equipped than the “Warsaw lawyer” project,
and contact national authorities, such as parliamentary committees, Ombudspersons, and government agents, to address the issues contained in applications, provide free expert assessments of applications’ admissibility to the Court, and familiarise applicants with the Court’s criteria and procedures;
- opening Council of Europe offices in all States Parties with major structural/systemic problems and/or with a high number of applications before the Court;
- organising meetings with civil society, bar associations, representatives of the academic community, delegations to the Parliamentary Assembly of the Council of Europe, former and/or present judges of the Court.
![(95)
In
particular, the experience of some countries, like Poland, which
introduced in 2004 a remedy against excessive length of judicial
proceedings, should be considered. As indicated by the Turkish delegation,
it is now possible for Turkish citizens to complain about human
rights violations before the Constitutional Court.](/nw/images/icon_footnoteCall.png)
4.2. Measures to be taken at the stage of proceedings before the Strasbourg Court
![(96)
Paragraph
6. Available at: <a href='http://www.coe.int/t/dghl/standardsetting/conferenceizmir/Declaration Izmir E.pdf'>www.coe.int/t/dghl/standardsetting/conferenceizmir/Declaration%20Izmir%20E.pdf.</a>](/nw/images/icon_footnoteCall.png)
![(97)
Ibid., Part E, paragraph
1.](/nw/images/icon_footnoteCall.png)
![(98)
In the Interlaken Declaration
of 19 February 2010, the High Level Conference on the Future of
the European Court of Human Rights called upon the States Parties
to the Convention to consider the possibility of seconding national
judges or other high-level independent lawyers to the Registry of
the Court, as part of the efforts to increase the awareness of national
authorities of the Convention standards and to implement the Convention
at the national level. This call was repeated in the Izmir Declaration
of 27 April 2011, and was repeated in the Brighton Declaration,19
and 20 April 2012.](/nw/images/icon_footnoteCall.png)
4.3. Measures to be taken at the stage of the execution of Court judgments
“The problems revealed by the judgments of the Court are large-scale and complex in nature. Their resolution may sometimes go beyond the execution of a particular judgment. This can only be achieved through the setting up of a comprehensive strategy co-ordinated at the highest political level. Any delays in the setting up of such a strategy should be subject to close monitoring by parliament which should have appropriate means to compel the government to solve these issues as a matter of priority.”
- authoritatively systematise and generalise the Strasbourg Court’s case law;
- assist in supervising the execution of the Court’s judgments by the relevant authorities, in particular through parliamentary oversight;
- analyse and verify the causes leading to the violations of the Convention identified in the Court’s judgments;
- implement individual and general measures, including through the elaboration of draft laws aimed at making States’ legislation conform with the Convention and the Court’s case law.
- providing appropriate training opportunities;
- considering the reports provided by national delegations on the effectiveness of measures taken by States Parties to address their structural deficiencies, and the implementation of the Convention in law and in practice;
- providing advice on legislative provisions establishing these national parliamentary monitoring mechanisms in charge of overseeing the implementation of Strasbourg Court judgments and eliminating structural/systemic deficiencies, based on recognised best practices drawn from other States Parties.
![(99)
See,
in particular, Mr Pourgourides’ report on “National parliaments:
guarantors of human rights in Europe”, Doc. 12636.](/nw/images/icon_footnoteCall.png)
4.4. Measures aimed at the elimination of structural/systemic deficiencies in States Parties
![(100)
Text of the speech
on file with the Secretariat.](/nw/images/icon_footnoteCall.png)
Appendix 1 – Total number
of new applications allocated to a judicial formation ![(101)
Extract from the Court’s
Analysis of Statistics 2011, p. 12.](/nw/images/icon_footnoteCall.png)
(open)
No. |
State |
Applications allocated to a judicial formation in 2011 |
Allocated applications in 2011/population (10 000) |
1 |
Russian Federation |
12 465 |
0.88 |
2 |
Turkey |
8 702 |
1.18 |
3 |
Romania |
5 207 |
2.43 |
4 |
Poland |
5 035 |
1.32 |
5 |
Italy |
4 733 |
0.78 |
6 |
Ukraine |
4 621 |
1.01 |
7 |
Serbia |
3 730 |
5.10 |
8 |
Sweden |
1 899 |
2.02 |
9 |
Germany |
1 754 |
0.21 |
10 |
France |
1 600 |
0.25 |
Total number of new applications |
64 547 |
- |
Appendix 2 – List of the 29 pilot judgments delivered by the Court (data as at 12 November 2012)
(open)
Application No. |
Case title |
State |
Decision body |
State of proceedings |
Subject |
Judgment delivery date |
---|---|---|---|---|---|---|
31443/96 |
BRONIOWSKI v. Poland |
POL |
Grand Chamber |
finished |
compensation for property left beyond the Bug River |
22/06/2004 |
23032/02 |
LUKENDA v. Slovenia |
SVN |
Chamber |
finished |
civil length of proceedings |
06/10/2005 |
35014/97 |
HUTTEN-CZAPSKA v. Poland |
POL |
Grand Chamber |
finished |
state rent control |
19/06/2006 |
33509/04 |
BURDOV v. Russia (No. 2) |
RUS |
Chamber |
finished |
non enforcement |
15/01/2009 |
45219/06 |
KAUCZOR v. Poland |
POL |
Chamber |
finished |
length of judicial detention |
03/02/2009 |
13136/07 |
RACU v. Moldova |
MDA |
Chamber |
finished |
non enforcement |
28/07/2009 |
17911/08 |
LUNGU v. Moldova |
MDA |
Chamber |
finished |
non enforcement |
28/07/2009 |
22539/05 |
GUSAN v. Moldova |
MDA |
Chamber |
finished |
non enforcement |
28/07/2009 |
476/07 |
OLARU v. Moldova |
MDA |
Chamber |
finished |
non enforcement |
28/07/2009 |
40450/04 |
YURIY NIKOLAYEVICH IVANOV v. Ukraine |
UKR |
Chamber |
finished |
non enforcement |
15/10/2009 |
17885/04 |
ORCHOWSKI v. Poland |
POL |
Chamber |
finished |
conditions of detention |
22/10/2009 |
27912/02 |
SULJAGIC v. Bosnia and Herzegovina |
BIH |
Chamber |
finished |
savings in BIH |
03/11/2009 |
46344/06 |
RUMPF v. Germany |
GER |
Chamber |
finished |
civil length of proceedings |
02/09/2010 |
30767/05 |
ATANASIU and POENARU v. Romania |
ROM |
Chamber |
finished |
restitution claims |
12/10/2010 |
33800/06 |
SOLON v. Romania |
ROM |
Chamber |
finished |
non-payment of compensations due, restitution laws |
12/10/2010 |
60041/08 |
GREENS v. the United Kingdom |
UK |
Chamber |
finished |
prisoners' right to vote |
23/11/2010 |
60054/08 |
M.T. v. the United Kingdom |
UK |
Chamber |
finished |
prisoners' right to vote |
23/11/2010 |
50973/08 |
VASSILIOS ATHANASIOU AND OTHERS v. Greece |
GRC |
Chamber |
finished |
administrative proceedings length |
21/12/2010 |
2708/09 |
HAMANOV v. Bulgaria |
BGR |
Chamber |
finished |
criminal length of proceedings |
10/05/2011 |
48059/06 |
DIMITROV v. Bulgaria |
BGR |
Chamber |
finished |
criminal length of proceedings |
10/05/2011 |
37346/05 |
FINGER v. Bulgaria |
BGR |
Chamber |
finished |
civil length of proceedings |
10/05/2011 |
42525/07 |
ANANYEV AND OTHERS v. Russia |
RUS |
Chamber |
finished |
conditions of detention |
10/01/2012 |
60800/08 |
BASHIROV AND BASHIROVA v. Russia |
RUS |
Chamber |
finished |
conditions of detention |
10/01/2012 |
24240/07 |
UMMUHAN KAPLAN v. Turkey |
TUR |
Chamber |
awaiting referral request |
civil length of proceedings |
20/03/2012 |
54447/10 |
MICHELIOUDAKIS v. Greece |
GRC |
Chamber |
awaiting referral request |
civil length of proceedings |
03/04/2012 |
26828/06 |
KURIC and Others v. Slovenia |
SVN |
Grand Chamber |
finished |
the erased |
26/06/2012 |
604/07 |
MANUSHAQE PUTO AND OTHERS v. Albania |
ALB |
Chamber |
awaiting referral request |
non-enforcement of administrative decisions awarding compensation for confiscated property |
31/07/2012 |
40150/09 |
GLYKANTZI v. Greece |
GRC |
Chamber |
awaiting referral request |
length of civil proceedings |
30/10/2012 |
60642/08 |
ALISIC and others v. Bosnia and Herzegovina, Croatia, “the former Yugoslav Republic of Macedonia”, Serbia and Slovenia |
BIH |
Chamber |
awaiting referral request |
foreign currency savings |
06/10/2012 |