1. Introduction
1. Since 2000, the Parliamentary
Assembly has taken a close interest in the implementation of the judgments
of the European Court of Human Rights (hereinafter “the Court” or
“ECtHR”).
![(3)
The
first report was approved by the Committee on Legal Affairs and
Human Rights on 27 June 2000; <a href='https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=16835'>Doc. 8808</a>, rapporteur: Mr Erik Jurgens (Netherlands, SOC). On
the basis of this report, the Assembly adopted <a href='https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=16834'>Resolution 1226 (2000)</a>. Since 2000, the Assembly has adopted ten resolutions
and nine recommendations relating to the implementation of the judgments
of the European Court of Human Rights.](/nw/images/icon_footnoteCall.png)
Whilst
supervising the execution by the Council of Europe member States
of ECtHR judgments is primarily the responsibility of the Committee
of Ministers in accordance with Article 46(2) of the European Convention
on Human Rights (ETS No. 5, “the Convention”), the Assembly has
shown that the monitoring it carries out in this field and the political
influence it exerts can provide great support for the action of
the Committee of Ministers and therefore present an added value.
In particular, the Assembly has systematically called on national
parliaments to be more proactive in the process of implementing
the Court’s judgments.
2. In its latest relevant resolution (
Resolution 2358 (2021)), the Assembly decided to “remain seized of this matter
and to continue to give it priority”.
![(4)
Paragraph 12 of the
resolution.](/nw/images/icon_footnoteCall.png)
Consequently, at its meeting on 19
April 2021, the Committee on Legal Affairs and Human Rights appointed
me again as the sixth rapporteur on this subject, having previously been
appointed for the 10th report following
Mr Venizelos’s departure from the Assembly. The previous rapporteurs
were Messrs Erik Jurgens (Netherlands, SOC), Christos Pourgourides
(Cyprus, EPP/CD), Klaas de Vries (Netherlands, SOC), Pierre-Yves
Le Borgn’ (France, SOC) and Evangelos Venizelos (Greece, SOC). This
report will be the 11th on this subject.
3. With regard to the parameters of this 11th report, as I set
out in my introductory memorandum from October 2021, I focussed
on the implementation of ECtHR judgments in those States having
the highest number of cases pending before the Committee of Ministers;
and the implementation of the most problematic cases, including
interstate cases and Article 18 judgments. Given that the Russian
Federation remains bound to respect the final judgments of the ECtHR
against it notwithstanding its exclusion from the Council of Europe in
2022, I continued to include Russian cases in this report which
are examined in a separate section.
4. The committee held two hearings with experts. The first one
focussed on the implementation of interstate cases and took place
on 7 December 2021 with the participation of Ms Dimitrina Lilovska,
Head of division ad interim, Department for the Execution of Judgments
of the European Court of Human Rights, Council of Europe, and Dr
Isabella Risini, Senior research associate at Ruhr-University Bochum,
visiting professor at Augsburg University, Germany. The second hearing
focussed on the implementation of Article 18 judgments and was held
during the committee meeting on 14 November 2022 with the participation
of Ms Clare Ovey, Head of the Department for the Execution of Judgments
of the European Court of Human Rights, Council of Europe; and Dr
Başak Çalı, Professor of International Law, Co-director of the Centre
for Fundamental Rights, Hertie School, Berlin.
5. In November 2022, I undertook two country visits, to Azerbaijan
and to Romania. I am very grateful to the authorities of those two
countries for facilitating such useful and interesting visits. The
mission reports of these visits have been declassified and are available
to the public.
![(5)
AS/Jur(2023)02
“The Implementation of judgments of the European Court of Human
Rights – 11th report: Information note
following the rapporteurs visit to <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-02-EN.pdf'>Romania</a>”, November 2022; AS/Jur(2023)01 “The Implementation
of judgments of the European Court of Human Rights – 11th report:
Information note following the rapporteurs visit to <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-01-EN.pdf'>Azerbaijan</a>”, November 2022.](/nw/images/icon_footnoteCall.png)
These visits enabled
me to understand the different types of challenges involved in grappling
with the implementation of human rights judgements raising complex
or structural issues, particularly when faced with a significant
caseload. In particular, the visits also enabled a focus on domestic
structures that can help to facilitate the timely and efficient
execution of the judgments of the Court.
6. I also followed the approach of the 10th report by holding
exchanges of views with chairpersons of national delegations of
three countries with a significant number of cases pending implementation.
During its meeting, on 25 January 2023, the committee held an exchange
of views regarding Hungary with the participation of Mr Barna Zsigmond,
Vice-Chairperson of the Hungarian delegation to the Assembly and Mr Dávid
Oravecz, Deputy to the Permanent Representative of Hungary to the
Council of Europe. It also held an exchange of views regarding Türkiye
with the participation of Mr Ahmet Yıldız, Chairperson of the Turkish delegation
to the Assembly, and Mr Hacı Ali Açıkgül, Head of the Department
of Human Rights in the Turkish Ministry of Justice. It then held
an exchange of views relating to Ukraine, with the participation
of Ms Mariia Mezentseva, Chairperson of the Ukrainian delegation
to the Assembly, Ms Iryna Mudra, Vice-Minister of Justice; and Ms Marharyta
Sokorenko, Government Agent before the European Court of Human Rights.
The information documents prepared for these exchanges of views
have been declassified and are available to the public.
![(6)
“The Implementation
of judgments of the European Court of Human Rights – 11th report:
Information notes in preparation of a hearing in relation to <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-06-EN.pdf'>Türkiye
(AS/Jur(2023)06)</a>, <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-04-EN.pdf'>Ukraine
(AS/Jur(2023)04)</a>, and <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-03-EN.pdf'>Hungary
(AS/Jur(2023) 03)”</a>.](/nw/images/icon_footnoteCall.png)
2. 10th report
of the Assembly
7. The Assembly’s 10th report
on the implementation of the judgments of the Court
![(7)
Adopted by the Committee
on Legal Affairs and Human Rights at its meeting on 5 June 2020, <a href='http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=28658&lang=en'>Doc. 15123</a> of 15 July 2020. See also Addendum to the report, <a href='https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=28842'>Doc. 15123
Add</a>. of 26 November 2020.](/nw/images/icon_footnoteCall.png)
noted the impact
of the reform of the system of the European Convention on Human
Rights following the “Interlaken process”, started in 2010: at the
end of 2019, when that report was prepared, the Committee of Ministers
was supervising the implementation of some 5 000 judgments, while
at the end of 2016, when Mr Le Borgn’ was preparing the 9th report,
it was supervising nearly 10 000 judgments.
![(8)
Report on “The implementation
of judgments of the European Court of Human Rights”, Committee on
Legal Affairs and Human Rights, rapporteur: M. Pierre-Yves Le Borgn’
(France, SOC), <a href='https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=23772&lang=en'>Doc. 14340</a> of 12 June 2017, paragraph 6.](/nw/images/icon_footnoteCall.png)
However,
current figures have again increased, with information suggesting
6 256 judgments pending implementation on 1 March 2023.
![(9)
<a href='https://hudoc.exec.coe.int/eng'>HUDOC EXEC</a> website.](/nw/images/icon_footnoteCall.png)
8. The 10th report used the same working methods as the reports
by my predecessors, Messrs Klaas de Vries, Pierre-Yves Le Borgn’
and Evangelos Venizelos, who focused on the nine or ten States with
the largest number of judgments pending before the Committee of
Ministers. Therefore, I analysed in detail the implementation of
the most stubbornly unimplemented judgments against the Russian
Federation, Ukraine, Romania, Türkiye, Azerbaijan, Hungary, Italy,
Bulgaria, and the Republic of Moldova. I also examined judgments
whose implementation entailed particular difficulties due to their
political or legal complexity, that one of my predecessors called
“pockets of resistance”.
![(10)
10th
report, Section 4.](/nw/images/icon_footnoteCall.png)
9. In its
Resolution
2358 (2021), based on the 10th report, the Assembly welcomed a constant
reduction in the number of ECtHR judgments pending before the Committee
of Ministers and the effects of the Interlaken process. It also
welcomed the measures taken by the Committee of Ministers to make
its supervision of the implementation of Court judgments more efficient,
and the synergies that had developed within the Council of Europe
as well as between its bodies and national authorities.
![(11)
Paragraph 3 of the
resolution.](/nw/images/icon_footnoteCall.png)
Nevertheless, the Assembly remained
deeply concerned over the number of persisting cases revealing structural
problems that had been pending before the Committee of Ministers
for more than five years and noted, as regards in particular the
ten countries mentioned in the 10th report, that some of those problems
remained unresolved for over ten years. According to the Assembly,
“this might be due to deeply rooted problems such as persistent
prejudice against certain groups in society, inadequate management
at national level, a lack of necessary resources or political will
or even open disagreement with the Court’s judgment”.
![(12)
Paragraph 4 of the
resolution.](/nw/images/icon_footnoteCall.png)
The Assembly was also “particularly
concerned” by the “increasing legal and political difficulties”
relating to the implementation of the Court’s judgments and noted
that “any national legislative or administrative measure should
not add further obstacles to this process and that member States
were not entitled to legitimise the possibility of not implementing
the Court’s decisions”.
![(13)
Paragraph
5 of the resolution.](/nw/images/icon_footnoteCall.png)
In particular, “the invocation
of technical problems or obstacles which are due, in particular,
to the lack of political will, lack of resources or changes in national
legislation, including the constitution”, should be avoided.
![(14)
Paragraph 7 of the
resolution.](/nw/images/icon_footnoteCall.png)
Moreover, the Assembly was concerned
about the difficulties surrounding the implementation of judgments
in interstate cases or individual cases displaying interstate features.
Condemning once again the delays in the implementation of the Court’s
judgments, it reiterated its call on Council of Europe member States
to implement the Court's judgments swiftly, effectively and fully
and made a number of concrete recommendations in this respect (in particular
by co-operating with the Committee of Ministers and relevant Council
of Europe bodies, submitting action plans, providing effective remedies
at national level, providing sufficient resources to relevant national stakeholders,
reinforcing the role of civil society and instituting parliamentary
structures to monitor compliance with the Convention).
![(15)
Paragraphs 6, 7, 8
and 10 of the resolution.](/nw/images/icon_footnoteCall.png)
The Assembly called
on Council of Europe member States which had not yet ratified Protocols
Nos. 15 (CETS No. 213) and 16 (CETS No. 214) to the Convention to
do so rapidly.
![(16)
Paragraph
11 of the resolution.](/nw/images/icon_footnoteCall.png)
It also called on the Russian
Federation to change the recent amendments to Articles 79 and 125.5.b of
the Constitution in light of the Opinion No. 981/2020 of 18 June
2020 of the European Commission for Democracy through Law (Venice
Commission) “on draft amendments to the Constitution of the Russian
Federation (as signed by the President of the Russian Federation
on 14 March 2020) related to the execution in the Russian Federation
of judgments by the European Court of Human Rights”.
![(17)
Paragraph 9 of the
resolution.](/nw/images/icon_footnoteCall.png)
10. In
Recommendation
2193 (2021), also based on the 10th report, the Assembly welcomed
the measures taken by the Committee of Ministers to fulfil its tasks
arising under Article 46(2) of the Convention and improve the efficiency
of its supervision of the implementation of judgments of the Court.
It made a number of further recommendations to the Committee of
Ministers (such as to adopt interim resolutions, to use the procedures under
Article 46(3) to (5) of the Convention, to give priority to leading
cases pending over five years, to transmit leading cases pending
for over ten years to enhanced supervision procedure, to ensure
greater transparency of its supervision process and a greater role
for applicants, to organise thematic debates, and to continue to develop
synergies between various Council of Europe stakeholders). In particular,
the Assembly recommended that the Committee of Ministers regularly
inform it about those judgments whose implementation revealed “complex
or structural problems” and required legislative action and that
the Committee of Ministers finalise its evaluation of the “Interlaken
process”.
![(18)
Paragraph
2 of the recommendation.](/nw/images/icon_footnoteCall.png)
3. Further
developments
11. In its
reply to the Assembly’s
Recommendation
2193 (2021),
![(19)
Adopted
at the 1407th meeting of the Ministers’ Deputies (16 June 2021), Doc. 15324 of 21 June 2021.](/nw/images/icon_footnoteCall.png)
the Committee of
Ministers indicated that it had finalised its assessment of the
“Interlaken process” in its decision on “Securing the long-term effectiveness
of the system of the European Convention on Human Rights”, adopted
at its 130th Ministerial Session in Athens on 4 November 2020. In
that decision, the Committee of Ministers had welcomed the work undertaken
by the States Parties to the Convention and the effective measures
adopted, in particular by the Court. It had concluded that “(…)
whilst no comprehensive reform of the Convention machinery [was]
now needed, further efforts should be pursued by the Council of
Europe as a whole to ensure that the Convention system can continue
to respond effectively to the numerous human rights challenges Europe
faces, including through the efficient response of the Court to
pending applications”.
![(20)
Ibid.,
paragraph 3.](/nw/images/icon_footnoteCall.png)
The Committee of Ministers identified
a number of steps to be taken in order to pursue those further efforts:
enhancing the efficiency of the process of supervision of execution
of the Court’s judgments, particularly its Human Rights meetings,
by further developing its working methods and the means available
to it; encouraging the development of enhanced synergy with the
Court as well as with the other relevant Council of Europe stakeholders
(in particular with the Assembly and the Commissioner for Human
Rights); and encouraging States Parties to consider establishing, where
not already done so, or strengthening effective, pluralist and independent
national human rights institutions (NHRIs).
![(21)
Ibid., paragraph 4.](/nw/images/icon_footnoteCall.png)
Most
of these measures had already been proposed in the 10th report as
adopted by the Committee on Legal Affairs and Human Rights (AS/Jur)
on 5 June 2020 and later endorsed by the Assembly in its
Recommendation 2193 (2021).
![(22)
See
paragraphs 1, 2.5 and 2.8 of the recommendation.](/nw/images/icon_footnoteCall.png)
12. Further, in its decisions adopted at the 130th Ministerial
Session in November 2020, the Committee of Ministers urged all member
States to ensure that
Recommendation
CM/Rec(2008)2 on “efficient domestic capacity for rapid execution
of judgments of the European Court of Human Rights” be given full
effect.
![(23)
CM/Del/Dec(2020)130/4,
“4. Securing the long-term effectiveness of the system of the European
Convention on Human Rights”, item 8.](/nw/images/icon_footnoteCall.png)
As stressed
in the 14th Annual Report of the Committee of Ministers entitled
“Supervision of the Execution of Judgments and Decisions of the
European Court of Human Rights 2020” (“
Annual
Report 2020”), the Committee of Ministers’ renewed interest in the
issue of the domestic capacity for rapid and efficient execution of
the Court’s judgments is related to two main challenges identified
in practice: “the status and resources of the national co-ordinator”
(namely the Government Agent in the majority of Council of Europe
member States) and the co-ordinator’s capacity in identifying execution
measures and promptly drawing up action plans and reports, in synergy
with competent national authorities (…).”
![(24)
<a href='https://rm.coe.int/2020-cm-annual-report-eng/1680a1f4e8'>Annual
Report 2020</a>, pp. 26-27. These challenges had been identified by
the Steering Committee for Human Rights “Guide to good practice
on the implementation of Recommendation (2008)2 of the Committee
of Ministers on efficient domestic capacity for rapid execution
of judgments of the European Court of Human Rights”, 2017.](/nw/images/icon_footnoteCall.png)
This
is particularly necessary in cases revealing long-standing systemic
and structural problems.
13. As indicated in its reply to the Assembly
Recommendation 2193 (2021), at its 131st Ministerial Session (21 May 2021), the
Committee of Ministers stressed the importance of securing the long-term
effectiveness of the Convention system “in challenging times for
the rule of law and human rights in democratic societies” as well
as the importance of an efficient supervision of the execution of
judgments “in order to ensure the long-term sustainability and credibility
of the Convention system”. It instructed the Ministers’ Deputies
“to examine whether and how to enhance the tools available to the
Committee to supervise cases of non-execution or persistent refusal
to execute the final judgments of the Court” and to examine questions
relating to interstate disputes”
. ![(25)
Doc. 15324 of 21 June 2021, paragraph 5.](/nw/images/icon_footnoteCall.png)
14. Moreover, the German Chairmanship of the Committee of Ministers
(November 2020 – May 2021) held a series of conferences and seminars
devoted to the issue of implementation of the Court’s judgments
and the Court’s interaction with Council of Europe member States’
constitutional courts.
![(26)
<a href='https://rm.coe.int/2020-cm-annual-report-eng/1680a1f4e8'>Annual
Report 2020</a>, p. 8.](/nw/images/icon_footnoteCall.png)
15. Further, Council of Europe co-operation projects have also
been useful in contributing to the execution of ECtHR judgments
by supporting member States in improving relevant legislation, finding
solutions to particularly challenging execution issues, and building
institutional capacity to develop the institutions necessary for
effective and full implementation of ECtHR judgments. In this context,
it is worth highlighting the ongoing work on a multilateral project
entitled “Support to efficient domestic capacity for the execution
of ECtHR judgments (Phase 1)”. This project aims to support member
States in reinforcing their capacity for full, effective and prompt
execution of ECtHR judgments. Given the findings from the hearings
and country visits undertaken during this report, I strongly welcome
this initiative and urge member States to fully make use of it.
4. Recent
statistics and other data
16. According to the Annual Report
2020, as of 31 December 2020, 5 233 cases were pending before the Committee
of Ministers (at different stages of execution), one of the lowest
figures since 2006.
![(27)
<a href='https://rm.coe.int/2020-cm-annual-report-eng/1680a1f4e8'>Annual
Report 2020</a>, pp. 12 and 37. In 2019, this figure was almost the
same – 5 231, while in 2006 – 5 523 and in 2005 – 4 322. The report
dates from March 2021.](/nw/images/icon_footnoteCall.png)
The following ten countries
had the largest number of pending cases (from the highest to the
lowest number): Russian Federation (1 789),Türkiye (624), Ukraine
(567), Romania (347), Hungary (276), Azerbaijan (235), Italy (184), Bulgaria
(166), the Republic of Moldova (154) and Greece (120); they were
followed by Poland (89), Croatia (73) and Georgia (53). The remaining
Council of Europe member States had fewer than fifty cases pending before
the Committee of Ministers.
17. According to the Annual Report 2021, as of 31 December 2021,
there was a similarly low number of cases pending before the Committee
of Ministers (at different stages of execution) – 5 533.
![(28)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021</a>, pp. 11 and 37.](/nw/images/icon_footnoteCall.png)
However there had
been a significant increase (by 40%) of judgments delivered by the
Court. The following ten countries had the largest number of pending
cases (from the highest to the lowest number): Russian Federation
(1 942), Ukraine (638), Türkiye (510), Romania (409), Azerbaijan
(271), Hungary (265), Italy (170), the Republic of Moldova (170),
Bulgaria (164), and Poland (97); they were followed by Greece (93),
Croatia (79), Serbia (76), the Slovak Republic (63), Georgia (63),
and Armenia (50). The number of States having more than 50 pending judgments
therefore increased from 13 in 2020 to 16 in 2021. In this report,
I shall focus in particular on the top six countries, which together
have 73% of all judgments pending execution as of 31 December 2021.
![(29)
The <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a>, issued after this explanatory memorandum was drafted,
shows 6 081 cases pending execution and that the following ten countries
have the largest number of pending cases: Russian Federation (2 352), Ukraine
(716), Romania (509), Türkiye (480), Azerbaijan (285), Hungary (219),
Italy (187), Bulgaria (182), Republic of Moldova (153) and Poland
(125).](/nw/images/icon_footnoteCall.png)
18. It is also interesting to note the number of applications
pending before the Court, whose statistics give a slightly different
impression than that given by those of the Committee of Ministers.
As of 31 December 2020, more than half of the approximately 62 000
applications pending before the Court came from the three following States:
the Russian Federation (22%), Türkiye (19%) and Ukraine (16.8%).
They were followed by Romania (12.2%), Italy (5.6%), Azerbaijan
(3.3%), Serbia (2.8%), Armenia (2.3%), Poland (1.9%) and the Republic
of Moldova (1.7%). As of 31 December 2022, this ranking has only
slightly changed with an increase to 74 650 pending applications:
applications against Türkiye increasing to 26.9% of the overall
number, those against the Russian Federation amounting to 22.4%,
and those against Ukraine to 13.9%, thus exceeding 60% of the total number
of pending applications between them.
![(30)
<a href='https://www.echr.coe.int/Pages/home.aspx?p=reports&c='>Pending
applications</a>.](/nw/images/icon_footnoteCall.png)
They were followed by: Romania (6.4%),
Italy (4.8%), Greece (3.8%), Poland (3.3%), Azerbaijan (2.9%), Serbia
(2.6%), and Armenia (1.7%) (the remaining 37 States represented
11.3% of the overall number of pending applications).
![(31)
<a href='https://www.echr.coe.int/Pages/home.aspx?p=reports&c='>Pending
applications</a>.](/nw/images/icon_footnoteCall.png)
These statistics, which concern applications
on which the Court has not yet ruled, often illustrate the extent
of structural problems at national level – reluctance in implementation
and/or lack of political will – problems which should have been
resolved in the context of the execution of previous Court judgments.
![(32)
<a href='https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=23772&lang=en'>Doc. 14340,</a> op. cit., paragraph 7.](/nw/images/icon_footnoteCall.png)
Indeed, the
majority of States having the highest number of unimplemented judgments
were also amongst those States having the highest number of applications
pending before the Court thereby revealing resistance to the implementation
of Court judgments (currently including Türkiye, the Russian Federation,
Ukraine, Romania, Italy, Azerbaijan and Poland).
19. Out of the 5 533 cases pending before the Committee of Ministers
at the end of 2021, 1 300 were “leading cases”, namely cases identified
as revealing new structural and/or systemic problems, identified
either by the Court or the Committee of Ministers
![(33)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021</a>.](/nw/images/icon_footnoteCall.png)
(a very slight increase from previous
years). Out of the 1 300 leading cases, 343 were under “enhanced
supervision” of the Committee of Ministers, 897 were under “standard
supervision”, and 60 were awaiting classification. As concerns the
length of the execution process for leading cases, 301 had been
pending for less than two years, 291 for between two and five years
and 648 for more than five years.
![(34)
The <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a>, issued after this explanatory memorandum was drafted,
shows that out of 6 081 cases pending execution, 1 229 were leading
cases, of which 367 under “enhanced supervision”, 904 under “standard supervision”,
and 28 awaiting classification.](/nw/images/icon_footnoteCall.png)
20. As regards leading cases under “enhanced supervision”, these
concerned mainly actions of security forces (12%), lawfulness of
detention and related issues (10%), specific situations involving
the right to life and prohibition of ill-treatment (8%), conditions
of detention and medical care (8%), length of judicial proceedings (8%),
other interferences with property rights (4%), enforcement of domestic
judicial decisions (3%), lawfulness of expulsion or extradition
(4%), freedom of assembly and association (4%), and freedom of expression
(5%).
![(35)
Annual Report
2021, p. 62.](/nw/images/icon_footnoteCall.png)
Also, 78% of the leading cases concerned
either the Russian Federation (16%), Ukraine (15%), Türkiye (11%), Romania
(10%), Italy (7%), Azerbaijan (6%), Bulgaria (6%), Hungary (4%),
or Poland (3%).
21. In 2021, the Committee of Ministers closed 1 122 cases (including
170 “leading” cases, out of which 11 had been under “enhanced supervision”)
following the adoption by respondent States of individual measures and
a wide range of legislative and other general measures.
![(36)
The <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a>, issued after this explanatory memorandum was drafted,
shows 880 cases as having been closed during 2022, including 200
leading cases, of which 18 had been under the enhanced supervision.](/nw/images/icon_footnoteCall.png)
22. As stressed in the Annual Reports of 2020 and 2021, significant
progress has been achieved with the closure of the issue of individual
measures in 2020 in the three cases against Azerbaijan concerning
abusive arrests and detention (in the former group of cases
Ilgar Mammadov
) as
well as the judgments of the Supreme Court of Azerbaijan in November
2021 quashing the convictions of a further four applicants in the
Mammadli group of cases.
![(38)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021</a>, p. 12.](/nw/images/icon_footnoteCall.png)
23. For 2020, the Annual Report welcomed the closure of the case
Baralija v. Bosnia and Herzegovina ![(39)
Application No. 30100/18,
judgment of 29 October 2019. The Committee of Ministers closed the
examination of this case by Resolution CM/ResDH(2020)240 of 1 December
2020.](/nw/images/icon_footnoteCall.png)
concerning voting rights in local elections.
![(40)
Annual Report 2020,
p. 12. For major advances in other cases examined by the Committee
of Ministers, see Annual Report 2020, pp. 24-26.](/nw/images/icon_footnoteCall.png)
For
2021, the Annual Report in particular noted positive developments
where a number of respondent States adopted measures, including
legislative measures, in order to execute the Court’s judgments,
such as the amendment of the Judicial Code in Belgium enhancing freedom
of religion in courtrooms; adoption of a new law in France introducing
a judicial preventive remedy concerning inadequate conditions of
detention (
J.M.B. and Others v. France);
statutory and case law developments in Italy enhancing safeguards
of administrative detention of migrants in initial reception centres (
Khalifa and Others v. Italy); the
Italian contaminated blood compensation payments case (
M.C. and Others v. Italy); measures
taken by Lithuania to improve investigations into hate crimes and
hate speech, notably against LGBTI persons (
Beizaras
and Levickas v. Lithuania); steps taken in relation to
defamation laws in Ukraine (
Siryk v.
Ukraine); and measures taken in relation to medical negligence
and healthcare in Türkiye (
Oyal v. Turkey,
Şentürk v. Turkey, Asiye Genç v. Turkey and
Zafer Öztürk v. Turkey).
![(41)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021</a>, pp. 12-15.](/nw/images/icon_footnoteCall.png)
24. However, the Annual Report 2021 noted continuing challenges
for the execution of judgments, such as an increasing number of
new judgments from the Court, as well as serious delays in the submission
of information by member States that is vital for cases to be closed
(for example action plans, action reports and information on the
payment of just satisfaction).
![(42)
The <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a>, issued after this explanatory memorandum was drafted,
shows similar challenges and records progress in the closure of
cases notably relating to: effective investigations into war crimes
during the Croatian Homeland War (1991-1995); lawfulness of judicial
appointments to the Icelandic Court of Appeal; and elimination of discriminatory
provisions relating to children’s surnames in Italy.](/nw/images/icon_footnoteCall.png)
25. The Annual Reports of 2020 and 2021 revealed an increase in
co-operation between the Committee of Ministers on the one hand,
and civil society and national human rights institutions (NHRIs)
on the other. In 2021, the Committee of Ministers received an unprecedented
number of submissions from NGOs/NHRIs: 206 communications concerning
27 Council of Europe member States (compared to 133 in 2019 concerning
24 member States).
![(43)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021</a>, p. 30.](/nw/images/icon_footnoteCall.png)
Moreover, 2020 saw the first
ever submission by the Council of Europe Commissioner for Human
Rights,
![(44)
In the
cases Tysiąc v. Poland, R. R. v. Poland, and P. and S. v. Poland,
concerning restrictions in access to lawful abortion.](/nw/images/icon_footnoteCall.png)
swiftly
followed by four more in 2020
![(45)
In
the cases: Kavala v. Turkey (concerning the detention of the applicant,
a prominent civil activist, in violation of Articles 5 and 18 of
the Convention), <a href='about:blank'>Bălșan v. Romania</a> (concerning violation of the prohibition of torture
and of inhuman and degrading treatment), <a href='about:blank'>Yordanova and others v. Bulgaria</a> (forced eviction of Roma) and <a href='about:blank'>D.H. and Others v. the Czech Republic</a> (discrimination in the enjoyment of Roma children’s
right to education). See here for the list of those <a href='https://www.coe.int/en/web/commissioner/rule-9'>communications.</a>](/nw/images/icon_footnoteCall.png)
and a further two in 2022.
![(46)
In the cases: <a href='https://www.coe.int/en/web/commissioner/-/proposed-united-kingdom-legislation-on-the-legacy-of-the-troubles-in-northern-ireland-raises-human-rights-concerns'>McKerr
and Others v. the United Kingdom</a> (concerning several shortcomings in the investigation
of deaths during the Troubles in Northern Ireland: <a href='https://rm.coe.int/submission-by-the-council-of-europe-commissioner-for-human-rights-unde/1680a7b336'>see
the communication</a>) and <a href='https://www.coe.int/en/web/commissioner/-/hungarian-authorities-should-refrain-from-arbitrary-removals-of-refugees-asylum-seekers-and-migrants-to-serbia-and-ensure-access-to-a-fair-and-effecti'>Ilias
and Ahmed v. Hungary</a> (concerning the expulsion of applicants from Hungary
to Serbia without carrying out a thorough examination of the risk
of ill-treatment: <a href='https://rm.coe.int/submission-by-the-council-of-europe-commissioner-for-human-rights-unde/1680a7a4d0'>see the communication</a>).](/nw/images/icon_footnoteCall.png)
This possibility had been added
to Rule 9 of the Ministers’ Deputies’ Rules for the supervision
of the execution of judgments and of the terms of friendly settlements
on 18 January 2017.
![(47)
By
a decision adopted at the 1275th meeting, CM/Del/Dec(2017)1275/4.1.](/nw/images/icon_footnoteCall.png)
As
the Commissioner for Human Rights conducts regular monitoring of
the human rights situation in Council of Europe member States, these
communications are particularly valuable.
26. As stressed in the Annual Report 2020, three categories of
ECtHR judgments pose particular challenges; taken together, these
categories represented approximately 53% of the cases which were examined
by the Committee of Ministers during its Human Rights (DH) meetings
in 2020.
![(48)
Annual
Report 2020, p. 12.](/nw/images/icon_footnoteCall.png)
Given the importance of these
categories of cases, I have focussed on these during my work. They
are:
- Interstate cases and other
cases linked to post-conflict situations or unresolved conflicts;
- Article 18 judgments,
![(49)
Article 18 of the Convention:
“The restrictions permitted under this Convention to the said rights
and freedoms shall not be applied for any purpose other than those
for which they have been prescribed”.](/nw/images/icon_footnoteCall.png)
concerning
abusive limitations of rights and freedoms;
- cases revealing long-standing “systemic and structural
problems” identified by the Court’s judgments, or a lack of will
and culture to abide by its judgments.
5. Interstate
cases and other cases linked to post-conflict situations or unresolved
conflicts
27. Whether cases originate in
individual or interstate applications, the implementation of interstate
cases or cases linked to post-conflict situations or unresolved
conflicts in general takes time and requires a “concerted engagement”
by the Committee of Ministers and its Secretariat, as well as the
member States concerned. This process can be difficult due to the
“prominent political dimensions at national or international level
and the fact that they are linked to traumatic armed violence requiring
a long period of healing”.
![(50)
Annual
Report 2020, pp. 12 and 13.](/nw/images/icon_footnoteCall.png)
In this context,
the Annual Report 2020 mentions as a “success story” the closure
(partial or full) of the
Skendžić and
Krznarić v. Croatia ![(51)
Application No. 16212/08,
judgment of 20 January 2011.](/nw/images/icon_footnoteCall.png)
group, concerning
ineffective investigations into war crimes, and the
Sanader v. Croatia ![(52)
Application No. 66408/12,
judgment of 12 February 2015. Its examination was closed by the
Committee of Ministers’ Resolution CM/ResDH(2020)250 of 3 December
2020.](/nw/images/icon_footnoteCall.png)
case concerning conviction
in absentia for war crimes in Croatia.
However, a number of challenging cases remain.
28. It should be noted in this context that the number of interstate
applications lodged before the Court has recently significantly
increased and therefore one can anticipate interstate cases posing
a challenge for the implementation of judgments for the years to
come.
![(53)
The website
of the ECtHR contains a recent <a href='https://www.echr.coe.int/Pages/home.aspx?p=caselaw/interstate&c='>list
of interstate cases.</a>](/nw/images/icon_footnoteCall.png)
There are currently 19 interstate
applications pending before the Court, 12 of which have been lodged
since 2020.
![(54)
Liechtenstein
v. the Czech Republic (No. 35738/20); Armenia v. Azerbaijan (No.
42521/20); Armenia v. Turkey (No. 43517/20); Azerbaijan v. Armenia
(No. 47319/20); Ukraine v. Russian Federation (IX) (No. 10691/21);
Russia v. Ukraine (No. 36958/21); Armenia v. Azerbaijan (II) (No. 33412/21);
Armenia v. Azerbaijan (III) (No. 42445/21); Armenia v. Azerbaijan
(IV) (No. 15389/22); Azerbaijan v. Armenia (II) (No. 39912/22);
Ukraine v. Russian Federation (X) (No. 11055/22); the Netherlands
v. Russia (No. 28525/20).](/nw/images/icon_footnoteCall.png)
Many of these involve
different cases featuring the same countries.
![(55)
Georgia v. Russian
Federation (II) (Just satisfaction) (No. 38263/08); Ukraine v. Russian
Federation (re Crimea) (No. 20958/14); Ukraine v. Russian Federation
(VII) (No. 38334/18); Ukraine and the Netherlands v. Russian Federation (nos.
8019/16, 43800/14, 28525/20 and 11055/22); Georgia v. Russian Federation
(IV) (No. 39611/18); Ukraine v. Russian Federation (VIII) (No. 55855/18);
Armenia v. Azerbaijan (No. 42521/20); Armenia v. Turkey (No. 43517/20);
Azerbaijan v. Armenia (No. 47319/20); Ukraine v. Russian Federation
(IX) (No. 10691/21); Russia v. Ukraine (No. 36958/21); Armenia v. Azerbaijan
(II) (No. 33412/21); Armenia v. Azerbaijan (III) (No. 42445/21);
Armenia v. Azerbaijan (IV) (No. 15389/22); Azerbaijan v. Armenia
(II) (No. 39912/22). See <a href='https://www.echr.coe.int/Pages/home.aspx?p=caselaw/interstate&c='>the
ECtHR website</a>.](/nw/images/icon_footnoteCall.png)
To put this in context, the Court
and the former Commission only ever completed 25 interstate cases
(including those struck off the list).
![(56)
Latvia v. Denmark (No.
9717/20); Slovenia v. Croatia (No. 54155/16); Ukraine v. Russian
Federation (III) (No. 49537/14); Georgia v. Russian Federation (III)
(No. 61186/09); Georgia v. Russia (I) (No. 13255/07); Denmark v.
Turkey (No. 34382/97); Cyprus v. Turkey (IV) (No. 25781/94); Denmark,
France, Norway, Sweden & the Netherlands v. Turkey (nos. 9940/82
to 9944/82); Cyprus v. Turkey (III) (No. 8007/77); Cyprus v. Turkey
(I) and (II) (Nos. 6780/74 and 6950/75); Ireland v. United Kingdom
(II) (No. 5451/72); Ireland v. United Kingdom (I) (No. 5310/71);
Denmark, Norway, Sweden & the Netherlands v. Greece (II) (No.
4448/70); Denmark, Norway, Sweden & the Netherlands v. Greece
(I) (nos. 3321/67 to 3323/67 and 3344/67); Austria v. Italy (No.
788/60); Greece v. United Kingdom (II) (No. 299/57); Greece v. United Kingdom
(I) (No. 176/56). Of these <a href='https://www.echr.coe.int/Pages/home.aspx?p=caselaw/interstate&c='>25
applications</a>, 17 (68%) involved either Türkiye or Greece as one of
the parties to the proceedings.](/nw/images/icon_footnoteCall.png)
Whilst pending
applications will not necessarily result in judgments requiring
implementation by a State, or supervision by the Committee of Ministers,
one can nevertheless surmise that given the growth in such cases
it would be prudent for the Council of Europe to develop tools for
dealing with interstate cases and for facilitating the implementation
of the relevant judgments.
29. In the hearing on 7 December 2021 (see the summary in the
Appendix), the challenges posed by interstate cases were clear,
as well as the importance of perseverance and a deeper understanding
that as long as there are unresolved conflicts between member States,
interstate cases will remain and their judgments will remain unimplemented
precisely because of a lack of political will. Europe must become
a space of peace and security free from interstate disputes and
conflicts and greater thought should perhaps be given to developing
the Council of Europe’s focus on these challenges. Numerous individual
applications are linked to armed conflicts, and it is therefore
important to cover such cases as well and not to lose sight of the individuals
affected by a conflict situation. The below cases illustrate the
sorts of challenges in dealing with interstates cases – Cyprus v. Turkey; Georgia v. Russia; Catan and Others v. Moldova and Russia; Mozer v. Moldova and Russia; and
cases relating to the situation in Nagorno-Karabakh.
5.1. Cyprus
v. Turkey and cases related to the situation in the part of Cyprus
where Türkiye exercises effective control
31. In the
Cyprus v. Turkey (just
satisfaction) judgment,
![(65)
<a href='https://hudoc.echr.coe.int/eng'>Cyprus v.
Turkey (just satisfaction)</a>.](/nw/images/icon_footnoteCall.png)
the
Grand Chamber ruled that Türkiye was to pay the Government of Cyprus
30 million euros in respect of non-pecuniary damage suffered by
the relatives of missing persons and 60 million euros in respect
of non-pecuniary damage (not concerning property rights) suffered
by the enclaved Greek Cypriot residents of the Karpasia/Karpas peninsula.
The Court indicated that these amounts should be distributed by
the Government of Cyprus to the individual victims under the supervision
of the Committee of Ministers. In September 2021, the Committee
of Ministers adopted Interim Resolution
CM/ResDH(2021)201 strongly urging the Turkish authorities to abide by
their unconditional obligation and pay the just satisfaction awarded
by the Court in 2014 in this case, together with the default interest
accrued, without further delay. Notwithstanding further decisions
in 2022 and 2023 deploring the absence of a response to this interim
resolution, the just satisfaction remains unpaid.
32. I set out the status of implementation in this case in the
information note published to facilitate the exchange of views of
the Committee on Legal Affairs and Human Rights on Türkiye in January
2023.
![(66)
AS/Jur(2023)06,
op. cit., paragraphs 39-45.](/nw/images/icon_footnoteCall.png)
33. In March 2023, the Committee of Ministers also examined the
issue of missing Greek Cypriots and, whilst acknowledging the progress
that had been made since 2001, reiterated its call on the Turkish
authorities to continue to ensure that the Committee on Missing
Persons (CMP) has unhindered access to all areas, and information
on any places, where remains might be found and for the continuation
of the investigations conducted by the Missing Persons Unit. The
Committee furthermore examined the related individual case Varnava and Others v. Turkey. In
this case, the Committee also insisted again firmly on the unconditional obligation
of Türkiye to pay without further delay the just satisfaction awarded
by the Court in 2019.
34. The
Xenides-Arestis group
of cases
v. Turkey ![(67)
Xenides-Arestis v.
Turkey (Application No. 46347/99) – in respect of which the payment
of just satisfaction has been due since 2007.](/nw/images/icon_footnoteCall.png)
concerns
33 individual cases regarding interference with property rights
relating to properties in the part of Cyprus under the effective
control of Türkiye where payment of just satisfaction is still outstanding.
In 2021, the Committee of Ministers decided to close the supervision
of the execution of the judgments in the cases of
Alexandrou and
Eugenia Michaelidou Developments Ltd and
Michael Tymvios and adopted a final
resolution. The general measures required in response to the shortcomings
found by the Court in these cases continue to be examined within
the framework of
Cyprus v. Turkey.
The Committee of Ministers, when last examining this group in 2022,
instructed the Secretariat, if the situation concerning the payment
of just satisfaction remained unchanged, to prepare a draft interim
resolution on the payment of the just satisfaction, for consideration
by the Committee at its next examination.
35. The Committee of Ministers also examined the Kakoulli and Isaak groups
of cases concerning Türkiye, relating to violations of the right
to life in respect of individuals killed having crossed the ceasefire
line. In the last examination, as regards individual measures, the
Committee requested additional information in respect of the competent
authorities’ conclusion that the security forces acted lawfully
and on the possibility for new investigations in some cases. As
regards general measures, the Committee of Ministers welcomed the message
of zero tolerance of police ill-treatment delivered by the competent
Attorney General and noted with interest the introduction of a possibility
to remove from office a police officer following a conviction to
a prison sentence for excessive use of force, as well as the introduction
of a new criminal offence in the Criminal Code on excessive use
of force.
5.2. Georgia
v. Russia ![(68)
There
is also a more recent interstate case, Georgia v. Russia (II), which
concerns various violations of the Convention in the context of
the armed conflict between Georgia and Russia in August 2008.](/nw/images/icon_footnoteCall.png)
36. Georgia
v. Russia (I),
![(69)
Application
No. 13255/07, Grand Chamber judgments of 3 July 2014 (on the merits)
and 31 January 2019 (just satisfaction).](/nw/images/icon_footnoteCall.png)
originates
in the political tensions between the two countries in the summer
of 2006 and concerns the arbitrary arrest, detention and expulsion
from the Russian Federation of a large number of Georgian nationals
in 2006 and 2007 (violations of Article 4 of Protocol No. 4 (ETS
No. 46) and of Articles 3, 5(1)(4), 13 and 38 of the Convention).
In relation to general measures, in February 2022 the Russian authorities
submitted an action plan (DH-DD(2022)211). According to the action
plan, a draft law had been developed to allow the individual circumstances
of foreign nationals to be considered before expulsion and to establish
better conditions of detention for vulnerable categories. The Committee
of Ministers evaluated the changes positively but considered that
“those developments alone cannot fully respond to the root causes
of the problem raised in the judgment.”
![(70)
Interim Resolution
CM/ResDH(2022)146, 10 June 2022.](/nw/images/icon_footnoteCall.png)
37. In its just satisfaction judgment, the European Court of Human
Rights held that, within three months, the Russian Federation was
to pay the Government of Georgia 10 million euros in respect of
non-pecuniary damage suffered by the group of at least 1 500 Georgian
nationals, who were victims of the violations of the Convention.
The Court indicated that these amounts should be distributed by
the Government of Georgia to the individual victims under the supervision
of the Committee of Ministers. The deadline for payment expired on
30 April 2019 and Russia has raised various arguments seeming to
contest this award of just satisfaction. There was some hope of
a breakthrough in 2021. An innovative approach was proposed, whereby
the Russian Federation would pay the just satisfaction and accrued
interest into a Council of Europe bank account. The sums would be
held in a fiduciary capacity until details of the distribution mechanism
were provided to the Committee of Ministers by the Georgian authorities
and approved by it in a decision authorising the sums to be transferred
to Georgia. In December 2021, the Committee of Ministers noted with
satisfaction that the Secretary General of the Council of Europe
and the Georgian authorities had signed a memorandum of understanding
to this end, and looked forward also to the swift signature of the
memorandum of understanding by the Russian authorities and the payment
of the funds to the Council of Europe bank account held in escrow in
the shortest possible time-frame and in any event by the end of
the year. On 17 December 2021, the Russian Government agent also
signed the memorandum of understanding, which was transmitted to
the Secretary General. Unfortunately, however, the payment, as requested
by the Committee of Ministers and required by the memorandum of
understanding, was not made. In its interim resolutions of June
and December 2022, the Committee of Ministers firmly reiterated
the unconditional nature of the obligation in Article 46(1) of the Convention
to pay the just satisfaction awarded by the Court and deeply deplored
the continued lack of payment.
![(71)
Interim Resolution
CM/ResDH(2022)146, 10 June 2022; Interim Resolution CM/ResDH(2022)354,
8 December 2022.](/nw/images/icon_footnoteCall.png)
5.3. The
situation in the Transnistrian region of the Republic of Moldova
– the Catan and Mozer cases
38. Catan
and Others v. Moldova and Russia,
![(72)
Catan and Others v.
Moldova and Russia, Application Nos. 43370/04, 8252/05 and 18454/06,
judgment of 19 October 2012. In 2018, the Court issued another judgment
– Bobeico and Others v. Russia (Application No. 30003/04, judgment
of 23 October 2018) – finding the same kind of Convention violation
for another group of children.](/nw/images/icon_footnoteCall.png)
concerns the violation of the right
to education of children or parents of children from Latin-script
schools located in the Transnistrian region of the Republic of Moldova.
The Court found that the Russian Federation exercised effective
control over the Transnistrian region of Moldova during the period
in question and the Russian Federation incurred responsibility under
the Convention for the violation. Again, this is a case where the
Russian Federation sought to contest the judgment and responsibility for
implementing the judgment, notwithstanding the final binding judgment
of the ECtHR.
39. Despite interim resolutions, problems remain. The Committee
of Ministers considered the case in 2021 and deeply deplored that,
some nine years after the judgment became final, the Russian authorities
had failed to provide the Committee with any information on the
concrete measures taken or foreseen to execute the judgments in
the group to which this case belongs. The Committee of Ministers
took the unusual step of instructing the Secretariat to prepare
an analysis of the measures required, in the light of the ECtHR
findings and the current factual conditions concerning the functioning
of the Latin-script schools. Although unusual, the instructions
given to the Secretariat reflect the Committee of Ministers’ recognition
that measures are needed to implement Court judgments. In December
2022, the Committee of Ministers noted that after ten years the Russian
authorities continue to fail to pay the just satisfaction and to
provide the Committee with an action plan or to comply with the
final binding judgment of the Court, contrary to Article 46(1).
![(73)
Decision CM/Del/Dec(2022)1451/H46-30
– 8 December 2022.](/nw/images/icon_footnoteCall.png)
40. Mozer v. Moldova and Russia,
![(74)
Application No. <a href='https://hudoc.echr.coe.int/eng'>11138/10</a>, 23 February 2016.](/nw/images/icon_footnoteCall.png)
and 42 other cases, concern various
violations of the Convention which took place in the Transnistrian
region of the Republic of the Moldova between 1997 and 2016. The
Court maintained its previous findings that Russia continued to
exercise effective control and a decisive influence over the “MRT
(Moldavian Republic of Transnistria) authorities”. Some of the applicants
received a letter dated 4 August 2022 from the Russian authorities
stating that these decisions could not be executed because they contravene
the constitutional foundations of the Russian Federation.
![(75)
Secretariat of the
Committee of Ministers – DH-DD(2022)1227, 10 November 2022, submitted
on 24 October 2022.](/nw/images/icon_footnoteCall.png)
In a decision of 8 December
2022, the Committee of Ministers reiterated its grave concern over
the absence of any action plan or report in this group of cases
and firmly urged the Russian authorities to provide relevant documents,
setting out concrete measures to execute the judgments.
![(76)
Decisions – CM/del/Dec(2022)1451/H46-34,
Ministers’ Deputies, 1451st meeting,
8 December 2022.](/nw/images/icon_footnoteCall.png)
5.4. Cases
relating to the situation in Nagorno-Karabakh
41. Since June 2015, the Committee
of Ministers has been examining the implementation of two judgments relating
to the military conflict between Armenia and Azerbaijan in Nagorno-Karabakh
between 1988 and 1994:
Chiragov and Others
v. Armenia ![(77)
Application
No. 13216/05, Grand Chamber judgments of 16 June 2015 (on the merits)
and of 12 December 2017 (on just satisfaction). The <a href='https://hudoc.exec.coe.int/eng'>case notes</a> contain the latest information on the state of implementation.](/nw/images/icon_footnoteCall.png)
and
Sargsyan v. Azerbaijan.
![(78)
Application No. 40167/06,
Grand Chamber judgments of 16 June 2015 (on the merits) and of 12
December 2017 (on just satisfaction).](/nw/images/icon_footnoteCall.png)
The
Chiragov and Others judgment concerns Azerbaijani
nationals who were forced to flee from their homes in Lachin at
the beginning of the conflict, and were consequently denied access
to their property and homes as well as any redress remedy (continuing violations
of Article 1 of the Additional Protocol to the Convention, Articles
8 and 13 of the Convention). The Court found that Armenia “exercised
effective control over Nagorno-Karabakh and the surrounding territories”, including
the district of Lachin, and that the matters complained of “fell
within the jurisdiction of that State”.
![(79)
Paragraph 186 of the
Chiragov and Others judgment.](/nw/images/icon_footnoteCall.png)
The
Sargsyan judgment concerns an Armenian
refugee who, because of the conflict, was forced to leave his home
in Gulistan, over which, according to the Court, Azerbaijan had
the “internationally recognised jurisdiction”. The Court accepted
the Azerbaijani authorities’ refusal to grant civilian access to
the village because of safety considerations, but criticised the
lack of measures aimed at restoring the applicant’s rights in respect
of his property and home and the lack of any compensation mechanism
(also continuing violations of Article 1 of the Additional Protocol
to the Convention, Articles 8 and 13 of the Convention). In both
judgments, the Court held that “pending a comprehensive peace agreement
it would appear particularly important to establish a property claims
mechanism, which should be easily accessible and provide procedures
operating with flexible evidentiary standards, allowing the applicants
and others in their situation to have their property rights restored
and to obtain compensation for the loss of their enjoyment”.
![(80)
Paragraph 199 of the
Chiragov and Others judgment and paragraph 238 of the Sargsyan judgment.](/nw/images/icon_footnoteCall.png)
In
the just satisfaction judgments in both cases, the Court awarded
each applicant a just satisfaction of 5 000 euros for pecuniary
(loss of income and increased living expenses) and non-pecuniary
damage. The just satisfaction awarded by the Court in 2017 has still
not been paid, although the Secretariat has been working on innovative
solutions including a memorandum of understanding to pay the just
satisfaction through a Council of Europe bank account.
42. In addition to the more regular interstate cases, a significant
proportion of Azerbaijan’s ECtHR cases pending implementation relate
to the consequences of the conflict. Many of these cases relate
to accommodation for internally displaced persons in Azerbaijan,
under the
Mirzayev Group.
![(81)
<a href='https://hudoc.echr.coe.int/eng'>Mirzayev v. Azerbaijan</a> (2009).](/nw/images/icon_footnoteCall.png)
These cases concern people
who were forced to leave their homes due to the conflict, many of
whom moved into apartments belonging to others (there are over 500
domestic cases that still require execution). These cases make up around
40% of Azerbaijan’s overall unimplemented cases. However, there
are also other cases relating to the conflict. During my visit to
Azerbaijan, I heard of the progress in some areas, but that due
to the sensitivity of such matters, and concerns over reciprocity,
progress was not as fast as it might have been for a less politically sensitive
matter. In my information note on the visit, I suggested that it
would be useful to consider how co-operation can be improved with
Armenia over human rights issues arising from the conflict. I would
also encourage Azerbaijan to take action to resolve matters relating
to internally displaced persons – if this group of cases were resolved
this would reduce the overall statistics for unimplemented Azerbaijani
cases by around 40%. This would enable Azerbaijan to deal with the
unimplemented judgments which pertain to serious domains of democracy
and the rule of law.
6. Article 18 judgments, concerning abusive
limitations of rights and freedoms
43. According to the Annual Report
2021, the number of Article 18 judgments has been increasing and,
as of end 2021, 13 such cases concerning five States (Azerbaijan,
Georgia, Russian Federation, Türkiye and Ukraine) were pending before
the Committee of Ministers.
![(82)
The <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a>, issued after this explanatory memorandum was drafted,
identifies 13 such cases concerning Azerbaijan, Bulgaria, Georgia,
the Russian Federation, Türkiye and Ukraine.](/nw/images/icon_footnoteCall.png)
They
concern primarily the arrest, detention and, in some cases, conviction
of government critics, civil society activists, human-rights defenders
and politicians, in many cases involving criminal prosecutions for
charges unsupported by evidence and where the ulterior motive is
to silence or punish the applicant and discourage other activists
or critics. These are: the
Mammadli v.
Azerbaijan group of cases,
Lutsenko v. Ukraine, ![(84)
Application No. 6492/11,
judgment of 3 July 2012.](/nw/images/icon_footnoteCall.png)
and
Tymoshenko v. Ukraine,
Merabishvili
v. Georgia,
Kavala v. Turkey,
Selahattin Demirtaş v. Turkey (No. 2),
Navalnyy v. Russia ![(89)
Application No. 29580/12,
judgment of 15 November 2018 (Grand Chamber).](/nw/images/icon_footnoteCall.png)
and
Navalnyy (No. 2) v. Russia. ![(90)
Application No. 43734/14,
judgment of 9 April 2019.](/nw/images/icon_footnoteCall.png)
The
10th report examined in detail the implementation of the judgment
Ilgar Mammadov v. Azerbaijan, which
was subject to an Article 46(4) judgment, and other cases from this
(former) group (now called the
Mammadli group).
![(91)
10th report, Section
4.1.](/nw/images/icon_footnoteCall.png)
It is welcome that some of these cases could
now be closed. I have set out some of them in further detail below
to illustrate the types of issues and challenges.
44. Violations of Article 18 of the Convention deny
par excellence the very gist of
democracy and are regarded as particularly serious given that they
relate to the purposive misuse of power. They “require special attention
since, not only are they typically linked to systemic problems at
national level but because they also, by their nature, have a prominent
political dimension which may create barriers to swift execution”.
![(92)
Annual Report 2020,
p. 12.](/nw/images/icon_footnoteCall.png)
According to the Committee of Ministers’
established practice, the execution of such cases would require
that all the negative consequences of the abusive criminal proceedings
for the applicant be erased (the principle of
restitutio
in integrum) and that the respondent State take measures
to prevent any repetition of abuses of power, and, if need be, strengthen
the independence of the judiciary and the prosecuting authorities.
![(93)
Annual Report 2021,
p. 17.](/nw/images/icon_footnoteCall.png)
45. A summary of the hearing held on 14 November 2022 (see the
Appendix) explains the specific nature of Article 18 judgments,
which concern human rights violations in pursuit of an unlawful
ulterior purpose. The clear jurisprudence applied by the ECtHR in
relation to Article 18 cases relates to (1) a significant time gap
between the sets of events (for example many years between the alleged
facts and the acts of the prosecution); (2) the quality of the totality
of evidence (for example if lawful activities were criminalised);
(3) the conduct of the applicant in the criminal process; and (4)
temporal inferences between how politicians approached the framing of
a case and the framing of the indictment. This hearing highlighted
the significance of Article 18 judgments in relation to the misuse
of power and ulterior motives for human rights abuses; such judgments
are a red flag. I underline that the implementation and full redress
of Article 18 violations constitute the very essence of a democratic
society. I noted in particular the different types of Article 18
cases (detention cases and those to silence through disciplinary
proceedings), and the need for close and timely monitoring of Article
18 cases. National parliaments and parliamentarians need to intervene
to support the resolution of such cases, and more might be done
to involve national parliaments and parliamentarians in this work
46. The Committee of Ministers has brought infringement proceedings
under Article 46(4) in relation to unimplemented Article 18 detention
cases. This has facilitated the release of Ilgar Mammadov by Azerbaijan. However
the judgment in favour of human rights defender Mr Kavala has yet
to secure his release by Türkiye; he has now spent 5 years in prison.
In these infringement proceedings, the ECtHR noted that where an individual's
detention was deemed to be a violation of Article 18, if they were
released and then re-detained on different charges but based on
the same facts, then the Article 18 violation continued.
6.1. Article 46(4) and failure to comply
with a final judgment of the ECtHR – Arbitrary detention with the
ulterior purpose of silencing Osman Kavala and dissuading other
human rights defenders
47. Osman Kavala, a human right
defender in Türkiye, has been involved in setting up numerous NGOs
and civil-society movements which are active in the areas of human
rights, culture, social studies, historical reconciliation and environmental
protection. Mr Kavala was arrested on 18 October 2017 and placed
in pre-trial detention, accused of attempting to overthrow the government
within the context of the Gezi Park events of 2013 (Article 312
of the Turkish Criminal Code) and to overthrow the constitutional
order within the context of the attempted coup in July 2016 (Article
309 of the Turkish Criminal Code). He has been deprived of his liberty
since then.
48. In the 2019
Kavala judgment,
![(94)
<a href='https://hudoc.echr.coe.int/eng'>Kavala v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/FRE'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
the European Court of Human Rights
concluded that there had been a violation of Article 5 and of Article
18 taken together with Article 5, with regard to the suspicions
raised against Mr Kavala in October 2017 concerning the Gezi Park
events and the attempted coup of 15 July 2016, and his subsequent
pre-trial detention. The Court found that this arrest and pre-trial
detention took place in the absence of evidence to support a reasonable
suspicion he had committed an offence and also that they pursued
the ulterior purpose of silencing him and dissuading other human
rights defenders (violation of Article 18 taken in conjunction with
Article 5). The Court indicated that any continuation of the applicant’s
pre-trial detention would entail a prolongation of the violation
of Article 5 and of Article 18 in conjunction with Article 5, as
well as a breach of Türkiye’s obligations to abide by the Court’s
judgments in accordance with Article 46(1) of the Convention. It
therefore held that the government should secure his immediate release.
49. However, the applicant was not released, and the Committee
of Ministers thus referred the matter to the Court under Article
46(4). In the ensuing 2022 Kavala (Article
46(4)) judgment, issued on 11 July 2022, the Grand Chamber found
that Türkiye had failed to fulfil its obligation to comply with
final judgments of the ECtHR under Article 46(1). It noted that
failure to implement a final, binding judicial decision would be
likely to lead to situations incompatible with the principle of
the rule of law. The Court considered that the measures indicated by
Türkiye did not permit it to conclude that the State Party had acted
in “good faith”, in a manner compatible with the “conclusions and
spirit” of the Kavala judgment,
or in a way that would make practical and effective the protection
of the Convention rights. The Court held that its finding in the
first Kavala judgment of a
violation of Article 5(1), read separately and in conjunction with
Article 18, “vitiated any action resulting from the charges relating
to the Gezi Park events and the attempted coup”.
50. On 25 April 2022, the Assize Court convicted the applicant
and sentenced him to aggravated life imprisonment for attempting
to overthrow the government by force (Article 312 of the Turkish
Criminal Code). On 28 December 2022 the Istanbul Regional Appeal
Court rejected the applicant’s appeal against the conviction and
sentence. Given the ECtHR’s findings that there was insufficient
evidence for any reasonable suspicion that Mr Kavala had committed
these crimes, it is difficult to understand how the Turkish courts
have concluded that there was sufficient evidence for conviction.
Further proceedings are pending.
51. The Turkish authorities have sought to dispute the clear findings
of the ECtHR rather than seeking to comply with Türkiye’s obligations
under Article 46(1) of the Convention to eliminate all the negative consequences
of the criminal charges brought against Mr Kavala, raising concerns
for respect of the Convention system as a whole.
52. On 11 July 2022, the Chair of the Committee of Ministers,
the President of the Parliamentary Assembly, and the Secretary General
made a joint statement, urging Türkiye, as a Party to the Convention,
to take all necessary steps to implement the judgment. In November
2022, the Committee of Ministers appointed a Liaison Group of Ambassadors
to assist its Chair in engaging with the Turkish authorities regarding
the implementation of the judgment in the
Kavala case (
CM/Del/Dec(2022)1446/H46-1). The Committee of Ministers regularly examines this
issue. In January 2023, the Assembly co-rapporteurs for the monitoring
of Türkiye had a meeting with Mr Osman Kavala.
53. This case displays the procedural barriers that States use
to seek to deflect from timely implementation of ECtHR judgments,
especially where political will is the principal obstacle. The Assembly
should make clear that any prevarication with the implementation
of a judgment, and especially following an Article 46(4) judgment is
unacceptable and threatens the Convention system as a whole. I strongly
urge Türkiye to implement this judgment with no further delay.
6.2. Arbitrary detention – politically
motivated violation of rights – Selahattin Demirtaş
54. The
Demirtaş
(No. 2) ![(95)
<a href='https://hudoc.echr.coe.int/eng'>Selahattin
Demirtaş v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/FRE'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
case concerns the politically motivated
arrest and detention of Selahattin Demirtaş, who was, between 2007
and 2018, one of the leaders of the Peoples’ Democratic Party (HDP),
a pro-Kurdish opposition party, and a member of the Turkish National
Assembly. In October 2014, violent protests took place in 36 provinces
in eastern Türkiye, followed by further violence in 2015 in the
wake of the breakdown of negotiations aimed at resolving the “Kurdish
question”. On 20 May 2016, the Turkish Constitution was amended,
lifting inviolability from prosecution for certain members of parliament.
Mr Demirtaş was one of the 154 parliamentarians (including 55 HDP
members) who lost parliamentary inviolability following the constitutional
amendment.
![(96)
Other
related cases also concern the lifting of parliamentary inviolability
of parliamentarians, including the recent case Yüksekdağ Şenoğlu
and Others v. Turkey, (Application No 14332/17), which also concerns
a number of violations of Article 18, 5, 10 of the Convention and
Article 3 of the Additional Protocol, following the detention of
twelve parliamentarians.](/nw/images/icon_footnoteCall.png)
Mr Demirtaş was arrested
on 4 November 2016 and placed in pre-trial detention, charged with
offences under various provisions of the Criminal Code, the Prevention
of Terrorism Act, and the Meetings and Demonstrations Act, including
membership of an armed organisation (Article 314 of the Turkish Criminal
Code) and public incitement to commit an offence (Article 214 of
the Turkish Criminal Code). At the same time 8 other democratically
elected HDP members of parliament, were also arrested, as was the
former HDP co-chair Figen Yüksekdağ.
55. The Court considered, in respect of the applicant’s pre-trial
detention between 4 November 2016 and 7 December 2018, that the
domestic courts had failed to indicate specific facts or information
that could give rise to a reasonable suspicion that the applicant
had committed the offences in question and justify his arrest and
pre-trial detention (violations of Article 5(1) and (3)). It further
held that the way in which his parliamentary inviolability was removed
and the reasoning of the courts in imposing pre-trial detention
on him violated his rights to freedom of expression and to sit as
a member of parliament (violations of Article 10 of the Convention and
Article 3 of the Additional Protocol to the Convention). Finally,
taking into account, among other elements, the applicant’s return
to pre-trial detention on 20 September 2019, the Court found that
the applicant’s detention pursued the ulterior purpose of stifling
pluralism and limiting freedom of political debate (violation of Article
18 in conjunction with Article 5). The Court indicated, under Article
46, that the nature of the violation under Article 18 left no real
choice as to the measures required to remedy it, and that any continuation
of the applicant’s pre-trial detention on grounds pertaining to
the same factual context would entail a prolongation of the violation
of his rights as well as a breach of the obligation on the respondent
State to abide by the Court’s judgment in accordance with Article
46(1), of the Convention. It therefore held that Türkiye had to
take all necessary measures to secure the applicant’s immediate
release. The applicant is still in detention; therefore the ECtHR
judgment has not been complied with. The Committee of Ministers
has strongly urged the Turkish authorities to ensure his immediate
release.
6.3. The Mammadli v. Azerbaijan group of
Article 18 cases
56. The
Mammadli Group
![(97)
<a href='https://hudoc.echr.coe.int/eng'>Mammadli v. Azerbaijan</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>.](/nw/images/icon_footnoteCall.png)
concerns political-motivated arrests
and prosecutions of human rights defenders, civil society activists
and a journalist, all subject to arrest and detention from 2013
to 2016, in violation of Articles 18 and 5 of the Convention.
![(98)
In some cases violations
of Articles 3 (freedom from torture and inhuman or degrading treatment
or punishment), Article 6 (right to a fair trial), Article 8 (right
to family and private life), Article 10 (freedom of expression)
and Article 1 of the Additional Protocol (right to peaceful enjoyment
of possessions) were also found.](/nw/images/icon_footnoteCall.png)
As these cases
relate to the misuse of the criminal law intended to punish and
silence these individuals contrary to Article 18 of the Convention,
they are a priority both for this report and for the Council of
Europe in general. There has been welcome progress here in that
all individuals in this group have now been pardoned and released,
but in order to address the individual measures, and to eliminate
all consequences of these violations, their convictions need to
be quashed. In this light, during my visit to Baku, it was positive
to hear from the Supreme Court that it was working its way through the
remaining six cases to remove the consequences of these prosecutions
and that all of the cases should be dealt with in 2023, to move
towards closing supervision of this group of cases. It is worrying
that the judiciary in Azerbaijan is not completely independent from
the executive. Therefore, ensuring respect for the separation of
powers and the independence of the judiciary, including through
the independence of the Judicial Legal Council, is also a core part
of the general measures required for this group as well as being
a theme in relation to respect for ECtHR judgments in Azerbaijan.
![(99)
Improving the independence
of the judiciary is a requirement for addressing the general measures
in the Mammadli group, as well as the Namat Aliyev group (<a href='https://hudoc.echr.coe.int/eng'>Namat Aiyev
v. Azerbaijan</a> (2010) – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>), which relates to violations of the right to free elections
(Article 3 of the Additional Protocol), specifically relating to
the arbitrary application of electoral legislation and the absence
of adequate safeguards against arbitrariness – in particular relating
to the approach taken by the courts in considering such cases. The
fairness of civil and criminal proceedings is also relevant to a
number of groups of cases, including the <a href='https://hudoc.echr.coe.int/eng'>Isanov</a> group.](/nw/images/icon_footnoteCall.png)
7. Specific challenges, including cases
revealing long-standing “systemic and structural problems” identified
by the Court’s judgments
57. The Annual report 2021 pinpoints,
in particular, major issues concerning the functioning of the judicial system
(including cases concerning excessive length of judicial proceedings
and non-enforcement of domestic judicial decisions); ill-treatment
by State agents and/or ineffective investigations; poor conditions
of detention; or cases linked to democracy and pluralism (right
to free elections, freedom of expression, freedom of assembly and
freedom of association). To facilitate progress on these issues,
I propose that the Assembly prepare reports on these themes in order
to try to shine a spotlight on them, to consider and promote potential solutions
and to try better to tackle these challenges. In this light, I note
that I am currently working on a report on systemic torture, which
should go some way to identifying the challenges of ill-treatment
by State agents – some of which could surely be avoided by better
deployment of body cameras, for example. I suggest a more systemic
and structured approach for the future with Assembly reports on
these systemic and structural problems as identified through the
Annual Reports of the Department for the Execution of Judgments.
58. I should also like to highlight some other cases that raise
specific issues requiring increased attention. These relate to secret
detention and rendition by the American Central Intelligence Agency
(CIA) in a number of Council of Europe member States including Lithuania,
Poland and Romania (see paragraph 59); the Greek authorities’ refusal
to register associations relating to ethnic minorities (see paragraph
60); concerns relating to the Polish reform of the judiciary (see
paragraph 61); and the inherently discriminatory nature of the constitution
of Bosnia and Herzegovina dividing the population along ethnic lines,
affecting elections in that country (see paragraph 62).
59. The
Al Nashiri and
Husayn (Abu Zubaydah) v. Poland ![(100)
Applications Nos. 28761/11
and 7511/13, judgment of 24 July 2014.](/nw/images/icon_footnoteCall.png)
cases
relate to the secret detention of the applicants, suspected of terrorist
acts, in the CIA detention facility in Poland and their subsequent
transfer to Guantanamo Bay, in a situation that may amount to a
risk of imposition of the death penalty or to a flagrant denial
of justice.
![(101)
The
cases concern multiple violations of the Convention, and in particular
of Article 3, Article 6(1), and, with regard to Mr Al Nashiri, also
of Articles 2 and 3 taken together with Article 1 of Protocol No.
6 (ETS No. 114). These issues were first examined in the two reports
by our former committee colleague Mr Dick Marty (Switzerland, ALDE)
“Alleged secret detentions and unlawful inter-state transfers of
detainees involving Council of Europe member States”, <a href='http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?fileid=11527'>Doc. 10957</a> of 12 June 2006, and “Secret detentions and illegal
transfers of detainees involving Council of Europe member states: second
report”, <a href='http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?fileid=11555'>Doc. 11302</a> of 11 June 2007. These reports led to the adoption of
the Assembly’s Resolutions <a href='http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17454&lang=en'>1507
(2006)</a> and <a href='http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17559&lang=en'>1562
(2007)</a> and Recommendations <a href='http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17452&lang=en'>1754
(2006)</a> and <a href='http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17560&lang=en'>1801
(2007). </a>](/nw/images/icon_footnoteCall.png)
The applicants’ situation is also
examined by the Committee of Ministers in the context of the implementation
of two subsequent judgments,
Al Nashiri
v. Romania ![(102)
Application
No. 33234/12, judgment of 31 May 2018. In line with the Court’s
indications, the Romanian authorities took a number of steps, which
are summarised in the notes on the agenda of the Committee of Ministers’
1411st meeting (September 2021) (DH) (<a href='https://search.coe.int/cm/pages/result_details.aspx?objectid=0900001680a3a5b0'>CM/Notes/1411/H46-26</a>). These steps included parliament enacting legislation
to disapply the statute of limitations to the crime of torture](/nw/images/icon_footnoteCall.png)
concerning
the CIA “extraordinary rendition” operations in Romania (between
2004 and 2005), and
Abu Zubaydah v. Lithuania ![(103)
Application No. 46454/11,
judgment of 31 May 2018. In line with the Court’s indications, the
Lithuanian authorities took a number of steps, which are summarised
in the notes on the agenda of the Committee of Ministers’ 1348th
meeting (DH) (CM/Notes/1348/H46-14) (June 2019).](/nw/images/icon_footnoteCall.png)
concerning
the CIA “extraordinary rendition” operations in Lithuania (between
2005 and 2006) and finding the same violations of the Convention
as in the two above-mentioned cases against Poland. Despite numerous
repeated calls from the Committee of Ministers, significant concerns
relating to individual measures and challenges in obtaining the
requisite diplomatic assurances from the US as to the use of the
death penalty and inhuman treatment remain (although some progress
has been made on general measures to prevent recurrence).
60. The judgments concerning violations of the right to freedom
of association resulting from the Greek authorities' refusal to
register associations promoting the idea of the existence of an
ethnic minority as distinct from the religious minorities recognised
by the 1923 Treaty of Lausanne (
Bekir-Ousta group)
![(104)
<a href='https://hudoc.echr.coe.int/eng'>Bekir-Ousta and Others
v. Greece</a>, judgment of 11 October 2007.](/nw/images/icon_footnoteCall.png)
remain unimplemented
for almost 15 years. Similar questions have been under the Committee
of Ministers’ supervision since 2015 in
House
of Macedonian Civilization and Others v. Greece. ![(105)
Application no. 1295/10,
judgment of 9 July 2015, examined for the last time at the 1362nd meeting
(DH), see CM/Del/Dec(2019)1362/H46-9, 5 December 2019.](/nw/images/icon_footnoteCall.png)
This
is the second judgment, following that of
Sidiropoulos
and Others v. Greece ![(106)
Application no. 26695/95,
judgment of 10 July 1998.](/nw/images/icon_footnoteCall.png)
of 1998, concerning
the same association in which the Court found a violation by Greece
of Article 11 of the Convention. Despite the legislative amendment adopted
by Greece in 2017 which allowed the reopening of the impugned proceedings,
the applicant organisations have still not received
restitutio in integrum, largely
due to the judgments of the Greek Court of Cassation in 2021 and
2022 which considered that the dissolution of the Tourkiki Enosi
Xanthis association to be lawful on grounds most of which were expressly
impugned by the ECtHR and the decision not to register Emin and
Bekir-Ousta to be lawful, also on certain grounds already rejected
by the ECtHR (related to the promotion of the idea of existence
of an ethnic minority). The Committee of Ministers considered this
group of cases most recently in December 2022 and expressed their
“most profound regret that the Court of Cassation did not take into
consideration an essential element spelled out by the European Court”,
noting that the members of these associations have never advocated
the use of violence or undemocratic or unconstitutional means and
that no evidence was presented showing the opposite.
![(107)
<a href='https://hudoc.exec.coe.int/eng'>Bekir-Ousta</a>, HUDOC EXEC Case Notes.](/nw/images/icon_footnoteCall.png)
In light
of this, the Chair of the Committee of Ministers sent a letter to
the authorities of Greece conveying the Committee of Ministers’
deep concern about the present situation and urging them to swiftly
adopt measures allowing the full and effective execution of the European
Court’s judgments. The successive barriers to full implementation
of these cases are regrettable. Notwithstanding the legislative
amendments introduced, it is frustrating that new barriers to implementation seem
to have been imposed. This should finally be resolved.
61. The recent Polish reforms to its judiciary have incited controversy,
not least given the apparent refusal of the Polish authorities –
including the newly reformed judiciary – to abide by the final judgments
of the ECtHR on this topic. In
Xero Flor
v. Poland, ![(108)
Application
No. 4907/18, judgment of 7 May 2021.](/nw/images/icon_footnoteCall.png)
the ECtHR
found a violation of Article 6 of the Convention because of the
composition of the Polish Constitutional Tribunal and questioned
the validity of the election of several judges.
![(109)
The ECtHR found, in
particular, that the election of certain judges to the Constitutional
Tribunal was irregular as it was not in conformity with the Polish
constitutional provisions relating to the election of judges to
the Constitutional Court. Judges had already been elected by the
previous Sejm (just not approved by the President) therefore it
was inappropriate for the new Sejm to seek to re-elect different
judges in their place. These irregularities infringed the applicant
company’s right to a tribunal established by law, in violation of
Article 6 of the Convention, given the participation of irregularly appointed
judges in judicial deliberations concerning its constitutional complaint](/nw/images/icon_footnoteCall.png)
Similarly,
in the
Reczkowicz group of
cases, the ECtHR found violations of the right to a tribunal established
by law, contrary to Article 6 of the Convention, due to the participation
in domestic proceedings of the Polish Supreme Court judges that
were appointed in an inherently deficient procedure on the motion
of the National Council of the Judiciary, lacking independence from
the legislature and the executive, noting the wider context of reforms
aimed at weakening judicial independence.
![(110)
<a href='https://www.bing.com/ck/a?!&&p=6c33f35b631f7885JmltdHM9MTY3NzExMDQwMCZpZ3VpZD0yMDI5NWE4OS1iMTQzLTYyODUtMGUwMS00ODM3YjBmYTYzNmQmaW5zaWQ9NTE3OA&ptn=3&hsh=3&fclid=20295a89-b143-6285-0e01-4837b0fa636d&psq=Reczkowicz&u=a1aHR0cHM6Ly9odWRvYy5lY2hyLmNvZS5pbnQvYXBwL2NvbnZlcnNpb24vZG9jeC9wZGY_bGlicmFyeT1FQ0hSJmlkPTAwMS0yMTExMjcmZmlsZW5hbWU9Q0FTRSUyME9GJTIwUkVDWktPV0lDWiUyMHYuJTIwUE9MQU5ELnBkZg&ntb=1'>Reczkowicz
v. Poland</a>, judgment of 22 July 2021. The cases in this group include
Broda and Bojara v. Poland, Application no. 26691/18, judgment of
29 June 2021; Reczkowicz v. Poland, Application No. 43447/19, judgment
of 22 July 2021; Dolińska-Ficek and Ozimek v. Poland, Applications
Nos. 49868/19 and 57511/19, judgment of 8 November 2021 and Advance
Pharma Sp. z o.o. v. Poland, Application No. 1469/20, judgment of
3 February 2022.](/nw/images/icon_footnoteCall.png)
In its judgment of 29 September
2021 in
Broda and Bojara v. Poland, ![(111)
<a href='https://hudoc.echr.coe.int/eng'>Broda and Bojara v. Poland</a>, judgment of 29 June 2021.](/nw/images/icon_footnoteCall.png)
the ECtHR
found a violation of Article 6 of the Convention (access to court), on
account of the premature termination of the applicants’ terms of
office as vice-presidents of a regional court. In response, the
Polish Constitutional Tribunal delivered two judgments
![(112)
K 6/21 and K 7/21.](/nw/images/icon_footnoteCall.png)
declaring
that Article 6(1) of the Convention was incompatible with the Constitution
(i) to the extent that the term “court” used in that provision referred
to it, (ii) in so far as it conferred on the ECtHR the competence
to assess the legality of the election of judges to the Constitutional
Tribunal, and (iii) because it considered that the organisation
and jurisdiction of domestic courts and the appointment of judges
should be left to the competence of the State Party. Poland has recently
informed the ECtHR Court Registry that it will not comply with an
interim measure under Rule 39 of the Rules of Court issued in cases
relating to judicial reform
Leszczyńska-Furtak
v. Poland,
Gregajtys v. Poland and
Piekarska-Drążek v. Poland.
![(113)
<a href='https://hudoc.echr.coe.int/eng-press'>Press release</a> from the ECtHR.](/nw/images/icon_footnoteCall.png)
Successive decisions
of the Committee of Ministers have recalled the clear unconditional
obligation on Poland to comply with binding final judgments of the
ECtHR in line with its obligation under Article 46(1) of the Convention,
![(114)
The most recent <a href='https://protect-eu.mimecast.com/s/xPwvCD135C5DmO6ruWnde2?domain=hudoc.exec.coe.int'>Xero
Flor</a> and <a href='https://protect-eu.mimecast.com/s/pBLeCGv3jf12lLyZIpKSMf?domain=hudoc.exec.coe.int'>Reczkowicz</a> decisions were adopted at the CM-DH meeting in December
2022.](/nw/images/icon_footnoteCall.png)
and deplored the authorities’ position
that the European Court acted beyond its legal authority in adopting
the
Xero Flor judgment. It
is incumbent on Poland to interpret and, where necessary, amend
its laws in such a way as to avoid any repetition of the violations
found by the ECtHR in these cases. Unfortunately, this has not occurred
to date, notwithstanding the exceptional procedure of an inquiry
by the Secretary General having been launched under Article 52 of
the Convention.
![(115)
On
7 December 2021, the Secretary General initiated a Procedure in
accordance with Article 52 of the Convention following the judgments
of the Polish Constitutional Court in the case K6/21 and subsequently
the case K7/21. The report concluding the procedure (<a href='https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680a8eb59'>SG/Inf(2022)39</a>) was published on 9 November 2022. It concluded that
as a result of the findings of unconstitutionality in judgment K6/21,
the obligation of Poland under the European Convention on Human Rights
to ensure the enjoyment of the right to a fair trial by an independent
and impartial tribunal established by law to everyone under its
jurisdiction had not been fulfilled. Action is required by Poland
to comply with its international obligations, which include ensuring
that its internal law is interpreted and, where necessary, amended
in such a way as to avoid any repetition of the same violations.](/nw/images/icon_footnoteCall.png)
62. The judgments in the
Sejdić and
Finci v. Bosnia and Herzegovina ![(116)
Application No. 27996/06,
judgment of 22 December 2009 (Grand Chamber), and three other judgments:
Zornić v. Bosnia and Herzegovina, Application No. 3681/06, judgment of 15 July 2014; Šlaku
v. Bosnia and Herzegovina, Application No. 56666/12, judgment of
26 May 2016 and Pilav v. Bosnia and Herzegovina, Application No.
41939/07, judgment of 9 June 2016.](/nw/images/icon_footnoteCall.png)
group concern
discrimination against persons belonging to groups other than the
“constituent peoples” of Bosnia and Herzegovina (namely Bosniaks,
Croats and Serbs) as regards their right to stand for election to
the House of Peoples and the Presidency of Bosnia and Herzegovina
(violations of Article 1 of Protocol No. 12 (ETS No. 172)). The Committee
of Ministers has followed this group of cases very closely, calling
on the authorities and political leaders to bring the constitutional
and legislative framework into line with Convention requirements. Notwithstanding
the Committee of Minister’s interventions and the extensive support
offered to the authorities by both the Council of Europe and the
European Union (addressing the judgment is one of the 14 priorities
for the accession of Bosnia and Herzegovina to the European Union),
![(117)
European Commission,
Commission Opinion on Bosnia and Herzegovina’s membership of the
European Union, <a href='https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-bosnia-and-herzegovina-opinion.pdf'>SWD(2019)222</a>, 29 May 2019.](/nw/images/icon_footnoteCall.png)
it is of deep concern
that the elections of 2010, 2014, 2018 and 2022 were based on what
has been described as a “discriminatory electoral system in clear
violation of the requirements” of the Convention.
![(118)
Decision adopted at
the 1324 meeting (DH), 20 September 2018,
CM/Del/Dec(2018)1324/4, paragraph 1.](/nw/images/icon_footnoteCall.png)
After a
government was formed at the end of December 2019 following the
2018 elections, the Minister of Foreign Affairs of Bosnia and Herzegovina
took part in the 1369th meeting (DH) in March 2020 and stated that
“the matter would be examined within the parliamentary framework”.
However, the particularities of this case stem from the constitutional
arrangements resulting from the Dayton agreement and the existing
political system in Bosnia and Herzegovina. It is not surprising
that despite efforts to reach an agreement on constitutional and
electoral amendments, no consensus among the political leaders could
be reached and the 2022 elections also took place following a discriminatory
electoral system in violation of the Convention requirements. The
Venice Commission has produced numerous opinions on the subject,
notably calling on the people and politicians of Bosnia and Herzegovina
to gradually replace ethnic representation mechanisms with representation
based on the citizenship system.
![(119)
CDL-AD(2005)004-e, <a href='https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2005)004-e'>“Opinion</a> on the Constitutional Situation in Bosnia and Herzegovina
and the Powers of the High Representative” adopted by the Venice
Commission at its 62nd plenary session (Venice, 11-12 March 2005).](/nw/images/icon_footnoteCall.png)
63. I have a growing concern over the reluctance of certain member
States to implement the Court's judgments. It is more than obvious
that domestic politics play a significant role in this context.
The adoption by the Russian Federation’s legislative authorities
of constitutional amendments which put a question mark on the country's
obligations to implement the Court's judgments, the political or
structural obstacles emanating from the ethnicity-based political
system in Bosnia and Herzegovina, the Turkish and Azerbaijani authorities’ reluctance
to implement the Court’s judgments touching upon “political” issues,
or the recent stand of the Polish authorities relating to interim
measures of the European Court of Human Rights and to the reform
of the judiciary, are all stark examples.
8. States having the largest numbers
of cases pending implementation before the Committee of Ministers
64. For this report, I have focussed
on the five States having the largest number of cases pending implementation
– as well as the Russian Federation – given that these six States
together have such a significant proportion of the overall cases
pending implementation. Moreover, considering the cases and challenges
of these States can help to highlight the challenges and potential
improvements of benefit to all States.
8.1. Türkiye
65. In relation to Türkiye, I set
out the details of the major cases in an information note.
![(120)
<a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-06-EN.pdf'>AS/Jur(2023)06</a>, op. cit.](/nw/images/icon_footnoteCall.png)
According to the Annual
Report 2021 on the Execution of Judgments, Türkiye has the second
largest number of cases pending execution (510) of Council of Europe
member States, with the largest number of leading cases (139) and
the second largest number of repetitive cases (371).
![(121)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021.</a>](/nw/images/icon_footnoteCall.png)
Türkiye was also first in relation
to the number of cases closed during 2021 (222). For 2022, the case
numbers look to be similar, with 480 cases pending execution (ranking
Türkiye as third), with the largest number of leading cases (126)
and the second largest number of cases closed during 2022 (107).
![(122)
See the <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a> issued after this explanatory memorandum was drafted.](/nw/images/icon_footnoteCall.png)
66. It is important to note that the number of Turkish pending
cases has drastically diminished in recent years, in particular
as concerns repetitive cases (for example where individual measures
have been addressed or became impossible to perform due to the application
of the statute of limitations in Turkish law). However, the number
of leading cases (which indicate systemic issues) remains high,
and Türkiye has a large number of leading cases that have been pending
for over 5 years (78). Leading cases often require significant general measures
in order to be resolved, such as legislative change or improvements
to the independence of the judiciary and the functioning of the
rule of law.
67. There has been recent progress on cases concerning property
rights, domestic violence, and compensation for medical negligence.
However, political will is required to make the changes needed to address
cases relating to freedom of expression, freedom of association
and the right to liberty (Articles 5, 10 and 11 of the Convention).
Key groups of cases relate to freedom of expression;
![(123)
<a href='https://hudoc.echr.coe.int/eng'>Altug Taner Akcam v.
Turkey</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution. </a><a href='https://hudoc.echr.coe.int/eng'>Öner
and Türk v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/ENG'>the status of execution.</a><a href='https://hudoc.echr.coe.int/eng'> Nedem
Şener v Turkey</a>.<a href='https://hudoc.echr.coe.int/eng'> Vedat Şorli v. Turkey</a>.<a href='https://hudoc.echr.coe.int/eng'> Dink v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a><a href='https://hudoc.echr.coe.int/eng'> Ahmet Yıldırım
v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
the independence of the judiciary
![(124)
<a href='https://hudoc.echr.coe.int/eng'>Alparslan Altan v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
and the functioning of the justice
system; freedom of thought, conscience and religion;
![(125)
<a href='https://hudoc.echr.coe.int/eng'>Izzettin Doğan v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a><a href='https://hudoc.echr.coe.int/eng'> Ülke
v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a><a href='https://hudoc.echr.coe.int/eng'> Association
for Solidarity with Jehovah’s Witnesses and Others v. Turkey</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution.</a>](/nw/images/icon_footnoteCall.png)
freedom of assembly;
![(126)
<a href='https://hudoc.echr.coe.int/eng'>Oya Ataman v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a><a href='https://hudoc.echr.coe.int/eng'> Işıkırık
v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/ENG'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
and the consequences of the 1974
Turkish military intervention in Cyprus.
68. The Kavala, Demirtaş and Yüksekdağ Şenoğlu cases are of particular
interest given the focus of the Committee on Legal Affairs and Human
Rights for this report on Article 18 cases relating to human rights violations
for politically motivated reasons. Reforms of the composition of
the Council of Judges and Prosecutors, in line with the Venice Commission
Opinion, would be key to ensuring the independence of the judiciary.
The continued failure to comply with the Article 46(1) and 46(4)
judgments of the ECtHR in the case of Kavala is
of particular concern for respect of the Council of Europe’s human
rights system and the rule of law as a whole.
69. The
Bati group of cases,
![(127)
<a href='https://hudoc.echr.coe.int/eng'>Batı and others v. Turkey</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
relating to the ineffectiveness of
investigations into torture or ill-treatment by members of security
forces could be of special interest to our committee given its ongoing
work on the report on systemic torture. The
Cyprus
v. Turkey case is also of particular interest given the
committee’s focus for the present report on interstate cases.
70. The
Gurban group of
cases
![(128)
Gurban v.
Turkey<a href='https://hudoc.exec.coe.int/ENG'></a>.](/nw/images/icon_footnoteCall.png)
concerns violations of the prohibition
of torture and inhuman or degrading treatment or punishment on account
of the applicants’ sentences to aggravated life imprisonment without
any prospects of release or any adequate review mechanism of these
sentences (Article 3 of the Convention). This requires a review
mechanism in light of the standards already set out by the Court.
In the case of
Öcalan v. Turkey (No. 2)
the Court further found a violation of Article 3 in relation to
the applicant’s conditions of detention prior to 17 November 2009.
71. During the hearing in the committee, Mr Ahmet Yıldız, Chairperson
of the Turkish delegation to the Assembly, underlined that 89% of
ECtHR judgments against Türkiye had been implemented, with 107 cases being
closed in 2022. The Kavala case
remained a political priority for the authorities. In relation to Cyprus v. Turkey, he recalled that
the question of living conditions for Greek Cypriots in the Karpasia/Karpas
region as well as questions relating to the Loizidou case
had been closed and that the Committee on Missing Persons was continuing
its work. Mr Hacı Ali Açikgül, Head of the Human Rights Department
in the Ministry of Justice, underlined the good co-operation between
his department and the Department for the Execution of Judgments of
the Court and measures taken to address certain judgments.
8.2. Romania
72. I undertook a fact-finding
visit to Romania on 15-16 November 2022 and my information note
contains full details of the visit, the challenges and major cases
of interest.
![(129)
<a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-02-EN.pdf'>AS/Jur(2023)02</a>, “The Implementation of judgments of the European Court
of Human Rights – 11th report <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-02-EN.pdf'>–Information
note</a> following the rapporteurs visit to Romania”, November
2022.](/nw/images/icon_footnoteCall.png)
The focus of the visit was (1) institutional capacity
in Romania for implementing ECtHR judgments; (2) judgments relating
to mental health conditions, mental capacity and people with learning
difficulties;
![(130)
<a href='https://hudoc.echr.coe.int/eng'>Centre for
Legal Resources on behalf of Mr Valentin Campeanu v. Romania</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution; Parascineti
v. Romania</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>. <a href='https://hudoc.echr.coe.int/eng'>Cristian Teodorescu v.
Romania</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>.](/nw/images/icon_footnoteCall.png)
(3) prison conditions;
![(131)
There is a series of
Romanian cases relating to prison conditions, including overcrowding
and poor conditions in prisons and police detention facilities (<a href='https://hudoc.echr.coe.int/eng'>Bragadireanu
v. Romania</a> and <a href='https://hudoc.echr.coe.int/eng'>Rezmives v. Romania</a> – see here for <a href='https://hudoc.exec.coe.int/eng?i=004-12985'>the status
of execution</a>), as well as deficiencies in the mental health treatment
and care in detention (<a href='https://hudoc.echr.coe.int/eng'>Ticu v. Romania</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution</a>), poor conditions of detention for life-sentenced prisoners,
relating to isolation and systemic handcuffing, (<a href='https://hudoc.echr.coe.int/eng'>Enache v. Romania</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>) and release on humanitarian grounds (<a href='https://hudoc.echr.coe.int/eng'>Dorneanu v. Romania</a> – and see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>).](/nw/images/icon_footnoteCall.png)
(4) other judgments including those
relating to restitution cases;
![(132)
<a href='https://hudoc.echr.coe.int/eng'>Strain v. Romania</a> and <a href='https://hudoc.echr.coe.int/eng'>Maria Atanasiu v. Romania</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
and enforcement of domestic judgments.
![(133)
<a href='https://hudoc.echr.coe.int/eng'>Sacaleanu v. Romania</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
I am very grateful to all I met with
for their time and useful insights into the challenges and efforts
being made to implement judgments of the European Court of Human
Rights.
73. According to the Annual Report 2021 on the Execution of Judgments,
Romania has the third largest number of cases pending execution
(409) of Council of Europe member States, and the second largest
number of leading cases pending execution (106). Romania was seventh
in relation to cases closed during 2021 (45). The latest figures
for 2022 do not seem to be showing improvements, with 509 cases
pending execution (ranking Romania as second), with the second largest
number of leading cases (113) but only the eighth largest number
of cases closed during 2022 (37).
![(134)
See the <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a> issued after this explanatory memorandum was first drafted.](/nw/images/icon_footnoteCall.png)
Romania
has the largest number of unimplemented ECtHR judgments amongst
EU member States.
74. During my visit, I heard about a significant number of legislative
and practical reforms being implemented at national level, especially
in the field of justice and social care. I was pleased to hear about
the important progress being made, in particular to deinstitutionalise
a number of people in the care system and to better support living
in the community. Many of the sorts of reforms needed to grapple
with the challenges identified by the ECtHR judgments require significant
investment. I would therefore encourage maximum use of funds and
expertise available from international organisations, to help to
deliver on these challenging but important reforms.
75. Most interlocutors considered that the government was efficient
at paying just satisfaction, but that there were greater delays
in taking action to deal with general measures to address the root
causes behind a human rights violation. During our meetings there
was apparent general acceptance and acknowledgement that Romania
had not yet achieved a sufficient focus on implementing ECtHR judgments
in terms of resources, institutional mechanisms, and political weight
and priority given to implementation. This was especially obvious when
compared to judgments of the Court of Justice of the European Union
which were given a greater priority due to the financial penalties
attached to their non-implementation through infringement proceedings
of the Court of Justice of the European Union.
76. The responsibility for co-ordinating the implementation of
ECtHR judgments in Romania lies with the Agent to the ECtHR, within
the Ministry for Foreign Affairs, whose office had, for a number
of years, been sorely understaffed in view of the significant case-load
they faced (both in terms of litigating cases before the ECtHR and
in co-ordinating the implementation of judgments). I was very pleased
to hear of recent plans to address these concerns, through recent
recruitment exercises. As well as staffing, there was also the recognition
of the need for improved political co-ordination from those within
government with the power to drive through reforms needed to address
ECtHR judgments. Recent steps being taken to provide the necessary
co-ordination from central Government are therefore welcome. During
my visit, I was informed that three separate working groups/task
forces were very recently established by the Chancellery Office
of the Prime Minister to co-ordinate work in relation to (a) all
the mental health/mental capacity cases; (b) the enforcement of
domestic judgments (Sacaleanu)
cases; and (c) the restitution cases, with further co-ordinating
working groups for other topics and groups of judgments to be added
as this co-ordination work progressed.
77. Overall, whilst there is a very good knowledge of human rights
and the judgments in some areas, further work is arguably needed
to embed more of a human rights culture in other areas. Ideas such
as a "focal point" for human rights within each Ministry could assist
in this work.
![(135)
Designating
“focal points” or “reference contacts” in the relevant national
authorities is recommended in CM Recommendation <a href='https://search.coe.int/cm/Pages/result_details.aspx?Reference=CM/Rec(2008)2'>CM/Rec(2008)2</a> to member States on efficient domestic capacity for
rapid execution of judgments of the European Court of Human Rights
(at point 1). Article 7 of the recommendation specifically refers
to training such actors.](/nw/images/icon_footnoteCall.png)
78. These new initiatives seem very positive and, in my opinion,
seem to be a very welcome response to deliver what is needed to
enable Romania to best tackle the challenges of implementing some
of these groups of ECtHR judgments. I can only encourage all involved
in driving forward this important work and hope that these changes
will facilitate improvements in addressing these complex ECtHR judgments.
Ideas for improving transparency for the implementation of ECtHR
judgments, and involving all actors, including civil society, in
the new systems for implementing judgments could further help to
improve the understanding of the steps being taken to address ECtHR
judgments, and to ensure they respond to the needs of society. I
would encourage thought to be given to ensuring the involvement
of as many stakeholders as possible, including the Ombudsman’s Office
and civil society, in these new processes.
79. In relation to parliamentary scrutiny of the implementation
of ECtHR judgments, this had perhaps diminished somewhat since the
Assembly
Resolution 1823
(2011) “National parliaments: guarantors of human rights in
Europe”. Parliamentarians, during our meeting, committed to write
a memorandum to their permanent Bureau to request improvement of
the democratic control of parliament over the executive in relation
to the execution of judgments. Ideas were discussed such as a committee
specifically focussing on the implementation of ECtHR judgments
and requesting an annual or six-monthly report from the government
on the implementation of ECtHR judgments. I welcome this commitment
and strongly encourage our colleagues in this work.
80. Overall, my impression is that there is a great deal of human
rights expertise within both government and civil society. The Romanian
Government is aware of its need to comply with its obligations and
to address the institutional challenges posed by the number of unimplemented
ECtHR judgments and is in the process of developing good initiatives
to strengthen the institutional capacity to implement these judgments.
All of these initiatives draw on the Committee of Ministers’ Recommendation
CM/Rec(2008)2 to member States on efficient domestic capacity for
rapid execution of judgments of the European Court of Human Rights
and sound like examples of good practices for member States grappling
with the implementation of ECtHR judgments and I encourage the Romanian
authorities in this work. I would also encourage creative thinking
to secure the funding, expertise and commitment that are necessary
to deliver on some of the reforms needed. In addition, I would also
support a more human rights focussed approach to be embedded within
the Ministry of Health and the provision of mental health care.
Restitution cases are a subject of concern; as I was told during
my fact-finding mission, local authorities which are involved in
the process of restitution proved to be reluctant and sometimes
unco-operative. Finally, I would urge the authorities to fully draw
on Council of Europe expertise, including in technical cooperation
programmes and projects. I look forward to hearing further about
the progress of the implementation of these cases once these new
processes start delivering tangible results.
8.3. Ukraine
81. In relation to Ukraine, I set
out the detail of recent statistics and cases in my information
note.
![(136)
<a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-04-EN.pdf'>AS/Jur(2023)04,</a> The Implementation of judgments of the European Court
of Human Rights – 11th report <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-04-EN.pdf'>– Information
note</a> in preparation of a hearing in relation to Ukraine.](/nw/images/icon_footnoteCall.png)
According
to the Annual Report 2021 on the Execution of Judgments, at the
end of 2021, Ukraine had the largest number of cases pending execution
(638) of current Council of Europe member States, with the largest number
of repetitive cases (532) and the second largest number of leading
cases (106).
![(137)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021.</a>](/nw/images/icon_footnoteCall.png)
Ukraine was second in relation to
the number of cases closed during 2021 (126). At the end of 2022,
the number of cases had increased with 716 cases pending execution
(99 leading cases and 617 repetitive cases) and 67 cases having
been closed during the year, ranking Ukraine as having the largest
number of cases pending execution but only the third largest number
of leading cases.
![(138)
See
the <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a> issued after this explanatory memorandum was drafted.](/nw/images/icon_footnoteCall.png)
82. It goes without saying that the implementation of ECtHR judgments,
as for other public functions, necessarily faces specific challenges
in light of Russian’s war of aggression against Ukraine, and I am conscious
of the very difficult context and the huge challenges that Ukraine
is currently facing not least in preparing the way for reconstruction
of the country, which will be greatly facilitated by ensuring respect
for the rule of law and protection of human rights. It is therefore
encouraging that throughout 2022 the Ukrainian authorities have
continued to collaborate closely with the Department for the Execution
of Judgments and to make regular submissions to the Committee of
Ministers on individual cases and groups of cases (over 50 action
plans and reports were submitted), thus expressing their commitment
to full compliance with the Convention.
![(139)
See for example: <a href='https://www.coe.int/en/web/execution/-/examination-of-the-cases-concerning-ukraine'>“Examination
of the cases concerning Ukraine – Department for the Execution of
Judgments of the European Court of Human Rights” (coe.int).</a>](/nw/images/icon_footnoteCall.png)
I was also positively struck by the
detailed information provided by the Ukrainian representatives during
the exchange of views with the Committee on Legal Affairs and Human
Rights.
83. Given the number of cases involved, the complex and structural
nature of some of the issues raised in those judgments, and the
length of time taken to resolve many of these groups of cases, there
is a significant number of outstanding issues that require additional
attention, further measures and political will. It is also worth
noting that many leading cases date from some time ago, before the
“revolution of dignity” in February 2014, meaning that the political,
legislative and administrative context has often significantly evolved
since then, even if the underlying issues have not yet been entirely
resolved.
84. We cannot therefore ignore that there are judgments in certain
key groups of cases covering a very wide range of human rights issues,
such as torture, hate crimes,
![(140)
<a href='https://hudoc.echr.coe.int/eng'>Fedorchenko
and Lozenko v. Ukraine</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a> Such cases included victims of Roma and Armenian origin,
as well as Jehovah’s Witnesses.](/nw/images/icon_footnoteCall.png)
prison conditions,
![(141)
<a href='https://hudoc.echr.coe.int/eng'>Nevmerzhitsky v. Ukraine</a> – see here for <a href='https://hudoc.exec.coe.int/ENG'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
irreducible whole life sentences,
![(142)
<a href='https://hudoc.echr.coe.int/eng'>Petukhov (no 2) v. Ukraine</a> – see here for <a href='https://hudoc.exec.coe.int/ENG'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
unlawful pre-trail detention,
![(143)
<a href='https://hudoc.echr.coe.int/eng'>Ignatov v. Ukraine</a> (ex Kharchenko) – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
or independence of the judiciary
![(144)
<a href='https://hudoc.echr.coe.int/eng'>Oleksandr Volkov v. Ukraine</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
which remain unimplemented. However
the effective functioning of the justice system and respect for
the rule of law are common threads that are prevalent across many
of these groups of cases. The Committee of Ministers has noted that
a number of the outstanding groups (non-enforcement or delayed enforcement
of domestic judgments against the State;
![(145)
<a href='https://hudoc.echr.coe.int/eng'>Zhovner v. Ukraine</a>, Yuriy Nikolayevich <a href='https://hudoc.echr.coe.int/eng'>Ivanov v. Ukraine</a> and <a href='https://hudoc.echr.coe.int/eng'>Burmych v. Ukraine</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
independence of the judiciary; length
of judicial proceedings
![(146)
<a href='https://hudoc.echr.coe.int/eng'>Svetlana
Naumenko v. Ukraine</a> and <a href='https://hudoc.echr.coe.int/eng'>Merit v. Ukraine</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
) reveal major structural deficiencies
adversely affecting the functioning of the justice system and the
rule of law in Ukraine, depriving people of effective access to
justice and thus eroding their trust in the judicial system.
![(147)
See CM/Del/Dec(2021)1411/H46-44,
CM/Del/Dec(2021)1411/H46-41, CM/Del/Dec(2021)1411/H46-42.](/nw/images/icon_footnoteCall.png)
85. The developments in the
Lutsenko and
Tymoshenko cases are of particular
interest given the focus of the Committee on Legal Affairs and Human
Rights for this report on Article 18 cases relating to the abuse
of power for politically motivated reasons. Three groups could also
be of potential interest to the committee for its current work on
systemic torture: the
Kaverzin Group
![(148)
<a href='https://hudoc.echr.coe.int/eng'>Kaverzin v. Ukraine</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution.</a>](/nw/images/icon_footnoteCall.png)
which relates to systemic use of
torture and ill-treatment by the Ukrainian police in order to extract
confessions; the
Yaremenko group
concerning the use of evidence obtained by torture; and the
Karabet group
![(149)
<a href='https://hudoc.echr.coe.int/eng'>Karabet and Others v.
Ukraine</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
on torture of prisoners by special
forces either as punishment or during training exercises in prisons.
86. There seem to be a significant number of instances across
different groups of cases where the Ukrainian authorities have been
unable to pay just satisfaction due to an inability to obtain the
bank details of the applicants. It might be useful to reflect on
how to improve this situation – and in particular to ensure such
money is available as and when the applicants are eventually located
so that supervision of these cases can eventually be closed.
87. Another recurring theme is the lack of an effective domestic
remedy for breaches of human rights including for structural problems
that lead to multiple repetitive violations by the Court. The lack
of such mechanisms and ensuing violations of Article 13 seem to
be a regular feature of complex cases in Ukraine and should be a
priority for the Ukrainian authorities to address.
88. Ms Iryna Mudra, Vice-Minister of Justice, noted that 67 cases
against Ukraine had been closed during 2022 and the role of the
Government Agent had been reinforced. Ms Sokorenko, Government Agent
before the ECtHR, mentioned the laws adopted in 2022 to remedy the
problem of ill-treatment by the police, of the legality and length
of pre-trial detention, and indeterminate life imprisonment. Other
work had been pursued in developing plans to deal with prison overcrowding.
However, challenges remained, such as the Burmych cases.
She noted that damage caused by the war of aggression complicated
matters, for example in relation to prison movements and the safety
of certain prisons, where files were destroyed, and the general
pressure on the justice system. I can only commend the ongoing work
to address ECtHR judgments even in such difficult circumstances
and suggest that the Council of Europe provides ample support to
Ukraine in dealing with these challenges.
89. The situation in Ukraine is a complex one vis-à-vis other
countries due to the Russian war of aggression and the consequences
for the Ukrainian authorities and society as a whole. The challenge
though is to prove that democracy and the rule of law should always
prevail notwithstanding the huge barriers and challenges.
8.4. Hungary
90. In relation to Hungary, I set
out the detail of the most significant cases in the Information
Note.
![(150)
<a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-03-EN.pdf'>AS/Jur(2023)03</a>, The Implementation of judgments of the European Court
of Human Rights – 11th report <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-03-EN.pdf'>–Information note</a> in preparation of a hearing in relation to Hungary.](/nw/images/icon_footnoteCall.png)
According
to the Annual Report 2021 on the Execution of Judgments, Hungary
has the fifth largest number of cases pending execution (265) of
Council of Europe member States.
![(151)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021.</a>](/nw/images/icon_footnoteCall.png)
Hungary was fourth in relation to numbers
of cases closed during 2021 (66). For 2022, these figures look to
be improving with 219 cases pending execution (ranking Hungary fifth);
and 109 cases having been closed during 2022 (of which 4 were leading
cases), meaning that Hungary closed the largest number of cases
during 2022.
![(152)
See
the <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a> issued after this explanatory memorandum was drafted.](/nw/images/icon_footnoteCall.png)
Hungary
has the second largest number of unimplemented ECtHR judgments amongst
EU member States.
91. Key groups of cases relate to poor conditions of detention
in prisons;
![(153)
<a href='https://hudoc.echr.coe.int/eng'>István Gábor Kovács v.
Hungary</a> and <a href='https://hudoc.echr.coe.int/eng'>Varga and others v. Hungary</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution.</a>](/nw/images/icon_footnoteCall.png)
inadequate procedures for processing
asylum seekers before returning them to Serbia;
![(154)
<a href='https://hudoc.echr.coe.int/eng'>Ilias and Ahmed v. Hungary</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
excessively lengthy and unlawful
pre-trial detention;
![(155)
<a href='https://hudoc.echr.coe.int/eng'>XY v. Hungary</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
excessive length of civil, criminal
and administrative proceedings and the lack of an effective remedy;
![(156)
<a href='https://hudoc.echr.coe.int/eng'>Gazsó v. Hungary</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution.</a>](/nw/images/icon_footnoteCall.png)
independence of the judiciary;
![(157)
<a href='https://hudoc.echr.coe.int/eng'>Baka v. Hungary</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
irreducibility of life sentences;
![(158)
<a href='https://hudoc.echr.coe.int/eng'>Laszlo Magyar v. Hungary</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
discrimination against Roma children
in education;
![(159)
<a href='https://hudoc.echr.coe.int/eng'>Horvath
and Kiss v. Hungary</a> – see here for <a href='https://hudoc.echr.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
violations of the right to life and
the right to be free from torture and inhuman or degrading treatment
by security forces;
![(160)
<a href='https://hudoc.echr.coe.int/eng'>Gubacsi
v. Hungary</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
and the inadequacy of secret surveillance
legislation.
![(161)
<a href='https://hudoc.echr.coe.int/eng'>Szabo and
Vissy v. Hungary</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
92. During the exchange of views with the committee, Mr Barna
Zsigmond, Vice-Chairperson of the Hungarian delegation to the Assembly
highlighted the efforts that had been made to implement pilot cases
and in particular recent progress relating to the overcrowding of
prisons, including through the introduction of both preventive and
compensatory mechanisms. I was pleased to hear that in the largest
group of cases pending implementation which was related to the excessively
lengthy and unlawful pre-trial detention, significant progress had
been accomplished in 2021 thanks to the introduction of an appeal
against excessively lengthy procedures and other legislative changes.
Mr Zsigmond also noted recent co-operation with the Council of Europe,
such as through a conference in October 2022 relating to effective
investigations into allegations of mistreatment by the police. He
highlighted that the Ministry of Justice regularly submitted information
to parliament on the implementation of ECtHR judgments.
8.5. Azerbaijan
93. As concerns Azerbaijan, I undertook
a fact-finding visit to Baku from 20 to 23 November 2022 and my information
note
![(162)
<a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-01-EN.pdf'>AS/Jur(2023)01,</a> The Implementation of judgments of the European Court
of Human Rights – 11th report <a href='https://assembly.coe.int/LifeRay/JUR/Pdf/DocsAndDecs/2023/AS-JUR-2023-01-EN.pdf'>–Information note</a> following the rapporteurs visit to Azerbaijan, November
2022.](/nw/images/icon_footnoteCall.png)
contains full details of the visit, the
challenges and major cases pending implementation. I am very grateful
to all I met with for their time and useful insights into the challenges
and efforts being made to implement judgments of the European Court
of Human Rights. According to the Annual Report 2021 on the Execution
of Judgments, Azerbaijan has the fourth largest number of cases
pending execution (271) of Council of Europe member States. However,
Azerbaijan was only 20th in the number of cases closed in that year (12).
![(163)
The <a href='https://www.coe.int/en/web/execution/annual-reports'>Annual
Report 2022</a>, issued after this explanatory memorandum was drafted,
ranks Azerbaijan as having the fourth largest number of unimplemented
cases (285).](/nw/images/icon_footnoteCall.png)
94. Major cases are those related to Article 18 judgments (as
set out above) in: the
Mammadli group
![(164)
<a href='https://hudoc.echr.coe.int/eng'>Mammadli v. Azerbaijan</a> – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>.](/nw/images/icon_footnoteCall.png)
; the
Muradova group
![(165)
<a href='https://hudoc.echr.coe.int/eng'>Muradova v. Azerbaijan</a> (2009) – see here for the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>.](/nw/images/icon_footnoteCall.png)
relating to excessive use of force
and ill-treatment by the police during demonstrations; the
Mammadov (Jalaloglu) group
![(166)
<a href='https://hudoc.echr.coe.int/eng'>Mammadov (Jalaloglu)
v. Azerbaijan</a> (2007) – see here for details on the <a href='https://hudoc.exec.coe.int/eng'>status of execution</a>.](/nw/images/icon_footnoteCall.png)
relating to ill-treatment and/or
torture during arrest and police custody and the lack of adequate
criminal investigations relating to allegations of torture or mistreatment;
the
Ramazanova group,
![(167)
<a href='https://hudoc.echr.coe.int/eng'>Ramazanova v. Azerbaijan</a> (2007).](/nw/images/icon_footnoteCall.png)
relating to the freedom of
association (Article 11 of the Convention), and impediments to registering associations
that acted as a barrier to an effective civil society; the
Mirzayev group
![(168)
<a href='https://hudoc.echr.coe.int/eng'>Mirzayev v. Azerbaijan</a> (2009).](/nw/images/icon_footnoteCall.png)
relating to internally displaced
persons which make up a significant proportion of Azerbaijan’s unimplemented
cases; the holding of demonstrations and the right to protest, for
example as part of the
Gafgaz Mammadov group,
![(169)
<a href='https://hudoc.echr.coe.int/eng'>Gafgaz Mammadov v. Azerbaijan</a> (2015) – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution.</a>](/nw/images/icon_footnoteCall.png)
freedom of the press, including the
Khadija Ismayilova group,
![(170)
<a href='https://hudoc.echr.coe.int/eng'>Khadija Ismayilova v.
Azerbaijan</a> – see here for <a href='https://hudoc.exec.coe.int/eng'>the status of execution</a>.](/nw/images/icon_footnoteCall.png)
and the
Mahmudova
and Agazade group,
![(171)
<a href='https://hudoc.echr.coe.int/eng'>Mahmudov
and Agazade v. Azerbaijan</a> (2009) and <a href='https://hudoc.exec.coe.int/eng'>see here for the status
of execution</a>.](/nw/images/icon_footnoteCall.png)
concerning the deterrent effect
on free speech of a potential long prison sentence for defamation.
I strongly encourage swift legislative action to remove the possibility
of detention in defamation cases.
95. During my visit I heard about a significant number of legislative
and practical reforms adopted at the national level, especially
in the field of justice, as well as the recent co-operation with
the Department for the Execution of Judgments in advancing action
to address the implementation of ECtHR judgments. I was also pleased
to hear about recent efforts in 2022 in closing 25 ECtHR cases under
the supervision of the Committee of Ministers and submitting 30
action reports. This is part of a positive trend: Azerbaijan closed
6 cases in 2020, 12 in 2021 and 35 in 2022, and further progress
in closing cases can be hoped for in the coming year.
96. I also heard how the Presidential Administration had established,
in early 2022, a working group on the execution of judgments, including
the most relevant agencies for this work. However, there was a significant caseload
and backlog of cases, and perhaps less of an appreciation of the
measures needed to address ECtHR judgments across the government
more generally. Interlocutors noted greater delays in taking action to
address general measures or indeed individual measures. Further
consideration should perhaps be given to how to ensure swift action
in resolving individual measures following ECtHR judgments and to
ensure that all unnecessary administrative obstacles to enforcing
ECtHR judgments are removed.
97. Overall, my impression is that we can expect more progress
and that the Azerbaijani authorities seem to be taking positive
steps to better co-ordinate and to accelerate action in addressing
outstanding ECtHR judgments – including through the deployment of
a working group on the execution of judgments, as well as through
co-operation programmes and projects run in collaboration with the
Council of Europe’s Department for the Execution of Judgments. I
consider that it may, however, be helpful to reflect on what more
might be done to improve the domestic accountability of the government
for addressing ECtHR judgments in a timely manner, perhaps through
giving a greater role to civil society, the parliament and ombudsman,
whose remit could perhaps include supervising the implementation
of human rights judgments or even to have the right of legislative
initiative to help in resolving human rights issues. Most interlocutors
considered that the government was efficient at paying just satisfaction
but that quicker mechanisms are needed for addressing individual measures,
and that there is a need to incentivise timely action to address
general measures that are needed to prevent the recurrence of human
rights violations. I encourage the timely action of the Azerbaijani
authorities, including the Supreme Court, in addressing the outstanding
cases as swiftly as possible, in particular to promote the independence
of the judiciary and core democratic values such as freedom of expression
and of association. I look forward to hearing about a much more
significant number of cases being closed in the year to come as
these new processes should yield some positive results.
8.6. Russian Federation
98. The Russian Federation poses
a particular problem, given the exceptionally large number of unimplemented
ECtHR judgments; its resistance to implementing a significant number
of judgments even prior to 2022; its involvement in the majority
of current interstate cases – or cases linked to conflict or post-conflict situations
– due to its (often military) interference in countries in the region
(for example Georgia v. Russia, Catan
and Others v. Moldova and Russia, Mozer v. Moldova and Russia,
as well as a number of cases pending before the Court relating to
the downing of flight MH17, the situation in Georgia, the various
interferences in the sovereignty of Ukraine including the ongoing
war of aggression); the persistent rule of law issues in the country;
the intolerance towards democracy and free speech; as well as its
recent expulsion from the Council of Europe following its full-scale
military war of aggression against Ukraine.
99. According to the Annual Report 2021, as of 31 December 2021,
of the 5 533 cases pending implementation under the supervision
of the Committee of Ministers, by far the largest number of pending cases
related to the Russian Federation (1 942), thus accounting for 35%
of all cases.
![(172)
<a href='https://rm.coe.int/2021-cm-annual-report-en/1680a60140'>Annual
Report 2021</a>, pp. 11 and 37.](/nw/images/icon_footnoteCall.png)
The current figure
is closer to 2 395 cases pending implementation.
![(173)
As of 6 March 2023.](/nw/images/icon_footnoteCall.png)
Moreover,
notwithstanding Russia ceasing to be a member of the Council of
Europe, 22.4% of all applications pending before the ECtHR at the
end of 2022 were against the Russian Federation.
![(174)
<a href='www.echr.coe.int/Pages/home.aspx?p=reports&c='>Pending
applications</a><a href='https://www.echr.coe.int/Pages/home.aspx?p=reports&c='>.</a>](/nw/images/icon_footnoteCall.png)
100. The Russian Federation ceased to be a member of the Council
of Europe as from 16 March 2022 (Resolution
CM/Res(2022)2), and a Party to the Convention as from 16 September
2022. The Registrar of the Court issued a Press Release (ECHR 036(2023),
3 February 2023) and confirmed that according to Article 58 of the
Convention, the European Court remained competent to deal with applications
directed against Russia in relation to acts and omissions capable
of constituting a violation of the Convention provided that they occurred
up until 16 September 2022. In relation to the implementation of
judgments of the ECtHR, the Russian Federation remains bound by
its obligations under international law to respect human rights
and to comply with final judgments against it under Article 46(1)
of the Convention. Thus the Committee of Ministers continues to supervise
the execution of ECtHR judgments and friendly settlements concerning
the Russian Federation (paragraph 7 of Resolution
CM/Res(2022)3). To this end it is important that efforts continue
to ensure that people in Russia, and people in countries affected
by the Russian Government’s actions, are able to obtain redress
following a finding of a violation of the Convention, and to have
their human rights respected.
101. It is regrettable that, since 3 March 2022, the Russian authorities
have ceased all communication with the Secretariat. Moreover, a
new Russian law regarding the execution of judgments, that entered
into force on 11 June 2022 further confuses the situation domestically.
That law sought to argue that due to the exclusion of the Russian
Federation from the Council of Europe, judgments of the European
Court which became final after 15 March 2022 should not be enforced,
nor should they serve as a ground for the reopening of proceedings domestically.
This ignores the clear legal obligation of Russia to comply with
binding final judgments of the ECtHR. In relation to the payment
of just satisfaction for judgments prior to this day, the Russian
authorities stated that payment will be made in roubles, only to
bank accounts in Russia, and payment would be made only until the
end of 2022.
102. I welcome the carefully thought-through strategy that has
been developed on how the Committee of Ministers and the Department
for the Execution of Judgments of the European Court of Human Rights
will approach Russian cases – including continuing to write to the
Russian authorities to request information on cases; closing cases
that are implemented (where possible); co-operating closer with
civil society as a means of obtaining up-to-date information on
the situation in Russia and in areas under Russian effective control;
co-operating closer with other international organisations where
there are useful synergies, for example as concerns enforced disappearances
in Chechnya and the work of the United Nations Working Group on Enforced
or Involuntary Disappearances (the
Khashiev group
of cases), or relating to protecting women against domestic violence
and the work of the UN Committee on the Elimination of Discrimination
against Women (the
Volodina group
of cases). I also welcome the initiatives relating to the effective
communication of information to the public in relation to the state
of Russian implementation of ECtHR judgments, the register of outstanding
just satisfaction awards,
![(175)
<a href='https://www.coe.int/en/web/execution/register'>Register</a> of outstanding just satisfaction in respect of the Russian
Federation.](/nw/images/icon_footnoteCall.png)
and the stock-taking exercise.
103. Many of the cases continue to be of relevance to free speech
and democracy in Russia, for example the
Lashmankin ![(176)
Lashmankin group of
cases (see the notes and the draft decisions CM/Notes/1459/H46-21).](/nw/images/icon_footnoteCall.png)
group
of cases, which prove that the structural problem is still persisting
in Russia on that issue. Similarly, the blocking of online resources
(Vladimir Kharitonov group of cases)
is of continuing relevance given that thousands of websites have
been blocked mostly for their opposition against the war in Ukraine.
![(177)
Vladimir Kharitonov
group of cases (see the notes and the draft decisions CM/Notes/1459/H46-23).](/nw/images/icon_footnoteCall.png)
104. The main cases or groups of cases pending implementation by
the Russian Federation include poor conditions of detention in remand
centres (
Kalashnikov group
of cases
); excessive length
of remand detention and other violations of Article 5 of the Convention
(
Klyakhin group of cases);
![(178)
In particular, the
issue of individual measures in the cases Pichugin v. Russia (No.
1), Application No. 38623/03, judgment of 23 October 2012, and Pichugin
v. Russia (No. 2), Application No. 38958/07, judgment of 6 June
2017 (release of the applicant) and in Khodorkovskiy and Lebedev
v. Russia, Application No. 11082/06, judgment of 25 July 2013 (the lifting
of an unlawful damage award).](/nw/images/icon_footnoteCall.png)
acts of torture
and ill-treatment during custody (
Mikheyev group
of cases); repeated bans on gay pride events (the
Alekseyev case); secret, extrajudicial
extraditions and expulsions (
Garabayev group
of cases); continuing human rights violations in the North Caucasus
region of the Russian Federation, mostly relating to the actions
of security forces in the Chechen Republic (
Khashiyev
and Akayeva groups of cases),
Georgia
v. Russia, Catan and Others
v. Moldova and Russia and
Mozer
v. Moldova and Russia (see the section on interstate
cases above).The
Navalnyy v. Russia ![(180)
Application No. 29580/12,
judgment of 15 November 2018 (Grand Chamber).](/nw/images/icon_footnoteCall.png)
and
Navalnyy (No. 2) v. Russia ![(181)
Application No. 43734/14,
judgment of 9 April 2019.](/nw/images/icon_footnoteCall.png)
judgments continue
to be important. The Committee of Ministers continues asking for
the latter’s release and refers to his harsh detention conditions
and solitary confinements.
105. The case
OAO Neftyanaya Kompaniya
YUKOS v. Russia ![(182)
Application
No. 14902/04, judgment of 20 September 2011 (on the merits).](/nw/images/icon_footnoteCall.png)
illustrates
the problems caused by the amendments to the Constitution of the
Russian Federation that add further obstacles to Russian compliance with
its international obligations under the Convention. In
YUKOS, the Court held that there
had been various violations of the Convention concerning tax and
enforcement proceedings brought against the applicant oil company
(mainly of Article 6 of the Convention and Article 1 of the Additional
Protocol of the Convention). The Court allocated a total amount
of nearly 1.9 billion euros to the shareholders of the applicant
company (as they stood at the time of the company’s liquidation)
by way of just satisfaction, to be paid within six months from the date
on which that judgment became final.
![(183)
Application No. 14902/04,
judgment of 31 July 2014 (just satisfaction, Article 41).](/nw/images/icon_footnoteCall.png)
The
just satisfaction is still outstanding although the costs were paid
in 2017. Following an application by the Russian Ministry of Justice,
on 19 January 2017, the Russian Constitutional Court delivered a
judgment concluding that it was impossible to implement the Court’s
judgment on just satisfaction in this case without contravening
the Russian Constitution
![(184)
<a href='https://hudoc.exec.coe.int/ENG'>Case Description</a> in HUDOC-EXEC.](/nw/images/icon_footnoteCall.png)
(which was due to
the amendments to the Federal Law on the Constitutional Court passed
in December 2015)
![(185)
See
the Venice Commission Opinion CDL-AD(2016)016.](/nw/images/icon_footnoteCall.png)
.
While the Russian authorities referred to this decision of the Constitutional
Court, the Committee of Ministers stressed that this did not alter
the “unconditional obligation assumed by the Russian Federation
under Article 46 of the Convention to abide by the judgments” of
the Court. On 20 January 2020 the Russian President introduced a
bill to the State Duma, proposing amendments to 22 provisions of
the Constitution, including an amendment aimed at adding to Article
79 of the Constitution
![(186)
According
to this provision, “[t]he Russian Federation may participate in
interstate organisations and transfer to them part of its powers
according to international treaties and agreements, if this does
not involve the limitation of the rights and freedoms of man and
citizen and does not contradict the principles of the constitutional
system of the Russian Federation”.](/nw/images/icon_footnoteCall.png)
the following
sentence: “Decisions of interstate bodies adopted on the basis of
the provisions of international treaties are not enforceable in
the Russian Federation if they contradict the Constitution”. The
amendments were passed in parliament on 10-11 March, signed by the President
on 14 March and approved by the Russian Constitutional Court on
16 March 2020. The Committee of Ministers has consistently recalled
the unconditional obligation to abide by the Court’s judgments and
that provisions of national law cannot justify a failure to perform
obligations stemming from international treaties.
9. Conclusions
106. The question of the implementation
of judgments of the European Court of Human Rights is not purely a
practical or legal matter. Experience has proved that this issue
is primordially a political one and this can be proved flagrantly
in the interstate cases, in the cases falling under violations of
Article 18 and in cases where the execution is lacking because of
the unwillingness or reluctance of authorities to comply with final
binding judgments of the Court. Although the execution of ECtHR
judgments, according to the Convention, is a matter above all under
the responsibility of the Committee of Ministers, the Assembly’s
involvement is indispensable, and the Assembly has shown that the
monitoring it carries out in this field and the political pressure
it exerts provide greater support for the action of the Committee
of Ministers and therefore present an added value.
107. As stressed in my previous report, recent reforms have enabled
the Committee of Ministers to successfully close some of the pending
cases more quickly, and swift action has been taken notably in relation to
repetitive cases. I particularly commend the diligent work of the
Department for the Execution of Judgments of the European Court
of Human Rights in this regard, which grapples with an enormous
caseload in assisting States with the often challenging task of
implementing ECtHR judgments.
108. However, a considerable number of leading cases have still
not been executed, which is often due to deeply rooted problems,
whether due to a lack of adequate resources or organisation – or
more fundamental political opposition to reforms. In addition to
this, a significant number of cases, including repetitive cases, continue
to be brought adding to the overall caseload of both the Court and
the Committee of Ministers. The sheer number of cases therefore
seems likely to persist, with the lion’s share implicating only
a handful of countries. Moreover, frequently, cases become more
difficult precisely because of political considerations and can
take a long time to resolve and use a lot of resources. Indeed,
many of the cases mentioned in previous reports have now been pending
for over ten years or even more (for example, Cyprus
v. Turkey since 2001).
109. As shown in this report, there are still persistent difficulties
in the execution of certain judgments linked to the absence of political
will or even an open disagreement with a judgment of the Court,
especially when it comes to interstate cases or cases having interstate
features. However, whilst the challenges remain huge, there has
been some welcome progress in individual cases, for example Paksas v. Lithuania.
110. In general, the Committee of Ministers should continue to
make use of its usual instruments of peer pressure such as interim
resolutions or repeated examination of cases at its human rights
(DH) meetings, not only to express its political disagreement with
the relevant State’s insufficient action, but also to give more visibility
to the issues at stake. In particular, I would encourage more systematic
co-operation with National Human Rights Institutions in the execution
process. I also recommend that careful, perhaps creative, reflection is
given to improving the tools available to the Committee of Ministers
and the Council of Europe as a whole, to encourage the timely and
effective implementation of ECtHR judgments, especially in complex
cases such as interstate cases.
111. ECtHR judgments, and the supervision of their implementation,
have an important role to play in providing European citizens with
confidence in the processes for upholding the rule of law, democracy
and human rights across the European continent. The upset and confusion
in Cyprus following the closure of the
Loizidou case
![(187)
<a href='https://hudoc.echr.coe.int/fre'>Loizidou v. Turkey.</a>](/nw/images/icon_footnoteCall.png)
illustrates the importance of improved
explanations and transparency to explain why a case is being closed
and what this means. This is especially important where general
measures will continue to be considered under another leading judgment.
I therefore strongly call on the Committee of Ministers to ensure that
they set out in all interim and final resolutions, their clear,
specific reasoning to justify closing supervision of a case, in
accordance with clear and transparent criteria. This should help
to improve accountability, and build understanding and trust in
the functioning of the system. European citizens need to be able
to understand how decisions are made and to understand the legitimacy
of decision making as part of building confidence and trust in the
ability of the system to promote and protect the rule of law, human
rights and democracy.
112. States Parties to the Convention have achieved a certain progress
in ensuring compliance with the Convention by undertaking important
reforms following the Court’s judgments. However, more can be done
to improve structure within States to best ensure the timely implementation
of ECtHR judgments and to ensure full co-operation with the Committee
of Ministers, the Department for the Execution of Judgments and
other relevant bodies of the Council of Europe. If the execution
measures are not adopted or if they do not provide redress in practice,
this will entail more human rights violations and thus will lead
to new applications being lodged at the Court, followed by new judgments
finding more violations of the Convention, leading to a more rigorous
supervision of the Committee of Ministers.
113. I have found in this work that a surprisingly significant
amount of delay to implementing ECtHR judgments is at least in part
due to ineffective or under-resourced national mechanisms for implementing reforms
and for co-ordinating the response to ECtHR judgments. There are
plenty of examples of guidance as to best practice available, however,
such ideas do not always seem to be implemented. I encourage further efforts
to be made so that States ensure that those responsible for implementing
ECtHR judgments have the necessary resources, authority, and incentives
to perform this task swiftly – not least given the imperative of preventing
further human rights violations. To this end, I think it could be
useful to consider what mechanisms (including penalties) could incentivise
States to submit relevant information on time to avoid unnecessary delays
due to a lack of attention to implementation.
114. The Russian Federation poses a particular problem, given its
resistance to implementing a significant number of judgments even
prior to 2022; its involvement in a vast majority of interstate
cases due to its, often military, interference in countries in the
region; the persistent rule of law issues in the country; as well
as its recent expulsion from the Council of Europe following its
full-scale military war of aggression against Ukraine. The Russian
Federation remains bound by its obligations under international
law to respect human rights and to comply with final judgments against
it under Article 46(1) of the Convention. Efforts must continue
to ensure that people in Russia and in countries affected by Russia’s
actions can obtain redress and have their human rights respected.
To this end, I welcome the well thought-through strategy on how
the Committee of Ministers and the Department for the Execution
of Judgments will approach Russian cases and notably their approach to
co-operation with civil society and NGOs as well as other international
organisations, including the UN and its special procedures and rapporteurs.
115. The rule of law must be coupled with accountability if it
is to have any real effect and States must assume their responsibility.
What has become evident in the drafting of this report is that national
and political priorities often render the judgments of the Court
ineffective, and thus human rights illusory. I note that a significant number
of interlocutors have suggested that tricky implementation challenges
could be facilitated by introducing incentives, including the possible
imposition of penalties as part of the tools for tackling unduly delayed
implementation of ECtHR judgments, as for the judgments of the Court
of Justice of the European Union. Such ideas should not be ruled
out for the future. It is alarming, for example, that the Kavala judgment remains unimplemented
notwithstanding the clear obligation on the Turkish authorities
following the Article 46(4) judgment. However, I remain hopeful
that with the right attitudes and perseverance we will ensure respect for
the rule of law and human rights across the Council of Europe space.
116. Parliaments have a special role in relation to the implementation
of ECtHR judgments, as the Annual Reports and the above overview
of cases show – many judgments concerning complex or structural
problems have not been implemented because of a lack of political
will and/or legislative measures. Many national parliaments have
still not established special structures to examine the compatibility
of draft legislation with the Convention and to systematically monitor
the implementation of the Court’s judgments concerning their countries
and the implementation of the Convention in general, neither have
they organised regular parliamentary debates on this subject. It
is important that we, as parliamentarians, have the possibility
to question governments on their actions related to execution measures,
including on the elaboration and content of action plans/reports.
A handbook for parliamentarians entitled “
National
Parliaments as Guarantors of Human Rights in Europe” was published in 2018. The Assembly’s role in monitoring
the implementation of the Court’s judgments has been emphasised
in its
Resolution
2277 (2019) “The role and mission of the Parliamentary Assembly:
main challenges for the future”.
![(188)
In paragraphs 5 and
11.1.](/nw/images/icon_footnoteCall.png)
The Assembly should continue to promote
the idea of establishing parliamentary structures devoted to ensuring
compatibility of draft legislation with the Convention and the Court’s
case law, in line with its previous resolutions such as
Resolution
2178 (2017) and
Resolution
1823 (2011). Moreover, we, as individual members of the Assembly,
have a special responsibility for promoting these measures and raising
awareness of the Convention standards in our parliaments.
117. I consider that the Assembly should seek to do more, in the
coming years, to encourage national parliaments and parliamentarians
to develop the structures and capacity to actively monitor and hold governments
to account for the timely and effective implementation of ECtHR
judgments and of the Convention as a whole. I recommend further
initiatives to develop parliamentary capacity for performing this
important democratic function, in furtherance of the respect for
the rule of law and human rights. As part of this I propose that
the Assembly steps up its engagement with national parliaments,
including through the involvement of the work of the Sub-Committee
on the implementation of judgments of the ECtHR and of the future
rapporteurs dealing with this file.