1. Introduction
1.1. Background
1. The specific characteristics and success of the European
Convention on Human Rights (“the Convention”) system, as set up
by the Council of Europe, are undoubtedly the binding nature of
the judgments of the European Court of Human Rights (“the Court”)
and the Committee of Ministers’ role in supervising the full execution
of those judgments by states. Such a mechanism ensuring the implementation,
by states parties, of human rights cannot be found anywhere else
in the world. That being said, the implementation process may be
legally and, at times, politically complex. There can be several
domestic institutions involved with varying legal competences, and
political pressures or other interests often present obstacles that
need to be overcome in order to speedily and effectively implement
Court judgments. It is for this reason that – with their unique political
perspectives – national parliaments and the Parliamentary Assembly
should complement the work of the Committee of Ministers to ensure
swift and complete compliance with the Court’s rulings.
2. Experience indicates that the Assembly has been effective
in performing this role through reports, recommendations, resolutions,
and the holding of debates. This is the seventh report which will
lead to the seventh resolution and the sixth recommendation adopted
by the Assembly since 2000; ten years that have seen a number of
complex and difficult issues resolved with the assistance of the
Assembly, the respective national parliaments and their delegations.
3. During the drafting of this seventh report, the important
Interlaken Conference took place in February 2010.
Framed in the context of reducing
the backlog of cases before the Court, the Interlaken Declaration called
for,
inter alia, further action
by member states to improve the implementation of Court judgments
at the national level and, more importantly, full and expeditious
compliance with the Court’s judgments.
The Interlaken Conference has thus officially
prioritised the national level implementation of Court judgments, adding
timely impetus to the urgent message I am sending in this seventh
report.
1.2. The rapporteur’s
mandate
4. My mandate as rapporteur is to address particularly
problematic instances of delayed and/or non-execution of the Court’s
judgments.
In doing this, I have considered
three main concerns: firstly, for the European Court of Human Rights
to continue its extraordinary contribution to the protection of
human rights in Europe, particularly in dealing with major violations
of the most fundamental rights; it is essential that the backlog
and flux of repetitive cases it faces is eradicated through the
full and effective execution of its judgments. It is absolutely
crucial that member states with systemic problems giving rise to
repetitive applications resolve the root causes of the violation.
Secondly, emphasis must be placed on the fact that significantly
grave violations of human rights have become repetitive in a number
of member states; this situation is unacceptable. Lastly, in order
to facilitate the expedient execution of judgments, I have continued to
stress the importance of effective national parliamentary “follow-up
structures” in order to promote the establishment of an effective
procedure for parliamentary supervision of the implementation of
the Court’s judgments at a national level.
5. Bearing in mind the introductory memorandum
and
progress report
which
I presented to the Committee on Legal Affairs and Human Rights in
June 2008 and September 2009 respectively, the method of identifying
judgments to be addressed in this seventh report has been somewhat
refined since the excellent work of my illustrious predecessor,
Mr Erik Jurgens. I have maintained the successful practice of country
visits, but it is now in the above three areas, I believe, that
my mandate can be of significant added value to the existing system
of supervision, where the Committee of Ministers has primary responsibility.
As a result of this new emphasis, the member states considered in
this report are principally those which are classified under one or
both of the following rubrics:
- judgments
which raise important implementation issues as identified, in particular,
by an interim resolution of the Committee of Ministers; and
- judgments concerning violations of such a serious nature
that I am compelled to address the issue of their implementation.
2. 2. Overview
of states with substantial implementation problems
2.1. Introductory remarks
6. Portugal and the United Kingdom were identified in
my progress report as states having substantial difficulties in
implementing Court judgments. However, given the progress made in
Portugal, as well as the need to somehow distinguish specific concerns
I have noted with respect to the United Kingdom, in comparison with
states with more substantial problems, I have decided to deal with
both these countries separately in the present report.
2.1.1. Portugal
7. In response to judgments of the Court finding violations
of Article 6.1 of the Convention, due to excessive length of judicial
proceedings,
the Portuguese authorities adopted
a number of legislative and administrative measures aimed at reducing
the length of proceedings.
Indeed,
in its latest interim resolution on the subject (CM/ResDH(2010)34),
the Committee of Ministers noted some significant developments;
statistics provided by the Portuguese authorities reveal a general
decrease in the average length of judicial proceedings before higher
courts
and
measures have been adopted with a view to improving the efficiency
of the judiciary as a whole. That said, harmonisation of domestic
courts’ case law concerning an effective remedy for excessive length
of proceedings is still needed.
8. Although certain issues still remain a subject of concern,
overall, the efforts made by
the Portuguese authorities are strongly welcomed and should be viewed
as an example of best practice in this area.
2.1.2. United Kingdom
9. As significant implementation problems obviously
still persist in the United Kingdom (UK), it would have been inappropriate
to have dropped this country from this section. I have nevertheless
set the United Kingdom aside from the other nine states listed below,
as this country is not on the list of states in which the most difficult human
rights problems are enumerated (see Appendix 1). That said, in the
United Kingdom, areas where concerns currently exist include:
- Prisoner voting rights ( Hirst (No. 2) v. the United Kingdom –
Grand Chamber);
- Retention of DNA and biometric data ( S. and Marper v. the United Kingdom – Grand
Chamber) .
2.1.2.1. Prisoner voting
rights
10. The issue of prisoner voting rights is dealt with
in the
Hirst (No. 2) v. the United Kingdom case and the failure
to execute this judgment in time for the recent UK General Election
on 6 May 2010 has, in effect, resulted in the violation of the rights
of thousands of prisoners, meaning that there is now a risk of an
influx of applications to the Court.
11. In the Hirst (No. 2 case), the Court deemed the automatic
and indiscriminate restriction on the right to vote for convicted
prisoners to be in violation of Article 3 of Protocol No. 1. The
ban, imposed by the Representation of the People Act 1983, did not
consider the length of the sentence, the nature of the offence or
the individual circumstances of the prisoner.
12. The action plan submitted by the UK authorities in 2006 laid
out a two-stage consultation process, the first of which proposed
partial enfranchisement based on sentence length. The latter, published
in April 2009, concluded that this was indeed the answer and proposals
would enfranchise between 11% and 45% of the prison population.
Linking entitlement to vote with sentence length establishes an
association between the nature of the crime and the right to vote;
however, concerns have been voiced by the UK Parliamentary Joint Committee
on Human Rights (JCHR) that this is not an appropriate response
as it would lead to further litigation.
Information
on progress was to be provided in September 2010.
13. The fact remains that this judgment is still to be executed
and as a result thousands of prisoners continue to be denied their
right to vote, despite pressure from the Committee of Ministers,
which had foreseen the risk of repetitive applications before the
Court in this case (Interim Resolution CM/ResDH(2009)160). Inevitably, further
applications have been communicated to the UK Government on the
issue.
However,
the new United Kingdom Government has recently confirmed that it
will implement the judgment in the Hirst No. 2 case and has commenced
ministerial deliberations on the matter.
Progress in this regard is imperative
considering that the Committee of Ministers, at its meeting in September
2010, again regretted the lack of tangible and concrete information
on any progress and has called upon the UK authorities to prioritise
implementation of this judgment without further delay.
2.1.2.2. Retention of DNA
and biometric data
14. This is a significant issue in the United Kingdom
and is the subject of the Grand Chamber ruling
S. and Marper v. the United Kingdom.
The indefinite retention
of DNA and fingerprint evidence taken from persons suspected of
a crime but ultimately acquitted or never tried, was considered
to be in violation of Article 8 of the Convention. In addition,
the legislative framework did not provide for any independent review
of the retention.
15. The United Kingdom initially proposed a plan of legislative
reform which prompted close scrutiny from the Committee of Ministers.
16. Since then, encouraging progress has come in the manifesto
of the new UK Government, which contained
a promise of a new approach to implement the Scottish legislative
framework, identified as Convention compliant in the judgment,
in the rest of the United
Kingdom; although the United Kingdom has yet to present the details
of how and when the Scottish scheme will be adopted in England,
Wales and Northern Ireland. In the meantime, the original scheme
deemed unacceptable by the Court in its judgment continues to operate,
having a large-scale impact on all individuals in England, Wales
and Northern Ireland who come into contact with the police and justice
system.
2.1.2.3. Additional comments
2.1.2.3.1. Intra-governmental
co-ordination
17. In response to the JCHR recommendations,
the Minister of Justice now
co-ordinates the relevant government departments responsible for
implementation of judgments and transmits the information to the Foreign
and Commonwealth Office which represents the United Kingdom before
the Committee of Ministers.
Each government
department implementing a judgment must now fill in a form provided
by the Minister of Justice which “ensures that all the information
needed for effective oversight of the implementation process is provided
to both the Ministry of Justice and Foreign and Commonwealth Office”.
2.1.2.3.2. Emerging issue –
minimal compliance
18. In recent years, there have been a number of major
landmark cases in the Court’s case law where the United Kingdom
is the defendant state: for example,
Al-Saadoon
and Mufdhi v. the United Kingdom (Article 3),
Gillan and Quinton v. the United Kingdom (Article 8),
S.
and Marper v the United Kingdom (Article 8) and
A. and Others v. the United Kingdom (Article 5). Most of these judgments
are also Grand Chamber judgments. The execution process for some
of these judgments (where it has begun) has become somewhat politicised
at the national level and consequently the JCHR has identified what
it perceives as an emerging practice of “minimal compliance’; where
some action has been taken by the United Kingdom but far from enough.
This has been highlighted by the JCHR
as a problem in that it increases
the possibility of repetitive cases by failing to put an end to
a root problem, thus creating further litigation.
2.2. Overview
2.2.1. Bulgaria
19. In Bulgaria, problems with respect to implementation
of Court judgments arise most prominently in three areas:
- deaths and ill-treatment taking
place under the responsibility of law enforcement officials and
lack of effective investigation;
- violations of the right to respect for family life due
to deportation/order to leave the territory;
- excessive length of judicial proceedings and lack of an
effective remedy.
20. During my visit to Bulgaria in May 2009, I stressed the need
for the Bulgarian Justice Ministry’s Concept Paper on overcoming
significant problems concerning implementation of Court judgments
to be given practical effect and was assured by several ministries
that this would be done.
Regrettably, the Bulgarian authorities have
yet to provide information on any progress achieved in putting the
“Concept Paper” into practice.
2.2.1.1. Deaths and ill-treatment
taking place under the responsibility of law enforcement officials and
lack of effective investigation
21. The case of
Velikova v.
Bulgaria and
several similar cases
principally concern deaths or ill-treatment taking
place under the responsibility of law enforcement officials. All
of these cases also concern the lack of effective investigation
into the deaths or into the applicants’ claims to have suffered
ill-treatment at the hands of law enforcement forces.
22. The Bulgarian authorities have adopted a number of measures
in this area.
In
relation to deaths and ill-treatment, measures improving vocational
training for members of the police have been introduced. Compulsory
training in human rights is now part of police training and, in
2000, a specialised Human Rights Committee was set up at the National
Police Directorate. Furthermore, in 2002, a new declaration form
was introduced, to be signed by all detained persons, containing
information on their basic rights. Finally, taking into account
the Committee of Ministers’ Recommendation Rec(2001)10 and drawn
up in co-operation with the Council of Europe, a Code of Police
Ethics was introduced in 2003.
23. With regard to the lack of effective investigation in these
cases, legislative amendments adopted in 2001 provide for judicial
review of public prosecutors’ decisions to close criminal proceedings
and enable the courts to return files back to prosecutors with instructions
to carry out specific investigation measures.
In the last few years
(2005-09), disciplinary sanctions have been imposed on officers
by the Minister of the Interior.
However, despite
these sanctions and the above-mentioned awareness raising, human
rights abuses by police continue.
24. In its Interim Resolution CM/ResDH(2007)107, the Committee
of Ministers noted that certain general measures remain to be taken,
in particular those aimed at improving the training of police officers,
particularly regarding the inclusion of human rights issues in the
training, improving procedural guarantees during detention on remand,
and guaranteeing the independence of investigations dealing with
allegations of ill-treatment at the hands of the police. The Committee
of Ministers called upon the Bulgarian Government to rapidly adopt
all outstanding measures and to regularly inform the Committee of
Ministers about the impact of the new measures. Information on the
above issues is still awaited.
2.2.1.2. Violations of the
right to respect for family life due to deportation/orders to leave
the territory
25. The case of
Al-Nashif
and Others v. Bulgaria and four similar
cases
concern
violations of the applicants’ right to respect for their family
life as the applicants were deported or ordered to leave the territory pursuant
to a legal regime that did not provide sufficient safeguards against
arbitrary application (violations of Article 8). The Al-Nashif and
Others
and Bashir and Others
cases also concern the fact that
the applicable law afforded the applicants no opportunity to challenge
the lawfulness of their detention while awaiting deportation or
expulsion (violations of Article 5.4).
26. Some progress has been made regarding violations of the applicants’
right to respect for their family life. At the time of the Al-Nashif
and Others case Bulgarian law did not provide for judicial review
of the lawfulness of aliens’ detention in case of their expulsion
on the grounds of national security, nor of the decision on expulsion
itself.
Since
the
Al-Nashifand Others judgment, the well-established
practice of the Bulgarian Supreme Administrative Court indicates
to the competent courts that they are required to apply the Convention as
interpreted by the European Court of Human Rights and therefore
must examine complaints against expulsion on the grounds of national
security.
27. Furthermore, progress has been made through legislative reform.
In 2007, a draft law amending the Aliens Act was adopted; the new
law introduces judicial review by the Supreme Administrative Court
of expulsions, revocations of residence permits and bans on entry
into the territory ordered on national security grounds. Although
this signifies progress, it should be noted that the new law excludes
the suspensive effect of an appeal against such measures when based
on national security grounds. Information on the practical effectiveness
of judicial review is awaited
28. Finally, the Bulgarian authorities have indicated that the
lawfulness of detention pending deportation may be reviewed by the
competent administrative organs and courts in accordance with the
provisions of the Code of Administrative Procedure. With this in
mind, additional information is requested on the current practice concerning
the judicial supervision of detention pending deportation.
2.2.1.3. Excessive length
of judicial proceedings and lack of an effective remedy
30. The Bulgarian authorities have adopted a number of reforms
aimed at accelerating judicial proceedings. A new Code of Criminal
Procedure entered into force in April 2006 as part of a global reform
of criminal justice in Bulgaria. Most notably, the code introduces
the obligation for courts and investigating authorities to examine criminal
cases within a reasonable time. Furthermore, seminars and other
training activities on the Convention and the case law of the Court
are regularly organised by the National Institute of Justice. The
Bulgarian authorities have stated that the statistics provided concerning
the average length of criminal proceedings point to the stable functioning
of the criminal justice system in this respect, however, it should
be noted that these statistics relate only to proceedings before
first-instance courts and not to criminal proceedings in their entirety. Additional
information on other measures taken to reduce the length of criminal
proceedings together with comprehensive statistical data has yet
to be provided to the Committee of Ministers.
31. Regarding civil proceedings, the new Code of Civil Procedure
of 2007 allows a party to lodge a complaint against the length of
the proceedings with the court superior to the court dealing with
the merits. If the superior court to which a case is referred finds
that there was an unjustified delay in proceedings, it may indicate
to the lower court a time limit for carrying out the necessary acts.
With respect to criminal proceedings, until the amendment to the
Code of Criminal Procedure in May 2010, a defendant was allowed
to request the transfer of his or her case to a competent court
once a period of one or two years had elapsed since the beginning
of the preliminary investigation, depending on the gravity of the
charges brought. The competent court could then order the prosecutor
to end the preliminary investigation within two months or, alternatively,
put an end to the proceedings.
But the relevant
provisions providing for such a remedy were abolished (in May 2010)
and since then information is awaited from the authorities on the
introduction of an effective remedy concerning criminal proceedings.
The Bulgarian authorities also envisage the introduction of a similar
remedy relating to criminal proceedings pending at the trial stage;
information on such progress is also awaited.
2.2.2. Greece
32. In Greece, with respect to implementation of judgments
of the European Court of Human Rights, two prominent areas have
been highlighted in recent years.
- excessive length of proceedings and lack of an effective
remedy;
- use of lethal force and ill-treatment by members of law
enforcement officials and lack of effective investigation into such
abuses.
33. During my visit to Greece on 18 and 19 January 2010, I invited
Greek parliamentarians to monitor the implementation of Court judgments
within parliament and was assured they would do so.
Unfortunately, information on any
progress in this area has yet to be provided by the Greek authorities.
2.2.2.1. Excessive length
of proceedings and lack of an effective remedy
34. In
Manios v. Greece and several similar cases,
the
Court found violations of Article 6.1 due to the excessive length
of proceedings before administrative, civil and criminal courts.
Many of these cases also concern the lack of an effective domestic
remedy as required by Article 13 of the European Convention on Human
Rights.
35. It is in relation to administrative courts, in particular
the Council of State, where the most significant concerns regarding
excessive length of judicial proceedings exist. The Greek authorities
have responded positively in introducing Law No. 3659/2008 entitled
“Improvement and acceleration of proceedings before administrative
courts and other provisions”, which is now in force. This most importantly
ensures that cases raising important legal questions and repetitive
cases are heard as a matter of priority within a strict time frame. Moreover,
Law No. 3772/2009 concerning acceleration of proceedings before
the Council of State has recently entered into force.
36. The Greek authorities expect that these reforms will reduce
the duration of proceedings before administrative courts by at least
a year. As the measures introduced are recent developments, it would
be impossible to come to an assessment of their effectiveness at
this early stage. With this in mind, further information on how
these reforms have been implemented as well as the state of play
regarding the proceedings before civil and criminal courts should
be provided by the Greek authorities.
37. The above-mentioned shortcomings are aggravated by the lack
of an effective domestic remedy, either compensatory or preventive.
38. A draft law entitled “Compensation of litigants due to excessively
lengthy judicial proceedings”, providing for a compensatory domestic
remedy in cases of excessive length of proceedings was expected
to be tabled before parliament during the 2008 summer session. Regrettably,
there appears to have been no recent progress in the adoption of
this law. This issue should be addressed as a matter of urgency
by the Greek authorities. The current financial crisis should not
prevent them from finding the long-term solutions that are required.
2.2.2.2. Use of lethal force
and ill-treatment by law enforcement officials and lack of effective investigation
into such abuses
39. The case of
Makaratzis
v. Greece and
other similar cases
concern violations
of the Convention arising from actions of law enforcement officials
(substantial and procedural violations of Article 2 and 3). In particular,
these cases have highlighted considerable shortcomings in the legislative
and administrative framework governing the use of firearms and in
investigations regarding allegations of ill-treatment and deaths at
the hands of the police.
2.2.2.2.1. Absence of an appropriate
legislative and administrative framework relating to the use of
firearms and ill-treatment under the responsibility of the police
40. Significant steps have been taken by the Greek authorities
to establish an effective legal framework governing the use of force
and firearms by the police. In 2003, a new law concerning the use
of firearms by police entered into force. The law contains precise
and strict conditions for the use of firearms by police officers, stating
that firearms should only be used as a last resort. Furthermore,
the 2004 Code of Conduct for Police Officers contains guidance on
police officers’ proper behaviour towards all citizens in accordance
with international human rights law. However, events that occurred
in November 2006 in Thessaloniki and in December 2009 in Athens,
seem to show that there is insufficient implementation of those
measures. Thus, the Greek authorities should further consider the
full implementation of the above-mentioned texts.
2.2.2.2.2. Absence of an effective
investigation
41. The adoption of a new disciplinary code in September
2008 signifies considerable progress in ensuring the initiation
of an effective investigation into allegations of abuse of force
by police. Most importantly, the new code widens the scope of acts
considered as disciplinary offences, imposes heavier sanctions in
cases of torture and provides for the compulsory examination of
complaints relating to disciplinary offences concerning civilians,
In addition, circulars were issued to all police stations in line
with the findings of the Court in the judgment in the case of Bekos
and Koutropoulos: the investigating officers are obliged to examine
whether racist motives played any role in cases of disproportionate
use of arms and ill-treatment.
42. Importantly, since 2005, more extensive training on human
rights issues has been provided to both new and serving police officers.
A particularly positive aspect of these developments is the creation
of a committee whose task is to prepare proposals on the organisation
and content of human rights training for police; it is envisaged
that the committee’s proposals will assist police officers in incorporating
human rights principles into the manner in which they approach the
arrest and questioning of suspects.
43. The Greek authorities had undertaken to set up as soon as
possible a committee of three independent members competent to evaluate
the advisability of opening new administrative investigations following
a judgment of the Court. This committee has not been established
yet. This issue should be addressed as a matter of priority.
2.2.2.3. Additional comments
2.2.2.3.1. Intra-governmental
co-ordination
44. As I stressed during my visit to Greece,
the Greek authorities should make
further efforts in order to co-ordinate more effectively the different
state bodies which are responsible for the execution of the Court’s judgments,
in line with the requirements of the Committee of Ministers’ Recommendation
CM/Rec(2008)2 on efficient domestic capacity for rapid execution
of judgments of the European Court of Human Rights.
2.2.2.3.2. Emerging issues
45. New judgments have revealed other important and/or
structural problems in Greece regarding, for instance, conditions
of detention of foreigners, asylum procedures
and freedom of association.
The implementation
of those judgments may require further attention in the future.
The statement of the Greek Prime Minister before the Assembly on
26 January 2010 – “we should implement all the decisions that the Council
of Europe and the Court decide upon” – is promising.
2.2.3. Italy
46. In Italy, long-standing issues concerning excessive
length of judicial proceedings and lack of an effective remedy remain
by far the most pressing issues relating to the implementation of
Court judgments. That said, recent developments, such as expulsions
of foreign nationals in breach of interim measures ordered by the Court
(violation of Articles 3 and 34) merit close attention.
47. During my visit to Italy in November 2009, I called upon members
of the Chamber of Deputies and the senate to act together to adopt
all the necessary measures to speed up civil and criminal proceedings.
Information is awaited on the latest
measures taken to tackle this serious problem. If such information
is not communicated, I would invite the chairperson of the Italian
parliamentary delegation to come before the Committee on Legal Affairs
and Human Rights to explain such inactivity and future measures
envisaged. In addition, bearing in mind Italy’s dilatoriness in
complying with Court judgments, we may need to envisage, in due
course, inviting the Ministers of Justice and of Economic Affairs
to come before it and explain why Italy, a mature democracy and
founding member of the Council of Europe, has now over many years
not been able (willing?) to put its house in order, thereby jeopardising
the existence of our unique human rights control system.
2.2.3.1. Excessive length
of judicial proceedings and lack of an effective remedy
2.2.3.1.1. Excessive length
of judicial proceedings
48. The case of
Ceteroni v.
Italy and
several similar cases
reveal a serious systemic or structural problem
concerning excessive length of judicial proceedings in Italy. This
issue has long since been one of the most problematic issues facing
the Court and has been the subject of several Committee of Ministers’
final and interim resolutions.
In its Interim Resolution
CM/ResDH(2007)2, the Committee of Ministers, while welcoming the
progress made in this area, invited the Italian authorities to “undertake
interdisciplinary action” with a view to drawing up a new, effective
strategy to deal with the considerable delays experienced in the Italian
justice system.
49. In its latest Interim Resolution (CM/ResDH(2009)42), the Committee
of Ministers recognised some progress in this area. Notably, a number
of legislative reforms have been adopted in order to accelerate
both civil and criminal proceedings. In particular, a bill pending
before parliament aims to accelerate the processing of civil cases
through the broad reform of civil procedure; the bill aims to reduce
the number of trials, expedite ongoing trials and develop the use
of alternative dispute regulation. Despite these developments, excessive length
of criminal and civil proceedings still presents a significant problem.
With this in mind, Interim Resolution CM/ResDH(2009)42 called upon
the Italian authorities to continue in their efforts to accelerate
civil proceedings and adopt ad hoc measures to reduce the civil
and criminal backlog by prioritising the oldest cases and those requiring
“particular diligence”.
50. With respect to administrative proceedings, legislative measures
introduced by the Italian authorities have had a measured effect
on the length of such proceedings. While such progress is welcomed,
it should be borne in mind that the principal issue in relation
to administrative proceedings concerns the backlog of the administrative
courts. The Italian authorities have adopted measures aimed at reducing
the backlog
and should
intensify efforts in this area.
51. Regarding bankruptcy proceedings,
the
Italian authorities have introduced important legislative reforms
aimed at expediting proceedings and simplifying various procedural
steps.
Statistics
provided by the Italian authorities suggest that, following the
introduction of the reforms, bankruptcy petitions filed, as well
as bankruptcy declarations, decreased by approximately 40%. Of course,
this development is to be welcomed; however the latest statistics
provided
reveal that
the length of bankruptcy proceedings remained stable in 2007 lasting
approximately nine years; furthermore, proceedings pending before
the entry into force of the reform, to which the reform does not
apply, are still excessively lengthy.
52. More generally, the Italian authorities have adopted measures
aimed at improving the structural organisation of the judiciary.
Certain
courts have significantly reduced backlogs and have accelerated proceedings
through organisation and work management improvements.
The Italian authorities were
invited by the Committee of Ministers, on 19 March 2009, to ensure
the sharing of best practices among courts and adopt any additional
measures to enhance the efficiency of the judiciary.
2.2.3.1.2. Lack of effective
remedy
53. The case of
MostacciuoloGuiseppe v. Italy and several similar
cases
relate to the inadequacy of the domestic
remedy for cases of excessive length of judicial proceedings.
In all of these
cases, the Court found that the domestic remedy was ineffective
due to a number of factors: the amount of compensation awarded by the
domestic court was significantly less than the Court awarded in
just satisfaction in similar cases; certain obligatory fees reduced
the amount of compensation; and payment of compensation was subject
to an unacceptable delay, often necessitating enforcement proceedings.
54. The Italian authorities have made some progress in ensuring
adequate compensation. The United Section of the Court of Cassation
has stressed the need for courts of appeal to comply with the case
law of the Court when applying the Pinto Act;
case law subsequent to these
decisions reveals that the Court of Cassation has considered the
case law of the Court concerning the amount of compensation to be
awarded in cases brought under the Pinto Act.
Furthermore, the Italian authorities
have abolished all procedural fees related to proceedings under
the Pinto Law.
These
developments are welcomed. However, the current situation needs
to be assessed on the basis of information, to be provided by the
Italian authorities, on the recent practice of the courts of appeal
and up-to-date statistics on case law concerning the Pinto Act.
55. Furthermore, delay in payment of compensation is a pressing
problem which must be urgently addressed by the Italian authorities.
Since 2007, more than 500 applications solely concerning the delay
in payment of compensation under the Pinto Act have been communicated
to the Italian Government. In its Interim Resolution CM/ResDH(2009)42,
the Committee of Ministers urged the Italian authorities to amend
the Pinto Act “with a view to setting up a financial system resolving
the problems of delay in the payment of compensation awarded, to
simplify the procedure and to extend the scope of the remedy to
include injunctions to expedite proceedings”. The Pinto Act has
subsequently been amended by a draft law submitted to the Italian Parliament
in March 2009 with the aim of expediting such proceedings. Information
on the effect of this amendment is still awaited.
2.2.3.2. Specific issue
of concern: the expulsion of foreign nationals
56. Attention should be paid to recent Court judgments
against Italy concerning possible and actual violations of Article
3 – as well as to actual violations of Article 34 – on account of
the expulsion of foreign nationals where there is a real risk of
the applicant being subjected to ill-treatment in the receiving
country. The case of
Saadi v. Italy and nine similar cases
concern
the risk that the applicants may be subjected to torture, or to
inhuman or degrading treatment in Tunisia if expulsion orders against
them were to be enforced. The Court found that, if expelled to Tunisia,
there was a real risk the applicants would be subjected to treatment contrary
to Article 3.
57. The case of
Ben Khemais v. Italy concerns the finding
of a violation of Articles 3 and 34 following the applicant’s expulsion
to Tunisia. In this case, the Italian authorities carried out the
expulsion despite an interim measure of the Court under Rule 39
of the Rules of Court indicating that the expulsion should be postponed until
the case had been examined by the Court. Regrettably, following
this judgment, the Italian authorities have, on three occasions,
continued to expel applicants in breach of interim measures ordered
by the Court.
58. In its Interim Resolution CM/ResDH(2010)83,
the
Committee of Ministers recalled that Article 34 of the Convention
entails an obligation to comply with interim measures indicated
pursuant to Rule 39 of the Rules of Court and stressed the “fundamental
importance” of compliance with such measures. Failure to comply
with interim measures in this context presents a serious impediment
to the applicant’s right of individual petition and gravely undermines
the effectiveness of the protection system established by the Convention.
Recent domestic case law on the matter in which reference was made
to the
Saadi judgment
, the absolute nature of Article
3, and the binding nature of interim measures, coupled with a circular
sent round the judiciary by the Ministry of Justice on 27 May 2010,
represent a positive step in the full compliance of the Ben Khemais
judgment. Nonetheless, it is essential
that the Italian authorities continue to take urgent measures to
ensure that interim measures indicated by the Court are complied
with in order to prevent future violations of this kind.
2.2.3.3. Additional comments
59. In Italy, problems also occur in relation to the
practice known as “indirect expropriation”.
In the case of
Belvedere Alberghiera SRL v. Italy and
several similar cases,
the Court found violations
of Article 1 of Protocol No.1 on account of resorting to this practice.
The Italian authorities have introduced legislative measures in
an effort to deal with the problem
and the competent courts
have interpreted the new legislation in accordance with the Convention.
While
this progress was welcomed in its Interim Resolution CM/ResDH(2007)3,
the Committee of Ministers is now awaiting information as to whether
there is any reduction or suppression of the practice of indirect
expropriation, as well as on the dissuasive effect of Law No. 296/2006, which
makes it possible to debit the cost of compensation for illegal
occupation of land from the budget of the responsible administration.
With this in mind, the Committee of Ministers urged the Italian
authorities to continue in their efforts to give direct effect to
the Court’s judgments ensuring implementation across the Italian judiciary
and encouraged the Italian authorities to take all necessary measures
to bring the practice of “indirect expropriation” to an end.
2.2.4. Moldova
60. The main issues related to Moldova may be summarised
as follows:
- non-enforcement
of domestic judgments;
- unlawful pre-trial detention;
- ill-treatment by police;
- poor conditions of detention on remand and in prison.
61. My visit to Moldova on 3 and 4 May 2010 involved discussions
with several high-ranking officials.
The visit revealed that there is
political will to solve the main issues of concern but there is
still a long way to go; the parliament must take a greater role
in ensuring that solutions are found. I invite the Minister of Justice,
together with the chairperson of the Moldovan parliamentary delegation,
to come before the Committee on Legal Affairs and Human Rights and
explain what has been done to increase parliamentary involvement
in the execution process and what is foreseen for the future.
2.2.4.1. Non-enforcement
of domestic judgments
62. The problem of non-enforcement of final judgments
has been the principal problem in terms of numbers of applications
pending before the Court. The group of the so-called social housing
non-enforcement cases accounts for approximately 50% of all non-enforcement
cases and concerns the failure of local governments to comply with
final judgments awarding applicants housing rights or money in lieu
of housing. In response to this situation, the Court delivered,
on 6 April 2010, a pilot judgment in
Olaru
and Others v. Moldova.
63. It would appear that this particular problem will no longer
persist since the social housing privileges were abolished immediately
after the pilot judgment. It is expected that outstanding issues
will also be solved through the introduction of a domestic remedy
in case of non-enforcement of domestic judicial decisions. Although
the Moldovan authorities appear to be committed to executing the
pilot judgment
and the draft laws were under preparation,
political difficulties in the country have recently resulted in
the dissolution of parliament. The adoption of laws process has
consequently been ceased until the next parliament is elected on
28 November 2010, meaning the rapid adoption of this reform is delayed.
Although these are unforeseeable circumstances, it should still
be noted that the first deadline set by the Court for this remedy
has passed and the second is close.
2.2.4.2. Unlawful pre-trial
detention
64. Another important group of cases concerns various
violations of Article 5 of the Convention in relation to arrest
and detention on remand. A number of legislative changes were made
to the Code of Criminal Procedure in order to fill in the gaps revealed
by the judgments of the Court. The legislative amendments were supplemented
by different measures taken by the Supreme Court of Justice and
the General Prosecutor’s Office. However, it would appear that the
problem continues to lie with the mindsets of judges and prosecutors.
65. These issues were addressed at the Round Table organised by
the Council of Europe’s Department for the Execution of Judgments
of the European Court of Human Rights on 9 and 10 December 2009
in Warsaw.
The participant
states were invited to submit to the Committee of Ministers an action
plan on the implementation of the relevant judgments of the Court.
Such an action plan is still awaited from the Moldovan authorities.
2.2.4.3. Ill-treatment by
police
66. In a number of judgments, the Court found violations
of Article 3 of the Convention on account of ill-treatment inflicted
on applicants in police custody and lack of an effective investigation
in this respect.
67. Since the events described in the judgments, the Moldovan
authorities have adopted a number of measures, notably in response
to the concerns raised by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
Amendments were introduced to the Criminal Code and in 2006 the
Code of Police Ethics was approved by the government. However, it
seems that most of the recommendations made by the CPT have not
been implemented.
No clear strategy has been elaborated by
the authorities for the implementation of these cases; this matter
needs urgent attention.
68. Moreover, the effectiveness of measures adopted with a view
to strengthening police officers’ responsibility for ill-treatment
remains problematic: there still appears to exist impunity for ill-treatment
by the law enforcement agencies.
An action plan is awaited for the implementation
of this judgment.
2.2.4.4. Poor conditions
of detention
69. Another group of cases concerns poor conditions of
the applicants’ pre-trial detention due in particular to the absence
of outdoor exercise, the inadequacy of food, presence of parasitic
insects, lack of access to daylight or electricity, the exposure
to cigarette smoke, etc.
and lack of an effective remedy in this
respect.
A number of cases also
raise an important issue of access of detained persons to adequate
medical care.
70. Most of the legal framework governing the prison system, including
conditions of detention, has been changed by the new Enforcement
Code, which entered into force on 1 July 2005, and other new laws. However,
much remains to be done. The CPT notably encouraged the Moldovan
authorities to pursue their efforts in this direction
.
71. As regards the existence of “effective remedies”, a Complaints
Committee has been set up as an independent body with the mandate
to deal with prisoners’ complaints. In addition, the Supreme Court
of Justice decision of 19 June 2000 has specified that where domestic
law does not provide a right to an effective remedy against any
right safeguarded in the Convention, the competent court shall directly
apply the provisions of the Convention, whether in civil or criminal
proceedings. However, no concrete examples of domestic case law
or of the functioning of the Complaints Committee have been brought
to the attention of the rapporteur.
2.2.4.5. Special areas of
concern
72. The Cebotari case gives rise to specific concerns.
In this case, the Court found a violation of Article 18 together
with Article 5 on account of the use of criminal proceedings with
a view to dissuading the applicant from continuing proceedings before
the Court. The Court also found that the applicant was prevented
by the Moldovan authorities from signing the application file to
be sent to the Court.
73. This case has to be considered together with the case
Oferta Plus S.R.L. v. Moldova. In
this latter case, the Court found violations of the applicant company’s
right to a fair hearing and to the peaceful enjoyment of its possessions
due to the three-year failure to enforce a final judgment given
in its favour in 1999, followed by the unjustified extension of
the time limit for lodging an appeal by the opposite party and the
wrongful quashing of the final judgment in violation of the principle
of legal certainty. It also found a violation of the applicant company’s
right to individual petition. Moreover, while the just satisfaction
issue was pending before the European Court of Human Rights, the
Supreme Court of Justice, whilst revoking the annulment of 1999 judgment,
ordered – in 2007 – that this judgment was never to be enforced.
In its Article 41 (just satisfaction) judgment of 12 February 2008,
the European Court of Human Rights expressed serious concern that
despite its abundant case law and regardless of its findings in
its principal judgment, the Supreme Court of Justice had adopted
a solution which once again failed to respect the finality of the
judgment of 1999.
74. In another case, the Court found a violation of the applicant’s
right of individual petition on account of the Prosecutor General’s
threats against his lawyer for complaining to international organisations.
This situation is clearly
unacceptable and requires a strong reaction from the authorities.
Information in this respect is awaited.
2.2.5. Poland
75. In Poland, difficulties with respect to implementation
of Court judgments arise most prominently in two areas:
- excessive length of proceedings
and lack of an effective remedy;
- excessive length of detention on remand.
2.2.5.1. Excessive length of proceedings and lack of an effective
remedy
76. In
Podbielski v. Poland,
Kudla v. Poland,
Fuchs
v. Poland and
several similar cases,
the
Court found violations of Article 6.1, due to the excessive length
of proceedings before civil, criminal and/or administrative courts.
Many of these cases also concern the lack of an effective domestic
remedy as required by Article 13 of the Convention. The cases in
the Fuchs group also concern excessive length of procedures before
administrative bodies.
77. In order to tackle the significant problems in this area,
the Polish authorities have adopted a number of reforms aimed at
reducing the length of judicial proceedings in civil, criminal and
administrative courts.
Most importantly, these
reforms include legislative amendments, the introduction of administrative
and structural measures to increase the capacity and efficiency
of the judiciary, an increase in the budgetary allocation for expenditure
of the common courts, improvements in court premises and the provision
of computerised support to courts.
78. The most up-to-date statistics on excessive length of proceedings
provided by the Polish authorities suggest that considerable problems
still exist. Statistics provided relating to the whole year 2008
point to an increase in new civil cases lodged and in the courts’
backlog. Similarly, statistics relating to criminal cases reveal
that the average length of criminal proceedings increased in 2008.
Given that the latest statistics relate to 2008, it is imperative
that the Polish authorities provide up-to-date statistics on this
issue. Moreover, further reflection and measures are needed with
respect to the reform aimed at accelerating procedures before administrative
bodies.
79. Following the judgment in
Kudla
v. Poland, in 2004 the Polish Parliament adopted a law
on complaints against excessive length of judicial proceedings allowing
litigants to seek acceleration of proceedings and claim compensation
for damages caused by their excessive length. In 2005, the Court
declared two Polish cases
inadmissible due to the fact the
applicants had not used the 2004 law which would have provided them
with an effective remedy. That said, later judgments of the Court
uncovered considerable difficulties in the application of the 2004
law.
Amendments
to the 2004 law entered into force in May 2009 and aim at introducing
an effective remedy against excessive length of investigation and
provide for the obligatory adjudication by courts of a fixed amount
of compensation if the complaint was justified.
80. These developments signal progress in this area and are to
be welcomed. In order to come to an assessment of their effectiveness,
the Polish authorities ought to provide up-to-date statistics on
the implementation of these measures.
2.2.5.2. Excessive length of
detention on remand
81. The case of
Trzaska v.
Poland and
several similar cases
concern the excessive length of
the applicants’ detention on remand as the reasons given by the
domestic courts to support the detention could not be said to be
“relevant and sufficient” as required by the case law of the Court.
82. Legislative measures restricting the conditions in which detention
on remand may be ordered were introduced with the entry into force
of the new Code of Criminal Procedure in September 1998. Following judgments
of the Polish Constitutional Court in July 2006, subsequent amendments
have been introduced which further limit the grounds on which prolonged
detention on remand can be ordered.
83. Furthermore, the Polish authorities have taken steps to improve
the awareness amongst the judiciary of the Court’s judgments in
this area. The Ministry of Justice has contacted all presidents
of courts of appeal providing an analysis of the Court’s case law
concerning the requirements for the reasons behind placing an individual
in detention on remand.
84. Statistics provided by the Polish authorities are encouraging
in that the data for 2008 reveal a downward trend with respect to
long detentions. Despite this, the number of judgments of the Court
finding violations of Article 5.3 has increased. Indeed, in the
judgment of
Kauczor v. Poland in February 2009,
the Court stated that, although efforts made by the Polish authorities
were to be welcomed, “numerous cases” have demonstrated that excessive
length of detention on remand uncovers a continuing structural problem
in Poland.
Moreover, further reflection
and measures are needed with respect to the reform aimed at accelerating
procedures before administrative bodies.
85. Although progress has been made, some issues still need to
be tackled. With this in mind, the Polish authorities should continue
their efforts in introducing further long-term measures to deal
with this issue.
2.2.5.3. Outstanding issues/emerging
issues
86. The groups of cases Kaprykowski and Orchowski/Norbert
Sikorski concern improper conditions of detention, particularly
due to overcrowding, and lack of adequate medical treatment of detainees
requiring special care in view of their state of health. The Court
underlined the structural nature of the problem: approximately 160
cases concerning similar facts were pending before it at the time
of the judgments on the Orchowski and Norbert Sikorski cases (22
October 2009). The Court called upon the Polish authorities to take the
necessary legislative and administrative measures to secure appropriate
conditions of detention. It acknowledged that solving the problem
of overcrowding could call for the mobilisation of significant financial resources
and concluded that if the state is unable to ensure that prison
conditions comply with the requirements of Article 3, it must abandon
its strict penal policy or put in place a system of alternative
means of punishment. The Court also encouraged Poland to develop
an efficient system of complaints to the authorities supervising
detention facilities.
87. The authorities have undertaken legislative reforms. In particular,
an amendment to the Code of Execution of Criminal Sentences is under
legislative process, the purpose of which is to implement the judgment
of the Constitutional Court which had found unconstitutional the
provision which made it possible to place detainees in conditions
in which the living space per capita is less than 3 square metres.
In parallel, the Central Prison Board is working on the rationalisation
of the health care system for persons deprived of their liberty.
Nevertheless, tangible results of the reforms are still to be submitted
to the Committee of Ministers which has closely followed this issue
and has strongly encouraged the authorities to continue their efforts
to remedy the structural problem revealed by these judgments.
88. In the case of
Bączkowski and Others
v. Poland,
the
Court found a violation of the right to freedom of assembly due
to refusals “not prescribed by law” to authorise demonstrations
against discrimination of minorities. In 2005, in an interview in
a national newspaper, the Mayor of Warsaw had expressed strong personal
opinions about freedom of assembly and “propaganda about homosexuality”
and had stated that he would refuse permission to hold such demonstrations.
The Court also noted the lack of effective remedy against these
refusals and discriminatory treatment.
89. This sensitive judgment is still to be executed. In particular,
no effective remedy against local authorities’ refusal to authorise
demonstrations has been introduced so far.
90. The group of cases Matyjek
concerns the unfairness of “lustration”
proceedings: the applicants – members of parliament, advocates and
judges – had been found guilty of having been collaborators of the communist
secret services and, consequently, having lied in their lustration
statements. The Court criticised in particular restricted access
to the case files classified confidential and found that the applicants
did not have an effective remedy to challenge the legal framework
setting out the features of lustration proceedings.
91. To date, the Polish authorities have not taken any action
to address these violations. In particular, no information on whether
restrictions on access to the case files still apply to persons
in the applicants’ situation has been provided so far. With similar
cases currently pending before the Court, these cases become ever more
urgent.
2.2.6. Romania
92. In Romania, problems with respect to implementation
of Court judgments occur in four main areas:
- failure to restore or compensate for nationalised property;
- excessive length of judicial proceedings and lack of effective
remedy;
- non-enforcement of domestic judicial decisions;
- poor conditions of detention.
93. During my visit to Romania in May 2010, I urged parliament
to continue its efforts to improve the monitoring of the implementation
of Court judgments and was assured this would be done.
In this regard, it should be noted
that, in 2007, the Romanian Chamber of Deputies set up a sub-committee
of its Legal Affairs Committee specifically mandated to monitor
the implementation of Court judgments. The creation of the sub-committee
signifies real progress in this area, making Romania one of only
a handful of states parties to have created such a body. I look
forward to receiving information on the work of the new sub-committee,
especially as it is chaired by a member of our Assembly’s Committee
on Legal Affairs and Human Rights.
2.2.6.1. Failure to restore
or compensate for nationalised property
94. The cases of
Străin and
Others v. Romania, Viasu v. Romania and several similar
cases
concern the failure to restore or
compensate for nationalised property (violations of Article 1 of
Protocol No. 1). The questions raised in these cases reveal a systemic
problem in Romania; indeed, given the volume of applications in
this area, the Court has applied the pilot judgment procedure to
two cases raising the same issues.
95. In Viasu v. Romania, the
Court observed that this structural problem stems from deficient
legislation and administrative practice in Romania. Furthermore,
the Court stressed that the Romanian authorities must assure, by
appropriate legal and administrative measures, the effective and
rapid implementation of the right to restitution or compensation
according to the principles provided for by Article 1 of Protocol
No. 1 and the case law of the Court.
96. The Romanian authorities have adopted some positive measures
in this area, particularly with regard to improvement of the compensation
mechanism. Government Ordinance No. 81/2007 aims at improving and accelerating
the processing of restitution remedies in such cases and provides
that claimants shall benefit from compensation titles either by
converting them into shares issued by the Property Fund or as monetary compensation.
The Romanian authorities are now taking steps to evaluate the Property
Fund and list it on the stock exchange.
97. In February 2010, at the request of the Committee of Ministers,
the Romanian authorities submitted an action plan to the Committee
of Ministers on measures taken or envisaged to further improve the
current restitution mechanism. Although this is to be welcomed,
the Romanian authorities should submit a comprehensive action report
on the measures taken to date, and in particular statistical data
on current progress of the compensation process, in order to fully
assess the situation and the relevance of the measures proposed.
I put specific emphasis on this point during my visit to Romania,
especially with respect to the need to assess the specific value
of property claims.
2.2.6.2. Excessive length
of judicial proceedings and lack of an effective remedy
98. The cases of Nicolau v. Romania,
Stoianova and Nedelcu
v. Romania
and
several similar cases
concern the excessive length of
judicial proceedings before civil and criminal courts; some of these
cases also concern the lack of an effective domestic remedy.
99. With regard to criminal proceedings, according to the statistics
collected by the Superior Council of Magistracy, in 2007 the vast
majority of criminal proceedings were concluded in less than six
months; only 3% were concluded in more than one year. Furthermore,
since 2005, the inspectors of the Superior Council of Magistracy
have monitored courts’ compliance with the recommended time limits
for criminal trials and, where necessary, disciplinary sanctions
have been applied. Finally, the Ministry of Justice has adopted
a new Code of Criminal Procedure containing a series of measures
which should contribute to the acceleration of proceedings. This
is expected to enter into force in 2011.
100. With respect to civil proceedings, information provided by
the Romanian authorities suggests that, under proposed legislative
amendments, it will no longer be possible to adjourn hearings because
of failure to carry out the formal requirement of notifying the
parties, if it is clear that the parties were already fully aware
of the dates in question due to their presence at earlier hearings.
Information on the impact of measures already taken in addition
to information on the progress concerning proposed measures to tackle
excessive length of proceedings is awaited.
101. Information provided by the Romanian authorities in December
2008 suggests that, in the framework of the new draft code of civil
procedure, a procedure enabling parties to proceedings to complain
of excessive length will be created. Furthermore, in April 2006,
in co-operation with the European Commission for Democracy through
Law (Venice Commission), the Romanian authorities organised a conference
on possible remedies in respect of excessive length of proceedings.
Taking into account the conclusions of a study published by the
Venice Commission, the Romanian authorities intend to examine the
adoption of possible solutions to the problem. Information on progress
in this area is still awaited.
2.2.6.3. Non-enforcement
of domestic judicial decisions
102. The non-enforcement of final court decisions imposing
obligations on public authorities
remains an area of concern. At present,
there are more than 100 cases under the supervision of the Committee
of Ministers concerning this issue.
103. Although the Romanian authorities have provided information
on the existence of legislation aimed at pushing public authorities
to comply with domestic judicial decisions,
the authorities have yet to provide information
on the practical effects of such measures. Furthermore, information
is still awaited on the assessment of the Romanian authorities as
to whether the violations found by the Court in these cases reveal a
structural problem and on any current or future measures envisaged
aimed at ensuring the timely enforcement of final domestic judicial
decisions.
2.2.6.4. Poor conditions
of detention
104. The cases of
Bragadireanu
v. Romania and
Petrea v. Romania concern the inhuman
and degrading treatment under which the applicants were detained;
this finding was due, in particular, to prison overcrowding and
a lack of facilities necessary to manage the medical condition of
one of the applicants (violations of Article 3). In the Bragadireanu
case, the Court referred to the conclusions of the CPT stating that a
combination of overcrowding, a poor activity regime and inadequate
access to washing facilities “can prove extremely detrimental to
prisoners”.
With this
in mind, the Romanian authorities are asked to provide information
on measures taken or envisaged to avoid future violations resulting
from poor conditions of detention.
2.2.6.5. Area of specific
concern: Rotaru v. Romania
105. The case of Rotaru v. Romania
concerns a breach of
the applicant’s right to respect for his private life due to the
lack of sufficient legal safeguards against abuse of the way in
which the Romanian Intelligence Service collects, keeps and uses
information. The case also concerns a violation of the applicant’s
right to an effective remedy.
106. In its Interim Resolution ResDH(2005)57, the Committee of
Ministers did note some progress in this area, but stated that several
shortcomings identified by the Court remained to be remedied, in
particular concerning the procedure to be followed in order to have
access to the Romanian Intelligence Service archives, the absence
of regulations concerning the length of time information could be
stored and the inability to contest the holding of information.
The Romanian authorities were asked to rapidly adopt the legislative
reforms necessary to remedy the shortcomings identified by the Court.
107. Although the information provided on legislative reform is
to be welcomed, some ten years have now passed since the judgment
of the Court. With this in mind, it is essential that the Romanian
authorities put this legislative reform into effect without further
ado.
2.2.7. Russian Federation
108. Of the 126 200 pending cases before the Court, 35 400
relate to the Russian Federation (28.1%).
Of the 737 cases concerning the
Russian Federation pending before the Committee of Ministers, 92%
are clone cases. Most of these cases relate to the following systemic
problems:
- non-enforcement
of domestic judicial decisions;
- violation of the principle of legal certainty on account
of the quashing of final judicial decisions through the “supervisory
review procedure”;
- unacceptable conditions of detention on remand, in particular
in pre-trial detention centres;
- excessive length of and lack of relevant and sufficient
reasons for detention on remand;
- torture and ill-treatment in police custody and lack of
an effective domestic investigation in this respect.
109. The actions of the security forces in the Chechen Republic
also remain one of the Council of Europe’s main problems, as has
been explained by our colleague, Mr Dick Marty, in his report on
legal remedies for human rights violations in the North Caucasus.
In
its Recommendation of 22 June 2010, the Assembly requested the Committee
of Ministers, amongst others, to pay utmost attention to the development
of the human rights situation in the North Caucasus.
110. Most of the problems in the Russian Federation (with the important
exception of abuses by the security forces in the Chechen Republic
– see below) relate principally to Court findings in 2002 and 2003.
This unsatisfactory situation is illustrated
by the non-enforcement of domestic judicial decisions. In its first
judgment delivered in
Burdov v. Russia in 2002, the Court found
a violation of the Convention on account of non-enforcement of a
domestic judicial decision granting social benefits to a Chernobyl
victim. In January 2009, the Court, faced with a constantly increasing
flow of similar applications, had to react to this situation by
delivering a pilot judgment in the case of the same Mr Burdov, seven
years after the first judgment.
111. That said, it must be recognised that a great number of reforms
have been adopted or are under way; but, in reality, they do not
yet appear to have had the desired effect, as is demonstrated by
the number of applications pending before the Court.
2.2.7.1. Non-enforcement
of domestic judicial decisions
112. Non-enforcement or belated enforcement of domestic
judicial decisions delivered against the state and public entities
had been one of the most important systemic problems identified
in Strasbourg (over 40% of the admissible applications). The Russian
authorities have acknowledged this problem and are taking steps
to find appropriate solutions.
However, as acknowledged
in the Committee of Ministers’ interim resolution,
the problem
is far from resolved.
113. In response to this situation, and as explained above, the
Court adopted a pilot judgment in the case
Burdov
v. Russia (No. 2). The
Russian authorities were given six months to introduce a domestic
remedy in case of non-enforcement of domestic judicial decisions
and a year in which to settle all similar applications already pending
before the Court.
114. The remedy was introduced on 4 May 2010. Although this reform
was adopted outside the deadline set by the Court,
it constitutes
a positive step.
In these
circumstances, one may only hope that other problems underlying
non-enforcement of domestic judicial decisions will at long last
be solved by the Russian authorities with the same success.
2.2.7.2. Violation of the
principle of legal certainty on account of the quashing of final
judgments through supervisory review procedure
115. The Supervisory Review Procedure (
nadzor) under the Code of Civil
Procedure is an endemic structural problem that has been declared
a violation of Article 6.1 by the Court in
Ryabykh
v. Russia and
has given rise to huge numbers of clone cases. The Ryabykh case
was decided in 2003 and, seven years later, has still not been executed.
116. Reform of this procedure is absolutely essential for two reasons:
to ensure the legitimacy and credibility of the entire Russian judicial
system; and to reduce the flow of applications to the Court by providing
a remedy that has to be exhausted by Russian citizens, before a
complaint can be lodged at the Court (currently Russian citizens
may lodge an application after the second level of jurisdiction).
In this context, it can be noted that the supervisory review as
provided by the Commercial Code of Procedure was recognised by the
Court as Convention compliant.
This possibly explains an extremely small
number of applications in respect of commercial courts.
117. As for the quashing of final judgments through the nadzor procedure, the Russian authorities
seem to be aware of the importance of this problem. Since the Ryabykh
judgment they have already implemented two reforms with a view to
bringing this procedure into line with the Convention requirements.
These reforms were judged by the Court as insufficient to solve
the problem in Martynets v. Russia. A
third reform – which aims to introduce appeal courts in the system
of Russian courts of ordinary jurisdiction and thus to limit recourse
to supervisory review – is currently pending before parliament.
Though results of this reform will not be seen in the short-term
– 2012 is the expected date – given what is at stake both for Russian
citizens and the Convention mechanism, I must call upon the Russian
authorities to make this a top political priority and take the appropriate,
comprehensive measures so as ensure that this reform will eventually
bring this procedure into line with the Convention requirements.
2.2.7.3. Poor conditions
of pre-trial detention and its excessive length
118. Kalashnikov v. Russia revealed a systemic
problem in remand centres relating to a severe lack of space and
a combination of other features (including lack of private toilet
facilities, ventilation problems, lack of access to natural light
and basic sanitation). Again, eight years have passed since this
damning judgment and there has been no meaningful progress.
119. The statistics provided by the Russian authorities on the
material conditions of detention resulting from renovation and building
new centres are misleading. The average space per detainee rose
to 4.85 square metres, but this statistic, by definition, admits
that there are massive amounts of detainees living in conditions that
are deemed unacceptable by the CPT.
By
2008, the number of detainees on remand living in “adequate” conditions
was only 54% (10% lower than the Russian authorities’ prediction)
and budget cuts in 2009 to the implementation of the Federal Programme
for reforming the penitentiary systems has stagnated progress.
120. In any event, merely building more remand centres does not
solve the root problem: the problem lies in the unnecessary sentencing
of detention on remand which results in overcrowding. This systemic
issue is caused by, inter alia, non-compliance
with time limits set by domestic law, failure to address specific circumstances
of cases, failure to use alternative preventative measures and the
failure to respect judicial review to challenge the lawfulness of
detention on remand. In spite of progress claimed by the Russian authorities,
there was a minimal decrease in detainees between January 2007 (144 550)
and January 2010 (124 611) and, in 2009, 187 793 applications for
detention on remand were granted out of 208 416. Conditions cannot
improve with such overcrowding and there appears to be no solution
to this situation in sight.
121. The Supreme Court has identified several key problem areas
and has proposed solutions. For example, disciplinary proceedings
against judges.
However,
the responsibility for high rates of sentencing of detention on
remand is not solely the responsibility of judges. It is their duty
to make decisions based on the evidence before them and it is apparent
that very often the formal approach of an investigation is inappropriate, in
that alternative preventative measures are not taken into account.
2.2.7.4. Ill-treatment in
police custody and lack of an effective investigation in this respect
122. The Mikheyev case, decided by the Court in January
2006, illustrates the problem. Mr Mikheyev was falsely accused of
murder (his alleged victim later turned out to be alive and well)
and tortured in police custody in order to extract a confession
to the alleged crime. The abuse included administering electric
shocks to Mikheyev’s earlobes. After surviving the torture, Mikheyev
jumped out of a second-floor window to escape his tormentors; the
fall resulted in a spinal cord injury that rendered him a paraplegic.
Since then, the Court has delivered 16 other judgments in which
it found violations of Article 3 of the Convention on account of
ill-treatment inflicted on applicants in police custody and lack
of an effective investigation in this respect.
123. The Russian authorities are currently engaged in a comprehensive
reform of the Ministry of Internal Affairs, in part – I assume –
as a consequence of the Court judgments. In this context, a new
draft law “on the police” has been prepared.
Discussions are
currently under way with a view to introducing a single register of
persons detained by the police.
124. But it remains unclear to what extent this reform will constitute
a response to the findings of the Court. It would appear at first
sight that the reform does not seem to address important issues,
such as safeguards in police custody (notification of custody to
a third party, right to a lawyer, right to a medical doctor). Also,
the CPT reports, which might provide useful guidance for the Russian
authorities on all these issues, remain confidential.
125. As regards individual measures, with the exception of the
Mikheyev case, in which two police officers who tortured the applicant
were convicted to four years’ imprisonment, no information is available
on whether in other similar cases, the persons responsible were
brought to justice. The Mikheyev case also demonstrates the lack
of appropriate tools to combat impunity in Russian criminal legislation.
For instance, no such criminal offence as torture seems to exist.
Also, four years’ imprisonment seems to be quite a lenient sentence
for a crime which resulted in a person’s permanent injury. Finally,
it would appear that the only conclusion drawn so far by the Russian
authorities from the Mikheyev case is that, on 15 December 2008,
the prosecutor of the Nizhny Novgorod Region lodged a cross claim
against the police officers claiming from them the sum of money the
Russian Federation paid to Mr Mikheyev, subsequent to a finding
of a violation by the Court. This claim was granted by the domestic
courts.
2.2.7.5. Actions of the
security forces in the Chechen Republic
126. Since 2007, the Court has found violations of Articles
2, 3, 5, 6 and 8 and Article 1 of Protocol No. 1 in the context
of actions of the Russian security forces in the Chechen Republic
between 1999 and 2003.
The report
by the Committee on Legal Affairs and Human Rights rapporteur, Mr
Dick Marty, stated that the Chechen situation – which involves enforced
disappearances (almost 60%), torture, unacknowledged detention, unlawful
killings and ill-treatment, and destruction of property – “constitutes
today the most serious and most delicate situation from a standpoint
of safeguarding human rights and upholding rule of law, in the entire geographical
area covered by the Council of Europe”.
These judgments have had little
impact on the Russian Federation as complaints continue to flood
in. Almost a 100 were lodged in 2009 concerning the North Caucasus
(mainly the Chechen Republic). This situation is simply abhorrent!
127. There have been developments, so I was told when I was in
Moscow in February 2010: there exists a regulatory framework for
domestic investigations, including a Special Investigative Unit
set up in April 2009 to investigate particularly serious crimes
that have given rise to applications in Strasbourg.
The Prosecutor has also taken on
a greater “supervisory role” by putting emphasis on the integration
of Convention law standards in Russian domestic law,
and the process appears to be more victim-oriented
in terms of access to the procedure.
However, the impact of these measures on
the pending investigations remains unclear to me; only one case
has been so far elucidated. It pains me greatly that the Russian
authorities have not – to quote again from Mr Marty’s report – dealt
with: “… more than 150 judgments finding extremely serious violations
of the fundamental rights in the same region, without any genuine
action being taken on the root causes of this situation”.
2.2.8. Turkey
128. Turkey has around 1 232 cases pending before the
Committee of Ministers, representing 15% of the Committee’s case
load.
These cases
comprise many issues,
the
most long-standing ones being:
- the
failure to reopen proceedings;
- repeated imprisonment for conscientious objection;
- freedom of expression;
- excessive length of detention on remand;
- actions of security forces;
- issues concerning Cyprus.
129. I have still not been able to visit Turkey. Despite the Committee
on Legal Affairs and Human Rights’ decision of 29 January 2009 authorising
me to carry out a visit to this country, I have not received an
invitation from the Turkish parliamentary delegation, despite repeated
requests since September 2009. To the best of my knowledge, this
is the first time that this has occurred. My predecessor, Mr Erik
Jurgens, was never confronted with such a refusal to co-operate
(see, in this connection, his sixth report),
and I feel duty-bound to
bring this unacceptable behaviour to the attention of the Assembly.
2.2.8.1. Failure to reopen
proceedings
130. The
Hulki Günes v. Turkey group of cases
concerns unfairness of criminal proceedings where the applicants
were convicted on the basis of statements taken under duress and
in the absence of a lawyer, in violation of Articles 3 and 6.1 and
3.c. The reopening of proceedings was requested by the Court but
legislation that was passed amending the provisions in the Code
of Criminal Procedure only provided for reopening of judgments delivered
before 4 February 2003 and in those applications lodged to the Court
after that date; thus the cases pending at the time do not fall
under the amendment.
131. Significant pressure has been brought to bear on the Turkish
authorities over the last seven years, especially by the Committee
of Ministers: two letters from the Chairperson of the Committee
of Ministers,
three
interim resolutions,
and
a decision in September 2008
to examine
the case at every regular
meeting
of the Committee until the Turkish authorities provided information
on the measures they envisaged to resolve the issue. This eventually
resulted in information on a draft law allowing the reopening of
proceedings in the present cases, which was submitted to parliament
for adoption, but no further information on its progress has been
received.
I urge the chairperson
of the Turkish parliamentary delegation, together with the (Turkish)
President of the Assembly, to ensure that this piece of legislation
receives priority.
2.2.8.2. Repeated imprisonment
for conscientious objection to military service
132. Repeated imprisonment for conscientious objection,
which is in violation of Article 3, stems from the possibility –
provided for in legislation – of repeated prosecution for the rest
of the applicant’s life. There are few cases on the issue before
the Court, but this does not detract from the fact that it is a
grave violation of the Convention. In the case of
Ülke v. Turkey,
the applicant was
convicted repeatedly over a number of years for refusing to wear
his uniform on conscientious grounds, serving a total of 701 days
in prison. He is currently in hiding for fear of further prosecution;
he has no official address and has been forced to break off all
contact with the administrative authorities. As the Court stated,
such a life amounts “almost to civil death”.
133. The individual measures and general measures in this case
are intrinsically linked. Despite interim resolutions having been
adopted in October 2007
and March 2009,
no
information has been forthcoming in response to the judgment of
the Court regarding the individual measures. In March 2010, the Turkish
authorities indicated to the Committee of Ministers that they would
provide concrete information on legislative amendments.
2.2.8.3. Freedom of expression
134. The
Inçal v. Turkey group of cases concerns
unjustified interferences with Article 10 of the Convention in relation
to the applicants’ convictions for publishing articles and books.
This has been an issue since 1998 and, twelve years on, it remains
so. In terms of individual measures, the Turkish authorities indicated
they would take measures to erase the convictions of several applicants
who were convicted under Article 8 of the Anti-terrorism Law No.
3713 following its abrogation.
135. There have been general measures taken to solve the problem,
such as: a number of constitutional amendments on freedom of expression,
a package of laws to revoke and amend offending provisions of the Anti-Terrorism
Law, and training and awareness-raising initiatives for judges and
prosecutors in order to encourage the application of Convention
standards, with examples of such practice from domestic courts.
136. These legislative amendments, however, do not eradicate the
root of the problem and are merely a different expression of the
same Convention-violating substance. In addition, the examples of
court practice provided by the Turkish authorities do not represent
conclusive evidence that the Convention standards are being upheld,
especially with respect to the 2004 Constitutional amendment of
Article 90 of the Constitution, which specifies the direct application
of the Convention in domestic law. It is vital that the Convention
and the Court’s case law are reflected in the Turkish domestic legislation
and its application. It is understood the Committee of Ministers
has been awaiting information with regard to this since September
2008.
2.2.8.4. Excessive length
of detention on remand
137. The leading group of cases identifying excessive
length of detention on remand as a major problem is
Halise Demirel v. Turkey, with the Court rendering
a quasi-pilot judgment in
Cahit Demirel
v. Turkey, which exposed the “widespread and systemic
problems arising out of the Turkish criminal justice system and
the state of the Turkish legislation”.
There
is an absence of relevant and sufficient reasons given by domestic
courts in decisions to extend detention, violating Article 5.3 of
the Convention, as courts tend to use stereotypical wording that
does not take into account the circumstances of the individual.
In addition, an effective remedy to challenge the lawfulness of
detention on remand does not exist and compensation cannot be obtained, resulting
in a violation of Articles 5.4 and 5.5, respectively.
138. Positive steps have been taken by the Turkish authorities
through legislative amendments, for instance the Code of Criminal
Procedure (Law No. 5271) which came into force on 1 June 2005. This
provides safeguards ensuring that reasons for detention are given,
that continued detention on remand is reviewed every 30 days, that
maximum detention on remand does not exceed two years for assize
courts’ crimes
and
that there must be a right to compensation. The authorities also
provided information on how this has been implemented in domestic
courts.
139. The legislative steps taken can be seen as progress, but the
information provided on how they are implemented is inconclusive
and further evidence is necessary to ensure that relevant and sufficient
reasons are being used to justify detention. Indeed, information
concerning a December 2009 Court of Cassation decision on the criminal
liability of judges who do not provide such reasons has been received
and is being scrutinised by the Committee of Ministers. In any event,
legislative amendment to execute a judgment should not present a
risk of future violations. Additionally, it must be noted that no
information is forthcoming from the Turkish authorities on the introduction
of an effective remedy to challenge the lawfulness of detention
on remand, which must now be considered a matter of urgency for
the chairperson of the Turkish parliamentary delegation.
2.2.8.5. Actions of security
forces
140. The anti-terror actions of the security forces in
the 1990s brought about an influx of cases to the Court, which found
violations in relation to several articles, including Articles 2,
3, 5, 8 and 13 and Article 1 of Protocol No. 1.
The 2008 Committee of Ministers’
interim resolutions
reiterated
previously identified structural problems that caused these violations,
in particular ineffectiveness of procedural safeguards in custody, attitudes
and training of security forces, establishing criminal liability
at domestic level and shortcomings in ensuring adequate reparations
to victims.
141. In the light of the Committee of Ministers’ interim resolution
in 2005,
the
Turkish authorities have made progress in resolving the structural
problems: a legislative framework is now in place to provide procedural
safeguards in police custody; the subject of human rights is in
the curriculum for initial training of the security forces, legislative
amendments have been made to give direct effect to the Convention
in Turkish domestic law governing use of force by security personnel
and a range of effective remedies have been introduced to complement
the Law on Compensation of 27 July 2004, which provides the possibility
for pecuniary compensation for damages in relation to terrorist
activities and operations carried out between July 1987 and December
2006.
142. That said, a significant problem remains outstanding in the
series of shortcomings still apparent in investigating abuses by
security forces. The
Bati v. Turkey group
of cases highlights the fact that, despite the passing of many years,
impunity continues to reign in the absence of an effective investigation.
The lack of independence of the investigating authorities, the impossibility
for the applicants to access records or interview witnesses and
accused officers, and the failure to suspend officials from duty
despite proceedings against them, are just a number of the deficiencies
that violate “procedural” Articles 2 and 3. In terms of individual measures,
information on whether the investigations will be reopened is awaited.
In respect of general measures, Articles 94 and 95 of the new Criminal
Code provide for longer sentences for the above-mentioned abuses,
and the Ministry of Justice has taken steps to ensure safe prisoner
transfers, but there has been no action taken to address the root
of the problem and substantial improvement is needed.
143. It must also be noted that there exists a concern regarding
the actions of the security forces in dispersing peaceful demonstrations.
Oya Ataman v. Turkey
dealt
with the use of excessive force in violation of Article 11 of the
Convention, the freedom of assembly, and the connected group of
cases showed violations of Article 3 and 13. There have been a few
amendments made to the legal framework surrounding police use of
force in this area – the most notable being the gradual and proportionate
use of firearms. However, the Committee of Ministers has been awaiting
information on how these amendments will be applied in practice
since April 2008.
2.2.8.6. Specific issues
of concern
144. The interstate case
Cyprus
v. Turkey relates
to the situation that has existed in the northern part of Cyprus
since its invasion, by Turkey, in 1974 (euphemistically referred
to as “conduct of military operations”) and the continuing division
of the Republic of Cyprus and the military occupation of 40% of
the country’s national territory. At present, the Committee of Ministers
supervises closely the issues concerning missing persons and property
rights of displaced Greek Cypriots.
145. As regards the issue of missing persons, additional measures
are required to ensure effective investigations into the fate of
missing persons. That said, no answer has been given so far by the
Turkish authorities to the Committee of Ministers’ request for information
on the concrete
measures
envisaged in the continuity of the work of the Committee on Missing
Persons in Cyprus with a view to the effective investigations required
by the judgment.
146. As regards the property rights of displaced Greek Cypriots,
the Committee of Ministers is currently examining the consequences
of the Court’s Grand Chamber decision on the admissibility of the
application
Demopoulos v. Turkey and seven other cases
delivered on 5 March 2010. The Court concluded in this decision
that the Law 67/2005 of December 2005, according to which all natural
and legal persons claiming rights to immovable or movable property
could bring a claim before the Immovable Property Commission, “provides
an accessible and effective framework of redress in respect of complaints
about interference with property owned by Greek Cypriots”.
147. As far as
Xenides-Arestis v. Turkey is concerned, the Committee of Ministers
has already adopted two interim resolutions urging the Turkish authorities
to pay the just satisfaction awarded in 2006 by the Court. The fact
that this payment is still outstanding is an unacceptable state
of affairs.
2.2.8.7. Additional comments
148. In the above areas of concern, the Committee of Ministers
has been waiting for information from the Turkish authorities for
a number of years. The need, therefore, for a structure in the Turkish
Parliament that plays an extensive role in the supervision of the
execution of Court judgments cannot be overstated.
2.2.9. Ukraine
149. Ukraine has a number of serious problems, some of
them structural, that are reflected in the case law of the Court.
Of the 126 200 pending cases before the Court, 10 200 concern Ukraine
(8.1%).
The issues giving rise to the majority
of these cases are as follows:
- non-enforcement
of domestic judicial decisions;
- length of civil and criminal proceedings;
- issues concerning detention on remand;
- unfair trial, inter alia,
due to lack of impartiality and independence of judges.
150. Despite efforts taken to resolve these problems, a combination
of different reasons – including a lack of political will, co-ordinated
strategy amongst state organs and financial resources – have impeded
the execution of Court judgments in these areas.
151. Giving priority to the above-mentioned problems is of utmost
importance; promoting draft legislation aimed at resolving structural
problems revealed by the Court, combined with ensuring verification
of the compatibility of the draft legislation with Convention standards,
would contribute to the rapid and effective implementation of the
judgments of the Court.
152. During my visit to Ukraine in June 2009,
a Memorandum of Understanding
on
regular supervision of implementation of the Court’s judgments was
signed. Information on how the provisions in the said Memorandum
have been implemented is awaited. If such information is not communicated
in the foreseeable future, I propose that I invite the Head of the
Parliamentary Committee on the Judiciary of Ukraine, Mr Kivalov, to
come before the Committee on Legal Affairs and Human Rights to give
reasons for such inactivity.
2.2.9.1. Non-enforcement
of domestic judicial decisions
153. The non-enforcement of domestic judicial decisions
is the main structural problem in respect of Ukraine. It is a long-lasting
problem with the first judgment of the Court dating back to 2004
and
the number of similar applications continues to increase; more than
50% of all judgments with respect to Ukraine which are under the
supervision of the Committee of Ministers concern the problem of
non-enforcement of domestic judicial decisions and the Registry
of the Court has indicated that about 1 400 applications pending
before it concern the non-enforcement problem.
154. In October 2009, the Court issued a pilot judgment on the
issue –
Yuriy Nikolayevich Ivanov v.
Ukraine –,
in which it concluded that the Ukrainian
authorities have shown an almost complete reluctance to resolve this
structural problem.
155. The Court emphasised that legislative and regulatory reform
must take place without delay, in order to bring the country’s judicial
system into line with the Convention and to satisfy its obligations
under Article 46 of the Convention.
156. In addition, the Court held that there must be an effective
remedy put in place by 15 January 2011 to secure adequate and sufficient
redress for those who have suffered from non-enforcement or delayed enforcement
of domestic judgments.
If this measure is not taken,
persons suffering from the violations will continue to hold victim
status and will be able to lodge applications to Strasbourg.
157. Despite a number of initiatives reported to the Committee
of Ministers and the pilot judgment delivered by the Court, no concrete
and visible results have been recorded since 2004 in the resolution
of the problems underlying the repetitive violations of the Convention.
158. Indeed, it could be considered that this issue, to my consternation,
does not appear to be a priority for the authorities, notwithstanding
the clear wording of the Court’s pilot judgment. This situation
gives rise to particular concerns, which were recently also expressed
by the Committee of Ministers, in that “no tangible and concrete
information has been provided as to whether a comprehensive strategy
has been developed with the aim of complying with this judgment
and the deadlines set therein”.
Again, perhaps, a reason for the Assembly,
and its Committee on Legal Affairs and Human Rights to take a more
“forceful” attitude to obtain explanations from the Ukrainian authorities,
as well as from our parliamentary colleagues.
2.2.9.2. Length of civil
and criminal proceedings
159. Excessive length of civil and criminal proceedings
is a problem caused by: courts not taking measures to ensure plaintiffs,
defendants and witnesses are present in court; too many remittals
for experts and re-trials are ordered; there also exists a general
problem with long intervals and adjournments. The inactivity of investigators
and shortcomings in pre-trial investigations in criminal cases,
which subsequently result in courts’ sending the cases for additional
investigations, are likewise among the main reasons causing delays
in domestic court proceedings in violation of Article 6.1. This
is aggravated by the absence of an effective domestic remedy.
160. There was a draft law produced in 2005 to enable a complaint
to the administrative court in the instance of excessively lengthy
proceedings, but no information is forthcoming on its current status.
This, it should be noted, casts doubts over the political will to
instigate reform.
2.2.9.3. Issues concerning
detention on remand
2.2.9.3.1. Conditions of detention on remand
161. Poor conditions of detention in remand centres as
well as in penitentiary facilities across Ukraine are a structural
problem indicated by the Court. They are mainly manifested in overcrowding,
unsatisfactory hygiene and inadequate medical care.
There is also a lack of an effective
means to complain and gain redress for such conditions in violation
of Article 13.
162. Measures have been taken to increase living space in prisons.
In particular, the Law on Amendments to the Code of Execution of
Sentences entered into force on 16 February 2010 and provides for, inter alia, 4 square metres of space per prisoner; but the relevant provision
determining prisoner space will not come into force until January
2012.
163. In the meantime, a state programme was set up for the years
2006-10 to overhaul existing detention centres and build new ones.
However, this does not resolve the issue as legislation setting
the norm of average living space at 2.5 square metres (remand detention)
has not been amended.
164. Information on legislative and regulatory reform is not forthcoming
regarding this issue and, again, an effective remedy has still not
been instituted, despite being flagged up by the Court as essential
to offer redress to victims.
2.2.9.3.2. Unlawful and lengthy detention
165. The Doronin v. Ukraine group of cases
represent violations of Article 5 of the Convention for unlawful and
lengthy detention on remand arising from: detention without judicial
decision to that effect and/or the retroactive application of decisions
on detention; failure to give reasons and set time limits for detention;
the failure to consider alternative preventative measures to detention
on remand; and the lack of judicial review of the lawfulness of
detention.
166. Measures have been taken to amend the existing Code of Criminal
Procedure, in particular to ensure that the time taken for the detainee
to familiarise him or herself with the case file is taken into account
when calculating the detention period.
167. During the Round Table on “Detention on remand: General Measures
to comply with the European Court’s judgments”, organised by the
Council of Europe’s Department for the Execution of Judgments of
the European Court on 9 and 10 December 2009 in Warsaw, the Ukrainian
authorities announced their plans to carry out a comprehensive reform
of the criminal justice system. It was noted, in particular, that
the new code of criminal procedure to be drafted would address all
outstanding problems listed above.
For the time being, no further information
has been provided by the authorities on this reform, although the
adoption of such a code remains one of the outstanding commitments
of the Ukrainian authorities.
2.2.9.4. Ill-treatment by
police and lack of procedural safeguards
168. A constantly increasing number of cases concern ill-treatment
in police custody and lack of an effective investigation in this
respect.
In January 2005, a number of
amendments were made to the Law on Militia, reinforcing guarantees
for persons detained by the police. A number of measures were taken
to strengthen human rights training by including the study of the
Convention’s requirements and the Court’s case law on Article 3
in the curriculum of educational establishments under the Ministry
of Internal Affairs and that of the National Academy of Prosecutors.
169. However, the constantly increasing number of similar applications
pending before the Court and the CPT visits to Ukraine
demonstrate that, in spite of measures
taken by the authorities, the deliberate physical ill-treatment
of detainees by police officers remains widespread in Ukraine, in
particular during initial questioning in district police stations
with a view to securing confessions relating to unsolved crimes.
Eradicating this practice requires comprehensive measures at all
levels. The Committee of Ministers therefore invited the Ukrainian
authorities to provide an action plan on comprehensive measures
to combat abuses in police custody and to ensure effective investigation
into allegations of ill-treatment. This action plan is still awaited.
2.2.9.5. Lack of independence
and impartiality of judges
170. Fair trial (Article 6 of the Convention) is a concern
in Ukraine, with many problems at its heart, the most complex one
being the lack of independence and impartiality of judges.
Insufficient legislative and financial guarantees
against outside pressure, lack of criteria and procedures on promotion,
disciplinary liability and limits to judges’ discretionary powers
have,
inter alia, been highlighted
as problems.
171. A new Law on Judiciary and the Status of Judges of Ukraine
was adopted by the Ukrainian Parliament on 7 July 2010.
It remains to be
seen what effect this will have.
2.2.9.6. Specific areas
of concern
172. Mention must be made of the case of
Gongadze v. Ukraine. The Court found
that although Mr Gongadze, a journalist, notified the Prosecutor
General of the apparent threat to his life, the authorities failed
to take any steps to protect him, violating Article 2 of the Convention.
The investigation of his death also violated the procedural limb
of Article 2 due to delays and deficiencies and the attitude shown
by the investigators to the family, in violation of Article 3. In
addition, the lack of effective investigation for more than four
years and the impossibility of seeking compensation violated Article
13. This case is politically sensitive as several state officials,
including the former president, are implicated.
173. Although the perpetrators of Mr Gongadze’s murder were convicted
in 2008, the investigation aimed at identifying the instigators
and organisers of this crime was subject to inexplicable delays.
This situation has been denounced by the Assembly.
The Committee of Ministers has already
adopted two interim resolutions urging the Ukrainian authorities
to enhance their efforts with a view to bringing to an end the ongoing investigation.
It seems that since then several developments
have taken place in the framework of the investigation.
However, no concrete and visible results
have been achieved. The Ukrainian authorities must now rapidly complete
the investigation. This appears to be particularly important in
view of the fact that another journalist disappeared in August 2010.
2.2.9.7. Additional comments
174. The problems revealed by the judgments of the Court
are large-scale and complex in nature. Their resolution may sometimes
go beyond the execution of a particular judgment. This can only
be achieved through the setting up of a comprehensive strategy co-ordinated
at the highest political level. Any delays in the setting up of
such a strategy should be subject to close monitoring by parliament
which should have appropriate means to compel the government to
solve these issues as a matter of priority.
3. 3. Implementation
problems revealed in other states
3.1. Introductory remarks
175. Whilst in the light of the previous progress report
it was necessary to assess the current situation in the above states,
it cannot be ignored that several other states face implementation
problems, in particular Albania, Armenia, Azerbaijan, Bosnia and
Herzegovina, Georgia and Serbia. I may need to visit certain of
these states when preparing the eighth report on this subject.
3.2. Implementation
problems revealed
3.2.1. Albania
176. In recent years, the Court has delivered a number
of judgments against Albania regarding the systemic problem of non-execution
of final domestic court decisions, in particular concerning the
right of the applicants to compensation (whether pecuniary or in
kind) as a consequence of the nationalisation of property under
the communist regime. In its reasoning, the Court considered that
the respondent state should remove all obstacles to the award of
compensation under the Property Act by ensuring that the appropriate
statutory, administrative and budgetary measures are taken. Such
measures should be taken as a matter of urgency.
Other shortcomings
identified by the Court were the inefficiency of the bailiffs and
the lack of an effective remedy. The Albanian authorities have been
asked by the Committee of Ministers
to
take the necessary measures of redress in order to avoid similar
violations. For that purpose, a memorandum
identifying outstanding problems
and focusing on a number of avenues for a comprehensive resolution
of the problem has been prepared to assist the Committee of Ministers
in its supervision of the execution of judgments in respect of Albania.
Moreover in view of the persisting problem, Albania has been selected
as one of the beneficiary countries (together with Azerbaijan, Bosnia
and Herzegovina, Moldova, Serbia and Ukraine) of the Human Rights
Trust Fund project on removing the obstacles to the non-enforcement
of domestic court judgments/ensuring the effective implementation
of domestic court judgments.
3.2.2. Armenia
177. Two important issues in Armenia concern conditions
of detention in prisons
and freedom of expression.
Concerning the latter, there has been no real progress in the execution
of the case
Meltex Ltd and Mesrop Movsesyan
v. Armenia.
The
Assembly considers it particularly worrying that the Committee of Ministers,
in its last decision on this case (1092nd Human Rights meeting,
September 2010), had to recall that respondent states have the obligation
to provide – in due course – information on developments regarding
the execution of judgments of the Court. In light of this, the Armenian
authorities have been invited to provide, to the Committee of Ministers,
a comprehensive overview of the legislative and regulatory framework
that substantiates the unambiguous obligation of the National Television
Radio Commission to give reasons for its decisions to award or not,
or to revoke broadcasting licences, in the framework of competitions
or applications for broadcasting, as well as information on the
concrete implementation of this framework in respect of the ongoing
tender procedures.
3.2.3. Azerbaijan
178. Azerbaijan has problems regarding degrading treatment
in detention, ill-treatment by police, freedom of expression, and
the non-enforcement of domestic judicial decisions. In Hummatov
v. Azerbaijan
the
Court held that inadequate medical treatment for tuberculosis was
a violation of Article 3, and the lack of an effective remedy violated
Article 13. The Ministry of Justice has ordered the demolition of
the prison in question and set up a programme with the International
Committee of the Red Cross (ICRC) to eradicate tuberculosis from detention
centres. Ill-treatment by police and no subsequent effective investigation
have also been identified as issues, and information on the institution
of independent monitoring of police use of force is awaited.
Freedom
of expression is a major topic as defamation is criminalised and
there appears to be no political will to instigate change;
and in respect of the non-enforcement
of domestic judgments, the cases Mirzayev v. Azerbaijan
– concerning internally
displaced persons – and Humbatov v. Azerbaijan
have, regrettably, not
been supplemented with any information on how the authorities intend
to tackle the problem.
3.2.4. Bosnia and Herzegovina
179. Bosnia and Herzegovina has particular problems with
the non-enforcement of domestic judgments and the violation of electoral
rights. Concerning the first, a memorandum
of the Committee of
Ministers was prepared outlining the progress made in light of the
judgments of the Court in,
inter alia, the
Karanović v. Bosnia and Herzegovina and
Jeličić
v. Bosnia and Herzegovina groups of cases, the latter dealing
with “old” savings deposited in the Socialist Federative Republic
of Yugoslavia. It should also be noted Bosnia and Herzegovina is
a beneficiary of the Human Rights Trust Fund project on “removing
the obstacles to the non-enforcement of domestic court judgments/ensuring
an effective implementation of domestic court judgments”.
180. In respect of the second, the Court held in
Sejdic and Finci v. Bosnia and Herzegovina that the election procedure
to the House of Peoples and the Presidency was discriminatory in
that it prevented persons of Jewish and Roma origin from standing.
It is of utmost importance that the Bosnia and Herzegovina Constitution,
which only allows “constituent peoples” to stand, be amended to
rectify this discrimination. In its
Resolution 1725 (2010), the Assembly had already expressed concern about the
lack of adequate constitutional amendment, noting that “there is
a serious risk that the October 2010 general elections will be once
again held in violation of the European Convention on Human Rights
(ETS No. 5) and its protocols, as well as of the judgment of the
Court”.
In its reply to Assembly
Recommendation 1914 (2010), the Committee of Ministers regretted that the required
reform was not, in fact, in place in time for the October elections
and again reiterated that the Council of Europe, through the Venice
Commission and the Department for the Execution of Judgments of
the Court, “was ready to offer the assistance and support needed
to carry through the constitutional reform”.
3.2.5. Georgia
181. In Georgia, the main problems are the lack of new
investigations into ill-treatment by police, and inadequate medical
treatment in prisons. Concerning the former, the Davtyan v. Georgia
group of cases demonstrate
that the mere commencement of an investigation does not mean that
the investigation is effective; it must fulfil the criteria required
by the Court.
Examples
of shortcomings in the investigations include the failure to seek
independent medical expertise, the failure to interview all appropriate
parties and a lack of promptness in opening the case. The Committee
of Ministers has stressed that such a violation represents a continuing
violation; therefore new, effective investigations must be initiated.
Unfortunately, no information has been received by the Committee
of Ministers on how the Georgian authorities intend in practice
to carry out new investigations.
182. In respect of inadequate medical treatment in prisons, Ghavtadze
v. Georgia
concerned
the violation of Article 3, as the authorities failed to treat the
applicant’s symptoms of hepatitis C and tuberculosis. The prison has
since been demolished, but the problem of inadequate medical treatment
in prisons is still under scrutiny until a permanent solution is
found.
3.2.6. Serbia
183. Serbia faces issues in the non-enforcement of domestic
decisions, lengthy proceedings, and the lack of an effective remedy
for such complaints. In terms of non-enforcement,
Serbia is a beneficiary
of the Human Rights Trust Fund project on the issue and has acknowledged
the magnitude of the problem revealed by the
EVT
Company v. Serbia cases.
The concerns surrounding lengthy proceedings are revealed in the
Jevremovic v. Serbia group of cases,
but encouragement can be taken from the Court’s judgment in
Vincic v. Serbia, where the remedy introduced
was considered to be effective.
4. Focus on prevalent
implementation issues
4.1. Introductory remarks
184. In the light of the Interlaken Conference of February
2010, reducing the Court’s backlog is a top priority for the Council
of Europe if its existence is to be maintained.
It has been stressed that it is
the responsibility of the member states to execute judgments of
the Court and that full, effective and rapid execution of the final judgments
of the Court is indispensable. The Interlaken Declaration also called
for improved efficiency of the system supervising the execution
of the Court’s judgments, in particular by giving priority and visibility
to cases disclosing major structural problems and prioritising the
need to establish effective domestic remedies. Consequently, the
Committee of Ministers has already, so it would appear, taken steps
to ensure more enhanced supervision of execution.
It
is essential, though, that the various organs of the Council of
Europe co-ordinate their roles with respect to the Interlaken process,
and I believe that the Parliamentary Assembly can serve a key function
in utilising its mandate to encourage states to address human rights
issues internally.
185. What is clear from this report is that the extensive backlog
of cases before the Court, currently estimated at 138 200,
can be substantially reduced if
states parties address the root causes of a number of key concerns.
In order for the Court to deal effectively with the most serious
cases concerning non-derogable rights in the Convention, which it
must prioritise, then those cases giving rise to systemic and repetitive
violations have to be eradicated. There can be no doubt that the
most prevalent problems in this regard are:
i. excessive length of judicial proceedings, and
ii. non-enforcement of domestic judicial decisions.
That
said, I cannot ignore that fact that the following concerns – though
not as numerous as the above issues – represent high numbers of
repetitive, serious violations in specific member states:
4.2. Excessive length
of judicial proceedings
186. Since I made my critical observations last summer
– in my progress report – on the excessive length of judicial proceedings,
the situation has worsened.
This
problem is endemic and simply must be addressed. Current figures
suggest that of the 8 689 cases pending before the Committee of
Ministers, 4 422 of them concern the excessive length of judicial
proceedings.
As I have elaborated
in the present report, Italy, Greece and Poland have serious systemic
problems in this regard and alone accumulate over 30% (2 904) of the
pending excessive length cases before the Committee of Ministers.
187. Italy has been continually flagged up in this series of reports,
beginning with my predecessor, Mr Erik Jurgens, in 2005.
Currently, of the 2 493
cases pending before the Committee of Ministers “belonging” to Italy
(some 28% of all cases),
2 289
concern excessive length of judicial proceedings.
Taking further measures to execute
the Court’s judgments in this area would, therefore, allow the closure
of around 90% of Italy’s cases. It cannot be stressed enough how
crucial this is to the post-Interlaken process with respect to repetitive
applications.
4.3. Non-enforcement
of domestic judicial decisions
188. In my progress report, I emphasised the importance
for the integrity of Article 6 of the Convention of enforcing final
domestic judgments,
and this has been
further reflected in the present report. The non-enforcement of
domestic judicial decisions is a widespread systemic problem across
many states, not just those identified in this report. Some 925
cases are pending on this issue before the Committee of Ministers (10%
of all cases pending).
However, the situation
is endemic in the Russian Federation and Ukraine, which together
amass over 70% (663) of cases pending before the Committee of Ministers.
Indeed, this particular issue accounts
for over 60% of Ukraine’s cases before the Committee of Ministers.
189. The Court, in an attempt to counter this, has delivered pilot
judgments regarding these states in
Burdov v.
Russian Federation (No. 2) and
Yuri Nikolayevich v. Ukraine. The remedy adopted
in the light of the Burdov (No. 2) case has been welcomed by the
Secretary General of the Council of Europe and is quoted as a “positive
step” as a “result of intensive co-operation between the Russian
authorities and the Committee Ministers”.
I urge my fellow parliamentarians
in these countries to inform our Committee what initiatives they have
taken to encourage action from the authorities of their respective
countries. Indeed, I propose that the Committee now “obliges” fellow
parliamentarians (chairpersons of parliamentary delegations and/or
committee members) to provide specific information on this subject
at regular intervals. Important and urgent action is needed.
4.4. Deaths or ill-treatment
under the responsibility of law enforcement officials and lack of
an effective investigation thereof
190. Articles 2 (the right to life) and 3 (the prohibition
of torture, inhuman and degrading treatment) represent the most
fundamental rights guaranteed by the Convention. A state’s obligations
under Articles 2 and 3, read with the general duty under Article
1 to “secure to everyone within their jurisdiction the rights and
freedoms defined in … [the] Convention” also requires an effective
investigation into the circumstances in which a person died or was
ill-treated.
If an effective investigation
is not carried out then a climate of impunity exists.
191. Whilst cases giving rise to violations of these rights are
not as numerous as cases concerning excessive length of judicial
proceedings or non-enforcement of domestic judicial decisions, the
unacceptable fact remains that repetitive violations of these non-derogable
rights still take place; for instance, security force operations
– particularly in Turkey and the Russian Federation – have seen
their chronic violation. Our colleague, Mr Dick Marty, has stated
that the actions of Russian security forces in the North Caucasus
region between 1999 and 2003 “constitutes today the most serious
and most delicate situation from a standpoint of safeguarding human rights
and upholding rule of law, in the entire geographical area covered
by the Council of Europe”.
Mr Marty’s research revealed that,
since 2007, a staggering number of 150 judgments have been delivered
by the Court and 235 cases are pending. New applications have not
slowed down, with 100 new ones being received by the Court in 2009
alone.
This situation is simply intolerable.
192. Impunity for deaths or ill-treatment suffered at the hands
of state security forces is also a problem in Greece, Moldova, and
Bulgaria, though is it not limited to these states.
The importance of eradicating impunity
cannot be overstated and the proper execution of judgments of the
Court has been identified by our former colleague, Mrs Däubler-Gmelin,
as the key to success.
4.5. Unlawful and excessively
lengthy detention on remand
193. Unlawful and excessively lengthy detention on remand
is another issue that presents numerous cases in specific states
and must be tackled. It is most prevalent in Moldova, the Russian
Federation, Turkey and Ukraine. The repetitive nature of this violation
of Article 5 of the Convention reflects a problem of inappropriate and
even bad practice by judges and prosecutors that is inherent in
the judicial systems of these states. There is a lack of awareness
and application of Convention standards when deciding on detention
on remand as a preventative measure, and a use of “stereotypical
reasoning”
that violates Article 5.3 of the Convention. The
prolonged detention as a consequence of these deficiencies is an
unacceptable state of affairs. Again, we parliamentarians at the
Assembly, in our domestic parliamentary capacity, must take the
necessary measures to oblige state authorities to put matters right.
5. Need to reinforce
parliamentary involvement
5.1. Preliminary remarks
194. Although the supervision of execution of Court judgments
is primarily the responsibility of the Committee of Ministers under
Article 46.2 of the Convention, the vital role of national parliaments
in this area must not be overlooked. National parliamentarians,
as democratically elected representatives, are uniquely placed to scrutinise
the actions of government so as to ensure the swift and effective
implementation of the Court judgments.
195. National parliamentary involvement has long been identified
as a vital tool in the implementation of Court judgments.
Indeed, both the Parliamentary
Assembly and its President have urged member states to create or
strengthen national parliamentary supervision mechanisms;
recently, the Assembly’s resolution
on the Interlaken process reaffirmed the need for increased parliamentary
involvement in the implementation of Court judgments.
Moreover,
my predecessor, Mr Erik Jurgens, emphasised the need for national
parliaments to introduce “specific mechanisms for regular parliamentary
oversight of Court judgments”
while in my progress
report, I reiterated that national parliaments should exercise a
“prominent role” in the implementation of Court judgments.
196. A recent comparative report revealed that States Parties to
the Convention with strong implementation records are frequently
characterised by strong participation of parliamentary actors in
the implementation process.
Similarly, organs of the Council
of Europe have recognised that the implementation of the Court judgments
is substantially improved by stronger national parliamentary involvement.
Despite these observations
and repeated calls for increased parliamentary supervision in this
area, at present very few states actively engage in the process.
5.2. The key role of
national parliaments
197. Overall, parliamentary oversight of implementation
of the Court judgments should take two broad forms: parliament should
first exercise oversight in ensuring that the competent authorities
adopt measures to execute an adverse judgment of the Court and,
secondly, parliament should scrutinise the actual content of the measures
proposed.
In particular,
mechanisms in place in the United Kingdom and the Netherlands should be
viewed as examples of best practice.
198. The United Kingdom provides an excellent example for parliamentary
supervision of the implementation of the Court judgments. The United
Kingdom is one of only a handful of states to possess a special parliamentary
body with a specific mandate to verify and monitor the compatibility
of the country’s law and practice with the Convention. The United
Kingdom’s Joint Committee on Human Rights (JCHR) produces an annual
report monitoring the government’s response to adverse Court judgments;
the report is not merely a summary of the measures taken by the
government in response to a judgment but is the product of continual dialogue
between the JCHR and national authorities on the matter. The monitoring
report assesses the adequacy of measures adopted and, where the
JCHR considers the measures insufficient, exerts pressure on the
government to swiftly implement effective measures.
199. An essential aspect of parliamentary supervision of implementation
of Court judgments is parliament’s verification of the compliance
of draft legislation with the Convention. Parliamentary verification
of draft legislation introduced in response to an adverse finding
of the Court is particularly important if similar violations are
to be prevented in future. Despite the clear value of this process,
an assessment conducted by the secretariat of the Assembly’s Committee
on Legal Affairs and Human Rights revealed that “very few parliamentary
mechanisms exist with a specific mandate to verify compliance [of
draft legislation] with ECHR requirements”.
200. Again, the United Kingdom provides a model mechanism for parliamentary
verification of draft legislation. The minister responsible for
a draft law is required to make one of two statements to parliament prior
to the second reading of the bill: either a statement to the effect
that the provisions of the bill are, in his or her view, compatible
with the Convention, or that a statement of compatibility cannot
be made but the government intends to proceed with the bill nevertheless.
Where draft legislation
raises human rights concerns, the JCHR undertakes pre-legislative
scrutiny of compliance with international human rights standards;
the observations of the committee, presented in the form of a report,
then contribute to parliamentary debate during the legislative process.
201. Aside from the direct effect which parliamentary supervision
has on the implementation of the Court judgments, the impact which
parliamentary involvement has on human rights discourse at a domestic
level is of great value. Indeed, the JCHR has been successful in
promoting a political culture of human rights in the United Kingdom;
the JCHR’s reports have increased parliamentary awareness of human
rights standards and have created an expectation that the government
must be held fully accountable for its actions, justifying any measures
taken from a Convention perspective.
202. In addition to the United Kingdom, the system in place in
the Netherlands constitutes an example of best practice. In the
Netherlands, the Minister for Foreign Affairs, also on behalf of
the Minister of Justice, presents an annual report to parliament
concerning Court judgments delivered against the Netherlands. Following
a request from the senate in 2006, the report now includes information
concerning measures adopted to implement adverse Court judgments.
Moreover, the annual report contains judgments against other state parties
which could have a direct or indirect effect on the Dutch legal
system.
203. Although the United Kingdom and the Netherlands possess two
of the most advanced systems of parliamentary scrutiny, mechanisms
in place in other member states are encouraging. Information provided
by the secretariat to the German Parliament indicates that, in addition
to the obligation for the government to issue an annual report on
the implementation of Court judgments which is reviewed by three
parliamentary committees, this year, for the first time, there will
be a report on judgments against other states that could have an
impact on the German legal system.
204. Progress is also being made in Ukraine. During my visit to
Ukraine, a Memorandum of Understanding on the State of Ukraine’s
Performance of the Final Judgments of the European Court of Human
Rights was signed on 9 July 2009 between myself and Mr Kivalov,
Chairman of the Committee on Justice of the Verkhovna Rada, stating
that it is desirable that the Committee on Justice and any of its
sub-committees conduct a monitoring of performance and enforcement
of Court judgments to which Ukraine is a party, as well as any other
relevant case law of the Court. More specifically, Mr Kivalov indicated
that the committee’s new sub-committee on the implementation of
international standards will soon undertake a thorough overview
of the state of non-implementation of Court judgments in Ukraine.
205. Furthermore, in Finland, the Constitutional Law Committee
of the Finnish Parliament issues statements on the constitutionality
of legislative proposals brought before its consideration, as well
as on their relation to international human rights treaties, the
Convention being the most central international document against which
legislative acts are judged.
206. Finally, in 2007, the Romanian Chamber of Deputies set up
a sub-committee of its Legal Affairs Committee specifically mandated
to monitor the implementation of Court judgments. At a meeting of
the Assembly’s Committee on Legal Affairs and Human Rights held
in November 2009, Mr Tudor Panţiru – elected Chair of the new Romanian
sub-committee and a former judge of the European Court of Human
Rights – indicated that, although the work of the sub-committee
was yet to get under way, he intended to move things forward.
207. As a final remark, during the course of my country visits
in preparation of the present report, I urged my fellow parliamentarians
to establish – within their domestic parliaments – specific procedures
to regularly monitor the implementation of Court judgments. Reactions
to my requests were very positive; I was assured by parliamentarians
that this subject would be dealt with as a matter of priority. I
now eagerly await follow-up on assurances given to me in the Russian
Federation, Italy and Greece. The issue will also have to be closely followed
by the Committee on Legal Affairs and Human Rights in the context
of combating structural deficiencies in states parties which are
the “most persistent defaulters”.
6. Conclusions
208. The Interlaken process is now underway. Urgent action
must be taken to reduce the Court’s current case backlog and, although
Protocol No. 14 to the Convention will undoubtedly have a positive
impact, primary responsibility in this respect rests with States
Parties to the Convention. Long-standing systemic problems in certain
states continue to give rise to numerous “clone” applications to
the Court, threatening the effectiveness of the European human rights
protection system. Indeed, this report has highlighted, in particular,
that the problem of excessive length of judicial proceedings continues
to worsen: current figures suggest that cases concerning this issue
account for almost half of all cases pending before the Committee
of Ministers; regrettably, close to a third of cases on excessive
length of judicial proceedings concern Italy.
209. With this in mind, it is essential that states parties fulfil
their obligation under Article 46 of the Convention to ensure the
full and rapid implementation of judgments of the Court. National
parliaments may, in this respect, have an essential role to play
as they, sometimes more effectively than the Committee of Ministers,
can exert pressure on governments to ensure the effective implementation
of an adverse judgment. This report has highlighted mechanisms in
place in the United Kingdom and the Netherlands as examples of “best
practice” in the parliamentary supervision of implementation of
Court judgments; recent positive developments have also been noted
in other states such as Finland, Germany and Romania. But despite
this, too few states thoroughly engage in this process, a situation
that must be addressed by national parliamentarians as a matter
of priority. Hence the importance, in this connection, of our committee’s
decision, on 5 October 2010, to propose to the Assembly that the
2011 debate on the state of human rights in Europe should focus
on “National parliaments – guarantors of human rights in Europe”.
210. Alongside systemic problems leading to a large number of repetitive
applications, close attention must be paid to worrying developments
in certain states. I highlight one specific worrying example: the
non-respect of interim measures under Rule 39 of the Rules of the
Court (linked to states’ requirement not to undermine the effectiveness
of the right of individual application
). In this respect, the Italian attitude
to expel applicants, in defiance of Rule 39 measures, to a country
where there exists a real risk of ill-treatment, is simply unacceptable.
Despite assurances given to the Committee of Ministers by the Italian
authorities to put an end to this trend,
they
have since expelled another applicant, Mr Mannai, on 1 May 2010
in contravention of an interim measure issued by the Court.
The Slovak Republic has recently
taken similar action in extraditing Mustapha Labsi to Algeria, ignoring
an interim measure ordered by the Court.
The Assembly has stressed the importance
of the full co-operation of all states parties with the Court “at
all stages of procedure and even before a procedure is formally
opened”.
Indeed, such blatant disregard for
interim measures seriously threatens the right to individual petition
and the effectiveness of the Convention system as a whole. Parliamentarians,
both at the Assembly and domestic level, must prioritise efforts
to stop such disgraceful behaviour.
211. During the preparation of this report, I visited seven states
parties and have assessed the extent of implementation of Court
judgments and parliamentary supervision in these and several other
countries. What is clear is that the situation regarding implementation
of Court judgments is, at present, far from satisfactory. As my
colleague, Mr Holger Haibach, has rightly stressed in a recent motion
for a resolution on “Ensuring the viability of the Strasbourg Court”:
“The Parliamentary Assembly should itself undertake and also insist
on regular and stringent national parliamentary supervision of Strasbourg
judgments to ensure that structural deficiencies are promptly and
adequately dealt with”.
In addition, it is
simply unacceptable – for states belonging to a European organisation
which considers itself the “Conscience of Europe” – not to take immediate
and strong measures following deaths or ill-treatment suffered at
the hands of law enforcement officials; the importance of eradicating
impunity cannot be overstated, not only in the North Caucasus region of
the Russian Federation, although this problem is the most virulent
there, as shown by Mr Dick Marty’s report.
Failure to implement judgments of
the Court in such instances gravely undermines the value of the protection
system established by the Convention. I therefore very much count
on my fellow parliamentarians to put right this unsatisfactory situation.
212. Two final, but important comments: We, the Assembly, as a
statutory organ of the Council of Europe (and at the same time national
parliamentarians), should not meekly accept the premise that the
Committee of Ministers has “exclusive jurisdiction” on this subject.
When Court judgments are not fully and rapidly executed, we – parliamentarians
– also have a duty to help supervise the execution of the Court’s
judgments. The credibility and viability of our European system
of human rights cannot be left solely in the hands of the executive
organ of the Council of Europe (in effect, diplomatic representatives
of governments). Closely tied to this is the idea which I mooted
back in August 2009, to the effect that the Assembly ought to consider
– in the future – suspending the voting rights of national delegations
when their parliaments do not seriously exercise parliamentary control
over the executive in cases of non-implementation of judgments of
the European Court of Human Rights.