Report | Doc. 13087 | 07 January 2013
Ensuring the viability of the Strasbourg Court: structural deficiencies in States Parties
Committee on Legal Affairs and Human Rights
States Parties bear the “primary responsibility” for ensuring the European Convention on Human Rights is applied effectively at national level, alongside the European Court of Human Rights and the Committee of Ministers.
The Committee on Legal Affairs and Human Rights deplores the fact that the Court is “still overloaded with a large number of repetitive cases revealing widespread dysfunctions in national legal orders”. It lists nine States (Bulgaria, Greece, Italy, the Republic of Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine) which continue to have “major structural problems” – adding that countries with a high proportion of complaints in relation to their population should also face scrutiny.
The committee calls on States Parties to the Convention to create strategies and action plans to deal with their structural problems, and amend their laws in line with the Court’s case law. States Parties should also consider establishing a national body responsible solely for the execution of the Court’s judgments. Moreover, national parliaments should be actively involved in the implementation of these judgments, and in particular of those revealing structural deficiencies.
The Council of Europe governments are also called on to “increase pressure and take firmer measures” in cases of dilatory and continuous non-compliance with the Court’s judgments.
A. Draft resolution(open)
B. Draft recommendation(open)
C. Explanatory memorandum by Mr Kivalov, rapporteur(open)
1.1. The rapporteur's mandate
1.2. Previous work of the committee
1.3. Purpose of the present report
2. Definition of terms
2.1. Structural/systemic problem and pilot judgment procedure
2.2. Leading cases and clone cases
3. Overview of substantial structural/systemic deficiencies
3.1. Identifying the range of States with substantial structural/systemic deficiencies
3.2.1. Excessive length of judicial proceedings
- introducing remedies aimed specifically at speeding up criminal proceedings;
- employing the “concentration principle” whereby evidence is brought together in first instance proceedings (Bulgaria, Ukraine);
- changing the character of second instance proceedings from “second first instance” proceedings to proper appeal proceedings;
- limiting the grounds for lodging a further appeal to the Supreme Court;
- simplifying summons arrangements by introducing the possibility of serving a summons by delivering it to a person’s mailbox or affixing it to that person’s front door (Bulgaria );
- modifying and reducing the scope of the supervisory review procedure and the related issue of impartiality (Russia, Ukraine);
- introducing a minimal court fee in proceedings as an administrative measure to deter manifestly ill-founded applications;
- simplifying specific procedures, including civil proceedings by limiting the types of civil proceedings to three (Italy);
- rationalising and accelerating proceedings before administrative courts and streamlining provisions (Greece);
- introducing “participative proceedings”, namely the obligation to appoint a representative when the number of parties to a case reaches a certain level (20 for example).
- establishing assessment and monitoring mechanisms, particularly through the collection and analysis of statistical data (Bulgaria);
- reducing the length of trials and introducing simplified procedures for judicial review;
- digitalising case files, allowing for easier, faster access (Italy and Turkey);
- introducing a uniform method of managing civil case files in appellate courts and tribunals (Italy, end of March 2011);
- circulating best practices widely;
- increasing the number of judges.
3.2.2. Chronic non-enforcement of domestic judicial decisions
- deficient legislation and administrative practices;
- delays in legislative changes;
- inefficiency of the bailiff system;
- lack of co-ordination between enforcement agencies;
- failure of the courts to identify the debtor clearly.
- The Moldovan government has taken concrete measures to eliminate this systemic problem by introducing special legislation in July 2011 regarding non-enforcement of final domestic judgments and unreasonable length of proceedings. Non-enforcement nevertheless remains a reality in the Moldovan bailiff system.
- Similarly, the Romanian authorities have adopted some positive measures in this area. In October and November 2011, they submitted two revised action plans with information on the reforms carried out in response to the Strasbourg Court's judgments. It is indicated in particular that an inter-ministerial group prepared a draft law with a view to rendering the restitution and compensation process more effective, and a calendar for the adoption of the draft law was provided. At this stage, however, the calendar provided does not indicate whether the anticipated measures can be put in place before the expiry of the 18-month deadline set by the pilot judgment. As regards the progress of the restitution and compensation process, the data submitted do not afford a clear view of the overall number of claims that are yet to be satisfied, as they only concern part of the restitution laws which have governed these issues thus far. Since Mr Pourgourides’ above-mentioned report of December 2010, the Proprietatea Fund, set up by Romania to deal with the payment of compensation awarded to owners of nationalised property, remains unlisted on the stock exchange (a measure which was due to take place in 2005, according to Romania Law No. 247/2005). The Fund has, however, been paying dividends to its shareholders since 2007, and since March 2008 its shares may be sold by means of direct transactions under the supervision of the stock exchange regulatory authority.
- The Committee of Ministers recognised as a delayed but positive and effective remedy the Russian Federation’s adoption of two federal laws providing a new domestic remedy for excessive length of judicial proceedings and delayed enforcement of domestic judgments delivered against the State (“the Compensation Act”), as well as the Russian authorities’ (in particular the federal Supreme Court, the Supreme Commercial Court, the Ministry of Finance, and Federal Treasury’s) implementation of measures to guarantee the effectiveness of the new compensation remedy at a domestic level. In addition, the Committee of Ministers welcomed the comprehensive measures taken by the Russian Federation with a view to settling similar individual applications lodged prior to the pilot judgment Burdov v. Russian Federation (No. 2), allowing the Court to strike 800 cases from its docket. The Committee of Ministers recalled nevertheless that the Russian Federation remained under the obligation to adopt other general measures, bearing in mind the Court’s findings as set out in the pilot judgment, in order to fully address the issue of non-execution of judicial decisions under examination in the context of the Timofeyev group of cases, to which the Burdov No. 2 case was henceforth joined.
- The law “on State guarantees concerning execution of judicial decisions”, adopted by the Ukrainian Parliament on 5 June 2012 and which will come into force on 1 January 2013, provides a new procedure for the enforcement of judicial decisions delivered against the State. The essence of this new procedure would be that the State would undertake to execute a judgment at the expense of the State budget if the debtor concerned, that is the State, local body, or enterprise, failed for whatever reason to comply with the judgment. If some delay still occurred, automatic compensation would be payable. At its 1144th June 2012 human rights meeting, the Committee of Ministers welcomed the adoption of this law and encouraged the Ukrainian authorities to continue their efforts with a view to resolving the problem of non-execution of domestic judicial decisions.
3.2.3. Deaths and ill-treatment attributable to law enforcement officials, and a lack of effective investigations thereof
- the excessive length of investigations against State officials involved;
- the lack of independence of the authorities who conducted those investigations;
- the impossibility for applicants to have access to the records of the investigations;
- the impossibility for the applicants to interview witnesses and accused officers;
- impunity resulting from the application of statutes of limitations and amnesty laws;
- decisions of deferment of judgment or stays of execution of sentences issued against the accused officers;
- failure to suspend State officials from their duties despite the existence of proceedings against them for abuse;
- the lack of medical expertise prepared in good time;
- the lenient sentences imposed on police officers;
- conditional dismissals that applied to officers convicted of abuse.
- The Committee of Ministers has recommend that the Bulgarian Government take further measures to ensure the proper investigation of certain individual cases, procedural safeguards during police custody and civil society monitoring mechanisms. Bulgaria has also been requested to provide further information on the content of training and awareness-raising measures on human rights standards for law enforcement officials. Certain recently adopted or amended decrees and other legislation were regarded as falling short of Convention standards and more detailed information regarding measures envisaged or already adopted to ensure the effectiveness of investigations was requested. The Committee for the Prevention of Torture stressed that the problem of ill-treatment by police officers persisted, and recommended that the Minister of Internal Affairs of Bulgaria deliver a firm message of “zero tolerance” of ill-treatment to all police staff, to be backed up by appropriate training programmes. According to the Bulgarian parliamentary delegation, the Ministry of Interior is taking several awareness-raising measures on human rights standards, in particular through its Academy, which trains the Ministry’s staff in the area of the protection of security and public order.
- The Moldovan authorities adopted a number of measures, notably in response to the concerns raised by the CPT. Amendments were introduced to the Criminal Code, and in 2006 the Code of Police Ethics was approved by the government.
- The Russian Federation’s new law on police enforcement entered into force in March 2011. In its last specific decision of December 2010, the Committee of Ministers encouraged the Russian authorities to fully seize the opportunity offered by Russia’s ongoing comprehensive reform to ensure that the legal and regulatory framework for police activities contains all necessary safeguards against police arbitrariness and abuses, like those found by the European Court of Human Rights in its judgments. The new system put in place is presently under examination by the Committee of Ministers.
- Turkey’s Ministry of Justice organised the “High Level Conference and Workshop on Decisions of the European Court of Human Rights on Turkey, Issues and Solutions” in November 2011. At the meeting, Turkey notified the participants that questions concerning effective investigations and prosecutions would be reconsidered in the framework of professional training projects for judges and prosecutors, in collaboration with the High Council of Judges and Prosecutors and the Academy of Justice. The authorities also noted that according to the provisions of the new Criminal Code, the prescription periods for different crimes linked with ill treatment and torture had been increased to a significant degree. The Batý v. Turkey group of cases, however, highlights the problem of impunity of law enforcement officials.
- Similarly, the Ukrainian authorities have adopted a number of measures to prevent new, similar violations. On 12 January 2005, a number of amendments were introduced to the Law on the Militia. Ukraine is also expecting improvements stemming from the recent adoption of the new Code of Criminal Procedure, whose new Articles 176-179, 181, 203, 204, 207, 211, 212, 214 specifically target “the practice of unregistered detention by police” and “the use of administrative arrest for criminal investigation purposes”. In addition, measures have been taken to strengthen professional and in-service training of police officers in human rights by including the study of the Convention's requirements and the case law on Article 3 in the curriculum of educational establishments under the Ministry of Internal Affairs and the National Academy of Prosecutors. Problems of ill-treatment were also discussed during training programmes for judges and law-enforcement bodies organised by the Office of the Government Agent and NGOs.
3.2.4. Unlawful detention and excessive length of detention on remand
- the prevailing mentality, professional practice in the judiciary, and lack of motivation;
- the domestic courts’ failure to provide “relevant and sufficient” grounds for their decisions ordering or prolonging detention on remand;
- the domestic courts rendering judgments without taking into consideration the Convention’s requirements;
- the police’s wide-spread practice of unregistered detention;
- failure to bring the arrested person before a judge promptly;
- failure to consider alternative preventive measures;
- inadequate domestic legislation;
- lack of a clear procedure allowing for the speedy review of the lawfulness of detention on remand;
- absence of a domestic remedy letting applicants challenge the lawfulness of their detention on remand;
- absence of a right to compensation for unlawful detention on remand.
- The Polish authorities have made substantial changes in their State’s legal system in order to clarify the rules on the imposition and extension of detention, and to introduce and promote alternative measures. For instance, the Code of Criminal Procedure was reformed in 1997, 2000 and 2007. In 2011, in addition to their regular monitoring of the overall detention situation, the authorities also introduced closer supervision of the grounds for and length of detention, as well as of the efficient conduct of the relevant criminal proceedings.
- The Code of Criminal Procedure, Law No. 5271, which came into force on 1 June 2005 in Turkey, provides safeguards intended to prevent future violations of the same kind.
- On 9 November 2011, the Ukrainian authorities presented an action plan that provided a strategy for taking legislative measures, as well as administrative measures aimed at changing detention practices. Emphasis was put on the adoption of a new Code of Criminal Procedure in 2012, which, according to the authorities, would eliminate the legislative shortcomings underlying the recurrent violations of Article 5, paragraphs 1, 3, and 4 of the Convention. The new Code of Criminal Procedure was adopted in April 2012.
- Similarly, on 9 February 2012, the Russian authorities submitted an action plan. The Constitutional Court and the Supreme Court also adopted a number of decisions in an effort to remedy the existing uncertainty as to the legal provisions governing detention pending extradition. They provided the lower courts with guidelines and clarifications on how to apply the general provisions to suspects and to accused persons in detention on remand, as well as to persons detained pending extradition. Since 2008, these decisions have been supplemented by instructions issued by the General Prosecutor’s Office. The General Prosecutor’s Office also clarified how a detainee’s risk of possible ill-treatment in countries requesting extradition should be assessed by prosecutors when issuing an extradition order. In addition, the Russian authorities are currently considering the need for legislative amendments with a view to bringing the Code of Criminal Procedure into line with the Convention’s requirements.
- In Turkey, for example, when deciding whether to extend detention on remand, a domestic judge should indicate the presence of “relevant and sufficient reasons” for doing so, that is explain to what extent the applicant's release would still pose a risk after the passage of some time, in particular in the later stages of the court proceedings.
- The decisions of the Supreme Court of Justice of the Republic of Moldova upholding the need for judicial decisions to be made in light of the Strasbourg Court’s findings are a welcome step. These decisions demonstrate the increased attention paid by the Moldovan judicial community to resolving this important issue. However, increased efforts are needed to effectively change the judiciary’s daily practice, and it is not yet clear whether the guidelines contained in the decisions of the Supreme Court of Justice are binding on lower courts. Clarification with regard to this matter would be useful. Consequently, the Republic of Moldova was invited to submit to the Committee of Ministers an action plan on the implementation of the relevant judgments of the Court. Such an action plan is still awaited from the Moldovan authorities.
- At its 1136th human rights meeting in March 2012, the Committee of Ministers noted with satisfaction the progress achieved by the Polish authorities. A positive trend is visible in recent detention statistics, and Polish courts increasingly appear to be applying alternative measures to detention. The Committee of Ministers also welcomed the commitment of the authorities to resolving this issue, as shown by the continued monitoring of the length of and grounds for pre-trial detention, as well as by the training activities for judges and prosecutors. The Committee of Ministers invited the authorities to continue their efforts in relation to training and awareness-raising measures, in particular as regards the promotion of alternate measures to detention and the further reduction of the use of medium- and long-term detention. As a result of the significant progress achieved and the commitment shown by the Polish authorities, it was decided that the supervision of the execution of this group of detention cases would continue under the standard procedure. In addition, Polish authorities have taken steps to improve the judiciary’s awareness of the Strasbourg Court’s judgments concerning the excessive length of detention on remand. The Ministry of Justice has contacted all the presidents of the appellate courts, and provided an analysis of the Strasbourg Court’s case law pertaining to the requirements for the reasoning behind placing individuals in detention on remand.
- According to the most recent information, concerning the execution of the judgment in the case of Kharchenko v. Ukraine, provided by the Ministry of Justice of Ukraine to our committee on 26 April 2012, the Ukrainian government has published and translated the judgment and has sent copies to the Supreme Court, the High Specialised Court of Ukraine for civil and criminal cases, and every Court of Appeal. It has also organised round table discussions on this matter with judges who decide whether pre-trial detention should be granted.
3.3. Parliamentary control
- Romania has a parliamentary subcommittee, established in 2005, of the Committee on Legal Matters, Discipline and Immunities of the Lower Chamber, which monitors the implementation of adverse judgments of the European Court of Human Rights. This subcommittee organises joint hearings on legislative remedies with the governmental commission tasked with the implementation of the above-mentioned pilot judgment in Maria Atanasiu and Others v. Romania, monitors the implementation of other judgments finding violations of the Convention by Romania, and promotes and assists in legislative reforms. Since 2011, the government is legally obliged to submit a draft remedial law within three months of any adverse judgment that requires such a law, and to provide an accompanying statement on Romania’s compliance with the Convention for each draft law affecting human rights, which it submits to parliament.
- Italy has a “joint permanent committee”, established in 2009, of both the legislative and the executive branches, tasked with guiding parliament in its legislative work, by informing parliament about the specific requirements of the Convention and of relevant judgments of the Strasbourg Court, and by advising parliament on the need for the adoption or amendment of specific laws in order to comply with the Convention as interpreted by the Court. The government is legally obliged to continuously brief the parliament on Strasbourg Court judgments finding violations of the Convention by Italy, and, separately, to supply the parliament with an annual report on the state of the execution of these judgments. Specialised parliamentary committees are tasked with examining this information.
- Since 2006, the Ukrainian Parliament examines draft remedial laws tabled by the government and suggestions for the parliament’s own drafting of legislation. The Parliamentary Ombudsman is also briefed on adverse European Court of Human Rights’ judgments. In addition, building on the experience of two draft laws that purported to bring about comprehensive national parliamentary control over law enforcement, a joint memorandum of understanding between the Committee on Justice of the Ukrainian Parliament and the then rapporteur of the Assembly’s Committee on Legal Affairs and Human Rights, Mr Christos Pourgourides, was signed in 2009 that introduced an experimental mechanism for limited parliamentary scrutiny of Strasbourg Court judgments’ implementation. This mechanism was to take the form of Committee on Justice meetings with the Government agent at the European Court of Human Rights and representatives of the Ministry of Justice, and result in the drafting of remedial laws and amendments based on the information and recommendations provided by the participants in those meetings. Moreover, the draft law “On amendments to the Law of Ukraine ‘On the execution of judgments and implementation of practice of the European Court of Human Rights’” is awaiting its second reading. It will introduce a new clause stipulating that the Verkhovna Rada exercises parliamentary control over the implementation of Court judgments. Those responsible for representing Ukraine before the Strasbourg Court and co-ordinating the implementation of its judgments will be obliged to report to the Verkhovna Rada annually, no later than 1 March, about the state of implementation of the Court’s judgments. They will also have to present proposals concerning general measures, particularly legislative amendments. The adoption of this draft law will establish procedures in line with the Council of Europe’s standards.
- In Bulgaria, a Bill put forward by a group of parliamentarians (Civil Advocacy Initiative of the Institute of Modern Politics) ascribes similar obligations to the Bulgarian Assembly. It will therefore be useful to follow closely this positive initiative.
4. Conclusion and proposals
4.1. Measures to be taken at the stage of evaluating the admissibility of applications before the Court
- establishing centres for the analysis of applications, with the help of non-governmental human rights organisations and in close co-operation with the Court’s Registry, that are better equipped than the “Warsaw lawyer” project, and contact national authorities, such as parliamentary committees, Ombudspersons, and government agents, to address the issues contained in applications, provide free expert assessments of applications’ admissibility to the Court, and familiarise applicants with the Court’s criteria and procedures;
- opening Council of Europe offices in all States Parties with major structural/systemic problems and/or with a high number of applications before the Court;
- organising meetings with civil society, bar associations, representatives of the academic community, delegations to the Parliamentary Assembly of the Council of Europe, former and/or present judges of the Court.
4.2. Measures to be taken at the stage of proceedings before the Strasbourg Court
4.3. Measures to be taken at the stage of the execution of Court judgments
“The problems revealed by the judgments of the Court are large-scale and complex in nature. Their resolution may sometimes go beyond the execution of a particular judgment. This can only be achieved through the setting up of a comprehensive strategy co-ordinated at the highest political level. Any delays in the setting up of such a strategy should be subject to close monitoring by parliament which should have appropriate means to compel the government to solve these issues as a matter of priority.”
- authoritatively systematise and generalise the Strasbourg Court’s case law;
- assist in supervising the execution of the Court’s judgments by the relevant authorities, in particular through parliamentary oversight;
- analyse and verify the causes leading to the violations of the Convention identified in the Court’s judgments;
- implement individual and general measures, including through the elaboration of draft laws aimed at making States’ legislation conform with the Convention and the Court’s case law.
- providing appropriate training opportunities;
- considering the reports provided by national delegations on the effectiveness of measures taken by States Parties to address their structural deficiencies, and the implementation of the Convention in law and in practice;
- providing advice on legislative provisions establishing these national parliamentary monitoring mechanisms in charge of overseeing the implementation of Strasbourg Court judgments and eliminating structural/systemic deficiencies, based on recognised best practices drawn from other States Parties.
4.4. Measures aimed at the elimination of structural/systemic deficiencies in States Parties
Appendix 1 – Total number of new applications allocated to a judicial formation(open)
|No.||State||Applications allocated to a judicial formation in 2011||Allocated applications in 2011/population (10 000)|
|1||Russian Federation||12 465||0.88|
|Total number of new applications||64 547||-|
Appendix 2 – List of the 29 pilot judgments delivered by the Court (data as at 12 November 2012)(open)
|Application No.||Case title||State||Decision body||State of proceedings||Subject||Judgment delivery date|
|31443/96||BRONIOWSKI v. Poland||POL||Grand Chamber||finished||compensation for property left beyond the Bug River||22/06/2004|
|23032/02||LUKENDA v. Slovenia||SVN||Chamber||finished||civil length of proceedings||06/10/2005|
|35014/97||HUTTEN-CZAPSKA v. Poland||POL||Grand Chamber||finished||state rent control||19/06/2006|
|33509/04||BURDOV v. Russia (No. 2)||RUS||Chamber||finished||non enforcement||15/01/2009|
|45219/06||KAUCZOR v. Poland||POL||Chamber||finished||length of judicial detention||03/02/2009|
|13136/07||RACU v. Moldova||MDA||Chamber||finished||non enforcement||28/07/2009|
|17911/08||LUNGU v. Moldova||MDA||Chamber||finished||non enforcement||28/07/2009|
|22539/05||GUSAN v. Moldova||MDA||Chamber||finished||non enforcement||28/07/2009|
|476/07||OLARU v. Moldova||MDA||Chamber||finished||non enforcement||28/07/2009|
|40450/04||YURIY NIKOLAYEVICH IVANOV v. Ukraine||UKR||Chamber||finished||non enforcement||15/10/2009|
|17885/04||ORCHOWSKI v. Poland||POL||Chamber||finished||conditions of detention||22/10/2009|
|27912/02||SULJAGIC v. Bosnia and Herzegovina||BIH||Chamber||finished||savings in BIH||03/11/2009|
|46344/06||RUMPF v. Germany||GER||Chamber||finished||civil length of proceedings||02/09/2010|
|30767/05||ATANASIU and POENARU v. Romania||ROM||Chamber||finished||restitution claims||12/10/2010|
|33800/06||SOLON v. Romania||ROM||Chamber||finished||non-payment of compensations due, restitution laws||12/10/2010|
|60041/08||GREENS v. the United Kingdom||UK||Chamber||finished||prisoners' right to vote||23/11/2010|
|60054/08||M.T. v. the United Kingdom||UK||Chamber||finished||prisoners' right to vote||23/11/2010|
|50973/08||VASSILIOS ATHANASIOU AND OTHERS v. Greece||GRC||Chamber||finished||administrative proceedings length||21/12/2010|
|2708/09||HAMANOV v. Bulgaria||BGR||Chamber||finished||criminal length of proceedings||10/05/2011|
|48059/06||DIMITROV v. Bulgaria||BGR||Chamber||finished||criminal length of proceedings||10/05/2011|
|37346/05||FINGER v. Bulgaria||BGR||Chamber||finished||civil length of proceedings||10/05/2011|
|42525/07||ANANYEV AND OTHERS v. Russia||RUS||Chamber||finished||conditions of detention||10/01/2012|
|60800/08||BASHIROV AND BASHIROVA v. Russia||RUS||Chamber||finished||conditions of detention||10/01/2012|
|24240/07||UMMUHAN KAPLAN v. Turkey||TUR||Chamber||awaiting referral request||civil length of proceedings||20/03/2012|
|54447/10||MICHELIOUDAKIS v. Greece||GRC||Chamber||awaiting referral request||civil length of proceedings||03/04/2012|
|26828/06||KURIC and Others v. Slovenia||SVN||Grand Chamber||finished||the erased||26/06/2012|
|604/07||MANUSHAQE PUTO AND OTHERS v. Albania||ALB||Chamber||awaiting referral request||non-enforcement of administrative decisions awarding compensation for confiscated property||31/07/2012|
|40150/09||GLYKANTZI v. Greece||GRC||Chamber||awaiting referral request||length of civil proceedings||30/10/2012|
|60642/08||ALISIC and others v. Bosnia and Herzegovina, Croatia, “the former Yugoslav Republic of Macedonia”, Serbia and Slovenia||BIH||Chamber||awaiting referral request||foreign currency savings||06/10/2012|