[Documents/Docheader.htm]

Implementation of decisions of the European Court of Human Rights

Doc. 10351
21 October 2004

Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group

For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Summary

Since the adoption of Resolution 1226 (2000), the Parliamentary Assembly has become regularly involved in the implementation of decisions of the European Court of Human Rights, in support of efforts of the Committee of Ministers in this field.

A new record of Court judgments which have not been implemented has been compiled on the basis of three criteria: the time elapsed since the Court's judgment, the existence of an interim resolution of the Committee of Ministers and the importance of the issues raised. On this basis, the state of implementation of 21 Court decisions has been reviewed and eight parliamentary delegations were asked to approach their respective governments with a view to implementation of the Court's decisions. All delegations replied except the French delegation – a regrettable lapse in normal courtesy.

The overall assessment of this exercise illustrates the excessive time taken to implement the Court's decisions, the difficulty of interpreting these decisions in some cases and the unwillingness of national authorities – especially the Italian authorities – to take action in certain cases.

The Assembly reserves the right to make use of Rule 8 of its Rules of Procedure should a government persistently refuse to take all the measures required of it pursuant to a decision of the Court. It shall continue contributing to the implementation of the Court's decisions by holding debates where non-implementing governments are publicly called to account.

I.         Draft resolution [Link to the adopted text]

1. The Parliamentary Assembly recalls that, since the adoption of Resolution 1226 (2000) in which it examined the reasons why certain decisions of the European Court of Human Rights had not been executed and called for a number of measures to be taken to remedy the situation, it has involved itself with the implementation of judgments of the Court.

2. It decided, inter alia, to regularly debate the execution of judgments on the basis of a record to be drawn up by it in order to support the efforts of the Committee of Ministers in this field.

3. To date, it has devoted a general report to compiling an initial record for which it applied the following two criteria:  the time elapsed since the Court’s decision and the urgency of the measures to be taken – which gave rise to the adoption of Resolution 1268 (2002) and Recommendation 1546 (2002).

4. It has devoted two reports to Turkey owing to the large number of cases involved: one report in 2002 and another in 2004.

5. Its Committee on Legal Affairs and Human Rights has compiled a new record of Court judgments which have not been implemented using the following three criteria: the time elapsed since the Court’s decision, the existence of an interim resolution of the Committee of Ministers and the importance of the issues raised.

6. Against this background, it wrote to eight national delegations on 17 February 2003, concerning 21 Court decisions in all, asking them to prevail upon their respective governments to implement the unexecuted decisions, setting a two-month deadline for replies. The delegations concerned were Austria, Belgium, France, Italy, Poland, Romania, Switzerland and the United Kingdom. A reminder was sent to three delegations on 30 May 2003 (France, Italy, Romania). Seven delegations replied (Austria, Belgium, Italy, Poland, Romania, Switzerland and the United Kingdom).

7. The Assembly notes that of the 21 decisions in question five date from 1996, seven from 1997 and eight from 1998.

8. In six cases, the individual or general measures requested by the Committee of Ministers have been taken (two decisions against Romania, one decision against Switzerland and three decisions against the United Kingdom).

9. In one case, the individual measures have been taken but general measures are still required (Poland).

10. In four cases, the draft legislation required to facilitate implementation of the judgments still has to be enacted by parliament (Austria, Belgium and Italy - the cases F.C.B and Dorigo Paolo and Diana Calogero and Domenichini v. Italy).

11. In seven cases involving Italy, the Italian authorities are contesting the measures they are required to take.

12. In one case against the United Kingdom, negotiations are under way between the authorities and the Council of Europe Secretariat.

13. No reply has been received concerning the two cases against France.

14. The overall assessment of this new exercise once again illustrates the excessive length of time taken to implement the Court’s decisions. It also illustrates the difficulty of interpreting the Court’s decisions in a number of cases. Lastly, in some cases the authorities in question have shown unwillingness to take action.

15. We might infer from the replies received that the aim pursued, namely to ensure that parliamentary delegations should approach their governments with a view to implementation of Court decisions, has not been attained. Delegations would appear merely to take note of their governments’ explanations and pass them on, without sufficiently trying to induce the authorities to act by way of making use of their parliamentary prerogatives and privileges to hold the government to account and to put pressure on it.

16. The Assembly welcomed the possibility of the Committee of Ministers asking the Court to clarify its decisions in cases of disputes concerning the requested measures, as established by Protocol No. 14, but regrets that its proposal to establish a system of “astreintes” (daily fines for a delay in the performance of a legal obligation) has been rejected.

17. The Assembly is, however, still convinced that pressure could usefully be put on governments and a debate organised to discuss this matter, if only to ensure that such cases are brought to public attention and enable other governments to benefit from the experience thus acquired.

18. Consequently, the Assembly:

i. asks the Italian authorities to implement the measures required of them in the following cases: Ceteroni, Abenavoli and A.B., E.F. & C.C, Aldini Immobiliare Saffi, A.O., G.L. IV, Lunari, P.M., Palumbo Edoardo and Tanganelli, S.B.F. S.p.a, C.A.R. S.r.l, A.D., Scozzari & Giunta;

ii. requests the national delegations to work more actively within their respective parliaments to ensure that their governments take the requisite measures to comply with the Court's decisions;

iii. considers the fact that the French delegation has not answered the letter of 17 February 2004 from the Chairperson of the Committee on Legal Affairs and Human Rights - which asked for co-operation in the matter of non-implementation by France of two decisions - to be a regrettable lapse in the normal courtesy towards colleagues within the Assembly;

iv. reserves the right to make use of Rule 8 of its Rules of Procedure should a government persistently refuse to take all the measures required of it pursuant to a decision by the Court;

v. shall continue to contribute to the implementation of the Court's decisions by holding debates in which non-implementing governments are publicly called to account.

II.        Draft recommendation [Link to the adopted text]

1. The Parliamentary Assembly, referring to its Resolution ... (2004) on the implementation of decisions of the European Court of Human Rights, urges the Committee of Ministers:

i. to ensure without further delay that the Italian authorities rapidly take the necessary execution measures in respect of all outstanding judgments older than five years and in all cases where individual measures are urgently expected;

ii. to ensure that Italy adopts adequate legislation allowing the reopening of proceedings, and in particular in criminal cases, in order to give effect to findings of violations of the Convention;

iii. to strengthen its exertions in the case of non-implementation by member states due to unjustified delay, negligence or refusal;

iv. not to stop monitoring execution of a judgment until all the measures designed to remedy the situation responsible for the violation ascertained by the Court have been taken.

III.      Explanatory memorandum
by Mr Jurgens, Rapporteur

Introduction

1.       In Resolution 1226 (2000) on the execution of judgments of the European Court of Human Rights, the Parliamentary Assembly decided to hold regular debates on the implementation of the Court’s decisions.

2.        Consequently, it held a first debate in January 2002, following which it adopted Resolution 1268 (2002) and Recommendation 1546 (2002).

3.          In Resolution 1268 (2002), it decided to continue the exercise started a year before and instructed its Committee on Legal Affairs and Human Rights to continue to update the record of the execution of judgments and to report to it when it considered appropriate.

4.           In the same Resolution, considering the high number of decisions against Turkey that had not been implemented, the Assembly instructed its Committee on Legal Affairs and Human Rights to confer with the national delegation of Turkey and the Turkish Government and to report to the Assembly, by June 2002 at the latest, on the progress made.

5.            In pursuance of Resolution 1268 (2002), the Assembly drew up a report on the implementation of decisions of the European Court of Human Rights by Turkey (Doc 9537 and Addendum) and adopted Resolution 1297 (2002) and Recommendation 1576 (2002).

6.            On 22 June 2004, the Assembly adopted the Resolution 1381 (2004) on the implementation of decisions of the European Court of Human Rights by Turkey.

7.             The Committee also, following the procedure it had established in Resolution 1268 (2002), wrote to eight national delegations on 17 February 2003 (see Appendix I), asking them to reply by 17 April 2003.

8.             Cases were selected on the basis of the following criteria:

9.             A reminder was sent to three delegations on 30 May 2003 (France, Italy and Romania).

10.           Seven delegations replied (Austria, Belgium, Italy, Poland, Romania, Switzerland and the United Kingdom).

11.          The list of cases, with a summary of the issues raised, is set out below. For additional information concerning these cases, see document AS/Jur/DH (2003)1.

a.         Austria

i.          Sz�cs, judgment of 24 November 1997

This case, and three others pending before the Committee of Ministers, concern the lack of public hearing and of any public pronouncement of the decisions in proceedings concerning the applicants’ compensation claims in respect of their detention on remand (violation of Article 6�1). The Asan Rushiti case also concerns a violation of the presumption of innocence in these proceedings (violation of Article 6�2). The Lamanna case only concerns the violation of Article 6�2.

In a letter of 26 February 2003 (see Appendix II), the Chairperson of the Austrian Delegation informed the Chairperson of the Committee that a bill concerning compensation claims with respect to a person's detention had been prepared by the Ministry of Justice but that it had not yet been possible to discuss the bill in Parliament due to elections the previous autumn.

b.         Belgium

i.          Aerts, judgment of 30 July 1998

The case concerns the lawfulness and the conditions of the applicant’s detention in the psychiatric wing of an ordinary prison for seven months pending his transfer to a social protection centre, the applicant’s right of access to a tribunal with the power to determine the lawfulness of that detention and his right to legal aid (violations of Article 5�1.e) and Article 6�1).

The Committee Chairperson also referred to the Court’s ruling in the case "relating to certain aspects of the laws on the use of languages in education in Belgium". In its decision, the Court had held that the section of the 1963 language laws which stipulated that children of parents not resident in a commune with facilities in the Brussels periphery were not allowed to attend the French-language schools in these communes did not comply with the requirements of the European Convention on Human Rights and its First Protocol, "in so far as they prevent certain children, solely on the basis of their parents’ place of residence, from attending French-language schools … in the six communes on the periphery of Brussels” invested with a special status. The impugned provision is still in force.

In a letter of 29 April 2003 (See Appendix III), the Chairperson of the Belgian Delegation indicated that he had been informed that the Committee of Ministers was to adopt a resolution very soon.

With regard to the judgment of 23 July 1968, he indicated that the Committee of Ministers had adopted a final resolution and the case was therefore deemed to be closed. He added that, according to the Ministry of Justice, the Committee of Ministers was unlikely to be prepared to review the case.

c.         France

i.          G.B.I., judgment of 22 October 1996

The case concerns the unlawfulness of the applicant’s confinement to a mental hospital as well as the excessive length of subsequent criminal proceedings.

ii.         Delbec I, judgment of 4 November 1997

The case concerns the infringement of the applicant’s right to her private life, in that she was deprived of her right to visit her children and was unable to obtain a review of her visiting rights because of the prefect’s refusal to disclose the address of her ex-husband.

General measures awaited: Dissemination of the report of the former European Commission on Human Rights to pr�fectures, together with a letter explaining how this case was solved.

The Committee of Ministers has received no information.

The Chairperson of the French Delegation has not responded to the letters from the Chairperson of the Committee on Legal Affairs and Human Rights.

d.         Italy

i.        F.C.B and Dorigo Paolo, judgments of 28 November 1991 and 28 January 1999

This case concerns the unfairness of certain criminal proceedings: the applicant was sentenced, in absentia, in 1984, to twenty-four years’ imprisonment without the domestic court having ascertained whether he had effectively intended to waive his rights to appear and defend himself (violation of Articles 6�1 and 6�3.c).

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that a bill which would enable trials to be re-opened following a judgment of the European Court was under consideration in plenary parliament, although nothing seemed to be happening at the present time. Any attempt which might be made to facilitate its approval would be timely.

ii.       P.G.II, judgment of 23 October 1996

The case concerns the impossibility in Italian law to rehabilitate a person declared bankrupt before a minimum 5-year term has expired. The applicant was accordingly refused an earlier rehabilitation, in spite of the fact that he had been declared bankrupt while he was a minor and de facto had no appointed guardian or legal representative (violation of Article 8).

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that the bill to reform bankruptcy law, which was necessary to alter the post-bankruptcy incapacity and relevant rehabilitation machinery, was awaiting parliament's decision.

iii.        Diana Calogero and Domenichini, judgments of 15 November 1996

These cases and nine others cases pending before the Committee of Ministers] mainly concern violations of Article 8 of the Convention on account of the lack of clarity of Italian law on the monitoring of prisoners’ correspondence (law No. 354/75), which leaves too much leeway to the public authorities, particularly in respect of the duration of monitoring measures and the reasons justifying such measures, authorises the monitoring of correspondence with the organs of the European Convention on Human Rights and provides for no effective remedy against decisions ordering the monitoring of correspondence (violation of Article 13 in cases Diana Calogero and Domenichini). In the Domenichini case, the Court also found a violation of Article 6�3 because one of the applicant’s letters to his lawyer had been intercepted while penal proceedings were still pending, thus impairing his defence rights.

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that there was a difference of opinion between the Italian Delegation and the Secretariat as regards the effectiveness of such measures. But it was for the Committee of Ministers, or, in the last analysis, for the Court, to take the relevant decision, if and when further applications relating to the monitoring of correspondence had to be dealt with, provided that the facts derived from the aforementioned measures.

iv.       Ceteroni, Abenavoli and A.B., E.F. & C.C, judgments of 15 November 1996, 2 September 1997 and 5 August 1998

These cases related to the excessive length of court proceedings.

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that there was no possibility of action by government or parliament to make the individual court authorities speed up the individual cases.

It would, on the other hand, be extremely useful, in the framework of the reform of the “Pinto” law, for provision to be made for appropriate machinery for this purpose, with the requirements of the autonomy and independence of the judiciary being respected.

v.        Aldini Immobiliare Saffi, A.O., G.L. IV, Lunari, P.M., Palumbo Edoardo and Tanganelli, judgments of 16 April 1997, 28 July 1999, 30 May 2000, 3 August 2000, 11 January 2001, 11 January 2001, 30 November 2000 and 11 January 2001

These cases mainly concern the sustained impossibility for the applicants to obtain the assistance of the police in order to enforce judicial decisions ordering their tenants’ eviction, owing to the implementation of legislation providing for the suspension or staggering of evictions. The Court concluded that a fair balance had not been struck between the protection of the applicants’ right of property and the requirements of the general interest (violations of Article 1 of Protocol No. 1). In some of these cases, the Court also concluded that, as a result of the legislation at issue, rendering eviction orders nugatory, the applicants had been deprived of their right to have their disputes decided by a court, contrary to the principle of the rule of law (violation of Article 6�1).

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that it was obvious that the problem was an exquisitely political one reduced to a choice between, on the one hand, continuing to adopt provisions to extend the period for enforcement of eviction, which is clearly unacceptable in the light of the Convention, and continuing to be found in violation, and, on the other hand, taking note of the need to come into line with the principles laid down by the Court and sacrificing other social pacification or balance requirements (on the grounds, for instance, that the extension of evictions would be without consequences if accompanied by compensation).

vi.        S.B.F. S.p.a., judgment of 20 September 1997

The case concerns the right of access to a court in order to obtain an adjudication of culpable bankruptcy. According to Italian law, adjudication must take place within one year from the cessation of the debtor’s activities. As the competent court (special bankruptcy section) did not give its ruling within the deadline, the applicant company lost the opportunity to recover its financial claims by judicial means (violation of Article 6�1).

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that a difference of opinion exists between the Secretariat and the Italian Delegation about the need for measures to be taken. They argue that the case could be closed or, at any rate, included in the group of excessive duration cases, and no longer examined separately. The Committee of Ministers could agree to this request.

In any case, the reform of bankruptcy law currently under consideration would definitively solve the problem (it remains the case, in their opinion, that while such a final solution would certainly be welcome, it would not be a compulsory execution measure within the meaning of Article 45).

vii.       C.A.R. S.r.l., judgment of 17 January 1998

The case concerns the fact that, between 1991 and 1994, the applicant company, despite a final court decision ordering the eviction of the tenant on grounds of non-payment of rent, was unable to obtain police assistance through the Prefect to secure the eviction of a group of Somali refugees illegally occupying its buildings. It also concerns the absence of compensation from the State for the financial damage the applicant company suffered as a result of the authorities’ inaction.

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that this case had been decided, on its merits, by the Committee of Ministers (former procedure), after which agreement was reached between the parties on just satisfaction.

It was unclear what measures are still being requested.

The Italian authorities had enforced the decision. The case should be closed.

viii.      A.D., judgment of 2 March 1998

The case concerns the excessive length of certain criminal proceedings against the applicant, (11 years and 9 months from 1982 to 1994) (violation of Article 6�1). The Commission and the Committee of Ministers also concluded that the prolonged seizure of the applicant’s fees resulting from the length of such proceedings as well as the upholding of the attachment of large sums, exceeding the effective debt of the applicant after the execution of the sentence had taken place, had infringed the applicant’s right to the peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1).

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that only the matter of the excessive duration of the proceedings remained open to date. In this respect, the case of A.D. was in no way different from the many other similar cases, which is why it had been returned to the “melting pot”.

ix.        Scozzari & Giunta, judgment of 13 July 2000

The case concerns two violations of Article 8 of the Convention related, on the one hand, to the continued placement, since 1997, of the two children of the first applicant (mother) in the “Forteto” community, after they had been taken into public care and, on the other hand, to the authorities’ failure to maintain the opportunities of the mother and her children to re-establish family bonds, through the organisation of regular contact visits. The Court notably considered the fact that certain “Forteto” leaders with serious previous convictions notably for ill-treatment and sexual abuse of handicapped people placed in the community (��32-34) could still play an active role in bringing up the children (��201-208); the fact that the implementation of the Youth Court’s decisions had been deflected from their intended purpose of allowing visits between the mother and the children to take place as a result of the attitude of the social services (��178-179 & 213) and of some of the leaders of “Il Forteto” (�211), who had delayed or hindered the implementation of such decisions (�209) and exercised a mounting influence on the children aimed at distancing them from their

mother (�210); the doubt about who really has effective care of the children (�211); the insufficient level of control on the social services and the “Forteto” (��179-181 & ��212-216); the risk of long-term integration of the children into the “Forteto”, which – in the Court’s opinion - runs contrary to the objectives of a temporary placement and of the superior interest of the children (��215-216).

In a letter of 30 September 2003 (see Appendix IV), the Chairperson of the Italian Delegation indicated that the case was within the jurisdiction of the courts. There was no apparent scope for government or parliamentary intervention.

e.         Poland

i.          Podbielski, judgment of 30 October 1998

This case and another one pending before the Committee of Ministers concern the excessive length of certain civil proceedings (violations of Article 6�1).

In a letter of 23 April 2003 (see Appendix V), the Chairperson of the Polish Delegation indicated that in response to the applicant's request for an award of non-pecuniary damage, the Court had held that the respondent State was to pay the applicant, within three months, 20,000 (twenty thousand zlotys in respect of non-pecuniary damage. Poland had accordingly done so and made the payment on 23 December 1998. Also, the text of the judgment had been translated into Polish and published in the Information Bulletin of the Council of Europe, the Polish version had been sent to all the presidents of Courts of Appeal in order to be distributed among judges. Therefore the individual measures have been fulfilled, which was confirmed by the Committee of Ministers in 1999.

On 24 March 2000, the Polish government submitted to the Committee of Ministers written information concerning the current state of institutional reforms within the judicial system. Other similar information was submitted on 7 February 2003. It is assumed that the decision of the Court will be considered as fully implemented when the Committee affirms the satisfactory progress of the reform of judicial system in Poland. He underlined, however, that the individual measures of the decision in Podbielski versus Poland had been fully implemented.

f.          Romania

i.          Vasilescu, judgment of 22 May 1998

The case concerns the fact that valuables, unlawfully seized by the militia in 1966, were kept, and the right of access to an independent tribunal to order their return (violations of Article 6�1 and Article 1 of Protocol No. 1).

In a letter of 12 June 2003 (see Appendix VI), the Chairperson of the Romanian Delegation indicated that in the case of Vasilescu v. Romania, the Romanian State had paid, in due time – on 29 July 1998 -, the amount fixed by the European Court of Human Rights. As a general measure, the Parliament of Romania had modified Article 330 of the Code of Civil Procedure regarding appeals to the Supreme Court, a six-month period being established for cases to be contested by the General Attorney.

ii.         Petra, judgment of 23 September 1998

The case concerns the opening and delaying of the applicant’s correspondence with the former European Commission of Human Rights and, in this respect, the latitude which the relevant law leaves to the national authorities to affect such acts (violation of article 8). It also relates to the fact that in his correspondence with the Commission, the applicant suffered hindrance in the exercise of his individual right of petition in the form of illegitimate and unacceptable pressure from the prison authorities (violation of former article 25).

In a letter of 12 June 2003 (See Appendix VI), the Chairperson of the Romanian Delegation indicated that as regards the case of Petra v. Romania, the Romanian State had paid, in due time – on 21 December 1998 -, the amount fixed the Court. As a measure of general interest, the Ministry of Justice had issued an order concerning the right of detained persons to send and receive mail.

g.         Switzerland

i.          E.L., R.L. & O.L. and A.P., M.P. & T.P., judgments of 17 February 2004

These cases concern the fact that the applicants, as heirs and irrespective of any personal guilt, were convicted of offences allegedly committed by the testator, in breach of the presumption of innocence, in that “inheritance of the guilt of the dead is not compatible with the standards of criminal justice in a society governed by the rule of law” (violation of Article 6�2).

In a letter of 14 May 2003 (see Appendix VII), the Chairperson of the Swiss Delegation provided the following information:

"As the … information shows, Switzerland has already taken full account of the two judgments in question as the Swiss legal provisions which are incompatible with the European Convention on Human Rights are no longer applied. In the context of the supervision of the execution of Court judgments by the Committee of Ministers (Art 46.2, ECHR), the two final resolutions bringing these two cases to an end may therefore be adopted even before the above-mentioned legislative texts come into force. However, out of a concern for transparency of the Swiss legal system, the necessary adjustments to Swiss law are currently being debated within the relevant parliamentary committees and should shortly be laid before the Councils."

h.         United Kingdom

i.          Murray John, judgment of 8 February 1996

This case and four others pending before the Committee of Ministers concern the right to silence, the right not to incriminate oneself and the denial of access to legal advice during the first 48 hours of detention (24 hours in the Averill case), in combination with the provisions in national law whereby the choice of the accused to remain silent could result in the court’s or jury’s drawing unfavourable conclusions (violations of Article 6�3c alone or combined with Article 6�1).

In a letter of 14 April 2003 (see Appendix VIII), the Secretary for Foreign Affairs of the United Kingdom indicated that as regards the case of John Murry v. the United Kingdom, administrative arrangements had been put in place some time ago by the Attorney General to ensure that the breach found in this case should not in practice recur. In order to put the position on a statutory footing, however, changes to the Codes of Practice under the Police and Criminal Evidence Act had needed to be made. He emphasised say that the necessary amendments were brought into force on 1 April.

ii.         Saunders, judgment of 17 December 1996

This case and one other pending before the Committee of Ministers concern the violation of the applicants’ right not to incriminate themselves and thus their right to a fair trial in that, at their trials, the prosecution made use of statements given earlier, under legal compulsion and in different proceedings, to Department of Trade and Industry Inspectors (violation of Article 6�1). After the Deputies had decided, on the basis of the information available at the time, to mandate the Secretariat to draft a resolution with a view to closing the examination of the case, a complaint dated 15 April 2002 was received from the applicants to the effect that they have so far been unable to obtain redress.

In a letter of 14 April 2003 (see Appendix VIII), the Secretary for Foreign Affairs of the United Kingdom indicated that the Saunders case related to the Guinness trial. The necessary legislation to implement the judgments was enacted several years ago (the Youth Justice and Criminal Evidence Act 1999), but closure of the case by the Committee of Ministers had been delayed because of the attempts by the applicants to obtain the quashing of their convictions through the UK courts (which was not required by the judgment of the Court in Strasbourg). His officials had recently been in touch with the Secretariat of the Council of Europe, and were expecting an amicable resolution of the case very shortly

iii.        Johnson Stanley, judgment of 24 October 1997

The case concerns the applicant’s continued detention in a hospital, although he was no longer suffering from mental illness, pending his placement in a hostel (violation of Article 5�1).

In a letter of 14  April 2003 (see Appendix VIII), with regard to the case of the Stanley Johnson, the Secretary for Foreign Affairs of the United Kingdom admitted that it was taking much longer than he would have liked to take the necessary legislative action to prevent a recurrence of the breach found in that case. However, his officials had been told by the Department of Health that they were continuing to work on the completion of a draft Mental Health Bill, which would include the necessary provisions, for introduction as soon as Parliamentary time allowed. In the meantime the Court of Appeal in England had interpreted the existing Mental Health Act so as to take account of the terms of the judgment in Stanley Johnson; the effect was therefore that no further similar breaches of the Convention should in practice occur.

iv.        A., judgment of 23 September 1998

The case concerns the failure of the State to protect the applicant from ill-treatment (1993-1994) by his step-father (violation of Article 3).

In a letter of 14 April 2003 (see Appendix VIII), the Secretary for Foreign Affairs of the United Kingdom indicated that as regards the case of A. v. the United Kingdom, the courts in England had already said that they would take this decision into account in deciding whether the defence of "reasonable chastisement" (which is available to a parent who punishes a child) has on the facts been made out. A number of queries had been raised with the Secretariat in Strasbourg – apparently by NGOs active in this field; his officials had been in discussion with the Secretariat about these, and would be contacting the Department of Health to discuss how to respond. He added that, contrary to a number of statements which had been made, the judgment did not require a prohibition upon all corporal punishment of children.

Preliminary conclusions

The following conclusions can be drawn from this second exercise recording the execution of the judgments of the European Court of Human Rights:

Of the 21 decisions concerned, 5 date back to 1996, 7 to 1997 and 8 to 1998; later decisions concern the same cases, ie they also date back to 1996, 1997 and, in one case, even 1991.

In six cases (two decisions against Romania, one against Switzerland and three against the United Kingdom), the required individual or general measures have been taken.

In one case, individual measures have been taken, but general measures are still required (Poland).

In four cases, the draft legislation required to enable implementation of the judgments still has to be enacted by parliament (Austria, Belgium and Italy - the cases F.C.B, and Dorigo Paolo and Domenichini and Diana Calogero I v. Italy).

In all the other cases concerning Italy (seven in total), the Italian authorities contest the measures they are required to take.

In one case against the United Kingdom, negotiations are under way between the UK authorities and the Council of Europe Secretariat.

Finally, no reply has been received concerning the two cases against France.

The above findings once again illustrate the excessive time taken to implement the Court’s decisions, the difficulty of interpreting the decisions in some cases and, in other cases, the authorities’ unwillingness to take action.

This suggests that it is important, as the Assembly proposed in Recommendation 1477, that the Committee of Ministers should have power to ask the Court for a clarifying interpretation of its judgments in cases where the authorities contest the measures required, and to introduce a system of “astreintes” (daily fines for a delay in the performance of a legal obligation) to be imposed on states that persistently fail to execute a Court judgment.

The recently adopted Protocol 14 to the European Convention on Human Rights makes it possible to ask the Court to interpret its decisions but not, unfortunately, to impose such fines.

Finally, the Committee of Ministers should take a stricter line when examining cases, implementation of which it has been monitoring for as long as seven, or even eight or more, years.

APPENDIX I

Letter sent on 27 February 2003 by the Chairperson of the Committee on Legal Affairs and Human Rights to the Chairpersons of the Delegations of Austria, Belgium, France, Italy, Poland, Romania, Switzerland and the United Kingdom

…

In conformity with Resolution 1226 (2000) on the execution of judgments of the European Court of Human Rights, the Sub-Committee on Human Rights, of the Committee on Legal Affairs and Human Rights, upon a proposal by its Rapporteur Mr Jurgens, is drawing up a record of decisions of the Court which have not been implemented. From this record it appears that concerning your country the following judgments have not yet been implemented:

…

For more information about these cases, please refer to the enclosed document

AS/Jur/DH (2003) 01, pp. 20-23.

The Sub-Committee on Human Rights and the Rapporteur would be extremely grateful if your delegation could do its utmost to convince your government, if necessary by making use of questions in your parliament, that it should execute these judgments of the Court.

I would be much obliged if you could report back to the Sub-Committee before 17 April 2003 on the measures taken to this effect.

…

APPENDIX II

Letter of 26 February 2003 from Mr Michael Spindelegger, Chairperson of the Austrian Delegation, to the Chairperson of the Committee on Legal Affairs and Human Rights

APPENDIX III

Letter of 29 April 2003 from Mr Jean-Pol Henry, Chairperson of the Delegation of Belgium to the Council of Europe, to the Chairperson of the Committee on Legal Affairs and Human Rights

…

In reply to your letter of 17 February last, I am pleased to provide you with the following information.

Where the Aerts case is concerned, we have been informed that the Committee of Ministers might very soon adopt a final resolution, for the reasons set out below. In this judgment the Court found two violations, one under Article 5.1, the other under Article 6.1.

The first violation was related to the fact that the applicant had to wait a very long time to be transferred to a suitable place, in view of his physical condition. Owing to a shortage of space it was not possible to place him in Paifve and it was for this reason that he was transferred to Lantin Prison, which the CPT considered unsuitable. In the meantime the government has taken various steps to remedy this shortage of space. New places have been created at Paifve, and elsewhere alternatives have been found in order to keep the waiting lists down.

The second violation concerned the right of access to the Court of Cassation, the Legal Aid Board having refused the applicant legal aid because “the appeal does not seem at the present time to be well-founded”. In making that assessment, the Board took the place of the Court of Cassation and it was on this ground that the Court found a violation of Article 6.1. Following the Aerts judgment, the legislation on the award of legal aid by the Court of Cassation was extensively amended. The European Court of Human Rights itself found in another case (Debeffe v. Belgium) that the present system offers individuals substantial guarantees against arbitrary decisions. Consequently, no further measures are to be taken in this area.

With regard to the judgment of 23 July 1968, all that can be said is that the Committee of Ministers adopted a final resolution and therefore deemed the case closed. The Ministry of Justice informs us that the Committee of Ministers is unlikely to be prepared to review the case, bearing in mind the various institutional reforms introduced in Belgium. Moreover, reconsideration of a final resolution would constitute a precedent which could have unwelcome consequences. It therefore seems more appropriate to lodge a fresh application with the European Court of Human Rights.

I apologise for the delay in replying.

…

APPENDIX IV

Letter from Mr Claude Azzolini, Chairperson of the Italian Delegation, to Mr Eduard Lintner, Chairperson of the Committee on Legal Affairs and Human Rights

…

Having taken note of your previous notes, and regretting that I did not receive the first one, I must inform you that, in my capacity as Chairperson of the Italian delegation to the Parliamentary Assembly of the Council of Europe, I am not in a position to give you a reply to your questions, neither formally nor substantively.

However, in view of the cordial relations and spontaneous collaboration which exist between us, I have obtained from the government bodies in my country some useful information concerning the questions raised.

I therefore enclose, on an informal basis, a note on the cases which you mention concerning Italian citizens currently pending the Strasbourg Court.

…

*****

NOTE

F.C.B. and Dorigo Paolo

These are two separate cases. The only thing they have in common is the fact that no individual measures are possible under current internal law (cf Article 41 of the Convention), because no retrial is possible.

A bill which would enable trials to be re-opened following a judgment of the European Court is under consideration in plenary parliament, although nothing seems to be happening at the moment. Any attempt which might be made to facilitate its approval would be timely.

Such legislation, however, would be neither an individual measure (the individual measure would in any case be the ensuing retrial) nor a general measure (because its effect and its scope would not be that of preventing similar violations, but that of setting up reactive machinery after a judgment of the ECHR).

However, notwithstanding the indubitable importance of introducing this new reason for review, it is not a measure for the execution of a judgment. Italy does not consider that any action is outstanding in these two cases in the context of the obligations derived from Article 46 of the Convention.

Where the F.C.B. case in particular is concerned, as the letter also points out, this case was closed years ago. It was re-opened following a request for extradition, then promptly revoked (essentially, this was an oversight). The convicted person is abroad and runs no risk of having the sentence executed. On the other hand, he would run an extremely serious risk (a virtual certainty) of re-conviction if a second trial were to be held. His case is not one of those for which Recommendation (2000) 2 recommends a re-opening of the trial (there are no particularly serious consequences, and the violation is not such as to lead to an assumption that the trial would have had a different outcome had the violation not been committed), and could therefore also be excluded, on the basis of the admissibility criteria for requests for review, from application of the new law, were it to be approved. There are no reasons for keeping this case open, and the Italian Delegation has several times requested that it be closed.

P.G. II

The bill to reform bankruptcy law, which is necessary to alter the post-bankruptcy incapacity and relevant rehabilitation machinery, is awaiting parliament's decision.

Clearly, this is a general measure, intended to prevent the recurrence of similar violations. To date, there have been no, and there still are no, other applications for the same purpose (impossibility of rehabilitation until five years have elapsed, and presence of highly specific situations).

Thus, while adoption of the general measure is doubtless necessary, the question does not seem to be particularly serious or urgent, nor the case to merit the attention given to it by the Assembly.

Diana Calogero and Domenichini

In these two cases, as well, the problem relates to general measures.

Reform of the legislation relating to the monitoring of prisoners' correspondence is under consideration in parliament. It would certainly be desirable for this work to be speeded up.

The Italian authorities have, however, already taken timely and effective action through secondary instruments (regulations, circulars) which have already led to execution of the sentences.

There is a difference of opinion between the Italian Delegation and the Secretariat as regards the effectiveness of such measures. But it is for the Committee of Ministers, or, in the last analysis, for the Court, to take the relevant decision, if and when further applications relating to the monitoring of correspondence have to be dealt with, provided that the facts derive from the aforementioned measures.

Ceteroni, Abenavoli, etc

These cases relate to the excessive length of court proceedings.

As is well known, the general problem of the reforms intended to remedy the endemic slowness of the Italian justice system is constantly the subject of attention from either the Italian authorities or the Committee of Ministers, which exercises periodical monitoring thereof. Moreover, the problem is a structural one to which no easy and rapid solution is possible, and encouragement and pressure are certainly helpful.

Where the individual cases are concerned, there are many in respect of which news is awaited of the outcome of the domestic proceedings which gave rise to the violations. The Committee of Ministers follows these cases attentively, and the Minister for Justice regularly submits all the relevant news received from the courts concerned (and from the State Council in relation to the administrative courts).

There is, however, no possibility of action by government or parliament to make the individual court authorities speed up the individual cases.

It would, on the other hand, be extremely useful, in the framework of the reform of the “Pinto” law, for provision to be made for appropriate machinery for this purpose, with the requirements of the autonomy and independence of the judiciary being respected.

Aldini, Immobiliare Saffi, etc

These are very well-known cases relating to eviction.

There are several such cases pending before the Committee of Ministers in respect of execution, and more than a few before the Court (the Ministry of the Interior is concluding as many as possible through friendly settlements).

Where individual measures are concerned, there are no particular problems: there are extremely few cases in which flats have not yet been recovered by their owners.

From the general viewpoint, the Committee of Ministers is preparing to adopt an interim Resolution covering the situation and requesting detailed information, following the entry into force of Law No. 431/98, which altered the regulation of this subject.

It is nevertheless obvious that the problem is an exquisitely political one reduced to a choice between, on the one hand, continuing to adopt provisions to extend the period for enforcement of eviction, which is clearly unacceptable in the light of the Convention, and continuing to be found in violation, and, on the other hand, taking note of the need to come into line with the principles laid down by the Court and sacrificing other social pacification or balance requirements (on the grounds, for instance, that the extension of evictions would be without consequences if accompanied by compensation).

S.B.F. S.p.a.

This, in fact, is a banal case of the excessive duration (although the duration was not even particularly long) of proceedings to obtain an adjudication of bankruptcy, a declaration not made because more than one year had elapsed since the cessation of commercial activities.

A difference of opinion exists between the Secretariat and the Italian Delegation about the need for measures to be taken. We argue that the case could be closed or, at any rate, included in the group of excessive duration cases, and no longer examined separately. The Committee of Ministers could agree to this request.

In any case, the reform of bankruptcy law currently under consideration will definitively solve the problem (it remains the case, in our opinion, that while such a final solution is certainly welcome, it is not a compulsory execution measure within the meaning of Article 46).

C.A.R. S.r.l.

This case was decided, on its merits, by the Committee of Ministers (former procedure), after which agreement was reached between the parties on just satisfaction.

It is unclear what measures are still being requested.

The Italian authorities have enforced the decision. The case needs to be closed.

A.D.

The peculiarity of this case lay in the violation of Article 1 of Protocol No 1 (protection of property) because of failure to return the sums attached. This aspect was resolved through individual measures and does not require general measures. Thus the case is closed, where its particular features justifying a separate examination are concerned.

Only the matter of the excessive duration of the proceedings remains open today, in respect of which the case of A.D. is in no way different from the many other similar cases, which is why it has been returned to the “melting pot”.

Thus, in so far as the case of A.D. might be of interest to the Parliamentary Assembly, it may be noted that the case has been placed on file.

Scozzari & Giunta

The case is within the jurisdiction of the courts. There is no apparent scope for government or parliamentary intervention.

However, execution was initiated immediately after the judgment, and is continuing, subject to monitoring by the competent Council of Europe body.

The judgment is a complex one, and opinions have differed, and to some extent still differ, on its interpretation. The Italian authorities consider that they have fulfilled their obligations deriving from the judgment within the meaning of Article 46 of the European Convention.

APPENDIX V

Letter of 23 April 2003 from Mr Tadeusz Iwinski, Chairperson of the Delegation of Poland to the Chairperson of the Committee on Legal Affairs and Human Rights

APPENDIX VI

Letter of 12 June 2003 from Mr Ghiorghi Prisacaru, Chairperson of the Delegation of Romania to the Chairperson of the Committee on Legal Affairs and Human Rights

APPENDIX VII

Letter of 14 May 2003 from Mrs Lisbeth Fehr, Chairperson of the Delegation of Switzerland to the Chairperson of the Committee on Legal Affairs and Human Rights

…

I should first like to thank you for your letter of 17 February and apologise to you for the delay in sending you this reply.

Regarding the implementation of the two judgments of 29 August 1997 in cases against Switzerland - the E.L., R.L. and O.L. case and the A.P., M.P. and T.P. case - I have obtained the following information:

As the above information shows, Switzerland has already taken full account of the two judgments in question as the Swiss legal provisions which are incompatible with the European Convention on Human Rights are no longer applied. In the context of the supervision of the execution of Court judgments by the Committee of Ministers (Art 46.2, ECHR), the two final resolutions bringing these two cases to an end may therefore be adopted even before the above-mentioned legislative texts come into force. However, out of a concern for transparency of the Swiss legal system, the necessary adjustments to Swiss law are currently being debated within the relevant parliamentary committees and should shortly be laid before the Councils.

I hope this answers your request.

…

APPENDIX VIII

Letter of 14 April 2003 from the Foreign Secretary of the United Kingdom to the Chairperson of the Delegation of the United Kingdom

...

You wrote to me on 11 March, enclosing a copy of a letter from the Chair of the Committee on Legal Affairs and Human Rights at the Parliamentary Assembly of the Council of Europe; this letter concerned a number of judgments against the United Kingdom in the European Court of Human Rights, and asked where matters stand in relation to the implementation of those judgments. Overall, I think the position is reasonably satisfactory.

First, as regards the case of John Murray against the Untied Kingdom, administrative arrangements were put in place some time ago by the Attorney General to ensure that the breach found in this case should not in practice recur. In order to put the position on a statutory footing, however, changes to the Codes of Practice under the Police and Criminal Evidence Act needed to be made. I am glad to say that the necessary amendments were brought into force on 1 April.

The case of Saunders relates to the Guinness trial. The necessary legislation to implement the judgments was enacted several years ago (the Youth Justice and Criminal Evidence Act 1999), but closure of the case by the Committee of Ministers has been delayed because of the attempts by the applicants to obtain the quashing of their convictions through the UK courts (which is not required by the judgment of the Court in Strasbourg). My officials have recently been in touch with the Secretariat of the Council of Europe, and we are expecting an amicable resolution of the case very shortly.

With regard to the case of the Stanley Johnson, I have to confess that it is taking much longer than I would have liked to take the necessary legislative action to prevent a recurrence of the breach found in that case. However, my officials have been told by the Department of Health that they are continuing to work on the completion of a draft Mental Health Bill, which will include the necessary provisions, for introduction as soon as Parliamentary time allows. In the meantime the Court of Appeal in England have interpreted the existing Mental Health Act so as to take account of the terms of the judgment in Stanley Johnson; the effect is therefore that no further similar breaches of the Convention should in practice occur.

Finally, you ask about A v. the United Kingdom. The courts in England have already said that they will take this decision into account in deciding whether the defence of "reasonable chastisement" (which is available to a parent who punishes a child) has on the facts been made out. A number of queries have been raised with the Secretariat in Strasbourg, we believe by NGOs active in this field; my officials have been in discussion with the Secretariat about these, and will be contacting the Department of Health to discuss how to respond. I might add that, contrary to a number of statements which have been made, the judgment does not require a prohibition upon all corporal punishment of children.

I hope that the above gives you sufficient material for the purposes of answering the Chair of the Parliamentary Assembly Committee, but please of course let me know if you require anything further.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Resolution 1268 (2002)

Draft resolution and draft recommendation adopted unanimously by the Committee on 16 September 2004

Members of the Committee: Lintner (Chairperson), Marty, Jaskiernia, Jurgens (Vice-Chairpersons), Ahlqvist, Ak�am, Aleuras, Alibeyli (alternate: R. Huseynov), Arabadjiev, Arias Ca�ete, Arifi, Ates, Azevedo, Barquero Vazquez, Bartumeu Cassany, Batet Lama�a, Bemelmans-Videc, Berisha, Bindig, Bokeria, Bruce, Christmas-M�ller, Cilevics, Coifan, Dell'Utri, Engeset, Err, Fedorov, Fico, Frunda, Gedei, Goris, Grebennikov, G�nd�z, Hajiyeva, Hakl, Holovaty, Ivanov, Jakic, Jurica, Kaufmann (alternate: Gross), Kelber, Kelemen, Kovalev, Kroll, Kroupa, Kucheida, Leutheusser-Schnarrenberger, Manzella, Martins, Masi, Masson (alternate: Hunault), McNamara, Monfils, Nachbar, Nikolic (alternate: Jovaševic), Olteanu, Ormonde, Pasternak, Pavlov, Pehrson, Pellicini, P�tursd�ttir, Piscitello (alternate: Budin), Poroshenko, Postoica, Pourgourides, Pullicino Orlando, Raguz, Ransdorf, Rochebloine, Rustamyan, Spindelegger, Stankevic, Symonenko (alternate: Shybko), Takkula, Varvitsiotis, Wilkinson (alternate: Lloyd), Wohlwend, Zhirinovsky, Žižic

N.B. The names of those members who were present at the meeting are printed in bold.

Secretariat of the Committee: Mr Schokkenbroek, Mr Schirmer, Mrs Clamer, Mr Milner