1. Introduction
1.1. Procedure
1. Since 2000, the Parliamentary
Assembly has taken a close interest in the implementation of the judgments
of the European Court of Human Rights (hereinafter “the Court”).
In
its latest resolution on this subject –
Resolution 2178 (2017) – it decided “to remain seized of this matter and to
continue to give it priority”. Consequently, on 10 October 2017,
the committee on Legal Affairs and Human Rights appointed Mr Evangelos
Venizelos (Greece, SOC) as the fifth successive rapporteur on this
subject. The previous rapporteurs were Mr Erik Jurgens (Netherlands,
SOC), Mr Christos Pourgourides (Cyprus, EPP/CD), Mr Klaas de Vries
(Netherlands, SOC) and Mr Pierre-Yves Le Borgn’ (France, SOC). Following
Mr Venizelos’s departure from the Assembly, the committee appointed
me as rapporteur on 1 October 2019,
2. Mr Venizelos took a number of steps in the preparation of
the 10th report on the implementation of the Court’s judgments.
The committee held two hearings with experts. The first one took
place in Strasbourg on 24 April 2018 with the participation of Mr Christos
Giakoumopoulos, Director General at the Directorate General Human
Rights and Rule of Law (DG1) of the Council of Europe, Mr Abel de
Campos, Section Registrar, Registry of the European Court of Human
Rights, and Mr Christos Giannopoulos, Doctor of Public Law, Lecturer
at the University of Strasbourg. The second one was held in Strasbourg
on 9 October 2018 with the participation of Mr Martin Kuijer, substitute
member in respect of the Netherlands of the European Commission for
Democracy through Law (“Venice Commission”), Senior Legal Adviser,
Ministry of Security and Justice, Professor, VU University Amsterdam,
and Mr George Stafford, Co-Director, European Implementation Network,
Strasbourg.
3. Moreover, following Mr Venizelos’s competent proposal to hold
exchanges of views with chairpersons of national delegations of
a number of countries
presenting
to a certain extent a problematic degree of implementation of the
Court’s judgments (the implementation of which I decided to continue
after my appointment as rapporteur), the committee held five exchanges
of views. On 22 January 2019, the committee held an exchange of
views regarding Turkey with the participation of Mr Mustafa Yeneroğlu,
member of the Turkish delegation to the Assembly and experts from
the Turkish Ministry of Justice. It also held a discussion regarding
Ukraine regrettably in the absence of the chairperson of the Ukrainian
delegation to the Assembly. On 9 April 2019, the committee held
two exchanges of views: one with Mr Zsolt Németh, chairperson of
the Hungarian delegation to the Assembly, and another one with Mr Alvise
Maniero, chairperson of the Italian delegation to the Assembly and
Ms Maria Giuliana Civinini, co-agent for the Italian government at
the European Court for Human Rights. On 10 December 2019, the committee
held an exchange of views with the participation of Mr Titus Corlăţean,
(Romania, SOC) and finally, on 28 January 2020, an exchange of views with
Mr Petr Tolstoy, chairperson of the delegation of the Russian Federation
to the Assembly, and a representative of the Ministry of Justice.
The information documents prepared for these exchanges of views have
been declassified and are available to the public.
4. In February 2018, Mr Venizelos addressed a letter to national
delegations asking about the state of play of implementation of
Resolution 2178 (2017). The replies provided to this letter have been summarised
in the appendix to my information note, which was considered by
the committee on 14-15 November 2019 and subsequently declassified
(see AS/Jur (2019) 45 declassified).
1.2. Parameters
of my report
5. The Court’s case law is an
integral part of the action taken by the Council of Europe to protect democracy,
the rule of law and human rights. It is now at the heart of European
legal culture in the field of human rights and civil liberties.
The acquis of the Assembly,
which has always highlighted the obligation for member States to
implement the Court’s judgments, is considerable in this field.
Even if, from the standpoint of the Convention, this matter is above
all the responsibility of the Committee of Ministers, the Assembly
has shown that the monitoring it carries out in this field and the
political influence it exerts on such occasions could provide greater
support for the action of the Committee of Ministers and therefore
present an added value. In particular, the Assembly has systematically
called on national parliaments to be more proactive in the process of
implementing the Court’s judgments.
6. The Committee of Ministers’
2019
Annual report on the execution of judgments and decisions of the European
Court of Human Rights (“2019 Annual report”), published on 1 April 2020, stresses
the positive role of the ten years reforms of the system based on
the European Convention on Human Rights (ETS No. 5, “the Convention”)
undertaken in the framework of the “Interlaken process” started
in 2010. However, it also shows that a considerable number of cases
are still outstanding and that many new and old challenges lie ahead: problems
of capacity of domestic actors, problems of resources, insufficient
political will or even clear disagreement with a judgment.
Therefore,
in my report, I will focus on the findings of the Committee of Ministers
concerning both achievements and problems in the implementation
of the Court’s judgments. With regard to the parameters for my report,
I will follow the same methods as my predecessors, Mr de Vries,
Mr Le Borgn’ and Mr Venizelos, who focused respectively on the nine
and ten member States with the largest number of judgments pending
before the Committee of Ministers. Like Mr Le Borgn’, I will also
take into account judgments whose implementation entails particular
difficulties due to their political or legal complexity (which were
called “pockets of resistance” by my predecessor). Due to different
constraints, I could not undertake any fact-finding visit. However,
due to the hearings held in the committee, the increased number
of cooperation activities undertaken by the Department for the Execution
of Judgments of the European Court of Human Rights (“Department
for the Execution of Judgments”) and the activities of the Assembly
Secretariat’s Parliamentary Project Support Division, such fact-finding
visits were not indispensable for the preparation of this report.
2. Ninth report of the Assembly and its
follow-up
7. The ninth report on the implementation
of the judgments of the Court
highlighted the
progress made by some member States in this field. Nevertheless,
it drew attention to the serious structural problems encountered
over at least the past ten years by the 10 member States which had
the largest number of non-executed judgments, according to the statistics
of the Committee of Ministers as at 31 December 2016: Italy, the
Russian Federation, Turkey, Ukraine, Romania, Hungary, Greece, Bulgaria,
the Republic of Moldova and Poland. This report also pointed out
that the Committee of Ministers was still monitoring the execution
of some 10 000 judgments, even if these judgments were not all at
the same stage of execution. It focused on the difficulties in implementing
certain judgments as a result of “pockets of resistance”, which
might be the result of political problems.
8. In its
Resolution
2178 (2017), the Assembly once again deplored “the delays in implementing
the Court’s judgments, the lack of political will to implement judgments
on the part of certain States Parties and all the attempts made
to undermine the Court’s authority and the Convention-based human
rights protection system”. It reiterated its call on the States
Parties to the Convention to fully and swiftly implement the Court’s
judgments and to co-operate, to that end, with the Committee of
Ministers, the Department for the Execution of Judgments and other
Council of Europe organs and bodies.
9. Recommendation
2110 (2017) urged the Committee of Ministers “to use all available
means to fulfil its tasks under Article 46.2 of the Convention”,
to continue to strengthen synergies, within the Council of Europe, between
all the stakeholders concerned, to give renewed consideration to
the use of the procedures provided for in Article 46, paragraphs
3 to 5, of the Convention, to co-operate more closely with civil
society and guarantee greater transparency in supervising the implementation
of judgments.
10. In February 2018, the Committee of Ministers submitted a reply
to this recommendation, in which it referred to a number of measures
taken to improve supervision of the Court’s judgments’ implementation
in the context of the
Brussels
Declaration of 2015 and to the increase in the number of closed
cases.
It
stressed that the resources of the Department for the Execution
of Judgments had increased significantly in the biennium 2016-2017.
Moreover, it had started devoting part of its Human Rights DH meetings
(which focus on the execution of the Court’s judgments) to thematic
debates to allow the representatives of member States to discuss
their practices in executing judgments in specific areas (for example
a debate on conditions of detention took place during the 1310th
meeting in March 2018).
On 1 June 2017, it held a debate
on its 10th
2016
Report on the supervision of the execution of judgments and decisions
of the European Court of Human Rights, (“2016 Annual Report”). Several speakers representing
the different bodies of the Council of Europe (including the then
Vice-President of the Assembly Mr René Rouquet) and the European
Network of National Human Rights Institutions took part in this
debate.
11. In the contribution it prepared in response to
Recommendation 2110 (2017) of the Assembly,
the Venice Commission stated that
it could “usefully contribute to a better execution of the ECHR
judgments”, as its role consisted, mainly, in drawing the national
authorities’ attention to the incompatibility of a legal act or
of a practice with the Convention. This statement was not a surprise
since on several occasions, the Venice Commission had issued in
the past opinions (sometimes in co-operation with other Council
of Europe departments or the Bureau of Democratic Institutions and
Human Rights of the OSCE) on general measures adopted by the authorities
with a view to executing the Court’s judgments (for example, in
the context of the execution of the following judgments:
Vyerentsov v. Ukraine, concerning
two draft laws on the guarantees for freedom of peaceful assembly,
Oleksandr Volkov v. Ukraine concerning
a draft law amending the law on the judicial system and the status
of judges,
or
Bayatyan
v. Armenia, concerning a draft law amending
the law on alternative national service). The Venice Commission
also took a stance on the amendment to the Russian Federal Constitutional
Law adopted by the State Duma on 4 December 2015 and approved by
the Council of the Federation on 9 December 2015;
according to this law, the
Constitutional Court has authority to declare the decisions of international
courts (including the Court) “non-executable” on the grounds that
they are incompatible with the “foundations of the constitutional
order of the Russian Federation” and “with the human rights system
established by the Constitution of the Russian Federation”. In its
final opinion on this amendment, the Venice Commission pointed out
that the execution of the Court’s judgments was an unequivocal,
imperative legal obligation, whose respect was vital for preserving
and fostering the community of principles and values of the European
continent.
In its 2002 opinion
on the implementation of the Court’s judgments, it had underlined
the fact that the execution of judgments and its monitoring was
not only a legal but also a political problem.
The Venice Commission’s
opinions prove to be a useful tool and method to ensure better implementation
of the Court’s judgments.
3. Member
States having the most judgments pending before the Committee of
Ministers
12. According
to the 2019 Annual Report of the Committee of Ministers, 5 231 judgments were pending (on 31 December 2019)
before the Committee of Ministers, at different stages of execution,
in comparison with 6 151 at the end of 2018.
The 10 following countries had the
largest number of pending cases: Russian Federation (1 663, in comparison
with 1 585 in 2018), Turkey (689, in comparison with 1 237 in 2018),
Ukraine (591, in comparison with 923 in 2018), Romania (284, in
comparison with 309 in 2018), Hungary (266, in comparison with 252
in 2018), Italy (198, in comparison with 245 in 2018), Greece (195,
in comparison with 238 in 2018), Azerbaijan (189, in comparison
with 186 in 2018), the Republic of Moldova (173, likewise in 2018) and
Bulgaria (170, in comparison with 208 in 2018). There are fewer
than one hundred cases concerning the other member States (Poland,
which had 100 cases at the end of 2018, had 98 of them at the end
of 2019). The overall number of judgments pending before the Committee
of Ministers has considerably fallen in comparison with the end
of 2016 (9 941)
,
the basis for the report by Mr Le Borgn’ of 2017.
13. The issue is not only a quantitative one but also a qualitative
one. Therefore, it is interesting to refer to the number of applications
pending before the Court, whose statistics show slightly different
figures from those of the Committee of Ministers. On 29 February
2020, of the 61 100 applications pending before the Court, more than
two thirds came from the four following member States, namely the
Russian Federation (25,2 %), Turkey (15.7%), Ukraine (15.1 %) and
Romania (13%). They were followed by Italy (5.1%), Azerbaijan (3.3 %),
Bosnia and Herzegovina (2.7%), Armenia (2.7%), Serbia (2.1%) and
Poland (2.1%).
As my predecessor
Mr Le Borgn’
already pointed out,
these statistics, which concern applications on which the Court
has not yet ruled, often illustrate the extent of structural problems
at national level – problems which should have been resolved in
the context of the execution of the Court’s earlier judgments. This
is particularly the case of the Russian Federation, Turkey, Ukraine
and Romania, which come up high in both rankings. While Bosnia and Herzegovina,
Armenia, Serbia and Poland are within the10 countries with the highest
percentage of cases pending before the Court, they rank respectively
16th (39 cases), 17th (38 cases), 13th (57 cases) and 11th (98 cases)
in the statistics of the Committee of Ministers. While Hungary,
Greece, the Republic of Moldova and Bulgaria are not among the countries
having the highest number of cases pending before the Court, they
still have many ‘leading’ cases pending before the Committee of
Ministers.
4. Specific
challenges for the execution of Court judgments
14. In the 2019 Annual report,
Mr Giakoumopoulos stressed that the implementation of the Court’s judgments
still implied new challenges and that the most difficult cases were
inter-State cases and individual cases relating to unresolved conflicts,
post-conflict situations or cases displaying other inter-State features.
In 2019, there were few, if any, developments in the execution of
such cases.
I would like to add
here that inter-State cases are
par excellence the
most difficult ones, as they implicate political and national interest
when it comes to the execution of the Court’s judgments. Therefore,
I will refer to such cases as well as to the most problematic cases
described as “pockets of resistance” in the 2017 report of Mr Le
Borgn’.
15. Since the adoption of the Committee on Legal Affairs and Human
Rights’ 9th report on 18 May 2017, the Committee of Ministers has
held several DH meetings,
during which it continued to
discuss the cases or groups of cases mentioned in Mr Le Borgn’s
report. Of seven such cases or groups of cases, only one, namely the
Hirst (No 2) v. United Kingdom group
of cases (concerning the blanket ban on voting by prisoners) was closed
by the Committee of Ministers, at its 1331st meeting
(DH) (4-6 December 2018), over 13 years after the Court had delivered
its judgment
. In its Resolution
CM/ResDH(2018)467 of 6 December 2018, the Committee of Ministers recalled
the wide margin of appreciation in this area and noted “the administrative
measures taken and in particular the changes to the policy and guidance
to make it clear that two categories of prisoners that were previously
effectively disenfranchised (prisoners released on temporary licence
and on home detention curfew
)
were now able to vote.” The other six cases or groups of cases considered
as “pockets of resistance” by Mr Le Borgn’ are still pending with
little progress made since May 2017.
4.1. Ilgar
Mammadov v. Azerbaijan and similar cases concerning politically
motivated prosecutions
16. With regard to the
Ilgar Mammadov v. Azerbaijan (No. 1) judgment,
in which the Court held
that the applicant’s detention was politically motivated and contrary
to Articles 5.1c) and 18 of the Convention, after having served
formal notice on the respondent State in its
Interim Resolution CM/ResDH(2017)379 of 25 October 2017, on 5 December 2017 the Committee
of Ministers adopted a decision to bring the matter before the Court
on the basis of Article 46.4 of the Convention, by a majority vote
of two-thirds (see its interim Resolution
CM/ResDH(2017)429 adopted at its 1302nd meeting
(DH) (5-7 December 2017)). For the first time, the Committee of
Ministers made use of the infringement proceedings procedure to
ask the Court whether the respondent State had refused to comply
with the Court’s final judgment. The Assembly had, on several occasions,
recommended recourse to this procedure. In its Resolution CM/ResDH(2017)429,
the Committee of Ministers pointed out that since its first examination
of this case on 4 December 2014, it had asked the Azerbaijani authorities
to take the individual measure required, that is to release the
applicant as soon as possible. Given that Mr Mammadov remained in
detention on the basis of the flawed criminal proceedings, the Committee
of Ministers considered that Azerbaijan was refusing to comply with
the Court’s judgment and called on the Court to rule on whether
the respondent State had failed to fulfil its obligation under Article
46.1 of the Convention. Although the applicant was conditionally
released on 13 August 2018, the Grand Chamber of the Court, in its
judgment of 29 May 2019, found a violation of Article 46.1 of the
Convention, as the respondent State had not acted “(…) in “good
faith”, in a manner compatible with the “conclusions and spirit”
of the first Mammadov judgment, or in a way that would make practical
and effective the protection of the Convention rights which the
Court found to have been violated in that judgment”.
Hence,
under Article 46.5 of the Convention, the case was sent back to
the Committee of Ministers “for consideration of the measures to
be taken”, namely both by the respondent State and the Committee
of Ministers in response to the finding of infringement.
17. The Committee of Ministers is now examining this case along
with a group of cases concerning civil society activists and human
rights defenders who had been subject to criminal proceedings which
the Court found to constitute a misuse of criminal law, intended
to punish and silence them (violations of Article 18 taken in conjunction
with Article 5 of the Convention and also Article 8 in one case).
The Court noted “a troubling pattern
of arbitrary arrest and detention of government critics, civil society
activists and human rights defenders through retaliatory prosecutions
and misuse of criminal law in defiance of the rule of law”.
The Committee of Ministers examined these
cases at its 1355th (23-25 September 2019), 1362nd (3-5
December 2019) and 1369th (3-5 March 2020) meetings (DH). As regards
individual measures, at its 1355th meeting (DH), the Committee of
Ministers underlined that Azerbaijan had to eliminate all the remaining
negative consequences of the criminal charges brought against each
of the applicants, in particular by quashing the convictions and deleting
them from the criminal record. It reiterated this position at its
1362nd meeting (DH), adding that in order to
ensure
restitutio in integrum in
this group of cases, the authorities should fully restore the applicants’
civil and political rights in time for the next parliamentary elections
(which were called
ahead of schedule, for 9 February 2020). However, the applicants’
convictions still stood and the applicants have been unable to resume
their former professional and political activities; in particular
MM. Mammadov, Jafarov and Aliyev could not present themselves as
candidates in the parliamentary elections.
Therefore, at
its 1369th meeting (DH), on 5 March 2020, the Committee of Ministers
adopted Interim Resolution
CM/ResDH(2020)47, in which it reiterated its previous findings on the
issue of
restitutio in integrum and
deeply regretted that some nine months after the Court’s Article
46.4, judgment the applicants’ convictions still stood and they
suffered from the negative consequences thereof. Consequently, it
urged the authorities to “ensure that all the necessary individual
measures are taken in respect of each of the applicants without
any further delay” and to report to it by 30 April 2020 at the latest.
18. The Committee of Ministers is also awaiting confirmation of
payments of just satisfaction in cases other than
Ilgar Mammadov and
examined the issue of general measures for the last time at the
December 2019 meeting (DH). It then noted with interest the measures
taken and planned to strengthen the ethical conduct of prosecutors
and the independence of the judiciary and strongly encouraged the
authorities to pursue these efforts.
19. The implementation of these judgments was recently examined
by the Assembly in the context of the report by our committee colleague
Ms Thorhildur Sunna Ævarsdóttir (Iceland, SOC) on “Reported cases
of political prisoners in Azerbaijan”.
In its
Resolution 2322 (2020) of 30 January 2020 based on this report, the Assembly
stressed that “there can no longer be any doubt that Azerbaijan
has a problem of political prisoners and that this problem is due
to structural and systemic causes”. It also called on the Azerbaijani
Government to “take promptly every possible step towards full implementation
of the judgments of the European Court of Human Rights, so as to
ensure (…) that Mr Ilgar Mammadov and Mr Anar Mammadli are able
to stand as candidates in elections and that Mr Rasul Jafarov can
resume his professional activities as a lawyer” and to “co-operate
fully with the Committee of Ministers in its supervision of the
implementation of the judgments of the European Court of Human Rights,
(…) including by promptly submitting detailed and comprehensive
action plans setting out the measures to be taken and by providing
full and up-to-date information in good time before relevant meetings
of the Committee of Ministers”. Moreover, the Azerbaijani Parliament
and Government have been invited to “recognise formally all of the
findings of the European Court of Human Rights in its judgments establishing
a violation of Article 18 of the Convention,(…), as a necessary
precondition for the success of the measures required to implement
those judgments fully and effectively”. According to Mr Giakoumopoulos, Azerbaijan’s
ongoing failure to respond adequately to the
Ilgar
Mammadov judgment “has brought the execution process
to a situation of unprecedented gravity, raising the question of
measures to be taken under Article 46.5 of the Convention.”
20. On 23 April 2020, the Supreme Court of Azerbaijan acquitted
MM. Ilgar Mammadov and Rasul Jafarov, which was welcomed by the
Council of Europe Secretary General Marija Pejčinović Burić, in
her
statement made on that day, and by Ms Ævarsdóttir, who also called
on the authorities to restore the situation of the six other applicants.
4.2. Sejdić
and Finci v. Bosnia and Herzegovina group concerning the reluctance
to reform national legislation in order to implement the Court’s
judgments
21. The judgments in the
Sejdić and Finci v. Bosnia and Herzegovina group concerning discrimination against
persons belonging to groups other than the “constituent peoples”
of Bosnia and Herzegovina (i.e. Bosnians, Croats and Serbs) as regards
their right to stand for election to the House of Peoples and the Presidency
of Bosnia and Herzegovina (violations of Article 1 of Protocol No.
12) were examined by the Committee of Ministers at its 1288th (6-7
June 2017), 1324th (18-20 September 2018), 1348th (4-6 June 2019) and
1369th (3-5 March 2020) (DH) meetings. The Committee of Ministers
has on several occasions called on political leaders to step up
their dialogue with a view to making the necessary changes to the
Constitution and to electoral legislation and expressed its concern
with regard to the lack of information on the progress on this matter.
In September 2018,
shortly before the elections of October 2018 to the Presidency and
the House of Peoples, the Committee of Ministers noted with “the
gravest concern” that they would be the third elections, following
those in 2010 and 2014, “based on a discriminatory electoral system
in clear violation of the requirements” of the Convention, and regretted
the lack of an effective remedy for persons discriminated against,
despite the Constitution’s requirement “that (…) all persons within
the territory of Bosnia and Herzegovina shall enjoy the rights and
freedoms set forth in the Convention; which shall apply directly
and have priority over all other law”. It also considered that these
elections would “constitute a manifest breach of obligations under
Article 46 of the Convention and potentially undermine the legitimacy
and the credibility of the country’s future elected bodies”.
After the October 2018 elections,
the Committee of Ministers expressed similar criticism and stressed
“the utmost importance” of relaunching the work on the reform without
delay. It also urged the political leaders and the authorities to
pursue consultations in order to bring to an end the “continuing
and long-standing violation” of the country’s obligations under
the Convention, before the next elections in 2022, to speedily follow
up the high level preparatory discussions engaged with the secretariat under
a Human Rights Trust Fund (HRTF) project and renewed its invitation
to a competent minister to hold an exchange of views with the Committee
of Ministers.
Due
to the delay in the forming a new government of Bosnia and Herzegovina,
the Council of Europe Director General of Human Rights and Rule
of Law wrote to the Minister of Foreign Affairs asking to examine
possible avenues to move forward. In response, the Minister of Foreign
Affairs welcomed the initiative and promised to examine the matter
with her authorities. Between April 2019 and January 2020, a delegation
from the secretariat went to Sarajevo on three occasions to meet with
top officials, in the framework of a HRTF project on “Facilitation
of the process of amending the Constitution in Bosnia and Herzegovina”.
On
22 December 2019, on the occasion of the 10th anniversary of the
Sejdić and Finci judgment, the Council
of Europe and several international stakeholders made statements inviting
the authorities to take steps to implement this judgment,
which is now one
of the 14 priorities for the accession of Bosnia and Herzegovina
to the European Union.
It appears that as
a result of these relaunched efforts to find a solution, a public
hearing on the implementation of the
Sejdić
and Finci judgment was scheduled in the national parliament
for 27 March 2020. However, due to the COVID-19 pandemic it had
to be rescheduled for a later date.
22. Following the forming of a new government at the end of December
2019, the Minister of Foreign Affairs of Bosnia and Herzegovina
took part in the 1369th meeting (DH) in March 2020 and stated that
the matter would be examined within parliamentary framework. Consequently,
although it recalled that the retention of the current election
system was in breach of the Convention and the country’s Constitution,
the Committee of Ministers “noted with satisfaction the renewed
engagement of the authorities (…) to find a solution to the pressing
issue of discrimination in the electoral system” and encouraged
them to continue their co-operation with the Council of Europe,
including the Venice Commission, in order to ensure the adoption
of “the necessary constitutional and other reforms before the 2022
elections”.
A similar issue
is now being examined in the context of the implementation of a
recent Court judgment
Baralija v. Bosnia
and Herzegovina , which concerns the absence of
local elections in Mostar, despite a decision of the Constitutional
Court, and thus the applicant’s inability to vote or to stand in
any such elections, a situation amounting to unjustified discrimination based
on place of residence (violation of Article 1 of Protocol No. 12).
4.3. Paksas
v. Lithuania
23. The Committee of Ministers
examined several times
the
Paksas v. Lithuania case,
concerning
a violation of the applicant’s right to free elections due to the
permanent and irreversible nature of his disqualification from standing
for election to Parliament as a result of his removal from presidential
office following impeachment proceedings conducted against him in
accordance with the Constitutional Court’s ruling of 25 May 2004
and the Seimas Elections Act of 15 July 2004 (violation of Article
3 of Protocol No.1). In its Interim Resolution
CM/ResDH(2018)469 of 6 December 2018, the Committee of Ministers recalled
that since 2004 the applicant continued to be banned from standing
for parliamentary elections and that since 2011 four successive
amendment proposals had failed in the Seimas despite the government’s
efforts. It expressed concern that no tangible progress had been
achieved and the situation found to be in breach of the Convention still
persisted and called on the authorities to redouble their efforts
to achieve concrete progress at parliamentary level. At its 1355th
meeting (DH) (23-25 September 2019), the Committee of Ministers expressed
again its concerns about the lack of progress. However, it took
note of the Constitutional Court’s position that remedial action
was also required as a matter of national constitutional law and
of a new legislative proposal (Draft Law No. XIIIP-3867), which
appeared to provide a viable solution to remedy the violation of
the Convention both at the individual and general level and which
the Seimas started to consider on 24 September 2019.
Thus,
it stressed the importance of the adoption of the necessary amendments
before the next parliamentary elections scheduled for October 2020.
Following receipt of new information from the Lithuanian authorities,
at its 1362nd meeting
(DH) (3-5 December 2019), the Committee of Ministers, reiterating, however,
its previous concerns, noted with interest the fact that the Human
Rights Committee and the Constitutional Commission of the Seimas
had approved on 13 and 27 November 2019 respectively the Draft Law
No. XIIIP-3867 and recalled that it appeared to be a “viable solution”
to remedy the violation found by the Court.
24. During the latest examination of this case at its 1369th meeting
(DH) in March 2020, the Committee of Ministers reiterated its previous
concerns, but noted with interest that the above-mentioned legislative
process had advanced further “in line with the procedure foreseen
under domestic law with a hearing by the Committee on Legal Affairs
devoted to this on 19 February 2020”. It also noted that according
to the timeline provided by the authorities, the plenary of the
Seimas needed to hold its first vote no later than 7 April 2020
in order for the amendments to come into force in a timely manner
for the applicant to be able to register as a candidate for the
parliamentary elections scheduled for 11 October 2020. The Committee
of Ministers reiterated its expectation that this timeline would
be kept and invited the authorities to continue providing information
on a monthly basis, by 5 April and 5 May 2020, on each step taken
in the legislative process. It instructed its secretariat once again
to prepare a draft interim resolution for consideration at the next
meeting (in June 2020), should the legislative process come to a
standstill.
The
authorities submitted updated information on 3 April 2020, from
which it results that the applicant would not be able to stand for
the October 2020 elections.
4.4. The
lack of tangible progress to prevent the risk of imposition of the
death penalty or amounting to the flagrant denial of justice: the
Al Nashiri and Abu Zubaydah cases
25. These cases reveal a worrying
timid reaction of the Committee of Ministers towards the situation
where a transfer of detainees may amount to a risk of imposition
of the death penalty or to the flagrant denial of justice. At several
(DH) meetings,
the Committee of Ministers has examined
the
Al Nashiri and
Husayn (Abu Zubaydah) v. Poland judgments
concerning
the secret detention of the applicants, suspected of terrorist acts, in
the Central Intelligence Agency (CIA) detention facility in Poland
and their subsequent transfer (multiple violations of the Convention,
and in particular of Article 3 in both its substantive and procedural
aspects, of Article 6§1, and, with regard to Mr Al Nashiri, also
of Articles 2 and 3 taken together with Article 1 of Protocol No.
6). These issues were first examined in the two reports by our former
colleague Mr Dick Marty (Switzerland, ALDE)
,
which led to the adoption of the Assembly’s Resolutions
1507
(2006) and
1562
(2007) and Recommendations
1754
(2006) and
1801
(2007).
26. Despite the Committee of Ministers’ repeated calls concerning
individual measures, the applicants’ situation remains unchanged:
Mr Al Nashiri continues to face a real risk of being subjected to
the death penalty and both applicants are subjected to a flagrant
denial of justice, notably due to their “indefinite detention” without
charge since 2002, there having been very little progress in the
domestic investigation for more than 12 years. The applicants are
detained in the Internment Facility at the US Guantánamo Bay Naval
Base in Cuba.
27. At its 1348th meeting (DH) (4-6 June 2019), the Committee
of Ministers noted with deep regret that the lack of progress concerning
the adoption of individual and general measures and even instructed
its secretariat to prepare a draft interim resolution if no concrete
information on these issues was provided before 1 December 2019.
In particular, it was concerned about the lack of information on
any further action taken to seek diplomatic assurances for the applicants
from the United States (which the US authorities first refused in
2016)
and the incomplete criminal investigation
at national level. However, it noted with interest that the said
investigation also covered the crime of torture and inhuman and
degrading treatment as proscribed by Article 123.2 of the Polish Criminal
Code, and that the offences under investigation would not become
time-barred.
It also invited the Secretary
General to transmit its decision to the Permanent Observer of the
United States to the Council of Europe, which was done on 24 June
2019.
28. In response to the decision adopted at the 1348th meeting
(DH), the Polish authorities submitted an updated action plan on
3 February 2020, indicating that a diplomatic note was going to
be sent to the US Embassy in Warsaw.
Submissions were
also made by NGOs.
The Committee of
Ministers examined again this case at its 1369th meeting (DH) in
March 2020. As regards individual measures, it took note of the information
concerning the new Polish request for diplomatic assurances for
both applicants and underlined that it was crucial that “the Polish
authorities actively continue their diplomatic efforts and pursue
all possible means to seek to remove the risks incurred by the applicants”.
Recalling the previous unsuccessful attempts to obtain such assurances,
it encouraged the Polish authorities to consider exploring other
avenues, such as intervening as
amicus
curiae in any relevant proceedings pending in the United
States; in this context it also invited the Council of Europe member
States concerned to provide the Polish authorities with all possible assistance.
In the domestic criminal investigation, one suspect was identified,
which was noted with interest by the Committee of Ministers. However,
more details on the criminal charges against this person are expected. The
Committee of Ministers also welcomed the authorities’ efforts to
co-operate with the applicants’ representatives in exploring alternative
means to overcome the effects of the US authorities’ refusal to
grant the Polish request for legal assistance and to obtain evidence
necessary for the domestic investigation and encouraged the authorities
to continue their efforts in this regard. However, it noted “with
deep concern” that this investigation has been pending for almost
12 years and strongly urged the Polish authorities to redouble their
efforts to complete it without further delay as well as to complete
their reflection on whether selected elements could be made public
or at least transmitted to the Committee of Ministers in a confidential
manner. Once again, it strongly urged the authorities of the United
States (which has observer status with the Council of Europe) to
reconsider their position and to provide the necessary assurances
and assistance, or take other equivalent measures.
As
regards general measures, the Committee of Ministers deeply regretted
the lack of information on legislative proposals to strengthen oversight
of the intelligence service and the lack of “a clear message at
high level to the intelligence and security services as to the absolute
unacceptability of and zero tolerance towards arbitrary detention,
torture and secret rendition operations” and urged the authorities
to intensify their work in these areas and to provide information
on the measures taken or envisaged to “acknowledge Poland’s role
in and responsibility for the human rights violations that occurred
in these cases”.
29. The applicants’ situation is also examined by the Committee
of Ministers in the context of the implementation of two subsequent
judgments concerning the CIA “extraordinary rendition” operations
in Romania (between 2004 and 2005) and Lithuania (between 2005 and
2006) and finding the same violations of the Convention as in the
two above-mentioned cases against Poland. These judgments, namely
Al Nashiri v. Romania and
Abu
Zubaydah v. Lithuania,
were
examined most recently at the 1369th meeting (DH) in March 2020.
As regards individual measures in
Al
Nashiri v. Romania, the Committee of Ministers expressed “deep
concern” at the Unites States authorities’ decision not to grant
the request for diplomatic assurances against the imposition of
the death penalty and flagrant denial in the applicant’s trial;
welcomed the Romanian authorities’ readiness to repeat their request
in this respect and invited them actively to follow up on their
new request. Likewise in
Al Nashiri v.
Poland, it encouraged them, while “pursuing and intensifying
the diplomatic efforts”, to consider exploring other avenues that
would enable them to seek to remove the risks facing the applicant
such as intervening as
amicus curiae in
any relevant proceedings pending in the United States and called
on the latter’s authorities to reconsider their position. Since
the domestic investigation has been pending for almost eight years,
the Committee of Ministers strongly urged the authorities to take
all necessary actions to ensure that its effectiveness is not hampered
by prescription, to intensify their efforts to complete it and to provide
information on further investigative steps, including those envisaged
following the United States’ authorities refusal to grant legal
assistance.
30. As regards individual measures in
Abu
Zubaydah v. Lithuania, the Committee of Ministers reiterated
its “deep regret” that, despite the actions taken by the Lithuanian
authorities to seek diplomatic assurances from the United States’
authorities, the latter had refused to confirm that the applicant
would not be subject to the treatment criticised by the Court. Therefore,
it encouraged the Lithuanian authorities to “continue actively their efforts
at a higher political level and pursue all possible means to seek
to put an end to the applicant’s continued arbitrary detention and
to seek guarantees” that he would not be subject to further inhuman
treatment. Likewise in the two above-mentioned cases, the Committee
of Ministers also encouraged the Lithuanian authorities to consider
exploring other avenues such as intervening as
amicus curiae in any relevant proceedings
pending in the United States. As regards the domestic criminal investigation,
which had been pending for over ten years, it noted with concern
the lack of tangible progress, urged the authorities to intensify
their efforts to complete it and to provide information on alternative
measures to overcome the effects of the United States authorities’ refusal
to grant legal assistance.
31. It is fortunate that the Committee of Ministers sent a clear
message to the national authorities when examining the issue of
general measures. In
Al Nashiri v. Romania,
it called on the authorities to ensure that any future legislative
reforms would fully guarantee effectiveness of criminal investigations
and to reflect on disapplying the statute limitations to the crime
of torture. The Committee of Ministers also requested information
on any changes in domestic law since the date of the facts which
had reinforced the safeguards for human rights compliance and accountability
in the conduct of covert operations by the intelligence services
and reiterated its urgent call on them to deliver an “unequivocal
message” at a high level as to the unacceptability of and zero tolerance
towards arbitrary detention and torture and to provide information
on the measures taken or envisaged to acknowledge the State’s role
in human rights violations in this case.
In
Abu Zubaydah v. Lithuania, recalling
the legislative and policy changes which had taken place since the
facts at issue aimed at strengthening control over intelligence
and security services, the Committee of Ministers welcomed the public message
of the Minister of Justice (who had taken part in its 1348th meeting
(DH)) underlining zero tolerance towards any violation of human
rights. Underlining again the necessity to conduct an effective
investigation rapidly to establish the truth about what happened
and how so that it can never happen again, the Committee further
noted with interest the authorities’ commitment to ensure the right
to truth in this context.
4.5. OAO
Neftyanaya Kompaniya YUKOS v. Russia: the increasing legal and political
difficulties surrounding the implementation of the judgment on just
satisfaction
32. This case reveals the increasing
legal and political difficulties surrounding the implementation
of the judgment on just satisfaction and deals also with the risk
that the recently adopted amendments to the Constitution of the
Russian Federation would add further obstacles to this process.
At its 1302nd (5-7 December 2017), 1340th (12-14 March 2019) and
1369th (3-5 March 2020) (DH) meetings, the Committee of Ministers
considered the
OAO Neftyanaya Kompaniya
YUKOS v. Russia case,
in
which the Court held that there had been various violations of the
Convention concerning tax and enforcement proceedings brought against
the applicant oil company (mainly of Article 6 and Article 1 of
Protocol No. 1). In its judgment on just satisfaction, the Court
allocated a total amount of nearly 1.9 billion euros to the shareholders
of the applicant company (as they stood at the time of the company’s
liquidation) by way of just satisfaction, within six months from
the date on which that judgment became final.
The
Committee of Ministers is still awaiting an action plan with an
indicative timetable for the payment of the just satisfaction to
the applicant company’s shareholders. Following an application by
the Russian Ministry of Justice, on 19 January 2017, the Russian
Constitutional Court delivered a judgment concluding that it was
impossible to implement the Court’s judgment on just satisfaction
in this case without contravening the Russian Constitution
(which
was due to the amendments to the Federal Law on the Constitutional
Court passed in December 2015)
. While the authorities
continuously referred to this decision of the Constitutional Court,
at its 1340th meeting (DH) in March 2019 the Committee of Ministers
stressed the “unconditional obligation assumed by the Russian Federation
under Article 46 of the Convention to abide by the judgments” of
the Court, expressed “grave concern at the continued non-implementation
of the remaining parts of the just satisfaction judgment” and encouraged
the authorities and the secretariat to reinforce their co-operation
with a view to finding solutions in this respect. It also welcomed
the payment in December 2017 of the sum in respect of costs and
expenses (that is 300 000 euros granted to the Yukos International
Foundation). However, as the payment, which had been done with a
delay, did not include default interest, the Committee of Ministers
urged the Russian authorities to rapidly proceed with the payment of
interest.
As regards the outstanding
action plan, the Committee of Ministers invited the authorities
to submit it for 1 December 2019, but no information was submitted
by the authorities in time for the next DH meeting.
33. In the meantime, on 20 January 2020 the Russian President
introduced a bill to the State Duma, proposing amendments to 22
provisions of the Constitution, including an amendment aimed at
adding to Article 79 of the Constitution
the
following sentence: “Decisions of interstate bodies adopted on the
basis of the provisions of international treaties are not enforceable
in the Russian Federation if they contradict the Constitution.
On
28 January 2020, the Committee on Legal Affairs and Human Rights
requested an opinion of the Venice Commission on the impact of the
above draft amendment on the execution of the Court’s judgments.
34. At its 1369th meeting (DH) in March 2020, the Committee of
Ministers recalled the “unconditional obligation to abide by the
Court’s judgments” and that the Venice Commission would soon deliver
its opinion.
It further invited the authorities
to provide as soon as possible clarifications as to the possible
implications of the adoption of the said amendment for this case.
The Committee of Ministers encouraged the “speedy resumption of
contacts between the authorities and the Secretariat with a view
to finding solutions to the situation in the present case as it
had emerged after the 2017 Constitutional Court judgment.” Once
again, it urged the authorities to present the “required action
plan with an indicative timetable for the steps envisaged for the
full execution of the just satisfaction judgment”. If such an action
plan is not provided, the Committee of Ministers will consider the
appropriateness of adopting an interim resolution at the 1383rd meeting
(DH) (September 2020).
4.6. Catan
and Others v. Moldova and Russia and Bobeico and Others v. the Republic
of Moldova and Russia
35. The
Catan
and Others v. Moldova and Russia case was examined
at the 1294th (19-21 September 2017), 1310th (13-15 March 2018),
1324th (18-20 September 2018), 1340th (12-14 March 2019) and 1362nd (3-5
December 2019) (DH) meetings of the Committee of Ministers. This
case concerns the violation of the right to education of 170 children
or parents of children from Latin-script schools located in the
Transdniestrian region of the Republic of Moldova (“MRT”) (violation
of Article 2 of Protocol No. 1). The Court found that there was
no evidence of any direct participation by Russian agents in the
measures taken against the applicants, nor of Russian involvement
in or approval for the “MRT”‘s language policy in general. However,
in its opinion, the Russian Federation exercised effective control
over the “MRT” during the period in question and that by virtue
of its continued military, economic and political support for the
“MRT”, which could not otherwise survive, the Russian Federation
incurred responsibility under the Convention for the violation in
question. The Court recognises, therefore, a kind of interstate
feature of the case.
36. The Committee of Ministers repeatedly pointed out that in
this case, according to the Court, Russia incurred responsibility
under the Convention. However, according to the Russian authorities,
the Court “applied its own ‘effective control’ doctrine, having
attributed to Russia the responsibility for violations occurred
in the territory of another State, to which the Russian authorities
had no relation whatsoever, which created serious problems of practical
implementation of this judgment”.
A
series of roundtables and conferences was organised by them between
2015 and 2018, with the participation of national and foreign experts,
to discuss “acceptable solutions for ways out of this situation”.
In 2018, the Court
issued another judgment –
Bobeico and
Others v. the Republic of Moldova and Russia – finding the same
kind of Convention violation for another group of children. The
Russian authorities provided information on 7 November 2019,
reiterating their previously
expressed views that the Court’s attribution to Russia of responsibility
for violations which had taken place on the territory of another
State created serious problems of practical implementation. They
indicated that they had applied significant efforts to find acceptable
solutions and referred to the work of the Committee of Experts on
the System of the European Convention on Human Rights (DH-SYSC II)
under the auspices of the Steering Committee for Human Rights (CDDH).
In October 2019, the DH-SYSC preliminarily adopted a draft report
on the place of the European Convention on Human Rights in the European
and international legal order, which was adopted at the CDDH meeting
on 26-29 November 2019.
At the end of
October 2019, the NGO Promo Lex highlighted the lack of progress
in the execution of the case, including the non-payment by the Russian
authorities of the non-pecuniary damages and legal costs and expenses
awarded by the Court.
37. During the most recent examination of this case, at its 1362nd meetings
(DH), the Committee of Ministers again “firmly insisted” on “the
unconditional obligation of every State” under Article 46.1 of the
Convention to abide by the final judgments of the Court. It recalled
the Russian authorities’ commitment to “arrive at an acceptable
response as to the execution of this judgment”, noted the explanations
provided by the Russian authorities and expressed regret that an
action plan with concrete proposals was not submitted some seven years
after the judgment had become final. It “firmly urged” the authorities
to provide an action plan by 31 March 2020 and, in case of its absence
by that date, instructed its secretariat to prepare a draft interim
resolution (which would be the fourth in this case) for its 1377th
meeting (DH) in June 2020.
No information
in this respect has been provided so far.
4.7. Inter-State
cases: Cyprus v. Turkey and Georgia v. Russia (I)
38. The Committee of Ministers
is examining two inter-States cases:
Cyprus
v. Turkey,
and
Georgia v. Russia (I). Both are under enhanced
supervision. The main issues concerning the implementation of the judgments
delivered in the case of
Cyprus v. Turkey have
already been presented in an information document (
AS/Jur(2019)02
declassified) of 22 January 2019. In the 2001 judgment, the Court
found multiple violations of the Convention in connection with the
situation in the “northern part of Cyprus” (that is where Turkey
exercises effective control according to the Court’s findings) since
Turkey’s 1974 military intervention in Cyprus. The Turkish authorities
have remedied a number of violations
but
the Committee of Ministers supervision focuses mainly on issues
concerning Greek-Cypriot missing persons, and the property rights
of displaced Greek Cypriots and of those enclaved in the “northern
part of Cyprus”, which have been on its agenda since 2001.
39. As regards Greek-Cypriot missing persons and their relatives
(violations of Articles 2, 3 and 5 of the Convention
), the
Committee of Ministers examined this aspect twice since January
2019, at its 1340th (12-14 March 2019)
and 1362nd (3-5
December 2019)
meetings (DH). The Turkish authorities
refer to the work of the Committee on Missing Persons in Cyprus
(“CMP”) and have indicated that they assisted that body in its activities
by facilitating its exhumation activities, contributing financially
to its work and submitting information on possible burial sites.
According to the CMP’s statistics, as of 29 February 2020, it had
found the remains of 1 208 persons and identified 974 persons belonging
to both communities (out of 2 002 missing persons from both communities).
Amongst the identified persons, 700 were Greek Cypriots (out of
1 510 missing Greek Cypriots).
In
June 2019, the Turkish authorities gave the CMP access to 30 additional
sites in military areas in the northern part of Cyprus which could
contain burial sites, and, according to the CMP, there is no time constraint
attached to this decision. According to the Turkish authorities,
a total of 1 050 exhumations have been carried out by the CMP in
the northern part of Cyprus.
At
its 1362nd meeting (DH), the Committee
of Ministers once again underlined that, due to the passage of time,
the Turkish authorities should “advance their proactive approach”
to providing the CMP with all necessary assistance, welcomed the
information concerning the access to 30 additional burial sites
and encouraged the authorities to provide the CMP unhindered access to
all areas that could contain the remains of missing persons, including
in military areas. It also called on them to “advance their efforts”
to provide the CMP
proprio motu and
without delay with all information relating to burial sites and
other places were remains might be found, noted with interest the
information provided on the progress of investigations by the Missing
Persons Unit and invited again the authorities to ensure the effectiveness
of its investigations.
40. Concerning the issue of homes and other immovable property
of displaced Greek Cypriots (violation of Articles 8 and 13 of the
Convention and Article 1 of Protocol No. 1), an “immovable property
commission” (IPC) was set up in the northern part of Cyprus under
Law No. 67/2005 “on the compensation, exchange or restitution of
immovable property”, following the pilot judgment in the
Xenides-Arestis v. Turkey case
. However,
the creation of this body has not solved the problem.
While
the Cypriot authorities maintain that Turkey must introduce measures
to cease all transfers of immovable property belonging to displaced
Greek Cypriots, the Turkish authorities considered that they had
taken all the necessary measures.
At its 1324th meeting (DH) (September 2018),
the Committee of Ministers expressed regret that the Turkish authorities
had not participated in the discussions and that they had not provided
new information on the effectiveness of the measures adopted and
decided to resume consideration of this item in June 2019.
In response to this decision, in
May 2019, the Turkish authorities submitted a memorandum in response
to the Committee of Ministers’ last decision on these issues.
However, no decision
was adopted at the latest examination of these issues in June 2019
(DH).
41. With regard to the property rights of Greek Cypriots still
residing in the northern part of Cyprus (violations of Article 1
of Protocol No. 1 and of Article 13 of the Convention), the Court
criticised the impossibility for Greek Cypriots to retain their
property rights if they had left the north permanently and the failure
to recognise the inheritance rights of persons living in South Cyprus
to property in the north belonging to their deceased relatives.
The Turkish authorities considered that all the necessary measures
had been taken.
At its 1236th meeting
(DH), the Committee of Ministers welcomed those measures, but wished
to further examine the possible consequences on this issue of the
judgment
Cyprus v. Turkey of
12 May 2014 concerning just satisfaction. At its 1355th meeting
(DH) in September 2019, it noted that the latter judgment did not
concern the issue of the property rights of enclaved persons. It
also took note of the possibility for the Greek Cypriots who had
left the north to bring certain proceedings, including before the
IPC, and requested information concerning applications lodged before
the said body. It also decided to consider this aspect of the case
at its DH meeting in June 2020 in order to possibly close its supervision.
42. In its judgment of 12 May 2014 on just satisfaction, the Court
ordered Turkey to pay to Cyprus €30 000 000 for non-pecuniary damage
suffered by the relatives of the missing persons and €60 000 000
for non-pecuniary damage suffered by the enclaved Greek-Cypriot
residents of the Karpas peninsula. The Court indicated that those
sums had to be transferred individually to the victims by the Cypriot
Government, under the Committee of Ministers supervision, within
18 months from the date on which they had been paid or within any
other deadline that the Committee of Ministers would deem appropriate.
To date, no information has been provided regarding the payment
of these sums by the Turkish authorities, although the Committee
of Ministers has issued reminders in this respect at almost each
of its DH meetings
since June 2015. The last decision in
this respect was adopted at the 1362nd meeting
in December 2019.
43. The
Georgia v. Russia (I) case originates in
the political tensions between both countries in the summer of 2006
and concerns the arrest, detention and expulsion from the Russian
Federation of large numbers of Georgian nationals from the end of
September 2006 until the end of January 2007 (violations of Article
4 of the Protocol No. 4 and of Articles 3, 5 paragraphs 1 and 4,
13 and 38 of the Convention).
In
its just satisfaction judgment, the Court held that, within three
months, the Russian Federation was to pay the Government of Georgia
10 000 000 euros in respect of non-pecuniary damage suffered by
the group of at least 1 500 Georgian nationals, who were victims
of the violations of the Convention. The Court indicated that these amounts
should be distributed by the Government of Georgia to the individual
victims under the supervision of the Committee of Ministers within
18 months of the date of the payment or within any other period
considered appropriate by the Committee of Ministers. The deadline
for payment expired on 30 April 2019.
44. The Committee of Ministers examined the execution of the judgment
on the merits (general measures) during its 1250th meeting (DH)
in March 2016, when it requested the Russian authorities to provide
information on the implementation of their action plan.
After the judgment
on just satisfaction had been delivered, the Committee of Ministers
focused on the issue of its payment at its 1355th (23-25 September
2019), 1362nd (3-5 December 2019) and
1369th (3-5 March 2020) meetings (DH).
45. Shortly before the 1355th meeting (DH), the Russian authorities
submitted an action plan,
arguing that
there was no legal basis in the Convention for just satisfaction
awards in inter-State cases. They further questioned the validity
of the list of individual victims submitted to the Court and proposed
that the Committee of Ministers adopt a decision requesting the
Georgian authorities to draw up a final list of victims, to be examined
and approved by the Committee of Ministers before the payment by
the Russian Federation of the just satisfaction. They reiterated
their position in action plans submitted on 30 October 2019 and
7 February 2020.
The Georgian authorities
consequently refuted those arguments and proposals.
At its 1369th meeting,
the Committee of Ministers expressed its serious concern that the
Russian authorities continued to insist on the provision by the
Georgian Government of the precise list of individual victims before
making the payment, which “called into question the above sequence
decided on by the Court”. It also deeply regretted that no payment
had yet been made and underlined the unconditional obligation under
Article 46.1 of the Convention to pay the just satisfaction awarded
by the Court. It also welcomed the initiative of its secretariat
to offer their good offices to find a “pragmatic solution” compliant
with the Court’s judgment and urged the Russian authorities to enter
without delay into detailed consultations with the Secretariat on
the modalities for the payment of the sums awarded together with
the default interest accrued.
4.8. Cases
relating to the situation in Nagorno-Karabakh
46. Since June 2015, the Committee
of Ministers is examining the implementation of two judgments relating to
the military conflict between Armenia and Azerbaijan in Nagorno-Karabakh
between 1988-1994:
Chiragov and Others
v. Armenia and
Sargsyan v. Azerbaijan.
The
Chiragov and Others judgment concerns Azerbaijani
nationals who were forced to flee from their homes in Lachin at
the beginning of the conflict, and were consequently denied access
to their property and homes as well as any redress remedy (continuing violations
of Article 1 Protocol No. 1, Article 8 and Article 13 of the Convention).
The Court found that Armenia exercises effective control over Nagorno-Karabakh
and the surrounding territories, including the district of Lachin,
and that the matters complained of fell within the jurisdiction
of that State.
The
Sargsyan judgment concerns an Armenian
refugee who, because of the conflict, was forced to leave his home
in Gulistan, over which, according to the Court, Azerbaijan has
the internationally recognised jurisdiction. The Court accepted the
Azerbaijani authorities’ refusal to grant civilian access to the
village because of safety considerations, but criticised the lack
of measures aimed at restoring the applicant’s rights in respect
of his property and home and that of any compensation mechanism
(also continuing violations of Article 1 Protocol No. 1, Article
8 and Article 13 of the Convention). In both judgments, the Court
held that “pending a comprehensive peace agreement it would appear
particularly important to establish a property claims mechanism, which
should be easily accessible and provide procedures operating with
flexible evidentiary standards, allowing the applicants and others
in their situation to have their property rights restored and to
obtain compensation for the loss of their enjoyment”.
In
the just satisfaction judgments in both cases, it awarded each applicant
a just satisfaction of 5 000 euros for pecuniary (loss of income
and increased living expenses) and non-pecuniary damage.
47. Several communications from the Armenian and Azerbaijani authorities,
NGOs and the representative of Mr Sargsyan were submitted to the
Committee of Ministers. As regards the
Chiragov
and Others judgment, in December 2019, the Armenian authorities
pointed out that due to the ongoing conflict situation, the lack
of a peace agreement and the security situation, the execution of
this judgment, and in particular the setting up of a compensation
mechanism, was hindered. However, they stressed their openness and
readiness to reach a durable solution and pursue consultations with
the secretariat.
The Azerbaijani
authorities provided a reply to this submission,
but, as regards
the
Sargsyan case, they have
not provided new information since March 2017, when they informed
the Committee of Ministers about the establishment of a Working
Group on Evaluation of Loss and Damages.
The
Committee of Ministers examined these two cases at the 1280th (7-10
March 2017), 1362nd (3-5 December 2019)
and 1369th (3-5 March 2020) meetings (DH).
At
the latter meeting, it decided to resume consideration of these
cases at one of its forthcoming meetings in 2020, as detailed consultations
between its secretariat and the authorities of both States are expected
to take place.
5. Cases
concerning the States examined in the 2017 report by Mr Le Borgn’
48. The main judgments examined
under the enhanced supervision of the Committee of Ministers and concerning
the nine member States mentioned above in Section 3 (excluding Azerbaijan,
which did not appear in the previous “top ten”) and in the 2017
report by Mr Le Borgn’s are listed in Appendix 1 of the addendum
to the present report. A brief analysis of the main cases concerning
the nine States in question yields the observations presented in
this chapter.
Other cases concerning these nine
countries, which are currently under the enhanced procedure of the
Committee of Ministers are listed in the table of cases and group
of cases prepared by the Committee of Ministers for its 1362nd meeting
in December 2019 (
DH-DD(2019)636-rev2E of 21 November 2019). Cases concerning Azerbaijan (under
the enhanced procedure) are presented in Appendix 2 of the addendum
to this report; most of these cases concern complex or structural
problems and have been pending for over five years.
49. The implementation of the main cases or groups of cases concerning
the
Russian Federation (under enhanced
supervision) has been presented in an information document
(AS/Jur(2020)05 declassified) of 23 January 2020. This shows that since
May 2017, the Russian authorities have taken a number of individual and
general measures to implement the Court’s judgments, in particular
those concerning poor conditions of detention in remand centres
(
Kalashnikov group of cases
and the pilot judgment in the case of
Ananyev
and others), excessive
length of remand detention and other violations of Article 5 of
the Convention (
Klyakhin group
of cases), acts of torture and ill-treatment during custody (
Mikheyev group of cases) and secret, extrajudicial
extraditions and expulsions (
Garabayev group
of cases). Nevertheless, some major long-standing problems remain
unresolved, in particular for the above-mentioned
Klyakhin and
Mikheyev groups of cases, the case
concerning repeated bans on gay prides (the
Alekseyev case)
and those relating to the actions of security forces in the North
Caucasus (
Khashiyev and Akayeva group
of cases), an issue which has been examined in more detail by different
Assembly rapporteurs.
50. As for
Turkey and
Ukraine, the implementation of
the most problematic judgments concerning these countries has been
described in an information document
(AS/Jur(2010)02
declassified) of 22 January 2019. Concerning
Turkey, as
regards violations of freedom of expression (former
Inçal group), notably due to disproportionate
use of the criminal law to punish persons who express critical or
unpopular opinions and detention of journalists in the absence of
relevant and sufficient reasons, in March 2020, the Committee of Ministers
considered that no concrete progress on general measures had been
achieved for a long time, although it took note of the newest information
provided by the Turkish authorities.
It invited
the authorities to send a high-level political message to underline
that freedom of expression is valued in Turkish society and that
the criminal law should not be used in such a way as to restrict
it. The Committee of Ministers further instructed the Secretariat
to prepare a draft interim resolution in the absence of signs of
concrete progress by the next examination of the cases concerning
these problems. Moreover, the Committee of Ministers is still waiting
for additional information on individual or general measures taken
or envisaged in the groups of cases concerning repeated imprisonment
for conscientious objection (
Űlke group),
the ineffectiveness of investigations into the actions of security
forces in violation of Articles 2 and 3 of the Convention (
Bati group)
, the excessive use of force to
disperse peaceful protests (
Oya Ataman group)
and the authorities’ failure to provide
protection from domestic violence (
Opuz group).
Following the adoption of execution measures by the Turkish authorities,
the examination of the
Söyler judgment,
concerning the withdrawal of the convicts’ right to vote, was closed
in June 2019
and
that of three cases from the group
Hulki
Gűneş, concerning unfair convictions – in December 2019.
51. In the case of
Ukraine,
the major long-standing problem of the failure to execute domestic
judicial decisions or delaying their execution (
Zhovner/
Yuriy
Nikolayevich Ivanov/Burmych group) has persisted for over
eighteen years. At its 1369th meeting (DH) in March 2020, the Committee
of Ministers noted the progress made in the payment of compensation
to the applicants in the
Burmych case,
but deeply regretted the significant delays in ensuring payment
and called upon the authorities to speed up their payment process
to all the applicants in this case. As regards general measures,
it took note of the recent legislative amendments and other measures
taken, but reiterated its “utmost concern at the lack of further
tangible action in adopting the relevant institutional, legislative
and other practical measures” and deplored the lack of information
on the adoption of the National Strategy, the mandate of the Legal
Reforms Commission and the body, at the highest political level,
which should be responsible for taking the lead in this matter.
It underlined that
the Ukrainian authorities should demonstrate “sustained political
commitment at the highest political level” and called upon them
to achieve rapid progress and introduce all necessary measures until
this problem is fully resolved.
As for
the other judgments mentioned in the report of my predecessor, the
Committee of Ministers noted some progress made in implementing
judgments concerning ill-treatment inflicted by police officials
(
Afanasiyev and
Kaverzin groups)
, shortcomings
in the legislation governing the use of detention on remand and
its application (
Ignatov group)
and the lack of impartiality
and independence of judges (
Oleksandr
Volkov group of cases)
. However,
little progress has been achieved on long-standing problems such
as poor detention conditions (
Nevmerzhitsky and
Kuznetsov groups of cases), excessive
length of judicial proceedings (
Svetlana Naumenko and
Merit groups of cases)
, violations
of freedom of assembly
(Vyerentsov group
of cases
) and the domestic
investigation in the
Gongadze case
(examined by the Assembly in 2009).
By a decision
of 1 April 2020 (No. 258), the Cabinet of Ministers established
a special commission on the implementation of the Court’s judgments,
composed of members of the executive and of the parliament
.
52. The implementation of judgments against
Romania has been presented in an
information document
(AS/Jur(2019)52
declassified) of 12 December 2019. As regards the judgments concerning
the authorities’ failure to provide restitution or compensation
for nationalised property (
Strain and
Maria Atanasiu), the Committee
of Ministers is still awaiting information on outstanding issues
related to the compensation mechanism introduced in response to
these judgments. Progress has been observed regarding problems of excessive
length of proceedings and the lack of an effective remedy in that
regard (
Vlad and Others group
of cases) as well as some of those raised by the judgments
Association ‘21 December 1989’ and others,Ţicu, Centre for Legal Resources on behalf
of Valentin Câmpeanu and
Bucur
and Toma. As regards non-implementation of domestic court
decisions, although the Committee of Ministers decided to close
the cases from the groups
Ruianu and
Strungariu, it still deplores the
lack of relevant measures concerning non-implementation of domestic
decisions delivered against the State or its entities (
Săcăleanu group of cases). Finally,
as regards the longstanding structural problems of overcrowding
and inhuman and degrading conditions of detention in prisons and
police arrest and detention centres as well as the lack of an effective remedy
in this respect (
Rezmiveș and others and
Bragadireanu group), a “significant
progress” has already been achieved, in particular in reducing overcrowding.
However, additional measures “underpinned by a strong and enduring
commitment at high political level” are required to resolve these
problems.
At its 1369th meeting (DH) in March
2020, the Committee of Ministers expressed regret that the recent
political developments, namely the parliament’s vote on withdrawing
confidence from the government, had prevented it from presenting
a new action plan, in line with the assurances given by the authorities
at the previous DH meeting.
Concerning the issue of effective
remedy, in December 2019 and March 2020, the Committee of Ministers
regretted the abolition of the compensatory mechanism in the form
of reduction of sentences without providing alternative Convention-compliant
remedies, which had resulted from a decision of the parliament of 4
December 2019; it stressed that this measure would imply a risk
of a new massive influx of repetitive applications before the Court,
which would pose threat to the effectiveness of the Convention system.
In view of the seriousness of the situation, it called on all relevant
authorities to use all existing legal avenues and the developing
case-law of the courts, notably as regards the State’s extra-contractual
liability, to ensure the existence of effective domestic remedies
with compensatory effect pending the adoption of the necessary reforms.
53. A detailed analysis of the state of implementation of the
main judgments concerning
Hungary and
Italy has been presented in an
information document
(AS/Jur
(2019)19 declassified) of 10 April 2019. As regards
Hungary,
no concrete progress has been achieved concerning the structural
problem of excessive length of judicial proceedings and the lack
of an effective remedy in this respect, which has been examined
since 2003. More than three years after the deadline set in the
Gazsó pilot judgment on 16 July
2015,
no legislation providing
for an effective remedy has been adopted, which the Committee of
Ministers criticised at its 1369th meeting in March 2020.
It therefore instructed
the Secretariat to prepare a third draft interim resolution for consideration
at its 1377th meeting (DH) in June 2020, should no tangible progress
be achieved by then. With regard to poor detention conditions due
to overcrowding in detention facilities, the authorities had taken
a number of measures to solve this problem and preventive and compensatory
remedies were introduced in 2017, which led to the rejection of
thousands of similar cases pending before the Court. Following the government’s
announcement in January 2020 to review the remedies, the Council
of Europe’s Director of Human Rights wrote a
letter to the Minister of Justice. In February 2020, the authorities
informed the Committee of Ministers that they would continue to
provide domestic preventive and compensatory remedies in conformity
with the relevant domestic laws in force pending the review of the
current regime.
As regards the
implementation of the
Horváth and Kiss judgment
concerning the discriminatory placement of children of Roma origin
in schools for mentally disabled children during their primary school
education, although the authorities provided information on numerous
general measures taken and planned, in the last five years they have
failed to provide relevant statistics on the evolution of the number
of Roma children in special schools, which the Committee of Ministers
criticised during the latest examination of this case at its 1348th
meeting (DH) in June 2019.
54. As regards
Italy, significant
progress has been noted as regards the implementation of judgments concerning
the chronic problem of excessive length of judicial proceedings
(see the
Trapani,
Leddone No. 1,
Abenavoli and
Collarille
and Others groups), which has allowed for the closure
of many cases in which individual measures were no longer required.
Regarding the lack of an effective remedy in this respect, the Committee
of Ministers still examines the issue of shortcomings of the 2001
“Pinto” remedy (
Olivieri and Others group)
and during its 1355th meeting (DH) in September 2019, took note
of the latest information provided concerning outstanding questions.
As regards
the judgment
Sharifi and Others v. Italy
and Greece concerning collective expulsion of migrants
in the port of Ancona
, at
its 1369th meeting (DH) in March 2020, the Committee of Ministers
took note of the information provided on the individual and general
measures taken, noted with concern information coming from NGOs
about new incidents of collective expulsion and requested the Italian
authorities to provide a consolidated action plan/report.
In December 2019,
the Committee of Ministers closed the examination of the cases from
the
Cirillo and
Scoppola groups concerning the lack
of appropriate medical care in prisons
. Since the end of 2013,
the Italian authorities have made efforts to implement the judgment
in the case of
M.C. and others, concerning
the retrospective invalidation of an annual adjustment of an allowance
for families of victims of accidental contaminations by viruses.
55. As regards
Greece,
some progress has been achieved with regard to cases concerning
the absence of an adequate legislative and administrative framework
governing the use of force, including firearms and ill-treatment
by members of law enforcement agencies (
Makaratzis group
of cases), pending before the Committee of Ministers since 2004.
The Committee of Ministers has requested more information on some individual
measures (disciplinary and criminal proceedings or their reopening)
and general measures, including changes to torture-related legislation
and case-law.
As regards the
group of cases concerning conditions of detention of migrants and
asylum procedures (
M.S.S. v. Belgium
and Greece group), during its latest examination at its
1348th meeting (DH) in June 2019, the Committee of Ministers decided
to close 17 cases in which no further individual measures were required.
With regard to general
measures, it welcomed the Greek authorities’ efforts to improve
the national asylum system, to improve asylum seekers’ living conditions and
the reception and protection of unaccompanied minors, but also expressed
some concerns in this respect. As regards conditions of detention,
although immigration detention facilities visited by the Committee
for the Prevention of Torture or Degrading or Inhuman Treatment
(CPT) in 2018 provided decent conditions, the Committee of Ministers
expressed serious concern at the fact that a number of other immigration
facilities and police stations seemed to be below Convention standards,
and that the detention of unaccompanied minors persisted. However,
it closed the examination of the issue of an effective remedy to
complain about conditions of detention, following the development
of domestic case law.
The Committee of Ministers
has also been examining since 2011 a group of cases concerning poor
detention conditions in prisons and the lack of an effective remedy
in this respect (
Nisiotis group),
for the implementation of which the authorities announced the ‘Strategic
Plan for Prisons for 2018-2020’. At its 1324th meeting (DH) in September
2018, the Committee of Ministers expressed concern about a high
number of applications pending before the Court concerning this problem
and invited the authorities to provide information about the content
of the ‘Strategic Plan for Prisons for 2018-2020’ as well as its
implementation.
On 9 April 2020,
the CPT published its newest report on its seventh periodic visit
to Greece, in which it raised criticism concerning the issues covered
by the three above-mentioned groups of cases.
Besides that, the
judgments concerning violations of the right to freedom of association
resulting from the Greek authorities' refusal to register associations
promoting the idea of the existence of an ethnic minority as distinct
from the religious minorities recognised by the 1923 Treaty of Lausanne
(
Bekir-Ousta group) remains
unimplemented for more than eleven years. In September 2019, the Committee
of Ministers deplored the fact that the applicants’ applications
have still not been re-examined by domestic courts on their merits
in light of the Court’s case law; two of the present associations
remain unregistered and one was dissolved. It was also concerned
about the 2018 judgment of the Thrace Court of Appeal rejecting,
on procedural grounds, the request for re-examination of the order
dissolving the applicant association in
Tourkiki
Enosi Xanthis and Others. Therefore, the Committee of
Ministers urged the authorities to rapidly take all the necessary
individual and general measures.
Similar questions
have been under the Committee of Ministers’ supervision since 2015
in
House of Macedonian Civilization and
Others . It is noted that this is the
second judgment, following that of
Sidiropoulos
and Others of 1998,
concerning the same association in which the Court found a violation
by Greece of Article 11 of the Convention. Nevertheless, progress
has been achieved with regard to the individual and general measures
in the
Beka-Koulocheri group of
cases concerning the failure to execute domestic judicial decisions
concerning expropriation orders, which the Committee of Ministers
noted at its 1369th meeting (DH) in March 2020.
56. As regards the implementation of judgments against the
Republic of Moldova, several cases mentioned
in Mr Le Borgn’s report have been closed following the adoption
of execution measures: the
Genderdoc-M judgment
concerning unjustified ban on a demonstration promoting the rights
of LGBTI persons,
the
group of cases
Taraburca concerning
ill-treatment by police in response to post-election demonstrations,
the groups of cases concerning
arbitrary arrest and detention in the context of criminal and administrative
proceedings (
Muşuc, Gutu and
Brega)
and the group of cases concerning non-enforcement of
domestic judgments (
Luntre). Significant
progress has been achieved with regard to the cases concerning failure
to provide protection from domestic violence (formerly
Eremia group of cases,
now
T.M. and
M.C. case)
and
ill-treatment inflicted by the police during detention and lack
of an effective remedy in this respect (formerly the
Corsacov group, now examined as
the
Levinta group).
Some
positive developments have been noted with regard to cases concerning
poor conditions of detention in remand facilities and prisons and
the lack of an effective remedy in this respect (formerly the
Ciorap group,
general measures
now being examined in the context of the
I.D. judgment).
As regards the case concerning various violations
of Article 5 of the Convention, arising notably from the lack of
sufficient reasoning of the grounds for applying or prolonging detention
on remand (
Sarban group),
at its 1348th meeting (DH) in June 2019
, the Committee
of Ministers decided to close the examination of 23 cases in which
no more individual measures were required,
but remained concerned
about the fact that the general measures adopted so far had not
yet resulted “in any clear and tangible improvements in judicial
practice as concerns the giving of reasons for detention on remand”.
57. For
Bulgaria, the examination
of most of the cases concerning excessive length of civil and criminal proceedings
and the lack of an effective remedy in that regard (groups of cases
Djangozov and
Kitov)
was finally closed in December 2017.
However, the situation of the
most overburdened courts is still examined by the Committee of Ministers
under standard supervision.
Regarding
the other problems raised in Mr. Le Borgn’s report, significant
progress has been made in implementing the groups of cases relating
to poor conditions of detention, in particular as concerns the problem
of overcrowding (
Kehayov group
of cases and
Neshkov and others pilot
judgment)
and in the cases relating to expulsions
of foreigners in violation of their rights to respect for family
life (
C.G. and Others group).
At
the 1369th meeting (DH) in March 2020, the Committee of Ministers
assessed the implementation of the
Yordanova
and Others group of cases concerning eviction of persons
of Roma and other origins, took note of the individual and general
measures taken in this group of cases, but stressed that there was
still no clear legal framework for proportionality assessment of demolition
orders.
Concerning ill-treatment
by law enforcement officials (
Velikova group),
some progress has been achieved, but in September 2019, the Committee
of Ministers stressed that persons detained by the police were still
under a considerable risk of ill-treatment, that these cases were
pending before it for over 19 years and urged the authorities to
adopt the necessary general measures.
The lack of significant
progress was also pointed out in the cases
S.Z.
and Kolevi, concerning the existence of a systemic problem
of ineffectiveness of criminal investigations and lack of guarantees
for the independence of an investigation concerning a Chief Prosecutor;
at its 1362nd meeting (DH), on 5 December 2019, the Committee of
Ministers adopted Interim Resolution
CM/ResDH(2019)367, in which it urged the authorities to adopt reforms,
and, if necessary, constitutional amendments. As regards the cases
from the group
UMO Illinden and Others (concerning
unjustified refusals to register an association the aim of which
is to achieve “the recognition of the Macedonian minority in Bulgaria”),
the Committee of Ministers did not consider as sufficient the execution measures
taken by the authorities.
The
Stanev group of cases concerning
placement in social care homes of persons with mental health disorders
has not been examined by the Committee of Ministers since the 1288th DH
meeting in June 2017.
6. General
data on the implementation of the Court's judgments between 2017
and 2020 and new developments
58. According to the 2019 Annual
report
, as of 31 December
2019, a total of 5 231 judgments and decisions were pending before
the Committee of Ministers at different stages of execution. This
shows a decrease in the number of pending cases in comparison with
the end of 2018 (6 151) and 2017 (7 584) and with the peak that
had been reached in 2012-2013 with 11 099 cases. Out the 5 231 judgments
there are 1 245 leading cases,
down
from 1 292 in 2018 and 1 379 in 2017 (a peak of 1 555 leading cases
pending was reached in 2015). At the end of 2019, there were 306
leading cases under enhanced supervision of the Committee of Ministers
in comparison with 309 in 2018 and 317 in 2017.
59. At the end of 2019, the Committee of Ministers was examining
2 334 cases under enhanced supervision (leading and repetitive cases
altogether), compared with 2 794 in 2018 and 3 849 in 2017. 635
leading cases (supervised under both standard and enhanced supervision)
had been pending for more than 5 years, compared to 675 such cases
in 2018, 718 in 2017 and the peak of 720 cases in 2016. As concerns
leading cases pending for more than 5 years under enhanced supervision,
the breakdown by countries is as follows: the Russian Federation
(38), Ukraine (38), Turkey (21), Romania (15), Bulgaria (13), Azerbaijan
(11), Italy (9), Greece (6), the Republic of Moldova (6) and Poland
(6).
60. The 2019 Annual Report report shows that, between 2010 and
2019, there were 2 120 new judgments in leading cases whilst 2 287
such cases were closed, representing a closure rate of 108% (in
relation to the new cases in the same period). Between 2000 and
2010, by comparison, there were 1 470 new leading cases and only
602 such cases were closed – a closure rate of 41%.
61. The number of cases closed in 2019 (2 080, including 214 leading
cases) was slightly lower than in 2018 (2 705, including 289 leading
cases) and 2017 (a record number of 3 691, including 311 leading
cases). The cases closed in 2019 (the majority of which are repetitive
ones) concerned mainly Turkey (732), Ukraine (443), the Russian
Federation (162), Romania (113), Italy (85), Greece (84), Hungary
(77), Bulgaria (56), the Republic of Moldova (41), Poland (41) and
Serbia (35).
62. With regard to the main themes under enhanced supervision,
at the end of 2019, over half the cases related to five major problems:
actions of security forces (17%), the lawfulness of detention on
remand and related issues (10%), specific situations linked to violations
of the right to life and ill-treatment (9%) conditions of detention
and lack of medical care (8%), and excessive length of judicial
proceedings (8%). These are followed by other interferences with
property rights (7%), non-execution of domestic judicial decisions
(5%), lawfulness of expulsion or extradition (4%), violations of
freedom of assembly and association (4%) and of freedom of expression
(4%). As stressed in the 2019 Annual Report, by the end of 2019
the share of cases concerning excessive length of judicial proceedings
had decreased to 8% (in comparison with 22% in 2011), which may
be due to the introduction of effective remedies at national level.
Together, these themes cover 76% of the cases pending before the
Committee of Ministers under enhanced supervision. For 81% of these
cases, the breakdown by country is as follows: Russian Federation
(19%), Ukraine (17%), Turkey (11%), Romania (8%), Italy (6%), Bulgaria
(6%), Azerbaijan (5%), Poland (3%), Greece (3%) and Hungary (3%).
64. The 2019 Annual Report also shows that the notion of “shared
responsibility” for the implementation of the Convention norms works
well with an increased involvement in the process before the Committee
of Ministers of national actors, including ombudsman institutions
and civil society, and at the Council of Europe, of other bodies,
including the Commissioner for Human Rights, the CPT, the Venice
Commission, the European Commission against Racism and Intolerance
(ECRI), the Council of Europe Development Bank (which was one of
the founders of the HRTF) and, last but not least, the Assembly
itself. The case of
Zorica Jovanović
v. Serbia,
concerning the disappearance
of new-born babies from maternity wards, is a good example in this
context: following good cooperation between the Serbian authorities
and the Council of Europe, legislation setting up an investigatory
mechanism to establish the fate of those babies was adopted at the beginning
of 2020.
65. As stressed in the 2019 Annual Report, the progress achieved
in the second decade of this century is particularly apparent when
compared to the previous decade which followed the ministerial conference
in Rome in November 2000 marking the 50th anniversary of the Convention.
This shows the efficiency of the Interlaken process started in 2010
and the impact of Protocol No. 14 to the Convention, which entered
into force in June 2010, in response to the extremely critical situation
of the Court and over 10 000 judgments pending before the Committee
of Ministers.
66. The reforms of the Committee of Ministers’ working methods
introduced in 2011 were presented in the reports of my predecessors.
Since 2017, other developments have taken place, some of which have
been described above (see section 2). At the political level, the
Copenhagen
Declaration, adopted at a high-level conference in April 2018 and
subsequently endorsed by the Committee of Ministers at the Copenhagen Ministerial
Conference on 11-12 May 2018, stressed again the “extraordinary
contribution” of the Convention system to the protection and promotion
of human rights and the importance of a “strong political commitment” of
the States Parties to the Convention to implement the Court’s judgments
and called on them to strengthen their capacity for effective and
rapid execution at the national level and that of Council of Europe
for offering technical assistance to States facing challenges in
this process.
It also encouraged
the organisation of thematic debates, which was subsequently continued
– the Committee of
Ministers held a second thematic debate on effective investigations
into actions of security forces on 12 March 2019. Moreover, the
Copenhagen Declaration called on the States Parties to the Convention
to ensure parliaments’ involvement in ensuring that policies and
legislation are fully compliant with the Convention.
67. On 16 October 2019, the Committee of Ministers updated its
Recommendation CM/Rec(2004)4 to the member States on the European
Convention in university education and professional training by
adopting a new Recommendation
CM/Rec(2019)5. It also asked the Steering Committee for Human Rights
(CDDH) to consider updating other relevant recommendations before
the end of 2021. In November 2019, the CDDH presented its contribution
to the evaluation of the Interlaken process.
It concluded that
the process allowed the Convention system’s capacity to meet new
challenges and considered that no major revision of it was needed.
It also stressed the need to increase the necessary resources both
at the national and the international (the Court and the Department
for the Execution of Judgments) level and to enhance the contribution
of national parliaments to the execution of the Court’s judgments.
The Committee of Ministers’ evaluation of the Interlaken process
is still underway.
68. As regards parliamentary involvement, more information can
be found in the appendix to my information document
AS/Jur(2019)45 of 8 November 2019, which summarises information received
from 27 national delegations to the Assembly. It follows that many
national parliaments still lack permanent structures to monitor the
implementation of the Court’s judgments and the Convention’s implementation
in general. As regards the Assembly Secretariat’s activities, the
Parliamentary Project Support Division (PPSD) has organised a number of
seminars for members of parliaments and their staff on the role
of national parliaments in implementing the standards of the Convention.
A handbook on “
National
Parliaments as Guarantors of Human Rights in Europe” for parliamentarians was published in 2018 and is now
available in 11 languages. The Assembly’s role in monitoring the
implementation of the Court’s judgments has been emphasised in its
recent
Resolution
2277 (2019) “The role and mission of the Parliamentary Assembly:
main challenges for the future” of 10 April 2019.
7. Conclusions
69. As stressed in the 2019 Annual
Report recent reforms have enabled the Committee of Ministers to successfully
close pending cases more quickly. Their number is falling steadily.
However, a considerable number of leading cases have still not been
executed, which is due to deeply rooted problems such as continuing
political interest, persistent prejudice against certain groups
in society, inadequate national organisation or lack of necessary
resources.
The above overview of the long-standing
problems in the nine countries analysed in the 2017 and 2015 reports
of my predecessors shows that the majority of “old” cases, that
is non-implemented for at least five years, have still not been
fully implemented. Since the adoption of the report by Mr Le Borgn’
in May 2017, only a few of these cases concerning mainly Turkey,
Italy and the Republic of Moldova, have been closed. Many of the
cases mentioned in that report have now been pending for over ten years
or even more (for example,
Cyprus v.
Turkey since 2001). It is also worrying that in the case
of some long-standing structural problems revealed by the Court’s
judgments some States have moved backward (for example, Romania
as regards poor conditions of detention, due to unexpected political
developments).
70. As shown in Section 4 of this report, there are still persistent
difficulties in the execution of certain judgments linked to the
absence of political will or even an open disagreement with a judgment
of the Court, especially when it comes to inter-State cases or cases
having inter-State features. However, as regards the cases described
in Mr Le Borgn’s report as “pockets of resistance”, since 2017,
progress has been achieved in some of them (Sejdić
and Finci v. Bosnia and Herzegovina, Paksas v. Lithuania, Al-Nashiri and Husayn v. Poland, the implementation
of which depends also on the political will of a non-Council of
Europe member State, and, finally, Ilgar
Mammadov (No. 1) v. Azerbaijan). In the Inter-States
cases or cases related to territorial disputes between Council of
Europe member States (Catan v. Moldova
and Russia, Sargsyan v. Azerbaijan and Chiragov and Others v. Armenia),
progress has been slow or non-existent. This situation reveals the
persistence of the involvement of the political or national interests
in the execution of the judgments of the Court.
71. The main “pocket of resistance” case is certainly the OAO Neftyanaya Kompaniya YUKOS v. Russia case
not only because of the considerable amount of money which has to
be paid but also because of the political feature and issues involved.
The authorities’ systematic resistance to the payment of just satisfaction awarded
by the Court brought about changes at highest normative level (the
Constitution). Thus, the implementation of this judgment has become
even more difficult. A strong resistance was also observed as regards
the implementation of the judgment Ilgar
Mammadov v. Azerbaijan (No. 1), but it looks like the
first ever use of the infringement procedure under Article 46, paragraphs
3 to 5, of the Convention, coupled with political pressure from
different international actors, made the Azerbaijani authorities,
including the judiciary, reconsider their previous position. I hope
that following the recent acquittal of MM. Mammadov and Jafarov,
the negative consequences of the violations of the Convention for
the other six applicants from this group of cases will be erased
as soon as possible. I also encourage the Committee of Ministers
to make use of the procedure from Article 46, paragraphs 3 to 5,
of the Convention for other important cases, in which a defendant
State obstinately resists taking required execution measures; however,
this should be done only sparingly and in very exceptional situations.
In general, the Committee of Ministers should continue to make use
of its usual instruments of peer pressure such as interim resolutions
or repeated examination of cases at the DH meetings, not only to
express its political disagreement with the State’s insufficient
action, but also to give more visibility to the issues at stake.
Civil society and national institutions for the promotion and protection
of human rights should be encouraged to take part in the process
of the Committee of Ministers’ supervision of the implementation
of judgments, by submitting communications on individual and general
measures. More systematic co-operation with them is strongly encouraged.
72. States Parties to the Convention have achieved a certain progress
in ensuring compliance with the Convention by undertaking important
reforms following the Courts’ judgments. However, despite the optimistic data
presented in the 2019 Annual Report, many new and old challenges
lie ahead. States should continue to be engaged and proactive, at
all levels of power, in the process of implementation of the Court’s
judgments and should fully co-operate with the Committee of Ministers,
the Department for the Execution of Judgments and other relevant
bodies of the Council of Europe. If the execution measures are not
adopted or if they do not provide redress in practice, this will
lead to new applications being lodged with the Court, followed by
new judgments finding more violations of the Convention, leading
to a more rigorous supervision of the Committee of Ministers. Parliaments
have a special role in this respect, as the above overview of cases
shows – many judgments concerning complex or structural problems
have not been implemented because of a lack of legislative measures.
Many parliaments still have not established special structures to
examine the compatibility of draft legislation with the Convention
and to systematically monitor the implementation of the Court’s
judgments concerning their countries, neither have they organised
regular parliamentary debates on this subject. It is important that
we, as parliamentarians, have the possibility to question governments
on their actions related to execution measures, including the elaboration
of action plans/reports, if need be. The Assembly should continue
to promote the idea of establishing parliamentary structures devoted
to ensuring compatibility of draft legislation with the Convention
and the Court’s case law, in line with its previous resolutions
such as
Resolution 2178
(2017) “The implementation of the Court’s judgments” and
Resolution 1823 (2011) “National parliaments: guarantors of human rights in
Europe”. Moreover, we, as individual members of the Assembly, have
a special role in promoting these measures and in raising awareness
of the Convention standards’ in our national parliaments.
73. This year marks the 70th anniversary of the signing of the
European Convention on Human Rights, “the first post-war treaty
to provide for supranational decision-making” and a “living instrument
to be read in light of present-day conditions”.
States have incorporated the Convention
into national law and the direct effect of the Court’s judgments
in the concerned States Parties to the Convention as well as of
its case law in general has been increasingly recognised. However,
it is regrettable that, seven years after its adoption, Protocol
No. 15 to the Convention, which reinforces the principle of subsidiarity,
has still not been ratified by all States Parties to the Convention.
As regards Protocol No. 16, reinforcing
the possibility for dialogue between the highest national courts
and the Court through a new possibility of seeking advisory opinions,
only 15 States Parties to the Convention have ratified it.
Therefore,
the Assembly should also call on member States to ratify these two
protocols as soon as possible.
74. The rule of law must be coupled with accountability if it
is to have any real effect and States must assume responsibility.
What has become evident in the drafting of this report is that national
and political priorities often render the judgments of the Court
ineffective. In many cases, the timid reaction of the Committee
of Ministers in the non-execution of the Court’s judgments, perplexes
the situation even more and renders the enforcement of the process
of Article 46 of the Convention imperative, as a response to the
persisting reluctance to implement the Court’s judgments.