Doc. 8253

29 October 1998

Execution of certain judgments forwarded to, or certain cases pending before the Committee of Ministers

Reply from the Committee of Ministers

to Written Question No. 378

by Mrs Ragnarsdóttir, MM. Clerfayt, Hagård and Jurgens

I.       Written Question No. 378 (10 September 1998)

Mrs Ragnarsdóttir, MM. Clerfayt, Hagård and Jurgens,

Observing that member states of the Council of Europe have the obligation to abide by the decisions of the European Court of Human Rights and the subsequent decisions of the Committee of Ministers in respect of findings of Human Rights violations;

Noting that this entails, where necessary, that the respondent State undertakes general measures in order to avoid the repetition of the violation found and individual measures aimed at full reparation of the damage caused by the violation;

Considering that the necessary measures should be taken without any undue delay to ensure respect with the obligations set up under the Convention;

Observing that the Committee of Ministers supervises the execution of all violations found by the Convention Organs;

Taking into account that the Committee of Legal Affairs and Human Rights of the Assembly is preparing a report on the execution of judgments of the Court and the monitoring of the case-law of the European Court and Commission of Human Rights;

Considering that the replies by the Committee of Ministers may provide valuable pointers for the committee's rapporteur.

I. Old cases:

Observing that the following cases have been pending before the Committee of Ministers for more than 3 years without any resolution having been issued explaining what measures have been taken or are envisaged in order to execute them adequately:

Gaskin v. the U.K. (judgment of 7 July 1989)

De Geoffre de la Pradelle v. France (judgment of 16 December 1992)

Modinos v. Cyprus (judgment of 22 April 1993)

Poitrimol v. France (judgment 23 November 1993)

Holm v. Sweden (judgment of 25 November 1993)

Keegan v. Ireland (judgment of 26 May 1994)

To ask the Committee of Ministers:

To explain the length of time necessary for full execution in the above-mentioned cases and to provide information on the current situation in these cases.

II. Cases appearing to require special measures for the applicant:

Furthermore, noting that pending before the Committee of Ministers are a number of special cases in which mere payment of just satisfaction does not appear sufficient to repair fully the damage caused by the violation found, notably Hakkar v. France, the Socialist Party and others v. Turkey and the United Communist Party of Turkey and others v. Turkey;

Observing that in the Hakkar case the Committee of Ministers found on 15 December 1995 several violations of Article 6 of the European Convention on Human Rights, on the grounds that in criminal proceedings against the applicant he did not enjoy the right to legal assistance of his own choosing and that the appointed official defence lawyers did not have time and facilities to prepare his defence;

Observing that the applicant was sentenced to a life imprisonment and is still, 3 years after the finding of the violation, in prison,

To ask the Committee of Ministers:

If it accepts the applicant's situation and, if not, what practical measures France envisag

es to remedy that situation.

Observing that in the Socialist Party and others v. Turkey case (judgment of 25.5.1998) and the United Communist Party of Turkey and others v. Turkey (judgment of 30.1.1998) case the European Court of Human Rights found that the Turkish Constitutional Court had violated Article 11 of the Convention by dissolving the applicant political parties,

To ask the Committee of Ministers:

If Turkey envisages any measures to allow the applicant political parties and their leaders to resume their political activities.

II.       Reply from the Committee of Ministers (22 October 1998)

I.        Before going into the details of Written Question N° 378, the Committee of Ministers recalls that it has adopted Rules for the application of Article 54 of the Convention which provide for including all new Court judgments on its agenda without delay for the purpose of supervising execution and, at intervals of not more than 6 months, the measures taken by the respondent State in order to abide by the judgment. It also recalls that this supervision takes place, in principle, at every human rights meeting if there is a problem concerning the just satisfaction due to the applicant.

According to the practice of the Committee of Ministers, the supervision of the execution of decisions taken under Article 32 of the Convention is carried out in the same way.

II.       With regard to the first point raised concerning the length of time needed to execute certain cases, two possible types of explanation may be given.

(A)       First, the length of time taken to execute certain judgments can be explained by the extent of the reforms undertaken by the States concerned in order to draw all the consequences of the judgments of the Court.

In the Gaskin case, concerning access to certain records held by social authorities, the UK government has been preparing a broad comprehensive reform of the law governing public access to documents held by the authorities. In the meantime, the UK has been able to give partial effect to the judgment through the Access to Personal Files (Social Services) Regulations 1989, made under the Access to Personal Files Act 1987, and through Local Authority Circular LAC(89)2 (see paragraph 29 of the Court’s judgment).

When the Committee of Ministers last examined this case in September 1998 (640th meeting), the Royal Assent had just been given to the Data Protection Act 1998. The Act gives effect to the Gaskin judgment both in respect of computerised personal records and personal information in manual records held by certain public authorities. It is anticipated that the provisions relating to information held in manual records will enter into force in the middle of 1999.

The De Geouffre de la Pradelle case, concerning access to the French Conseil d’Etat with a view to contesting the lawfulness of certain administrative acts and notably the question of informing persons affected by site classification measures, resulted in comprehensive reform of the relevant regulations. As from 1994, pending completion of this reform, the Ministry of Equipment gave instruction to prefects to publicise decisions on classification in town halls and the local press.

The case of Vereinigung Demokratischer Soldaten Österreichs and Gubi, concerning the Austrian Defence Minister’s refusal to allow the distribution of a journal among military personnel and the prohibition of a conscript to distribute it, as well as the absence of effective remedy, led to the drafting of comprehensive new legislation on the powers of the military authorities, including a new tribunal to deal with complaints concerning the rights of military personnel. Several Ministries are involved in the drafting of this legislation.

In the Keegan case, which concerns the adoption of a child without informing its natural father, the Irish authorities informed the Deputies that the issue raised by the Court’s judgment was to be solved in the context of a legal reform of the right of adoption. The Bill was ready in 1996 and was adopted on 29 April 1998 and will shortly be examined by the Deputies.

(B)        Secondly, the length of time can be explained by difficulties encountered by member States in implementing reforms and/or by the fact that it can be justified, in certain specific circumstances, to await the outcome of other similar cases still pending before the organs of the Convention in order further to clarify the requirements of the Convention in the relevant area and thus facilitate the adoption of appropriate measures in execution of the judgments.

This is so in the Poitrimol case, which concerns certain unjustified consequences of the principle in French law according to which an accused person failing to comply with an arrest warrant cannot exercise the right to appeal to the Cour de cassation. The compatibility of this principle with the Convention has been clarified by two further judgments of the Court, the Omar and Guérin cases against France (judgments of 29 July 1998), which were considered by the Deputies for the first time at the 640th meeting in September. The matter of the solutions needed to give effect to the principles raised in these three judgments is at the moment being studied.

The Court's judgment in the Holm case, concerning the lack of impartiality of the special court which, under the Swedish Constitution, is competent for matters of freedom of expression, raised serious questions of constitutional law which have been examined by several governmental committees. Initially, it seemed that it would be necessary to amend the Constitution in order to carry out the Court's judgment. However, a thorough examination of the practice of the Supreme Court from the mid-1980s onwards, and of the effects of incorporation of the Convention into domestic law in 1995, led the Swedish Government to conclude that the Swedish Supreme Court would be the guarantor, as an appellate tribunal, of the conformity of the special court's composition vis-à-vis the requirements of the Convention as defined in the Holm case. This position was subsequently accepted by the Committee of Ministers which formally closed its examination of the execution of this case on 10 July this year (see Resolution DH(98)205).

Following the Modinos case, which concerns the prohibition of homosexual relations between consenting adults in private, various draft laws have been drawn up, from 1995 onwards, aimed at lifting the prohibition of homosexual relations in private in Cyprus. Progress in legislation has nonetheless been complicated by the different opinions expressed on the subject at national level, and particularly in Parliament. In June 1998, the Deputies were informed that an Act had been passed by Parliament on 21 May 1998. The Deputies, at their 647th meeting (27 October 1998) will consider whether this Act conforms with the Court’s judgment in this case.

III.       With regard to the second point raised in the Written Question, where the adoption of individual measures for the applicant's benefit proves necessary, in addition to just satisfaction, to rectify the effects of the violation found, the Committee of Ministers does not fail to make it clear to the States concerned. This issue has accordingly been addressed in the three cases mentioned.

The Hakkar case concerns the condemnation of the applicant to life imprisonment following criminal proceedings which the Committee of Ministers, under Article 32 of the Convention, considered not to be in conformity with the Convention, insofar as they undermined the essential role of the defence, which is to prepare for the trial. The question of re-opening the impugned criminal proceedings could pose a problem insofar as French law might not in principle allow, unlike the legal systems of other member States of the Council of Europe, the re-opening of criminal proceedings on the basis of the finding of a violation of the Convention by the European Court of Human Rights or the Committee of Ministers. The applicant's counsel nonetheless asked the Minister of Justice in April 1997 what steps the Minister envisaged following the judgment against France in this case, including in respect of Mr Hakkar. In July 1998, the applicant’s new counsel asked the Minister of Justice to take a stand concerning the advisability of an appeal “in the interest of the law” or even of a retrial, in application of the principles of existing law. The reply of the Minister of Justice concerning these two issues is expected shortly.

As regards the cases against Turkey concerning the dissolution of the Unified Communist Party and of the Socialist Party in 1992, the need to lift the permanent ban on assuming leadership of political parties imposed upon the applicants has been raised within the Committee of Ministers and questions have been put regarding the present situation of the individual applicants. The Committee of Ministers is awaiting clarifications on this matter and will resume consideration of these cases at the 647th meeting of the Deputies (27 October 1998).