Report | Doc. 13864 | 09 September 2015

Implementation of judgments of the European Court of Human Rights

Committee on Legal Affairs and Human Rights

Rapporteur : Mr Klaas de VRIES, Netherlands, SOC

Origin - Reference to committee: Resolution 1787 (2011) , Reference 3847 of 9 March 2012. 2015 - Fourth part-session

Summary

In its eighth report on the implementation of judgments of the European Court of Human Rights, the Committee on Legal Affairs and Human Rights has identified major problems in nine member States with the highest number of unenforced Court judgments (Italy, Turkey, the Russian Federation, Ukraine, Romania, Greece, Poland, Hungary and Bulgaria). The problems include length of judicial proceedings, unlawful detention on remand and/or its excessive length, non-enforcement of domestic judicial decisions, deaths and ill treatment caused by law-enforcement officials and lack of effective investigations into them, as well as poor conditions in detention facilities. There is a rising number of judgments concerning complex or structural problems that have not been implemented for more than ten years.

The committee recommends, inter alia, the prompt implementation of Strasbourg Court judgments, the setting up of effective domestic remedies and the creation of parliamentary procedures to monitor legislative changes needed to comply with the European Convention on Human Rights. The Committee of Ministers should also be encouraged to make use of the “infringement procedure” (Article 46, paragraphs 4 and 5 of the Convention) and to take stronger measures in case of dilatory or continuous non-execution of judgments. The Committee of Ministers should also co-operate more closely with civil society and ensure a greater transparency of its supervision process.

A. Draft resolution

(open)

1. The Parliamentary Assembly is duty-bound to contribute to the supervision of the implementation of judgments of the European Court of Human Rights (“the Court”), on which the efficiency and the authority of the human rights protection system established by the European Convention on Human Rights (ETS No. 5, “the Convention”) depends. Whilst, according to Article 46.2 of the Convention, the primary responsibility for the supervision of the implementation of Court judgments lies with the Committee of Ministers, the Assembly can also play a key role in this process, in particular by encouraging national parliaments to adopt a proactive approach.

2. The Assembly recalls its previous work on this subject, in particular its Resolution 1516 (2006) and Resolution 1787 (2011) and Recommendation 1764 (2006) and Recommendation 1955 (2011) on the implementation of judgments of the European Court of Human Rights, its Resolution 1856 (2012) and Recommendation 1991 (2012) on guaranteeing the authority and effectiveness of the European Convention on Human Rights, its Resolution 1914 (2013) and Recommendation 2007 (2013) on ensuring the viability of the Strasbourg Court: structural deficiencies in States parties and Resolution 2055 (2015) and Recommendation 2070 (2015) on the effectiveness of the European Convention on Human Rights: the Brighton Declaration and beyond.

3. It notes some progress in the implementation of Court judgments since the entry into force of Protocol No. 14 to the Convention (CETS No. 194) in June 2010 and the introduction, on 1 January 2011, of the new working methods of the Committee of Ministers. It welcomes the measures taken by the Committee of Ministers and other bodies of the Council of Europe to improve this process, as well as the increased interaction between the Committee of Ministers and the Court, in particular through the procedure of pilot or “quasi-pilot” judgments.

4. However, the Assembly remains deeply concerned about the high number of non-implemented judgments pending before the Committee of Ministers, which remains stable at nearly 11 000 cases. Many of these cases concern structural problems in States parties, which continue to generate numerous similar applications to the Court (such as serious human rights violations committed by security forces, poor detention conditions, excessive length of judicial proceedings, non-enforcement of final domestic judicial decisions, disproportionate restrictions on property rights and unlawful detention on remand).

5. The Assembly points out that, as underlined in Resolution 1787 (2011) and Resolution 1914 (2013) , Bulgaria, Greece, Hungary, Italy, Poland, Romania, the Russian Federation, Turkey and Ukraine have the highest number of non-implemented judgments and still face serious structural problems which have not been solved for more than five years.

6. The Assembly also notes that, in a number of other States (including Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, the Republic of Moldova, Serbia and the United Kingdom), judgments revealing structural and other complex problems have not been implemented since the Assembly adopted its Resolution 1787 (2011) in January 2011.

7. The Assembly deplores the delays in implementation and the lack of political will of certain States parties to implement judgments of the Court. It urges all States parties to observe the legal obligation stemming from Article 46.1 of the Convention and to fully and rapidly implement Court judgments.

8. As underlined in the Brussels Declaration adopted on 27 March 2015 by the High-level Conference on “The Implementation of the European Convention on Human Rights, our shared responsibility”, the Assembly calls on States parties to fully implement recommendations included therein, and in particular to:

8.1. submit action plans and action reports to the Committee of Ministers in a timely manner;

8.2. create effective domestic remedies to address violations of the Convention;

8.3. provide sufficient resources to national stakeholders responsible for implementing Court judgments;

8.4. ensure a prompt response to judgments raising structural problems;

8.5. take awareness-raising measures to promote Convention standards;

8.6. hold parliamentary debates on the implementation of Court judgments.

9. The Assembly calls on States parties to provide more funding to Council of Europe projects aimed at improving the implementation of judgments revealing structural problems, in particular through the Human Rights Trust Fund and/or voluntary contributions.

10. The Assembly recalls its Resolution 1823 (2011) on national parliaments: guarantors of human rights in Europe and calls on States parties to implement the “Basic principles for parliamentary supervision of international human rights standards”, reproduced in the Appendix to the said resolution.

11. The Assembly, mindful of the Brussels Declaration inviting it to produce further reports on this subject, resolves to remain seized of this matter and to continue to give it priority, in view of the urgent need to accelerate the implementation of the Court’s judgments.

B. Draft recommendation

(open)

1. The Parliamentary Assembly, referring to its Resolution … (2015) on the implementation of judgments of the European Court of Human Rights, strongly urges the Committee of Ministers to use all available means to effectively fulfil its tasks related to the supervision of the implementation of judgments of the European Court of Human Rights (“the Court”). It therefore calls on the Committee of Ministers to:

1.1. take firmer measures in case of dilatory and/or continuous non-compliance with Court judgments, including those foreseen in Article 46, paragraphs 3, 4 and 5 of the European Convention on Human Rights (ETS No. 5);

1.2. consider taking additional measures to improve the effectiveness of the supervision of the implementation of judgments;

1.3. involve, to a greater extent, applicants, civil society, national human rights institutions and other international intergovernmental organisations in the process of the implementation of Court judgments;

1.4. ensure greater transparency of this process.

2. Furthermore, independently of the above proposals, the Assembly recommends that the Committee of Ministers:

2.1. continue to implement the Brussels Declaration adopted on 27 March 2015 by the High-level Conference on “The Implementation of the European Convention on Human Rights, our shared responsibility”;

2.2. monitor the implementation of its Decision of 19 May 2015 on “Securing the long-term effectiveness of the supervisory mechanism of the European Convention on Human Rights”;

2.3. continue to apply its new working methods in order to accelerate the implementation of Court judgments and reduce its backlog of cases;

2.4. enhance synergies, within the Council of Europe, between the Department for the Execution of Judgments of the European Court of Human Rights and all relevant stakeholders;

2.5. increase the resources of the Department for the Execution of Judgments of the European Court of Human Rights;

2.6. continue to liaise, where appropriate, with the Assembly to ensure rapid and effective implementation of the judgments of the Court.

C. Explanatory memorandum by Mr de Vries, rapporteur

(open)

1. Introduction

1.1. Procedure

1. The issue of implementation of judgments of the European Court of Human Rights (“the Court”) has been on the agenda of the Parliamentary Assembly since 2000. In its Resolution 1787 (2011) , the Assembly, taking into account major problems encountered in this respect by several Council of Europe member States, decided to “remain seized of this matter and to continue to give it priority”.

Consequently, on 24 January 2012, the Committee on Legal Affairs and Human Rights appointed me as the third successive rapporteur on this subject after Mr Erik Jurgens (Netherlands, SOC) and Mr Christos Pourgourides (Cyprus, EPP/CD). Between April 2012 and January 2013, the committee held a series of hearings in Strasbourg with the heads of the parliamentary delegations of 10 States identified in the 7th report on implementation of judgments, namely Bulgaria, Greece, Italy, the Republic of Moldova, Poland, Romania, the Russian Federation, Turkey, Ukraine and the United Kingdom. Upon my request, the summary records of these hearings were declassified by the committee on 19 March 2013.

2. At its meeting in Izmir (Turkey) on 28 May 2013, the committee considered my progress report and addendum and approved slightly readjusted criteria for the selection of States that I intended to include in the scope of the report; it also agreed to declassify the progress report and its addendum.

3. During its meeting in Strasbourg on 30 September 2013, the committee authorised me to carry out fact-finding visits to Italy, the Russian Federation, Turkey and Ukraine and, if need be, also to Poland and Romania. Consequently, I conducted the following fact-finding visits: to Ankara (Turkey) from 23 to 25 April 2014, to Rome (Italy) on 22 and 23 October 2014 and to Warsaw (Poland) from 3 to 5 December 2014 (see Appendix 3). I have not undertaken a visit to Ukraine due to the political situation in this country and my planned trip to Russia was cancelled.

1.2. Overview of the Assembly’s involvement in the implementation of judgments of the European Court of Human Rights

4. Following the Interlaken (2010) and Izmir Declarations (2011), the High Level Conference on the Future of the European Court of Human Rights, held in Brighton (United Kingdom) in April 2012, underlined the importance of the Assembly in the execution of judgments of the Court:

“Each State Party has undertaken to abide by the final judgments of the Court in any case to which they are a party… The Committee of Ministers is supervising the execution of an ever-increasing number of judgments. As the Court works through the potentially well-founded applications pending before it, the volume of work for the Committee of Ministers can be expected to increase further… The Conference therefore… [w]elcomes the Parliamentary Assembly’s regular reports and debates on the execution of judgments.”

5. Similarly, the Brussels Declaration adopted on 27 March 2015 by the High-level Conference on the “Implementation of the European Convention on Human Rights, our shared responsibility” recommended once again that the Assembly “continue to produce reports on the execution of judgments” and encouraged “national parliaments to follow in a regular and efficient manner the execution of judgments”. It also stressed the need to find effective solutions to deal with repetitive cases at the level of the Court and in the framework of the execution of judgments.

6. The monitoring of the implementation of the Court’s judgments became a key focus of the work of the Parliamentary Assembly and our committee following the adoption by the committee, on 27 June 2000, of the first report on the matter by Mr Erik Jurgens. On the basis of this report, the Assembly adopted Resolution 1226 (2000), highlighting the need for effective synergy between the Court, the Committee of Ministers and national authorities, and undertaking to play a more prominent role in supervising judgments of the Court.

7. My report is the eighth on this subject. Since 2000, the Assembly has debated seven reports and adopted seven resolutions and six recommendations on the subject of the implementation of judgments of the European Court of Human Rights. Between the years 2006 and 2010, the rapporteurs on this issue adopted a relatively proactive approach, conducting in situ visits to States parties with particularly problematic instances of non-implementation (Mr Erik Jurgens visited five States – Italy, the Russian Federation, Turkey, Ukraine and the United Kingdom – in preparation for the sixth report; and Mr Christos Pourgourides visited eight States – Bulgaria, Greece, Italy, the Republic of Moldova, Romania, the Russian Federation, Turkey and Ukraine – in preparation for the seventh report). During these visits, the rapporteurs discussed the reasons for failure to execute the Court judgments with members of the national parliaments and government representatives, and underlined the urgent need to find solutions to problems raised. The aim of the visits was to see how, with the aid of parliamentarians in the relevant countries, the national authorities could be “encouraged” to speed up the implementation of the reforms and measures needed for the prompt and complete execution of judgments.

8. On the basis of the 7th report prepared by Mr Pourgourides, on 26 January 2011, the Assembly adopted Resolution 1787 (2011) and Recommendation 1955 (2011) drawing attention to the difficult situation of non-implementation or delays in full implementation of the Court judgments in a number of States.

9. Five years after the publication of the 7th report on this subject by my predecessor, Mr Pourgourides, I believe that the time has come for a fresh examination of the matter. I would also like to underline that in the meantime, the Assembly and our committee have worked on a number of issues concerning the reform of the system based on the European Convention on Human Rights (ETS No. 5, “the Convention”),

including the efficiency of the execution of judgments of the European Court of Human Rights. For example, the Assembly has dealt with the issue of structural problems in its Resolution 1914 (2013) and Recommendation 2007 (2013) “Ensuring the viability of the Strasbourg Court: structural deficiencies in States parties”.

In its recent Resolution 2055 (2015) “The effectiveness of the European Convention on Human Rights: the Brighton Declaration and beyond”, it deplored the failure by certain States parties to discharge their obligations under the Convention

and, in its Recommendation 2070 (2015) on the same subject, it called on the Committee of Ministers to use all possible means to accelerate the implementation of Court judgments.

1.3. The parameters of the 8th report

10. The reports presented to the Assembly by my predecessors, MM Jurgens and Pourgourides, focused on individual judgments/issues and used certain criteria for their selection. Both reports included in their scope the “judgments (and decisions) raising important implementation issues” as identified, in particular, in the Committee of Ministers’ interim resolutions or other documents. Each of them also used one additional selection criterion: “judgments and decisions which have not been fully implemented more than five years after their delivery”, for the report by Mr Jurgens, and “judgments concerning violations of a particularly serious nature”, for the report by Mr Pourgourides.

I have decided to slightly readjust the way in which I proceed with respect to this 8th report.

11. Since 1996, the number of cases requiring oversight by the Committee of Ministers has been on the rise,

making it more and more difficult for the supervisory body to effectively exercise its functions. My report covers States which have the highest number of judgments pending execution before the Committee of Ministers, according to the statistics in its annual report for the year 2014. The progress report on this issue that I submitted to the Committee on Legal Affairs and Human Rights in May 2013

was based on data from 2012

and focused on the following eight States, in descending order: Italy (2 569 cases), Turkey (1 861 cases), the Russian Federation (1 211 cases), Ukraine (910 cases), Poland (908 cases), Romania (667 cases), Greece (478 cases), and Bulgaria (366 cases).

The newest data, from the Committee of Ministers Report on “Supervision of the execution of judgments of the European Court of Human Rights – Annual Report 2014” (“Committee of Ministers 2014 Annual Report”), show the following order: Italy (2 622 cases), Turkey (1 500 cases), the Russian Federation (1 474 cases), Ukraine (1 009), Romania (639), Greece (558 cases), Poland (503 cases), Hungary (331 cases) and Bulgaria (325 cases).

Although Hungary was not within the eight States examined in my progress report, it is now the country with the 8th highest number of non-implemented judgments of the Court, before Bulgaria. However, since the difference between Hungary and Bulgaria is very small (only six judgments), I will examine the situation of both States.

12. As an aside, it is to be noted that the above statistics do not necessarily correspond to the “reality”, if considered from the angle of the number of cases pending before the Court, either in absolute numbers or in proportion to population size. In terms of the number of cases pending consideration by the Court at the end of 2014, the following eight States accounted for 75% of the total caseload: Ukraine (19.5%), Italy (14.4%), the Russian Federation (14.3%), Turkey (13.6%), Romania (4.9%), Serbia (3.6%), Georgia (3.3%) and Hungary (2.6%).

As one can easily see, the order of importance is not the same as in the statistics on execution provided by the Committee of Ministers; Poland ranks 9th (with 2.6% of pending applications, followed by Slovenia with 2.4%) and Greece is absent from the list. If we were to look at the number of applications allocated by the Court’s Registry to a judicial formation as at 31 December 2014, presented in proportion to the population of the States concerned, the picture changes again drastically: the eight biggest contributors would be Serbia (3.90 per 10 000 inhabitants), Liechtenstein (3.24), Ukraine (3.14), the Republic of Moldova (3.11), Croatia (2.58), Montenegro (2.53), Hungary (2.43) and Romania (2.22).

Three States from the above list of the biggest “offenders” as identified by the Committee of Ministers – Ukraine, Hungary and Romania – would also find themselves in this group. Other statistics included in the Committee of Ministers 2014 Annual Report are interesting in this context and show the number of complex cases pending execution per State, concerning 11 States with the highest number of cases under “enhanced supervision”

(on the basis of the number of leading cases, i.e. cases that reveal structural problems).

With the exception of Hungary, all member States analysed in Appendix1 are high on this particular list, namely: the Russian Federation (16%), Ukraine (13%), Turkey (8%), Bulgaria (8%), Italy (8%), the Republic of Moldova (8%), Romania (6%), Greece (5%), Azerbaijan (4%), Serbia (3%) and Poland (3%).

2. Non-implementation of judgments of the European Court of Human Rights: main problems

2.1. The situation in Italy, Turkey, the Russian Federation, Ukraine, Greece, Romania, Poland, Hungary and Bulgaria

13. All of the nine States selected on the basis of the Committee of Ministers’ annual statistics, with the exception of Hungary, were already identified as having difficulties with the implementation of the Court’s judgments in the 2010 report prepared by Mr Pourgourides; they were the subject of hearings before our committee between April 2012 and January 2013 (see paragraph 1 above). The main issues detected for each of the above States are as follows:

13.1. Italy:

excessive length of judicial proceedings and lack of an effective remedy in that regard;

expulsion of foreign nationals in violation of the Convention;

poor conditions of detention.

13.2. Turkey:

failure to re-open unfair criminal proceedings;

repeated imprisonment for conscientious objection to military service;

violations of the right to freedom of expression and freedom of assembly;

excessive length of detention on remand;

actions of security forces;

issues concerning the northern part of Cyprus.

13.3. Russian Federation:

non-enforcement of domestic judicial decisions;

violation of the principle of legal certainty on account of the quashing of final judicial decisions through the “supervisory review procedure”;

poor conditions of detention on remand, in particular in pretrial detention centres;

excessive length of and lack of relevant and sufficient reasons for detention on remand;

torture and ill treatment in police custody and lack of effective investigation in that respect;

actions of the security forces in North Caucasus;

various violations of the Convention related to secret extraditions to former Soviet republics in central Asia;

prohibition of lesbian, gay, bisexual and transgender (LGBT) assemblies.

13.4. Ukraine:

non-enforcement of domestic judicial decisions;

excessive length of judicial proceedings and lack of an effective remedy in that regard;

poor conditions of detention;

ill treatment by police and lack of effective investigations in this respect;

issues concerning detention on remand;

unfair trials, inter alia due to lack of impartiality and independence of judges.

13.5. Romania:

failure to restore or compensate for nationalised property;

excessive length of judicial proceedings and lack of an effective remedy in that regard;

non-enforcement of domestic judicial decisions;

poor conditions of detention;

ill treatment by police and lack of effective investigations in this respect.

13.6. Greece:

excessive length of judicial proceedings and lack of an effective remedy in that regard;

use of lethal force and ill treatment by law-enforcement officials and lack of effective investigation of such abuses;

shortcomings in the asylum procedure and poor conditions of detention of irregular migrants;

violations of the freedom of association of the Muslim minority.

13.7. Poland:

excessive length of judicial proceedings and lack of an effective remedy in that regard;

poor conditions of detention.

13.8. Hungary:

excessive length of proceedings.

13.9. Bulgaria:

deaths and ill treatment taking place under the responsibility of law-enforcement officials and lack of effective investigation of such abuses;

excessive length of judicial proceedings and lack of an effective remedy in that regard;

violations of the right to respect for family life due to deportation/orders to leave the territory;

poor conditions of detention.

14. The above issues are described in more detail in Appendix 1 to the present document. The appendix also deals with delays in the implementation of certain judgments against the United Kingdom, an issue which was first pointed out by my predecessor, Mr Pourgourides. I focus mainly on the issue of general measures (that is aimed at preventing new similar violations), although the issue of individual measures (that is measures aimed at ensuring restitution in integrum for the applicant or eradication of the negative consequences of the violation for him/her) and/or the payment of just satisfaction raise serious issues of implementation in certain cases (see, for instance, the lack of investigations in the “Chechen cases” concerning the Russian Federation or the problem of payment of just satisfaction by Turkey in certain cases concerning the northern part of Cyprus).

15. The appendix shows that the vast majority of cases presented in Mr Pourgourides’ report have not been closed by the Committee of Ministers (with the exception of some cases against Poland, the excessive length of proceedings in Turkey, and some aspects concerning problems with the expulsion of foreigners in Italy and Bulgaria), although there has been some progress in many cases. This is especially true for groups of cases for which the Court delivered pilot judgments or judgments under Article 46, urging the respondent States to provide an effective remedy against specific violations of the Convention (mainly against excessive length of proceedings or poor conditions of detention). There have been signs of progress in Italy, where lengthy judicial proceedings are an endemic problem. But the domestic remedy provided in the Pinto law turned out to be ineffective, due, again, to delays in the payment of compensation. On a more positive note, Italy has reacted to the newly identified problem of prison overcrowding and has taken awareness-raising measures to prevent expulsions of foreigners in breach of the Convention.

16. Although the issue of excessive length of proceedings has been closed by the Committee of Ministers in respect of Turkey, many unresolved problems still persist: – lack of legislation on conscientious objectors, violations of the freedoms of assembly and expression, impunity of law-enforcement officers and abusive use of detention on remand. Some progress has been achieved with the adoption of the third and fourth reform packages. But the problem of the implementation of the judgment in Cyprus v. Turkey and some other judgments concerning the northern part of Cyprus still has a long way to go. Progress will depend on the political will of the Turkish authorities, and on continuing peer pressure within the Committee of Ministers.

17. Despite making some progress in certain cases, the Russian Federation has a long list of outstanding issues concerning implementation of judgments of the European Court of Human Rights, most of which concern particularly serious human rights violations. The lack of progress in the implementation of the Chechen cases or the cases concerning extraditions of foreigners to former Soviet republics in Central Asia show a clear lack of political will to execute the Court’s judgments and to follow the Committee of Ministers’ recommendations. The same must be said about the Alekseyev v. Russia

judgment, concerning LGBT groups’ right to freedom of assembly; one could even say that the situation in this area has worsened since this judgment was delivered by the Court.

18. Almost no progress has been noted regarding Ukraine, which could be partly explained by the recent turmoil in this country, the annexation of Crimea by the Russian Federation and the violent conflict in eastern Ukraine, which recently prompted Ukraine to derogate from certain articles of the Convention under Article 15. Ukraine is nevertheless legally obliged to implement the Court’s judgments and the Council of Europe is ready to assist it in accomplishing this task.

19. Greece has taken some steps to eradicate the excessive length of proceedings, but its passive attitude towards the issue of the freedom of association of the Muslim minority reveals a lack of political will in this respect. Moreover, it is confronted with a huge and growing influx of illegal migrants from Africa and Asia, a phenomenon which raises serious human rights concerns in Europe and doubts about the efficiency of the European Union’s Dublin Regulation for asylum seekers. These problems are well-illustrated by the judgments from the group M.S.S. v. Belgium and Greece.

20. As regards the remaining States, Romania still has a number of serious issues to deal with, although it has made significant progress in setting up a system of compensation for owners whose properties had been nationalised under the communist regime. It has also reformed its civil and criminal codes. Poland has successfully tackled the problem of excessive length of detention on remand,

but it is still confronted with the problem of excessive length of proceedings, although it was one of the first States to introduce a domestic remedy against this type of violation of the Convention. Hungary has to deal with the excessive length of proceedings. Despite some progress, Bulgaria has to make more efforts in most of the areas identified in the appendix to this report, especially regarding conditions of detention and the abuse of force by law-enforcement officials.

2.2. The situation in other selected States

2.2.1. Criteria for examination

21. In his report, Mr Pourgourides examined briefly the non-implementation of judgments concerning some member States which had only recently joined the Council of Europe (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia and Serbia). He also examined in detail the non-implementation problems concerning the Republic of Moldova. The Committee of Ministers Annual Report 2014 confirms that structural/complex problems in most of these member States persist: in Albania – non-restitution of nationalised properties (the Driza group),

in Armenia – poor conditions of detention (the Kirakosyan group)

and Georgia – lack of effective investigations into ill treatment by police (the Gharibashvili group)

. In Bosnia and Herzegovina, the judgment Sejdić and Finci v. Bosnia and Herzegovina

(concerning discrimination of persons belonging to ethnic minorities due to legal restrictions to stand for parliamentary and presidential elections) remains non-executed, despite three interim resolutions of the Committee of Ministers.

22. Although these problems remain important, I am not in position to analyse in detail the situation in all these States in the framework of this report. I will focus on a few countries which, according to the latest Committee of Ministers’ statistics, are within the “top eleven” of countries with the highest number of cases under the “enhanced supervision” of the Committee of Ministers (on the basis of leading cases).

2.2.2. Republic of Moldova

23. The issue of non-implementation in respect of this State Party was analysed in detail in Mr Pourgourides’ report, which focused on the following problems: non-enforcement of domestic judgments, unlawful pretrial detention, ill treatment by police and poor conditions of detention on remand.

According to the Committee of Ministers 2014 Annual Report, there were 256 non-implemented judgments against the Republic of Moldova as at 31 December 2014, placing this country 11th on the list of countries with the highest number of non-implemented judgments. Moreover, 8% of the overall number of judgments under the enhanced supervision process concerned this small State and they related mainly to the three main problems already flagged in the Pourgourides report: poor conditions of detention (over 30 cases), abuse of force by police officers (nearly 30 cases) and unlawful detention on remand. As regards cases concerning non-enforcement of domestic decisions (the Olaru group), some progress has been observed since 2010, as they have been transferred to the standard supervision procedure, following the creation of an effective domestic remedy in July 2011.

2.2.3. Azerbaijan

24. A total of 114 unexecuted cases were pending against Azerbaijan as at 31 December 2014. Four per cent the cases under enhanced supervision concern this country: these belong to five groups of cases (concerning freedom of expression, the right to free elections, non-enforcement of domestic decisions, evictions of internally displaced persons, excessive use of force by police during demonstrations and ill treatment in police custody) and the recent judgment in the case of Ilgar Mammadov v. Azerbaijan

concerning the applicant’s politically motivated detention (violations of Articles 5 and 18).

I would like to point out in this context that the applicant has still not been released, despite several calls from the Committee of Ministers,

the President of the Assembly and the competent rapporteurs.

It should also be noted that the Committee of Ministers examined the group of cases of Mahmudov and Agazade

and Fatullayev v. Azerbaijan

concerning convictions for defamation, four times, namely at every Human Rights (DH) meeting in 2014. Persistent problems concerning non-enforcement of domestic judgments and freedom of expression were already pointed out in the Pourgourides report.

2.2.4. Serbia

25. As at 31 December 2014, 194 cases were pending before the Committee of Ministers concerning Serbia. Serbian cases represent 3% of the overall number of cases under the enhanced supervision process. These are cases from the group EVT Company

(40 cases concerning non-enforcement of final court and administrative decisions, already mentioned in the Pourgourides report),

the pilot judgment Ališić and Others v. Serbia and Slovenia,

concerning failure by the governments of the successor States of the Socialist Federative Republic of Yugoslavia (SFRY) to honour “old” foreign-currency savings deposited outside Serbia and Slovenia, the judgment Grudić v. Serbia

concerning suspension of payment of pensions earned in Kosovo

and the judgment Zorica Jovanović v. Serbia

concerning failure to provide information on the fate of newborn babies alleged to have died in maternity wards. Serbia is also among the 10 countries with the highest number of applications pending before the European Court of Human Rights.

3. Recent general data concerning implementation of judgments of the European Court of Human Rights

26. The Committee of Ministers 2014 Annual Report sounds optimistic about the overall progress in the implementation of judgments of the European Court of Human Rights – in particular the decrease in the number of pending cases and the increased number of cases that have been closed (including many cases concerning structural problems), although it also points out certain problems.

I would remain cautious about this apparently good news and will have a closer look at the main statistical data contained in the Committee of Ministers 2014 Annual Report.

27. At the end of 2014, there were 10 904 cases pending before the Committee of Ministers. Compared with the two previous years, there has been a very slight decrease (11 099 in 2012 and 11 019 in 2013). However, this number is still higher than the number of cases pending before the Committee of Ministers at the end of 2011 (10 689), when the workload of the Committee of Ministers reached its peak.

Therefore, one should rather say that the Committee of Ministers’ huge workload has not changed much since 2012.

28. As at 31 December 2014, out of the 10 904 pending cases, 6 718 cases were examined under the enhanced procedure (while in 2013, there were 6 707).

Thus, the number of complex cases has not decreased. Moreover, the number of cases under enhanced supervision for more than five years has increased (from 128 in 2014 to 160 in 2015), which confirms the existence of “pockets of resistance”.

29. In 2014, the Committee of Ministers closed 1 502 cases (compared with 1 398 in 2013), but at the same time it received 1 389 new cases (compared with 1 328 in 2013).

Thus, the number of closed cases slightly exceeded the number of new ones. It is positive that the number of closed cases has increased almost threefold in comparison with the number of cases closed in 2010 (455) and this increase has been gradual since that year. In the meantime, the number of new cases received every year has been slightly decreasing (in 2010, the Committee of Ministers received 1 710 new judgments finding violations of the Convention, which was the highest number since 1996). Among the 1 502 closed cases, 169 cases were subject to the enhanced supervision procedure (compared with 14 cases closed in 2013).

30. As regards the main themes under enhanced supervision (on the basis of the number of leading cases), at the end of 2014, half the cases concerned three major problems: actions of security forces (20%), poor detention conditions (14%) and excessive length of proceedings (11%). Then followed: non-enforcement of domestic judicial decisions (7%), disproportionate restrictions to property rights (6%), unjustified detention (5%), violations of the right to life (4%), unjustified expulsions (4%), specific cases of ill treatment (3%), violations of freedom of expression (3%) and discrimination (3%).

Thus, almost half the cases in this category concern particularly serious human rights violations (Articles 2 and/or 3 of the Convention).

31. There are also interesting statistics concerning the average duration of the execution in leading cases which have been closed. In 2014, the general average was 4.1 years (4.1 years for cases under standard supervision and 4.8 years for cases under enhanced supervision). However, there are cases against certain States Parties where many more years elapsed before they could be closed (against the Russian Federation, with a general average of 9.7 years, against the Republic of Moldova, 8.3 years, and against Ukraine, 7.4 years).

The Committee of Ministers’ statistics look too positive and seem not to properly reflect the delays in execution or even the reluctance of certain States to implement judgments of the European Court of Human Rights. As indicated in the appendix, there are many judgments which have not been implemented for more than 10 years.

32. As regards payment of just satisfaction, the Committee of Ministers 2014 Annual Report points out that payments are made within the deadlines in 84% of cases. However, in the majority of cases, the authorities are lagging behind with providing information on payment to the Department for the Execution of Judgments of the European Court of Human Rights (in two thirds of such cases the information is still missing six months after the deadline for the payment).

4. New tools aimed at improving the implementation of judgments of the European Court of Human Rights since the Pourgourides report

4.1. Article 46 paragraphs 3, 4 and 5 of the Convention

33. Following the entry into force of Protocol No. 14 to the Convention (CETS No. 194) on 1 June 2010, Article 46 on the binding force and execution of judgments of the European Court of Human Rights has been strengthened by the addition of three new paragraphs:

“3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee.

4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”

34. Thus, paragraph 3 of the Article 46 provides for a so-called “advisory opinion procedure”, while paragraphs 4 and 5 set up “the infringement procedure” allowing the Committee of Ministers to request the Court to provide an official determination of non-compliance with its judgments.

The latter provisions do not provide for additional sanctions, apart from another Court judgment finding a violation of Article 46.1 of the Convention. These new procedures have so far not been used by the Committee of Ministers.

4.2. New procedure for the Committee of Ministers supervision of the implementation of judgments

35. As pointed out in the Committee of Ministers 2014 Annual Report, the implementation of judgments of the European Court of Human Rights benefits from the working methods introduced on 1 January 2011;

as stressed in the Brussels Declaration, they strengthen the subsidiarity of the supervisory mechanism established by the Convention. The reform introduced in 2011 consisted mainly in the introduction of a two-track procedure for better prioritisation of cases. Judgments revealing complex/structural problems, pilot judgments, judgments delivered in interstate cases and judgments requiring urgent individual measures are examined in the “enhanced supervision” procedure; all other judgments are subject to the “standard supervision” procedure. However, all cases are under the continuous supervision of the Committee of Ministers. Respondent States have to submit action plans/reports for the implementation of judgments within six months of the judgments becoming final.

36. The Committee of Ministers 2014 Annual Report praises an increased capacity of response on the part of the Committee of Ministers to the problems that may arise (with an increase of 20% in the number of its interventions to assist execution), the more frequent transfers between the two supervision tracks (standard and enhanced), the increased reactivity of governments through the submission of action plans/reports (with a total of 266 action plans and 481 action reports submitted in 2014)

and the increased transparency of the process (through the rapid publication of all information received and of the decisions adopted by the Committee of Ministers).

Statistics show a decrease of almost 20% in the number of cases pending in less than five years, which might be related to the introduction of the new working methods in 2011.

4.3. Greater visibility: publication of action plans/reports and NGO submissions

37. The reform introduced in 2011 also improved the transparency of Committee of Ministers documents concerning the execution of judgments of the European Court of Human Rights.

Usually actions plans/reports submitted by governments are rapidly published on the website of the Department for the Execution of Judgments (see Rule 8 on access to information, Rules of the Committee of Ministers for the supervision of the execution of judgments and of other terms of the friendly settlements ). The same applies to submissions by applicants, their representatives or non-governmental organisations (NGOs), made under Rule 9 of the said Rules. This is particularly important as applicants do not have standing before the Committee of Ministers in the procedure of supervision of the implementation of the judgments concerning them. Under Rule 9.1 of the above-mentioned Rules, they can only make written submissions to the Committee of Ministers on individual measures and the payment of just satisfaction. NGOs and national human rights institutions (NHRIs) can make submissions to the Committee of Ministers on any aspect of the implementation of a judgment, including general measures. This gives the Committee of Ministers access to information from both sides – governments and civil society – on issues such as comprehensive reforms aimed at eradicating structural problems.

38. Moreover, greater accessibility of Committee of Ministers’ documents and submissions from member States, applicants and NGOs has been ensured by information technology improvements in the Department for the Execution of Judgments of the European Court of Human Rights.

Further improvements are possible. People who are not well-acquainted with the Committee of Ministers’ procedures (even lawyers) still find it difficult to access relevant information.

4.4. Other measures

39. The Committee of Ministers 2014 Annual Report also points out other activities proved helpful in improving the efficiency of the process of implementation of judgments of the Court. Firstly, efficient co-ordination between the Department for Execution of Judgments and the Council of Europe co-operation programmes contributes to the elimination of structural problems, by enhancing dialogue with the authorities and providing expertise. This should be a priority for the Secretary General of the Council of Europe.

Since 2006, the Committee of Ministers has provided additional support to the Department for the Execution of Judgments for its “special targeted co-operation activities” (providing legal expertise, organising round tables and other activities).

Secondly, many activities aimed at providing expertise to national stakeholders have been funded by the Human Rights Trust Fund since it was established in 2009

(such as round tables, seminars, translation of judgments or other training activities; for example a project on freedom of expression in Turkey and a multi-lateral project on detention on remand). Thirdly, some activities have also been organised thanks to voluntary contributions from certain member States (Denmark, Netherlands and Sweden) or the Norway Grants.

Fourthly, one should not forget the efforts undertaken by the Council of Europe in the framework of the training activities of the European Programme for Human Rights Education for Legal Professionals (HELP programme) , whose role has recently been stressed by the Assembly in its Resolution 1982 (2014) and Recommendation 2039 (2014) “The European Convention on Human Rights: the need to reinforce the training of legal professionals”.

4.5. Strengthened interaction between the Court and the Committee of Ministers

40. Since the entry into force of Protocol No. 14 to the Convention, the Court has taken a more proactive approach as regards the implementation of its judgments. As pointed out in the Committee of Ministers 2014 Annual Report, thanks to indications given by the Court in its pilot judgments or judgments under Article 46 (“quasi-pilot” judgments),

the Committee of Ministers was able to focus on cases raising structural problems and respondent States received more indications as to the measures required to implement judgments.

The implementation of many pilot and “quasi-pilot” judgments seems to have been efficient and, following the responses of the domestic authorities (mainly concerning the introduction of effective remedies), the Court returned many new applications to the domestic level.

However, such “repatriation” of cases should not absolve the respondent States from addressing the core problems.

For example, the adoption of an effective remedy against excessive length of proceedings should not prevent the State from taking measures to eradicate the phenomenon of protracted procedures.

5. Parliamentary support in implementing judgments of the European Court of Human Rights

5.1. The role of national parliaments

41. The role of parliamentary oversight in implementing judgments of the European Court of Human Rights has been pointed out by the Assembly and my predecessors

on many occasions (namely in Resolution 1787 (2011) on the implementation of judgments of the European Court of Human Rights and Resolution 1823 (2011) “National parliaments: guarantors of human rights in Europe”).

It was also discussed by our committee on 27 June 2013 during a joint hearing with the Committee on Political Affairs and Democracy on “Implementation of the Strasbourg Court judgments: the parliamentary dimension”

and at a parliamentary seminar in Madrid on 31 October 2014. An overview of the existing models is provided by the Secretariat’s background memorandum on “The role of parliaments in implementing ECHR standards: overview of the existing structures and mechanisms”.

Therefore, I will not go into more detail on this subject.

42. Since the Pourgourides report, there has been some progress in this respect in several countries. For example, in Poland, in February 2014, the Justice and Human Rights Committee and the Foreign Affairs Committee of the Sejm (the lower house) jointly established a permanent sub-committee on the execution of judgments of the European Court of Human Rights.

During my visit to Warsaw in December 2014, I met some members of the Justice and Human Rights Committee and members of the new Sub-committee. Whilst representatives of NGOs complained about the inactivity of the sub-committee since the end of August 2014, MPs explained that this was due to the changes in its composition following the reorganisation of the government at that time. During my visit to Turkey in April 2014, I raised the issue of establishing a parliamentary structure to monitor implementation of judgments of the European Court of Human Rights with the Chairpersons of the Committee on Justice and the Committee on Human Rights Inquiries, who showed interest in this proposal. During my visit to Italy (October 2014), my interlocutors informed me that the Prime Minister was regularly reporting to parliament about progress made in this respect. According to the Committee of Ministers 2014 Annual Report, a permanent committee was created within the Greek Parliament in December 2013 and, in Bulgaria, the government reports to parliament on progress in this respect each year.

43. It should be noted that setting up specialised parliamentary structures is not sufficient; they must be proactive in fulfilling their tasks. For example, Ukraine, despite a 2006 law on the State’s obligations after a judgment of the European Court of Human Rights was delivered, has still not dealt with a number of structural problems.

Thus, further awareness-raising measures are needed. It should be noted that much work is being done in this respect by the Assembly’s Parliamentary Support Division , which, since September 2013, has organised a series of seminars on the Convention for MPs and national parliaments’ legal counsellors. This activity was welcomed in the Brussels Declaration.

5.2. The new Sub-Committee on the Implementation of Judgments of the European Court of Human Rights (in the Committee on Legal Affairs and Human Rights)

44. During the above-mentioned seminar on “The role of national parliaments in the implementation of judgments of the European Court of Human Rights” in Madrid on 31 October 2014, I proposed that our committee set up a new sub-committee on “Implementation of Judgments of the European Court of Human Rights”, whose future work could feed into the work of the committee’s rapporteur on the implementation of judgments. The new sub-committee was established during the January 2015 part-session and has held two meetings – on 27 January and on 23 April 2015. At its April meeting, I made some proposals concerning its future work. In my opinion, the sub-committee could, on a regular basis, invite experts both from the parliamentary and intergovernmental side, as well as relevant civil society actors. It could be a forum for sharing good practices and for addressing particularly salient cases of non-implementation, those pointing to the existence of systemic shortcomings or requiring an urgent individual measure in cases concerning serious human rights violations. The sub-committee could focus on countries covered by my report and on other countries, depending on the complexity and political relevance of the cases.

45. As stressed in the opening speech made by the Assembly’s President, Ms Anne Brasseur, the High-level Conference in Brussels on 26 March 2015, the sub-committee could also organise exchanges of views with civil society. Moreover, the sub-committee could hold exchanges of views with representatives of the Committee of Ministers and its Secretariat, the Registry of the Court and the Council of Europe Commissioner for Human Rights.

6. Concluding remarks

46. Although some progress in the execution of judgments of the European Court of Human Rights was reported in the Committee of Ministers 2014 Annual Report, the scale of the outstanding problems is alarming. As pointed out in this report, many pending cases concern structural problems. In some of them there are “pockets of resistance” closely related to economic

or political considerations

or to social prejudices (as in cases of discrimination against Roma

or other minority groups).

As indicated in the appendix, most of these cases require long-term general measures, including comprehensive reforms of the judicial systems (in case of excessive length of proceedings or unfair trials) or the police (in case of systemic abuse of force by them) and additional resources and facilities (for example for restituting nationalised properties or combating overcrowding of prisons). It is often difficult to rapidly assess the impact of such measures on the implementation of judgments of the Court.

47. At its 125th session on 19 May 2015, the Committee of Ministers adopted a decision on “Securing the long-term effectiveness of the supervisory mechanism of the European Convention on Human Rights ”, in which it endorsed the Brussels Declaration and invited States Parties to implement it. The Committee of Ministers noted that some of the current challenges were the backlog of potentially admissible and well-founded cases pending before the Court, the repetitive applications resulting from non-execution of Court judgments and its increasing workload related to the supervision of the execution of judgments.

It invited the States Parties to intensify their efforts to implement judgments of the European Court of Human Rights, giving special attention to structural problems and “to examine, together with the Department for the Execution of Judgments of the European Court of Human Rights, all their pending cases, identify those that can be closed and the remaining major problems, and on the basis of this analysis, work towards progressively absorbing the backlog of pending cases”.

The Committee of Ministers also instructed its Deputies to take a number of steps in this area, including taking stock of the implementation and making an inventory of good practices in line with its Recommendation CM/Rec(2008)2 on efficient capacity for rapid execution of judgments and exploring ways to further increase the efficiency of the supervision process, including its Human Rights (DH) meetings. They also invited the Secretary General of the Council of Europe to enhance further synergies within the organisation so that all relevant stakeholders take into account issues related to the implementation of judgments of the Court.

48. The measures proposed above, as well as those taken by the Committee of Ministers, the Court and other Council of Europe bodies to improve the implementation of Court judgments, are very much to be welcomed. However, the situation is very worrying, as I tried to indicate in the above statistics and the information contained in the appendices. Almost 80% of the cases pending before the Committee of Ministers concern only nine States Parties (Italy, Turkey, the Russian Federation, Ukraine, Romania, Greece, Poland, Hungary and Bulgaria). Most of these States have to solve complex/structural problems which are being examined under the enhanced supervision procedure of the Committee of Ministers. Although the latter reacted through strongly worded decisions and/or through interim resolutions in case of persistent non-implementation of certain judgments or delays in their implementation, progress has been very slow or, in certain cases, almost non-existent (see, for instance, the cases of Bekir Ousta v. Greece, the group of cases Garabayev v. Russia, the cases concerning disappearances in Chechnya or the judgment Cyprus v. Turkey and other cases concerning the northern part of Cyprus). Most of the judgments that my predecessor, Mr Pourgourides, quoted in his report of 2010 and that had then been pending for more than five years, have now been pending for more than 10 years. Moreover, some of the cases concerning expulsion or extradition of foreigners, show flagrant disrespect for the interim measures ordered by the Court under Rule 39 of its Rules. These trends illustrates very well the scale of the problem of non-implementation as well the fact that there are more and more cases in which States Parties appear reluctant to implement judgments of the Court.

49. Thus, it is perhaps time for the Committee of Ministers to make use of the procedures set up in Article 46 paragraphs 3, 4 and 5 of the Convention and in particular the “infringement procedure.” As long as they have not been used, it is impossible to assess their efficiency. At a later stage, the Council of Europe and States Parties could reflect on amending this provision of the Convention, by introducing more severe sanctions against States refusing to abide by judgments of the European Court of Human Rights.

50. Besides this far-reaching proposal, I consider that it is crucial to reinforce the role of applicants and civil society in the process of implementation of judgments of the Court, which has been, to a certain extent, recognised by the Brussels Declaration (“where appropriate”). For the time being, their engagement with the Committee of Ministers remains insufficient; in the majority of cases, the Committee of Ministers relies mainly on information provided by the respondent States in their action plans/reports. This information is often one-sided and should be balanced out by the Committee of Ministers, with the latter interacting more intensively with applicants and civil society. The Committee of Ministers could perhaps invite applicants, their representatives or representatives of NGOs for exchanges of views at their DH meetings. Moreover, it should also be noted that Rules 8 and 9 of the Committee of Ministers’ Rules for the supervision of the execution of judgments and terms of friendly settlements do not contain any reference to international organisations. However, some new problems, such as the horrific situation of irregular migrants reaching Greece or Italy, show that the expertise of other international organisations, such as the United Nations and the Office of their High Commissioner for Refugees (UNHCR), could be useful to provide better guidance as regards implementation of judgments of the Court.

51. Furthermore, I would like to call on the Committee of Ministers to make further efforts to improve the accessibility of its work, in particular by ensuring that the website of the Department for Execution of the Court’s Judgments is regularly and rapidly updated. In this respect, and besides the general need to strengthen the Department’s resources (as indicated in the Brussels Declaration), more resources should be dedicated to the Department’s information technology. Member States of the Council of Europe could also provide more funds for its awareness-raising activities via contributions to the Human Rights Trust Fund (HRTF) or via voluntary contributions.

52. Within the Council of the Europe, more synergies between the Committee of Ministers, the Secretary General and other entities (including monitoring bodies) of the Organisation are needed to co-ordinate various co-operation activities in the area of human rights protection and promotion. Other Council of Europe bodies should take into account the Court’s judgments in their day-to-day work. The interaction between the Court and the Committee of Ministers, which has considerably increased within the last few years and has led to progress in the execution of some pilot and quasi-pilot judgments, is to be welcomed and it would be useful if the Court were to continue giving indications regarding implementation under Article 46 of the Convention. However, the creation of domestic remedies (often limited to compensation) required by the Court in certain (pilot) judgments does not always solve the root problems revealed by the violations of the Convention found by the Court and should not absolve the respondent States from carrying out comprehensive reforms.

53. To conclude, I would like to stress that States Parties to the Convention are legally obliged to implement judgments of the European Court of Human Rights and that they are required to take all necessary measures to do so. Efforts to eradicate structural problems must be continued, in co-operation with the Council of Europe. The Assembly and national parliaments have an important role to play here, as pointed out in the Brussels Declaration. Thus, I call again on all States Parties which have not yet done so, to establish parliamentary structures tasked with scrutinising the Convention compliance of all national legislation and to actively engage in the implementation of the Court judgments by adopting appropriate laws. I also call on my colleagues to make use of the dual role of Assembly members in order to raise awareness about Convention standards in their national parliaments. Most importantly, the Assembly should remain seized on this subject and produce further reports on the implementation of judgments of the European Court of Human Rights, in order to give further impetus to national parliaments’ work in this area.

Appendix 1 – State-by-State overview

(open)

I. Introductory remarks

1. This appendix contains updated information that was originally provided in background memoranda prepared for hearings that the Committee on Legal Affairs and Human Rights (“the committee”) held between April 2012 and January 2013. It also takes into account information provided by some delegations in response to my letters of 7 June 2013 requesting comments on the Addendum to my previous document on “Implementation of judgments of the European Court of Human Rights: preparation of the 8th report. Stock-taking and proposals by the rapporteur” of May 2013.

In the second half of 2013, the following delegations provided replies to my query: Bulgaria, Greece, Italy, Poland, Romania, Turkey, Ukraine and the United Kingdom.

2. The purpose of this appendix is to provide insight into the main issues concerning implementation of judgments of the European Court of Human Rights (“the Court”) faced by the nine States that are the focus of the 8th report: Italy, Turkey, the Russian Federation, Ukraine, Romania, Greece, Poland, Hungary – not included in the 2013 Addendum – and Bulgaria. Among the issues assessed are: excessive length of judicial proceedings (endemic notably in Italy, but also existing in Bulgaria, Greece, Hungary, Poland, Romania and Ukraine), chronic non-enforcement of domestic judicial decisions (widespread, in particular, in the Russian Federation and Ukraine), deaths and ill treatment by law-enforcement officials and lack of effective investigations into them (particularly apparent in the Russian Federation), poor conditions in detention facilities (in particular in Bulgaria, Romania, the Russian Federation and Ukraine), unlawful or over-long detention on remand (notably in the Russian Federation, Turkey and Ukraine) and various violations of the Convention concerning foreigners who face expulsion or seek asylum (especially in Greece and Italy). The appendix takes stock of the progress that has been accomplished since the 7th report on this subject by Mr Pourgourides

(“Pourgourides report”) and focuses on cases that are under the enhanced supervision of the Committee of Ministers and which involve structural and/or complex problems according to the Committee of Ministers 2014 (8th) Annual Report on the supervision of the execution of judgments and decisions of the European Court of Human Rights.

I have not been able to include in this appendix issues raised at the most recent 1230th Committee of Ministers (DH) meeting (9-11 June 2015).

3. While not directly relevant in the context of a discussion of the most difficult human rights problems, the end of the present document addresses unresolved issues relating to the non-implementation of certain Court judgments by the United Kingdom.

II. State-by-state overview

1. Italy

4. Mr Pourgourides’ report identified the main problems for Italy to be:

excessive length of judicial proceedings;

lack of an effective remedy in that regard;

the expulsion of foreign nationals in violation of the Convention.

5. The report also dealt with an issue of “indirect expropriation”.

On 22 and 23 October 2014, I carried out a fact-finding visit to Rome, where I discussed these problems with the authorities and representatives of civil society (Amnesty International, Associazione Antigone, focusing on detainees’ rights and Centro Astalli, focusing on refugees’ rights).

1.1 Excessive length of judicial proceedings

6. This issue has plagued the Italian justice system for decades, the backlog of cases having increased steadily each year. Currently, the Committee of Ministers is examining more than 2 000 cases concerning this issue. Most of these cases relate to the situation before 2001, when a compensatory remedy was introduced in Italy, while the more recent cases concern issues related to the functioning of this remedy.

7. In its Interim Resolution (2010) 224 of 2 December 2010,

the Committee of Ministers urged Italy to provide statistics on the situation of the backlog of cases and to adopt effective measures to solve this problem. According to the statistics provided by the Italian authorities, in their action plan of 25 October 2011,

an important development can be noted. By the end of 2010, the number of pending civil cases in the Italian courts had decreased by roughly 360 000 to 5 466 346 (namely by 4%). Furthermore, at the date of the action plan, the number of new civil cases had declined in comparison with previous years mainly due to a new procedure of compulsory preliminary mediation in certain civil law matters.

8. The said action plan mentions other measures taken: introducing a simplified procedure for less complex civil disputes and a minimal court fee in proceedings against administrative sanctions as a deterrent to manifestly ill-founded applications. On 6 October 2011, new legislation entered into force, which seeks to simplify civil proceedings, limiting the types of civil procedures to three.

Further measures adopted include the digitalisation of case files, allowing easier and faster access through information technology. A uniform method of managing civil case files in appeal courts and tribunals throughout Italy was put into operation at the end of March 2011. Finally, best practices have been disseminated widely and honorary judges were appointed to clear the backlog of cases.

9. At the 1136th meeting in March 2012, the Committee of Ministers welcomed the renewed commitment expressed by the Italian authorities towards adopting further measures and monitoring the effects of those already adopted, as well as the slight decrease in the length of bankruptcy proceedings and in the backlog of civil proceedings. However, it demanded that “additional large scale measures” be adopted, as it considered that the situation was “deeply worrying”,

constituted “a serious danger for the respect of the rule of law, resulting in a denial of rights enshrined in the Convention” and created “a serious threat to the effectiveness of the system of the Convention”. This evaluation was further underscored by a letter, of 14 December 2011, sent by the Registrar of the Court to the Chairperson of the Committee of Ministers, drawing the Committee of Ministers’ attention to the seriousness of the situation in view of the significant number of cases which continue to pour into the Court.

10. Despite repeated calls from the Committee of Ministers (see the decision adopted at the 1144th meeting (DH) (June 2012)),

the authorities appear to still have not addressed the issues related to the monitoring of the impact of the measures already taken in relation to civil proceedings. As regards the administrative proceedings, the last information was submitted on 30 July 2012.

The authorities indicated that a legislative reform resulted in the adoption in 2010 of a new Code of Administrative Proceedings, which came into force on 26 September 2010. As a consequence of this reform, in 2011, the administrative courts (the Council of State and the regional administrative courts) registered an overall decrease of the backlog. According to the Italian authorities, although the results of this reform are “hampered” by the need to process the backlog, the length of administrative proceedings is presently in a better position when compared to that of the civil proceedings. However, the authorities have not measured the backlog of administrative proceedings and have not yet drawn up a timetable for anticipated medium-term results with a view to assessing the impact of this reform on the backlog and identifying additional measures, if need be,

of which the Committee of Ministers took note in its decision taken at its 1157th (DH) meeting in December 2012.

11. In a letter from the Registrar of the Court to the Chair of the Committee of Ministers dated 22 June 2012, Italy appeared as the first among the seven member States which had the highest number of repetitive applications pending before the Court with more than 8 000 applications concerning the length of proceedings and the implementation of decisions taken under the Pinto law.

At its 1157th (DH) meeting (December 2012), the Committee of Ministers once again recalled that excessive delays in the administration of justice resulted “in a denial of the rights enshrined in the Convention” and were “a serious threat to the effectiveness of the system of the Convention”, “underlined again the urgency to stop the flow of further repetitive applications before the European Court and the urgency to find a sustainable solution” to this structural problem and urged the Italian authorities to provide a “consolidated action plan”.

12. In April 2013, the Italian authorities presented an update about the measures taken or planned,

which was carefully examined by the Department for the Execution of Judgments of the European Court of Human Rights in an information document CM/Inf(2013)21 of 6 May 2013. The authorities announced some measures aimed at improving the efficiency of the judicial system, such as specialisation of judges, some organisational measures to be taken by the heads of the judicial offices (such as preparing annual action plans for the handling of cases) and, in civil cases, by judges (such as setting a “trial timetable”), dissemination of best practices and wider use of information technology. As regards civil cases, as of 11 September 2012, new procedural rules on appeals, allowing judges to filter more quickly manifestly ill-founded appeals, entered into force. The obligatory mediation in civil and commercial cases introduced in 2010 was declared unconstitutional by the Constitutional Court in 2012. The authorities also provided statistical data, but only concerning the first instance courts. These data showed an increase in the average length of civil proceedings (1 139 days in 2012) and a decreasing trend as regards the backlog of cases. As regards criminal cases, the authorities informed about their intention to decriminalise some minor offences, but failed to provide updated statistical data. Concerning administrative courts, they registered an overall decrease of their backlog in 2012. The authorities also showed that the average length of bankruptcy proceedings had decreased in 2012.

13. At its 1172nd DH meeting in June 2013,

the Committee of Ministers stressed again the need to set up a domestic monitoring mechanism in order to evaluate the impact of the reforms. It also invited the Italian authorities to finalise the “consolidated action plan”, in close co-operation with the Department for the Execution of Judgments of the European Court of Human Rights and by taking into account its comments included in document CM/Inf(2013)21. It welcomed the determination expressed by the Italian authorities in order to adopt the necessary measures to effectively solve the problem of the excessive length of judicial proceedings. The Committee of Ministers recalled some encouraging trends for the bankruptcy and administrative proceedings and noted that most of the reforms announced for the civil proceedings had been adopted. However, it observed that additional information (in particular concerning criminal proceedings) and precise and updated data were necessary in order to properly assess the situation.

14. During and following my visit to Rome, I was provided additional information concerning the measures taken by the Italian authorities to reduce the length of civil proceedings between 2013 and 2014 (including those introduced by Decree Laws 69/2013, 132/2014 and 90/2014): “assisted negotiation” (out-of-court dispute resolution procedure, with the help of lawyers), transfer to an arbitrator (who must be a lawyer), new rules on mediation, more frequent use of the summary procedure, streamlining and acceleration of forced execution, further computerization (making obligatory the submission of documents in electronic form in some cases), hiring of additional qualified staff to assist judges (ufficio per il processo), hiring 400 “auxiliary judges” at courts of appeal and appointing judges as law clerks at the Court of Cassation (magistrato assistente di studio). According to the Ministry of Justice, the delays in civil proceedings were mainly due to the backlog of cases at appeal courts and/or the Court of Cassation. During my meeting with the President of Cassation, he raised the issue of access to this jurisdiction, stressing that the cassation appeal should be excluded for small claims. As of 31 December 2013, there were 5.16 million civil cases pending (compared with 6 million at the end of 2009, this shows a decreasing trend). Interestingly, according to the European Commission for the Efficiency of Justice (CEPEJ) report of 2014 (based on data from 2012),

the Italian judges are among the most productive in Europe. As regards criminal cases, I was informed at my meeting in the Chamber of Deputies that the initiative to decriminalise some (petty) offences, the reform of statutory limitations and other structural measures were in the pipeline. Concerning administrative court proceedings, they usually lasted five years (for two instances), which was not a good result, according to the legal advisors of the Council of Ministers’ office.

1.2 Lack of effective remedy

15. The Mostacciuolo Giuseppe (I)

group of cases deals with over 160 such cases. The 2010 quasi-pilot judgment Gaglione and others

concerns 475 applicants, who claimed a delay in the payment of compensation. The Court found in the latter case that delays by the Italian authorities in enforcing “Pinto decisions”

ranged from 9 to 49 months, and that in 65% or more of the cases there was a 19-month delay.

The Court regarded this to be not only an aggravating factor with respect to Italy’s responsibility under the Convention, but also a threat to the future of the European human rights system.

It also noted that almost 4 000 cases concerning, amongst others, delays in paying “Pinto compensation”, were pending before it.

16. In its Interim Resolutions (2009) 42 of 19 March 2009

and (2010) 224 of 2 December 2010,

the Committee of Ministers requested that Italy amend the “Pinto Act” providing compensation for victims of unreasonably long judicial proceedings.

While domestic case law developments showed compliance with the criteria set by the Court as regards determination of compensatory amounts, the delays in paying out the compensation awarded by national courts were still a serious problem.

The Committee of Ministers included several proposals in its Interim Resolution CM/ResDH(2010) 224, including amendments of the Pinto Act. On 18 October 2011, Italy transmitted an action plan stating that the Court’s and the Committee of Ministers’ suggestions were not carried at national level due to the financial crisis. Instead, Italy considered it more effective to allocate additional funds to addressing the root problem, namely the excessive length of proceedings, and resolving the large number of complaints in the judicial system.

17. At its 1136th meeting (DH) in March 2012, the Committee of Ministers welcomed the Italian authorities’ commitment towards finding a solution to delays in payment of amounts awarded under the Pinto Act, and invited the authorities to submit concrete proposals in this respect, along with a calendar for the implementation of proposals.

Despite the submission of an updated action plan of 30 March 2012, in accordance with the decision adopted at the 1144th meeting (DH) (June 2012), the Italian authorities still had to provide the Committee of Ministers with a detailed explanation on the announced plan for payment of arrears under the Pinto proceedings. They have only confirmed that on 30 October 2012, the Ministry of Justice had begun paying these arrears for the period 2005-2008.

18. Amendments had been made to the Pinto Act by Legislative Decree No. 83 issued on 22 June 2012, which came into force on 26 June 2012. The new provisions introduced a written procedure for the examination of the compensation claims. Other provisions conditioned the access to the Pinto remedy upon termination of the main proceedings and excluded or limited the compensation in certain cases. The amendments occasioned an exchange between the Committee of Ministers Secretariat and the authorities as regards their compatibility with the Convention and the Court’s case law on the effectiveness of the remedies and compensation criteria.

Article 3.7 of the Pinto Act, which provides that the payment of the compensation is made within the limit of the available funds, has not been amended. Under the new legislation, the purely compensatory nature of the Pinto remedy is maintained. At its 1157th (DH) meeting in December 2012, the Committee of Ministers noted with concern that the said amendments might raise issues as to their compatibility with the Convention and the Court’s case law.

19. In November 2012, the authorities announced that they envisaged changing the system of financing the Pinto Act compensation,

that they exempted from seizure the funds allocated for such payments and that they allocated 50 million euros for them in the budget for 2013. However, no timetable for the adoption of the reform of the financial system set by the Pinto Act was presented.

20. In its decision taken at its 1172nd (DH) meeting in June 2013,

the Committee of Ministers invited again the Italian authorities to provide information on lifting budgetary limitations on the payment of the compensation stemming from the Pinto Act application and on allocating funds for the payment of arrears in this compensation. It stressed the urgency to stop the flow of repetitive applications before the Court caused by the deficiencies in the Pinto Act.

21. On 5 September 2013, Italy provided new information pertaining to the progress made to address the issue of repetitive cases before the European Court of Human Rights concerning the functioning of the Pinto mechanism.

According to an action plan established for 2012-2014, agreed with the Registry of the European Court of Human Rights, the authorities aimed at closing over 7 000 cases pending before the Court by proposing friendly settlements or unilateral declarations.

22. Following my visit to Rome, I was informed that funds for the payment of Pinto compensations had increased and that the Ministry of Justice disposed of 100 million euros (55 million attributed for 2013-2015 plus 45 million added in 2014) for this purpose. In 2013, the State’s General Accounting Officer authorised the Ministry of Justice to pay such compensations, even if there were no funds in the relevant budgetary chapter, by using the “suspended account” procedure (for example using money advanced by the Bank of Italy). This meant that, in practice, Article 3.7 of the Pinto Act was irrelevant.

1.3 The expulsion of foreign nationals

23. The Saadi group of cases concerned potential violations of Article 3 of the Convention if the applicants had been expelled to their country of origin (in these cases, Tunisia), where there was a real risk of them being subjected to ill treatment.

The Ben Khemais group of cases,

(which includes also the Mannai,

Toumi

and Trabelsi

judgments), concerns violations of Articles 3 and 34 due to the applicants’ expulsion to Tunisia, notwithstanding the real risk of ill treatment they faced in this country and in disregard of the Court’s interim measures requiring Italy not to expel applicants until further notice.

24. In a series of inadmissibility decisions against Italy of 2012, the Court confirmed its new position,

according to which there were no substantial grounds to believe that applicants would face a real risk of being ill treated in Tunisia, due to the recent democratic transition in this country. Following these decisions and the individual and general measures taken by the Italian authorities to implement the judgments from the Saadi group, at its 1211th DH meeting in November 2014, the Committee of Ministers declared the cases closed.

25. As regards more specifically the Ben Khemais group of cases, at its 1108th DH meeting in March 2011, the Committee of Ministers again requested the authorities to provide examples showing that interim measures indicated by the European Court of Human Rights were respected in practice, “in particular when Justices of Peace are required to validate expulsions ordered by the Ministry of Interior and Prefects”, and to provide information on “the feedback requested from courts of appeal by the Ministry of Justice on the implementation of the requirements of the Convention and on measures envisaged to create a mechanism to ensure that all relevant authorities are rapidly informed when an interim measure is indicated by the European Court”.

Subsequently, the Italian authorities have provided an action report;

however, it appears that the authorities are still expected to clarify some aspects related to the individual and general measures taken in this group.

26. Interestingly, the Committee of Ministers is also now examining the Hirsi Jamaa and others

case, which concerns the interception at sea and transfer to Libya by the Italian military authorities of 11 Somalian and 13 Eritrean nationals in May 2009. According to the Court, the applicants were exposed to the risk of being subject to ill treatment in Libya and to the risk of being arbitrarily returned to their countries of origin (two violations of Article 3 of the Convention). Their removal to Libya was of collective nature (violation of Article 4 of Protocol No. 4) and they did not dispose of an effective remedy (violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol No. 4). The Committee of Ministers received a number of submissions from civil society

and from the UNHCR

calling upon the Italian authorities to prevent similar cases of refoulement in the future. The Italian authorities provided an action plan on 6 July 2012.

On 25 June 2014, the Italian authorities submitted an action report,

in which they assured that since the judgment became final in 2012, push-backs such as those at the root of the violations in this case did no longer take place. The authorities also confirmed that migrants intercepted at sea enjoyed today the full protection of Italian legislation and they could lodge their complaints with a competent authority to obtain an assessment of their asylum request before any removal measure was enforced. Moreover, procedures adopted by the Italian Navy were in conformity with international and domestic legislation, including those on fundamental rights.

27. At its 1208th DH meeting in September 2014,

the Committee of Ministers noted with interest the efforts made by Italian authorities to obtain assurances that the applicants would not be subjected to treatment incompatible with Article 3 of the Convention in Libya or arbitrarily repatriated to Somalia or Eritrea. The Committee of Ministers, furthermore, recalled the firm assurances given by the authorities about the incorporation in Italian law of the clarifications given in the said judgment as to the requirements of the Convention and practice to prevent similar pushbacks or expulsions of foreign nationals in the future. It requested the authorities to provide by 1 December 2014 more detailed information on the practical measures of implementation taken, including instructions, guidelines and training, in order to examine the possibility of closing the case. As stressed by my interlocutors in Rome, both the authorities and NGOs, Italy has been making major efforts to rescue human lives at sea, namely through the Mare Nostrum operation, which had saved more than 140 000 people since October 2013 and which had been replaced by the Frontex operation Triton as of 1 November 2014.

However, more support from the European Union and other States was needed to tackle this problem.

1.4 Other issues

1.4.1 “Indirect expropriation”

28. The issue of the practice known as “indirect expropriation” (violation of Article 1 of Protocol No. 1)

still needs to be tackled.

The Committee of Ministers is currently examining the Belvedere Alberghiera SRL group,

which consists of more than 80 cases.

The Italian authorities have introduced several legislative measures, which the Committee of Ministers welcomed in its Interim Resolution CM/ResDH(2007)3. In October 2007, the Constitutional Court declared unconstitutional some provisions on expropriations in the public interest. However, the Committee of Ministers is still awaiting information concerning further general measures (in particular, on whether there is any reduction or suppression of the practice of indirect expropriation, as well as on the dissuasive effect of the Law No. 296/2006, according to which the damages for illegal occupation of land are covered by the budget of the responsible administration).

1.4.2 Detention conditions

29. Since 2009, the Committee of Ministers has also been examining issues of prisons overcrowding and detention conditions in Italy. The matter already appeared with the Sulejmanovic

case, in which the Court found a violation of Article 3 of the Convention in relation to the detention conditions of the applicant. Moreover, in the case of Cirillo v. Italy, the Court found a violation of Article 3 of the Convention on account of the inadequacy of the medical care provided in prison.

In consideration of the problem of the inhuman and degrading detention conditions deriving mainly from a structural problem of overcrowding in Italian prison facilities,

the Court delivered a pilot judgment in Torreggiani and others v. Italy,

in which it requested Italy to put in place, by 27 May 2014, a remedy or combination of remedies providing redress in respect of violations of the Convention resulting from overcrowding in prisons. The Court also stressed that long-term measures were needed to resolve the problem and noted that at 13 April 2012, the rate of overpopulation in Italian prisons was at 148%, of which 42% of prisoners were detained on remand.

30. The authorities provided an action plan

on 29 November 2013, followed by additional information and then by a revised action plan on 15 September 2014.

At its 1201st DH meeting (June 2014), the Committee of Ministers welcomed the authorities’ commitment to resolve the problem of prison overcrowding and the progress made in this area, including a significant drop in the prison population and an increase in living space to at least 3m2 per detainee. It also welcomed the introduction of a preventive remedy and the steps taken to introduce a compensatory remedy. Following the adoption in September 2014 of a law-decree providing for the latter remedy, the Court found that the remedies introduced by Italy and allowing detainees to complain about possible violations of Article 3 of the Convention were in principle effective.

At its 1214th DH meeting (2‑4 December 2014), the Committee of Ministers welcomed the new remedies and underlined the importance of monitoring their implementation. It noted with interest the latest statistics provided by the authorities, which continued to show a reduction of prison overcrowding, and invited the authorities to provide a consolidated action plan by 1 December 2015. In light of the progress made in implementing these judgments, the Committee of Ministers transferred these cases to the standard procedure.

31. During my visit in Rome, the authorities informed me that efforts were being made to reduce the problem of overcrowding. Representatives of NGOs agreed that some improvements had been visible, but complained about very poor conditions of detention of migrants in temporary centres.

1.4.3 The M. C and others case

32. Another case – M.C. and others

– is being examined by the Committee of Ministers under its enhanced supervision procedure. It concerns a systemic problem stemming from a legislative intervention which cancelled retrospectively, and in a discriminatory manner, the benefit of an annual adjustment of a compensation allowance paid to the applicants or to their deceased relatives for having suffered accidental viral contamination (violations of Article 6.1 and of Article 1 of Protocol No. 1 taken alone or in conjunction with Article 14). The Court invited the authorities to set, by 3 June 2014, a binding time-limit for guaranteeing the realisation of the entitlement to the annual adjustment. The Italian authorities submitted a communication regarding general measures on 22 September 2014.

In December 2014, the Committee of Ministers decided to resume consideration of the case at the latest at its 1242nd meeting (December 2015), with a view to examining the status of the adoption.

2. Turkey

33. According to the Pourgourides report, the most serious problems concerning Turkey include:

failure to re-open proceedings;

repeated imprisonment for conscientious objection;

violations of the right to freedom of expression;

excessive length of detention on remand;

actions of security forces;

issues concerning Cyprus.

34. The examination of the issues of excessive length of judicial proceedings and lack of an effective remedy in respect thereof, listed in my previous information document – AS/Jur (2013) 14 Addendum – (see cases Ormanci and Others v. Turkey

and Ümmühan Kaplan v. Turkey

), was closed by the Committee of Ministers in December 2014

following the adoption of individual and general measures by Turkey. On 24-25 April 2014, I visited Ankara, where I met the competent authorities and representatives of civil society (from the IHOP – Human Rights Joint Platform).

2.1 Failure to reopen proceedings

35. In the Hulki Günes v. Turkey

group of cases, the Court found that the applicants were convicted in unfair criminal proceedings on the basis of testimony of witnesses who never appeared before the court or of statements obtained under duress and in the absence of a lawyer (violations of Articles 3 and 6 paragraphs 1 and 3.c).

The Court requested the reopening of proceedings,

but the Turkish Code of Criminal Procedure only provided for the reopening of judgments finalised before 4 February 2003 and those applications lodged with the Court after that date.

36. As Mr Pourgourides explained in his report, “significant pressure has been brought to bear on the Turkish authorities” regarding this issue for nearly a decade.

The Turkish authorities prepared a number of draft laws in order to implement these judgments, but all attempts at their adoption failed. An alternative draft law had been prepared within the context of “Third Reform Package”, but it was not adopted in July 2012. It was subsequently included in the “Fourth Reform package,” which the Turkish Parliament adopted on 11 April 2013 (Law No. 6459). The provision concerning reopening of proceedings allows it in cases under the supervision of the Committee of Ministers as of 15 June 2012; the requests for reopening could be lodged within three months after the entry into force of Law No. 6459.

37. On 30 April 2013, the aforesaid law entered into force. Following this, the applicant in the case of Hulki Günes

lodged a request for reopening of proceedings, which was accepted by the competent domestic court and a retrial started. At their 1172nd (DH) meeting (4-6 June 2013),

the Committee of Ministers invited the Turkish authorities to provide further information with respect to the progress in the reopening of proceedings by the other applicants in this group and decided to continue the supervision of the cases under this group under the standard procedure. On 31 March 2015, the Turkish authorities provided an action report concerning individual and general measures

. According to this document, the conviction of Mr Hulki Günes was upheld and the other applicants either did not request the reopening of proceedings or requested it after the three-month deadline.

2.2 Repeated imprisonment for conscientious objection

38. In the case of Ülke v. Turkey,

the Court found that Turkey had violated Article 3 of the Convention by repeatedly convicting and imprisoning the applicant for conscientious objection.

According to the Court, the Turkish authorities’ actions forced the applicant to go into hiding and endure a life equivalent to “civil death.”

39. After a number of years of inaction and failure to communicate on the side of the Turkish authorities,

the Committee of Ministers, at its 1144th DH meeting (June 2012), was finally able to welcome the fact that the Eskisehir Military Court had lifted the arrest warrant against the applicant for desertion.

Nevertheless, it remained unclear to the Committee of Ministers, “whether the applicant is still subject to further prosecution or conviction and whether he can exercise his civil rights without hindrance.”

As stressed by the applicant’s representative, “the withdrawal of the arrest warrant is important,” but “it will only eliminate the problem partially”.

The Committee of Ministers requested that the Turkish authorities keep it informed of the applicant’s situation, and provide a precise timeline for the adoption of the required general measures, on which consultations were on-going among relevant Turkish authorities.

40. At its 1150th (DH) meeting (September 2012), the Committee of Ministers noted with interest the assurances given by the Turkish authorities

that the applicant could exercise his civil rights without any hindrance, obtain a passport, and travel abroad.

However, as a result of the application of the legislation in force, an investigation against the applicant for desertion was still pending, and therefore the applicant could still be theoretically subjected to prosecution and conviction.

At its 1157th meeting in December 2012, the Committee of Ministers noted with concern that further individual measures were still needed in the cases of Erçep and Feti Demirtaş.

It urged the Turkish authorities to erase the consequences of the violations for the applicants

and to “take the necessary legislative measures with a view to preventing the repetitive prosecution and conviction of conscientious objectors and to ensure that an effective and accessible procedure is made available to them in order to establish whether they are entitled to conscientious objector status”.

Since then, the applicant had lodged a complaint before the Constitutional Court on 2 June 2014 and the proceedings are now pending.

In the meantime, the government submitted another communication on this group of cases.

During my visit in Ankara (24-25 April 2014), I raised this issue with my interlocutors in the Grand National Assembly and was informed that the initiative aimed at establishing an alternative military service had been postponed for the moment, mainly due to geopolitical considerations.

2.3 Freedom of expression

41. There are over 100 cases against Turkey concerning violation of the right of freedom of expression, which are pending execution before the Committee of Ministers.

42. Although Turkey has enacted a number of reforms aimed at adequately protecting freedom of speech and pluralism since 1998,

Mr Pourgourides concluded in his report that the legislative amendments put forth and training initiatives undertaken did “not eradicate the root of the problem” and were “merely a different expression of the same Convention-violating substance”.

In November 2011, the Secretary General of the Council of Europe announced that the Council of Europe would implement a project on “Freedom of Expression and Media in Turkey”, specifically designed to address the problems stemming from this group of judgments. The project was carried out between January 2012 and April 2014: a number of awareness-raising activities, in particular training sessions for judges and prosecutors, were organised in its framework. Consequently, numerous legislative measures were taken in order to bring the Turkish law in line with the standards of the European Court of Human Rights and the high courts started delivering judgments more and more in line with the Convention standards.

43. In his report of 2011 the then Council of Europe Commissioner for Human Rights, Mr Thomas Hammarberg,

echoed the Pourgourides report’s concerns that “the various amendments to the Turkish Criminal Code and the Anti-Terrorism Act have not been sufficient to effectively ensure freedom of expression.”

Among the issues highlighted in Mr Hammarberg’s report were the on-going lack of proportionality in the interpretation of the statutory provisions and their application by courts and prosecutors, the absence from the Turkish legal system of the defences of truth and public interest, and the unfairness of detention and trial proceedings in cases related to freedom of speech. Mr Hammarberg “urge[d] the Turkish authorities to address these problems through legislative and practical measures, as well as through systematic training and awareness-raising activities within the justice system”.

Notwithstanding the above mentioned project on freedom of expression, the incumbent Commissioner for Human Rights, Mr Nils Muižnieks, also raised concerns about the state of media freedom in Turkey, particularly in the context of arrests of journalists and media workers in December 2014.

44. During its 1201st (DH) meeting (3-5 June 2014), the Committee of Ministers welcomed that “the recent legislative amendments made to the Anti-Terrorism Law and the Criminal Code restrict the scope of certain crimes to expression containing incitement to hatred and violence.” Although the Committee of Ministers “welcomed the positive developments in domestic case law,” it also stressed the need to “incorporate fully the case law of the Court” into the domestic courts’ assessment and reasoning and decided to review the progress made at the latest at its DH meeting in June 2015.

The above-mentioned “Project on Freedom of Expression and Media in Turkey” seems to have played a triggering role in the adoption of legislative amendments and to be a good example of co-operation between the Council of Europe and the Turkish authorities.

In April 2015, the Turkish authorities provided to the Committee of Ministers an updated action plan,

including information on legislative changes that had come into force between 2012 and 2013 and new trends in judicial practice. The Committee of Ministers recently examined this group of cases at its 1230th meeting (DH) in June 2015.

45. The Committee of Ministers is also examining the case of Ahmet Yildirim v. Turkey,

concerning restriction of access to Internet and blocking of Internet sites (last examined at its 1208th meeting in September 2014).

In April 2014, our Committee adopted a statement condemning restrictions of access to Internet services by Google, Twitter and YouTube, during election time in Turkey.

During my visit to Ankara (April 2014), I pointed out the necessity to protect the freedom of expression, including on the Internet, with my interlocutors in the Ministry of Justice, the Constitutional Court and the Court of Cassation, and was informed of various training activities organised to this effect.

2.4 Excessive length of detention on remand

46. There are currently nearly 170 excessive length of detention on remand cases against Turkey pending execution before the Committee of Ministers (concerning primarily violations of Article 5 paragraphs 3, 4 and 5 of the Convention).

47. In his report, Mr Pourgourides welcomed the changes introduced by the Code of Criminal Procedure, which came into force in 2005 and was aimed at improving the reasons given for detention on remand, and urged Turkey to introduce “an effective remedy to challenge the lawfulness of detention on remand”.

Similarly, in the report following his visit to Turkey in October 2011, Mr Hammarberg acknowledged Turkey’s efforts to eradicate this systemic problem, but noted that more needed to be done, particularly with regards to the use of adequate alternatives and the establishment of an effective remedy.

Since the Code of Criminal Procedure came into force, there has been gradual progress in the execution of these judgments, in particular concerning the decrease in the length of detention on remand.

48. In June 2011, the Turkish authorities informed the Committee of Ministers that a working group had been set up in the Ministry of Justice in order to examine the legislative amendments required to execute these judgments and that further training of judges was envisaged.

On 3 May 2013, the government submitted a second action plan.

49. At its 1172nd (DH) meeting (4-6 June 2013),

having recalled the structural nature of the problem at stake, the Committee of Ministers welcomed the recent efforts made by the Turkish authorities, in particular within the context of the so called “Third and Fourth Reform Packages,” aimed at aligning Turkish legislation and practice with Convention requirements, and noted with satisfaction a significant decrease in the length of detention on remand and an increase in the use of alternative measures. At the same time, having noted that Turkish legislation still allowed for the possibility of extension of detention on remand up to 10 years for certain crimes, including terrorism, the Committee of Ministers invited the authorities to provide further statistical information in this respect as well as with respect to judicial practice following the legislative reform. The Committee of Ministers further welcomed the introduction of a remedy to challenge the lawfulness of detention on remand and the extension of the scope of the right to compensation. It asked the Turkish authorities to clarify whether the right to compensation can be exercised while detention on remand was continuing and proceedings were pending.

2.5 Actions of security forces

50. Despite the positive changes made to the Turkish legislative framework governing the security forces’ behaviour and the training of law-enforcement officers,

there are over 60 cases regarding the lack of effective investigation into the actions of Turkish security forces currently pending execution before the Committee of Ministers.

51. According to the Turkish authorities’ action plan of 29 July 2011 for the execution of the Bati and others v. Turkey group of cases,

the new Criminal Code (No. 5237) extends the prescription period after which wrongful actions of the security forces may no longer be investigated or punished. Besides that, in November 2011, the Ministry of Justice organised an international seminar on the execution of judgments of the European Court of Human Rights. The issue of effective investigations is to be considered in the framework of professional training for judges and prosecutors and a road map for the execution of the judgments from this group is being prepared.

In her letter of 19 August 2013,

the then head of the Turkish delegation to the Assembly, Ms Nursuna Memecan, specified that following the adoption of the “Fourth Reform Package”, the statute of limitations with respect to the offence of torture had been removed from the Criminal Code and that it was now possible to reopen, after a judgment of the European Court of Human Rights, an investigation which had led to the non-prosecution of the alleged perpetrators of such an offence. According to the Committee of Ministers 2014 Annual Report, bilateral contacts are under way concerning an action plan under preparation by the Turkish authorities.

2.6 Issues concerning Cyprus

52. In the interstate case of Cyprus v. Turkey,

the Court found multiple violations of the Convention in connection with Turkey’s 1974 military intervention in Cyprus concerning mainly Greek-Cypriot missing persons and their relatives, the property rights of displaced Greek Cypriots, as well as the living conditions of Greek Cypriots in the northern part of Cyprus. In his report, Mr Pourgourides highlighted the lack of progress in resolving the issue of missing persons, and also focused on the issue of the property rights of displaced Greek Cypriots.

53. Despite the Committee of Ministers’ close supervision, issues concerning Cyprus have been on its agenda since 2001.

As regards the issue of Greek-Cypriot missing persons and their relatives (violations of Articles 2, 3 and 5; see also the judgment in the case of Varnava and Others v. Turkey),

some progress has been noted following the identification of missing persons by the Committee on Missing Persons in Cyprus (“CMP”). The Committee of Ministers examined this question at its 1186th (DH)

meeting (in December 2013), when it took note of the exchange of views with the members of the CMP and the new information provided by the Turkish authorities and permissions granted to the CMP to access military zones. At the same time the Committee of Ministers recalled its previous conclusions on the necessity of adopting a proactive approach and called on the Turkish authorities to continue providing the CMP with all relevant information and giving it access to all relevant places. As regards identified persons, the Committee of Ministers took note of the progress of the investigations into their deaths. In April 2015, the Turkish authorities provided new information.

54. 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), following the European Court of Human Rights’ 2010 inadmissibility decision in the case of Demopoulos v. Turkey, the Committee of Ministers was in the process of analysing its impact on the implementation of this cluster of the judgment.

In December 2011, the delegation of Cyprus requested the Committee of Ministers to postpone its examination since the European Court of Human Rights had pronounced itself on a request filed by its government under Article 41.

On 12 May 2014, the Court (Grand Chamber) delivered its judgment on just satisfaction, ordering 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.

55. As regards the living conditions of Greek Cypriots residing in the northern part of Cyprus (Karpas region), the Committee of Ministers continues to examine the issue of their property rights and the effective remedies in this respect (violations of Article 1 of Protocol No. 1 and Article 13 of the Convention). An assessment of these questions has been prepared by the Committee of Ministers Secretariat for the 1172nd (DH) meeting (June 2013)

and, subsequently, both the Turkish and the Cypriots submitted their comments on the outstanding issues.

56. In his report, Mr Pourgourides

expressed concern about the case of Xenides-Arestis v. Turkey

(also concerning the property rights of the displaced Greek Cypriots), in which, despite two interim resolutions of the Committee of Ministers, there had been no progress in payment of the just satisfaction awarded in 2006 by the Court. He stressed that this situation was “an unacceptable state of affairs.” At its 1208th(DH) meeting (September 2014), the Committee of Ministers adopted Interim Resolution CM/ResDH(2014)185 concerning the Varnava and Others case and 33 cases from the group of Xenides-Arestis. It deplored that “the Turkish authorities have not complied with their obligation to pay the amounts awarded by the Court to the applicants in those cases, … on the grounds that this payment cannot be dissociated from the measures of substance in these cases.” Furthermore, the Committee of Ministers declared that “the continued refusal by Turkey was in violation with its international obligations, both as a High Contracting Party to the Convention and as a member State of the Council of Europe” and exhorted Turkey “to review its position and to pay without any further delay the just satisfaction awarded to the applicants by the Court, as well as the default interest due”. The Committee of Ministers examined again these cases, as well as the Cyprus v. Turkey case, at its 1230th meeting (DH) in June 2015.

57. During my visit to Ankara (April 2014), my interlocutors in the Ministry of Foreign Affairs reaffirmed the Turkish authorities’ position, according to which the last two clusters of the judgment – the issue of property rights of displaced Greek Cypriots and the property rights of Greek Cypriots in the Karpas region – should be closed by the Committee of Ministers, as the required general measures have been adopted. I was informed that the authorities intended to pay the just satisfaction in the Xenides Arestis cases, once the Committee of Ministers closed the issue of general measures.

2.7 A new issue: ill treatment and excessive force used to disperse peaceful demonstrations

58. In the Oya Ataman

group of cases, the European Court of Human Rights found violations of the applicants’ right to freedom of peaceful assembly and/or ill treatment of the applicants on account of excessive force used to disperse peaceful demonstrations; certain cases also concerned failure to carry out an effective investigation into the applicants’ allegations of ill treatment or lack of an effective remedy (violations of Articles 3, 11 and 13 of the Convention). This group concerns at present 46 cases under the supervision of the Committee of Ministers.

In particular, in the cases of Izci

and Abdullah Yasa

of July 2013, the Court observed under Article 46 of the Convention that the problems at the origin of the violations were systemic and that Turkey had to adopt general measures to prevent similar violations in the future. Accordingly, it was necessary to adopt clearer rules on the use of tear gas (or pepper spray) and tear gas grenades, ensure adequate training of law-enforcement officers and their control and supervision during demonstrations and provide for an effective after-review of the necessity, proportionality, and reasonableness of any use of force. The Court further reiterated its findings from the Abdullah Yasa judgment in the case of Ataykaya,

concerning the death of the applicant’s son as a result of a tear gas grenade fired by the police.

59. The Turkish authorities provided two action plans

and responded to a communication submitted by IHOP

in January 2015.

At its 1222nd (DH) meeting (11-12 March 2015), the Committee of Ministers adopted another decision

urging the Turkish authorities to amend the relevant legislation, in particular the “Meetings and Demonstrations Marches Act” (No. 2911), “so that Turkish legislation requires an assessment of the necessity of interfering with the right to freedom of assembly, in particular in situations where demonstrations are held peacefully and do not represent a danger to the public order”. It also requested the authorities to consolidate the diverse legislation that regulated the conduct of law-enforcement officers and fixed the standards regarding the use of force during demonstrations, and to ensure that the relevant legislation required that any force used by law-enforcement officers during demonstrations was proportionate and included provisions for an adequate ex post facto review of the necessity, proportionality and reasonableness of any such use of force. Lastly, the Committee of Ministers called again on the authorities to carry out investigations promptly and diligently into allegations of ill treatment and hold accountable law-enforcement officers responsible for such abuses.

60. It should be noted that a new security bill, increasing the powers of police, has recently been sent to the Turkish Parliament. On 6 February 2015, the Council of Europe Commissioner for Human Rights expressed his concerns about this bill,

in line with his previous criticism expressed after the Gezi events in May-June 2013.

In its report published in January 2015, the Committee for the Prevention of Torture (CPT) also paid particular attention to the situation of persons deprived of their liberty following the Gezi protests.

Moreover, our Committee’s rapporteur, Ms Ermira Mehmeti Devaja (“the former Yugoslav Republic of Macedonia”, Socialist Group) is currently preparing a report on “Urgent need to prevent human rights violations during peaceful protests”.

During my visit to Ankara (April 2014), I stressed the necessity of not abusing the use of force during peaceful demonstrations and the need to sanction law-enforcement officials responsible for such abuses with my interlocutors in the Grand National Assembly, the Ministry of the Interior and the General Prosecutor’s Office, and was provided information on training activities and the use of disciplinary sanctions.

2.8 New complex/structural issues

61. The Committee of Ministers 2014 Annual Report also mentions the judgment in the case of Söyler v. Turkey

concerning an automatic ban on certain convicted prisoners’ voting rights (violation of Article 3 of Protocol No. 1). An action plan was submitted by the Turkish authorities in December 2014

and this case is now under the enhanced supervision of the Committee of Ministers. Moreover, the Committee of Ministers recently

transferred under its enhanced supervision procedure the case Opuz v. Turkey,

concerning a domestic violence incident (violation of Article 2 of the Convention).

3. Russian Federation

62. The Pourgourides report defined a number of areas which give rise to the overload of the Convention system due to underlying structural problems and which are of special seriousness:

non-enforcement of domestic judicial decisions;

violation of the principle of legal certainty on account of the quashing of final judicial decisions through the “supervisory review procedure” (Nadzor);

unacceptable conditions of detention, in particular in pretrial detention centres;

excessive length of and lack of relevant and sufficient reasons for detention on remand;

torture and ill treatment in police custody and lack of an effective domestic investigation in this respect.

63. The report also focused on the actions of the security forces in the Chechen Republic.

Additionally, at the June 2012 meeting of our committee, attention was drawn to Russia’s disregard of the Court’s interim measures indicated under Rule 39 of the Rules of Court, and violations of the freedom of assembly coupled with discrimination on the grounds of sexual orientation. Although I wished to conduct a dialogue on the above-mentioned issues with the Russian authorities through a fact-finding visit, in line with my predecessors’ practice, my visit to Moscow, planned for May 2014 upon an agreement reached with the authorities in February 2014, was postponed sinae die and de facto cancelled by the Russian delegation, after the adoption on 10 April 2014 of Assembly Resolution 1990 (2014) on reconsideration on substantive grounds of the previously ratified credentials of the Russian delegation, suspending the Russian delegation’s voting rights in the Assembly. In its decision on the “postponement” of my visit, the Russian delegation referred to the State Duma’s declaration “On the anti-Russian resolution adopted by the Parliamentary Assembly of the Council of Europe”,

which stated that “in the context of the reprisals and restrictions introduced against the delegation of the Federal Assembly of the Russian Federation its further constructive participation in the PACE activities cannot be possible”.

3.1 Non-enforcement of domestic judicial decisions

64. In 2009, the Court adopted a pilot judgment in the case of Burdov v. Russia (No. 2),

imposing on the Russian authorities an obligation to introduce in their national legal system an effective remedy for non-enforcement of domestic judicial decisions. A remedy was put in place by two new federal laws, which came into force on 4 May 2010. This remedy allows claims for compensation for extremely lengthy judicial proceedings as well as delayed non-enforcement of domestic judgments delivered against the State. The Court has since required applicants to make use of this law before complaining to the European Court of Human Rights.

65. In its Interim Resolution CM/ResDH(2011)293,

the Committee of Ministers welcomed the improvements that have occurred following the pilot judgment concerning this issue. It also decided to close the examination of the issue with respect to the specific obligations

laid down in the pilot judgment and to join the examination of further general measures with the Timofeyev group, the original group where all problems related to the non-execution of domestic judgments were examined,

including the underlying structural problems of non-enforcement more generally.

66. Notwithstanding this progress, the Court held in two subsequent judgments

that the new legislation did not resolve the specific problem of failure to enforce decisions that ordered the provision of housing to 50 members of the Russian armed forces. The Court noted with regret that there was still no remedy available in Russia with respect to complaints relating to such delays, and that this part of the problem remained unresolved despite the Compensation Act. Another judgment concerning non-enforcement of domestic decisions awarding social-payment arrears to former policemen (41 applicants) was given by the Court on 20 February 2014.

At the same time, the Court tackled the structural problem in question in the context of another group of cases (Gerasimov and Others v. Russia),

which led to issuing a pilot judgment (of 1 July 2014) dealing with non-enforcement or delayed enforcement of judicial decisions imposing obligations in kind or pecuniary obligations on the State or municipal authorities (violations of Articles 6.1 and 13 of the Convention, and 1 of Protocol No. 1).

The Court found that these violations stemmed from a practice incompatible with the Convention and indicated that the Russian authorities should set up, by 1 October 2015 and in co-operation with the Committee of Ministers, an effective domestic remedy in respect of the non-enforcement of in-kind obligations and to grant redress, by 1 October 2016, to applicants in similar cases pending before it (which have been adjourned). At its 1222nd meeting (11-12 March 2015), the Committee of Ministers welcomed the rapid response of the Russian authorities to this judgment, in particular the draft amendments to the Compensation Act, promptly prepared by the Ministry of Justice and aimed at extending its scope to obligations in kind. It also invited the authorities to submit a comprehensive action plan concerning the measures taken/envisaged to implement the said pilot judgment and address the long-standing problem examined in the Timofeyev group and to co-operate closely with its Secretariat in preparing the legislative reform.

3.2 Violation of the principle of legal certainty on account of the quashing of final judicial decisions through the “supervisory review procedure”

67. The Supervisory Review Procedure (nadzor), which has led to the quashing of final judicial decisions under the Code of Civil Procedure, has been another cause of multiple clone cases at the European Court of Human Rights. In 2003, the Court found a violation of Article 6.1 of the European Convention on Human Rights in the case of Ryabykh v. Russia.

Although two legislative reforms had been undertaken since, the European Court of Human Rights did not regard them as sufficient to solve the problem.

A third reform of the Code of Civil Procedure, aimed at the introduction of appeal courts in the system of Russian courts of ordinary jurisdiction, was adopted in December 2010 and entered into force in January 2012. This reform has very recently been subject to the assessment by the European Court of Human Rights: in its decision in the case of Abramyan and Others v. Russia,

the Court examined for the first time the new cassation procedure before the presidia of regional courts and the Supreme Court in civil cases. It held that the new procedure was to be considered an ordinary appeal on points of law similar to that existing in the jurisdictions of other States Parties.

3.3 Poor conditions of pretrial detention and its excessive length

68. The Kalashnikov group comprises 71 cases under the Committee of Ministers supervision in which the European Court of Human Rights found that the poor conditions of pretrial detention, particularly the severe overcrowding and unsanitary environment, amounted to degrading treatment, and there was no effective remedy in this respect (violations of Articles 3 and 13 of the European Convention on Human Rights).

A further 61 cases concern unlawful detention, excessive length and insufficient grounds for extending detention on remand (violations of Article 5).

Communications regarding a number of specific cases

have been submitted to the Committee of Ministers by the authorities, but until now the measures taken (and envisaged) are not regarded as fully satisfactory.

69. In January 2012, the Court delivered a pilot judgment in the case of Ananyev and Others v. Russia,

in which it found that inadequate conditions of detention were a recurrent structural problem in Russia resulting in a malfunctioning of its penitentiary system, with insufficient legal and administrative safeguards (violations of Article 3 and 13). It further noted that the primary cause of overcrowding was the excessive use of pretrial detention without proper justification and the excessive duration of such detention. Remand in custody had to be an exceptional measure rather than the norm, and preventive and compensatory remedies had to be introduced. The Court held that the Russian authorities had to produce, within six months of the date on which the judgment becomes final, a binding time frame for resolving these problems. In view of the fundamental nature of Article 3 of the Convention, the Court did not adjourn the examination of similar applications pending before it. An action plan and an action report were provided by the Russian authorities in October 2012

and November 2012

respectively, which were welcomed by the Committee of Ministers at the 1157th meeting (December 2012) as based on a comprehensive and long-term strategy to solve the structural problem; following this, an additional action plan and report were provided by the authorities in February 2013

and August 2013

respectively, and in April 2014, the authorities provided an updated action plan

(which has not yet been fully analysed by the Committee of Ministers).

At their 1201st meeting (3-5 June 2014),

the Committee of Ministers expressed satisfaction that the Russian authorities had undertaken significant efforts to ensure the swift resolution of similar cases pending before the Court and noted with interest the information provided with respect to the setting up of judicial domestic remedies, with preventive and compensatory effect. It urged the Russian authorities to accelerate the adoption and entry into force of a system of effective remedies before the end of 2014, at the latest, and strongly encouraged them to take full advantage of the opportunities provided by the Human Rights Trust Fund (HRTF) project No. 18.

3.4 Torture/ill treatment in police custody and lack of an effective investigation in this respect

70. In the case of Mikheyev and over 60 similar cases, the Court found that the applicants had been subject to torture or ill treatment in police custody and that the State subsequently either failed entirely to investigate wrongdoing by State officials or did it ineffectively (mainly substantial and procedural violations of Article 3; covering the period of 1998-2006).

Action plans were provided by the Russian authorities in November 2010

and in August 2013.

The authorities informed about the following measures: the adoption of a new law “On Police” and a number of implementing acts, improvements in the supervision of prosecutors, improvements in monitoring by civil society, the setting-up of the Investigative Committee of the Russian Federation and creation of specialised investigation units, amendments to the Code of Criminal Procedure, improvement of judicial control over investigations, training and awareness-raising measures.

71. At its 1201st (DH) meeting (3-5 June 2014),

the Committee of Ministers took note of the comprehensive action plan provided by the authorities, but pointed out a number of issues that still needed to be addressed as regards general measures.

In particular, the Committee of Ministers called upon the authorities to deliver “at a high political level, a clear and firm message of “zero tolerance” of torture and ill treatment, at improving safeguards against such acts and at reinforcing judicial control over investigations”.

It also “strongly urged the Russian authorities to address, without delay, the problem of the expiration of limitation periods, in particular, in the case of serious crimes such as torture committed by State agents” and to take measures to ensure that the domestic courts exclude any evidence found to have been obtained in breach of Article 3 of the Convention”.

The Committee of Ministers also examined the issue of individual measures and “noted with grave concern” that no “tangible progress” had been made in the majority of cases in this group as regards domestic investigations into allegations of torture. It also expressed concern about the case of Tangiyev v. Russia, in which the applicant had been convicted on the basis of evidence obtained through ill treatment and was allegedly intimated by the Federal Security Service (FSB) when he was seeking the reopening of his criminal case after the European Court of Human Rights judgment.

72. In December 2014, the Russian authorities provided additional information

which was examined by the Committee of Ministers at its 1222nd (DH) meeting in March 2015.

As regards individual measures, the Committee of Ministers expressed again its concern about the lack of progress in the conduct of the domestic investigations, and, concerning the Tangiyev case, it took note of applicant’s retrial by a jury whereby his confession obtained through ill treatment had been declared unlawful, and requested a copy of the judicial decision. Concerning general measures, the Committee of Ministers welcomed the recent regulatory and legislative changes aimed at providing more safeguards against ill treatment as well as the awareness-raising measures and requested additional information concerning a number of issues such as the functioning of the Investigative Committee. However, it also reiterated its call upon the Russian authorities to adopt measures aimed at sending “a zero tolerance” message to the police and addressing the problem of the expiration of limitation periods.

3.5 Actions of the security forces in the Chechen Republic

73. Since 2005 the Court has found grave human rights violations in over 220 cases against the Russian Federation caused by the action of security forces in the North Caucasus, mainly in the Chechen Republic, between 1999 and 2006 (unlawful killings, unacknowledged detention, disappearances, torture, destruction of property, lack of effective investigations as well as of effective domestic remedies).

74. Since then, the systemic problems of the state’s failure to effectively investigate and provide domestic remedies are still prevalent. The Committee of Ministers has consistently urged the Russian authorities to improve the legal and regulatory framework governing the anti-terrorist activities of security forces, to ensure accountability of perpetrators, to provide domestic remedies for victims and to enhance awareness-raising and training of members of security forces.

75. Although throughout 2011 the Russian authorities provided information concerning the measures adopted at a national level to provide a remedy to victims and conduct effective investigation,

in its Interim Resolution CM/ResDH(2011)292, adopted at the 1128th meeting in November 2011, the Committee of Ministers criticised the lack of decisive progress in domestic investigations with regard to the grave human rights violations identified in the judgments of the European Court of Human Rights, even where key elements had been established with sufficient clarity.

Further issues of great concern which were noted were the risk of loss of evidence with the passage of time, and especially the possible expiry of time-limits in the statutes of limitation, which would render it impossible to bring perpetrators to justice.

The Committee of Ministers therefore called on the Russian authorities to ensure independent and thorough investigations in co-operation with all law-enforcement and military bodies (which should include the participation of victims and relatives and increase the effectiveness of the remedies available to them). It also urged the authorities to rapidly take measures to intensify the search for disappeared and missing persons through better co-ordination between agencies, in co-operation with relatives of disappeared persons. Although the Russian authorities provided further information on 14 May 2012,

the Committee of Ministers reiterated its previous concerns in June and September 2012.

76. On 18 December 2012, the Court delivered its judgment in the case of Aslakhanova and Others v. Russia,

in which it concluded that the situation of disappearances resulted from a systemic problem of non-investigation of such crimes, for which there was no effective remedy at the national level. The European Court of Human Rights outlined two types of general measures, under Article 46 of the Convention, to be taken by Russia to address those problems: 1) to alleviate the continuing suffering of the victims’ families; and, 2) to remedy the structural deficiencies of the criminal proceedings. The Court based its findings not only on the circumstances of this case, but also on a general assessment of the progress in the implementation of the Khashiyev group of cases. A corresponding strategy was to be prepared by Russia without delay and to be submitted to the Committee of Ministers for the supervision of its implementation. At the same time, the Court decided not to adjourn the examination of similar cases pending before it.

77. Despite additional information provided by the Russian authorities in August 2013

and July 2014,

there has been no significant progress in the implementation of this group of judgments.

In July 2014, the Russian authorities submitted another action plan,

which was examined by the Committee of Ministers at its 1208th (DH) meeting (23-25 September 2014).

The Committee of Ministers “noted with grave concern that the information provided does not attest to any improvement in the capacity of the present system of criminal investigations to handle the problem of the persons reported as missing” and insisted that the Russian authorities create “a single and high level body mandated with the search for persons reported as missing as a result of counterterrorist operations in the North Caucasus”. As this has not yet been done, as attested by the information contained in another action plan of December 2014,

at its 1222nd (DH) meeting (11-12 March 2015),

the Committee of Ministers adopted Interim Resolution CM/ResDH(2015)45 in which it “strongly urged” the Russian authorities to establish such a body. In its decision adopted at the same meeting, it also invited the Russian authorities to provide information on the concrete work carried out by forensic institutions and additional information on the fate of missing persons and urged them again to ensure that the domestic law and practice concerning the applicability of the statute of limitations take into account the Convention standards. As regards individual measures, the Committee of Ministers once again requested information on the outcome of criminal proceedings.

78. It is worth recalling here that, as stated by Mr Dick Marty in his report of June 2010, the Chechen situation “constitutes today the most serious and most delicate situation from a standpoint of safeguarding human rights and upholding rule of law, in the entire geographical area covered by the Council of Europe”.

The lack of tangible progress in these cases was also deplored in the Pourgourides report

and in Assembly’s Resolution 1787 (2011).

Our Committee colleague, Mr Michael McNamara (Ireland, Socialist Group) is currently preparing a report “Human Rights in the North Caucasus: what follow-up to Resolution 1738 (2010)?”, which will examine in depth the issue of non-implementation of this group of judgments.

3.6 Risk of ill treatment in cases of extradition (and/or expulsion), disregard of interim measures of the European Court of Human Rights under Rule 39 of the Rules of the Court and illegal abductions and forcible transfers

79. This problem is examined in the Garabayev group of cases. In the case of Iskandarov v. Russia, the Court held the Russian Federation responsible for a violation of Article 3 on account of the applicant’s unexplained abduction by unidentified persons whom the Court found to be Russian State agents and his forcible transfer to Tajikistan in circumstances in which the authorities must have been aware that the applicant faced a real risk of ill treatment.

A few similar cases concerning abductions/disappearances and forcible transfers to Tajikistan and Uzbekistan are now pending execution before the Committee of Ministers,

some of them also concerning violations of Article 34 due to non-respect of the interim measures indicated by the Court under Rule 39 of its Rules of Court.

In the Abdulkhakov case, the Court noted that “any extra-judicial transfer or extraordinary rendition, by its deliberate circumvention of due process, is an absolute negation of the rule of law and the values protected by the Convention”.

On 25 April 2013, the Court delivered an important judgment in the case of Savriddin Dzhurayev v. Russia,

in which it found that disappearances of persons who were the subject of extradition requests followed a certain factual pattern and occurred with the direct or indirect involvement of the authorities. It also indicated, under Article 46 of the Convention, a number of measures that Russia should take to solve the recurrent problem without delay”.

80. Since the Iskandarov judgment delivered in 2010, the Committee of Ministers has been repeatedly informed of incidents of this kind either by the Registry of the European Court of Human Rights or by NGOs/applicants’ representatives.

Despite a number of instructions and awareness-raising measures adopted by the Russian authorities, in September 2013, the Committee of Ministers adopted an Interim Resolution,

in which it exhorted the Russian authorities to develop a mechanism of protection against unlawful or irregular removal from the territory of Russia and the jurisdiction of the Russian courts. Although the authorities had provided further information in January 2014,

new alleged abduction incidents were reported to the Committee of Ministers in the course of 2014.

Hence, the authorities provided an updated action plan in November 2014

on further measures to raise awareness; however, at its 1214th meeting (DH) in December 2014, the Committee of Ministers found these measures insufficient and requested further information from the authorities, with a view of examining the necessity of adopting a second interim resolution at its 1229th meeting (DH) in June 2015. It also decided to examine this group of cases at its first regular meeting in case a new similar abduction or disappearance is reported. As regards individual measures, the Committee of Ministers expressed grave concern regarding the unknown fate of several (abducted/disappeared) applicants

. Following the submission by the authorities of an updated action plan in April 2015

, the Committee of Ministers examined this group of cases at its 1230th meeting (DH) in June 2015.

81. It should be noted in this context that the issue of non-co-operation with the Court in respect of interim measures has already been examined by our Committee and the Assembly.

The issue of “undercover” transfer of persons to Tajikistan and Uzbekistan was dealt with in detail in the report of our Committee colleague Mr Kimo Sasi (Finland, EPP/CD) on “Urgent need to deal with new failures to co-operate with the European Court of Human Rights”.

According to Amnesty International, the repeated abductions/disappearances, as those reported in the Iskandarov group of cases, result from a region-wide renditions programme in the Commonwealth of Independent States (CIS).

3.7 Violation of the freedom of assembly and discrimination on grounds of sexual orientation

82. In the case Alekseyev v. Russia

the Court found a violation of the applicant’s freedom of assembly, the lack of an effective remedy in this respect and discrimination on the grounds of sexual orientation due to the repeated bans over a period of three years (between 2006 and 2008), on the holding of gay-rights marches and pickets imposed by Moscow authorities on account of the failure of the authorities to adequately assess the risk to the safety of the participants and public order (violations of Article 11, Article 13 in conjunction with Article 11 and Article 14 in conjunction with Article 11). Despite the findings of this judgment, the situation of LGBT persons and activists raises further concerns in the light of recently adopted laws restricting the freedom of expression for LGBT persons.

83. Although since 2011 the Committee of Ministers has repeatedly called for the adoption of general measures and expressed concern about the implementation of this judgment, the competent authorities in the Russian Federation have continued to mostly refuse to authorise public events in support of the rights of LGBT persons since 2005. When examining this case, the Committee of Ministers focused on two aspects: the laws prohibiting “homosexual propaganda” among minors and the procedure for the organisation of public assemblies.

84. Although on numerous occasions the Committee of Ministers had expressed concerns about regional laws prohibiting “homosexual propaganda” among minors, on 11 June 2013, the State Duma adopted similar provisions at the federal level, without giving consideration to the Opinion of the Venice Commission.

At its 1179th meeting (DH) in September 2013, the Committee of Ministers expressed its concerns about this law, noting that it “could undermine the effective exercise of the freedom of assembly”.

85. Following the submission by the authorities of another action plan in July 2014,

at the 1208th (DH) meeting (23-25 September 2014), the Committee of Ministers expressed serious concern that the majority of requests made in Moscow, St Petersburg, Kostroma and Arkhangelsk between 1 July 2013 and 1 May 2014 to hold public events, similar to those described in the Alekseyev judgment, had been refused on the basis of the Federal Law prohibiting “propaganda of non-traditional sexual relations” among minors. It called on the authorities to ensure that the Federal Law did not hinder the effective exercise of the right to assembly and noted that a case was pending before the Constitutional Court concerning this law.

86. As regards the question of an effective remedy, the Committee of Ministers strongly encouraged Russian authorities to speedily adopt the draft Code of Administrative Procedure, which would oblige courts to settle disputes concerning the organisation of public events prior to the date foreseen for such events. It also invited the authorities to continue to monitor the implementation of the Constitutional Court’s decision of 14 February 2013, which stressed the need for courts to settle disputes concerning the holding of public events before the date foreseen for such events. Following the submission by the authorities of an updated action plan in April 2015,

the Committee of Ministers examined this group of cases at its 1230th meeting (DH) in June 2015.

3.8 Other new issues

87. The Committee of Ministers 2014 Annual Report points out a couple of other complex/structural issues concerning implementation of judgments against Russia which are examined under its enhanced supervision: automatic blanket ban on prisoners’ voting rights (Anchugov and Gladkov),

violation of the right to education of children and parents from Moldovan/Romanian language schools in the Transdniestrian region of the Republic of Moldova (Catan and Others)

and shortcomings of the system for judicial review of expulsion of foreigners based on national security grounds (Liu No. 2

group of cases). Especially the Catan and Others case, which was recently examined at the 1230th meeting (DH) in June 2015, has been the object of close supervision by the Committee of Ministers in 2014 and 2015 due to the absence of information on any measure which would be compliant with the Court’s judgment.

4. Ukraine

88. Mr Pourgourides’ report summarised the main issues concerning Ukraine as follows:

non-enforcement of domestic judicial decisions;

length of civil and criminal proceedings;

issues concerning detention on remand (poor conditions, length, ill treatment);

unfair trial, inter alia, due to lack of impartiality and independence of judges.

89. The report also dealt with the issues surrounding the Gongadze case.

4.1 Non-enforcement of domestic judicial decisions

90. The Zhovner group comprises over 400 cases concerning non-enforcement of final domestic judgments, mostly delivered against the State or State enterprises, and the absence of an effective remedy in this respect (violations of Articles 6.1 and 13 of the Convention and of Article 1 of Protocol No. 1).

In its pilot judgment Yuriy Nikolayevich Ivanov v. Ukraine

of 2009, the Court noted that Ukraine “has demonstrated an almost complete reluctance” to solve the structural problems concerning non-enforcement of domestic judicial decisions and fixed a specific deadline of 15 January 2011 for the establishment of effective domestic remedies. After extending the deadline once and finding that the measures called for in the pilot judgment had still not been adopted, on 21 February 2012, the Court decided to resume the examination of applications raising similar issues, thus making Ukraine the first State in the Court’s history to have failed to execute a pilot judgment.

91. The law “On State guarantees concerning execution of judicial decisions” was finally adopted by the Ukrainian parliament on 5 June 2012 and entered into force on 1 January 2013.

It introduced a new specific procedure for the execution of domestic judicial decisions delivered against the State after its entry into force: pecuniary debts are to be met by the State Treasury within certain deadlines if the debtor (State bodies, State companies, or legal entities whose property cannot be subjected to a forced sale within enforcement proceedings) fails to pay them in due time. The law also provides for automatic compensation if the authorities delay payments under this special procedure. The impact in practice of the new remedy legislation on the general problem of non-execution of domestic judicial decisions still remains to be assessed.

92. At their 1164th (DH) meeting in March 2013, the Committee of Ministers noted its concerns as regards the effectiveness of the measures taken to ensure execution within a reasonable time in all situations (notably because of the inflexibility of the new system, including the level of compensation) and the absence of adaptation of other legislation (in particular the moratorium laws). It also encouraged the Ukrainian authorities to adopt with the utmost urgency the required legislation, taking into account the recommendations made, and to develop, awaiting the reforms, a viable practice of friendly settlements and unilateral declarations before the Court, as well as to resolve the issue of non-enforcement of judicial decisions imposing non-pecuniary obligations.

93. On 19 September 2013, the Ukrainian Parliament adopted amendments setting up a remedy in respect of the non-enforcement of domestic judicial decisions rendered before 1 January 2013. At its 1186th(DH) meeting on 5 December 2013, the CM noted with satisfaction these developments and invited the Ukrainian authorities to take all the necessary measures to ensure that the new remedy is implemented effectively.

94. On 11 March 2014, the European Court of Human Rights decided to suspend the examination of this type of non-enforcement cases and to review the situation in six months; at that time, there were 10 440 cases pending before the Court, out of which 1 585 had been communicated to the Ukrainian government.

In April 2014, the authorities provided information

on the number of applications for compensation lodged at the domestic level, recognising that the lack of funds remained a problem. They also did not prove that the new domestic remedy was effective. In September 2014, the Cabinet of Ministers adopted the “Rules on Debt Payment Under the Courts Judgments the Implementation of Which is Guaranteed by the State”, which established the procedure for payment under the new remedy and a working group was set up for a better implementation of this procedure.

The Ministry of Justice is currently preparing an electronic register with information on relevant payments.

Another action plan was provided by the authorities in April 2015, but it has not yet been assessed by the Committee of Ministers.

95. As noted by the Committee of Ministers at the 1214th (DH) meeting in December 2014,

the adopted measures have not prevented similar violations and in a large number of cases, the just satisfaction awarded by the Court has not been paid to the applicants and the domestic judicial decisions have not been enforced. The Committee of Ministers encouraged the authorities to “explore all possibilities for co-operation which the Council of Europe can offer in ensuring a viable solution to this problem”.

To sum up, despite the adoption by the Committee of Ministers of five interim resolutions in this group of cases,

there has been no tangible progress in the implementation of these judgments since 2004.

96. In April 2015,

the Ukrainian authorities provided their latest action plan concerning general measures for this group of cases The Committee of Ministers examined it at its 1230th DH meeting (June 2015).

4.2 Excessive length of civil and criminal proceedings

97. Two groups of cases – concerning mainly the excessive length of civil (the Svetlana Naumenko group)

and criminal (the Merit group)

proceedings and the lack of an effective remedy in this respect (violations of Articles 6.1 and 13) – are pending execution before the Committee of Ministers (in total, nearly 270 cases)

since 2004.

98. Since 2005, the Committee of Ministers has been informed of the preparation of legislation aimed, inter alia, at setting up a domestic remedy with respect to complaints against the length of judicial proceedings. However, no law or any other measure capable of effectively assuaging the problem of the excessive length of domestic proceedings has been adopted. The information received mainly focused on the question of a remedy and not on solutions to the root causes for excessive length of judicial proceedings.

Thus, the Committee of Ministers had urged the Ukrainian authorities, in its decision of March 2012, to take concrete measures to solve the structural problem revealed,

recalling its Recommendation CM/Rec(2010)3 on effective remedies for excessive length of proceedings.

Between July 2012 and February 2013, the authorities provided information on legislative measures such as the adoption of the 2010 Law on Judiciary and Status of Judges, amendments to the Code of Civil Procedure of 2011 and the new 2012 Code of Criminal Procedure.

At its 1164th meeting in March 2013, the Committee of Ministers requested additional information and “reiterated their serious concern” that, despite the Court’s numerous judgments, no progress had been achieved regarding the introduction of an effective remedy against excessive length of proceedings.

99. In view of the Ukrainian authorities’ failure to provide the requested information, at their 1179th(DH) meeting in September 2013,

the Committee of Ministers strongly urged the Ukrainian authorities to provide, by 31 December 2013, the required analysis specifying how the measures adopted will remedy all the shortcomings found by the Court, together with an assessment of their impact in practice and relevant statistics on the length of proceedings. The Committee of Ministers further reiterated its previous request to adopt concrete measures aimed at setting up effective domestic remedies in view of a number of similar repetitive applications brought before the European Court of Human Rights and to provide information in this respect by 31 December 2013.

An updated action plan was provided on 20 January 2015

and is being assessed.

4.3 Issues concerning detention on remand

4.3.1 Poor conditions of detention

100. Mr Pourgourides’ report highlighted several problems concerning detention facilities. In over forty cases, violations of Article 3 of the Convention mainly arose from overcrowded, unhygienic conditions and a lack of adequate medical assistance, especially for those suffering from tuberculosis, hepatitis and HIV.

There have been some attempts by the Ukrainian authorities to address these problems, but still more information on the developments in this respect is awaited.

The Committee of Ministers has been awaiting a plan detailing such improvements since 2005. In spite of some information provided by the authorities in May 2012,

at its 1144th (DH) meeting (June 2012) the Committee of Ministers invited them to “provide urgently an action plan aimed at responding to the structural problems highlighted by the Court in respect of conditions of detention and medical care …”.

According to the Committee of Ministers 2014 Annual Report,

consultations between the Committee of Ministers Secretariat and the authorities continued throughout the course of 2014 with a view to elaborate a comprehensive action plan and special meetings were organised in the context of the Human Rights Trust Fund Project (HRTF) No. 18 Programme.

101. In its preliminary observations of the visit in 2011, the CPT expressed deep concerns about extremely poor conditions of detention in Ukrainian prisons, and in particular about the poor state of repair of numerous cells and the severe overcrowding in some establishments.

Furthermore, in its preliminary observations of the visit in 2013, the CPT pointed to poor access to natural light and fresh air, lack of privacy as concerned in-cell toilets, the small size and oppressive state of the exercise yards and poor level of cleanliness in temporary detention isolators (ITT), as well as internal affairs divisions not suitable for keeping detainees.

In its periodic 2013 report on Ukraine published on 29 April 2014,

the CPT noted a major decrease in the number of inmates, but stressed the need to pursue efforts to eliminate overcrowding in pretrial detention centres. It also noted that no decisive action had been taken to improve the material conditions in most of the centres that it had visited. The cumulative effect of these conditions and restrictions could be considered a form of inhuman and degrading treatment by many detainees.

4.3.2 Ill-treatment by police and lack of effective investigation

102. At present over 35 cases are pending execution in this area (mainly violations of Articles 3 and 5).

In the Kaverzin v. Ukraine judgment (also concerning systemic handcuffing of the applicant when he was out of his cell), under Article 46 of the Convention, the Court stated that the practice of ill treatment in custody is a systemic problem. In December 2012, the Ukrainian authorities submitted a communication indicating that a number of legislative and administrative measures had been put in place to remedy the problem, among which are the establishment of a special supervisory committee for human rights within the Ministry of the Interior and the adoption of a new code of criminal procedure in April 2012.

In April 2013, the Ukrainian authorities further provided their action plan,

that the Committee of Ministers assessed at their 1172nd(DH) meeting in June 2013.

The Committee of Ministers welcomed the adoption of a number of legislative and practical measures, in particular the setting up of a National Preventive Mechanism (NPM) under the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and the changes to the new Code of Criminal Procedure. It also invited the Ukrainian authorities to provide information on the impact in practice on these measures and the measures aimed at ensuring that investigations into ill treatment allegations comply with the Convention standards. The Committee of Ministers took note of the authorities’ intention to establish the State Bureau of Investigation at the latest by 2017. Lastly, the Ukrainian authorities were encouraged to take advantage of the opportunities offered by the Council of Europe under its various co-operation/technical programmes. In 2014, two new action plans were provided.

During its 1201th (DH) meeting in June 2014, the Committee of Ministers reiterated its satisfaction with the significant improvements brought about by the new Code of Criminal Procedure and invited the authorities to provide, an updated action plan containing their assessment of the impact of the reforms and information on additional measures envisaged to implement the recommendations of the CPT. On 31 October 2014, the Ukrainian authorities provided an updated action plan,

which is now being assessed.

103. According to a report of Amnesty International of 12 October 2011,

“endemic police criminality”, such as the use of torture, beatings and extortion by police remained a widespread phenomenon. This was confirmed by the CPT in the observations from its visits to Ukraine of 2011 and 2013; the CPT noted that ill treatment by police in a number of cases was of such severity that it could well amount to torture.

Similar findings are contained in its report of 29 April 2015 concerning an ad hoc visit in September 2014 to a few correctional colonies in the Kharkiv area, the CPT noted some progress and called again on the authorities to pursue their efforts to combat the phenomena of ill treatment in the visited colonies.

4.3.3 Unlawful and/or excessively long pretrial detention

104. Numerous judgments of the Court pertaining to the issue of unlawful and/or excessively long pretrial detention

(violations of Article 5) are currently pending execution as regards Ukraine, some of them for many years (since 2005). A “quasi-pilot” judgment was delivered by the Court in February 2011 in the case of Kharchenko v. Ukraine,

in which it highlighted the structural nature of the problem regarding the legal framework governing pretrial detention in Ukraine. The Court stressed that specific reforms in legislation and administrative practice should be urgently implemented in order to bring such legislation and practice into line with the requirements of Article 5.

105. The Court set a six-month deadline for Ukraine to submit to the Committee of Ministers a strategy adopted in this respect. On 9 November 2011, the Ukrainian authorities submitted an action plan,

according to which a new Criminal Procedure Code was to be adopted. The new Criminal Procedure Code (‘CPC’) entered into force on 20 November 2012; it was the object of extensive expert advice from the Council of Europe.

It aims to set up a modern adversarial criminal procedure based on the equality of arms of the parties to the process and other fair trial guarantees and should create the necessary conditions for the proper implementation of the European Convention on Human Rights in Ukraine. Despite these improvements, the Committee of Ministers awaits information on other measures taken or planned to solve problems identified in other cases from this group, such as the practice of unregistered detention by police or the use of administrative arrest for criminal investigation purposes.

At its 1128th DH meeting (29 November – 2 December 2011), the Committee of Ministers welcomed the fact the Ukrainian authorities’ strategy paper requested in the Kharchenko judgment had been provided in time and invited the authorities to implement it rapidly.

However, the Committee of Ministers also called upon the Ukrainian authorities to provide information on the measures taken or planned to resolve the remaining problems highlighted in other cases of this group. In response, in August 2012 the Ukrainian authorities provided information relating to the general measures in the context of the case Balitskiy against Ukraine

and, in October 2012, in the context of the Kharchenko group of cases.

In both submissions, the authorities mainly referred to the provisions of the new Code of Criminal Procedure. They also provided statistics on the application of detention on remand covering 2010, 2011 and the first half of 2012, showing a minor trend of decrease regarding the use of detention on remand. In February 2013, the authorities submitted a revised action plan,

of which the Committee of Ministers took note at its 1164th (DH) meeting (March 2013). The Committee of Ministers instructed its Secretariat to prepare an in-depth assessment of this new information and encouraged the authorities to take advantage of the co-operation offered in the framework of the HRTF No. 18.

106. On 9 October 2014, the Court delivered another judgment concerning detention without a court order in 2013 (violation of Article 5.1) in the case of Chanyev v. Ukraine.

Under Article 46 of the Convention, it indicated the need for further legislative changes, including amendments to the 2012 CPC.

107. As noted in the Committee of Ministers 2014 Annual Report,

problems remain concerning the implementation of two judgments concerning unlawful detention on remand and use of detention for other reasons than those permissible under Article 5 of the Convention in the context of criminal proceedings against the applicants – Lutsenko v. Ukraine

and Tymoshenko v. Ukraine

(violations of Articles 5.1, 5.4, 5.5 and Article 18 taken together with Article 5). Although both applicants were released, the Committee of Ministers is still examining the issue of general measures that would prevent the circumvention of legislation by prosecutors and judges.

This issue was also dealt with by our Committee colleague Mr Pieter Omtzigt (Netherlands, EPP/CP) in his report on “Keeping political and criminal responsibility separate”.

4.4 Unfair trial, inter alia due to lack of impartiality and independence of judges

108. Several judgments are pending before the Committee of Ministers on this issue (violations of Article 6.1).

In order to tackle the problems identified in the Strasbourg Court’s judgments, on 7 July 2010 the Verkhovna Rada adopted the Law on the Judiciary and the Status of Judges.

It is noted that this legislative reform has been the object of several Venice Commission opinions.

In June 2013, the Venice Commission published an opinion on the draft law concerning amendments to the Constitution aimed at strengthening the independence of judges.

109. In the meantime in the judgment Oleksandr Volkov v. Ukraine

the European Court of Human Rights found serious systemic problems as regards the functioning of the Ukrainian judiciary. The case concerns four violations of the applicant’s right to a fair hearing on account of his unlawful dismissal from his post as a judge at the Supreme Court of Ukraine. The Court ordered urgent legislative reforms to be implemented as well as the applicant’s reinstatement in his previous post of the judge of the Supreme Court at the earliest possible date. Moreover, it is to be noted that the European Court of Human Rights communicated to the Ukrainian Government 18 similar applications on 15 January 2014.

110. As regards individual measures in this case, upon repeated pressure from the Committee of Ministers and after the adoption of its Interim Resolution CM/ResDH(2014)275 on 4 December 2014, the applicant was reinstated to his post of judge of the Supreme Court as of 2 February 2015. The Committee of Ministers welcomed this step at their 1222nd (DH) meeting (11-12 March 2015).

The Deputies assessed the latest action report

submitted in January 2015 and invited Ukrainian authorities to transmit an updated and comprehensive action plan on the general measures envisaged and to take full benefit of all co-operation opportunities offered by the Council of Europe to ensure that the judiciary is reformed in line with Convention standards.

111. As regards general measures in this case, it should be noted that, according to the Ukrainian authorities, certain issues have been solved by the new law “On Ensuring the Right to Fair Trial” adopted by Parliament on 12 February 2015, which entered into force on 29 March 2015.

On 3 March 2015, a Constitutional Commission was established by the President and tasked with drafting co-ordinated proposals for constitutional amendments, including amendments aimed at reforming the judiciary.

112. In its Resolution 1862 (2012)

and Resolution 1988 (2014)

the Assembly again expressed its deep concern regarding the lack of independence of the judiciary and considered it to be the principal challenge for the justice system in Ukraine. =

4.5 Other issues

4.5.1 The Gongadze case

113. A specific case of concern is the case of Gongadze v. Ukraine, in which the Court found a violation of Articles 2 and 3 of the Convention on account of a journalist’s death and a lack of effective investigation into it.

This case is particularly sensitive politically, as several senior State officials, including a former President, are implicated.

At its 1157th (DH) meeting in December 2012, the Committee of Ministers noted some developments and insisted on the Ukrainian authorities’ obligation to continue their efforts to find the instigators and organisers of the killing of Georgiy Gongadze. At its 1172nd (DH) meeting (4-6 June 2013),

the Committee of Ministers welcomed that the trial against Oleksiy Pukach, the superior of the three police officers involved in the murder of Mr Gongadze, was completed in first instance on 29 January 2013. Noting that the Prosecutor General’s Office continues its investigation into the circumstances of Mr Gongadze’s death, the Committee of Ministers once again urged the Ukrainian authorities to continue and enhance their efforts to ensure that all necessary investigatory measures to this end are taken as a matter of urgency. No new information has been received since by the Committee of Ministers.

114. As stated in the Pourgourides Report, “any delays addressing this issue should be subject to close monitoring by parliament which should have appropriate means to compel the government to solve these issues as a matter of priority”.

This issue was examined by the Assembly in 2009

and, more recently, in March 2015, following a report on “Threats to the rule of law in Council of Europe member States – asserting the authority of the Assembly” by our Committee colleague Ms Marieluise Beck (Germany, ALDE).

In its Resolution 2040 (2015), the Assembly noted that its previous recommendations concerning this case had been implemented only in part. Although three Interior Ministry officials and their commander, General Pukach, had been found guilty of the murder, their former Minister committed suicide in questionable circumstances and the accusations launched by General Pukach against the former President and the former head of the Presidential Administration were not followed up effectively.

4.5.2 Freedom of assembly

115. Another case under the enhanced supervision of the Committee of Ministers is Vyerentsov v. Ukraine, where the Court found violations of Articles 11 and 7 on account of the applicant’s conviction for having organised a peaceful demonstration in October 2010. The European Court of Human Rights discovered a lacuna in the Ukrainian legislation with respect to a procedure for holding demonstrations and required an urgent reform.

116. At their 1201st (DH) meeting (June 2014),

the Committee of Ministers assessed the second action plan

submitted by Ukraine on 7th April 2014. Welcoming the Supreme Court’s decision of 3 March 2014, which quashed the applicant’s administrative sentence and the co-operation between its Secretariat and the authorities, it nevertheless stressed again the urgency to bring into conformity the legislative framework on freedom of assembly and the administrative practice with the Convention requirements. The Committee of Ministers noted, however, that there was currently no draft legislation pending before the Ukrainian Parliament with respect to the issue of freedom of assembly.

5. Romania

117. The Pourgourides report identified the vast majority of problems in the following areas:

failure to restore or compensate for nationalised property;

excessive length of judicial proceedings and lack of effective remedy;

non-enforcement of domestic judicial decisions;

poor conditions of detention.

118. The report also dealt with the case of Rotaru v. Romania

concerning a violation of the right to respect for private life (Article 8) due to the Romanian system of storing and using information gathered by the secret services which operated in Romania before the fall of the communist regime. Following the adoption of individual and general measures by Romania, the Committee of Ministers closed the examination of this case in November 2014.

The Committee of Ministers continues to supervise the adoption of legislative measures in the framework of the case Bucur and Toma v. Romania

concerning ongoing secret surveillance measures based on national security considerations.

119. Another sizable group of cases concerning ill treatment by police and lack of effective investigation has been identified in the Committee of Ministers 2011, 2012, 2013 and 2014 Annual Reports.

5.1 Failure to restore or compensate for nationalised property

120. The issue of nationalised property represents a systemic problem linked to the failure of Romania to set up, after 1989, an effective mechanism to restitute or compensate for properties nationalised during the communist period. The European Court of Human Rights has, very often, found a violation of Article 1 of Protocol No. 1 and Article 6.1 of the European Convention on Human Rights with respect to this problem, and a total of 180 such cases are currently pending before the Committee of Ministers.

121. Considering the scale of the problem, the European Court of Human Rights handed down in 2010 a pilot judgment in the case of Maria Atanasiu and Others v. Romania. The Court required Romania to put in place clear and simplified procedures to provide redress to victims. The time limit set by the Court for the adoption of appropriate measures was to expire on 12 July 2012, but it was subsequently extended to 12 May 2013.

122. In response to the pilot judgment and following consultations between high level representatives of the Romanian government, the Department for the Execution of Judgments and the Registry of the European Court of Human Rights, the Romanian Parliament adopted, on 22 April 2013, a law reforming the compensation mechanism, which entered into force on 20 May 2013. The law provides for restitution of property and, if the latter is not possible, it sets up a mechanism for compensation. It also foresees the adoption of some preparatory measures, such as the drawing up of an inventory of available agricultural land and woodland and the setting-up of a National Fund for agricultural lands and other immovable properties. The Rules for the application of the law entered into force on 29 June 2013.

123. At its 1172nd (DH) meeting (4-6 June 2013),

the Committee of Ministers welcomed the adoption of the above-mentioned law, underlined the importance of a thorough and constant monitoring of its implementation at the national level, encouraged the Romanian authorities to continue to co-operate with the Execution Department with a view to clarifying the outstanding issues identified in the Memorandum CM/Inf/DH(2013)24,

and to keep the Committee of Ministers regularly informed of the implementation of the first stages of the application of the new law, with a view to enabling it to assess the progress made.

124. On 29 April 2014, the Court delivered a follow-up judgment to the pilot judgment in the case of Preda and Others v. Romania,

in which it held that the new law provided, in principle, an accessible and effective framework of redress for the vast majority of situations arising in the reparation process. However, some issues identified in this judgment turned out to still be problematic, such as the lack of provisions affording redress in cases where there were multiple documents of title for the same building or lack of access to compensation of former owners entitled to compensation (in the absence of restitution), when the fact rendering restitution impossible became known after the deadline for lodging a compensation claim.

As a consequence of the Preda and Others judgment, the Court rejected 442 applications because of non-exhaustion of domestic remedies.

125. On 22 October 2014, Romanian authorities submitted a revised action plan,

which was assessed by the Committee of Ministers at its 1214th (DH) meeting (2-4 December 2014).

The Committee of Ministers noted with interest the progress in the implementation of the first stages of the law and decided to close the examination of cases concerning situations identified in the Preda and Others judgment as covered by the new mechanism and in which all the individual measures have been taken, i.e. 85 cases from this group.

However, as regards the other cases and the pilot judgment Maria Atanasiu and Others, the Committee of Ministers decided to monitor the developments concerning the outstanding issues identified by the Court. In March 2015, the authorities provided new information on the general measures required in this group of cases.

5.2 Excessive length of judicial proceedings and lack of an effective remedy

126. The cases of Nicolau v. Romania

and Stoianova and Nedelcu v. Romania

concern the excessive length of civil and criminal proceedings and in some cases also the lack of an effective remedy in this respect (violations of Articles 6 and 13). At present, over 80 similar cases are pending execution before the Committee of Ministers concerning this structural problem.

On 10 October 2011, Romania submitted an action plan to the Committee of Ministers detailing a number of measures Romania is taking to solve these problems.

127. Firstly, in order to simplify and accelerate judicial proceedings a “little reform” was instituted in 2010, through which a number of legislative amendments to the Civil and Criminal Procedure Codes were introduced.

The new Civil and Criminal Procedure Codes were adopted in July 2010; the Civil Procedure Code entered into force in February 2013, and the Criminal Procedure Code entered into force in February 2014. They both envisage large-scale legislative measures.

128. With respect to the lack of effective remedies, the above-mentioned new Code of Civil Procedure has introduced a remedy aimed at accelerating civil proceedings. For the time being, no statutory provision (including in the new Codes) provides for a compensatory remedy. The Romanian authorities pointed out the direct application of the Convention in the domestic law and that the domestic courts’ case law has evolved accordingly, thereby providing interested persons with remedies, and allowing for acceleration of proceedings and compensation for damages suffered.

129. On 26 June 2013, the Romanian authorities submitted their revised action plan.

At its 1179th (DH) meeting (24-26 September 2013),

as concerns excessive length of proceedings, the Committee of Ministers took note of the entry into force of the new Code of Civil Procedure and of the positive impact of the “little reform” and called on the authorities to continue to monitor the effects of these reforms. As concerns effective remedies, the Committee of Ministers invited the authorities to indicate the reasons for which the acceleratory remedy introduced by the new Code of Civil Procedure only applied to the proceedings initiated after its coming into force on 15 February 2013 and invited the authorities to provide clarifications to certain other outstanding issues, including the functioning of civil action for damages as a compensatory remedy. On 26 November 2013, the Court delivered a judgment in the case of Vlad and Others v. Romania,

in which it welcomed the general measures taken by Romania to remedy the structural problem of excessive length of civil and criminal proceedings. However, under Article 46, the European Court of Human Rights invited the authorities to take further measures to ensure a specific and clearly regulated remedy against excessive length of proceedings.

5.3 Non-enforcement of domestic judicial decisions

130. For over ten years, the Committee of Ministers has been examining a number of cases with regard to the State’s failure to enforce final domestic court decisions (violations of Article 6.1 of the Convention and/or Article 1 of Protocol No. 1).

131. In November 2011, the Romanian authorities provided to the Committee of Ministers a revised action report regarding the Ruianu group.

Moreover, an action plan concerning the Sacaleanu group of cases was submitted in January 2012

and an action plan concerning the Strungariu group of cases was submitted in June 2012,

followed by a revised version in March 2013.

In the revised action report submitted for the Ruianu group

in November 2011, the authorities asserted that the violations found in these cases did not originate in an underlying structural problem within the Romanian justice system, but were rather singular cases. This answer was explained with reference to various similar cases concerning enforcement of judicial decisions that had been brought before the Strasbourg Court, and which had been deemed inadmissible due to non-exhaustion of domestic remedies or manifestly ill-founded.

The Romanian authorities further detailed the various general measures taken with respect to such cases

and requested the Committee of Ministers to close the examination of this group of cases. On 6 September 2012, they submitted additional comments concerning the Sacaleanu group, asserting in particular that a new Code of Civil Procedure contained provisions simplifying the domestic enforcement procedure and thus better safeguarding the rights of the creditors.

132. At its 1150th (DH) meeting (September 2012),

the Committee of Ministers noted with interest the latest action plan submitted in the Sacaleanu group of cases, but expressed concern that several crucial issues related to general measures were still outstanding, in particular as regards the mechanisms and the guarantees set forth in the domestic law for ensuring voluntary and prompt enforcement of court decisions by the administration and the remedies available in this respect.

It noted that the violations found by the Court in these cases revealed the existence, at the time of the relevant facts, of important complex problems.

133. On 16 December 2014, Romanian authorities provided updated information

on measures adopted in the Sacaleanu group, containing, inter alia, information about the setting up of a ministerial working group tasked with examining the problem of non-implementation of decisions against public debtors. On 29 January 2015, the authorities provided another action plan concerning the Ruianu group of cases.

5.4 Poor conditions of detention

134. In the cases of the group Bragadireanu v. Romania

the Court held that the applicants’ conditions of detention amounted to inhuman and degrading treatment (violations of Article 3 and 13), due, in particular, to prison overcrowding and poor material conditions of detention and that there was no effective remedy to obtain redress in such situation. At present, more than 90 similar cases concerning these structural problems in prisons and police detention facilities

are pending before the Committee of Ministers.

135. The Romanian authorities provided two action plans in April 2011

and in March 2012,

setting out the measures taken and envisaged to tackle the issues highlighted in these judgments affecting prisons and police detention facilities. At its 1144th meeting (June 2012),

the Committee of Ministers welcomed the information that the domestic prison monitoring mechanism used evaluation criteria similar to those of the Court and that its findings were accessible to civil society; however, it expressed concerns about most detention facilities’ inability to observe the national standards guaranteeing a minimum individual living space to prisoners.

The Committee of Ministers also encouraged the Romanian authorities to establish a similar monitoring mechanism for police detention facilities, to intensify their efforts to tackle poor detention conditions and to provide information on other concrete measures taken in response to other outstanding issues identified by the Committee of Ministers Secretariat

and their effects, in particular the setting up of effective domestic remedies.

136. In 2012, the European Court of Human Rights delivered its judgment in the case of Iacov Stanciu, in which it stated that the measures taken by the authorities had led to an improvement in the living and sanitary conditions in Romanian prisons. However, under Article 46, it called on the authorities to take further measures in this respect and to set up a system of effective remedies against violations of Article 3.

Following this judgment and the Committee of Ministers assessment of the adopted measures, in September 2012, the Government adopted new lines of priority action to resolve the structural problem in question; they also set up a working group to monitor their implementation. Moreover, Romania became a beneficiary of the HRTF Project No. 18 aimed at implementing judgments of the European Court of Human Rights revealing structural problems in the field of detention on remand and effective remedies to challenge conditions of detention.

137. A revised action plan was submitted to the Committee of Ministers in October 2014,

which was assessed at their 1222nd (DH) meeting (11-12 March 2015).

The Committee of Ministers noted with interest the measures taken by the authorities as part of the reform of the State’s criminal law policy. However, the Committee of Ministers considered with concern that the legislative measures adopted were not sufficient regarding the severity of overcrowding in detention facilities and noted that the authorities maintained the system of detention on remand in police detention facilities, despite the fact that a part of these facilities were not suitable for detention. It also noted that the information provided to that date by the authorities did not allow for a conclusion that the available procedures represented adequate and effective remedies. Thus, the Committee of Ministers urged the authorities to rapidly define and implement appropriate additional measures and to provide information on the strategy they envisaged to put in place for the implementation of these judgments by 1 June 2015 at the latest and encouraged them to draw inspiration from the solutions proposed in the framework of the relevant project of the Human Rights Trust Fund.

138. Moreover, the CPT, after its visit to Romania in September 2010, raised concerns about several shortcomings regarding conditions of detention in its report.

It mentioned, amongst others, serious overcrowding in establishments all over the country (150% of the capacity), insufficient conditions in police detention facilities regarding minimum living space (in most of the visited establishments less than 4m2), the poor hygienic situation in cells and sanitary facilities, quality and quantity of food served in some facilities, as well as a lack of outdoor activities for detainees.

Furthermore, the CPT made several recommendations concerning deficiencies in the provision of medical services.

5.5 Ill-treatment by police and lack of effective investigations

139. There are currently over 20 cases concerning this issue before the Committee of Ministers.

In the Barbu Anghelescu group of cases the Court found violations of the Convention on account of several issues, including ill treatment of the applicants in police custody, lack of effective investigation into the abuses and racially motivated treatment of detainees of Roma origin (violations of Articles 3, 13 and 14 taken in conjunction with 3 and 13). In the case of Carabulea v. Romania, it found a substantive violation of Article 2, as the applicant had died due to the ill treatment by law-enforcement authorities.

140. On 9 January 2013, the Romanian authorities submitted an action plan for the execution of this group of judgments,

but the Committee of Ministers Secretariat found multiple deficiencies in it.

First of all, the fundamental procedural safeguards against ill treatment, comprised of the right to have access to legal and medical assistance and the right to inform a third party of the apprehension, continued to apply only to those individuals who have been formally remanded. Issues were also to be noted in the implementation the regulatory provisions on the medical examination of prisoners: non-observance of the confidentiality of the medical examinations and medical files of the prisoners, incomplete medical examinations and information included in the medical charts and non-compliance with the obligation on the medical doctors to report to the relevant judicial authorities the signs of violence and aggression possibly observed. Moreover, the regulatory provisions on the forensic examination of persons detained in police detention facilities who present traumatic injuries appear to delay such examination and to leave it at the discretion of an authority that lacks the required operational independence (the head of the detention facility). The awareness-raising and training measures taken do not appear to have been capable of completely eradicating acts contrary to Articles 2 and 3. Additional measures, in the context of a policy of “zero-tolerance” of such acts, appear therefore necessary in respect of all law-enforcement services.

141. As regards the effectiveness of criminal investigations into abuses by police, no convictions for acts prescribed by Articles 2 and 3 were reported during the reference period (2003-2012) and problems persist as regards prosecutors’ compliance with courts’ instructions on the conduct of the investigation.

142. At its 1164th meeting (DH) in March 2013, the Committee of Ministers requested further information on individual and general measures from the Romanian authorities.

It underlined the need for systematic action in line with a policy of “zero-tolerance” of acts contrary to Articles 2 and 3 of the Convention.

On 17 July 2013, the Romanian authorities provided information on individual measures.

In the course of 2014, bilateral consultations between the authorities and the Committee of Ministers Secretariat were pursued, taking into account the impact of the entry into force of a new Criminal Code and a new Code of Criminal Procedure on 1 February 2014.

5.6 Other areas of specific concern

143. The Committee of Ministers 2014 Annual Report also points out other cases involving important structural and/or complex issues. Most of these cases concern violations of Articles 2 or 3 of the Convention and reveal the following problems: the ineffectiveness of criminal investigations into violent crackdowns on anti-governmental demonstrations related to the fall of the communist regime in the context of the group of cases Association “21 Decembre 1989” and Maries v. Romania

(mainly procedural violations of Article 2), lack of appropriate judicial and social protection and medical care for a seropositive man of Roma origin, diagnosed with “profound intellectual disability”, who died in 2004 in a psychiatric facility (violations of Article 2 and 13) in the case of Centre for Legal ressources on behalf of Valentin Câmpeanu,

the inadequacy of the detention regime of “dangerous” prisoners (violation of Article 3) in the case of Enache v. Romania

and the inadequate management of psychiatric conditions of detainees in prison (violation of Article 3 in the group of cases of Ţicu v. Romania).

6. Greece

144. According to the Pourgourides report, the most serious problems concerning Greece included:

excessive length of proceedings and lack of an effective remedy;

use of lethal force and ill treatment by law-enforcement officials and lack of effective investigation into such abuses.

145. Another two issues were discussed by our committee at its January 2013 hearing: the conditions of detention of foreigners/asylum procedure and violations of the right to freedom of association of Muslim minorities. They are also mentioned in the Committee of Ministers 2014 Annual Report.

146. Additionally, the Committee of Ministers 2014 Annual Report lists poor conditions of detention in prisons as an important issue.

6.1 Excessive length of proceedings

147. At present over 320 judgments against Greece are pending execution, in which the Court found violations of the right to a fair trial due to excessive length of proceedings and lack of an effective remedy (Articles 6.1 and 13 of the European Convention on Human Rights).

A 2007 Committee of Ministers interim resolution highlighted these chronic violations and urged the adoption of draft legislation on the acceleration of proceedings and provision of compensation to victims.

Due to the persistence of this problem, the European Court of Human Rights decided to apply its pilot judgment procedure in Vassilios Athanasiou and Others v. Greece, finding that the excessive length of proceedings before administrative courts was a structural problem and holding that Greece was to introduce an effective remedy or a combination of remedies at the national level, which would prevent further similar violations, within one year after the judgment became final (i.e. 21 March 2012).

Thus some general measures have been taken or are underway.

148. Law No. 3900/2010, entitled “Rationalisation and acceleration of proceedings before administrative courts and other provisions”, entered into force on 1 January 2011.

The new law provides that legal disputes raising new and similar issues in numerous cases can be prioritised and brought before a committee of three judges of the Council of State, whose judgment will serve as a guideline for other cases pending before the administrative courts. The Council of State was able to transfer 4 333 cases to lower administrative courts within the first five months of the law’s entry into force. Furthermore, stricter conditions for lodging appeal proceedings and a single judge system in the courts of appeal were introduced and the number of posts for administrative judges at all levels of jurisdiction was increased.

At its 1136th (DH) meeting (March 2012), the Committee of Ministers noted these measures with interest and encouraged the Greek authorities to keep it regularly informed of the law’s impact.

149. On 6 March 2012, Law No. 4055/2012 providing an acceleratory and a compensatory remedy in cases of excessive length of proceedings before administrative courts and the Council of State was adopted by Parliament before the expiry of the deadline set by the Court (i.e. 21 March 2012) and entered into force on 2 April 2012.

According to the new law, anyone claiming that proceedings before administrative courts are excessively lengthy may request compensation for damage caused. Furthermore, courts shall assess the reasonableness of the procedure’s length and the amount of the compensation to be awarded according to the case law of the European Court of Human Rights. The Committee of Ministers, at its 1136th (DH) meeting (March 2012), welcomed the adoption of the law and took note of the Greek authorities’ intention to follow the compensatory remedy’s implementation and to explore if necessary, in the light of its functioning, the opportunity for possible adjustments.

150. On 8 April 2013, Greek authorities submitted a revised action plan

recalling that a first set of satisfactory results were obtained within 8 months after the entry into force of law 3900/2010 and that the implementation of Law 4055/2012 resulted in a decrease in the workload of the Council of State. On 1 October 2013, the Court delivered a decision in which it stated that the remedies set out by Law No. 4055/2012 were effective and accessible.

Following this decision, at its 1193rd (DH) meeting (4-6 March 2014),

the Committee of Ministers decided to supervise this group of cases under the standard procedure and invited the Greek authorities to provide further information on the concrete impact of the measures aimed at reducing the length of administrative proceedings.

151. Independently of the progress noted in respect of the acceleration of proceedings before administrative courts and the Council of State, the European Court of Human Rights adopted a pilot judgment, on 4 April 2012, in the case of Michelioudakis v. Greece concerning excessive length of criminal proceedings.

In its judgment, the Court highlighted the structural nature of the problem at stake and called on Greece to introduce, within one year (i.e. by 3 July 2013), a domestic remedy or a set of remedies capable of affording redress for the unreasonable length of criminal proceedings, and decided to adjourn all similar cases (50 out of 250 pending cases before the Court concern criminal proceedings) during that time. It noted that, despite the adoption of Law No. 3904/2010 containing a set of provisions aimed at simplifying and accelerating criminal proceedings and various other legislative initiatives, the domestic legal system did not provide to the parties concerned a remedy or remedies enabling them to enforce their right to have their cases heard within a reasonable time.

152. Similarly, on 30 October 2012, a pilot judgment was delivered in the case of Glykantzi v. Greece,

concerning excessive length of proceedings before civil courts and the lack of an effective remedy in this respect. The Court requested that Greece put in place an effective remedy for excessively lengthy civil proceedings before 30 January 2014. In the meantime, the European Court of Human Rights extended the deadline for the introduction of a remedy in the case of Michelioudakis until 30 January 2014

to be in line with the deadline for the execution of the Glykantzi pilot judgment.

153. At its 1193rd (DH) meeting (March 2014),

the Committee of Ministers noted with satisfaction that a law introducing a compensatory remedy was adopted by the Greek Parliament on 13 February 2014 (Law No. 4239/2014) and entered into force on 20 February 2014.

154. In October 2014, the Court delivered a judgment in the case of Xynos v. Greece,

in which it found that the above-mentioned compensatory remedy constituted a sufficient response to the State’s obligation to establish an effective remedy against excessive length of civil and criminal proceedings as well as the proceeding before the Court of Audit. At its 1214th (DH) meeting (2-4 December 2014), the Committee of Ministers noted that the Court concluded that the compensatory remedy introduced by Law No. 4239/2014 could be considered effective and accessible and invited the authorities to provide further information on its functioning in practice.

155. As regards measures to reduce the length of civil and criminal proceedings, between 2012 and 2014 the authorities provided a number of submissions to the Committee of Ministers.

As regards civil proceedings, they informed, inter alia, about the setting up of a single-judge court of appeals, computerised court management, assessment of judges’ performance; as regards criminal proceedings – about the introduction of a single-judge formation, reclassification of certain misdemeanours as petty offences and the inadmissibility of anonymous complaints. The Committee of Ministers examined these measures at their 1172nd (June 2013), 1179th (September 2013) and 1186th (December 2013) meetings (DH). At the 1186th meeting, the Committee of Ministers requested the authorities to provide information (including statistical information) on the impact of these measures on reducing the length of civil and criminal proceedings and reiterated this request at its 1214th meeting in December 2014.

A new updated action plan and an action report were respectively provided in March 2015

and June 2015.

6.2 Use of lethal force and ill treatment by law-enforcement officials and lack of effective investigation into such abuses

156. Violations of Articles 2 and 3 of the European Convention on Human Rights arose due to the excessive use of lethal force and ill treatment by law-enforcement officials and the subsequent failure of the Greek authorities to conduct effective investigations into such abuses. Currently there are eleven cases pending before the Committee of Ministers.

157. As concerns the use of lethal force by police officers in the absence of an appropriate legislative and administrative framework relating to the use of firearms, the Greek authorities have taken a number of measures to avoid further similar violations of Article 2 of the Convention.

In particular, Law No. 29/1943 on the use of firearms, which had been criticised by the European Court of Human Rights, was abolished. New comprehensive legislation detailing the rules for the use of firearms by police officers was introduced.

Furthermore, since 2003 there have been no similar cases communicated or pending before the Court. Consequently, the Committee of Ministers decided to close the examination of this aspect of the cases in question at its 1157th (DH) meeting (December 2012).

158. As regards ill treatment under the responsibility of the police (violations of Article 3), several measures have been taken by the Greek authorities, such as adopting a new Disciplinary Code,

disseminating circulars to police stations and prosecutors as reminders of their obligation to effectively investigate human rights violations and training police officers more extensively on human rights issues.

159. Furthermore, by Law No. 3938/2011, an independent, three-member committee competent to evaluate the advisability of opening new administrative investigations following judgments of the Court was established in order to ensure effective investigations into deaths and other abuses by police officers (procedural violations of Articles 2 and 3).

At its 1157th (DH) meeting (December 2012), the Committee of Ministers welcomed this progress and invited the Greek authorities to keep them updated about its establishment and effective functioning.

According to the Committee of Ministers 2014 Annual Report, in November 2014, the authorities provided an action report, which is being assessed.

160. It should be noted that, according to some prominent international NGOs, abuse of force by police officers remains a worrying phenomenon in Greece, especially concerning anti-austerity protesters,

migrants and asylum-seekers.

Moreover, the CPT, in its report following its visit to Greece in April 2013, noted that the problem of ill treatment by the police appeared to be growing and that there was little evidence showing that such abuses had been promptly and thoroughly investigated.

This issue was also examined during its visit to Greece in April 2015.

6.3 Conditions of detention of foreigners and asylum procedure

161. In nearly 20 cases examined by the Committee of Ministers subsequent to the case of M.S.S v. Belgium and Greece,

the Court found violations of Article 3 due to the conditions under which the applicants (including unaccompanied minors)

were detained as irregular migrants (overcrowding, lack of beds/mattresses, insufficient ventilation, no regular access to toilets or sanitary facilities, and no outdoor exercise). The case of M.S.S. v. Belgium and Greece

also addressed shortcomings in the Greek authorities’ examination of the applicant’s asylum request and the risks he would face upon being returned directly or indirectly to his country of origin. The Court found that his asylum application was treated without any serious examination of its merits, and that he lacked access to an effective remedy (violation of Article 13 taken in conjunction with Article 3). Moreover, in October 2014, in the case of Sharifi and Others v. Italy and Greece,

the Court found, amongst others, that Italy violated Article 3 of the Convention, when returning the applicants to Greece, where they had no access to adequate asylum procedure and were facing deportation to Afghanistan. It also held that there had been a violation of Article 13 in conjunction with Article 3 with respect to Greece.

162. In March 2011, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment issued a public statement regarding the treatment and conditions of detention of persons deprived of their liberty in Greece, in particular that of irregular migrants,

and put forward a series of recommendations in its related report on its January 2011 visit to Greece.

The CPT statement and the response of the Greek authorities were also discussed at the meeting of our committee’s Sub-Committee on Human Rights on 4 October 2012.

Following his visit to Greece, the Council of Europe Commissioner for Human Rights Mr Nils Muižnieks issued a statement in April 2013 where, inter alia, he urged Greece “to remedy certain serious, long-standing gaps which adversely affect the human rights of migrants, including asylum seekers and refugees”.

In its report on Greece of October 2014,

the CPT reiterated its concerns about the conditions of detention of irregular migrants and was particularly critical about the treatment of unaccompanied minors (who are occasionally detained with adults) and the poor conditions in the special holding facilities at the Athens airport, Fylakio and Petrou Ralli.

163. The Greek authorities, some NGOs and the UNHCR submitted a number of communications to the Committee of Ministers concerning this group of cases.

The first measures taken by the Greek authorities were assessed in the Memorandum CM/Inf/DH(2012)19.

164. As regards the conditions of detention of asylum seekers and irregular migrants, the Greek authorities informed the Committee of Ministers that irregular migrants were no longer detained in police stations; however, the UNHCR alleges that this is not the case.

The authorities have also informed the Committee of Ministers about improved medical and psychological care for irregular migrants in a number of detention centres. However, a number of issues still remain. At their 1222nd meeting (DH) in March 2015, although the Committee of Ministers welcomed the improvements made as regards the conditions of detention in pre-return centres and noted the Greek authorities’ statement that aliens subject to deportation were no longer detained at police stations, it urged the authorities to improve the conditions of their detention, in particular at the holding facilities at the Athens airport, Fylakio and Petrou Ralli (as noted by the CPT). It also urged the authorities to ensure, as a matter of priority, the full protection of the rights of unaccompanied minors, so that alternatives to detention are sought for them, taking into account the “best interests of the child”.

165. As regards a remedy allowing asylum seekers and irregular migrants to complain about the conditions of detention, the authorities alleged that they could do so under Article 76 of Law No. 3386/2005. In its admissibility decision of 8 July 2014 in the case of S.B. v Greece,

the Court acknowledged the existence of this remedy; however, it has not yet recognised that it is effective.

At its 1222nd meeting (DH) (March 2015), the Committee of Ministers invited the authorities to ensure that this remedy is effective in practice and to provide developments of domestic case law in this regard.

166. As regards shortcomings in the asylum procedure, at its 1186th (DH) meeting (3-5 December 2013),

the Committee of Ministers noted with satisfaction that the three services established by Law No. 3907/2011 – Asylum Service, Appeals Committee and First Reception Centres – had started operating (on 7 June 2013). Since the new asylum system was set up, the old and the new asylum regimes co-exist

and the backlog of the applications lodged before 3 June 2013 is examined by a committee composed of police officers and, if appropriate, by second instance committees. At their 1222nd meeting (DH) in March 2015, the Committee of Ministers noted with interest the positive impact of the new asylum services on the effectiveness of the asylum procedure. It also called on the authorities to fully protect the rights of minors through an effective guardianship system, guarantee the right to free legal aid and eliminate the backlog of cases lodged before 7 June 2013.

167. It should be noted that in its report of 30 January 2015,

the UNHCR commended Greece for reforming its asylum system despite tough economic and political times. However, it also pointed out numerous gaps and concerns and recommended to European Union member States not to return asylum seekers to Greece under the Dublin Regulation. The problems persist and have been worsened due to the recent dramatic increase in refugee and migrant arrivals (mainly by sea) from Syria, Afghanistan, Eritrea and Somalia.

The issue of irregular migrants coming to Europe by crossing the Mediterranean or otherwise has been debated by the Assembly on many occasions in the last few years.

6.4 Freedom of association

168. In the Bekir-Ousta and Others judgment and other similar cases, the Court found violations of the right to freedom of association due to the Greek authorities’ refusal to register associations,

and to the dissolution of an association promoting the idea that a Turkish ethnic minority exists in Greece (violations of Article 11).

169. After the judgments of the European Court of Human Rights had been delivered, the applicants in all the cases requested the revocation of the impugned domestic courts’ decisions, but their requests were rejected at the second level of jurisdiction for procedural reasons. In the cases of Bekir-Ousta and Others and Emin and Others the applicants lodged cassation appeals, which were pending at that time.

The cassation appeal lodged by the association Tourkiki Enosi Xanthis was rejected by the Court of Cassation,

according to which in a non-contentious procedure a judgment of the European Court of Human Rights did not constitute “a change of circumstances” allowing for a revision or revocation of a final domestic judgment.

170. According to the information provided by Greece, 43 requests for the registration of associations whose title indicated the adjective “minority” or indicated in some way that they were of minority origin, were accepted between January 2008 and February 2012 and there had been only four cases in which registration was refused.

Moreover, by judgment 24/2012, the Greek Court of Cassation overturned a judgment of the Thrace Court of Appeal that had refused the “South Evros Cultural and Educational Association of Western Thrace Minority” association’s application for registration, holding, with reference to Article 11 of the Convention, that a mere suspicion resulting from an ambiguity in the title of the association was insufficient to establish a danger to public order, and that there was no imperative social need to refuse to recognise the association in question.

In November 2012, the Greek authorities indicated that a new hearing in the said case would be held before the Court of Appeal of Thrace on 7 December 2012 and that the Cassation Court’s decision could be followed by lower jurisdictions.

171. At its 1157th (DH) meeting (December 2012), the Committee of Ministers took note of this new development and “recalled the commitment reiterated by the Greek authorities to implementing fully and completely the judgments under consideration, which have been under the supervision of the Committee of Ministers since 2008 and without excluding any avenue in that respect”.

It also invited the Greek authorities to provide precise and concrete information on the measures taken or envisaged.

On 8 April 2013, the Greek Government submitted new information.

172. At its 1186th (DH) meeting (3-5 December 2013),

the Committee of Ministers noted that, following the judgments of the European Court of Human Rights, the court proceedings brought by the applicant associations in the cases Bekir-Ousta and Others and Emin and Others did not lead to the expected results, the applicants’ appeals in cassation, as in the case of Tourkiki Enosis Xanthis, have also been dismissed on procedural grounds without an examination on the merits. The Committee of Ministers further noted with dissatisfaction that the avenue consisting of amending the Code of Civil Procedure in order to implement the individual measures of the present judgments appeared to be still under consideration. As the Greek authorities had not provided further information, at its 1201st meeting (DH) in June 2014, the Committee of Ministers adopted an interim resolution in this group of cases.

The Committee of Ministers recalled that since June 2013 the authorities had been considering “the most appropriate solution” to implement individual measures and strongly regretted that no concrete and tangible information had been provided in this respect. Therefore, it called upon the authorities to take, without further delay, all necessary measures so that the applicants benefit from proceedings compliant with the Convention requirements. So far, no reply has been provided by the authorities to this interim resolution.

173. It should be recalled in this context that the situation of the Muslim minority in Western Thrace has been the subject of several reports by our committee.

In its Resolution 1704 (2010), the Assembly urged the Greek authorities to “fully implement the judgments of the European Court of Human Rights concerning freedom of religion and association, inter alia, relating to the titles of associations, and to allow associations to use the adjective ‘Turkish’ in their name if they so wish”.

6.5 Other outstanding issues

174. The Committee of Ministers is currently examining under the enhanced supervision procedure a number of cases concerning poor conditions of detention (mainly due to overcrowding) in the Ioannina, Korydallos and Larissa prisons (violations of Article 3). In the Nisiotis v. Greece judgment,

the Court found that overcrowding in prisons appeared to be a structural problem in Greece. This issue was also pointed out in the CPT’s report on Greece of 2014.

The Committee of Ministers examined this group of cases for the last time at their 1230th meeting (DH) in June 2015.

175. Since 2006, the Committee of Ministers has been examining a number of cases (Beka-Koulocheri v. Greece)

concerning failure or considerable delay in the enforcement of final domestic judgments and absence of effective remedies in this respect (violations of Articles 6.1 and 13). Most of these cases concern non-implementation of domestic judgments concerning lifting of expropriation. The Committee of Ministers examined this group of cases for the last time at their 1214th meeting (DH) in December 2014.

7. Poland

176. Mr Pourgourides’ report pointed out two main structural issues in Poland: excessive length of proceedings and lack of an effective remedy and excessive length of detention on remand.

177. The report also dealt with some other issues, which included poor conditions of detention, violation of the freedom to assembly and unfairness of lustration proceedings.

Since then, the Committee of Ministers considered that the authorities had taken sufficient measures to implement judgments concerning excessive length of detention on remand (the Trzaska v. Poland

and Kauczor v. Poland

group of 173 cases

) and unfairness of lustration proceedings (Matyjek v. Poland group of cases)

and closed the examination of the cases from these groups. However, other issues turned out to be problematic (see below). During my visit to Warsaw (3-5 December 2014), I discussed all these problems with the competent authorities and representatives of the Helsinki Foundation for Human Rights and the Warsaw Bar Association.

7.1 Excessive length of proceedings and lack of an effective remedy

178. The Pourgourides report requested that Poland provide statistical data on the effectiveness of the Polish authorities’ various domestic efforts to eradicate the problem of excessively long proceedings.

Since then, further information has been provided as regards progress on reducing the length of criminal

(Kudła v. Poland and other cases) and civil proceedings (Podbielski v. Poland and other cases)

as well as proceedings before administrative authorities and courts (Fuchs v. Poland and other cases).

179. On 22 November 2011, the Polish authorities submitted an action plan

concerning the Kudla v. Poland

and Podbielski v. Poland

groups of cases, and on 23 November 2011 they submitted a separate action plan concerning the Fuchs v. Poland

group of cases.

Both action plans contained summaries of legislative and other general measures taken by the Polish authorities to remedy this problem (including computerisation of judicial proceedings and increase in the judiciary’s budget and staff),

as well as statistical information on the matter of length of proceedings up to 2010. At its 1128th (DH) meeting (November-December 2011),

the Committee of Ministers noted these measures.

180. In October 2012, the Court communicated to the Polish authorities five cases (Suchecki v. Poland

and four other cases) concerning excessive length of proceedings and the effectiveness of the domestic remedy introduced in 2004. The Court applied the pilot-judgment procedure and asked the authorities whether the communicated cases showed a systemic problem consisting in the malfunctioning of the Polish judicial practice in that the courts did not comply with its criteria stemming from the Convention. At that date, some 400 cases concerning this problem were pending before the Court.

181. An updated action plan concerning the Kudla v. Poland and Podbielski v. Poland groups of cases was submitted by the authorities on 4 July 2013.

The authorities confirmed that they were pursuing the measures announced in 2011 and presented a number of new legislative measures aimed at the simplification and acceleration of proceedings such as the transfer of responsibilities from judges to non-judicial officers and from the courts` jurisdiction to other legal professions, such as public notaries. According to the statistics concerning all types of cases provided for 2012, the courts managed to deal with a number of cases that was higher than that of the incoming ones. This led to a reduction in the backlog of pending cases for the first time in recent years. In 2012, Polish courts had completed over 14 million cases but, as of 31 December 2012, there was still a backlog of over 1.8 million cases.

182. The updated action plan also sets out information on the effectiveness of the domestic complaint against excessive length of proceedings introduced in 2004 and further improved by a legislative amendment in 2009. The Polish authorities are of the opinion that courts were taking into account the Court’s case law to a greater extent, and between 2009 and 2010, the number of such complaints increased by nearly 35%,

between 2010 and 2011 – by 23% and between 2011 and 2012 – by 32%.

In 2012, the percentage of well-founded complaints amounted to nearly 18%, and, in 95% of these complaints, applicants had been awarded pecuniary compensation.

Most of the complaints concern civil proceedings (62%, compared with 25% for criminal proceedings). In its Resolution of 28 March 2013,

the Supreme Court stated that courts should take into account the overall length of proceedings when examining allegations of excessive length of proceedings. In its communication to the Committee of Ministers of 6 December 2013,

the Polish Bar Council complained that court proceedings were often protracted and that the domestic remedy was not efficient, because of the “fragmentation of proceedings” (i.e. not taking into account the overall length of proceedings), the incomplete reasoning of court decisions and the lack of indication on how to accelerate proceedings as well as the low level of granted compensation (although the law provides that such compensation may vary between €500 and €5 000, courts award it at the level of €700-€1 000).

183. When assessing that action plan at the 1179th meeting in September 2013,

the Deputies further encouraged the authorities to “develop a clear strategy” in order to maintain the positive trend concerning the reduction of the backlog of pending cases. However, they expressed serious concern as regards the functioning of the domestic remedy, considered that further corrective measures were needed in this respect and called upon the authorities to conduct an in-depth reflection on the measures needed and provide an updated action plan. In response the authorities submitted an updated action plan to the Committee of Ministers on 26 May 2015.

184. Concerning the excessive length of administrative proceedings, the statistical information included in the action plan on the Fuchs group of cases of 2011 reveals that administrative courts usually completed complaints about the inactivity of administrative authorities within 3-6 months

and that the workload of the Supreme Administrative Court remained stable.

In 2011, a new law on financial liability of public officials for gross violation of law

and new amendments to the Code of Administrative Procedure (“CAP”) entered into force. As a result of these amendments, it is now possible not only to complain about the inactivity of administrative authorities, but also about protracted proceedings before the latter (Article 37 of the Code of Administrative Procedure). However, this new remedy has no compensatory effect (in contrast the above-mentioned remedy introduced in 2004 applies to excessively lengthy proceedings before administrative courts).

185. This action plan and this group of cases were discussed at the Committee of Ministers’ 1128th (DH) meeting (November-December 2011)

and at its 1179th (DH) meeting on 26 September 2013.

In its decision adopted at the latter meeting, the Committee of Ministers expressed concern about the lack of new information and about the overall situation, noting that the number of cases pending before administrative courts had increased and that there was no information available on the length of proceedings before administrative bodies. They also underlined that this issue had been pending for more than ten years.

186. In January 2014, the authorities provided an updated action plan,

with an update on the use of the new remedy from Article 37 of the CAP, statistics concerning proceedings before administrative courts and supervisory and organisational measures taken within them. It results thereof that the number of complaints based on Article 37 of the CAP, including admissible ones, has been on a constant rise. In 2012, regional administrative courts settled most of the cases (78%) within one year, but, despite their efficiency, they still had a backlog of unsolved cases at the end of 2012. The same could be said about the Supreme Administrative Court, which had to deal with a constantly increasing number of cassation appeals (47% of them had been examined within one year and 53% within a period of between 12 and 24 months). No information has been provided on the length of proceedings before administrative bodies. In April 2015, the authorities provided an updated action plan.

187. During my visit to Warsaw, the authorities told me that they were doing their utmost to eradicate the chronic problem of excessive length of judicial proceedings, despite the high number of incoming court cases (nearly 15 million per year). Representatives of the Ministry of Justice stated that it was, to some extent, related to the deficiencies in the court experts’ system and that the authorities intended to review the legislation governing their status. As regards criminal proceedings, new provisions in the Code of Criminal Procedure would enter into force on 1 July 2015 and they would shorten the length of proceedings, by introducing adversarial procedures. Awareness raising measures – such as training sessions for judges and prosecutors or publications concerning the Convention and the case law – of the European Court of Human Rights were being taken. In March 2014, the Ministry of Foreign Affairs, the Ministry of Justice, the Supreme Administrative Court and the Constitutional Court signed an agreement on sharing Polish translations of judgments of the European Court of Human Rights and other relevant information. Concerning the effectiveness of the domestic remedy against excessive length of judicial court proceedings (in particular the “fragmentation of proceedings” and too low compensations), I raised this issue with the President and judges of the Supreme Court. As regards administrative proceedings, I was informed during my meeting in the Supreme Administrative Court that their excessive length was mainly due to the inactivity of administrative bodies and that a further reform of the proceedings before administrative courts was pending.

7.2 Outstanding issues

7.2.1 Poor conditions of detention

188. There are several cases against Poland pending execution before the Committee of Ministers regarding inhuman and degrading treatment due to inadequate conditions of detention caused by overcrowding (Orchowski v. Poland and Norbert Sikorski v. Poland)

and the lack of adequate medical care (Kaprykowski v. Poland and other cases),

among other things. As the Court recalled in Orchowski v. Poland, inadequate imprisonment conditions constitute a recurrent problem in Poland, and overcrowding in Polish prisons and remand centres reveals a persistent structural problem.

189. On 17 March 2010

and on 12 September 2011,

the Polish authorities submitted action plans concerning the cases of Orchowski and Norbert Sikorski.

The second action plan demonstrated a decline in the number of detainees combined with a solid increase in prison and remand centre holding capacity from 2006 to July 2011.

Moreover, the European Court of Human Rights delivered two inadmissibility decisions in 2010, where it found that an effective remedy against detention facility overcrowding was available (civil action for compensation), and declared that it may require applicants in future cases to make use of the new complaints system introduced by the Code of Execution of Criminal Sentences.

190. At its 1120th meeting (DH) (September 2011),

the Committee of Ministers noted those elements and highlighted that, as regards the Orchowski and Norbert Sikorski cases, information on aggravating factors identified by the Court was still absent and invited the Polish authorities to submit such additional information. This information was submitted by the authorities in January 2013 and included two factors: the frequent transfer of prisoners, and possibilities for prisoners to exercise. No information was provided on the other aggravating factors identified by the Court, which include lack of privacy, insalubrious conditions and lack of consideration for vulnerable detainees with medical conditions.

At its 1164th meeting (DH) (March 2013), the Committee of Ministers invited the Polish authorities to provide a consolidated action report including the outstanding information

and, in August 2014, the authorities provided a consolidated action report, in which they indicated, inter alia, that new accommodation places for detainees had been acquired between 2006 and 2010 and that improvements in using the electronic surveillance of convicts had been made both at the legislative and the organisational level. The authorities also pointed out that the occupancy rate in prisons and remand centres was of 98% as at 31 December 2012 and of 96.4% – as at 30 April 2013 (according to the Polish statutory living space standard of 3 m2 per inmate).

191. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) found in its report of July 2011 on its 2009 visit to Poland that overcrowding persisted in detention facilities, and recommended that the Polish authorities revise the legal standards for detainee living space to ensure 4m2 per inmate.

Similarly, in her communication to the Committee of Ministers from November 2011, the Polish Ombudsman pointed out that the issue of overcrowding in Polish detention facilities remained unresolved, although, at the time of her submission, the population density in detention centres amounted to 96.4% at the national level, as measured against overall capacity.

The overall figures may hide important regional differences or reflect differences in the methods used to compile statistics. This also stems from the submission of NGOs,

which find that the current situation is contrary to the principle of the rule of law and advocate reviewing the practice of applying pretrial detention and non-custodial measures rather than the creation of new detention facilities. When assessing this information at its 1164th (DH) meeting (March 2013) the Committee of Ministers also noted with interest the authorities’ commitment to continue their efforts to take into account the recommendations of the CPT, notably in respect of living space. In the report on its visit to Poland in June 2013, the CPT confirmed that overcrowding remained a problem in all the prisons visited. It called upon the authorities to double their efforts to combat this negative phenomenon and to revise as soon as possible the current legislation for living space per prisoner (i.e. 3 m2).

192. A first action report/plan on the Kaprykowski group of cases was submitted to the Committee of Ministers in March 2010

and then supplemented on 12 September 2011.

Additional information was provided by the government on 11 January 2013.

The authorities stated that a reform of penitentiary hospital facilities aimed at improving the quality and consistency of medical treatment for all prisoners was under way.

Furthermore, in December 2010, the Minister of Justice adopted a decree “On the provision of medical services to persons in confinement by health-care establishments for persons deprived of liberty”, which defines the scope of medical services offered to detainees.

Further information was provided to the Committee of Ministers in January 2013.

In its decision adopted at the 1164th CM (DH) meeting (5-7 March 2013), the Deputies noted with interest the newest developments presented by the authorities, including the systematic growth of expenditure on healthcare services in prisons, but considered that additional information was still needed to clarify the scope and the impact of these measures and concerning the remedies available to detainees in relation to access to healthcare.

According to the Polish Bar Council,

the legislation currently in force constitutes a sufficient basis for guaranteeing adequate medical healthcare to detainees, but the problem stems from extra-legal circumstances, including the lack of sensitivity of some penitentiary officers. In response to this, the authorities indicated that the Central Board of Penitentiary Service organised numerous training sessions for prison staff. Following its visit to Poland in June 2013, the CPT observed that in some prisons health-care services were not adequate and that complaints in gaining access to these services were heard in all visited prisons.

193. During my visit in Warsaw, the authorities informed me that the number of detainees had decreased (with 90% population density in prisons), but they still had to tackle the problem of “queues to prisons”. That was why electronic surveillance was being used more and more often, with over 30 000 persons having been monitored since 2009 and nearly 4 600 being currently monitored. The Ministry of Justice proposed to build new facilities outside big cities and MPs from the Justice and Human Rights Committee were in favour of this initiative. The authorities also reckoned that they needed a couple of years to reach the CPT’s standard of 4m2 per inmate and that health-care facilities in detention centres should be further improved.

7.2.2 Violation of the right to freedom of assembly

194. In the case of Bączkowski and others v. Poland,

the Court found a violation of the applicant’s right to freedom of assembly, a lack of an effective remedy against this violation, and discriminatory treatment due to the Polish authorities’ refusal, “not prescribed by law”, of requests to hold demonstrations in 2005 seeking to raise awareness about discrimination against minorities, women, and persons with disabilities.

195. Whilst a number of execution measures have been taken, the lack of an effective remedy against local authorities’ refusal to hold an assembly still remains an issue. According to the action plan submitted on 17 February 2012,

interim measures (mainly a broad dissemination of the judgment of the European Court of Human Rights) were in place, whilst awaiting a final legislative solution.

196. Following proposals submitted by the Polish President, amendments to the 1990 Assemblies Act were adopted on 14 September 2012 by the Sejm. However, it was still possible for the organisers of an assembly to receive the decision of the appellate body after its planned date. On 18 September 2014, the Constitutional Court delivered a judgment on the constitutionality of the Assemblies Act as amended.

As regards the appellate procedure in case of a ban on an assembly, it ruled that “the legislators not only failed to set out a proper deadline for State administration bodies to take action, but also entirely prevented a possibility to judicially review negative decisions issued by such bodies. Therefore, it is impossible to consider the existing appellate procedure effective”. A draft law to implement this judgment of the Constitutional Court was issued by the Ministry of Administration and Digitalisation in March 2015 the details of which are set out in the authorities revised action plan submitted to the Committee of Ministers on 27 April 2015.

During my visit in Warsaw, I discussed this issue at length with the Minister of Administration and Digitalisation – Mr Andrzej Halicki, a former member of the Assembly and head of the Polish delegation to Parliamentary Assembly.

7.3 Other outstanding issues

197. A few cases concerning treatment inflicted by the police – between 1997 and 2006 – and lack of effective investigation in this respect (substantive and procedural violations of Article 3)

are pending before the Committee of Ministers, which, at its 1201st (DH) meeting (3-5 June 2014), decided to transfer them from the standard to the enhanced procedure, in the light of the judgment delivered by the Court in the Przemyk case.

In the latter judgment, the Court considered that the excessive length of judicial proceedings and delays in investigating alleged violations of human rights protected under Articles 2 and 3 of the Convention were an object of recurrent complaints brought before the Court and noted that this appeared to disclose a structural problem which called for adequate general measures to be taken. During my visit in Warsaw, I raised this problem during my discussion with the Prosecutor General; he stressed that, although he was entitled to take disciplinary measures against prosecutors, since a reform of 2009, he had only limited powers to influence pending investigations.

198. The excessive length of investigations was also, inter alia, criticised by the Court in the cases Al Nashiri and Husayn (Abu Zubaydah)

concerning secret rendition and detention by the CIA in Poland of the applicants who were suspected of terrorist acts. In both cases, the Court found violations of Article 3 (in both its substantive and procedural aspects), Articles 5, 8, 13,

6.1, and 38 of the European Convention on Human Rights, and in Al Nashiri, of Article 1 of Protocol No. 6 to the Convention. The implementation of these judgments is now being supervised by the Committee of Ministers

. The authorities have paid just satisfaction in the case of Al Nashiri and, as regards the Husayn case, they submitted a motion for deposit to the relevant domestic court (the Polish law does allow to make payments to persons who, like the applicant, are on European Union and United Nations sanctions lists).

Although the Polish authorities acknowledged the existence of CIA secret detention centres on the Polish territory,

during my visit to Warsaw, I got only evasive answers concerning this issue.

199. Moreover, the Committee of Ministers is also examining the Horych group of cases concerning the “dangerous detainee” regime that the Court found contrary to Articles 3 and 8 of the Convention.

At its 1208th (DH) meeting (23-25 September 2014), the Committee of Ministers noted that some legislative amendments were envisaged by the Polish authorities and invited them to submit the further information to assess this group of cases at one of their meetings in 2015.

8. Hungary

200. According to the Committee of Ministers 2014 Annual Report, the most serious problems concerning Hungary are:

excessive length of proceedings;

overcrowded detention facilities amounting to ill treatment;

discriminatory assignment of children of Roma origin to schools for children with mental disabilities during their primary education.

8.1 Excessive length of proceedings

201. Since 2003, over 230 judgments against Hungary have been pending execution concerning excessive length of civil and criminal proceedings and the lack of an effective remedy in this respect.

Hungarian authorities adopted a series of measures including a law providing for acceleratory remedies in 2006 and laws to improve the functioning of the judiciary in 2009, 2010 and 2011. Nevertheless, the problem persisted, and at its 1136th meeting (DH) in March 2012, the Committee of Ministers transferred the cases to enhanced supervision in light of the structural nature of the issue.

202. The Hungarian authorities submitted an action plan in December 2012,

which highlighted that the Court found the acceleratory remedy in criminal proceedings effective in certain circumstances

and pointed out the serious consideration that was being given to the introduction of a compensatory remedy. In December 2013, the Court delivered a judgment

in which it found, under Article 46, that in view of the systemic character of the problem at stake, general measures were needed. It pointed out that there were nearly one hundred similar cases pending before it. The Court also called on the Hungarian authorities to either amend the existing domestic remedies or to create new ones. Moreover, in November 2014, the Court communicated to the government the case György Gazsó,

asking whether that case lent itself to the pilot judgment procedure.

203. Hungarian authorities submitted an updated action plan in January 2015,

in which they acknowledged the need for measures to shorten the length of judicial proceedings, improve the effectiveness of existing acceleratory remedies and create a compensatory remedy or a combination of remedies for excessively lengthy proceedings. They also announced their intention to make a decision by March 2015 as to whether to introduce new remedies by separate law or within the content of the ongoing legislative reform of the codes of civil and criminal procedure.

204. The Committee of Ministers, at its 1222nd (DH) meeting (11-12 March 2015), noted with interest the Hungarian authorities’ acknowledgement that general measures were required and urged them to intensify their efforts in that respect.

The Committee of Ministers also invited Hungarian authorities to provide their decision regarding the way in which new remedies would be introduced by the end of April 2015. An updated group action plan was submitted on 28 April 2015.

8.2 Overcrowded detention facilities amounting to ill treatment

205. In a few cases, violations of Article 3 of the Convention arose due to the conditions of detention facilities, due to multi-occupancy cells measuring less than 4 square meters per person and statutory provisions.

The Committee of Ministers received an action plan from the Hungarian authorities on 22 April 2013,

which was updated on 9 March 2015.

A pilot judgment concerning this issue became final on 10 June 2015.

8.3 Discriminatory assignment of children of Roma origin to schools for children with mental disabilities during their primary education

206. In the case Horváth and Kiss v. Hungary, the Court found a violation of Article 2 of Protocol No. 1 read in conjunction with Article 14 with respect to the discriminatory assignment of Roma children to special schools for children with mental disabilities.

In their action plans of October 2013

and January 2014,

the authorities provided information on measures taken so far, including the objective and non-discriminatory nature of the tests applied to evaluate the aptitude and abilities of Roma children and the procedural safeguards against misdiagnosis and misplacement of Roma students.

207. At its 1193rd (DH) meeting (4-6 March 2014), the Committee of Ministers took note of these measures, invited the authorities to provide information on their concrete impact and encouraged them to continue implementing a non-discriminatory education policy.

A revised action plan was submitted on 20 May 2015.

9. Bulgaria

208. According to Mr Pourgourides’ report, the most serious problems concerning Bulgaria are:

deaths and ill treatment taking place under the responsibility of law-enforcement officials and the subsequent lack of effective investigation into such abuses;

excessive length of judicial proceedings and lack of an effective remedy;

violations of the right to respect for family life due to deportation/orders to leave the territory.

209. The Committee of Ministers 2014 Annual Report also lists poor conditions of detention and a number of other outstanding issues (see below).

9.1 Deaths and ill treatment taking place under the responsibility of law-enforcement officials and the subsequent lack of effective investigation into such abuses

210. The Committee of Ministers is currently examining over 30 cases concerning deaths and ill treatment at the hands of law-enforcement officials: the Velikova group of cases

concerning deaths and ill treatment and the Nachova

group of cases regarding excessive use of fire-arms. In most of those cases, the State was found to have failed to conduct effective investigations.

211. In February 2013, the Bulgarian Government submitted a revised action plan for further measures to be taken.

On 1 July 2012, an amendment to the Ministry of Interior Act (Bill No. 202-01-14), containing important changes to the legal framework restricting the use of force and firearms, entered into force. Having assessed it, the Committee of Ministers concluded that the new legislation seemed to be in conformity with the requirements of the Convention.

This legislative reform is also a relevant measure in respect of the effectiveness of investigations, for this new regime obliges the competent authorities to apply similar criteria to the standards that emerge from the case law of the Court. The setting-up of a specialised unit in the Chief Public Prosecutor’s office responsible for promoting the impartiality and the effectiveness of criminal investigations concerning law-enforcement agents was also a positive step forward. However, these measures do not seem sufficient to ensure the effectiveness of the criminal and disciplinary investigations within the meaning of the Court’s case law. Further information or clarifications were necessary, in particular on the following issues: a) exact procedure followed in cases of allegations of ill treatment by law-enforcement agents; b) measures taken to ensure the impartiality and independence of the police investigators who carry out investigative steps against other police officers; c) possibility under the current legal framework to question special forces officers when their intervention has given rise to allegations of ill treatment; or, in the absence of such possibility, measures taken or envisaged in order to bring the domestic legal framework and practice in line with the requirements of the Court’s case law.

212. Moreover, the practical operation of procedural safeguards during police custody has admittedly been improved as compared to the period prior to 2008, but the reports of the CPT,

its recent public statement concerning Bulgaria of 26 March 2015

and the reports prepared by observers from civil society

show that little or no progress had been achieved and that measures are still necessary in order to overcome some problems. Some of these problems persist and are related, inter alia, to obtaining the assistance of a duty lawyer in police custody, the record keeping concerning detainees and the effective implementation of the obligation to notify the prosecution authorities of injuries which may be caused by ill treatment.

213. The analysis of the statistical data for the period 2006-2009 has shown a positive downward tendency in the numbers of allegations of ill treatment as compared to the period prior to 2006. However, additional measures seem necessary in order to produce fuller and more accurate data for the last years, in order to allow a complete assessment of the impact of the measures already taken by the authorities. In fact, currently different institutions collect data in this area, in apparently separate files, which creates risks of mistakes and of incidents being recorded twice. Therefore, it seems useful to put in place nationally co-ordinated data collection in order to produce information concerning allegations of ill treatment notified to all institutions, as well as concerning the criminal and disciplinary investigations carried out in this connection. As concerns the internal monitoring, it seems useful to examine the possibility of producing public versions of the monthly and/or annual reports on discipline within the Ministry of Interior.

214. On 3 November 2014, Bulgarian authorities submitted a revised action plan currently under assessment.

In a judgment of 3 March 2015 (S.Z. v. Bulgaria),

the Court, under Article 46, stated that the lack of effective investigations (procedural violations of Articles 2 and 3 in over 45 cases, not only in the context of allegations of misconduct by law-enforcement agents, but also concerning acts of private persons) was a structural problem and called upon the Bulgarian authorities to take the necessary general measures to solve this problem, in co-operation with the Committee of Ministers.

9.2 Excessive length of judicial proceedings and lack of an effective remedy

215. The problem of excessive length of proceedings was widespread for many years widespread in criminal, civil and administrative cases in Bulgaria and was usually accompanied by a lack of effective remedies (over 120 cases).

On 10 May 2011, the European Court of Human Rights issued two pilot judgments, Dimitrov and Hamanov v. Bulgaria and Finger v. Bulgaria, concerning the systemic lack of effective legal remedies for unreasonably lengthy criminal, civil and administrative proceedings.

Bulgaria was asked to introduce such remedies within one year, i.e. by 10 August 2012.

216. The Bulgarian authorities have adopted an administrative compensatory remedy for excessive length of proceedings which entered into force on 1 October 2012. This remedy is accessible only when the judicial proceedings have ended. Moreover, a law introducing a judicial remedy entered into force on 15 December 2012; it is available to persons who are parties to pending judicial proceedings as well as after the termination of the proceedings.

217. On 18 June 2013, in two inadmissibility decisions – Valcheva and Abrashev v. Bulgaria

and Balakchiev and Others v. Bulgaria

– the Court found the two new remedies (judicial and administrative) taken together to be effective. At their 1179th (DH) meeting (24-26 September 2013),

the Committee of Ministers noted with interest these decisions and invited the Bulgarian authorities to keep it informed of the development of the domestic practice in this area. As concerns the introduction of a preventive remedy in criminal proceedings (allowing for the closure of an investigation if it has lasted more than two years), the Committee of Ministers found that it raises questions concerning its compatibility with the requirements of the Convention, in particular in the area of effective investigation, and invited the authorities to provide additional information on the measures envisaged to ensure its compliance with these requirements as described in the pilot judgment of Dimitrov and Hamanov. At their 1157th (DH) meeting, the Committee of Ministers had already encouraged the Bulgarian authorities to continue with their works aiming at introducing an acceleratory remedy in criminal matters.

218. As concerns the actual length of judicial proceedings, the reforms described in Interim Resolution CM/ResDH(2010)223

and in Information document CM/Inf/DH(2012)36

(such as adoption of new procedural codes, supervision measures and electronic case management) seem to have improved the efficiency of the Bulgarian judicial system. However, it seems that the results of these reforms have not yet been entirely consolidated and that problems with length of proceedings may still arise because of the very important workload of some large courts (Sofia City Court and Sofia District Court).

Although the efficiency of the courts has continued to increase, this has not led to the elimination of the backlog of the largest courts since 2009. At their 1179th (DH) meeting in September 2013, the Committee of Ministers recalled the existence of this backlog and called again upon the authorities to take all the necessary measures to improve the situation, especially concerning the large courts which seemed to be overburdened and to submit a revised action plan. However, such an action plan is still awaited from the Bulgarian authorities.

9.3 Violations of the right to respect for family life due to deportation/order to leave the territory

219. In a number of cases, initially referred to as the Al-Nashif and Others

group regarding deportation or orders to leave the territory on grounds of national security, the European Court of Human Rights found violations of the right to respect for family life (Article 8). Some of the cases from this group also concern other violations of the Convention, such as risk of ill treatment in case of the implementation of an expulsion order, unlawful detention and lack of an effective remedy or of procedural guarantees in case of expulsion (Articles 3, 5 and 13 of the Convention and Article 1 of Protocol No. 7).

220. The lack of independent control of expulsion orders, highlighted in this group of cases, received a first response from the Bulgarian authorities with the introduction of a remedy before the Supreme Administrative Court and several subsequent improvements of this remedy.

Therefore, in March 2015,

the Committee of Ministers decided to close the examination of four cases from this group and to consider the outstanding questions related to the functioning of the remedies in the area of expulsion of foreigners based on national security considerations in the cases from the group of C.G. and Others v. Bulgaria,

concerning more recent facts. In two judgments from this group – M. and Others v. Bulgaria

and Auad v. Bulgaria

– the Court indicated, under Article 46, several legislative changes and/or change of the domestic case law that it deemed necessary to implement the judgments, in particular with respect to the lack of examination of the facts on which an expulsion order is based, or the lack of an automatic suspensive effect in cases where a substantial risk of death or ill treatment remains.

221. Following the submission of an action plan from the Bulgarian authorities,

at its 1222nd meeting (DH) in March 2015,

the Committee of Ministers welcomed the positive developments concerning the practice of the Supreme Administrative Court and the legislation relating to detention pending expulsion, although certain indications given by the Court still needed to be implemented. It called upon the authorities to “introduce, without further delay, a remedy with automatic suspensive effect where an arguable claim about a substantial risk of death or ill treatment in the destination country is made in a legal challenge against expulsion and to provide that the destination country should be mentioned in a legally binding act and that every change of the destination country is amenable to appeal”.

Moreover, the authorities were invited to take measures to ensure that the expulsion based on public order considerations would not be implemented before the foreigner had been able to exercise his rights under Article 1 of Protocol No. 7, unless the circumstances of the case required it.

9.4 Poor conditions of detention

222. There is a group of over 20 cases before the Committee of Ministers concerning inhuman and degrading treatment of the applicants due to poor conditions of detention in investigative detention facilities and prisons (in particular due to overcrowding and poor sanitary and material conditions).

Some of the cases also concern the lack of effective remedy to challenge the conditions of detention (violations of Article 13 in conjunction with Article 3).

223. On 15 May 2012, the Bulgarian authorities submitted an action report describing the measures already taken and envisaged for execution of these judgments, in particular: 1) measures taken to promote alternatives to imprisonment and more adequate distribution of the detainees between different penitentiary facilities in order to partially solve the problem of overcrowding; 2) measures taken to strengthen the effectiveness of the domestic compensatory remedy for poor conditions of detention; 3) the setting-up of a national prevention mechanism which assigns an important role to the Ombudsman for the monitoring of detention facilities.

224. The Committee of Ministers examined this action report at their 1144th (DH) meeting in June 2012 and invited the authorities to provide clarification on a number of outstanding issues.

225. On 9 April 2013, the authorities submitted a revised action plan.

At its 1172nd (DH) meeting (4-6 June 2013),

the Committee of Ministers welcomed the efforts of Bulgaria to solve the systematic problem of overcrowding and improve the material conditions of detention, namely through the reconstruction projects funded with the assistance of the Norwegian Financial Mechanism. However, national action plans in this field could not be implemented due to budgetary restrictions in times of economic crisis. Thus, additional measures and improvements were still necessary, in particular concerning overcrowding in prisons for men. The Committee of Ministers encouraged the authorities to develop further the use of alternative measures to imprisonment and preliminary detention and to establish an updated global strategy to address prison overcrowding. It also invited the authorities to give the highest priority to seeking solutions which would allow them to improve the conditions of detention, explore all possibilities of European co-operation and take due account of the relevant recommendations of the CPT. As regards the issue of setting up an effective remedy, the Committee of Ministers invited the Bulgarian authorities to draw full benefit from project No. 18 of the Human Rights Trust Fund.

226. On 8 December 2014, Bulgarian authorities submitted a revised action plan which is currently under assessment.

In December 2013 and 2014, respectively meetings and a seminar were organised in Sofia in the framework of the HRTF project No. 18.

227. On 27 January 2015, the European Court delivered a pilot judgment in the case of Neshkov and Others,

instructing the authorities to make available, within eighteen months from the date on which this judgment would become final, a combination of effective domestic remedies in respect of conditions of detention that would have both preventive and compensatory effects.

228. It should be pointed out that in the above-mentioned public statement of 26 March 2015, the CPT deplored once again the overcrowding in the Bulgarian prisons. According to the CPT, the material conditions alone in the three prisons it visited (Sofia, Burgas and Varna) could be seen as amounting to inhuman and degrading treatment. Moreover, the vast majority of inmates did not have access to organised outdoor activities and the quality of medical care had even worsened.

Thus, the CPT was of opinion that “the approach to the whole issue of deprivation of liberty in Bulgaria should radically change”.

During its meeting on 21 April 2015, the Sub-Committee on Human Rights of our committee took note of this statement and proposed to the plenary committee to invite the head of the Bulgarian delegation to the Parliamentary Assembly to an exchange of views on this subject at a future meeting.

9.5 Other outstanding issues

229. The Committee of Ministers is also examining a number of other outstanding issues related to the implementation of judgments of the European Court of Human Rights under its enhanced supervision procedure. These are: insufficient guarantees against arbitrary use of the powers accorded by the law on special surveillance means (group of cases Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria),

placement in a social care home for people with mental disorders (Stanev v. Bulgaria),

unjustified refusals to register an association aiming at achieving “the recognition of the Macedonian minority in Bulgaria” (UMO Illinden and Others

and UMO Illinden and Others No. 2)

and eviction of persons of Roma origin (Yordanova and Others).

10. United Kingdom

230. One specific unresolved issue mentioned in the report by Mr Pourgourides was the need for the United Kingdom to comply with its obligation to execute certain Court judgments in a timely and diligent manner. Whilst the human rights problems in the United Kingdom are in many ways not as serious as those affecting other States listed above, the Pourgourides report highlighted certain “significant implementation problems” that persist, such as prisoner voting rights and the retention of DNA and biometric data.

231. In the case of Hirst v. the United Kingdom (No. 2)

and the pilot judgment of Greens and M.T. v. the United Kingdom,

the Court found violations of the Convention as a result of the United Kingdom’s blanket ban on voting for prisoners (violation of Article 3 of Protocol No. 1).

232. Following an exchange of letters between the British delegation and the Registry of the Court in the summer of 2011, the European Court of Human Rights agreed to extend the deadline for the implementation of these cases, originally set to be 11 October 2011, to six months after the date of the Grand Chamber judgment in Scoppola v. Italy (No. 3).

Since the Grand Chamber delivered the latter judgment on 22 May 2012, the United Kingdom authorities had until 23 November 2012 to comply with the pilot judgment.

233. On 23 November 2012, the British authorities submitted an action plan to the Committee of Ministers which outlined legislative proposals introduced to Parliament to amend the electoral law. These proposed amendments include a range of options for a Parliamentary Committee to consider.

At its 1157th (DH) meeting (December 2012), the Committee of Ministers noted this initiative with great interest. It also welcomed the announcement made by the Lord Chancellor and Secretary of State for Justice when presenting it to parliament that “the Government is under an international legal obligation to implement the Court’s judgment” and “the accepted practice is that the United Kingdom observes its international obligations”. The Committee of Ministers stressed, therefore, that the final version of the legislation should be in line with these obligations and that the third option, included in the draft bill and aimed at retaining the blanket restriction on prisoners’ vote, would not be compatible with the Convention.

234. On 18 December 2013, the British Parliament’s Joint Committee on the Draft Voting Eligibility (Prisoners) Bill published its report, in which it recommended, inter alia, that all prisoners serving sentences of 12 months or less should be entitled to vote and that the government introduce a bill to parliament at the start of its 2014-2015 session. The Joint Committee did not recommend re-enacting the existing blanket ban. This report was welcomed at the 1193rd (DH) meeting of the Committee of Ministers in March 2014, at which the Committee of Ministers urged the British authorities to implement the recommendations of the Joint Committee.

235. However, despite the upcoming general election in May 2015, no progress was achieved. At its 1208th meeting in September 2014, the Committee of Ministers “recalled the number of years that have passed since the judgments Hirst No. 2 and Greens and M.T. became final, and the repeated calls of the Committee of Ministers to execute them” and “noted with profound concern and disappointment” that the government had not introduced a bill to parliament, as recommended by the Joint Committee. Thus, the Committee of Ministers urged the authorities to do so as quickly as possible.

236. On 12 March 2013, the Court decided to adjourn examination of the over 2 300 applications pending before it on the same issue until, at the latest, 30 September 2013.

However, on 24 September 2013, it decided not to further adjourn proceedings in these cases.

In two judgments which became final in December 2014 and February 2015, the Court examined those applications and found violations of Article 3 of Protocol No. 1 because the impugned legislation remained unamended (see Firth and others and McHugh and Others).

237. As concerns the implementation of the judgment S. and Marper v. the United Kingdom,

where the Court found violations of the right to private life as a result of the retention of DNA profiles, fingerprints, and cellular samples of persons accused but not convicted of criminal offences (violation of Article 8), there has been significant progress and the case is now being examined by the Committee of Ministers under the standard supervision procedure. Legislative changes for England and Wales, based on the Scottish model (which was praised by the European Court of Human Rights), were introduced by the Protection of Freedoms Act adopted on 1 May 2012.

This new legislation had been welcomed by the Committee of Ministers at its 1115th (DH) meeting (June 2011)

An update is still awaited concerning the position in Northern Ireland, where certain provisions of the Criminal Justice (Northern Ireland) Act should be amended similarly to the Protection of Freedoms Act by summer 2015.

238. Mr Pourgourides’ report also mentioned some landmark cases against the United Kingdom, such as Al Saadoon and Mufdhi v. the United Kingdom

concerning the applicants’ transfer in Iraq by the British Armed Forces to Iraqi custody which exposed them to the risk of the death penalty (violations of Articles 3, 13 and 34), Gillan and Quinton v. the United Kingdom

(Article 8) and A. and Others v. the United Kingdom

concerning the use of anti-terrorism measures. The examination of all these cases was closed by the Committee of Ministers following the individual and general measures taken by the United Kingdom.

239. Since the Pourgourides report, the Court has delivered judgments in two cases, McCaughey and Others and Collette and Michael Hemsworth

concerning excessive length of investigations into deaths caused by the actions of security forces in Northern Ireland in the 1990s (violations of Article 2). These relate to a group of older cases still pending before the Committee of Ministers, the McKerr group,

where the majority of the general measures had already been adopted but the individual measures remained outstanding. The new judgments indicate that delays in inquest proceedings in legacy cases remain a serious and extensive problem in Northern Ireland.

This was also demonstrated by the ongoing delay in the conclusion of the investigations in the individual cases in the McKerr group.

240. The United Kingdom authorities have since submitted a number of action plans

outlining proposals to improve the efficiency of inquest proceedings and investigations into deaths which took place during the “Troubles”.

At its 1201st (DH) meeting (June 2014), the Committee of Ministers, inter alia, expressed serious concern that the individual investigations were still outstanding and strongly urged the authorities to ensure their conclusion as soon as possible.

At its 1222nd (DH) meeting (March 2015), the Committee of Ministers noted, with interest, the December 2014 Stormont House Agreement and welcomed both the announcement to establish an independent single investigative body (the Historical Investigations Unit) and the fact that appropriate steps would be taken to improve the way legacy inquests function. The Committee of Ministers urged the authorities to use all necessary means to ensure that the implementation of these announcements proceeded according to a clear timetable.

Appendix 2 – Summary of the principal problems encountered in the execution of judgments of the European Court of Human Rights in respect of nine States Parties to the European Convention on Human Rights

(open)

State Party	Leading case	Case description
Bulgaria	Velikova v. Bulgaria (Application No. 41488/98, judgment of 18 May 2000), and Nachova and others v. Bulgaria (Application No. 43577/98, judgment of 6 July 2005).	Cases principally concerning deaths or ill treatment which took place under the responsibility of the forces of order.
	Djangozov v. Bulgaria (Application No. 45950/99, judgment of 8 November 2004), Kitov v. Bulgaria (Application No. 37104/97, judgment of 3 July 2003), Dimitrov and Hamanov v. Bulgaria (Applications Nos. 48059/06 and 2708/09) and Finger v. Bulgaria (Application No. 37346/05, judgment of 10 May 2011).	Excessive length of judicial proceedings and lack of an effective remedy.
	Kehayov v. Bulgaria (Application No. 41035/98, judgment of 18 January 2005).	Inhuman and degrading treatment of the applicants due to poor conditions of detention in investigative detention facilities and prisons.
	C.G. and Others v. Bulgaria (Application No. 1365/07, judgment of 24 April 2008).	Violations of the right to respect for family life due to deportation/order to leave the territory.
Greece	Manios v. Greece (Application No. 70626/01, judgment of 11/03/2004), Diamantides v. Greece (No. 2) (Application No. 71563/01, judgment of 19 May 2005) and Konti-Arvaniti v. Greece (Application No. 53401/99, judgment of 10 April 2003).	Excessive length of judicial proceedings.
	Makaratzis v. Greece (Application No. 50385/99, judgment of 20 December 2004).	Use of lethal force and ill treatment by law-enforcement officials and lack of effective investigation into such abuses.
	M.S.S v. Belgium and Greece (Application No. 30696/09, judgment of 21 January 2011, Grand Chamber), S.D. v Greece (Application No. 73554/2011, judgment of 11 June 2009) and Sharifi and Others v. Greece and Italy (Application No. 16643/09, judgment of 21 October 2011).	Conditions of detention of irregular migrants and shortcomings in asylum procedure; lack of effective remedy in this respect.
	Bekir-Ousta and others v. Greece (Application No. 35151/05, judgment of 11 October 2007), and Emin and others v. Greece (Application No. 34144/05, judgment of 27 March 2008).	Violations of the right to freedom of association due to the Greek authorities’ refusal to register associations and to the dissolution of an association of a Muslim minority.
Hungary	Timár v. Hungary (Application No. 36186/97, judgment of 25 February 2003).	Excessive length of civil and criminal proceedings and the lack of an effective remedy in this respect.
Italy	Ceteroni v. Italy (Application No. 22461/93, judgment of 15 November 1996), and Mostacciuolo Giuseppe v. Italy (Application No. 64705/01, judgment of 29 March 2006).	Excessive length of judicial proceedings and lack of an effective remedy.
	Ben Khemais v. Italy (Application No. 246/07, judgment of 6 July 2009), and Hirsi Jamaa and Others v. Italy (Application No. 27765/09, judgment of 23 February 2012).	Non-respect of Rule 39 of the Rules of the Court and violations of the prohibition of torture and ill treatment due to the expulsion of foreign nationals. Interception at sea and collective expulsion to Libya by the Italian military authorities of a group Somalians and Eritreans.
	Belvedere Alberghiera S.R.L v. Italy (Application No. 31524/96, judgment of 30 May 2000).	Unlawful deprivation of land by local authorities because of a judge-made rule, the “constructive-expropriation rule”, which precludes restitution if works commenced in the public interest have been completed.
	Sulejmanovic v. Italy (Application 22635/03, judgment of 16 July 2009), and Torreggiani and Others v. Italy (Applications 43517/09+, judgment of 8 January 2013).	Poor detention conditions (mainly due to overcrowding in detention centres).
	M.C. and Others v. Italy (Application 5376/11, judgment of 3 September 2013).	Violations of the right to a fair trial and to the protection of property due to the cancellation of an annual adjustment of a compensation allowance for having suffered accidental viral contamination.
Poland	Podbielski v. Poland (Application No. 27916/95, judgment of 30 October 1998), Kudła v. Poland (Application No. 30210/96, judgment of 26 October 2000 – Grand Chamber), and Fuchs v. Poland (Application No. 33870/96, judgment of 11 May 2003).	Excessive length of civil, criminal and administrative proceedings and lack of an effective remedy in this respect.
	Orchowski v. Poland (Application No. 17885/04, judgment of 22 October 2009), Sikorski Norbert v. Poland (Application No. 17599/05, judgment of 22 October 2009), and Kaprykowski v. Poland (Application No. 23052/05, judgment of 3 February 2009).	Poor conditions of detention (mainly due to overcrowding). Lack of adequate medical care in detention centres.
	Bączkowski and Others v. Poland (Application No. 1543/06, judgment of 3 May 2007).	Violation of the right to freedom of assembly and lack of effective remedy in this respect.
Romania	Străin and Others v. Romania (Application No.57001/00, judgment of 30 November 2005), and Maria Atanasiu and Others v. Romania (Application No. 30767/05, judgment of 12 October 2010).	Failure to restore or compensate for nationalised property.
	Nicolau v. Romania (Application No. 1295/02, judgment of 3 July 2006), Stoianova and Nedelcu v. Romania (Application No. 77571/01, judgment of 4 November 2004).	Excessive length of civil and criminal proceedings and lack of an effective remedy.
	Sacaleanu v. Romania (Application No. 73970/01, judgment of 6 December 2005), Ruianu v. Romania (Application 34647/97, judgment of 17 June 2003) and Strungariu v. Romania (Application No. 23878/02, judgment of 29 September 2005).	Non-enforcement of domestic final judicial decisions.
	Bragadireanu v. Romania (Application No. 22088/04, judgment of 6 March 2008).	Poor conditions of detention.
	Barbu Anghelescu v. Romania (Application No. 46430/99, judgment of 5 October 2004).	Ill-treatment by police and lack of effective investigations.
Russian Federation	Burdov. (No. 2) v. Russian Federation (Application No. 33509/04, judgment of 15 January 2009) Timofeyev v. Russia (Application No. 58263/00, judgment of 23 October 2003) and Gerasimov and Others v. Russia (Application No. 29920/05, judgment of 1 July 2014).	Non-enforcement of domestic final judgments and lack of effective remedy in this respect.
	Ryabykh v. Russian Federation (Application No. 52854/99, judgment of 24 July 2003).	Violation of the principle of legal certainty on account of the quashing of final domestic judgments through the supervisory review procedure.
	Kalashnikov. v. Russian Federation (Application No. 47095/99, judgment of 15 July 2002), Ananyev and others v. Russia (Application No. 42525/07, judgment of 10 January 2012) and Klyakhin v. Russia (Application No. 46082/99, judgment of 30 November 2004).	Poor conditions and excessive length of detention on remand.
	Mikheyev. v. Russian Federation (Application No. 77617/01, judgment of 26 January 2006).	Ill-treatment in police custody and lack of an effective investigation in this respect.
	Garabayev v. Russia (Application No. 38411/02, judgment of 30 January 2008).	Various violations of the Convention related to extradition (Articles 3, 5, 13 and 34). Risk of ill treatment in cases of extradition and disregard of interim measures indicated by the European Court of Human Rights under Rule 39 of the Rules of the Court.
	Khashiyev and Akayeva v. Russian Federation (Application No. 57942/00, judgment of 24 February 2005).	Various violations of the Convention resulting from and/or relating to the actions of the security forces in the Chechen Republic (mainly unjustified use of force by members of the security forces, disappearances, unacknowledged detentions, torture and ill treatment, unlawful search and seizure and destruction of property).
	Alekseyev v. Russia (Application No. 4916/07, judgment of 21 October 2010).	Violation of the freedom of assembly due to repeated bans of LGBT marches and discrimination on grounds of sexual orientation.
Turkey	Hulki Güneş v. Turkey (Application No. 28490/95, judgment of 19 June 2003).	Lack of judicial independence and impartiality, unfairness of judicial proceedings, ill treatment inflicted in police custody.
	Ülke v. Turkey (Application No. 39437/98, judgment of 24 January 2006).	Degrading treatment of the applicant as a result of his repeated convictions and imprisonment for having refused to perform military service.
	Inçal v. Turkey (Application No. 22678/93, judgment of 9 June 1998).	Unjustified interferences in the freedom of expression.
	Halise Demirel v. Turkey (Application No. 39324/98, judgment of 28 January 2003).	Excessive length of detention on remand.
	Bati v. Turkey (Application Nos. 33097/96, and 57834/00, judgment of 3 June 2004).	Lack of independence in investigating authorities dealing with actions of security forces.
	Cyprus v. Turkey (Application No. 25781/94, judgment of 10 May 2001, Grand Chamber). Xenides-Arestis v. Turkey (Application No. 46347/99, judgments of 22 December 2005 and 7 December 2006) and Varnava and Others v. Turkey (Application No. 16064/90+, judgment of 18 September 2009, Grand Chamber).	Various violations of the Convention relating to the situation in the northern part of Cyprus following a Turkish military operation in 1974 (missing persons, living conditions of Greek Cypriots in the northern part of Cyprus, the rights of Turkish Cypriots living in the northern part of Cyprus, and homes and property of displaced persons).
	Oya Ataman v. Turkey (Application No. 74552/01, judgment of 5 December 2006).	Abusive use of force by security force in dispersing peaceful demonstrations.
Ukraine	Yuriy Nikolayevich Ivanov. v. Ukraine (Application No. 40450/04, judgment of 15 January 2010), and Zhovner v. Ukraine (Application No. 56848/00, judgment of 29 June 2004).	Non-enforcement of domestic final judgments and lack of effective remedy in this respect.
	Svetlana Naumenko v. Ukraine (Application No. 41984/98, judgment of 9 November 2004), and Merit v. Ukraine (Application No. 66561/01, judgment of 30 March 2004).	Excessive length of civil and criminal proceedings.
	Afanasyev. v. Ukraine (Application No. 387722/02, judgment of 5 April 2005), and Kaverzin v. Ukraine (Application No. 23893/03, judgment of 15 May 2012).	Ill-treatment by police and lack of procedural safeguards.
	Nevmerzhitsky v. Ukraine (Application No. 54835/00, judgment of 9 September 2004) and Kuznetsov v. Ukraine, (Application No. 39042/97, judgment of 29 April 2003).	Poor conditions of detention on remand and detention conditions in “death row”.
	Kharchenko v. Ukraine (Application No. 40107/02, judgment of 10 February 2011), Chanyev v. Ukraine (Application No. 46193/13, judgment of 9 October 2014), Lutsenko v. Ukraine (Application No. 6492/11, judgment of 3 July 2012) and Tymoshenko v. Ukraine (Application No. 49872/11, judgment of 30 April 2013).	Problems regarding the legal framework governing and the use of pretrial detention in Ukraine.
	Salov v. Ukraine (Application No. 65518/01, judgment of 6 November 2005), and Oleksandr Volkov v. Ukraine (Application No. 21722/11, judgment of 9 January 2013).	Lack of independence and impartiality of tribunals. Violations of the applicant’s right to a fair hearing on account of his unlawful dismissal from his post as a judge at the Supreme Court of Ukraine.
	Gongadze v. Ukraine (Application No. 34056/02, judgment of 8 November 2005).	Failure to protect life, failure to carry out an effective investigation into a death, lack of an effective remedy in this respect, attitude of the investigation authorities towards the applicant and her family amounting to degrading treatment.
	Vyerentsov v. Ukraine (Application No. 20372/11, judgment of 11 April 2013).	Violation of the right to freedom of peaceful assembly.

Appendix 3 – Background information concerning the rapporteur’s fact finding visits

(open)

Turkey

Official programme of visit: Ankara, 24-25 April 2014

24 April 2014

09.30-10.30 Meeting with Mr Ahmet Iyimaya, Chairperson of the Committee on Justice, Grand National Assembly of Turkey

10.45-11.45 Meeting with Mr Ayhan Sefer Üstün, Chairperson of the Committee on Human Rights Inquiry, Grand National Assembly of Turkey

12.00-13.30 Working lunch hosted by Mr Reha Denemeç, Head of Turkey’s Delegation to the Parliamentary Assembly of the Council of Europe

13.45-14.45 Meeting with Mr Enver Haliloğlu, Deputy Undersecretary, Ministry of Interior Affairs

15.00-16.00 Meeting with Mr Bekir Bozdağ, Minister of Justice

16.30-17.30 Meeting with Dr Alparslan Altan, Deputy President of the Constitutional Court of the Republic of Turkey

18.00-19.00 Meeting with Mr Ali Alkan, First President of the High Court of Appeals

25 April 2014

09.30-10.30 Meeting with Ms Kıvılcım Kılıç, Deputy Director General for the Council of Europe and Human Rights, Ministry of Foreign Affairs

11.00-12.00 Meeting with Mr Mehmet Ekmekçi, Deputy Chief Public Prosecutor of the High Court of Appeals

Press Release

Turkey is one of the countries with the highest number of non-executed ECHR judgments, rapporteur says

Strasbourg, 28.04.2014 – “I note that Turkey is one of the countries with the highest number of non-executed ECHR judgments and I hope that major structural problems will soon be overcome,” said Klaas de Vries (Netherlands, SOC), PACE rapporteur on the implementation of judgments of the ECHR, at the end of a two-day fact-finding visit to Ankara (24-25 April).

He welcomed the Turkish authorities’ efforts to reform their justice system and, in particular, to implement ECHR judgments, including the introduction of the individual constitutional complaint in 2012. He noted, however, that there are still outstanding human rights issues which need further improvement, especially as regards respect for freedom of expression and the right to peaceful assembly.

Mr de Vries also called for the establishment of a parliamentary structure to supervise implementation of Strasbourg Court judgments and was given assurances that this idea would soon be pursued.

During his visit to Ankara, the rapporteur met the Minister of Justice, the Deputy Undersecretary of State in the Ministry of Interior, the First President and judges of the Court of Cassation, the Vice-President of the Constitutional Court, the Deputy Prosecutor General and officials from the Ministry of Foreign Affairs. He also held discussions with Heads of the Committees on Justice and on Human Rights Inquiry of the Grand National Assembly.

This is the first in a series of visits by the rapporteur aimed at applying parliamentary pressure on States where delays or difficulties in implementing ECHR judgments have occurred.

Italy

Official programme of visit: Rome, 22-23 October 2014

22 October 2014

10.30 Meeting with Ms Antonella Manzione, Head of the Department of Legal and Legislative Affairs, and with Ms Margherita Piccirilli, Director General of the Litigation Office of the Chairmanship of the Council of Ministers. Meeting also attended by Mr Gaetano Pelella and Mr Marco Cerase, Chamber of Deputies officials.

12.00 Meeting with Ms Donatella Ferranti, Chair of the Justice Committee

12.45 Meeting with Mr Francesco Paolo Sisto, Chair of the Constitutional Affairs Committee

13.30 Lunch with the Italian delegation to the Parliamentary Assembly of the Council of Europe

15.30 Meeting with Professor Ersiliagrazia Spatafora, Government Agent to the European Court of Human Rights, and with Ms Stefania Rosini, Deputy Head of the Service for Legal Affairs, Diplomatic Disputes and International Agreements, Ministry for Foreign Affairs

17.00 Meeting in the Ministry of Justice

23 October 2014

09.15 Meeting with the President of the Court of Cassation, Mr Giorgio Santacroce

10.30 Meeting with the Deputy Attorney General at the Court of Cassation, Mr Pasquale Ciccolo

11.30 Meeting with the Deputy Minister of the Interior, Mr Filippo Bubbico

Press Release

PACE rapporteur: Italy must promptly implement Strasbourg Court judgments

A PACE rapporteur has welcomed the ongoing efforts of Italian authorities to implement judgments of the European Court of Human Rights, but also expressed his concern that Italy has the highest number of pending non-implemented judgments out of all the contracting parties to the Convention.

Speaking at the end of a two-day fact-finding visit to Rome, PACE’s rapporteur on implementation of Court judgments, Klaas de Vries (Netherlands, SOC), said: “Despite being an old democracy and one of the founding member States of the Council of Europe, Italy has the highest number of non-implemented judgments of the European Court of Human Rights pending before the Committee of Ministers. I have stressed, to all concerned, that this situation must be dealt with promptly.” The main problem in Italy is the excessively long time it takes the Italian courts to deal with legal cases. In a May 2013 report , Mr De Vries said this issue had “plagued the Italian justice system for decades, the backlog of cases increasing steadily each year”. He pointed out that at that time the Committee of Ministers – the body which oversees execution of Court judgments – was examining more than 2000 such cases.

Mr De Vries encouraged the Italian authorities to continue their reforms, in particular those aimed at improving the efficiency of justice and ensuring the payment of arrears stemming from the application of the “Pinto law”, which provides compensation for victims of lengthy judicial proceedings.

During his Rome visit (22-23 October 2014), the Rapporteur met Italy’s Deputy Interior Minister, the President of the High Court of Cassation, the Deputy Prosecutor General and high officials in the Cabinet of the Council of Ministers, the Ministry of Justice and the Ministry of Foreign Affairs. He also had discussions with fellow parliamentarians, including the heads of the Committees on Justice and on Constitutional Affairs.

Poland

Official programme of visit: Warsaw, 4-5 December 2014

4 December 2014

09.00-10.15 Meeting with the European Court of Human Rights working group in the Ministry of Foreign Affairs

10.30 Meeting with the Justice and Human Rights Committee of Sejm

11.30 Meeting with the Human Rights, the Rule of Law and Petitions Committee of Senate

12.45 Lunch with the members of the Polish Delegation to the Parliamentary Assembly

14.30 Meeting in the Ministry of Justice with Vice-Minister, Mr Wojciech Węgrzyn

16.00 Meeting with the Prosecutor General, Mr Andrzej Seremet

5 December 2014

09.00 Meeting with the First President of the Supreme Court, Professor Małgorzata Gersdorf

10.30 Meeting with the judges of the Constitutional Court, Professor Maria Gintowt-Jankowicz and Mr Wojciech Hermeliński

12.00 Meeting in the Supreme Administrative Court

13.30 Lunch with Mr Andrzej Halicki, Minister of Administration and Digitilisation