Conference - Structural Problems in Prisons: Prospects for European Intervention

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On November 18-19th, the European Prison Litigation Network, together with the European Implementation Network, are organising an international conference ‘Structural Problems in Prisons: Prospects for European Intervention’.

Since the early 2000s, increased intervention by Council of Europe (CoE) bodies has led to the definition of a legal status for prisoners, increasingly precise obligations for states to guarantee their fundamental rights, and guidance on prison and penal policy. Similarly, since 2016, the Court of Justice of the European Union (EU) has considered systemic deficiencies in prison conditions as an obstacle to judicial cooperation between EU member states.

Yet European prison systems continue to suffer from structural problems: prison overcrowding remains acute in more than a quarter of CoE countries, and the average European incarceration rate rose in 2023 for the first time in a decade.

Based on these observations, the European Prison Litigation Network and its partners have conducted a study in nine countries (Belgium, Bulgaria, France, Greece, Hungary, Italy, Poland, Portugal and Romania) to assess the effectiveness of European interventions in addressing systemic problems in prison systems.

  • What penological model emerges from the judgements of the European Court of Human Rights and the guidance provided by other bodies of the Council of Europe to Member States?

  • What is the impact of European intervention on national penal and prison policies?

  • Could greater synergies between the CoE and the EU offer stronger levers of reform at national level to tackle structural problems in prisons?

  • Will the control that the EU intends to exercise over prison and judicial reform in EU candidate countries such as Ukraine or Moldova strengthen the Union’s demands for Member States overall in the long term?

This conference brings together representatives of European and national institutions involved in penal and prison policy, academics, and representatives of civil society to discuss the key challenges for tackling structural problems in prisons and for the effective implementation of the European Convention on Human Rights and the EU Charter of Fundamental Rights in European prisons.

With speakers from European and national institutions, academia, and civil society, including:

  • Marc Nève President of the EPLN, President of the CCSP (Belgian NPM for Prisons), former Vice-President of the CPT

  • Ioulietta Bisiouli Director of the EIN

  • Kateřina Šimáčková ECtHR Judge

  • Mykola Gnatovskyy ECtHR Judge, former President of the CPT

  • Gilberto Felici ECtHR Judge

  • Martin Mühleck European Commission, DG NEAR

  • Simon Creighton Vice-President of the EPLN, Solicitor specialising in prison law and tribunal judge with expertise in mental health issues

  • Georgiana Gheorghe Executive Director of APADOR-CH

  • Zsófia Moldova Director of the Justice Programme, Hungarian Helsinki Committee

  • Oleh Tsvilyi Former prisoner, Head of Protection for Prisoners of Ukraine

  • Annie Kensey Researcher, CESDIP

  • Sonja Snacken Professor, Vrije Universiteit Brussel

As well as many other speakers! Full programme to be announced soon.

 

In partnership with:

With the support of:

Funded by:

 
 

Independence of the Judiciary in Poland: The Venice Commission against the possibility of a blanket removal of all neo-judges 

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On October 14th, the Venice Commission (VC) and Directorate General Human Rights and Rule of Law of the Council of Europe (“DGI”) issued a landmark joint Opinion on European standards regulating the status of judges, on the basis of four questions raised by the Minister of Justice of Poland on the issue of neo-judges in Poland. This issue stems from the appointment of over 2,500 judges through a politicised National Council of the Judiciary (KRS), reconstituted in 2017 in the context of far-reaching judicial reforms introduced by the then ruling Law and Justice party (PiS), which had been found by the VC, in a 2017 Opinion, to “enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element of the rule of law”. In the same vein, European and Polish courts had continued addressing fundamental concerns raised about judicial independence in Poland, ruling on multiple occasions that neo-judges do not meet independence standards.

In July 2024, the Polish Minister of Justice, Adam Bodnar seized the Venice Commission with four questions linked to two models to address the issue of neo-judges, with a view to reducing the risk that the chosen solution may conflict with the ECHR and EU law. Without assessing directly the models proposed, the assessment of the Venice Commission concludes that a wholesale invalidation ex tunc of all the appointment decisions of the Polish NCJ (and thus a blanket return of all neo-judges to their previous positions) does not fit into the rule of law concept, as it would among others fail the proportionality test and the principle of separation of powers. Instead, the VC recommends adopting a case-by-case approach (which does not necessarily mean an individual approach, but can also involve considering grouped categories (“cohorts”) of similar appointments, in any event on the basis of pre-established criteria), giving the right to affected judges to seek judicial review against the invalidation of their nomination or promotion in case the decisions on invalidation are not taken by a judicial body.

While reaffirming the importance of legal certainty, the Opinion acknowledges that there may be circumstances in which the reassignment of a judge to another position (including the possibility of delegating judges to the courts where they served prior to the enactment of the impugned law) is unavoidable. Yet, transitional arrangements that may be needed have to be surrounded by adequate guarantees. The Opinion finally concludes that a number of safeguards should be put in place to guarantee an adequate balance between the principles of court established by law as element of fair trial and res judicata as element of legal certainty. These include, inter alia, the provision of a mechanism that would be suitable for a fairly rapid settlement of the issue and would introduce time limits to the cases that can be challenged.

Relevance of the VC Opinion for the implementation of ECtHR cases related to the independence of the Polish judiciary

During the EIN Rule of Law Conference which took place in The Hague last June, the issue of the independence of the Polish Judiciary was discussed alongside the role that the VC could play in Poland carrying out the judicial reform in accordance with European standards. Dr. Bodnar had discussed the status of reforms and measures required for the implementation of European Court judgments concerning the independence of the Polish judiciary, as well as the important challenges that need to be overcome along the way.

He notably stressed out the need for guidelines to shape rule of law-upholding efforts and the importance of involving all legal and political forces in this process, including civil society and international actors. In Dr. Bodnar’s view, the binding nature of the Convention standards and the Court’s case-law cannot be disregarded. It is a fundamental obligation of members states, and Poland must take into account existing jurisprudence of the ECtHR and their implementation in the context of the judicial reform. The Venice Commission echoes this position by linking its Opinion first and foremost with Poland’s obligation to execute the judgments of the ECtHR, while respecting international and constitutional standards.

Further, the Opinion of the Venice Commission reflects the thrust of the recommendations formulated by the Helsinki Foundation for Human Rights in relation with the Reczkowicz v. Poland group of cases during the September 2024 EIN civil society briefing, in particular concerning the introduction of a fair procedure for individual verification of appointments before an independent NCJ, with a right of appeal to court. This group of cases concerns the procedurally flawed judicial appointments, undermining the independence and legality of the judicial bodies involved in deciding the applicants' cases. It is one of the most important rule of law-related cluster of Polish cases currently supervised by the Committee of Ministers (CM) of the Council of Europe. At the September 2024 CM-DH meeting, the Committee of Ministers – having called for a comprehensive reform addressing the status of deficiently appointed judges and the status of judgments adopted with their participation – noted that the authorities were seeking advice from the Venice Commission and called on them to elaborate and adopt the reform without further delay, to ensure the required urgent remedial action and address the grave underlying problems.

The Opinion of the VC is therefore of strong importance in a twofold manner: It does not only serve as a guide for the planned judicial reform in Poland, which is expected to set an important precedent, and must therefore succeed in striking a fair balance between the rule of law and legal certainty principles; it is furthermore bound to help avoid future ECtHR violations by setting a roadmap to ensure that the balance between these two principles is maintained in a Convention-compliant manner, should similar concerns arise in other jurisdictions. Importantly, the Opinion ultimately reiterates the fundamental importance of respect for the binding nature of Article 46 of the Convention, even in the face of acute legal and political dilemmas, and serves as yet another reaffirmation of the role of the Venice Commission as a highly specialised international body that can assist the member States in navigating their responsibilities deriving from the Convention in the light of the subsidiary nature of the ECtHR judgments.

 

EIN Board elects new chair and vice-chair

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Maciej Nowicki, the Chair of the Polish Helsinki Foundation for Human Rights and Dr. Ramute Remezaite, the Senior Legal Consultant and Implementation Lead at the European Human Rights Advocacy Centre, have been elected as the new chair and vice-chair of the European Implementation Network.

They replace Professor Başak Çalı and Professor Philip Leach following their hugely successful eight-year tenure as Chair and Vice-Chair of EIN.

EIN started off with 8 founding members and has grown today to encompass 41 members spanning 25 Council of Europe countries.

Under the leadership of Professors Çalı and Leach, EIN has provided capacity-building support to thousands of human rights lawyers and civil society organisations in Europe to effectively engage with human rights judgment implementation advocacy. In this period, the EIN also enabled non-implementation, deficient implementation and slow implementation of human rights judgments to be firmly placed on the agenda of Council of Europe, the European Union, national governments and national human rights institutions.

‘We are extremely proud of what we have achieved building Europe’s leading civil society network advocating for the full and effective implementations of human rights judgments as co-founders of EIN’ said Çalı and Leach.

‘I am looking forward to leading this important network on behalf of the Polish Helsinki Foundation, one of the co-founding members. EIN’s role on keeping the implementation of human rights judgments on the European and Polish agenda has been a major support for the Polish Helsinki Foundation for Human Rights’ remarked Maciej Nowicki.

Dr. Ramute Remezaite, whose role in the founding of the EIN was instrumental back in 2016 said ‘The implementation of the judgments of the European Court of Human Rights have been central to my work as a human rights lawyer and academic in the past decade. It is an absolute honor for me to lead this organization in its next phase together with Maciej Nowicki.’ 

The efforts of the EIN Bureau will also be supported by Georgiana Georghe, Executive Director at Association for the Defence of Human Rights in Romania (APADOR-CH), who has been elected as Secretary. 

Justice Delayed and Justice Denied: Report on the Non-Implementation of European Judgments and the Rule of Law

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The European Implementation Network (EIN) and Democracy Reporting International (DRI) are delighted to present the third edition of our flagship report “Justice Delayed and Justice Denied: Non-Implementation of European Courts’ Judgments and the Rule of Law,” a joint report on the non-implementation of European Court judgments in EU states.

The attacks on fundamental European values in recent years have continued to raise concern for European stakeholders – governments, the media, and citizens alike. The EU has introduced a series of policy measures designed to halt and reverse this phenomenon, ranging from the new annual rule of law review cycle, to targeted measures, such as withholding structural funds from countries with severe infringements of the rule of law.

In 2022, following civil society calls for the EU’s rule of law reporting to take into account the non-implementation of judgments from the two key European courts – the ECtHR and the CJEU (hereafter, “the European Courts”) – the EU Commission has included this type of data in its annual Rule of Law Report. This development allowed the EU to identify longer-term problems with the rule of law across all Member States that had previously been overlooked.

Summary of our findings

A Systemic Rule of Law Problem in the European Union

The non-implementation of European courts' rulings by EU member states, which has long been growing into a systemic problem, is now unequivocally recognised as a rule of law matter. Non-implementation undermines the authority and effectiveness of both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The EU member states are bound by the rulings of these courts. Yet, national authorities fail to make their laws and practices consistent with the European Convention on Human Rights and EU law requirements respectively.

Implementation Delays Lead to Human Rights Infringements

“Behind these statistics are numerous individual stories of people who found relief in Europe’s highest courts, only to realise that, all too often, states do not implement these decisions. Major themes of concern are conditions of detention, police ill-treatment; mental disability rights and psychiatry; LGBTIQ+ rights and discrimination; asylum and migration.”
— Justice Delayed, Justice Denied 2024 Report

Significant gains for the upholding of democratic principles and the rule of law provenly result from effectively implementing the European Courts’ rulings. That notwithstanding, governments' responses to the non-implementation crisis fall short of expectations, often ranging from sluggishness in following the European Courts’ guidance to active resistance thereto and extreme attempts to undermine these courts’ authority. These delays in implementing judgments lead to prolonged rule of law and human rights infringements and have far-reaching consequences for individuals who are denied timely justice.

State Compliance Record with the European Court of Human Rights (ECtHR) Judgments

As of January 1 2024, 624 leading ECtHR judgments were awaiting implementation across the EU, slightly up from 616 in 2022 and 602 in 2021. Each of these represents a human rights problem that has not been resolved – and which, therefore, is likely to recur.

Currently, 44% of the leading judgments from the past decade remain unimplemented, compared to 40% in 2022 and 37.5% in 2021. This means that the systemic human rights issues these judgments identify have not yet been resolved; it indicates that national authorities in Europe are not sufficiently active in dealing with a significant proportion of human rights issues identified by the ECtHR.

In 2023, the average length of time leading ECtHR judgments concerning EU states had been pending implementation for was 5 years and 2 months, compared to 5 years and 1 month in 2022 and 4 years and 4 months in 2021. Some cases require extensive reforms that can – and should – take many years to implement. It should, however, be possible to implement the majority of leading judgments in a relatively short period of time. The longer leading judgments have been pending, the greater the concern that implementation is not being carried out.

Bulgaria, Finland, Greece, Hungary, Ireland, Italy, Malta, Poland, Portugal and Romania have leading judgments that have not been implemented for more than five years. In Bulgaria, Cyprus, Hungary, Italy, Malta, Poland, Romania, Slovakia, and Spain, over 50% of the leading judgments rendered against them in the last ten years are yet to be implemented. In Bulgaria and Romania, more than 85 leading judgments are pending implementation.

In 2023, Hungary remained the state with the highest percentage of ECtHR rulings issued in the last ten years that await implementation – 76%. But when we look at the highest absolute number of the same type of judgements, it is Romania, with 115 unimplemented rulings, that leads the count.

Sweden, Luxembourg, Denmark, Estonia are among the top performers in terms of implementation of ECtHR rulings, whereas Finland recorded an impressive progress in clearing its backlog of non-implemented judgments in the course of 2023.

State Compliance Record with the Court of Justice of the European Union (CJEU) Rulings Related to the Rule of Law

Our analysis of state compliance reveals that some EU member states comply with the CJEU rulings only partially – they follow the CJEU guidance to some extent but fall short of achieving full compliance. A significant portion of those rulings have been pending for two years or more. We label those states as "struggling compliers". These include Romania and Hungary, which have 83.33% and 52.6% of rulings partly complied with, respectively. 50% of rulings with respect to Romania have been pending compliance for two years or more. For Hungary, that number is 66%.

For Bulgaria, in 31.8% of cases, compliance has been partial, but 25% of the rulings have not been complied with at all. This results in an overall non-compliance rate of 56.8%. 56% of those pending rulings have been awaiting compliance for two years or more. Similarly to Bulgaria, Poland has failed to fully comply with 50% of the rulings and 75% of those rulings have been pending compliance for two years or more.

We define ‘moderate compliers’ (Portugal, Croatia, Estonia among others) as those who have fully complied with somewhere between 50% and 80% of the rulings. Good compliers (Luxembourg, Germany, France, among others) have complied with over 80% of the rulings. Neither moderate nor good compliers are immune to occasional legislative delays or judicial misgivings, even though it does not occur so routinely as in struggling compliers.

Constitutional courts in ‘struggling complier’ countries have systematically challenged the CJEU's authority and hindered compliance – some openly and some more discreetly. Good complier countries (for example, German and French top courts) have also challenged the primacy of EU law and the CJEU authority, though the challenges have been isolated and non-systematic. The poor record of compliance with the CJEU's rulings related to access to justice, including judicial and prosecutorial independence, remains a major area of concern, alongside those related to asylum and migration.

Other themes involved include general and indiscriminate retention of personal data and authorities' access to such data. Similarly, access to information and the appropriateness of restricting such access invoking national security concerns, has also been an area where states failed to comply with CJEU rulings. Finally, the same is the case for rulings on civil society organisations and academic institutions.

Report recommendations

EIN and DRI set out the following recommendations to the European Commission and to EU institutions:

1. Integration of Implementation Data: The Commission should continue incorporating ECtHR judgment implementation data into its annual Rule of Law Report, and systematically analyse and prominently feature compliance with CJEU rulings.

2. Targeted Recommendations: The Commission should issue specific recommendations to states based on their implementation records of ECtHR and CJEU judgments related to the rule of law, and expand its reports to cover democracy and systemic fundamental rights violations, urging immediate action from states with recurring issues.

3. Utilisation of Enforcement Tools: The Commission should use all available tools, including infringement procedures and financial pressure, to address member states’ failures to implement CJEU judgments, leveraging related ECtHR judgments as additional evidence.

4. Enhanced Monitoring: The Commission should consider closer monitoring of the implementation of CJEU judgments, including preliminary rulings, and explore ways to support national-level mechanisms for their implementation.

5. Prioritisation in EU Discussions: EU institutions should highlight the non-implementation of ECtHR and CJEU judgments as a priority rule of law issue in discussions with member state governments and parliaments.

6. Funding for Implementation Activities: The EU should fund initiatives to enhance the implementation of ECtHR and CJEU judgments, particularly those led by civil society organisations and the Council of Europe.

For more on individual countries’ implementation records, see our implementation country map.

Work supported by:

 
 

Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting in September 2024

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📅 From the 17th to the 19th of September 2024, the Committee of Ministers will meet for their quarterly Human Rights Meeting. This periodic meeting allows the Committee of Ministers to make decisions on pressing human rights violations & encourage the implementation of ECtHR judgments. During these three days, the Committee of Ministers will examine 54 leading judgments of the European Court of Human Rights that are pending implementation.

📚 EIN members and partners, other civil society actors, lawyers and applicants have made 41 Rule 9 submissions for 27 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda. 

 

Overview of Submissions

 

Sharxhi and Others v. Albania 

Violation: Demolition of the applicants’ flats and business premises in disregard of an interim court order restraining the authorities from taking any action that could breach property rights. 

Last examination: March 2023 - CM/Del/Dec(2023)1459/H46-1

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (20/08/2024) concerning the case of Sharxhi and Others v. Albania (Application No. 10613/16) [anglais uniquement] [DH-DD(2024)936]

 
 

Mammadli group v. Azerbaijan 

Violation: Arrest and pre-trial detention to punish the applicants for his activities in the area of electoral monitoring or for their active social and political engagement in breach of Article 18 taken in conjunction with Article 5. 

Last examination: June 2024 - CM/Del/Dec(2024)1501/H46-4 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from NGOs (Free Voices Collective (FVC), Independent Lawyers Network (ILN), European Human Rights Advocacy Centre (EHRAC) and International Partnership of Human Rights (IPHR)) (08/08/2024) concerning the group of cases Mammadli v. Azerbaijan (Application No. 47145/14) [anglais uniquement] [DH-DD(2024)941]

 

Sargsyan v. Azerbaijan 

Violation: Impossibility for persons displaced during the active military phase (1992-1994) of the Nagorno-Karabakh conflict to gain access to their homes and properties in the region; lack of effective remedies. 

Last examination: September 2023 - CM/Del/Dec(2023)1475/H46-7 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (09/08/2024) concerning the case of SARGSYAN v. Azerbaijan (Application No. 40167/06) [anglais uniquement] [DH-DD(2024)917] 

 

Camara v. Belgium 

Violation: Structural problem of non-enforcement of judicial decisions ordering the authorities to provide asylum seekers with material assistance or accommodation. 

Last examination: First examination 

Latest submission(s): 1492nd meeting (March 2024) (DH) - Rule 9.2 - Communication from an NGO (Human rights centre at Ghent University) (22/01/2024) concerning the case of Camara v. Belgium (Application No. 49255/22) [anglais uniquement] [DH-DD(2024)161] 

 
 
 

 Identoba and Others group v. Georgia 

Violation: Lack of protection against homophobic attacks during demonstrations. 

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-13 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from NGOs (Social Justice Center, European Human Rights Advocacy Centre (EHRAC) (02/08/2024) concerning the cases of Georgian Muslim Relations and Others and Mikeladze and Others v. Georgia (Applications No. 24225/19, 54217/16) (Identoba and Others group, 73235/12) [anglais uniquement] [DH-DD(2024)913] 

1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from NGOs (European Human Rights Advocacy Centre (EHRAC), Women's Initiatives Support Group (WISG), Georgian Young Lawyers' Association (GYLA), ILGA-Europe and Transgender Europe (TGEU)) (02/08/2024) concerning the cases of Aghdgomelashvili and Japaridze, Women's Initiatives Supporting Group and Others and IDENTOBA AND OTHERS v. Georgia (Applications No. 7224/11, 73204/13, 73235/12) (Identoba and Others group) [anglais uniquement] [DH-DD(2024)912] 

1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from an NGO (Social Justice Center) (02/08/2024) concerning the cases of A.D. and Others and Identoba and Others v. Georgia (Applications No. 57864/17, 73235/12) (Identoba and Others group) [anglais uniquement] [DH-DD(2024)910] 

1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender of Georgia) (18/07/2024) concerning the group of cases IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) [anglais uniquement] [DH-DD(2024)857] 

 

Kanellopoulos group v. Greece 

Violation: Non-compliance with final domestic judgments ordering the lifting of land expropriation orders or charges on land. In some cases, the lack of an effective remedy to ensure the enforcement. 

Last examination: December 2023 - CM/Del/Dec(2023)1483/A2 

Latest submission(s): 1492nd meeting (March 2024) (DH) - Rule 9.1 - Communication from the applicant (08/03/2024) concerning the case of PANAGIOTIS GIKAS and GEORGIOS GIKAS v. Greece (Application No. 26914/07) (Kanellopoulos group, 11325/06) [anglais uniquement] [DH-DD(2024)303] 

 
 

László Magyar group v. Hungary 

Violation: Life sentence without parole in combination with the lack of an adequate review mechanism, life sentence with parole after 40 years. 

Last examination: September 2023 - CM/Del/Dec(2023)1475/H46-17 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee) (02/08/2024) concerning the LASZLO MAGYAR group of cases v. Hungary (Application No. 73593/10) [anglais uniquement] [DH-DD(2024)908] 

 
 
 

Reczkowicz group v. Poland 

Violation: Tribunal not established by law due to, inter alia, systemic dysfunction in the judicial appointments’ procedures. Deficiencies of the system of extraordinary review appeal. 

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-25  

Latest submission(s): 1507th meeting (September 2024) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Helsinki Foundation of Human Rights) (08/08/2024) concerning the group of cases of Reczkowicz v. Poland (Application No. 43447/19) and reply from the authorities (23/08/2024) [anglais uniquement] [DH-DD(2024)940-rev] 

 

Xero Flor W Polsce SP. Z O.O. v. Poland 

Violation: Tribunal not established by law due to grave irregularities in the election of one of the Constitutional Court's judges examining the applicant company’s constitutional complaint. 

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-26 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Helsinki Foundation of Human Rights) (08/08/2024) concerning the case of Xero Flor w Polsce sp. z o.o. v. Poland (Application No. 4907/18) and reply from the authorities (23/08/2024) [anglais uniquement] [DH-DD(2024)939-rev] 

 
 
 
 
 
 
 

Kavala v. Türkiye 

Violation: Unjustified and extended detention of the applicant without reasonable suspicion and with the ulterior purpose of reducing him to silence. 

Last examination: June 2024 - CM/Del/Dec(2024)1501/H46-34 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (09/09/2024) concerning the case of Kavala v. Türkiye (Application No. 28749/18) [anglais uniquement] [DH-DD(2024)1026] 

 

Xenides-Arestis group v. Türkiye 

Violation: Continuous denial of access to property in the northern part of Cyprus (individual measures and just satisfaction). 

Last examination: September 2023 - CM/Del/Dec(2023)1475/H46-40 

Latest submission(s): 1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (04/09/2024) concerning the case of ROCK RUBY HOTELS LTD v. Turkey (Application No. 46159/99) (Xenides Arestis group, 46347/99) [anglais uniquement] [DH-DD(2024)1000]  

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (26/07/2024) concerning the group of cases Xenides Arestis v. Turkey (Application No. 46347/99) [anglais uniquement] [DH-DD(2024)865] 

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (24/07/2024) concerning the group of cases Xenides Arestis v. Turkey (Application No. 46347/99) [anglais uniquement] [DH-DD(2024)859] 

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (17/07/2024) concerning the case of ORPHANIDES v. Turkey (Application No. 36705/97) (Xenides Arestis group, 46347/99) [anglais uniquement] [DH-DD(2024)839] 

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (16/07/2024) concerning the case of RAMON v. Turkey (Application No. 29092/95) (Xenides Arestis group, 46347/99) [anglais uniquement] [DH-DD(2024)835] 

1507th meeting (September 2024) (DH) - Rule 9.1 - Communication from the applicant (04/07/2024) concerning the XENIDES-ARESTIS group of cases v. Turkey (Application No. 46347/99) [anglais uniquement] [DH-DD(2024)771] 

EIN Civil Society Briefing September 2024 – Poland, Hungary and Portugal

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On the 6th of September 2024, EIN held in Strasbourg the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1507th Committee of Ministers Human Rights Meeting which will be held between 17th – 19th September 2024.

The briefing focused on the following cases:

Reczkowicz v. Poland and Xero Flor w Polsce SP. Z O.O. v. Poland

 

The Reczkowicz v. Poland and Xero Flor w Polsce SP. Z O.O. v. Poland cases concern the violation of the right to a tribunal established by law under Article 6 § 1 of the European Convention on Human Rights on account of procedurally flawed judicial appointments, undermining the independence and legality of the judicial bodies involved in deciding the applicants' cases.

In the Reczkowicz group, the judges of the various chambers in the Supreme Court (SC) that dealt with the applicants’ cases were appointed “in an inherently deficient procedure” on the motion of the National Council of the Judiciary (NCJ), which lacked independence from the legislature and the executive (violation of Article 6 § 1).

In Xero Flor w Polsce SP. Z O.O. v. Poland, the Court found grave procedural breaches in the appointment of one of the judges on the Constitutional Court panel that rejected the applicant company’s complaint, the appointment having breached the fundamental rule of Polish law.

Recommendations for the implementation of the Reczkowicz v. Poland group of cases

The Helsinki Foundation for Human Rights (HFHR) formulated the following recommendations for the implementation of the Reczkowicz v. Poland group of cases, requesting the Committee of Ministers to: 

  • Restore the independence of the National Council of the Judiciary by reforming the election procedure for judicial members of the NCJ and terminating the term of office for unlawfully elected NCJ members;

  • Ensure that the new law addresses the status of judges appointed at the request of the NCJ after 2017, in line with European standards, by introducing a fair procedure for individual verification of appointments before an independent NCJ, with a right of appeal to court;

  • Ensure that the new law regulates the effects of rulings by judges appointed post-2017, balancing the right to an independent tribunal established by law with the need for legal certainty and stability of the justice system;

  • Explicitly exclude by law the possibility of judges’ disciplinary liability for examining the appointments, independence, and impartiality of other judges;

  • Refrain from questioning the validity of the Court's rulings.

Recommendations for the implementation of the Xero Flor w Polsce SP. Z O.O. v. Poland case

Concerning instead the implementation of the Xero Flor w Polsce SP. Z O.O. v. Poland case, the Helsinki Foundation for Human Rights (HFHR) formulated the following recommendations, requesting the Committee of Ministers to:

  • Prevent unlawfully elected persons from adjudicating in the Constitutional Tribunal (CT), by prohibiting all three unlawfully elected judges from adjudicating, on both judgments on the merits and procedural decisions; 

  • Address these adjudication issues in cases other than those initiated by constitutional complaints, as they may also cause problems; 

  • Refrain from questioning the validity of the Court’s rulings; 

  • As regards individual measures, introduce a procedure to reopen proceedings initiated by constitutional complaints that were discontinued by the CT in an unlawful composition; 

  • Regulate the status of CT rulings issued in an unlawful composition, balancing legal certainty with the right to an independent court established by law (see also ODIHR’s 24 August 2024 opinion on two bills on CT, which suggests reconsidering the nullification of all judgments rendered with the involvement of "persons not entitled to adjudicate"); 

  • Implement legislative measures to prevent external undue influence on the appointment of judges. 

Relevant Documents:

The László Magyar v. Hungary group of cases concerns the violations of the prohibition against torture and inhuman or degrading treatment or punishment, due to the applicants receiving life sentences without the possibility of parole (“whole life sentences”) and without an adequate review mechanism, or life sentences with parole eligibility (“simple life sentences”) only after serving 30 to 40 years (Article 3).

 

Recommendations for the implementation of the László Magyar v. Hungary group of cases

The Hungarian Helsinki Committee formulated the following recommendations for the implementation of the László Magyar v. Hungary group of cases, requesting the Committee of Ministers to:

  • Continue examining the execution of the judgments in the László Magyar v. Hungary group of cases under the enhanced procedure.

  • Issue an interim resolution in the group of cases as foreshadowed by the CM’s September 2023 decision if “no tangible progress” is achieved in the implementation of the group of cases.

And to ask the Hungarian authorities to:

  • Abolish the institution of life imprisonment without the possibility of parole from both the respective laws and the Fundamental Law of Hungary.

  • Establish, without further delay and in accordance with a clear timetable, a review system for those already sentenced to whole life imprisonment which complies with the standards set by the Court with respect to the decision-making process, applicable procedural safeguards and its timing, and which provides a real prospect of release.

  • Ensure, without further delay and in accordance with a clear timetable, that a review complying with the standards set by the Court takes place no later than 25 years after the imposition of every life sentence, with further periodic reviews thereafter.

  • Collect and make publicly accessible relevant data.

  • Ensure that the rights violations suffered by the applicants in the László Magyar v. Hungary group of cases are fully remedied and that they are eligible for parole in accordance with the guidance of the Court and the Committee of Ministers; and provide information to the Committee of Ministers on the individual situation of each applicant.

Relevant Documents:

The Petrescu v. Portugal case involves the inhuman and degrading treatment of the applicant due to overcrowding and poor conditions in prisons, in violation of Article 3. The Court noted a structural issue of overcrowding affecting over half of Portugal's prisons and found that none of the remedies suggested by the Government were effective in addressing the applicant's detention conditions. It recommended that Portugal adopt general measures to ensure detention conditions comply with Article 3 and provide a remedy for prisoners to prevent continued violations or improve their conditions.

Recommendations for the implementation of the Petrescu v. Portugal case

The European Prison Litigation Network and Forum Penal formulated the following recommendations for the implementation of the Petrescu v. Portugal case, requesting the Committee of Ministers to: 

  • Underline the need for political commitment to tackle structural overcrowding and poor prison conditions.

  • Reaffirm the need to “adopt a comprehensive strategy aimed at identifying and tackling the root causes of prison overcrowding” (CM/Del/Dec(2023)1475/H46-25), in consultation with all stakeholders, including civil society.

  • Recommend in particular to address the root causes of long prison sentences and lack of access to sentences adjustment in Portugal.

  • Reiterate the need to establish an effective judicial preventive remedy as well as a judicial compensatory remedy capable of providing timely compensation for inadequate detention conditions, and to ensure that prisoners can make effective use of these remedies, including through effective access to legal information, a lawyer and legal aid.

  • Recommend substantial investment in social services to support prisoners’ reintegration and access to early release schemes.

Implementing Safi and Others v. Greece: Urgent need for measures to protect migrants’ right to life

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Last month, the Council of Europe anti-torture Committee (CPT) published the findings of its 2023 visit to Greece highlighting ongoing concerns about pushbacks and the treatment of migrants by Greek authorities.  

The report details credible and consistent allegations of physical abuse by coastguard officials during interceptions at sea, where the coastguard's operational decisions and delays contributed to the tragic loss of life. Its findings suggest that such practices are not isolated incidents but part of a broader pattern of ill-treatment and disregard for the safety and rights of migrants. 

The CPT’s concerns only echo those already raised by multiple international sources. According to the December 2023 Frontex SI report 12595/2023 on the tragic Pylos shipwreck (of which only 104 of the 750 passengers of the boat came out alive), the Greek authorities, responsible for coordination of assistance, failed to timely answer Frontex’ calls - having initially notified Frontex that further assistance was not needed -, and also failed to declare a search and rescue and to deploy sufficient appropriate assets in time to rescue the migrants in distress. These operational shortcomings mirror the failures identified in the Safi case, concerning the ineffective investigation into a coastguard operation in 2014 in the Aegean Sea during which eleven relatives of the migrant applicants, who were aboard a fishing boat, drowned. In that case, too, the rescue was also planned without appropriate equipment, and the possibilities of requesting additional assistance and sending a "Mayday Relay" alert were either not considered or significantly delayed.  

Furthermore, in February 2024, in response to the systematic pushbacks and violence against non-EU nationals, the European Parliament adopted a resolution on Greece criticising the lack of progress in the judicial investigation and the treatment of migrants at the external borders. 

Pushback operations and the abuse of migrants’ rights by the Greek authorities continue to come under the scrutiny of the ECtHR. In the January 2024 judgment of Alkhatib v. Greece, the ECtHR identified violations of the right to life due to the lack of an adequate legal framework on the use of potentially lethal force against migrants by the coastguard boat during a pursuit to intercept a boat and the inadequate planning of the rescue operation. 

The Safi case is pending implementation before the Committee of Ministers since 2022, yet the ongoing documentation of pushbacks and the lack of proper safeguards for migrants intercepted at sea reinforce the ECtHR’s concerns, demonstrating that similar violations continue taking place. The Greek authorities should urgently take all possible measures to safeguard the lives of those seeking refuge in Europe. In the meantime, the Committee of Ministers remains one of the last weighty international institutions still turning a blind eye on the systemic nature of these shortcomings revealed in Safi by continuing examining this case under the standard supervision procedure, despite numerous calls by civil society organisations to place it under the enhanced supervision procedure (see, inter alia, the joint submissions of the AIRE Centre, HIAS Greece, and Equal Rights Beyond Borders, as well as of Refugee Support Aegean and Stiftung PRO ASYL of September 2023). It is high time that the CM stepped up its response to rise to the occasion. 

For further information, you can consult the following resources:

Photo: Left.gr/Kalodoukas

EIN 2024 General Assembly

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On 18 June, EIN members gathered in The Hague for our annual General Assembly. Every two years, this is an event that we organise in person. This year, the event took place ahead of the EIN Conference “Safeguarding the Rule of Law: Implementing ECtHR Judgments for Lasting Impact”, which gathered around 50 participants. This event was organised as part of our project on promoting the rule of law in Europe through the implementation of judgments of the ECtHR concerning independence and impartiality of the judiciary, financed by the Ministry of Foreign Affairs of the Netherlands.

23 members came to The Hague, 5 joined us online, and 3 members were represented via proxy. At the meeting, major documents for the life of the Network were discussed and adopted, such as the annual accounts, and the planned budgets for 2024-2025. It was also a unique opportunity for EIN members to take stock of the work achieved by the Network in 2023 on advocating for the implementation of ECtHR judgments to be higher on the agenda and for introducing EIN’s new Turkish member organisations: the Freedom of Expression Association (İFÖD – İfade Özgürlüğü Derneği) and the Human Rights Association (İnsan Hakları Derneği ”IHD”). Finally, the 2024 General Assembly was an opportunity for EIN Former Director, George Stafford, who stepped down in 2023, to address EIN members with a few words of wisdom and farewell.

We would like to thank all EIN members for their commitment and engagement in the Network! 

A special thank you to the Ministry of Justice of the Netherlands for hosting our events.  

Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting in June 2024

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From the 11th to the 13th of June 2024, the Committee of Ministers will meet for their quarterly Human Rights Meeting. During this meeting, the Committee of Ministers will examine 40 leading judgments of the European Court of Human Rights that are pending implementation.

EIN members and partners, other civil society actors, lawyers and applicants have made 47 Rule 9 submissions for 41 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.

 

Overview of Submissions

Khadija Ismayilova Group V. Azerbaijan

Violation: Violations of the applicants’ right to privacy and freedom of expression in connection with their work.

Last examination: September 2023 - CM/Del/Dec(2023)1475/H46-4

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NGO (Media Defence) (02/05/2024) concerning the group of cases Khadija Ismayilova v. Azerbaijan (Application No. 65286/13) [anglais uniquement] [DH-DD(2024)549]

 
 
 

Sejdić And Finci Group v. Bosnia and Herzegovina

Violation: Ethnic-based discrimination on account of the ineligibility of persons not affiliated with one of the “constituent peoples” (Bosniaks, Croats or Serbs) to stand for election to the House of Peoples and the Presidency.

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-8

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.1 - Communication from the applicant (04/04/2024) concerning the case of ZORNIC v. Bosnia and Herzegovina (Application No. 3681/06) (Sejdic and Finci group, 27996/06) [anglais uniquement] [DH-DD(2024)394]

 
 

Miroslava Todorova v. Bulgaria

Violation: Disciplinary proceedings and sanctions against the President of the judges’ association in retaliation against her criticism of the Supreme Judicial Council and the executive.

Last examination: June 2023 - CM/Del/Dec(2023)1468/H46-7

Latest submission(s): 1501st meeting (June 2024) (DH) - Rules 9.2 and 9.6 - Reply from the authorities (07/05/2024) following a communication from an NGO (Bulgarian Helsinki Committee) (19/04/2024) concerning the case of Miroslava Todorova v. Bulgaria (Application No. 40072/13) [anglais uniquement] [DH-DD(2024)488-rev]

 

Kolevi v. Bulgaria

Violation: Systemic problem of ineffective criminal investigations with regard to shortcomings which affect investigations concerning both private individuals and law enforcement agents and lack of guarantees for the independence of criminal investigations against the Chief Prosecutor.

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-10

Latest submission(s): 1501st meeting (June 2024) (DH) - Rules 9.2 and 9.6 - Reply from the authorities (13/05/2024) following a communication from an NGO (Bulgarian Helsinki Committee) (02/05/2024) concerning the case of KOLEVI v. Bulgaria (Application No. 1108/02) [anglais uniquement] [DH-DD(2024)537]

 
 
 

 Merabishvili v. Georgia

Violation: Failure by the domestic courts to give relevant and sufficient reasons to justify continuation of detention on remand; continued detention on remand with the predominant purpose of obtaining information from the applicant about third persons.

Last examination: March 2023 - CM/Del/Dec(2023)1459/H46-9

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender’s Office of Georgia) (02/05/2024) concerning the case of Merabishvili v. Georgia (Application No. 72508/13) [anglais uniquement] [DH-DD(2024)562] 

 
 

Baka v. Hungary

Violation: Lack of access to a court as regards the premature termination of the applicant’s mandate as President of the Supreme Court which also led to a violation of his right to freedom of expression.

Last examination: December 2023 - CM/Del/Dec(2023)1483/H46-17

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee) (22/04/2024) concerning the group of cases BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2024)487]

 

Szabo and Vissy v. Hungary

Violation: Absence of sufficient guarantees against abuse in legislation on secret surveillance.

Last examination: March 2023 - CM/Del/Dec(2023)1459/H46-12

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Civil Liberty Union) (19/04/2024) concerning the case of SZABO AND VISSY v. Hungary (Application No. 37138/14) [anglais uniquement] [DH-DD(2024)541]

 
 
 

Blokhin v. Russian Federation, Fudin v. Russian Federation, Matytsina Group v. Russian Federation, Vasilyev and Kovtun Group v. Russian Federation, Atyukov Group v. Russian Federation, Karelin Group v. Russian Federation

Violation: Groups of cases concerning unfair proceedings.

Last examination: First examination

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NGO (Centre de la protection internationale) (24/04/2024) concerning the cases of Blokhin, Vasilyev and Kovtun, Matytsina, Fudin, Atyukov and Karelin v. Russia (Applications No. 47152/06, 13703/04, 58428/10, 66637/12, 74467/10, 926/08) [anglais uniquement] [DH-DD(2024)484]

 

Boris Popov v. Russian Federation, Boyko v. Russian Federation, Gorlov and Others Group v. Russian Federation, Igranov and Others Group v. Russian Federation, N.T. Group v. Russian Federation, Khoroshenko Group v. Russian Federation, Resin v. Russian Federation, Vlasov Group v. Russian Federation & Zakharkin v. Russian Federation

Violation: Groups of cases concerning prisoners’ rights.

Last examination: First examination

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NGO (Centre de la protection internationale) (17/04/2024) concerning the cases of N.T., ZAKHARKIN, BORIS POPOV, Gorlov and Others, KHOROSHENKO, Boyko, Igranov and Others, VLASOV and Resin v. Russia (Applications No. 14727/11, 1555/04, 23284/04, 27057/06, 41418/04, 42259/07, 42399/13, 78146/01, 9798/12) [anglais uniquement] [DH-DD(2024)464]

1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from NGOs (International Partnership for Human Rights, European Prison Litigation Network, State Capture: Research and Action) (29/04/2024) concerning the groups of cases Tomov and Others and VLASOV v. Russia (Applications No. 18255/10, 78146/01) [anglais uniquement] [DH-DD(2024)538][Ii1] 

1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from NGOs (Memorial Human Rights Defence Centre; OVD Info) (26/04/2024) concerning the cases of BORIS POPOV, Gorlov and Others, Boyko, VLASOV and Resin v. Russia (Applications No. 23284/04, 27057/06, 42259/07, 78146/01, 9798/12) [anglais uniquement] [DH-DD(2024)585]

 
 

İzzettin Doğan and Others v. Türkiye & Mansur Yalçin and Others v. Türkiye

Violation: Structural and administrative problems leading to various differences in treatment between followers of the Alevi faith and adherents of the majority branch of Islam, including compulsory religious education classes.

Last examination: June 2023 - CM/Del/Dec(2023)1468/H46-32

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from NGOs (Alevi Bektaşi Federation, Alevi Philosophy Association, Federation of Alevi Foundations, Association for Monitoring Equal Rights, Human Rights Agenda Association, Norwegian Helsinki Committee Freedom of Belief Initiative) (24/04/2024) concerning the case of IZZETTIN DOGAN AND OTHERS v. Turkey (Application No. 62649/10) [anglais uniquement] [DH-DD(2024)510]

1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NGO (Norwegian Helsinki Committee Freedom of Belief Initiative) (22/04/2024) concerning the case of Izzettin Dogan and Others v. Turkey (Application No. 62649/10) [anglais uniquement] [DH-DD(2024)479]

1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NGO (Alevi Philosophy Center Association (ADO)) (10/04/2024) concerning the cases of Izzettin Dogan and Others and Mansur Yalcin and Others v. Turkey (Applications No. 62649/10, 21163/11) [anglais uniquement] [DH-DD(2024)439]

1501st meeting (June 2024) (DH) - Rule 9.6 - Reply from the authorities (14/05/2024) following communications from NGOs (10/04/2024, 22/04/2024, 24/04/2024) concerning the case of IZZETTIN DOGAN AND OTHERS v. Turkey (Application No. 62649/10) [anglais uniquement] [DH-DD(2024)551]

1501st meeting (June 2024) (DH) - Rule 9.2 - Communication from an NGO (Alevi Philosophy Centre) (13/05/2024) concerning the case of MANSUR YALCIN AND OTHERS v. Turkey (Application No. 21163/11) [anglais uniquement] [DH-DD(2024)582] 

 

Kavala v. Türkiye

Violation: Unjustified and extended detention of the applicant without reasonable suspicion and with the ulterior purpose of reducing him to silence.

Last examination: March 2024 - CM/Del/Dec(2024)1492/H46-35

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.1 - Communication from the applicant’s representative (29/05/2024) concerning the case of Kavala v. Türkiye (Application No. 28749/18) [anglais uniquement] [DH-DD(2024)610]

 

Selahattin Demirtaş (No. 2) Group v. Türkiye

Violation: Unjustified detention of the applicants without reasonable suspicion that they had committed an offence, with the ulterior purpose of stifling pluralism and limiting freedom of political debate. Unforeseeable lifting of the parliamentary immunity and subsequent criminal proceedings to penalise the applicants for their political speeches (individual measures).

Last examination: March 2024 - CM/Del/Dec(2024)1492/H46-34

Latest submission(s): 1501st meeting (June 2024) (DH) - Rule 9.1 - Communication from the applicant (03/05/2024) concerning the case of Yuksekdag Senoglu and Others v. Türkiye (Application No. 14332/17) (Selahattin Demirtas (No. 2) group, 14305/17) [anglais uniquement] [DH-DD(2024)632]

1501st meeting (June 2024) (DH) - Rule 9.1 - Communication from the applicant (31/05/2024) concerning the case of Selahattin Demirtas v. Turkey (no. 2) (Application No. 14305/17) [anglais uniquement] [DH-DD(2024)622]

 

EIN Civil Society Briefing May 2024 – Bulgaria, Ireland and Azerbaijan

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On the 31st of May 2024, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1501st Committee of Ministers Human Rights Meeting which will be held between 11th – 13th June 2024. The event took place in person in Strasbourg, and was facilitated by Ioulietta Bisiouli, EIN Director. 

The briefing focused on the following cases:

 

The Miroslava Todorova v. Bulgaria case concerns the disciplinary sanctioning of a judge, who had criticised the Supreme Judicial Council (SJC) and the executive, as well as government policies on judicial independence and actions in the context of public concerns about corruption. The European Court of Human Rights ruled that the sanctions (reduction in salary and dismissal from office) violated her freedom of expression (Article 10) and were intended to penalise and intimidate her for her criticism, also breaching Article 18 in conjunction with Article 10. The Court highlighted the disproportionate nature of the sanctions and their chilling effect on the judiciary. 

The Bulgarian Helsinki Committee (BHC) recalled the main disciplinary proceedings taken against Judge Todorova and provided an overview of the Government’s insufficient actions. In particular, the BHC noted the existence of other cases of disciplinary sanctions against magistrates as a form of workplace harassment, the need for clearer rules on remuneration of judges, as well as the lack of a holistic approach to the judicial reform and the threat posed by the government’s resignation, as highlighted in its last Rule 9.2 communication. 

 

Recommendation for the implementation of the Miroslava Todorova v. Bulgaria case 

The Bulgarian Helsinki Committee formulated the following recommendations for the implementation of the Miroslava Todorova v. Bulgaria case, requesting the Committee of Ministers to: 

  1. Examine the implementation of this case together with Pengezov v. Bulgaria (no. 66292/14), as both cases present systemic problems of independence of the judiciary in Bulgaria;  

    And to call on the authorities to: 

  2. Pursue a thorough judicial reform that preserves the constitutional amendments of December 2023 and protects judiciary from undue influence;  

  3. Ensure that evidence on undue influence over magistrates, including judges and the judicial authorities, is adequately examined and taken into consideration;  

  4. Ensure that protection of freedom of expression of judges is an integral part of the judicial reform in Bulgaria; 

  5. Introduce effective guarantees against undue influence on the SJC, in line with the CM recommendation in its decision of June 2023; 5.1. Introduce a mechanism for protection against harassment in the workplace, which would allow for timely protection against abuse of powers of disciplinary bodies against judges;  

  6. Remove the provisions that allow judges to be stripped of additional remuneration in cases of pending disciplinary proceedings against them from the SJC Rules for Determination of Additional Remuneration of Judges as a legal basis for harassment;  

  7. Ensure that violations of the Code of Ethical Conduct for Judges and the Code of Ethical Conduct of Prosecutors and Investigators are removed from the new Judicial Act as grounds for disciplinary proceedings; ensure that the two Codes are in line with the recommendations of the Venice Commission and the Consultative Council of European Judges. 

 
 

The Khadija Ismayilova v. Azerbaijan group of cases concerns violations of the rights of an investigative journalist in Azerbaijan who exposed corruption involving the President’s family. In 2012, after refusing to stop her reporting despite threats, videos of her intimate moments, secretly recorded in her bedroom, were posted online, and newspapers accused her of anti-government bias and immorality. The European Court of Human Rights found that the authorities failed to protect her privacy and journalistic freedom, and inadequately investigated the incidents, violating Articles 8 and 10. This case has been pending for more than five years. 

Media Defence highlighted in particular the failure of the authorities in carrying out effective criminal investigation in the acts committed against Ms. Ismayilova, the negative developments creating an unfavourable environment for journalists, as well as the government failure to abide by the request of international bodies – notably the Committee of Ministers and the Venice Commission - to update the Media Law in order to guarantee freedom of expression. 

 

Recommendation for the implementation of the Khadija Ismayilova v. Azerbaijan 

In light of this grim situation, Media Defence formulated recommendations on individual and general measures that would guarantee the effective implementation of the judgment. 

Recommendations on Individual measures

1. Conduct the investigation in respect of the interference with Ms Ismayilova’s private life in a manner that is consistent with international human rights standards and the findings of the Court in the case Khadija Ismayilova v. Azerbaijan; 

2. Immediately and comprehensively take such action as will ensure that all private content relating to Ms Ismayilova that was the subject matter of the cases Khadija Ismayilova v. Azerbaijan and Khadija Ismayilova v. Azerbaijan (no. 3), not least the details disclosed by the prosecutor in the context of the criminal investigation, be permanently removed from online sources without delay;  

3. Take steps to ensure Ms Ismayilova is not hindered in her work or day to day life, including by lifting the travel ban and ensuring her ability to continue her journalistic activities without interference. 

Relevant Documents: 

Recommendations on General measures 

4. Disclose, in a complete, transparent and comprehensive manner, all decisions and authorisations for the use of Pegasus spyware and other digital surveillance measures against journalists and investigate, prosecute and punish those responsible, as required with a view to ensuring non-repetition of the violation established by the Court under Article 18 in conjunction with Article 5 of the Convention; 

5. Recalling Recommendation CM/Rec(2022)4 of the Committee of Ministers to member States on promoting a favourable environment for quality journalism in the digital age as well as a positive obligation of the State to:  

  1. Create a favourable and enabling environment for carrying out journalistic activities; 

  2. Take immediate steps in order to effectively guarantee the freedom of expression and safety of journalists in Azerbaijan, including by ending the deprivation of liberty and discontinuing the criminal prosecution of independent journalists in Azerbaijan under trumped-up charges; lifting the travel bans and other sanctions imposed on journalists in connection with those criminal investigations; and allowing independent news outlets, including Toplum TV, to continue reporting;  

  3. Investigate in a manner compliant with the requirements of the Convention all cases involving unlawful conduct against journalists perpetrated in the last three years, and to provide to the Committee all relevant information on legal proceedings and their results; 

  4. Establish and implement a specific action plan for the capacity-building of the judiciary in respect to ensuring the balance between the right to respect for private life and the right to freedom of expression, in accordance with the Court’s caselaw; e. And amend the domestic legislation, including the Media Law, on the basis of the Venice Commission’s recommendations;  

6. Given the dire situation for media workers in Azerbaijan, and the ongoing crackdown on independent media, to schedule the case for examination again in December 2024, and to instruct the Secretariat of the Committee to prepare an interim resolution if no progress is demonstrated by authorities. 

O’Keeffe v. Ireland 

The O'Keeffe v. Ireland case involves the Irish State's responsibility for the sexual abuse of a nine-year-old by a lay teacher in a National School in 1973. The Court ruled that Ireland failed to protect the applicant from abuse by delegating school management to non-state actors without effective state oversight, directing complaints away from state authorities (substantive violation of Article 3). Additionally, the Court found that domestic remedies were ineffective in addressing the State's failure to protect (violation of Article 13 with Article 3). 

The presentation of the case reminded permanent representations to the Council of Europe of the timeline of the O’Keeffe case from the early litigation at the national level to the ECtHR judgment, and of IHREC’s engagement with the implementation process at the national and international level, including the Committee of Ministers. 

IHREC explained that the Irish Government’s choice to implement the ECtHR’s judgment on the provision of an effective remedy by establishing an Ex Gratia, a non-statutory scheme of redress payments created fundamentally unfair barriers to victims of sexual abuse as they impose pre-conditions to eligibility. Such barriers notably include the instituted and discontinued legal proceedings, the proof of a prior complaint and the compliance with the Statute of Limitations. 

Ms. O'Keeffe’s presence in Strasbourg for the occasion provided a victim-oriented perspective on the consequences of the ineffectiveness of the reforms taken so far. Her intervention was a poignant reminder of the ongoing struggle for justice for the hundreds of adults who experienced the same violations as her during their childhood. 

 

Recommendation for the implementation of the O’Keeffe v. Ireland 

Faced with an apparent lack of commitment to effectively and fully implement this 10-year-pending case on part of the Irish authorities, the O’Keeffe v. Ireland case requires rigorous and urgent monitoring, as a vulnerable and ageing population remains without an effective remedy as directed by the ECtHR in O’Keeffe v. Ireland a decade ago. IHREC therefore called on the Committee of Ministers to ‘trigger up’ this case from standard to enhanced supervision, and to call on the Irish government to adopt a redress scheme without discriminatory and arbitrary pre-conditions.