EIN Civil Society Briefing November 2024 – Armenia, Bulgaria, Lithuania and Poland

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On November 22nd, 2024, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1514th Committee of Ministers Human Rights Meeting which will be held between 3rd – 5th December 2024. The briefing focused on the following cases:

 

The Oganezova v. Armenia case concerns the violations of Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14 (prohibition of discrimination) of a prominent LGBT activist who faced a homophobic campaign, including an arson attack on her bar in Yerevan. Due to the absence of comprehensive anti-discrimination legislation in Armenia, including an effective criminal-law framework for addressing such complaints, the authorities failed to protect her from homophobic violence while not conducting a proper investigation. 

Pink Armenia provided insightful updates concerning the status of implementation of Oganezova v. Armenia, which has seen limited progress. The investigation into the applicant’s case was reopened in 2022, and some investigative steps have been taken, but no details have been made available to the applicant and no significant progress has been made in identifying perpetrators or delivering justice. Meanwhile, the draft Equality Law sent to parliament, which the Government action plan refers to, fails to address key gaps, such as the lack of explicit protections on grounds of sexual orientation and gender identity, absence of legal standing for civil society to bring forward claims of public interest, and insufficient powers for the Equality Body. Hate crimes investigations remain deeply flawed, with bias often overlooked, long delays, and inadequate responses to public calls against discrimination and violence. Additionally, essential hate crime training programs like PAHCT and TAHCLE have been discontinued. However, positive developments were also acknowledged: there has been increased cooperation between Pink Armenia and government representatives, alongside awareness-raising initiatives for law enforcement, but significant reforms are still required. 

 

Recommendations for the implementation of the Oganezova v. Armenia case 

Pink Armenia kindly asks the Committee of Ministers (CM) to call on the Armenian authorities to implement the following measures:

Individual measures: 

  • Conduct an effective investigation based on new and newly revealed facts considering the biased motivation of the perpetrators and urgently make the information on the progress and content of the investigation accessible to the victim and her representatives;

  • Requalify the act of the perpetrators considering the biased motivation. 

General measures: 

  • Adopt a comprehensive Law on Equality explicitly providing sexual orientation and gender identity as protected grounds and defining a procedure for the formation and operation of an independent equality body; 

  • Amend Article 71 of the Criminal Code providing aggravating circumstances for a crime and liability and Article 330, providing criminal liability for public calls to violence and justification of a violent action, so that both provisions expressly include sexual orientation and gender identity as protected grounds; 

  • Develop and implement a system of recording hate crimes and identifying the nature of the bias motive as well as analyse the data and provide statistics to the general public; 

  • Include the modules of hate crime provided by the OSCE ODIHR according to the projects TAHLCE and PAHCT and the Council of Europe module on hate speech in the educational programs and training agendas for police, investigators and prosecutors; 

  • Conduct awareness raising activities and campaigns targeting both the general public and specific groups, such as private sector organizations, educational institutions and healthcare institutions, in cooperation with civil society originations to increase general understanding of the nature and dangerous consequences of hate crimes, hate speech and discrimination, including about LGBT+ people as one of the main targets of such crimes. 

Relevant Documents: 

 

The Yordanova and Others v. Bulgaria group of cases concern violations of the right to respect for home and private and family life due to eviction or demolition orders issued under a legal framework lacking a proportionality assessment (violations of Article 8). The ECtHR indicated the need for legislative changes to ensure proportionality in eviction orders, even in cases of unlawful occupation. It also suggested individual measures such as repealing or suspending the eviction order. 

The Paketova and Others v. Bulgaria group of cases concerns the impossibility for the applicants, Bulgarian nationals of Roma ethnic origin, to enjoy their private and family life and their home peacefully, owing to the failure of the authorities to provide them with the requisite protection in connection with demonstrations by the local population against Roma inhabitants. The result was a situation in which all the applicants were driven away from their homes, without any legal consequences (violation of Article 8 of the Convention in conjunction with Article 14). 

The Bulgarian Helsinki Committee (BHC) presented a comprehensive overview of the Yordanova and Others and Paketova and Others cases, highlighting failures by Bulgarian authorities to address systemic discrimination against Roma communities. In the Yordanova case, despite the ECtHR’s call for legislative amendments to ensure proportionality and fairness in eviction procedures, no significant progress has been made. Promised legislative changes since 2019 remain unintroduced, and Roma families continue to face exclusion due to inadequate legal protections and barriers like scarcity of municipal housing and lack of ID cards.

BHC has documented at least 14 other mass evictions of Roma neighbourhoods, as well as two examples' of recent demolitions of homes of Roma people upheld by courts. Bulgarian courts review the proportionality only if the addressees of demolition orders are legally compliant thus excluding illegal constructions. 

In the Paketova case, the forced displacement of Roma individuals after public and political pressure illustrates the continued vulnerability of Roma communities to discriminatory practices. Authorities failed to provide the displaced with necessary protections or shelter, and the abandoned neighbourhood remains a symbol of ethnic cleansing. Similar incidents have occurred in small villages. 

The BHC has persistently called for justice and structural reforms, including for prosecuting public officials involved and compensating victims. However, government responses, including in their latest November 2024 reply, dismiss these concerns, accusing the BHC of misrepresentation and failing to acknowledge the gravity of the violations. BHC presented photographs showing that the neighbourhood is uninhabitable today. 

Recommendation for the implementation of the Yordanova and Others v. Bulgaria group of cases 

The Bulgarian Helsinki Committee (BHC) kindly asks the Committee of Ministers to examine the implementation of the groups of cases while taking into account the new examples of demolitions and evictions from only homes of Roma people, and to call on the Bulgarian authorities to implement the following general measures: 

  • Pursue legislative amendments, which would allow for a thorough and genuine proportionality review of the orders and assessing the individual situation of the people affected. This review should allow the courts to discontinue the eviction procedure in specific circumstances; 

  • Ensure that the legal amendments also envisage а review of the aim of recovering the land; 

  • Ensure that the amendments also allow for legalisation /preservation of property in the specific circumstances of only homes; 

  • Discontinue of all efforts to persuade that the existing jurisprudence carries out proportionality assessment in line with the recommendations given by the Court; 

  • Take measures to ensure municipal housing and other forms of alternative accommodation are accessible for people in similar situation; 

  • Follow-up on the implementation of legal amendments regarding personal documents of people without permanent address; 

  • In cases of crimes against Roma (Paketova and Others)– ensure re-examination of the criminal proceedings (individual measures); 

  • Amend the Criminal Code including provisions to address the forcible transfer of population, especially based on ethnic grounds. 

Relevant Documents: 

CIA rendition cases: Al-Nashiri v. Poland and Abu Zubaydah v. Lithuania groups of cases 

The Abu Zubaydah v. Lithuania group of cases concerns the violations of a number of Convention substantive and procedural rights of the applicants who have been victims of “extraordinary rendition” operation. In Abu Zubaydah v. Lithuania, the ECtHR established that Lithuania had hosted a CIA detention facility where he was secretly detained, after which he was transferred to other CIA facilities in Afghanistan and in Cuba. In particular, the applicant’s right to liberty and security, to private and family life and to not be subjected to torture or any inhuman or degrading treatment were violated notably due to the unlawfulness, secrecy and the poor conditions of his detention, and the failure of the authorities to carry out and provide effective investigations and remedies.

In Al-Hawsawi v. Lithuania, the Court found that Lithuania violated the rights of the applicant, a national of Saudi Arabia who is currently on trial before a US military commission in Guantánamo Bay on suspicion of being a facilitator and financial manager of al-Qaeda, who was held in a US secret detention facility in its territory, for its complicity in his unlawful rendition, detention, and torture. The Court ordered Lithuania to conduct an effective investigation and to pay him compensation. 

Similar to the Abu Zubaydah group, the Al-Nashiri v. Poland group of cases concerns the violation of a number of Convention rights arising from the fact that the applicants were victims of a secret “rendition” operation, involving their transfer between various CIA detention facilities, including one located in Afghanistan. The European Court found it established beyond reasonable doubt that the applicants arrived in Poland on board of a CIA rendition aircraft on 5 December 2002 and were detained in a CIA detention facility in Stare Kiejkuty. They were subsequently transferred out of Poland, respectively in June and September 2003, to other CIA detention facilities and eventually to the United States (US) Internment Facility at the Guantánamo Bay Naval Base in Cuba. 

The presentation of REDRESS highlighted significant failures in implementing the two groups of cases. Compensation remains the only reparation provided, with no effective investigations, public acknowledgment of responsibility, or systemic reforms on safeguards regarding oversight of intelligence and counterintelligence agencies. In both groups, attempts to secure diplomatic assurances from the U.S. have not resulted in guarantees or assurances being provided, and Lithuania’s refusal to grant victim status to Al-Hawsawi further obstructs accountability. Political interference, such as the U.S. revoking a plea deal that removed Al-Hawsawi’s death penalty risk, underscores the challenges. 

REDRESS called on the Committee of Ministers to tackle impunity decisively, focusing on decisive measures in order to reflect the gravity of the violations and the long-standing failures to achieve accountability of those in Europe responsible for facilitating CIA torture and rendition. REDRESS also calls for the adoption of creative measures to protect the rule of law, emphasising the changing U.S. and European administrations as opportunities to inject new momentum into implementation efforts. 

 

Recommendation for the implementation of the CIA rendition cases 

REDRESS kindly asked the Committee of Ministers to call on the Lithuanian and Polish authorities to implement the following individual and general measures in relation to all cases within these two groups: 

  • Complete criminal investigations related to the cases within a reasonable time frame; 

  • Develop comprehensive State investigation plans that go beyond reliance on legal assistance requests to the United States of America or other States; 

  • Allow independent legal representation of victims in investigations by granting victim status where appropriate; 

  • Provide victims with regular updates and access to information regarding the progress and outcomes of investigations; 

  • Ensure transparency in the investigation process, allowing for the necessary level of public scrutiny to build trust and accountability; 

  • Proactively engage with the office of the Permanent Observer of the USA to the Council of Europe, inviting them to attend every CM/DH meeting when the case is orally debated; 

  • Seek assurances from the US to: 

    • End arbitrary detention and immediately address the legal status of detainees; 

    • Ensure compliance with minimum international detention standards while detention continues; 

    • Guarantee consistent access to appropriate medical care for detainees. 

 

Concerning the Abu Zubaydah group v. Lithuania and Abu Zubaydah v. Poland, REDRESS: 

  • Requested that Polish and Lithuanian authorities take into account the critical timing to press for the applicant’s release and end flagrant denial of justice now before political transition in the US; 

  • Call on the Polish and Lithuanian authorities to offer relocation, emphasizing that such offers could be pivotal in ensuring compliance with ECtHR judgments; 

  • Emphasised that the Committee of Ministers (CM) and the Secretary General of the Council of Europe (CoE) have a crucial role in pressing for release and relocation as effective measures to implement the judgments; 

  • Request respondent States to facilitate direct engagement with the applicant’s legal representatives. 

Concerning the Al-Hawsawi v. Lithuania and Al-Nashiri group v. Poland, REDRESS recommended that the respondent States engage directly with the United States of America to seek assurances to: 

  • Exclude any torture-tainted evidence in ongoing Military Commission proceedings; 

  • Prevent the imposition of the death penalty. 

Finally, regarding the specificities of the Al-Nashiri group v. Poland, REDRESS kindly asked the Committee of Ministers to call on the Polish authorities to ensure that Poland introduces genuine and effective democratic oversight over secret intelligence services.

Relevant Documents: