Poland, Ukraine, Greece and Albania at the heart of EIN civil society briefing

The European Implementation Network (EIN) convened a quarterly civil society briefing to Permanent Representations of the Council of Europe on 10 September 2018.

This briefing, which was the third in 2018, focused on analyses by civil society representatives to support the implementation of cases of the European Court of Human Rights (ECtHR) scheduled for review from 18-20 September 2018 at the 1324th Human Rights Meeting of the Committee of Ministers’ Deputies. The Committee is responsible for supervising the judgment execution process.

Representatives of 24 Permanent Representations to the Council of Europe attended the briefing at the Palais de l’Europe.

The following ECtHR judgments were presented and discussed: P. and S. v Poland, Gongadze v Ukraine, Nisiotis Group v Greece and Manushaqe Puto and Others and Driza Group v Albania.

NGO representatives Katarzyna Wisniewska, Olena Protsenko, Simon Palmer (chair), Prof. Konstantinos Tsitselikis and Ina Xhepa. Photo: EIN

A summary of points in the form of main recommendations made by each of the presenters in support of the implementation of the respective cases can be found here.

P. and S. v Poland (Application No 57375/08)

The 2012 judgment in the case of P. and S. v. Poland (application no. 57375/08) is one of three important decisions of the European Court of Human Rights (ECtHR) concerning access to legal abortion in Poland. In all three cases, the ECtHR ruled that the rights of the applicants were violated because of the practical difficulties they experienced in exercising their right to legal abortion. To fully implement these judgments, the Court stated that the national authorities must take steps to guarantee not only theoretical but also practical access to abortion under the conditions provided by law. On 21 September 2017, the Committee of Ministers issued a decision asking the Polish government to present information on the guarantees of effective access to legal procedures for pregnancy termination.

In June 2018, the Polish Government sent a report indicating that, in its opinion, the current regulations ensured effective access both to abortion and to information on the possibility of underdoing such a procedure.

Referring to this Report, Ms Katarzyna Wisniewska, Coordinator of the Strategic Litigation Programme at the Helsinki Foundation for Human Rights (Poland), highlighted that the Polish government did not fully and thoroughly address the matters invoked by the Committee of Ministers in its September 2017 decision. First of all, the procedure of imposing financial penalties on medical facilities for non-performance of the contract with the National Health Fund is not an effective measure to protect women applying for abortion, commented Ms Wisniewska. Second, the date on the complaints filed with the Commissioner for Patients' Rights and the National Health Fund concerning refusals to perform an abortion was not included in the Government’s report.

In terms of recommendations to support implementation of the judgment, Ms Wisniewska therefore noted the need for detailed data on such complaints and the way they were tackled. She also called for detailed information on disciplinary measures against doctors related to the refusal to perform abortion and how they were conducted. Moreover, she expressed her concern that analytical works would be ongoing at the Ministry of Health to amend the provisions concerning the objection to an opinion or decision of the doctor, and insisted on the need to introduce mechanisms to ensure that the right to abortion is not nullified by doctors’ invocation of the conscience clause.

The memo by Ms Wisnieska identifying the main recommendations on the case can be found here. The recent submission of the Helsinki Foundation for Human Rights on the case (August 2018) is available here. The latest communication the Polish authorities submitted on 22 June 2018 can be found here.

Gongadze v Ukraine (Application No 34056/02

From left to right: Olena Protsenko (Ukrainian Helsinki Human Rights Union), speaking about the Gongadze case, and Katarzyna Wisniewska (Helsinki Foundation for Human Rights). Photo: EIN

This case concerns the killing of Georgyi Gongadze, a journalist, in 2000, and lack of effective investigation.

In her briefing, Ms Olena Protsenko, Lawyer at the Centre for Strategic Litigation of the Ukrainian Helsinki Human Rights Union, stated that, with regard to general measures, positive achievements had been reached through the introduction of four new corpus delicti into the Criminal Code of Ukraine. She underlined though that this legislation would only concern – and thus protect – journalists belonging to a certain mass media or a journalist association, and therefore not bloggers or non-professional reporters. In addition, the Ukrainian legislation only applies in cases where criminal proceedings are already open, and does not operate on a rapid response basis to ensure active protection of journalists. With regard to investigation, Ms Protsenko highlighted the lack of effective investigations, and the victims’ inability to access the criminal files during the pre-trial investigation.

Ms Protsenko put forth several recommendations to support implementation of this case, starting first and foremost with the need to adopt a broad notion of media which encompasses all media actors, and to create emergency protection remedies for journalists at risk and their families. She also called for the creation of special investigative units with specialised expertise and methods of investigation for police officers investigating crimes against journalists.

The memo from Ms Protsenko can be found here. The very recent Rule 9.2 submission from the Ukrainian Helsinki Human Rights Union on this case can be found here. The June 2018 Action Plan from the national authorities is here.

Nisiotis Group v Greece (Application No 34704/08)

The Nisiotis Group v Greece concerns the inhuman and/or degrading treatment of the applicants arising from poor conditions of detention in overcrowded prisons in Greece (violation of Art. 3)., notably in Ioannina, Korydallos, Diavata/ Thessaloniki, Alikarnassos, Patra, Larissa, Corfu, Korydallos prison Hospital, Hios, Komotini, Nafplio and Korinthos in relation to more than 1,200 applicants.

Professor Konstantinos Tsitselikis, University of Macedonia-Thessaloniki, Hellenic League for Human Rights, reporting about the state of execution in the Nisiotis group v Greece. Photo: EIN

“The Greek prison system suffers for long from structural deficiencies. Overcrowding is the most important of them”, said Professor Konstantinos Tsitselikis from the University of Macedonia-Thessaloniki, and Member of the Hellenic League for Human Rights, at the start of his presentation.

The governments of the past years sought to build new prisons or to reduce the number of the inmates. Indeed new prisons have been opened (such as in Nigrita, Agia, or Domokos, but partially remain non-operational) and laws passed for early release and favourable arrangements for inmates in cases where smaller sentences are imposed. This helped to drop the total number of inmates by 20% since 2015, but it is still more than ten thousand, a critical threshold affecting the whole prison system in Greece.

With regard to living conditions and health care services, the situation has improved compared to the pre-2015 situation, but not to the point of removing structural problems. Serious infrastructure and staffing problems have not been sufficiently dealt with. The current staffing numbers are inadequate to care for the enormous numbers of inpatients and outpatients (hundreds of inmates are registered as in- and outpatients each month). Although the law provides for the integration of Korydallos Psychiatric Hospital for Inmates and the Prison Hospital, as well as the special treatment facilities for drug-addicted prisoners to the (Public) National Health System (NHS) of the Ministry of Health, in practice prison medical services still belong to the prison administration structure. After long waiting time, a presidential decree for the incorporation of the Korydallos hospital in NHS has been drafted by the Minister of Justice in March 2018, but it is not in force.

The Government’s latest action report to the CM shows that deficiencies are at least acknowledged. However, the “Strategic plan for the prison system 2018-2020” that the government has elaborated, and which entered into force in January 2018, still has not been implemented. In his recommendations, Prof. Tsitselikis therefore asks for full enforcement of the “Strategic plan” of the Government through a specific timetable. Going forward, he also called for the incorporation of the Korydallos hospitals to the NHS and guarantee for proper medical care to all prisoners. He concluded by highlighting the need for allocation of funds for prisons, to upgrade prison premises and staff.

The memo of Professor Tsitselikis can be found here. The September 2018 Rule 9.2 communication from the Hellenic League for Human Rights on this case is here. The July 2018 communication from the Greek authorities concerning this group of cases can be found here.

Manushaqe Puto and Others Group and Driza Group v Albania (Applications No 604/07 and 33771/02)

These cases relate to the non-enforcement of final domestic court and administrative decisions relating to the applicants’ rights to restitution or compensation for property nationalised under the communist regime. In its pilot judgment, the ECtHR ordered the Albanian Government to set up an efficient compensation scheme. In order to do this, the Court found that the authorities needed to provide a list of final judicial and administrative decisions which recognized, restituted and/or compensated former-owners for property, the financial bill stemming from this list, an updated Land Value Map, the adoption of an Action Plan for the enforcement of this Court pilot judgment, and finally the establishment of an effective mechanism for the execution of the aforementioned decisions.

Even though some progress has been made since the delivery of the first Action Plan four years ago, Ms Ina Xhepa, Director of the European Centre (Albania), underlined that further steps were needed.

Ina Xhepa, Director of the European Centre, Albania. Photo: EIN

First, the Property Management Agency (PMA) established by the law should further proceed with the examination of unaddressed claims and applications awaiting a final decision. This process started to be fully operative in December 2017, with a delay of almost two years after the law no. 133/2015 entered into force, due to justified problems such as human resources and pleadings before the Constitutional Court. Ms Xhepa reminded that, whilst up to now about 28% of all pending claims have been addressed, the deadline to finalize the entire evaluation process was February 2019.

Secondly, the amendments made in 20.12.2017 to the by-law which provides the rules and procedures for the evaluation and compensation process entails a real complex process. In addition, the frequent amendments made to the by-laws by the Government, entails a lack of legal certainty toward the owners.

Eventually, the current juridical reform in Albania impacts the whole system, as the Constitutional Court cannot deliberate on any claim presented before it.

In her recommendations, Ms Xhepa therefore called on to the State Authorities to complete the implementation of the Action Plan within the time limits set forth and to accelerate the process of execution of the final decisions which were not appealed at any instance or court.

Ms Xhepa’s memo is available here. The Action Report communicated by the Albanian authorities in August 2018 is here.

EIN conducts second NGO briefing in 2018 on human rights judgments

The European Implementation Network (EIN) convened a quarterly civil society briefing to Permanent Representations to the Council of Europe on 28 May 2018. This briefing was first established by the Open Society Justice Initiative in 2014 and subsequently co-convened with EIN from 2015 to 2017. The event is now fully conducted by the Network as of the beginning of 2018.

The latest briefing was the second in 2018. It focused on providing analyses by civil society representatives to support the implementation of cases of the European Court of Human Rights (ECtHR) that were scheduled for review from 5 to 7 June at the 1318th Human Rights Meeting of the Committee of Ministers’ Deputies. The Committee is responsible for supervising the judgment execution process.

The event at the Palais de l’Europe was attended by over 30 participants, including representatives of 22 Permanent Representations to the Council of Europe and a representative of the Council of Europe’s Commissioner for Human Rights.

Representatives of Permanent Representations attending the briefing. Photo: EIN

The following ECtHR judgments were presented and discussed: Balsan v Romania, Laszlo Magyar Group v Hungary, Identoba and others group v Georgia, and Yuriy Nikolayevich Ivanov + Zhovner group, Burmych and others v Ukraine. The first two of these four cases were under first examination by the Committee of Ministers’ Deputies.

A summary of points in the form of 3-5 recommendations made by each of the presenters in support of the implementation of the respective cases can be found here .

Balsan v Romania (Application No 49645/09)

This case concerns the failure by the national authorities to adequately protect the applicant from domestic violence inflicted by her spouse in 2007 and 2008. The Court ruled that:

"… the violence suffered by the applicant can be regarded as gender-based violence, which is a form of discrimination against women. Despite the adoption of the Government of a law and a national strategy on preventing and combating violence, the overall unresponsiveness of the judicial system and the impunity enjoyed by the aggressors, indicated that there was an insufficient commitment to take appropriate action to address domestic violence."

The ECtHR found a violation of Article 3 and of Article 14 in conjunction with Article 3.

Ms Georghe presenting on the Balsan case. Photo: EIN

Ms Ecaterina-Georgiana Gheorghe, Legal Officer, Association for the Defence of Human Rights in Romania – the Helsinki Committee, underlined in her presentation how the ECtHR also noted its concern with the fact that the national authorities had considered the domestic violence to have been provoked and that the violence was not severe enough to fall within the scope of the criminal law. In terms of recommendations to support implementation of the judgment, Ms Gheorghe noted the need for the Romanian police to adopt new working procedures concerning restraining orders to immediately and effectively protect victims and restrain attackers. Furthermore, there are too few shelters nationwide and in fact in eight counties in Romania there are no shelters at all.

The memo by Ms Gheorghe identifying the main domestic violence problems and recommendations on the case can be found here. The latest action plan of the Romanian authorities submitted on 16 April 2018 can be found here.

Laszlo Magyar Group v Hungary (Application No 73593/10)

This group concerns the execution of the judgment reached by the ECtHR in the case of Laszlo Magyar v Hungary, establishing that life imprisonment without the possibility of parole (whole/actual life sentence) imposed upon the applicant violated Article 3 of the Convention; and the judgment in the T.P. and A.T. v Hungary case, establishing that, irrespective of the new “mandatory pardon procedure” introduced for whole lifers, Hungarian rules on life imprisonment without parole still violate Article 3. In the case of Laszlo Magyar, the Court also found violation of the right to a fair trial (Article 6) because of the excessive length of the criminal proceedings against the applicant, which lasted from 2002 to 2010.

In her briefing, Ms Nora Novoszadek, Senior Legal Officer, Hungarian Helsinki Committee, stated that the national authorities had not yet taken any general measures to execute the judgments in this group of cases. She also noted that the pending constitutional complaint procedures initiated by Laszlo Magyar and an applicant in a pending case before the ECtHR, which the national authorities stated need to be awaited before any general measures can be undertaken, had no relevance in terms of the execution of the judgments in the Laszlo Magyar v Hungary case.

Ms Novoszadek. Photo: EIN

Ms Novoszadek put forth several recommendations to support implementation of this group of cases, starting first and foremost with the need to abolish the institution of life imprisonment without the possibility of parole. It would be necessary to ensure that a review complying with the ECtHR standards takes place no later than 25 years after the imposition of every life sentence, with further periodic reviews after that.

The memo from Ms Novoszadek can be found here . The 2016 Rule 9.2 submission from the Hungarian Helsinki Committee can be found here. The 2018 Action Plan from the national authorities is here.

Identoba and Others Group v Georgia (Application No 73235/12)

The case of Identoba and others v Georgia concerns the failure of the national authorities to provide adequate protection against inhuman and degrading treatment inflicted by private individuals on LGBT activists during a peaceful demonstration in May 2012 (violations of Article 3 in conjunction with Article 14). There was also a failure to conduct any effective investigation into these events (violations of Article 3 in conjunction with Article 14). In addition, the Court held that the authorities breached their obligation to ensure that the march could take place peacefully by failing to contain violent counter-demonstrators (violation of Article 11 in conjunction with Article 14).

Ms Jalagania (on the right-hand side) together with EIN Director Kevin Steeves and the other presenters. Photo: EIN

Ms Lika Jalagania, Project Coordinator, Human Rights Education and Monitoring Centre, noted in her presentation the fact that anti-discrimination legislation was adopted in 2014. Additionally, the Government put forth a Human Rights Strategy for 2014-2020 along with a series of specific annual Action Plans. However, implementation is lacking due to shortcomings in the law. The recommendations of the Public Defender’s Office (which acts as an enforcement mechanism under the law) are not legally binding. Furthermore, private entities are not obliged to provide any information in the case examination process. As of today, Parliament has not adopted relevant changes in the law to the extent that the effective institutional and procedural guarantees of the equality mechanisms are still lacking.

Going forward, Ms Jalagania noted the need for the national authorities to implement the proposals made by the Public Defender of Georgia and the European Commission against Racism and Intolerance to strengthen the enforcement mechanisms of the Law on the Elimination of All Forms of Discrimination. An enhanced commitment by the national authorities was also required to improve the monitoring and prosecution of hate crimes and incidents and discrimination cases, including by setting up a unified data collection system and an effective investigations model.

The memo of Ms Jalagania can be found here. You can also find the communication from the Public Defender of Georgia from April 2018 here. The Rule 9.2 communication of May 2018 from the Human Rights Education and Monitoring Centre, the Women’s Initiatives Support Group and ILGA-Europe is here.

Yuriy Nikolayevich Ivanov + Zhovner Group, Burmych and Others v Ukraine (Applications No 40450/04, 56848/00, 46852/13)

These cases relate to the chronic problem of non-enforcement or delayed enforcement of domestic judicial decisions in Ukraine, especially against the State and State-owned or -controlled entities, together with the lack of an effective remedy in respect to these cases (violations of Article 6, 13 and Article 1 of Protocol 1).

Most notable, in October 2017, the Grand Chamber delivered its judgement in the Burmych case, effectively transmitting over 12,000 pending and future similar cases to the Committee of Ministers to be dealt with in the context of the general measures that would be required going forward to execute the Ivanov pilot judgment. This includes providing redress for all the domestic judicial decisions that remain non-enforced or delayed as well as payment of the debt stemming from the judgment.

Mr Shcherbatyuk. Photo: EIN

Mr Maksym Shscherbatyuk, Programme Director, Ukrainian Helsinki Human Rights Union, focused his presentation on the root causes of the problem of non-enforcement or delayed enforcement of domestic judicial decisions in Ukraine. These include the excessive use of moratoriums, the scale and scope of the State’s social benefit responsibilities and obligations, the public’s lack of trust in the judiciary, and others. He also noted that the national authorities have allocated 1 billion UAH to cover the debt even though it appears that at least 31 billion UAH may be needed. Mr Shscherbatyuk recommended the abolishment or limitation of moratoriums that make it impossible to enforce court decisions against the State and State-owned and -controlled companies in various sectors; and the establishment of a special mechanism to help align the amount of the State’s obligatory social obligations with the State budget.

Mr Shscherbatyuk’s memo is here; the 2017 Rule 9.2 submission by the Ukrainian Helsinki Human Rights Union and answer from the authorities can be found here; and the 2018 Action Plan from the Ukrainian authorities is here.

Conditions of detention at the heart of the latest EIN briefing

Chair Andrew Drzemczewski and the NGO representatives. Photo: EIN

On 5 March 2018, the European Implementation Network (EIN) convened a quarterly civil society briefing on cases of the European Court of Human Rights (ECtHR) scheduled for review at the 1310th Human Rights Meeting of the Committee of Ministers’ (CM) Deputies on 13-14 March.

This event was the first of four briefings that will be organised by EIN in 2018. The next briefings are expected to be held in May, September and November - each one approximately two weeks before the respective Human Rights Meetings of the Committee of Ministers’ Deputies.

The meeting took place at the Palais de l’Europe and was attended by representatives of over 20 delegations, including the EU delegation to the Council of Europe. 

The following cases were discussed: Zorica Jovanovic v Serbia, Bragadireanu v Romania, Ciorap v the Republic of Moldova, and Kehayov v Bulgaria. Whilst the first case deals with failure to provide information as to the fate of new-born babies alleged to have died in maternity wards, the three other cases concern poor conditions of detention.

A summary of points in the form of 3-5 recommendations made by all presenters on their respective cases can be found here. Further information on the discussions held at the briefing is provided below.

Zorica Jovanovic v Serbia (Application No 21794/08)

This case concerns failure to provide information as to the fate of new-born babies alleged to have died in maternity wards. In its judgment, the ECtHR held that there had been a violation of Article 8 of the Convention – respect for family life. The Court also ordered remedial measures. Given the significant number of potential applicants, Serbian authorities had to take appropriate measures to establish a mechanism to provide individual redress to all parents in a similar situation, within one year of the judgment becoming final, on 9 September 2013.

Ana Jankovic-Jovanovic, Lawyers' Committee for Human Rights, Belgrade. Photo: EIN

In her presentation, Ms Jankovic-Jovanovic, Legal Adviser at the Lawyers' Committee for Human Rights (Belgrade), pointed out that the Republic of Serbia had not yet enacted the special law, lex specialis, which should establish a mechanism capable of investigating the “missing babies” cases upon parents’ complaints (applications). She also underlined the weaknesses of the Draft Law proposed by State Authorities – and currently withdrawn from the parliamentary procedure – which would not allow for investigations of “missing babies” cases and underlined the need to establish a “proper investigative mechanism”. The memo from the Lawyers’ Committee for Human Rights can be found here. The submissions pursuant to Rule 9.2 of the Committee of Ministers’ Rules for the Supervision of the Execution of Judgments can be found here (2016) and here (2017). The 2017 revised Action Plan from Serbia on this case is available here. 

Bragadireanu v Romania group of cases (Application No 22088/04)

These cases concern inhuman and/or degrading treatment suffered by the applicants on account of overcrowding and poor material conditions in prisons and police detention facilities and the lack of an effective remedy in this regard; the inadequacy of the medical care provided to some of the applicants and several other dysfunctions regarding the protection of the prisoners' rights (violations of Article 3; and violation of Article 13 in the case of Marcu). On 25 January 2018, the Government of Romania communicated its “Timetable for the Implementation of measures 2018 – 2024 to resolve the issue of prison overcrowding and conditions of  detention with a view to executing the pilot-judgment Rezmiveș and others against Romania delivered by the ECtHR on 25 April 2017”.

Ms Gheorghe, Legal Officer at the Association for the Defence of Human Rights in Romania - the Helsinki Committee, underlined in her presentation that this document had not been debated or submitted to public consultations. In addition, she highlighted the fact that financial resources to build new accommodation places in prison were not detailed, with the exception of EEA grants. Her memo identifying key problems and recommendations on detention conditions in Romanian prisons and police lock-ups can be found here. The latest action plan of the Romanian authorities submitted in January 2018 can be found here. 

Ciorap v the Republic of Moldova (Application Nos 12066/02, 9190/03, 39806/05)

The Ciorap group of cases mainly concern poor conditions of detention in Prison No. 13 in Chisinau and the lack of effective domestic remedies in this respect. The ECtHR found the following main problems regarding conditions of detention in Prison No. 13: (extreme) overcrowding; unsanitary conditions / hygiene; insufficiency and low quantity of food.

On 11 January 2018, the Government of the Republic of Moldova submitted a revised Action Plan for the execution of these judgments. In respect of general measures, it mainly refers to a compensatory remedy that entered into force on 20 December 2017 (Law No 163 of 20 July 2017). The Government admitted that the overcrowding of Prison No. 13 still was a problem, as well as the “massive granting of prosecutors’ motions for pre‐trial detention”.

Nadejda Hriptievschi, Legal Resources Centre from Moldova. Photo: EIN

Nadejda Hriptievschi, Director of Programmes at the Legal Resources Centre from Moldova, focused in her presentation on material conditions of detention in Prison No. 13, as well as on the domestic remedy introduced for detention in poor conditions. She highlighted the possibility to overcome the problem of overcrowding through the application of non-custodial preventive measures, until the construction of a new prison is finished. She also called for training measures for relevant stakeholders to ensure that “the new remedy introduced to address the problem of detention in bad conditions (be) effectively applied in practice”.

The memo of Ms Hriptievschi can be found here. You can also find the Rule 9.2. communications from the Legal Resources Centre from Moldova on this case here (2016) and here (2018). 

Kehayov v Bulgaria (Application Nos 41035/98 36925/10)

This group of cases concerns inhuman and degrading treatment of the applicants in penitentiary facilities between 1996 and 2016, in particular owing to overcrowding, poor sanitary and material conditions, limited possibilities for out-of-cell activities, inadequate medical care and prolonged application of a restrictive penitentiary regime, in respect of accused or convicted persons, combined with the effects of inadequate material conditions (violations of Article 3). In certain cases, the Court also found that there was no preventive remedy and that there were various shortcomings in the functioning of the domestic compensatory remedy (violations of Article 13).

Ecaterina-Georgiana Gheorghe, Association for the Defence of Human Rights in Romania, the Helsinki-Committee, and Adela Katchaounova, Bulgarian Helsinki Committee. Photo: EIN

Ms Katchaounova, Legal Programme Director at the Bulgarian Helsinki Committee, underlined that, whilst one could witness some improvement of living conditions in some prisons and prison hostels, there was still need for renovation in prisons buildings. Similarly, conditions in investigative detention facilities remained problematic, she said. As far as the legal remedy is concerned, Ms Katchaounova underlined the progress made through the 2017 Act which amended Article 3 of the Execution of Punishments and Pre-Trial Detention Act, noting however that it was too early to estimate the effectiveness of these dedicated preventive and compensatory remedies. Ms Katchaounova’s memo and the most recent Rule 9.2. submission made by the Bulgarian Helsinki Committee on this group of cases can be found here. You can also consult the 2017 Action Plan of Bulgaria on this group of cases and its addendum.