EIN delivers first thematic training for NGOs on ECtHR judgment execution

Addressing challenges in implementing asylum & migration cases

On 11 and 12 October 2018, the European Implementation Network (EIN) organised its first thematic training seminar for non-governmental organisations (NGOs). The event, which took place at the European Youth Centre in Strasbourg, brought together 17 civil society representatives from across Europe to explore ways to advocate for the implementation of judgments of the European Court of Human Rights (ECtHR, ‘the (Strasbourg) Court’) in the field of asylum and migration.

Participants in the Training. Photo: EIN

NGOs in Council of Europe (CoE) member states possess a wealth of data and knowledge from the ground about domestic legislation, policies, administrative and judicial practices affecting the rights of asylum seekers, refugees, and migrants – information that is arguably crucial to be brought to the attention of the Committee of Ministers, the CoE’s decision-making body responsible for assessing whether a state has complied with its obligation to implement, or ‘execute’, the judgments handed down against it by the Strasbourg Court.

Especially (but not exclusively) where implementation is protracted or stalled, civil society can inject a degree of urgency into the judgment execution process, contribute to changing its direction, or prevent the CM from ending its supervision of the execution process prematurely. One powerful, but strikingly underutilised avenue for doing so is for NGOs and National Human Rights Institutions (NHRIs) to submit information to the CM in accordance with Rule 9.2 of the Rules of the Committee of Ministers. Yet, the total number of civil society submissions is very low, as stressed by EIN Co-Director George Stafford at a recent committee hearing at the Parliamentary Assembly of the CoE.

The thematic area of asylum and migration forms no exception in this regard. Important judgments remain unimplemented, and a number of cases have been pending before the CM for many years. The space for domestic advocacy for the rights of some of the most vulnerable members of our societies is shrinking in several states across Europe, with populism and anti-immigrant sentiment being on the rise. Still, NGOs have intervened in only a handful of asylum and migration related cases by submitting ‘Rule 9’s, notably because information about how the process works is not readily available.

EIN regards the lack of civil society engagement in the judgment execution process as among the key reasons for prevailing implementation challenges. Our training activities aim to enable NGOs to meaningfully engage with the judgment execution process, thus allowing for a balanced assessment on the status of implementation of many important ECtHR cases.

Thus, EIN’s thematic training seminar on making effective Rule 9 submissions to advance implementation of ECtHR judgments in the field of asylum and migration covered a number of topics over the course of one-and-a-half days.

The seminar was preceded by a thematic briefing on implementation challenges in the field of asylum and migration, organised jointly by EIN and the Open Society Justice Initiative as a side-event to the autumn part session of the Parliamentary Assembly of the Council of Europe (PACE).

The first session of the training itself was devoted to presentations by two representatives of the Council of Europe’s Department for the Execution of Judgments and by EIN Bureau members about the CM judgment execution process and the avenues for NGOs to engage with it. This was followed by selected participants sharing their experience of researching and drafting Rule 9.2 submissions in relevant cases against Italy, Greece and the Russian Federation. Building upon this foundation, an interactive group exercise on how to decide on the scope, and develop the content and recommendations in a Rule 9.2 submission regarding one of three cases currently pending before the CM concluded the first day of the training.

The second day broadened the focus beyond Rule 9 submissions, kicking off with a presentation on EIN’s Strasbourg-based advocacy. Together with representatives of the CoE’s European Programme for Human Rights Education for Legal Professionals (HELP) and the Office of the Commissioner for Human Rights, participants then explored ways to engage CoE entities other than the Committee of Ministers and the latter’s secretariat in their efforts to promote implementation of asylum and migration related ECtHR judgments. The ultimate session had participants brainstorm about tangible ways to move forward in their advocacy regarding specific cases, and about how to overcome prevailing obstacles to full and effective implementation.

EIN wishes to thank all participants and all speakers from the Council of Europe for their active contributions to this seminar. With participants having been selected on the basis of the anticipated impact for human rights of the work they are carrying out (or planning to carry out) to promote the implementation of specific ECtHR judgments in their country, EIN is looking forward to seeing training participants submit Rule 9s in the cases they are working on.

Your NGO is also considering preparing a Rule 9 communication? Consult EIN’s Handbook for NGOs on implementation of judgments of the European Court of Human Rights for helpful tips, and get in touch with us (director@einnetwork.org) if you are seeking further advice on how to research and draft your submission.

Photos: EIN

Courts matter! Improving migration policy through ECtHR judgments

On 10 October 2018, EIN held a thematic briefing as a side-event to the autumn part session of the Parliamentary Assembly of the Council of Europe (PACE). Unlike the civil society briefings regularly organised by EIN in advance of the Committee of Ministers quarterly Human Rights meetings, the aim of the thematic briefings is to put a spotlight on implementation challenges related to serious cases where specific provisions of the ECHR are breached. The October 2018 briefing, organised jointly with the Open Society Justice Initiative (OSJI), focused on implementation of judgments related to asylum and migration.

Recent PACE reports have documented alarming trends in the treatment of asylum seekers, refugees, and migrants across Europe. The European Court of Human Rights (ECtHR) has developed a rich body of case law in this field that could protect the rights of foreign nationals.  Yet, many of these judgments lack state enforcement or remain unimplemented. In the face of populism and rising anti-immigrant sentiment, a concerted effort is needed – involving, inter alia, governments, national parliaments, civil society, and Council of Europe entities – to ensure that asylum and migration policies are fully compliant with states’ obligations under the European Convention on Human Rights.

You can access the leaflet for the event here.

The speakers of the side-event. Photo: Council of Europe (CoE) communication department.

The side-event brought together a range of actors to discuss the state of execution of key migration and asylum-related ECtHR judgments, and the additional measures that European states must take to ensure the protection of the human rights of migrants, refugees, and asylum seekers.

Participants in the side-event. Photo: CoE Communication Department.

REDRESS Director Rupert Skilbeck. Photo: CoE Communication Department.

Rupert Skilbeck, Director of REDRESS, focused his presentation on the protection of refugees and migrants from violence by state agents, and challenges linked to the implementation of the Zontul v Greece case.

Sophie Scheytt, Head of Advocacy at Sea-Watch Germany. Photo: CoE Communication Department.

In her intervention, “From push-backs to pull-backs?”, Sophie Scheytt, Head of Advocacy at Sea-Watch Germany, addressed the Italian authorities’ support for Libyan pull-back operations in the Mediterranean.

Simon Cox, lawyer at the Open Society Justice Initiative, concluded the briefing to showcase how the Greek Government’s immigration policy impacts on forced labour of migrant farm workers.

Evangelos Venizelos. Photo: CoE communication department.

Tineke Strik. Photo: CoE communication department.

EIN would like to thank PACE members Evangelos Venizelos, Tineke Strik and Petra De Sutter, who kindly agreed to co-sponsor the event.

EIN gives evidence on civil society's role in the implementation of judgments

Participants in the hearing. Photo: EIN

On 9 October, EIN was invited to participate in a hearing of the Committee of Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE). This hearing focused on the implementation of judgments of the European Court of Human Rights and took place in the context of the report prepared by PACE member Evangelos Venizelos.

The hearing was the occasion for EIN Co-Director George Stafford to provide information about the difficulties faced by civil society when engaging with the monitoring process for the implementation of ECtHR judgments. Significant barriers to the involvement of civil society in this process are the lack of openness and transparency in the system: the supervision system is very closed, lacks easy-to-access information. In addition, it contains almost no official guidance, and can only be engaged with in two particular languages. These things mean that expertise and time is required to engage in it. These are things that NGOs are very short of.

EIN Treasurer and EIN Co-Director George Stafford at the hearing. Photo: EIN

EIN tries to support civil society organisations’ efforts to overcome these problems, mainly by providing information and training. It has also just published a handbook on the implementation process, which contains the key information about how organisations can participate in the supervision process.

At the end of his intervention, EIN Co-Director George Stafford called for comprehensive improvements under three broad headings - information, inclusion and training - to help NGOs and NHRIs engage in the process.

You can access the full text of the presentation of EIN Co-Director George Stafford here.

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.