A spotlight on ECtHR judgment implementation in Serbia

EIN highlights the benefits of domestic and Strasbourg advocacy at CoE event in Belgrade

What are the benefits of civil society advocacy to enhance the implementation of judgments of the European Court of Human Rights (ECtHR, the Court)? Where are the key challenges that need addressing, and what tools can be used to close the ‘implementation gap’?
These were some of the questions EIN Co-Director Anne-Katrin Speck had the pleasure of discussing with a group of civil society representatives at an event in Belgrade on the eve of Human Rights Day 2019, entitled ‘Protecting Human Rights Today: Promises, Challenges and Responsibilities’. The event, organised jointly by the Council of Europe and Human Rights House Belgrade, within the joint EU/Council of Europe Action on “Strengthening the effective legal remedies to human rights violations in Serbia”, shone a spotlight on how academics, activists and civil society organisations can help promote and protect human rights.

It cannot be stressed enough how important a role the judgments of the ECtHR can play in bringing about tangible human rights improvements on the ground – not just for the individuals who win a case in Strasbourg, but for wider segments of society, too. The case of Serbia illustrates this well.
Take the case of Zoran Lepojić, a politician from Babušnica. In the run-up to the 2002 elections, Mr Lepojić published an article in which he criticised the Mayor of Babušnica for having wasted ‘nearly insane’ amounts of public money on sponsorships and gala lunches. He was found guilty of defamation and ordered to pay fines, damages and costs equivalent to eight average monthly salaries. Mr Lepojić successfully brought a case to the Strasbourg Court, which found that the article had addressed issues of public interest and had been published in good faith. Because the heavy fines had been unreasonable in these circumstances, the Court held that Serbia had violated Mr Lepojićs right to freedom of expression. In the aftermath, the applicant’s conviction was deleted from his criminal record. The Supreme Court changed its case law to bring it in line with Strasbourg’s jurisprudence, by expanding the scope for criticism of public figures under Serbian law.

Yet, implementation does not always go smoothly. There are currently 13 ‘leading’ cases against Serbia awaiting implementation, i.e. cases requiring the adoption of ‘general measures’ to resolve the root causes of (often repeat) violations. Five of these are pending under the Committee of Ministers’ enhanced supervision procedure, in a cue as to the complexity of the underlying issues. The pending cases cover a range of subjects: from excessive length of proceedings (POPOVIC v. Serbia, JEVREMOVIC v. Serbia, SAMARDZIC AND AD PLASTIKA v. Serbia, MIKULJANAC, MALISIC AND SAFAR v. Serbia), to non-enforcement of domestic courts’ decisions (R. KACAPOR v. Serbia, KIN-STIB AND MAJKIC v. Serbia, RAFAILOVIC v. Serbia), to police ill-treatment (STANIMIROVIC v. Serbia).
For both the Strasbourg system and people in Serbia, every one of these unresolved human rights cases constitutes a problem. But for civil society, each of the 13 leading case also presents an opportunity to push for change, using the judgments as pressure tools in their advocacy for reforms. Civil society involvement is instrumental to make sure (a) the scope of reforms is adequate to ensure that the violations are not repeated, (b) the supervision of the implementation of judgments is not ended prematurely, and (c) reforms are set in motion and their effects properly monitored.

Civil society organisations have a range of tools at their disposal to achieve these goals: domestically, they can seek meetings with the Government Agent (who coordinates implementation at the domestic level) and other authorities, offering to contribute to the drafting and implementing of the Government’s Action Plans. They can ensure media coverage of non-implemented cases to raise public awareness of the matter. They can lobby to get an open hearing in parliament. They can get involved in designing and delivering training for judicial and law enforcement personnel. And the list goes on. At the Strasbourg level, civil society submissions to the Committee of Ministers are a powerful means to counterbalance misleadingly positive Government accounts of the state of implementation. Everything you need to know about researching, drafting and submitting a ‘Rule 9’ is explained in detail in EIN’s Handbook on Rule 9 submissions, which has been translated into Serbian by the Council of Europe (and will be available soon on EIN’s website).

What is encouraging is that progress really does seem possible. Serbia is not a ‘bad implementer’ of ECtHR judgments. Of the leading cases handed down by the Strasbourg Court in the last ten years, only 19 percent remain pending, making Serbia a ‘model student’ in the region. But there is no room for complacency! Several of the leading judgments currently pending before the Committee of Ministers date back more than ten years, and renewed efforts are needed to tackle the important outstanding human rights issues. Concerted efforts by various conscientious domestic actors offer the best prospect for success in this endeavor, as we have stressed elsewhere. EIN is here to help civil society actors work more effectively towards the full implementation of ECtHR judgments – in Serbia and across Europe. Get in touch if you want to partner with us; we are happy to support you in your advocacy!

Turkey, Azerbaijan, Greece and North Macedonia at the heart of EIN civil society briefing

 On 22nd November 2019, EIN held its quarterly civil society briefing, ahead of the 1362nd CM-DH meeting. Over 40 participants attended the briefing, including participants from 29 Permanent Representations to the Council of Europe, the EU representation to the Council of Europe, the office of the Commissioner for Human Rights and other CoE staff members.

Presentations were given on the following cases:

·        CUMHURİYETÇİ EĞİTİM VE KÜLTÜR MERKEZİ VAKFI GROUP, ZENGIN HASAN AND EYLEM GROUP v TURKEY (32093/10, 62649/10, 1448/04),

·        RASUL JAFAROV V AZERBAIJAN and ALIYEV V AZERBAIJAN (Applications No 69981/14 and No 68762/14), parts of ILGAR MAMMADOV GROUP V AZERBAIJAN (Application No 15172/13)

·        SAKIR GROUP v GREECE (48475/09), about ineffective investigations into alleged hate crimes, and HOUSE of MACEDONIAN CIVILIZATION AND OTHERS v GREECE (1295/10),

·        EL-MASRI v NORTH MACEDONIA (39630/09).

The main recommendations on the cases are available here.

CUMHURİYETÇİ EĞİTİM VE KÜLTÜR MERKEZİ VAKFI GROUP, ZENGIN HASAN AND EYLEM GROUP v TURKEY (32093/10, 62649/10, 1448/04),

By Dr Mine Yildirim, Head of Freedom of Belief Initiative, Norwegian Helsinki Committee

These cases concern structural and administrative problems leading to various differences in treatment between followers of the Alevi faith and adherents to the majority branch of Islam in Turkey. The case was presented by Dr Mine Yildirim, Head of Freedom of Belief Initiative, Norwegian Helsinki Committee. Her presentation was based on the Rule 9.2 submission by the Norwegian Helsinki Committee of March and November 2019.  

Links:

Action Plan by the Turkish authorities of October 2019

Rule 9.2 submission by NHC May and November 2019

Power point by Mine Yildirim, 22/11/2019

RASUL JAFAROV V AZERBAIJAN and ALIYEV V AZERBAIJAN (Applications No 69981/14 and No 68762/14), parts of ILGAR MAMMADOV GROUP V AZERBAIJAN (Application No 15172/13), 

By Ramute Remezaite, Legal Consultant, European Human Rights Advocacy Centre, School of Law, Middlesex University

In her presentation, Ramute Remezaite presented the current situation of human rights defenders Rasul Jafarov and Intigam Aliyev. She formulated recommendations as to invididual and general measures necessary to ensure the implementation of the cases. As for the general measures, she stressed the need for a favourable legal and political environment to be created, so as to enable human rights defenders to effectively and freely exercise a right to freedom of association and to operate without any hindrance. To that end, laws and practices relating to the status and registration of NGOs and NGO grants should be reformed.

Links:

Rule 9.1 submission by the applicant, September 2019 (Rasul Jafarov)

Rule 9.1 submission by the applicant, November 2019 (Intigam Aliyev)

Power point presentation and memo by Ramute Remezaite, 22/11/2019

SAKIR GROUP v GREECE (48475/09), and HOUSE of MACEDONIAN CIVILIZATION AND OTHERS v GREECE (1295/10),

by Panayote Dimitras, Greek Helsinki Monitor and EIN Board member

The first case concerns ineffective investigations into alleged hate crimes. Mr Dimitras called upon the CM to ask Greece to amend its anti-racism Law 927/79, so as to implement the recommendations of ECRI, UN HRCttee and UN CERD to criminalize racist insults and defamation, as well as the public dissemination, public distribution, production or storage of racist material.

The House of Macedonian Civilization case is about the non-registration by courts of an association, contrary to the Court’s 1998 judgment concerning the same association. On behalf of the House of Macedonian Civilization, Mr Dimitras urged the Committee of Ministers to join the House of Macedonian Civilization and the Bekir-Ousta group of cases.

Links:

Briefing text on the Sakir group, by Panayote Dimitras, Greek Helsinki Monitor (GHM)

Rule 9.1. and 9.2. on the Sakir group, by the Greek Helsinki Monitor (October 2019)

Briefing text on the House of Macedonian Civilization and others, by Panayote Dimitras

Rule 9.1 on the House of Macedonian Civilization and others, by the Greek Helsinki Monitor (October 2019)

EL-MASRI v NORTH MACEDONIA (39630/09),

by Ms Amrit Singh, Open Society Justice Initiative

The case concerns violations related to a ‘secret rendition’ operation by the CIA. On behalf of the Justice Initiative, Ms Singh appealed on to the CM to continue to keep this case under enhanced supervision and to call upon the North Macedonian authorities to conduct an effective investigation capable of leading to the identification and punishment of individuals responsible for violating Mr. El-Masri’s rights.

Links:

Rule 9.2 submission by OSJI, May-June 2018

Submission of Ms Amrit Singh on the case, 22/11/2019

Pictures: EIN Secretariat

Implementation of Strasbourg Court judgments: a shared responsibility

How can a multi-stakeholder alliance promote the implementation of judgments in Poland? EIN partners with the Helsinki Foundation for Human Rights and the Open Society Justice Initiative to find answers

“A Strasbourg Court judgment is not the end!” was the title of a multi-stakeholder workshop held in Warsaw (Poland) on 5 November 2019. Winning a case before the European Court of Human Rights (ECtHR, ‘the Court’) might conclude a long process of litigation, but it will not automatically translate into justice for the victim, let alone improve the situation of others who are in a similar situation: the Court cannot strike down national laws that might result in the violation of human rights. It cannot single-handedly ensure that a person who is unlawfully detained is released from prison. The Court also does not have the power to change domestic judicial practice. It is the respondent state that must adopt measures to redress the victim of a human rights violation established by the Court, and ensure that the violation is not repeated.

Here is the good news: when the judgments of the ECtHR are properly implemented, they can lead to tangible human rights improvements on the ground. Take Wizerkaniuk v. Poland as an example, a freedom of expression case from 2011. Mr Wizerkaniuk was a newspaper editor. He was prosecuted and convicted to pay a fine for publishing a verbatim interview. There was no issue regarding the veracity of the article; the problem was that the interviewee had not given their authorisation.

This case was emblematic of a wider problem: journalists in Poland would be criminally charged and prosecuted for publishing quotes without prior authorisation, and the domestic courts would have no regard to whether the published statements corresponded to what had been said during the interview. This effectively gave interviewees a carte blanche to prevent a journalist from publishing any interview they regarded embarrassing or unflattering, regardless of how truthful or accurate it was. The chilling effect on freedom of expression was noticeable.

Mr Wizerkaniuk brought his case to the ECtHR and won. Subsequently, the Polish Press Act was amended. The obligation to obtain authorisation and the related procedure and time-limits were clarified. This means interviewees can no longer simply ignore request for authorising a quote to prevent it from being published. So, judgments can indeed trigger important reforms at the domestic level.

The workshop also saw the launch of a brand-new translation of EIN’s Handbook on Rule 9 submissions - now available in Polish!

The problem is: judgments rarely get implemented on their own. They require advocacy at the domestic level: input into what measures are needed; nudging the authorities to adopt these measures; monitoring of and reporting on prevailing problems. The Wizerkaniuk example shows that being proactive and using the judgments from the ECtHR to push for change can pay off: here, a coalition of civil society actors helped get the case implemented. Journalists wrote about Mr Wizerkaniuk’s success in Strasbourg and started a whole campaign to amend the Press Act, which dated back to Communist times. They were supported in their advocacy by NGOs and other activists, who reached out to lawmakers to raise their awareness of the need for legislative changes.

The first point to note, then, is that coalitions of domestic actors can contribute to ensuring that Strasbourg Court judgments lead to actual change. This was the premise of the multi-stakeholder workshop organised jointly by EIN, its Polish member organisation, the Helsinki Foundation for Human Rights (HFHR), and the Open Society Justice Initiative (OSJI). The event brought together more than 40 representatives of five different professional groups, of all which have a stake in getting reforms underway following an ECtHR judgment:

• parliamentarians and parliamentary staff, who play a key role in creating the legal and policy framework in which human rights are effectively guaranteed;

• judges and prosecutors, who need to ensure the judicial practice is in conformity with Convention standards and the case law of the Court;

• activists, for whom ECtHR judgments can be an additional (and currently often underutilised) advocacy tool;

• journalists, who can sound the alarm about human rights problems identified by Strasbourg; and

• lawyers, who should not only follow up on the cases they brought to Strasbourg on behalf of their clients, but also use the judgments form the ECtHR in future litigation.

“Poland’s implementation of ECtHR judgments in figures

92 judgments pending implementation

30 of which are leading judgments requiring the adoption of general measures

9 cases under enhanced supervision”

— Figures from HUDOC-EXEC, 5 Nov 2019

Dominika Bychawska-Siniarska, member of the Boards of both the Helsinki Foundation for Human Rights and EIN, and Anne-Katrin Speck, EIN Co-Director, set the scene for the day-long discussions by highlighting the most pressing outstanding implementation challenges in Poland.

The Polish cases pending before the Committee of Ministers, the Council of Europe body supervising the execution of judgments, span a wide range of ECHR violations and concern important human rights issues such as the prohibition of torture (Al Nashiri v. Poland), the right to private and family life (Tysiąc v. Poland), freedom of speech (Kurłowicz v. Poland), and the right to a fair trial (Rutkowski and Others v. Poland).

Following these introductory remarks, the participants heard a keynote address by Professor András Sajó, former Judge at the ECtHR in respect of Hungary. Professor Sajó spoke eloquently about Strasbourg Court judgments being a key to upholding the fundamental values of Europe. He injected a judicial perspective into the execution of judgments – which is often a process characterised by political bargaining at the domestic level, combined with nudging and cajoling by the Council of Europe. Professor Sajó highlighted the benefits of making implementation an inclusive endeavor, noting that, because the Court rarely specifies how a judgment is to be implemented, there was a value in having actors outside of the government engage in the implementation process. This, he ventured, could help avoid unduly narrow responses to complex problems.

Advocacy for judgment implementation is most effective when it combines domestic efforts and the use of channels in Strasbourg. This was the key message that transpired from the first session of the workshop, which looked at the Committee of Ministers’ execution process and effective ways to engage in it from both a domestic and a Strasbourg perspective. Dr Adam Bodnar, Commissioner for Human Rights (Ombudsman) of Poland, linked non-implementation of (ECtHR or domestic courts’) judgments to the ongoing constitutional crisis in Poland, warning about the undermining of liberal democracy principles. He underscored the institutional dimension of judgment implementation, central to which was, in his view, a dedicated parliamentary sub-committee on the execution of ECtHR judgments, as well as closer involvement of prosecutors and judges’ associations.

“Civil society is the ‘eyes and ears’ of the Committee of Ministers.”

— Szymon Janczarek, DEJ

The intricacies of the process of supervision of the implementation process at the Council of Europe were presented by Szymon Janczarek, lawyer within the Department for the Execution of Judgments of the European Court of Human Rights (DEJ). Szymon confirmed that, in many cases, several branches of government needed to take measures to implement a ruling from Strasbourg. He also called on civil society actors to share their insights from the ground with the Department and the Committee of Ministers.

From the general to the specific: forming multi-stakeholder alliances to promote the implementation of ECtHR judgments in Poland. The morning session left little doubt that all the professional groups represented at the workshop have a shared responsibility for ensuring full and effective implementation. For the remainder of the workshop, the participants broke out into smaller groups and explored how exactly they can assume their share of this responsibility in relation to both strengthening the domestic institutional framework within which implementation occurs, and make headway on specific priority cases awaiting implementation. The discussions revolved around the tools of engagement in the process available to each group; ways to identify and engage with potential allies to advance the implementation of the selected cases; and agreeing on concrete next steps.

Next steps: towards an ‘implementation plan’ for Poland. The results of this brainstorming exercise are encouraging. Parliamentarians vowed to push for re-establishing a Sub-Committee on the Execution of ECtHR Judgments in the Sejm (the lower house of parliament). The judges and prosecutors kick-started debates on how, for example, a re-organisation in the assignment of prosecutors to cases could help resolve the systemic problem of excessive length of proceedings. The activists’ group had very fruitful discussions on how to frame messages about human rights law implementation and strategic engagement with a range of interlocutors. The lawyers identified scope for litigators to provide input into the drafting of action plans and action reports. Last, but not least, among the journalists, there was broad agreement that proactive media involvement is key to breaking down ‘barriers of comprehension’ that keep people from engaging in the judgment implementation process. Through their watchdog function, they are also ideally placed to shed light on the ‘faces behind the cases’, thereby injecting urgency into sometimes protracted implementation processes.

The workshop concluded with a public debate entitled “A Strasbourg Court judgment is not the end! How to improve the implementation of ECtHR judgments in Poland?”, with the participation of

•        Jan Sobczak, Polish Government Agent before the ECtHR, Ministry of Foreign Affairs

•        Prof. Ewa Łętowska, former Ombudsman, judge at the Supreme Administrative Court and the Constitutional Tribunal

•        Katarzyna Wiśniewska, Head of the Strategic Litigation Programme, HFHR

•        Andrew Drzemczewski, former Head of the Legal Affairs and Human Rights Department of the Parliamentary Assembly of the Council of Europe, and

•        George Stafford, EIN Co-Director

The panelists, which was broadcast live on Facebook, arrived at the same conclusion: renewed and concerted efforts are needed to tackle pressing human rights issues in Poland, reflected in the 30 leading judgments from the ECtHR that are currently awaiting execution. If used by a coalition of domestic actors, these rulings can be powerful levers for reform.

We look forward to continue working with the workshop participants in the coming weeks and months, and to seeing concrete action to advance the implementation of judgments in Poland!

EIN would like to extend a warm thanks the Helsinki Foundation for Human Rights for co-organising and OSJI for lending financial support for this workshop. We are also grateful to Szymon Janczarek from the Department for the Execution of Judgments for bringing a much-welcome Strasbourg insider’s perspective into the discussion.

Pictures: EIN Secretariat and Helsinki Foundation for Human Rights

EIN civil society briefing ahead of the CM-DH meeting

On 6th September 2019, EIN held its quarterly civil society briefing, ahead of the 1355th CM-DH meeting. Over 40 participants attended the briefing, including participants from the Permanent Representations to the Council of Europe, the EU representation to the Council of Europe, the office of the Commissioner for Human Rights and other CoE staff members.

Presentations were given on the following cases:

GENDERDOC-M v Republic of Moldova (Application No 9106/06), on unjustified bans on Pride marches,

D.H. and others v the Czech Republic (Application No 57325/00), on discrimination in the enjoyment of the applicants’ right to education due to their assignment to special schools between 1996 and 1999, on account of their Roma origin,

McKerr group of cases v the UK (Application No 28883/95), on actions of security forces in Northern Ireland in the 1980s and 1990s, with a focus on the Finucane case (Application No 29178/95),

Bekir Ousta and others v Greece (Application No 35151/05) on refusal to register or dissolution of the applicants' associations,

The main recommendations on the cases are available here.

GENDERDOC-M v Republic of Moldova (Application No 9106/06)

by Nigel Warner, member of ILGA Europe, and EIN Bureau member

The case concerns inter alia the violation of the applicant NGO’s right to peaceful assembly arising from the ban on holding a demonstration planned for May 2005 to encourage the adoption of laws to protect sexual minorities from discrimination (violation of Article 11); the discrimination against the applicant NGO on account of the difference in treatment between it and other NGOs which were allowed by the authorities to hold demonstrations in the same period of time, the authorities’ disapproval of the demonstrations which they considered to promote homosexuality, and the unclear reasons adduced by the authorities in rejecting the applicant’s request to hold a demonstration (violation of Article 14 in conjunction with Article 11).

In May 2019 participants in the Chisinau pride march were able, for the second year running, to take part in an authorised freedom of assembly event and complete the planned route. However, whilst this positive development is welcomed, it is also unclear as to whether it will last. Many of the country’s most senior politicians have adopted a firm public stance against Pride marches.

The Moldovan authorities Action Report of 27 June 2019 invited the Committee of Ministers to close the supervision of execution of this judgment. In July 2019, GENDERDOC-M and ILGA Europe submitted a joint communication, arguing that, in view of the uncertain political situation in the country, and notwithstanding the positive development referred to above, it would be premature to close supervision of this judgment.

The case was presented by Nigel Warner, member of ILGA Europe. His presentation was based on the Rule 9.2 submission of July 2019.

Links:

Action Report by the Moldovan authorities (27 June 2019)

Rule 9.2 submission by ILGA Europe and GENDERDOC-M (July 2019)

Power point by Nigel Warner, ILGA Europe (6/9/2019)

D.H. and others v the Czech Republic (Application No 57325/00)

by Štěpán Drahokoupil, OSF Prag, and Veronika Bazalová, Lawyer, Office of the Public Defender of Rights, Czech Republic

In 2007, the European Court of Human Rights decided that there was a systemic discrimination of Roma children in the Czech Republic. The Grand Chamber ruled that 18 Roma children had been sent to special schools and taught a reduced educational programme.

In December 2018, the Ministry of Education proposed changes to the Decree on Education of Pupils with Special Educational Needs. In her presentation, Ms Bazalová underlined that, should they be adopted, these changes would be problematic, as they would lead to:

1.      The decrease of the maximum number of pedagogical staff per classroom

2.      The establishment of special schools for pupils with various kinds of disabilities

In his presentation, Mr Drahokoupil outlined how reforms since the judgment had had a negligible effect on the numbers of Roma children being sent to special schools. In their recommendations, Mr Drahokoupil and Ms Bazalová therefore called on to the Committee of Ministers to monitor the implementation of the D. H. case until there is a drop in proportion of Roma educated in reduced programmes by 2,88 percent points in 5 consecutive years, starting by the school year 2018/2019.

Links:

Power Point presentation by Mr Štěpán Drahokoupil, OSF Prag, and Veronika Bazalová, Lawyer, Office of the Public Defender of Rights, Czech Republic (6/9/2019)

Rule 9.2 on the D.H. and others v the Czech Republic case, by OSF Prague (Nadace OSF), Amnesty International and Forum for Human Rights (August 2019)

McKerr group of cases v the UK (Application No 28883/95), with a focus on the Finucane case (Application No 29178/95),

by Daniel Holder, Deputy Director, Committee on the Administration of Justice (CAJ)

These cases concern investigations into the deaths of the applicants’ next-of-kin in Northern Ireland in the 1980s and 1990s, either during security force operations or in circumstances giving rise to suspicion of collusion with those forces.

In his presentation, Daniel Holder focused on the Stormont House Agreement (SHA), calling for a clear timetable in relation to the implementation of the new legacy institutions under this agreement. With regard to the Finucane case, he underlined the urgent need for a fully independent Article 2 public inquiry into Pat Finucane’s murder. Given the lack of a clear commitment from the UK in response to the UK Supreme Court ruling of February 2019 – which found that no Article 2 compliant investigation had taken place to date - Mr Holder called upon the Ministers’ Deputies to re-open examination of this individual measure.

Links:

Power Point presentation by Daniel Holder, CAJ (6/9/2019)

Rule 9.2. on the McKerr group of cases by CAJ (July 2019)

Bekir Ousta and others v Greece (Application No 35151/05)

by Panayote Dimitras, Greek Helsinki Monitor and EIN Board member

The Bekir-Ousta and others group of cases concerns Greece’s failure for some twelve years to execute the ECtHR judgments finding violations of the freedom of association of three ethnic Turkish associations. Mr Dimitras underlined that no progress had been made with regard to legislative measures to change the procedure for registration of these associations, in a way that would be consistent with the rulings of the European Court of Human Rights. Mr Panayote called for the relevant legislative changes to be made – failing which, the Committee of Ministers should issue an Interim Resolution in early 2020.

Links:

Briefing text by Panayote Dimitras, Greek Helsinki Monitor (GHM)

Rule 9.2. on the Bekir Ousta and others group of case v Greece, by GHM (July 2019)

Pictures: EIN Secretariat

EIN’s latest training on Rule 9 submissions

EIN and DEJ train young lawyers from Armenia, Georgia and Ukraine on ECtHR judgment implementation

Can you get a good grasp of how NGOs can promote the implementation of judgments of the European Court of Human Rights (ECtHR, ‘the Court’) in just two hours? Feedback from EIN’s latest capacity-building event suggests that you can!

Photo: EIN

The European Implementation Network (EIN) had the pleasure of welcoming young lawyers from Armenia, Georgia and Ukraine on 9 July, and introduce them to the process of implementation, or ‘execution’, of ECtHR judgments. The participants had been brought to Strasbourg by EIN’s member organisation, the European Human Rights Advocacy Centre (EHRAC), as part of EHRAC’s annual Legal Skills Development Programme (LSDP). Aside from learning about implementation, their programme saw the participants meet with Judges from the Court, Registry lawyers and staff of the Department for the Execution of the Judgments of the European Court of Human Rights (DEJ) to talk about the cases that they are litigating or that they already won in Strasbourg. For the first time, the LSDP also comprised a session dedicated specifically to the Committee of Ministers’ (CM) judgment execution process and ways for NGOs to get involved in it – through Rule 9 submissions and domestic advocacy.

During the two-hour training, the participants heard presentations from Clare Brown, Head of Section within the DEJ, and Anne-Katrin Speck, EIN Co-Director. They were introduced to the key elements of the CM’s supervision of the execution of judgments:

·        The role of the CM and of the DEJ

·        Individual measures v. general measures

·        The grouping of cases into leading and repetitive cases

·        Action Plans v. Action Reports

·        Classification of cases: enhanced v. standard supervision     

·        Timetable and when best to submit your Rule 9

Source: Council of Europe website

Anne and Clare both stressed the value of NGO submissions to the CM. They are an important means to ‘set the record straight’ where government submissions are inadequate or misleading. They can provide up-to-date information from the ground that the DEJ, with its limited capacity to conduct its own fact-finding and research, might not otherwise be aware of. And it can help trigger a response from the authorities where they might not otherwise have addressed specific issues.

 Anne and Clare also shared important tips for ensuring maximum possible impact of submissions to the CM. These are to do with the structure and length of submissions, timing, the types of evidence to be submitted, how best to respond to a government Action Plan or Action Report, and the inclusion of procedural recommendations. They also highlighted the importance of combining Strasbourg and domestic level advocacy, starting early to develop general measures of implementation and, where possible, reaching out to the authorities with a view to influencing the design of the remedies.

Photo: EIN

The introductory training confirmed once more that implementation of ECtHR judgments and its supervision by the CM is a complex process, but understanding it is not rocket science. If you, too, want to know how you can promote information by submitting information from the ground to the CM, consult EIN’s Handbook for NGOs, injured parties and their legal advisers, or get in touch with us directly.

 EIN is grateful to Jessica Gavron, Kate Levine and Andrii Gladun from EHRAC for reaching out to EIN and making this training possible. Many thanks as well to Clare Brown from the DEJ, whose insider’s view helped the participants understand the intricacies of the implementation process, and how they can best influence the trajectory of a case before the Committee of Ministers.

Current issues and common challenges for the protection of human rights in Europe, Africa and the Americas

© Bonavero Institute of Human Rights

EIN Co-Director Anne-Katrin Speck and EIN Vice Chair, Professor Philip Leach (Middlesex University London, European Human Rights Advocacy Centre), participated in a Conference entitled ‘Current issues and common challenges for the protection of human rights in Europe, Africa and the Americas’, which took place at Travers Smith in London on 14 June 2019. The Conference, which was co-organised by the Bingham Centre for the Rule of Law, the Human Rights Centre of the University of Essex, the Human Rights Implementation Centre at Bristol University, and the Bonavero Institute of Human Rights at the University of Oxford, brought together leading figures from the three regional systems as well as international academics and practitioners.

Challenges relating to the implementation of the judgments and decision of the commissions and courts from the three regional human rights system was a thread that ran through the day-long discussions. The Conference provided a welcome opportunity for comparative review and dialogue, which revealed that implementation challenges stemmed, in part, from the supranational systems’ limited capacity to discern and assess steps towards (or steps going against) compliance with a ruling. In Europe, for instance, a team of only 39 lawyers within the Department for the Execution of Judgments deal with some 5,500 cases pending execution (Donald, Long and Speck, forthcoming). This precludes nearly any possibility for the DEJ to conduct its own in situ fact-finding, and highlights the importance of civil society actors stepping up and bringing shortcomings in the implementation process to the Committee of Ministers’ attention. 

The role of non-governmental organisations (NGOs) in the implementation of the judgments of the European Court of Human Rights (ECtHR) was at the heart of a presentation by EIN Co-Director Anne-Katrin Speck, who set out the key principles for effective advocacy for ECtHR judgment implementation. In an ideal-type scenario, she ventured, NGO involvement aimed at effective ECtHR judgment implementation

·        starts early (specifically, already at the litigation stage);

·        comes in the form of repeated engagement;

·        is built on coalitions between NGOs and other pro-implementation actors (who could be other NGOs, media actors, NHRIs, conscientious parliamentarians or state officials); and

·        is conducted domestically and through the Strasbourg system.

Anne demonstrated that, regrettably, reality does not match this ambition. Domestic advocacy for judgment implementation would still appear to be in its infancy in most places. This has led EIN to launch an open call for contributions aimed at collecting best practices that will feed into a new EIN resource on domestic advocacy. She also emphasised the need to reverse the downwards trend in the number of so-called ‘Rule 9’ submissions to the Committee of Ministers, which NGOs and national human rights institutions can use to ‘put the record straight’, refute inaccurate claims by governments that implementation had been successful, and call for heightened scrutiny by the Committee of Ministers.

Anne’s presentation concluded with a call for concerted efforts to facilitate civil society involvement in implementation. She urged NGOs to start identifying priority areas for engagement, by mapping the pending leading cases against their country and matching them with the thematic areas they are already working on. NGOs should moreover mobilise other civil society actors to form ‘implementation advocacy coalitions’, and seek out conscientious actors within state authorities to get them to support the cause.

Lastly, it was incumbent of the Council of Europe to undertake a series of measures to make the implementation process truly inclusive, including the following:

EIN would like to thank the co-conveners, Anthony Wenton, Dr Annelen Micus, Professor Clara Sandoval-Villalbe and Professor Rachel Murray, for the opportunity to inject a civil society perspective into that day’s debates.

Open call for contributions: Send us your input!

EIN Handbook about domestic advocacy for implementation of ECtHR judgments: Open call for information, input and views

Context and purpose

The European Implementation Network (EIN) is holding an open call for information, input and views on the issue of domestic advocacy aimed at promoting the implementation of judgments of the European Court of Human Rights (ECtHR).

This process follows on from EIN’s first General Assembly, held in Strasbourg in December 2018, at which there was wide agreement that NGOs should not only reinforce their efforts to engage in the supervision of the execution of the Court’s judgments by sending written submissions to the Committee of Ministers (CM) in accordance with Rule 9 of the Rules of the CM, but that they should also do more to push domestically for the full and effective implementation of ECtHR judgments.

Against this backdrop, the EIN Secretariat decided to provide guidance on strategies and tools for effective domestic advocacy for ECtHR judgment implementation.  The aim of this call for information, insights and views is to identify and examine what practice exists in this respect across Europe, with a view to assessing what strategies and tools have worked, and how domestic advocacy can be further strengthened.    

The information received through this process will be compiled and analysed by the EIN Secretariat, and form the backbone of a Toolkit or Handbook for domestic advocacy for ECtHR judgment implementation, to be produced by the end of 2019.

Procedure

This process is intended to be open and inclusive. Strategic use of ECtHR judgments to push domestically for reforms is an advocacy strategy that is still in its infancy, and a concerted effort is needed to shed light on existing good practice. The process is therefore open to NGOs, NHRIs and other civil society organisations, as well as interested individuals, who have worked on ECtHR judgment implementation. EIN members and partners are asked to not only provide answers themselves, but also to distribute this call more widely – by email, through their newsletters and on social media – to relevant organisations and people who might have interesting insights to share. Please send this email on to your respective members and partners, with a copy to director@einnetwork.org and contact@einnetwork.org, and re-tween EIN’s tweet.  

A few formalities

Contributions must be submitted in English and should be presented in Word format, in a single document with the attached form, and submitted by email to director@einnetwork.org, Cc: contact@einnetwork.org. The submissions will not be made public, or shared with anyone outside the EIN Secretariat. New deadline for submitting contributions: Friday 12th July.

We look forward to receiving your replies!

Political activist Ilgar Mammadov comments on the ECtHR judgment on the infringement proceedings against Azerbaijan

On 29th May, EIN organised a briefing from Ilgar Mammadov to delegates from the Committee of Ministers, to comment on the ECtHR judgment in his case. The judgment from the Grand Chamber, which had been published a few hours before the briefing, was a strong rebuke to the government of Azerbaijan for the non-implementation of the Court’s earlier judgment. 

In his video presentation, Mr Mammadov welcomed the judgment. Highlighting paragraph 189 of the text, he stated that the judgment as a whole essentially called for his acquittal.. He asked delegates to issue a Decision calling for:

1) Concrete protections for his right to stand in Parliamentary and Presidential elections; and

2) Material compensation

Furthermore, in subsequent written remarks Mr Mammadov emphasised the need for the measures under the threat of the application of Article 8 of the Council of Europe’s Statute – which involves suspension of voting rights in the Committee of Ministers or expulsion from the Organisation.

Finally, Mr Mammadov emphasised the importance of time. Snap elections could happen this Autumn. Mr Mammadov therefore called on to the delegates to act now and require his immediate acquittal. You can watch the complete video below.

Useful links:

Rule 9.1 from the applicant (13 May 2019)

Press release from the ECtHR of 29 May 2019

Written remarks of Mr Mammadov 2 June 2019

Enhancing Croatian civil society's capacity to advocate for the implementation of ECtHR judgments

Training workshop helps establish EIN’s member as an ‘implementation hub’ in Croatia

This week saw the grand finale of a capacity-building marathon for the European Implementation Network (EIN), which has organised three training sessions in less than three months. After our successful events with Fair Trials in March, and with İHOP and the ICJ in April, EIN organised a one-day training workshop in Zagreb on 21 May with and for its Croatian member organisation, Human Rights House Zagreb.

The training workshop brought together 18 participants and two external observers with the three-fold aim of (i) Introducing the participants to the Committee of Ministers’ (CM) ‘judgment execution process’, i.e. its supervision of the implementation of judgments handed down by the European Court of Human Rights (ECtHR) in respect of Croatia, and ways for civil society to engage with it; (ii) identifying priority areas for civil society advocacy for full and effective judgment implementation in Croatia, using both domestic and Strasbourg avenues; and (iii) mapping opportunities for establishing implementation coalitions around specific cases pending execution.

© Council of Europe, Department for the Execution of Judgments of the European Court of Human Rights

Indeed, such opportunities are manifold, and greater civil society engagement in advocacy for implementation of judgments is urgently needed. Croatia’s implementation record leaves little room for complacency. At present, the overall number of Croatian cases which remain pending before the CM stands at 87 – 41 of which have been classified as ‘leading’ cases (compared, for example, to 17 leading cases against Georgia, which has roughly the same population as Croatia). ‘Leading’ cases indicate a wider problem requiring the adoption of general measures to avoid recurrence of the violation found by the Court. In other words: there are at least 41 human rights problems that the CM is examining in respect of Croatia. The cases pending before the CM span a wide range of ECHR violations and concern, inter alia, inhuman or degrading detention conditions (Cenbauer); Croatian citizens being subjected to unlawful surveillance (Dragojević); and failure to reunite parents with their children under the Hague Convention on the Civil Aspects of International Child Abduction (Karadžić). In a number of these cases, the Croatian Government has not put forward an ‘Action Plan’, i.e. a plan detailing the measures envisaged to give effect to a ruling from the Strasbourg Court, in many years. If and when this happens, judgments become ‘orphaned’, and they do not lead to justice for the victims. Civil society can play a  crucial role in identifying these ‘dormant’ cases and injecting new impetus into the implementation process. This is the role that EIN’s colleagues from the Human Rights House Zagreb have committed to assume. Their team will lead a more concerted effort by Croatian NGOs and other key allies – journalists’ associations and other media actors, national human rights institutions (NHRIs), lawyers and campaigners – to advance the implementation of important human rights judgments. This week’s training workshop was intended to strengthen their capacity to do so.   

We kicked off the day with a panel discussion on the state of implementation in Croatia. Katarina Nedeljkovic from the Department for the Execution of Judgments of the European Court of Human Rights (DEJ) at the Council of Europe presented an insider’s view from Strasbourg, which was complemented by a civil society perspective presented by Tea Dabić from Human Rights House Zagreb.

EIN Co-Director George Stafford highlighted three key benefits of using the CM judgment execution process for one’s advocacy: first, the process is a way to set the agenda for reforms; secondly, setting these reforms in motion; and, thirdly, preventing early ‘closure’ of the case, which would result in international supervision coming to an end before the reforms have proved to bring about the intended results. The message from all speakers was clear: the number of outstanding human rights issues in Croatia is unacceptably high, and a concerted effort is needed to tackle these issues.

 An example of how this can be done was presented by EIN Treasurer Nigel Warner, whose presentation in Session 1 centred around effective advocacy activities carried out by the Romanian NGO ‘ACCEPT’ aimed at tackling hate crimes against LGBTI persons in a hostile political environment. ACCEPT has pushed for the implementation of the case of M.C. and A.C. v. Romania since 2016, when the ECtHR handed down its judgment finding that the Romanian authorities had failed to conduct an effective investigation and, in this context, to take into account possible homophobic motives of an attack on the applicants by private individuals which occurred after the applicants had left a police-protected LGBTI rally in 2006. One key factor for the positive impact of ACCEPT’s advocacy was that the NGO effectively combined submissions to the CM under Rule 9.2 of the Rules of the Committee of Ministers with domestic advocacy, including a meeting between the victims and the Minister of Justice. This practice is worth highlighting and replicating, as implementation ultimately happens on the ground, and the judgments from Strasbourg can be an important additional lever in pushing for change.

The second half of the day was dedicated to work in break-out groups, to facilitate identifying concrete steps to foster implementation in Croatia. In the first of two sessions, one group was introduced to all the intricacies relating to researching, drafting and keeping momentum after the communication of a Rule 9 submissions. In the other group, participants had a brainstorming and came up with a plan to take domestic advocacy for implementation to the next level. There was broad agreement that all NGO and NHRI actors had a responsibility to bring a Strasbourg dimension into the work in fora of which they form part, and that news stories could be generated about individual cases that are illustrative of the wider human rights problems stemming from non-implementation.

“The break-out group on [domestic] advocacy … was very concrete and dynamic [and we came up] with a great plan for future work.”

Anonymous feedback from a workshop participant

“[The group work on specific cases pending execution] was immensely useful as it showed the practical side and interaction of domestic actors [on the ground] and internationally. [The] hand on outcome was useful.”

Anonymous feedback from a workshop participant

The final session of the day saw participants work in small groups to discuss next steps in promoting the implementation of three cases pending execution: Skendžić and Krznarić v. Croatia, concerning the Croatian authorities’ failure to effectively investigate crimes committed during the Croatian Homeland War; Stojanović v. Croatia, a group of cases concerning freedom of expression, and specifically hate civil defamation proceedings; and Šečić v. Croatia, a case about  failure to carry out an effective investigation into a racist attack on a person of Roma origin. These cases are at different stages of the implementation process, but they all need concrete follow-up, which the participants have committed to undertaking. EIN will continue to support its member, the Human Rights House Zagreb, and Croatian civil society more widely, in order to make tangible progress concerning the implementation of the numerous leading cases awaiting execution in Croatia.

EIN would like to extend a warm thank you to its colleagues from Human Rights House Zagreb – Tea Dabić, Ivan Novosel and Tina Đaković – for the fruitful cooperation in organising this event, and for their tireless engagement in pushing for the implementation of ECtHR judgments in Croatia.

Photos: EIN

Important cases from Azerbaijan and Romania at the heart of EIN advocacy briefing

 On 20th May 2019, EIN held its quarterly civil society briefing, ahead of the 1348th CM-DH meeting. Over 40 participants attended the briefing, including participants from the Permanent Representations to the Council of Europe, the EU representation to the Council of Europe and other CoE staff members.

Presentations were given on five cases, including two cases of prominent human rights defenders from Azerbaijan, and two cases from Azerbaijan where the European Court found a series of violations relating to free and fair elections. You can download here the main recommendations submitted by the speakers on each case.

1)     Al-Nashiri v Romania (Application No 33234/12)

The case concerns violations of a number of Convention rights on account of the fact that the applicant was the victim of an “extraordinary rendition” operation. The European Court found it established beyond reasonable doubt that Romania hosted a CIA detention site code-named “Detention Site Black”, which operated from 22 September 2003 to 5 November 2005, and that the applicant was secretly detained there from 12 April 2004 to 6 October 2005, or, at the latest, to 5 November 2005. He was subjected to inhuman treatment, on account of an extremely harsh detention regime. He was subsequently transferred by the CIA out of Romania to another of its detention facilities.

The European Court of Human Rights held that this violated his fundamental rights, as did the failure to properly investigate. It was a landmark ruling.  

Amrit Singh from OSJI. Photo: EIN

In her presentation, Ms Amrit Singh, Counsel for Mr Al-Nashiri, and Director, Accountability, Liberty and Transparency Division at the Open Society Justice Initiative, sets out why the case is still not being properly implemented. First of all, this is because the events are still not being properly investigated. This is reflected by the Action Plan of the Romanian government: hardly any information is provided about investigations. Ms Singh added that the US commission tasked with investigating is not an independent body. Furthermore, there has still been no official recognition of the prisons by the Romanian government. In addition to the need to properly investigate, the Court’s judgment also required the Romanian government to seek assurances from the US government about the way Mr Al-Nashiri would be treated in the future. However, there is currently no evidence that the Romanian government is requesting assurances in a serious and effective way.

Ms Singh therefore called for the Committee of Ministers to:

·        Undertake specific measures to promptly conduct an effective criminal investigation into Romania’s role in the CIA extraordinary rendition and secret detention programme and the violation of Mr Al Nashiri’s rights, including but not limited to:

o   Disclosing the full terms of reference of the investigation to Mr Al Nashiri’s counsel as well as to the public;

o   Granting counsel for Mr. Al Nashiri unhindered access to the entire case file, including any updated communications on a regular basis;

o    Declassifying materials of the investigation to the fullest extent possible, especially with regard to any procedural decisions made by the prosecutor;

o   Disclosing to counsel for Mr. Al Nashiri the investigative actions undertaken together with the anticipated time frame for future actions.

·        With respect to the Committee of Minister’s March 2019 concerns about “amendments to the Criminal Code aimed at substantially reducing the limitation periods for a number of criminal offences, including torture,” keep the Committee of Minister apprised of developments relating to further judicial review of amendments to relevant statutes of limitations.

·        Seek reliable, specific, and binding diplomatic assurances from the U.S. authorities relating to the death penalty and flagrant denial of justice. An executive bilateral agreement between Romania and the United States would meet these requirements.

·        Disclose to Mr. Al Nashiri’s counsel all communications to and from the U.S. government in relation to the assurances relating to the death penalty as well as the flagrant denial of justice so that counsel can monitor the Romanian government’s compliance with the Court’s judgment.

·        Disclose to Mr. Al Nashiri’s counsel the steps the Romanian government plans to undertake in the near future to ensure that Mr. Al Nashiri is not subjected to the death penalty and to a flagrant denial of justice.

·        Disclose to defense counsel for Mr. Al Nashiri in U.S. military commission proceedings all communications to and from the U.S. government in relation to the assurances relating to the death penalty as well as the flagrant denial of justice. The requests for assurances will assist defense counsel in arguing against the death penalty and flagrant denials of justice.

·        Public disclosure of all communications to and from the U.S. government in relation to the assurances relating to the death penalty as well as the flagrant denial of justice.

·        Issue an official acknowledgement from the highest level of the Romanian government that Romania hosted a secret CIA prison over 2003-2005.

Links:

Action Plan from the Romanian authorities (April 2019)

Rule 9.2 Communication from OSJI (May 2019) on the Al-Nashiri v Romania (Application No 33234/12)

Rule 9.2 Communication from OSJI (September 2016) on the Al-Nashiri v Poland case (Application No 28761/11)

2)     Rasul Jafarov v Azerbaijan and Aliyev v Azerbaijan (Applications No 69981/14 and No 68762/14), parts of Ilgar Mammadov Group v Azerbaijan (Application No 15172/13)

The case of Rasul Jafarov concerns several violations (Articles 5 §§ 1 and 4, as well as Article 18 taken in conjunction with Article 5) suffered by the applicant, a human rights defender, which took place in the context of the criminal proceedings instituted against him in connection with alleged irregularities in the financial activities of a number of NGOs.

The applicant was arrested and placed in detention on remand on 2 August 2014. On 16 April 2015, the first-instance court sentenced him to six and a half years’ imprisonment and to deprivation of the right to hold official positions in state and local authorities, or to engage in entrepreneurial activity, for a period of three years.

The European Court found, in particular, that the arrest and detention on remand took place in the absence of any reasonable suspicion that he had committed an offence. It also found that the domestic courts had limited themselves in all their decisions to an automatic endorsement of the prosecution’s requests without having conducted a genuine review of the lawfulness of the detention (violations of Article 5 §§ 1and 4).

Intigam Aliyev was prosecuted for ‘illegal entrepreneurship’, ‘large-scale tax evasion’ and ‘aggravated abuse of power’ in August 2014. He was convicted and sentenced to 7 ½ years’ imprisonment in April 2015. The European Court found violations of Arts 3, 5(1), 5(4), 8, 18 in conjunction with Arts 5 & 8.

Phil Leach. Photo: EIN

Mr Jafarov and Aliyev themselves present their cases and why they are still pending implementation through video messages (see below).

Philip Leach, from the European Human Rights Advocacy Centre, outlines how the cases of both Mr Jafarov and Aliyev are examples of the Azerbaini government cracking down on human rights activities. He continues by explaining that the Court’s finding in the case of Mr Jafarov are extremely strong, as they stated that the criminal proceedings were designed to silence and punish him. It ordered substantial damages.

The question is what the Committee of Ministers should order as a result of a violation under Article 18. Philip Leach argues that the cases should be re-opened, given the strength of the Court’s findings in its judgment. Therefore, in the case of Mr Jafarov, the CM should specifically order for the damages to be paid in full, and for the criminal case to be re-opened. In the case of Mr Aliyev, Mr Leach sets out the judgment of the Court under Article 46, including the explicit requirement that measures should be taken to restore Mr Aliyev’s ability to carry out his professional activities.

He therefore calls for the following from the Committee of Ministers:

1)     Payment of just satisfaction

2)     Re-examination of criminal cases

3)     Return of all documents and equipment of his NGO

4)     Access to frozen bank accounts

5)     Lifting of travel ban

Finally, Mr Leach calls for general measures to be requested:

-        An action plan on these cases

-        Reform of law and practices on status of NGO and grants

-        Ensuring enabling environment for human rights defenders

-        End all harassment of human rights defenders

-        Run investigations into such harassment

Links:

Rule 9.1. from the applicant on the Rasul Jafarov v Azerbaijan case

Power point presentation by Philip Leach

3)     Namat Aliyev v Azerbaijan and Mammadli v. Azerbaijan (Applications No 18705/06 and 47145/14), individual cases on human rights defenders, parts of the Namat Aliyev group v Azerbaijan

These cases concern various violations of the right to free elections (Article 3 of Protocol No. 1) of the applicants (members of the opposition parties or independent candidates) in the context of the parliamentary elections of 2005 and 2010.

Tural Aghayev. Photo: EIN

Tural Aghayev, lawyer at the Monitoring and Democracy Studies Centre from Azerbaijan, informs the delegates that, whilst payment of just satisfaction has been made in the Namat Aliyev case, Mr Mammadli still has not received any payment so far. Mr Mammadli would, in addition, still suffer restrictions to certain rights and freedoms. In particular, Mr Mammadli is still not permitted to stand in elections. Mr Aghayev therefore calls for the payment of just satisfaction and for these restrictions to be lifted. 

On the general measures, Mr Aghayev underlines in particular three remaining problems related to: the composition of the election commissions, the registration of candidates and the expert groups reviewing the complaints. He sets out the ongoing problems with free and fair elections in Azerbaijan and puts forward various recommendations to overcome them.

Links:

Latest communication from the authorities on the Namat Aliyev case (Feb. 2018)

Communication from NGO “EMDS (Election Monitoring and Democracy Studies Centre)” (23/04/2019) in  the case of MAMMADLI (Ilgar Mammadov group) v. Azerbaijan

Power point by Tural Agayev

Promoting ECtHR judgment implementation in Turkey

Joint ICJ/İHOP/EIN workshop aims to enhance civil society engagement with the CM’s supervision of the execution of Strasbourg Court judgments

Representatives of NGOs and members of several bar associations from across Turkey came together in Ankara on 12 April to attend a workshop organised jointly by the International Commission of Jurists (ICJ), Human Rights Joint Platform (İHOP), and EIN. The aim of this one-day event was to raise awareness among civil society of the Strasbourg avenues that exist for advocating for the full and effective implementation of the judgments of the European Court of Human Rights (ECtHR, ‘the Court’).

Turkey’s implementation record leaves much to be desired. At the end of last year, according to the Committee of Ministers’ latest Annual Report, the country ranked second (after Russia) in terms of the overall number of cases pending before the Committee of Ministers (‘CM’). This figure stood at 1,237 on 31 December 2018. 162 of these cases have been designated as ‘leading’ cases, signalling that they reveal structural or systemic problems which Turkey has to remedy by adopting ‘general measures’ to prevent similar violations in the future. What is just as concerning than the sheer number of outstanding implementation issues is the fact that nearly 50 leading cases have been pending full execution for more than a decade, as a search on the HUDOC-EXEC database reveals.

The cases in respect of Turkish pending before the CM cover a wide ground. Some of the main issues highlighted by the Council of Europe’s (CoE) Department for the Execution of Judgments (DEJ) include excessive use of force by police authorities; the failure to ensure fairness in criminal proceedings; the repeated jailing of conscientious objectors; and unjustified pre-trial detention of journalists. Civil society actors play a crucial role in submitting information and evidence to the CM regarding the real impact of any reforms adopted to remedy these issues, as well as prevailing shortcomings. Their knowledge and assessment from the ground are instrumental in challenging any unduly positive presentation of the state of implementation by the state.

Yet, this knowledge is rarely brought to the CM’s attention. A key advocacy avenue for civil society for implementation of ECtHR judgments remains strikingly underutilised, namely the use of Rule 9 submissions to the CM by NGOs or national human rights associations (NHRIs). AS regards Turkey, NGOs have only ever intervened on roughly 30 occasions, concerning merely about a dozen cases. It is worth noting, moreover, that many of these communications have come from foreign-based organisations – a fact that EIN’s local members and partners attributed mainly to a lack of familiarity of Turkish civil society actors with the CM judgment execution process and the role that NGOs can play therein.

Photo: EIN

 Against this backdrop, one key objective of ICJ/İHOP and EIN’s workshop – which we hope will be but the first in a series of events in Turkey – was to introduce the participants to this mechanism, and have them start working on actual Rule 9 submissions in a small number of important cases awaiting full execution. Following a kick-off panel discussion on ‘Promoting implementation of Strasbourg Court judgments: a key to making progress in human rights protections in Turkey?’, EIN Co-Director Anne-Katrin Speck shared a number of tips with the participants about how to write effective Rule 9 submissions. She stressed, inter alia, the importance for NGOs of deriving the scope of the measures they call for in their submissions from the Court’s judgment, recalling that the CM was constrained, in its examination, by what the ruling actually requires. Broader concerns, she added, could be channelled to other CoE bodies, such as the Parliamentary Assembly and the Commissioner for Human Rights –the EIN Secretariat can help with that.

This introduction to effective Rule 9 submissions was followed by a presentation from EIN Chair, Professor Başak Çalı, on İHOP’s engagement with the CM judgment execution process to advance freedom of association and peaceful protests in Turkey: İHOP’s latest Rule 9 submission in the case of Oya Ataman group of cases – concerning freedom of association and the right to protest peacefully – is a model submission in many respects, from which others may want to draw inspiration: it is concise (5 pages), clearly sets out its aim from the outset, contains concrete evidence of ongoing violations of the right to peaceful assembly (referring to both shortcomings in the legislation and recent practical examples where rallies were prohibited), and it concludes with specific recommendations to the Committee of Ministers, both substantial and procedural. Just as importantly, the Rule 9 was submitted in good time before the CM’s ‘human rights’ (DH) meeting where the case was due to be assessed, which ensured that it would have maximum impact by being included in the Secretariat’s ‘Notes’ on the agenda. 

All of these features of a good Rule 9 submission are set out in EIN’s Handbook for NGOs, injured parties and their legal advisers. We were very pleased to use the occasion of this workshop to launch a Turkish version of this handbook, which had been translated with the support of İHOP, and thanks to funding from the EU. Each participant went home with a copy of the Turkish handbook, which is the most comprehensive guide on how NGOs and applicants’ representatives can send communications to the CM and use other advocacy avenues in Strasbourg to promote the implementation of ECtHR judgments.

Break-out group exercises in the afternoon of the workshop provided an opportunity for the participants – most of whom had, prior to the meeting, been unfamiliar with the CM judgment execution process – to work on actual Rule 9 submissions in three cases pending implementation and pertaining to, respectively, freedom of assembly, freedom of association, and the prohibition of inhuman or degrading treatment of persons in detention. Supported by experienced facilitators, the lawyers and NGO representatives developed the scope, content and recommendations in a Rule 9.2 submission. The workshop concluded with a strategy brainstorming session on how implementation could be promoted more systematically and more effectively in Turkey.

Workshop participants expressed their eagerness to start working on actual Rule 9 submissions. Several participants established a working group on the very day of the event, whose aim it is to submit information to the CM concerning the case of Gülay Çetin v Turkey, concerning possibilities for release from remand prison for severely ill detainees. Others have pledged to engage their bar associations to collect evidence from lawyers about domestic court decisions that are at odds with the Strasbourg Court’s case law   

 EIN would like to thank its partners in organising this joint event, which formed part of the ICJ’s EU co-financed project Rebuilding and Ensuring Access to justice with civil society in Turkey (REACT), funded by the European Instrument for Democracy and Human Rights (EIDHR) of the European Union.

Photo: EIN

Is your NGO 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.

What role for lawyers in promoting the implementation of Strasbourg Court judgments?

EIN partners with Fair Trials to organise a thematic training seminar

On 17 March, the EIN was in Zagreb, Croatia, to hold a one-day thematic training seminar for criminal defence lawyers and representatives of NGOs who litigate cases related to fair trials. The event, which was organised with the support of EIN’s member Fair Trials, brought together more than a dozen members of Fair Trial’s Legal Experts Advisory Panel (LEAP) network of experts in criminal justice and human rights from different countries, with the aim of equipping them to better follow up on the cases they won at the European Court of Human Rights (ECtHR, ‘the Court’).

The trip to Zagreb also provided an opportunity for EIN Chair Başak Çalı and EIN Co-Director Anne-Katrin Speck to hold a meeting with one of the Network’s newest members, the Human Rights House Zagreb.  We had a useful exchange about how to enhance, in a sustainable fashion, Croatian civil society’s capacity to use the Strasbourg process to promote urgently needed reforms in their country, which has 45 leading cases pending before the CM.

Making sure the judgments from Strasbourg lead to real change in your clients’ lives

Başak Çalı kicked off the training seminar by stressing that a case won in Strasbourg was no reason, by itself, to open the champagne quite yet. True success only comes with full implementation of the ECtHR’s judgment. Since there can be disagreements about when that point has been reached, it is vital for lawyers and NGOs with knowledge from the ground to counter any unduly positive accounts by the government about the status of implementation. That way, they can help avoid the Committee of Ministers (CM), which supervises the execution of the ECtHR’s judgments, closing a case prematurely.

The seminar highlighted lawyers’ responsibility to make sure their clients are adequately redressed for the Convention violations they suffered, and inform the Committee of Ministers of any failure on the part of the state to take the relevant (monetary or non-monetary) individual measures required to execute the Court’s judgment.

What is more, litigating lawyers will often be aware of the status of implementation of so-called ‘general measures’, and notably any prevailing inconsistencies of national courts’ jurisprudence with Convention standards and the ECtHR’s case law. A representative of the Department for the Execution of Judgments of the European Court of Human Rights (DEJ) of the Council of Europe stressed that the Department needed NGO and lawyers’ input from the ground to understand the domestic environment in which a judgment is landing, and invited them to tell the DEJ what has changed domestically since the violation occurred. EIN’s training seminar participants learned how lawyers, who are not entitled under the Rules of the Committee of Ministers to comment on general measures, can partner with NGOs to submit such contextual information to the CM in the form of a Rule 9.2 submission. A huge thank you goes to Maria Radziejowska and Katarzyna Wiśniewska, who offered inspirational suggestions on how the human rights commissions of national bar associations and NGOs can systematically collect evidence from lawyers, and bring this data to the CM’s attention.  

Work on implementation starts at the litigation stage

The participants also heard from the EIN secretariat about how they can make sure their Rule 9 submissions have the greatest possible impact.

One key take-away from the seminar was that submissions to the CM are not a panacea, but only one tool in a widerarsenal that lawyers and NGOs can use to advocate for the full and rapid implementation of the cases they are supporting. Importantly, reflecting on implementation should start way before the ECtHR hands down its judgment. Lawyers should clearly spell out the origin of any violation they allege in their applications to the Court, and consider inviting it to call for specific remedial measures. Domestically, they should seek, as far as possible and in coordination with other actors, to engage with the authorities with a view to influencing the drafting of Action Plans. This way, Rule 9 submissions can become embedded in a holistic advocacy strategy, spanning the entire ‘lifetime’ of a case.

EIN is excited to see participants return to their countries and implement the lessons learned in their daily work. One participant undertook to donate his pro bono hours to working on implementation, and to encourage his colleagues to do the same. Another has already carried out an analysis of all fair trials related cases pending before the CM against his country, and is exploring ways to engage the human rights commission of his national bar association, of which he is a vice-president, to collect evidence on the implementation of these rulings. Opportunities for lawyers to engage in implementation are manifold, and we look forward to more Rule 9 submissions from our training participants.

If you are a lawyer or NGO representative, and want to see more tips shared with the participants of EIN’s training about how you can effectively advocate for the implementation of your cases, read-up on our live tweeting from Zagreb on Twitter, under the hashtag #EINtrainingFairTrials.

EIN would like to extend a warm thanks to Fair Trials, who have been a great partner in organising this training seminar, and to Geanina Munteanu from the DEJ for sharing an insider’s view on the CM judgment execution process and avenues for lawyers and NGOs to engage with it.

Photos: EIN

Representatives of EIN member Promo-LEX visit Strasbourg to raise awareness of important cases

Photo: EIN

On 5 and 6 March, a delegation of one of EIN’s newest members, the Moldovan organisation Promo-LEX, paid a visit to EIN in Strasbourg, where they held a number of meetings with Council of Europe interlocutors. The delegation was headed by Promo-LEX’s Executive Director, Ion Manole, and its Director of the Human Rights Program, Alexandru Postica, who were accompanied by Maria Roibu, Director of Alexandru cel Bun Lyceum, a school in the Transdniestrian region.

Promo-LEX, which was established as an association in 2002, is a non-governmental organisation that aims to advance democracy in the Republic of Moldova, including in the Transdniestrian region, by promoting and defending human rights, monitoring the democratic processes, and strengthening civil society.

The purpose of Promo-LEX’s working visit to Strasbourg was to raise awareness, ahead of this week’s 1340th DH meeting of the Ministers’ Deputies, of several important judgments of the European Court of Human Rights which are still awaiting full implementation: the Catan and others v Russia case, on access to education in Transdniestria, the Mozer v Russia case on inhuman conditions of detention in Transdniestria  and the PROMO LEX and Others v the Republic of Moldova case on freedom of assembly.

The EIN Secretariat facilitated a series of meetings for the Promo-LEX delegation with lawyers from the Council of Europe’s Department for Execution of Judgments (DEJ) dealing with their cases. Ms Roibu and Messrs Manole and Postica also had the opportunity to exchange views with staff from the Human Rights Commissioner’s Office, the secretariat of the Committee for Legal Affairs and Human Rights of the Parliamentary Assembly, and the EU representation to the Council of Europe.

Photo: EIN

On the second day of their visit, Promo-LEX briefed representatives of 18 delegations from Council of Europe member States about the continued failure of the Russian government to implement the judgment in the Catan case against the Russian Federation. 6.5 years after the ruling was handed down, the victims have still not received compensation, and no general reforms have been adopted. As a result, hundreds of schoolchildren in Transdniestria are still denied proper education in Latin-script schools. Ion Manole explains the situation in the video below. You can find further details here. Promo-LEX’s latest Rule 9.2 submission on the Catan case is available here.

EIN held its first 2019 advocacy briefing

On 25th February 2019, EIN held its quarterly civil society briefing, ahead of the 1340th CM-DH meeting.

Presentations were given on the following cases:

1.      Oya Ataman group v Turkey (Application Nr 74552/01)

2.      Fedorchenko and Lozenko group v Ukraine (Application Nr 387/03)

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

In addition, EIN Co-Director George Stafford gave, on behalf of EIN and REDRESS, an overview of the fundamental problems regarding ineffective investigations in Article 2 and 3 cases, in preparation for the CM thematic debate of 12th March.

Over 30 participants attended the briefing, including participants from the Permanent Representations to the Council of Europe, the EU representation to the Council of Europe and other CoE staff members. The briefing was co-financed by the UK Permanent Representation to the Council of Europe and organised with the support of the Irish Permanent Representation.

1- Oya Ataman group v Turkey (Application Nr 74552/01)

These cases concern violations of the applicants’ right to freedom of peaceful assembly and/or their ill-treatment or the death of their relatives when excessive force was used to disperse peaceful demonstrations. Certain cases also concern failure to carry out an effective investigation into the applicants’ allegations of ill-treatment or lack of an effective remedy in this respect (violations of Articles 2, 3, 11 and 13 of the Convention). In its decision of March 2018, the Committee of Ministers recalled that the origin of the problems stemmed from the legislation under which any demonstration carried out without prior notice was considered to be unlawful, and asked Turkey to fully align Law No 2911 with the Court’s jurisprudence. The Turkish government provided information on the state of implementation on 20 December 2017 and on 4 January 2019.

Photo: EIN

An update on the group was delivered by Basak Cali,  EIN Chair, Hertie School of Governance, Berlin; Center for Global Public Law, Koç University, Istanbul, on behalf of the Human Rights Joint Platform (IHOP). IHOP submitted a Rule 9.2 communication on the case on 4 February 2019.

First of all, she underlined that, since the last review of the state of implementation of the cases, Law N0 2911 had not been aligned with the Court’s jurisprudence. On the contrary, further restrictions on freedom of assembly were introduced through new legislative amendments, in particular to the Provincial Administration Law (No 5442).

Beyond these legislative developments, the practice shows the bans of assemblies of selected groups, the retaliatory use of tear gas, as well as civil and criminal law against peaceful protesters. Ms Cali gave examples related to the period after the end of the state of emergency in the country (18/7/2018): the Saturday mothers, continuous ban on gay pride and LGTBI events, despite existence of lawful requests to hold them, the case of Yüksel Resistance (see for further details the full text of the IHOP Rule 9.2 submission available below).

As far as the judicial practice is concerned, Ms Cali also pointed out that none of the judicial organs in Turkey was able to amend ordinary law through individual cases. “The root of the problem clearly lies in the lack of adequate legal framework, and arbitrary nature of the existing legal framework”, she said.

In conclusion, Ms Cali therefore called the Committee of Ministers to:

• take note of the lack of progress in full alignment of Law 2911 with Convention standards in the past twelve years.

• take note of the amendments to law 5442 and its use in supplementing the existing non compliant domestic legal framework, including the use of misdemeanour laws to punish peaceful assembly.

• request disaggregated statistical data from the Government to establish whether peaceful assemblies and gatherings are protected under all circumstances and without selective and arbitrary use of laws for assemblies and gatherings unfavourable to the executive authorities.

The presentation of Ms Cali on this group of cases is available here. The latest communication from the Turkish government ( 8  January 2019) is here. You can also download the Rule 9.2. submission by IHOP ( 24th January 2019) and the government answer (1st February 2019) to this communication here.

2-     Fedorchenko and Lozenko group v Ukraine (Application Nr 387/03)

These cases concern the failure to carry out effective investigations into violent acts allegedly carried out on racial/ethnic grounds (violation of the procedural limb of Articles 2 or 3) and to investigate a possible causal link between alleged racist attitudes and the attacks (violation of Article 14 taken in conjunction with Articles 2 or 3 in respect of its procedural limb). In Fedorchenko and Lozenko, the authorities failed to investigate the deaths of the applicants’ Romani-origin relatives caused by an arson attack on their house in October 2001.

The authorities submitted a first action plan on 17 September 2013 (see DH-DD (2013)1012) for Fedorchenko and Lozenko case. An updated action plan was published on 4th January 2019.

On 1st February, the European Roma Rights Centre and ICO Roma Fund Chiricli made a submission on this case, which they presented at the briefing.

Based on their fact-finding, both organisations argued that the Ukrainian government had not taken the necessary general measures to comply with the judgment. Throughout 2018, attacks occurred in Ukraine which targeted Romani communities in at least 5 cases. They appeared to be carried out by organised racist groups, and were not isolated. However, none of them were being treated as hate crimes.  In other words, none of the mechanisms the Ukrainian Government described in its updated Action plan were being deployed in these cases, which bear all the hallmarks of racially-motivated violence.

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In view of this situation, the representatives of ICO Roma Fund Chiricli and the European Roma Rights Centre therefore invited the CM to ask the Ukrainian authorities to:

• amend Article 161 § 2 of the Criminal Code

• regularly report to the Committee of Ministers on current hate crime cases (including the five presented at the briefing)

• ensure effective training of law enforcement

• set up an oversight structure for dealing with hate crimes

• strengthen mechanisms for complaints against police

• report to the Committee of Ministers on the budgets and financing for related aspects of Roma Integration Strategy 2020

The power point presentation of Mr Weiss, Ms Kondur and Ms Brassoi is available here. The January 2019 Action Plan by the Ukrainian Government is available here. The February 2019 Rule 9.2 submission by ERRC/ Chiricli made in February, and the answer by the Government, is available here.

3-     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.

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An update on the case was delivered by Katrine Thomasen, Senior Legal Adviser for Europe at the Centre for Reproductive Rights, and Kamila Ferenc, lawyer at the Federation for Women and Family Planning in Poland.

They underlined that the authorities’ communications dated January 2019 had not provided information on any measures towards establishing such a “viable system” for effective access to legal abortion care and thus comply with the Court’s judgment and the Committee of Ministers’ decision of September 2018 on the case. The authorities continued to claim that existing legal provisions and mechanisms are adequate. However, as Ms Thomasen highlighted, according to official statistics only between 0 and 3 legal abortions are performed each year in Poland on grounds of a pregnancy resulting from sexual assault. In addition, conscience-based refusals of abortion care remain widespread.

In light of this situation, Ms Thomasen and Ms Ferenc invited the Committee of Ministers to ask the Polish authorities to:

• guarantee timely referral in situations of conscience-based refusals of legal abortion care

• rigorously enforce legal provisions on abortion and refusals of care, including through sanctions and disciplinary measures

• adopt urgent procedural mechanism: decision within max. 3 days; the right of judicial appeal; enforceable orders mandating the care to be provided

• monitor and enforce National Health Fund contracts

You can find the memo of Ms Thomasen and Ms Ferenc here. Their power point presentation is here and their Rule 9.2 communication is there. The more recent communication from the Polish authorities on this case is here.

Photo credit: EIN