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.

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