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!

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’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!

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

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