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