EIN Briefing on Domestic Violence in Russia and Prison Conditions in Ukraine

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EIN held its latest civil society briefing on 23rd November 2020. Due to the Covid-19 crisis, the event was held online.

 

The briefing focused on the following cases:

1)    Volodina v. Russia, concerning domestic violence and discrimination against women in Russia, presented by Vanessa Kogan, Stichting Justice Initiative Executive Director.

2)    The Nevmerzhitsky case, concerning overcrowding and poor material conditions of detention, the inadequacy of medical care in detention, and lack of effective remedies in all these respects, presented by Hugues de Suremain, European Prison Litigation Network, and Gennadiy Tokarev, Kharkiv Human Right Protection Group

You can find a summary of their Recommendations on these cases here.

 

The Volodina case

 

This case concerns domestic violence, including grave physical and mental suffering from physical and psychological abuse of the applicant over two years by her ex-partner. The applicant submitted over eight complaints to the authorities over two years: no attempt to protect the applicant from further violence or to open criminal proceedings against the (known) perpetrator.

 

The ECtHR found a violation of the applicants right to Article 3 of the European Convention on Human Rights (Prohibition of torture and cruel treatment). The Court stated that authorities had failed to uphold their obligations to establish a legal framework to prevent the known risks of ill-treatment and to carry out an effective investigation into allegations of ill‑treatment. (para. 78-101). The Court also found a violation of the applicant's Article 14 (Prohibition of discrimination) right. “The Russian authorities failed to create conditions for substantive gender equality that would enable women to live free from fear of ill-treatment or attacks on their physical integrity to benefit from the equal protection of the law.”(para. 132)

 

While ECtHR has judged this case, the Committee of Ministers is not monitoring the implementation of the ECtHR judgment of the case.

 

The presentation was given by Vanessa Kogan, Stichting Justice Initiative Executive Director. You can find the video of their briefing below.

 SJI recommends that the Volodina case should be examined by the Committee of Ministers under the enhanced procedure, at least every six months. Also, individual measures should focus on effective ex officio criminal investigations, and that general measures should aim to eliminate current specific shortcomings.

 

Relevant documents

 

The Nevmerzhitsky Group case

The Nevmerzhitsky Group concerns poor conditions of detention, specifically, overcrowding and poor material conditions, the inadequacy of medical care, and lack of effective remedies in all these respects. The ECtHR has stated that the lack of proper medical treatment in Ukrainian prison is a structural issue, and no effective remedy is available. 

 

The presentation focused on issues related to a lack of healthcare in prison facilities. The lack of access to healthcare in Ukrainian prisons is a situation of extreme urgency. There are several issues at the core of this prison crisis, inconsistent health policy, a health system facing major systemic and structural difficulties and the inefficient management of infectious disease, and lastly difficulties exacerbated by the COVID-19. 

 

The Committee of Ministers is monitoring the Nevmerzhitsky group and will resume its examination at their 1390th meeting (December 2020) (DH).

Presentation by Hugues de Suremain, European Prison Litigation Network, and Gennadiy Tokarev, Kharkiv Human Right Protection Group. You can find the video of their briefing below.  

In particular, the presenters called on the Committee of Ministers to request the Government of Ukraine to:

  • urgently fill the vacancies for health care workers and the need for equipment and medicines;

  • clarify as soon as possible the chain of responsibility within the medical units and designate those responsible for the quality of care;

  • initiate, possibly in the form of a consensus conference, a transparent process for the transfer of prison medicine to the Ministry of Health, comprising a national debate including civil society and international organizations.

    In addition, EPLN and KHPG also called on the Committee of Ministers to:

  • separate the examination of groups of cases concerning health care in prison from those concerning material conditions of detention, as the necessary reforms involve distinct responses, actors and time frames;

  • act with the Directorate-General for Human Rights to ensure that prison health issues are given greater priority in cooperation programs and find synergies with relevant EU instruments.

 

Relevant documents

Joint statement regarding the non-implementation of ECtHR judgments against Azerbaijan in cases of politically motivated prosecution

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The European Court of Human Rights (ECtHR) has rendered judgments identifying the politically motivated prosecution of sixteen different people in Azerbaijan. The victims include human rights defenders, a journalist, civil society activists and politicians. So far, only two of these judgments have been implemented – and only in regard to individual measures - following the acquittal of politician Ilgar Mammadov and human rights defender Rasul Jafarov in April. Since then, there has been no progress in obtaining justice for the other individual victims; and no progress toward the general measures necessary to resolve the underlying issue.

The European Implementation Network has joined with 8 other NGOs to highlight this ongoing situation and call for urgent action.

 Joint statement regarding the non-implementation of ECHR judgments against Azerbaijan in politically motivated prosecution cases 

by Amnesty International, the Baku Human Rights Club, the Election Monitoring and Democracy Studies Centre, the European Human Rights Advocacy Centre, the European Implementation Network, the Human Rights House Foundation, the International Partnership for Human Rights, the Legal Education Society and the Netherlands Helsinki Committee. 

10 November 2020 

  1. Widespread use of criminal law and restrictive NGO legislation as a weapon against critical voices is an ongoing hallmark of the human rights situation in Azerbaijan. The government has tried to silence human rights defenders, including lawyers, journalists, bloggers, and civil society leaders as well as politicians by means of arbitrary prosecution and imprisonment. 

  2. So far, the European Court of Human Rights (ECtHR) has rendered ten judgments against the Government of Azerbaijan – concerning sixteen victims - regarding politically motivated prosecutions (Article 18 of the ECHR). Only two have been implemented so far and only with regard to their individual measures. Progress on general measures necessary to implement all the judgments concerned, including those closed under the infringement procedure in the case of Ilgar Mammadov v. Azerbaijan, under article 46.4 ECHR, is flagrantly absent. 

  3. In its most recent decision, rendered on the 4th of September 2020, the Committee of Ministers of the Council of Europe has ended infringement proceedings against Azerbaijan. It expressed satisfaction in view of the acquittal of two of the applicants, Ilgar Mammadov and Rasul Jafarov. It also called for restitutio in integrum for the other applicants who continue to endure the consequences of arbitrary criminal convictions. These include Anar Mammadli, the head of the Election Monitoring and Democracy Studies Centre, and the prominent human rights lawyer Intigam Aliyev. On the same day that the Committee of Ministers’ decision to end infringement proceedings was taken, another Azeri opposition leader, Tofig Yagublu, was convicted on what Amnesty International have described as politically motivated charges.i 

  4. Our organisations do not believe that these two acquittals alone should warrant an optimistic assessment of the actions of the Azerbaijani authorities. Nor should they warrant a decrease in the level of supervision by the Committee of Ministers. Systemic problems of reprisals and political persecution persist in Azerbaijan, as the government continues its strategy to weaken civil society and peaceful dissent. 

  5. Local human rights groups have compiled a list of political prisoners, which on 10 June 2020 included 108 people.ii Since the beginning of the pandemic, the government has continued a crackdown on dissenting voices.iii Following political opposition rallies in Baku in July 2020, more than 100 opposition leaders, supporters, and activists were detained and prosecuted on politically motivated charges or subjected to severe penalties under administrative law.iv 

  6. Even when victims of politically motivated prosecutions are released from custody, they are left with criminal records. The effects of this are significant, and include bans on carrying out professional activities (such as leading NGOs or representing clients in legal proceedings); being unable to access bank accounts; ineligibility to stand in elections; and bans on travelling abroad. 

  7. Government critics have been pursued under trumped-up charges, detained arbitrarily, subjected to torture and other ill-treatment, and imprisoned following unfair trials. All pillars of the criminal justice system have been compromised: starting with the police (who carry out arrests without due process); continuing with the prosecution (which uses trumped-up charges); and finishing with courts (which hand out convictions following unfair trials, in which “confessions” obtained under torture are routinely admitted as evidence). 

  8. Restrictive NGO laws were introduced in Azerbaijan in 2013-2014 and have been applied arbitrarily since then. The result has been the hindering of legitimate activities of independent NGOs critical of the government, in particular through continued arbitrary denial of registration and the application of onerous reporting, tax and other requirements creating a pretext for a string of arbitrary arrests and prosecutions of NGO leaders. Subsequent amendments in 2016-2017 created a lengthy, complex and burdensome multi-tier system of approval of grants, which de facto prevents NGOs from accessing grants from foreign donors. Each grant agreement requires approval from the Ministry of Justice and an opinion on the financial-economic expediency of the grant from the Ministry of Finance, which interpret provisions in a discretionary manner, on vague and broad grounds.v Grants are refused for areas which are considered to be already addressed by the governments or where the purpose of a grant and its financial-economic expediency can be assessed as insufficiently described. Furthermore, the state controls information over NGO donations, collects information on individuals donating to NGOs, and exercises extensive monitoring powers over NGO activities. The rules on investigating activities of NGOs give the Ministry of Justice the power to impose, in the context of inspections, requirements on NGOs that are extremely burdensome. 

  9. The entirety of this legislation has forced NGOs to operate on the fringes of the law in order to continue functioning, leaving them exposed to sanctions deriving from arbitrary interpretations of this exceedingly prohibitive legislation. The European Court of Human Rights has held that the harsh regulation of NGO activity “cannot be ignored” when looking at the politically motivated prosecution of members of civil society, because the nature of the regulations leads to the criminalization of NGO activity.vi The Courtvii, the Venice Commissionviii and the former Commissioner for Human Rights ix have all expressed grave concerns about the NGO legislation not being in line with international standards and about the arbitrary and harsh way it has been applied. 

  10. The issues of politically motivated prosecutions and the restrictive NGO framework are therefore closely intertwined. Intigam Aliyev, Rasul Jafarov and Anar Mammadli, amongst others, were imprisoned under legislation governing NGOs. In these cases, accusations of criminal activity were unlawfully linked to the administrative failures to adhere to draconian NGO and grants legislation. Systemic misuse of the criminal justice system in Azerbaijan cannot be effectively addressed without carrying out reforms to change the laws that are used to facilitate them. Furthermore, a vibrant civil society is fundamental to achieving reforms to ensure independence of the judiciary and prosecution authorities, which are necessary to prevent politically motivated prosecutions - and this will not be possible under legislation that is suffocating civil society. 

  11. We, the undersigned NGOs, call upon the Committee of Ministers of the Council of Europe to: 

  • Express serious concern for Azerbaijan’s failure to pursue any of the measures required to address the systemic causes that led to the multiple Court judgments finding politically motivated prosecutions and imprisonment of government critics, lawyers, and human rights defenders, and which led the Committee of Ministers to initiate its first infringement procedure under art 46.4 ECHR in the case of Ilgar Mammadov v Azerbaijan.

  • Maintain the Mammadli group on the agenda of every upcoming CM DH meeting, in order to apply continuous and effective scrutiny of the implementation of individual and general measures, as a follow up to the infringement procedure in the case of Ilgar Mammadov v. Azerbaijan.

  • Call upon the Azerbaijani authorities to effectively address the lack of independence in the judiciary that enables and condones arbitrary arrests and prosecutions; to end the politically motivated prosecution of members of civil society and all arbitrary restrictions on their work; and to stop reprisals for legitimate human rights work.

  • Address the issue of restrictive NGO and grants legislation in the next decision regarding the Mammadli group and request the Azerbaijani government to amend the current restrictive legislation regarding NGO activities and grants to bring it into line with the country’s obligation under international human rights law.

  • Request that the Secretariat prepare an Interim Resolution, to be issued by the Committee of Ministers at its March 2021 CM/DH meeting unless the criminal convictions of all applicants in this group are overturned by that meeting.

12. Further details of the arguments set above are available in the submissions made by Amnesty International and the European Human Rights Advocacy Centre[i], the International Partnership for Human Rights[ii], and in Rule 9.1 submissions made by the victims, available here.


Endnotes

[i] https://www.amnesty.org/en/latest/news/2020/09/azerbaijan-tofig-yagublu-handed-politically-motivated-sentence/

[ii] A unified list of political prisoners in Azerbaijan, The Working Group (WG) on Unified List of Political Prisoners in Azerbaijan, 21 February 2019, available at:

 https://www.turan.az/ext/news/2020/6/free/Social/en/124755.htm
available at (in azeri) https://smdtaz.org/wp-content/uploads/2020/06/Vahid-Siyasi-Mahbus-Siyahisi-10.06.2020-az.pdf

[iii] Human Rights House Foundation, Azerbaijani authorities must cease crackdown on dissenting voices, and release political prisoners, 9 September 2020.

[iv] Amnesty International Public Statement, Azerbaijan: End Brutal Crackdown on Opposition Activists, 5 August 2020, available at https://www.amnesty.org/download/Documents/EUR5528482020ENGLISH.pdf

[v] 1377th meeting (June 2020) (DH) - Rule 9.2 - Communication by Amnesty International, European Human Rights Advocacy Centre (27/04/2020) in the ILGAR MAMMADOV GROUP v. Azerbaijan.

[vi] Yunusova and Yunusov v. Azerbaijan, application no. 68817/14, judgment rendered on 16 July 2020, para. 192. See also Rasul Jafarov v. Azerbaijan, application 69981/14, judgment of 04 July 2016 para 120.

[vii] Rasul Jafarov v. Azerbaijan, application 69981/14, judgment of 04 July 2016 para 120.

[viii] Opinion on the compatibility with human rights standards of the legislation on non-governmental organisations of the Republic of Azerbaijan, adopted by the European Commission for Democracy Through Law (Venice Commission) at its 88th Plenary Session (Venice, 14-15 October 2011).

[ix] Third party intervention by the Council of Europe Commissioner for Human Rights under Article 36, paragraph 3, of the European Convention on Human Rights in the case of Rasul Jafarov v Azerbaijan, Application No. 69981/14, CommDH(2015)8,  20 March 2015.

[x] 1377th meeting (June 2020) (DH) - Rule 9.2 - Communication by Amnesty International, European Human Rights Advocacy Centre (27/04/2020) in the ILGAR MAMMADOV GROUP v. Azerbaijan

[xi] 1369th meeting (March 2020) (DH) - Rule 9.2 - Communication by International Partnership for Human Rights (IPHR) (12/02/2020) in the ILGAR MAMMADOV GROUP v. Azerbaijan (Application No. 15172/13)

New Project for Improving the Impact of ECtHR Judgments in Russia and Eastern Partnership Countries

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EIN has the pleasure to announce the launch of a new project addressing the non-implementation of judgments of the European Court of Human Rights, in Russia and Eastern Partnership countries.

Through its judgments, the European Court of Human Rights identifies serious gaps in the protection of human rights, democracy and the rule of law. This process should lead to the identification of structural problems and to their resolution through reforms. However, this system now faces a serious challenge, arising from the failure by states to take the action required to resolve problems highlighted by the judgments. This issue is particularly serious in countries East of the EU, as demonstrated by the proportion of leading judgments from the last ten years that are still pending implementation: Russia (88%); Ukraine (63%); Moldova (46%); Armenia (62%); Azerbaijan (96%); Georgia (54%).

EIN will start a new project in July, focusing on improving implementation in these states. We will work with local partners to improve advocacy at the national level for judgment implementation, by sharing best practices, collaborating to identify how best to advance implementation in particular environments, and forming strategies for ongoing work.

EIN is grateful to the Swedish government for its generous financial support of this project.

 

Co-Director Anne-Katrin Speck leaves EIN

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After having working as Co-Director of EIN over the last 1.5 years, Anne-Katrin has left the EIN team to work as a full-time doctoral researcher at the University of Ghent.

During her time at EIN, Anne played a crucial role in enriching the organisation’s capacity-building methodology and organised multiple trainings. As a result of her work, over 130 NGO representatives and lawyers were trained on the ECHR judgment implementation process over the last 15 months. She initiated new forms of trainings, coupled with public events, which enhanced debate about the challenges linked to the non-implementation in particular countries. Thanks to her in-depth knowledge of the process, Anne also helped improve and intensify the participation of NGOs in the implementation of key ECHR cases. Her commitment allowed EIN to flourish and extend to a vibrant network of more than 30 members from over 20 countries. Finally, Anne produced important resources which will assist those working on implementation for many years. These include a guide on the implementation of standard cases, and the recently published EIN Toolkit on using domestic advocacy to advance the implementation of ECHR judgments. 

The entire EIN Network would like to thank Anne for her incredibly valuable contribution to EIN’s mission and work, as well as her team spirit. We wish her all the best for her academic career.

Following her departure from the Secretariat, Anne applied to be an individual member of EIN. This application was accepted by the EIN Board, meaning that the network will benefit from Anne’s input in the coming years.

Following Anne’s departure, EIN Co-Director George Stafford will take on the role of EIN Director.

New project to support free speech and the victims of political persecution

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A woman is silenced © Flickr/Jennifer Moo

EIN is delighted to announce its role in a new project aiming to ensure robust compliance with the European Convention on Human Rights (ECHR) in Azerbaijan, Russia, Turkey, and Ukraine.

EIN will work as a junior partner in the project, which is led by one of our member organisations, the Netherlands Helsinki Committee. The NHC’s Human Rights Defence Programme works to safeguard human rights by developing the capacity of civil society to communicate effectively; by building their resilience to actively engage in advocacy on human rights; and by supporting human rights defenders.

Starting in July 2020, the new project will focus specifically on compliance with ECtHR judgements in relation to freedom of speech and freedom from political prosecution in Azerbaijan, Russia, Turkey, and Ukraine. Human rights defenders and NGOs, journalists and other media outlets play an important part in ensuring fundamental freedoms are upheld and that the general public is informed about government decisions. Protecting their freedom of expression and freedom from political persecution is the cornerstone of democracy. In calling on states to uphold their obligations to implement Court rulings – whether by overturning or commuting convictions or sentences; providing reparations to victims of human rights violations; or changing laws to ensure such violations don’t recur – the project will ultimately contribute to the provision of genuine protection of the freedom of expression and the freedom from political persecution for the whole of society.

We are grateful to the Ministry of Foreign Affairs of The Netherlands for its financial support of this project.

An assessment of NGO impact on ECtHR judgment implementation

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Implementing judgments of the European Court of Human Rights: An assessment of the impact achieved through NGO engagement with the Council of Europe’s judgment execution process in three cases on the rights of LGBTI persons

By Nigel Warner, ILGA Europe and EIN Bureau member

This article is a summary. The full version of the paper can be found here.

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Since 2009 the Council of Europe (CoE) has made specific provision for engagement by NGOs in its process for ensuring implementation of judgments of the European Court of Human Rights (ECtHR). The purpose of this paper is to illustrate the impact that such engagement can achieve with a view to encouraging further NGO involvement.

Many judgments of the ECtHR are implemented by the respondent state without a need for engagement by NGOs with the judgment execution process.[1] However, in a significant proportion a respondent state may be slow – or even resist – putting in place the measures required. Where there is resistance to implementation, the CoE has limited opportunities for obtaining the information it needs to verify that provided by the national authorities. NGOs have a critical role to play in providing this information. The potential for impact is indeed very high, provided they stay the course until implementation is finally achieved.

This paper illustrates the impact achieved through NGO involvement by analysing developments in the implementation of three cases in the field of sexual orientation and gender identity (SOGI), which address three distinct types of violation:

-        denial of the right to peaceful assembly (GENDERDOC-M v. Moldova - “the Moldovan freedom of assembly case”);

-        failure of the authorities to conduct effective investigations into possible hate crimes (M.C. & A.C. v. Romania -  “the Romanian hate crime case”);

-        and the absence of effective procedures governing gender reassignment treatment (L v. Lithuania – “the Lithuanian trans rights case”).

Different degrees of impact are assessed to arise at four distinct levels within the course of the judgment execution process, from the lowest level of impact (1) to the highest level (4), as follows:

  1. “Recognition by the Committee of Ministers (CM)[2]”: The extent to which the NGO’s recommendations and/or evidence are acknowledged implicitly or explicitly by the CoE, in a Decision of the CM, or by the Department for the Execution of Judgments (DEJ) in communications with the respondent state.

  2. “Engagement”: An increased willingness by the authorities to consult with NGOs making submissions to the CoE.

  3. “Adoption”: The extent to which an NGO persuades the respondent state to adopt its recommendations in the Action Plan.

  4. “Execution”: The extent to which an NGO contributes to ensuring that the Action Plan measures are implemented effectively. This is of course much the most significant level of impact. NGOs can support implementation by making available their expertise to the authorities.

 Read more

[1] Recent SOGI cases implemented without a need for NGO engagement include: A.P., Garçon & Nicot v. France (79885/12) (requirement for trans persons to undergo sterilisation to obtain legal gender recognition in violation of Article 8); Orlandi and others v. Italy (26431/12) and Oliari v. Italy (18766/11) (legal recognition of same-sex partners); Pajic v. Croatia 68453/13 (discrimination in obtaining a residence permit on the ground of family reunification); Taddeucci & McCall v. Italy (51362/09) (discrimination in obtaining a residence permit on the ground of family reunification); Vallianatos & Mylonas v. Greece 29381/09 (legal recognition of same-sex partners).

[2] When a case succeeds before the ECtHR it is passed over to the Committee of Ministers, whose responsibility it is to ensure that the respondent state complies with its obligation to implement the judgment. The CM does this through a supervisory mechanism – the execution of judgments process – which allows, when needed, for the application of political pressure on the respondent state. The CM is supported in this work by the Department for the Execution of Judgments (DEJ).