EIN Civil Society Briefing November 2021: Navalnyye v. Russia, Identoba v. Georgia, and Catan and others v. Russia and liquidation of Memorial

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On 18 November 2021, EIN held a civil society briefing for Permanent Representatives of the Council of Europe, ahead of the Committee of Minister’s Human Rights Meeting on 30 November – 2 December 2021. The event was held in-person, the first in-person civil society briefing since the pandemic.

The Briefing focused on the following cases: 

  • Navalnyye v Russian Federation, concerning criminal conviction based on an unfair trial and an arbitrary application of criminal law (violations of Articles 6 and 7), presented by Anna Maralyan from Centre de la Protection Internationale.

  • Identoba and others v Georgia, concerning the lack of protection against homophobic attacks during demonstrations, presented by Tamar Oniani, Head of the International Litigation Team, Georgian Young Lawyers Association (GYLA).

  • Catan and others v Russia, concerning violations of the rights of children, parents and staff members of Latin-script schools located in the Transnistrian region of the Republic of Moldova. This briefing was presented by Alexandru Postica and Ion Manole, from Promo-LEX, and Svetlana Jitariuc, a teacher and mother of two pupils - applicants in the case of Catan and others.

  • Statement on the liquidation of the NGOs International Memorial and Human Rights Centre Memorial by Dmitry Gurin, Senior Lawyer with Memorial Human Rights Centre (ECtHR litigation practice)

Navalnyye v Russian Federation

The Navalnyye case concerns the criminal conviction in 2014 of Mr Aleksey Navalny and his brother, Mr Oleg Navalnyy.

Overview of Briefing

The Centre de la Protection Internationale reminded participants of the European Court of Human Rights judgment in the case:

  • The criminal law was extensively and unforeseeably construed to the detriment of the accused in the determination of the criminal charges against the applicants and such an interpretation cannot be said to have constituted a development consistent with the essence of the offence, in breach of Article 7 of the Convention. (Navalnyye v Russia, no. 101/15, 17 October 2017, §§ 58-68)

  • The judicial examination of this case was flawed with arbitrariness which was distinct from an incorrect legal classification or a similar error in the application of domestic criminal law. That undermined the fairness of the criminal proceedings in such a fundamental way that it rendered other criminal procedure guarantees irrelevant. (Navalnyye v Russia, no. 101/15, 17 October 2017, §§ 83-84) 

Image Credit: EIN

The Centre de la Protection Internationale reminded participants of essential facts of the case: 

  • Mr. Navalnyy’s near-fatal poisoning by “Novichok” nerve agent and findings of several European independent laboratories and the OPCW;

  • Hindrance in Mr. Navalnyy’s transfer to the Charité University Medical Centre (Berlin);

  • Mr. Navalnyy’s arrest upon his arrival to Russia;

  • Dispersal of demonstrations in Mr. Navalnyy’s support;

  • Change of the suspended sentence into a real term of imprisonment;

  • Rule 39 decision requesting Mr. Navalnyy’s immediate release.

  • Mr. Navalnyy’s disappearance and his transfer to IK-2;

  • Constant sleep disturbance;

  • No access to adequate medical treatment and continuous psychological pressure;

  • Facts revealed by TV Rain film (available at: https://tvrain.ru/teleshow/reportazh/pytki_dlja_navalnogo-541266/);

  • Inhuman treatment against Mr. Navalnny and Imminent threat to Mr. Navalnyy’s life and limb.

  • Preventive registration as a person prone to escape and preventive registration as a person prone to terrorism and extremism.  

The Centre de la Protection Internationale provided the following recommendations to the CM for authorities to:

  • Urge the respondent State to comply with its obligations under Article 46 of the Convention and Article 3 of the Statute of the Council of Europe; 

  • Urge Russian highest State authorities to ensure by all appropriate means Mr. Navalnyy’s immediate release and to erase rapidly the remaining consequences for Mr. Navalnyy of the violations established by the referred judgments;

  • Call on the Secretary-General and the authorities of the member States to raise Mr. Navalnyy’s situation with the Russian highest authorities in order to get him released without any delay;

  • Ensure the implementation of the judgment by using all the means at the disposal of the Committee, including those under Article 46.4 of the Convention and to initiate an infringement proceeding as stipulated by Rule 11 of the Rules of the Committee of Ministers if the authorities refuse to execute the judgments without any further delay. 

Please see the slides for the full Briefing.

Relevant Documents:

Rule 9.1 Submissions

1411th meeting (September 2021) (DH) - Rule 9.1 - Communication from the applicant (04/08/2021) in the cases of Navalnyye (Navalnyy and Ofitserov group), Navalnyy and Navalnyy (No. 2) v. Russian Federation (Applications No. 101/15, 29580/12, 43734/14) [anglais uniquement] [DH-DD(2021)788]

1406th meeting (June 2021) (DH) - Rule 9.1 - Communication from the applicant (10/05/2021) in the cases of Navalnyye and NAVALNYY AND OFITSEROV (Navalnyye) v. Russian Federation (Applications No. 101/15, 46632/13) [anglais uniquement] [DH-DD(2021)486]

1398th meeting (March 2021) (DH) - Rule 9.1 - Communication from the applicant (23/02/2021) in the case of Navalnyye v. Russian Federation (Application No. 101/15) (Navalnyy and Ofitserov group) [anglais uniquement] [DH-DD(2021)221]

1398th meeting (March 2021) (DH) - Rule 9.1 - Communication from the applicant (05/02/2021) in the cases of Navalnyye and Navalnyy v. Russian Federation (Applications No. 101/15, 29580/12) [anglais uniquement] [DH-DD(2021)151]

1398th meeting (March 2021) (DH) - Rule 9.1 - Communication from the applicant (22/01/2021) in the cases of Navalnyye (Navalnyy and Ofitserov group) and Navalnyy v. Russian Federation (Applications No. 101/15, 29580/12) [anglais uniquement] [DH-DD(2021)103]



Identoba and others v Georgia 

These cases concern degrading treatment of the applicants on account of the abusive police conduct during a search of premises of an LGBT NGO motivated by homophobic and/or transphobic hatred (in 2009), the authorities’ failure to provide adequate protection against inhuman and degrading treatment inflicted by private individuals on LGBTI activists (in May 2012) and Jehovah’s Witnesses (in 1999-2001), who were violently attacked during marches/meetings, as well as the absence of effective investigations, including as regards discriminatory motives in that connection.

Overview of Briefing

GYLA reminded participants of the latest CM decision regarding the case from 2020:

  • The Deputies noted with concern that discrimination on grounds of sexual orientation and gender identity remains a serious challenge in Georgia, referring to the Public Defender’s 2019 special report on discrimination and NGO communications.

  • The Deputies specifically acknowledged that this issue includes the realization of freedom of expression and assembly by LGBTI persons and Jehovah Witnesses, while the identification of bias in the context of investigations remains a major challenge 

Image Credit: EIN

GYLA outlined the remaining key concerns:

  1. LGBT+ community and Jehovah’s witnesses still remain one of the most vulnerable groups in society.

  2. LGBT+ community still has difficulties with full enjoyment of their right to assembly, education, labor and availability with healthcare and social services;

  3. Discrimination based on religion or gender identity is encouraged by the public officials, while they shall take a crucial part in raising social awareness to the fight against homophobia and religious intolerance.

  4. The Government of Georgia is not complying with the decision of the Committee of Ministers, by which the CM on 1383rd meeting, 29 September – 1 October 2020 (DH), the Deputies reiterated their call on the authorities to establish a specialised investigative unit within the police to carry out effective investigations into hate crime.

  5. As of today, the Code of Administrative Offences does not envisage the possibility of establishing discriminatory motive, as the aggravating factor for administrative liability.

    • This means that an illegal act committed against the LGBT+ community and/or Jehovah’s Witnesses, which does not attain the criminal liability threshold, but according to the assessment of the investigative authorities, is qualified under the particular Article’s simple composition of the CAO, it is impossible to establish discriminatory motive even in theory.

GYLA provided the following recommendations to the CM urging authorities to:

  • create a specialized investigative unit within the Ministry of Internal Affairs that would be capable of investigating the hate crimes;

  • amend the Code of Administrative Offences and define the discriminatory motive, as the aggravating factor of the liability;

  • undertake social awareness-raising campaigns concerning the prohibition of discrimination and hate crimes;

  • undertake relevant activities and measures in order to enhance the trust between the law enforcement agencies and the LGBT+ community and religious minorities.

Please see the slides for the full Briefing. 

Relevant Documents:

Latest Rule 9.2 Submissions

1419th meeting (December 2021) (DH) - Rule 9.2 - Communication from an NHRI (Public Defender's Office Georgia) (18/10/2021) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) [anglais uniquement] [DH-DD(2021)1136]

1419th meeting (December 2021) (DH) - Rule 9.2 - Communication from an NGO (Georgian Young Lawyers’ Association) (11/10/2021) in the case of IDENTOBA AND OTHERS v. Georgia (Application No. 73235/12) [anglais uniquement] [DH-DD(2021)1100]

1398th meeting (March 2021) (DH) - Communication from an NGO (European Association of Jehovah’s Witnesses) (25/01/2021) in the case of MEMBERS OF THE GLDANI CONGREGATION OF JEHOVAH'S WITNESSES AND OTHERS v. Georgia (Application No. 71156/01) (Identoba group) [Anglais uniquement] [DH-DD(2021)242]

CM Decisions

1383rd meeting (29 September - 1 October 2020) (DH) - H46-5 Identoba and Others group v. Georgia (Application No. 73235/12) [CM/Del/Dec(2020)1383/H46-5]

1355 meeting (DH) September 2019 - H46-8 Identoba and Others group v. Georgia (Application No. 73235/12) [CM/Del/Dec(2019)1355/H46-8]

 

Catan and others v Russia

The cases in this group concern violations of the right to education of children and parents using Latin-script schools in the Transnistrian region of the Republic of Moldova.

Overview of Briefing 

Promo-LEX reminded participants of the individual and general measures required for the case to be implemented: 

  • Payment of sum ordered by the Court, as well as the payment of the costs and expenditures.

  • The elimination of all provisions that restrict the use of the Latin alphabet in the functioning of the Romanian language in the Transnistria region.

  • The annulment of the obligation that educational institutions operating in the Transnistria region that use the curriculum approved by the Moldovan Ministry of Education or wish to work in the region on the basis of that curriculum register with the so-called “Ministry of Education”.

  • The removal of any prohibition on the introduction of books and textbooks for study in educational institutions using the Latin script in the Transnistrian region.

  • Repeal provisions of the so-called local authorities of the towns of Ribnita, Bender and Grigoriopol regarding the eviction of high schools from buildings owned by them.

  • The restoration of the building for “Evrica” High School, and the building formerly used by the “Stefan cel Mare” High School in Grigoriopol before the eviction and assigning a building for “Alexandru cel Bun” High School.

Promo-LEX outlined the following in regard to the situation in Transnistria:

Political support of Russian Federation

  • On 16.06.2021, the State Duma of the Russian Federation adopted a Declaration requesting the President and the Russian Government not to allow the application of the joint Moldovan-Ukrainian customs control to the Transnistrian border segment from July 1.

  • H.E. Ambassador Vasnețov of the Russian Federation regularly participates in different public events organised by Transnistrian administration.

  • A lot of deputies from State Duma participated in different events organised by “Transnistrian officials”. 

  • In the region, 59223 people participated in the RF Duma election in 2021. For this election, 27 polling stations were opened in the Transnistrian region, without the Republic of Moldova permission.  

Economical support of Russian Federation

  • Russia has provided humanitarian aid as a supplement to pensions since 26 December 2007.

  • In 2020 Tiraspol received “humanitarian aid” to pensions for more than 146000 pensioners or more than 2,5 mil. euro.

  • After the gas crisis, Russia keeps the same price for gas for “MRT”, but at the same time raise the price for the rest of Moldova up to two and half times. 

Military support of Russian Federation

  • Joint drills of military units of the Russian Federation and secessionist paramilitary groups.

  • Russian Operative Group has been so integrated into the society from this territory that it creates jobs for the inhabitants of the Transnistria region, it also offers “lessons on peace” and patriotism for the young generation.

  • In 2021, ROG realized at least 450 actions, of which 300 are social or sportive actions.

Promo-LEX outlined the problems of education:

The problem of buildings

  • Neither of the edifices of the schools situated on the left bank of the Dniester River are adapted to the educational process according to the standards of the Ministry of Education (except for Roghi).

  • All the premises seized from educational institutions in Bender, Grigoriopol and Rîbniţa are currently subordinated to local public administrations and are not used by any public institution in the region.

The problem of pupils

  • Most of the students suffer from psychological trauma (PTSD).

  • The children are forced to cross tens of kilometres to attend school.

  • The health condition of children has been under threat because of the lack of healthy food, physical exercise.

  • Complete lack of information in the mother tongue.

  • The children studying in these schools are victims of discrimination and intimidation (including recruiting into the Transnistrian army).

Intimidation and discrimination

  • The local television and mass media foster hatred and discrimination against Moldovan and Ukrainian ethnicities.

  • Unannounced visits of various control bodies to educational institutions for intimidation purposes.

  • Threats on behalf of Security and Military Structures addressed to School headmasters.

  • Military recording and enrolment of young people in paramilitary structures.

Image Credit: EIN

Promo-LEX provided the following recommendations to the CM urging authorities to:

-        Pay the compensation due to all applicants.

-        Present a concrete action plan including the general measures indicated in the ‘General Measures’ section above.

Promo-Lex called on the Committee of Ministers to consider the application of the art. 46 paragraph 4 of Convention.

Please see the slides for the full Briefing. 

Relevant Documents:

Overview of Statement on the Liquidation of

the NGOs International Memorial and Human Rights Centre Memorial

Overview of Presentation

On 11 November 2021, the news broke that the Office of the Prosecutor General of the Russian Federation filed a lawsuit to the Supreme Court of the Russian Federation seeking liquidation of one of the oldest Russian NGOs, International Memorial. The reason is the repeated violation of the legislation on "foreign agents". The Human Rights Center is additionally accused of justifying extremist and terrorist activities. The hearing for the liquidation of the International Memorial is scheduled for November 25. The preliminary hearing on the liquidation of the Human Rights Center Memorial is scheduled for November 23. 

Over the past decades, the Human Rights Center has dealt with human rights issues in Chechnya, the rights of migrants, supporting political prisoners, defending the rights of Russian citizens in the European Court of Human Rights (ECHR) and has become one of the largest and most respected human rights organizations in the country. Having launched the ECHR program in 2000, Memorial HRC lawyers have since won 140 cases, helping 361 individuals obtain legal redress and secure their rights under the European Convention. To this day, around 250 applications lodged by Memorial HRC lawyers are still pending, including the case of 61 NGOs on the quality of the Russian Foreign Agents Act (Ecodefense and Others v. Russia, application no. 9988/13). If Memorial is eliminated, it would also seriously affect the work on the implementation of the ECHR judgments.

Memorial is undertaking important work both on the domestic and international level related to the implementation of individual and general measures related to the ECHR judgments. Memorial prepared the submissions to the Committee of Ministers related to the general measures of implementation in Lashmankin’s group of cases (various systemic problems related to the right to freedom of assembly in Russia), in Khashiyev’s group of cases (serious violations of the right to life during the security and antiterrorist operations in the North Caucasus’s region of Russia), in Kim’s group of cases (violations of the rights of statelessness persons in Russia) and in other groups of cases. Several requests to the national institutions have also been made in these cases proposing the changes into the laws and other general measures of implementation. 

If Memorial is liquidated its former lawyers would not be able to make submissions to the Committee of Ministers on the general measures of implementation, and the the practice of non-implementation of the ECtHR judgments by the Russian authorities can further aggravate.

The liquidation of the International Memorial and Human Rights Center Memorial is not just the suspension of the activities of these organizations, which help thousands and tens of thousands of people. The Memorial is primarily a symbol of Russian civil society, and that is why the state seeks to destroy it. This is a clear message to all civil society and non-profit organizations.

On behalf of the Memorial NGOs, Dmitry Gurin, Senior Lawyer with Memorial Human Rights Centre (ECtHR litigation practice), called upon the Committee of Ministers to take a firm stance against the liquidation of International Memorial and Human Rights Center Memorial and to raise this issue through their diplomatic channels.

Help Support Memorial here

Human Rights Centre Ghent training and brainstorming seminar: "Strengthening the Implementation Of Strasbourg Court Judgments Through Rule 9 Submissions: What Role For The HRC And HRRN?"

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Last week, EIN participated in a training and brainstorming seminar organized by the University of Ghent’s Human Rights Centre entitled “Strengthening the Implementation Of Strasbourg Court Judgments Through Rule 9 Submissions: What Role For The HRC And HRRN?“. This training was developed for members of the Human Rights Centre and University's Human Rights Researcher’s Network, aiming to provide them with the knowledge and skills to engage in the ECtHR implementation process.

The training seminar was divided into three sessions. The first session focused on the implementation of ECtHR judgments, providing participants with a basic understanding of the Committee of Ministers judgment implementation process. The session began with Anne-Katrin Speck, PhD researcher within the Human Rights Centre at Ghent University and former Co-Director of EIN, who discussed why advocacy for the implementation of judgments is important and set out the basics of the ECtHR judgment implementation process.

The second session focused on drafting rule 9 submissions to the Committee of Ministers. The discussion began with Anne-Katrin Speck explaining the Do’s and Don’ts of drafting these submissions, followed by a presentation on the experience of intervening in Demirtaş and Kavala cases against Turkey from Beril Onder, Project Lawyer within the Turkey Human Rights Litigation Support Project. Participants were then able to apply their knowledge of the previous series by conducting a case exercise. Participants were split into break-out groups to brainstorm how they would tackle the following cases: Paposhvili v. Belgium, regarding the lack of examination of the medical situation of a person suffering from serious illnesses who faced deportation to Georgia, and the impact of his removal on his family life; Lachiri v. Belgium, regarding the unjustified restriction on the freedom to manifest one's religion following exclusion from the courtroom of a court for refusing to remove one's hijab; and Zhdanov and others v. Russia, concerning the refusal to register LGBT associations.

The final session of the training focused on the future role HRC and HRRN in drafting Rule 9 Submissions. Two presentations were given on the topic by our very own Ioana Iliescu, Law and Advocacy Officer, and Agnès Ciccarone, Programme and Finance Manager, setting out tips on making submissions and on which cases are deserving of civil society engagement. A final exercise followed these presentations: a brainstorming activity which allowed members of the HRC and the HRRN to actively plan their involvement in the implementation process.

The seminar closed with Eva Brems, HRC Director, setting out next steps to be taken by the Human Rights Centre Ghent and the Human Rights Research Network in their plan to engage with the ECtHR implementation process.

We’d like to thank Eva Brems for chairing the seminar, UGent for inviting us to the seminar, and of course, a big thank you to everyone who was able to join this training. We hope to read your Rule 9 submissions in the future! 

EIN Civil Society Briefing September 2021: Poland, Romania, Lithuania, & Bosnia and Herzegovina (Part 2)

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On 7 September 2021, EIN held its second civil society briefing ahead of the Committee of Minister’s Human Rights Meeting on 14-16 September 2021. The event was held online due to the COVID-19 pandemic.

 The second Briefing focused on the following cases:  

  1. Al Nashiri v. Poland and Al Nashiri v. Romania, which concern violations related to the secret detention and "extraordinary rendition” of the applicant, as a result, of the serious risk of further ill-treatment and conditions of detention in breach of Article 3, as well as of further secret detention. He faces a risk of capital punishment in a trial before a United States military commission, in which, according to the European Court's judgment, evidence obtained under torture might be used.

    • Mikołaj Pietrzak, of the Pietrzak & Sidor Law Office, counsel for Mr Al Nashiri, held a presentation on the Al Nashiri v. Poland case.

    • Amrit Singh, Director of Accountability, Liberty and Transparency Division at Open Society Justice Initiative, briefed the participants on Al Nashiri v. Romania.

  2. Abu Zubaydah v. Poland and Abu Zubaydah v. Lithuania, which concern violations related to the secret detention and "extraordinary rendition” of the applicant. The applicant is exposed to continued arbitrary detention and ill-treatment at the United States Naval Base in Guantanamo Bay. Helen Duffy, counsel for Mr. Abu Zubaydah, and Director at Human Rights in Practice, presented relevant developments and recommendations on both cases to the participants.

  3. Sejdic and Finci v. BiH, which concerns ethnic-based discrimination on account of the ineligibility of persons not affiliated with one of the “constituent peoples” (Bosniaks, Croats or Serbs) to stand for election to the House of Peoples and the Presidency. Lara Dominguez, Acting Head of Litigation at Minority Rights Group International presented the Briefing to participants.

Al Nashiri v Poland

This case concerns a number of Convention rights violations arising from the fact that the applicant was a victim of a secret “rendition” operation involving his transfer between various CIA detention facilities, including one located in Afghanistan. The European Court found it established beyond reasonable doubt that the applicant arrived in Poland on board a Central Intelligence Agency (CIA) rendition aircraft on 5 December 2002 and was detained in a CIA detention facility in Stare Kiejkuty. He was subsequently transferred out of Poland, respectively in June, and September 2003, to other CIA detention facilities and eventually to the United States Guantánamo Bay Naval Base in Cuba.

The Court found that his transfer from Poland exposed him to a real risk of a flagrant denial of justice due to the possibility he would face trial before United States’ military commissions at the Guantánamo Bay Naval Base using evidence obtained under torture. Mr. Al Nashiri was charged with capital offences before the military commissions, and the Court found that he faced a real risk of being subjected to the death penalty.

Overview of Al Nashiri Briefing  

 Mikolaj Pietrzak reminded the participants of the last CM Decision in the case (December 2020):

  • The consequences of the violations of the Convention have not been remedied, as Mr Al Nashiri remains at risk of a flagrant denial of justice in the proceedings before the military commission and risk of the death penalty.

  • The Polish authorities should engage in a more effective dialogue with the US authorities to establish a clear and consistent strategy to intensify the diplomatic efforts.

  • The Committee urged authorities to respond without further delay to the Committee’s previous calls for details of the changes put forward in the criminal investigation.

  • The Polish authorities were called on to clarify how the establishment of the Council of Minister’s Committee for National Security and Defence Affairs will increase democratic oversight over the intelligence services.

  • There is a lack of a clear message from the authorities at a high level to the intelligence and security services as to the absolute unacceptability of and zero tolerance towards arbitrary detention, torture and secret rendition operations.

 Mr. Pietrzak identified several shortcomings concerning the execution of the judgment:

  • Polish authorities have failed to conduct an effective investigation and failed to provide details of measures taken to acknowledge Poland’s role and responsibility for the human rights violations.

  • Polish authorities have failed to seek diplomatic assurances from the U.S. government.

  • Legislative changes are not effective and did not increase effective control over the activities of the special services.

Mr. Pietrzak set out the following recommendations to the Committee of Ministers:

  • Monitor this case more frequently.

  • Issue an interim resolution deploring the failure to execute the Court’s judgment and calling upon Poland to promptly pursue the following common measures:

    • Undertake effective and transparent domestic investigations.

    • Seek reliable, specific, and binding diplomatic assurances from the U.S. authorities.

    • Issue an official acknowledgement that Poland hosted a secret CIA prison on its territory and public apologies to Mr. Al Nashiri for the abuse he endured.

 Please see the slides for the full Briefing.

Relevant Documents

Rule 9.2 Submissions

 

Al Nashiri v Romania

The case concerns violations of a number of Convention rights arising from 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, 5 November 2005. He was subsequently transferred by the CIA out of Romania to another of its detention facilities located in Lithuania or in Afghanistan, and eventually to the United States Guantánamo Bay Naval Base in Cuba.

The Court found that his transfer from Romania exposed him to a real and foreseeable risk of a flagrant denial of justice, due in particular to the possibility that evidence obtained under torture could be admitted in the proceedings already engaged against him at the time of the judgment before a military commission at the Guantánamo Bay Naval Base and of being subjected to the death penalty following his trial.

 Overview of Al Nashiri v Romania Briefing

Open Society Justice Initiative updated the participants on recent developments in the case:

  • In March 2021, ignoring the findings of the ECtHR about the secret CIA prison in Romania, the Prosecutor dismissed the domestic investigation on the grounds of a lack of evidence. The decision was upheld on appeal.

  • Inadequate and superficial investigation: excessive delays, failure to interview key witnesses, failure to request relevant data, and inconsistent application of the standard of proof.

  • Contrary to international law, the prosecutor found that crimes of torture and deprivation of liberty would have been time-barred. In any event, Romania cannot avail itself of the statute of limitations where its own inaction caused the delay.

  • No efforts have been undertaken to inform the Romanian public about the progress of the investigation.

  • No binding assurances have been obtained from U.S. authorities that Mr Al Nashiri will not be subjected to the death penalty and violations of fair trial procedures.

  • Attempts to seek diplomatic assurances from U.S. authorities have been sporadic and superficial.

  • No explanation has been provided as to how Romania plans to further seek and obtain assurances from the new Biden administration.

  • Romania has ignored the ECtHR’s finding beyond reasonable doubt that Romania hosted a CIA black site where Mr. Al Nashiri was secretly detained. It has not acknowledged its role in and responsibility for the human rights violations that occurred in this case.

  • No explanation has been provided as to how and when Romania will issue a public acknowledgement.

  • The violations that Mr. Al Nashiri was and continues to be subjected to, as a result of Romanian authorities’ actions and inactions, demand an official apology.

  • Recent amendments to the Criminal Code removed the statute of limitations for torture, but only prospectively.

  • The current prescription period for torture is inconsistent with international law because it does not apply from the time when the crime of torture occurred. 

Open Society Justice Initiative reminded participants of Romania’s 2020 Action Plan:

  • The Action Plan, submitted in April 2019, was at best pro forma, cursory, and has never been updated. 

  • The Plan does not reflect the recent developments, including the closure of the criminal investigation and other aspects of Romania’s failure to implement the Court’s judgment. 

Open Society Justice Initiative provides substantive recommendations for Romania to:

  • Reopen the case to undertake an effective and transparent domestic investigation.

  • Intensify efforts and find creative ways to seek binding diplomatic assurances from the U.S government to Mr Al Nashiri’s counsel

  • Issue an official acknowledgement and a public apology

  • Remove the statute of limitations for torture “in all instances”, including retrospectively

Open Society Justice Initiative made procedural recommendations for the CM to:

  • Monitor the implementation of this case more frequently.

  • Issue an interim resolution deploring the failure to execute the Court’s judgment and calling upon Romania to promptly pursue the named substantive measures.

  • Encourage all relevant organs of the Council of Europe to continue to press for the execution of the Al Nashiri judgment.

 Please see the slides for the full Briefing.

Relevant Documents

Rule 9.2 Submissions

 

Abu Zubaydah v Poland and Abu Zubaydah v Lithuania

This cases concern the violation of a number of Convention rights arising from the fact that the applicant was a victim of a secret “rendition” operation, involving his transfer between various CIA detention facilities, including one located in Afghanistan.

In Abu Zubaydah v. Poland, the European Court found it established beyond reasonable doubt that the applicant arrived in Poland on board a Central Intelligence Agency (CIA) rendition aircraft on 5 December 2002 and was detained in a CIA detention facility in Stare Kiejkuty. He was subsequently transferred out of Poland, respectively in June and September 2003, to other CIA detention facilities and eventually to the United States Guantánamo Bay Naval Base in Cuba.

The Court found that the transfer from Poland exposed him to a real risk of a flagrant denial of justice due to the possibility he would face trial before United States’ military commissions at the Guantánamo Bay Naval Base using evidence obtained under torture. In this context, the Court also noted that no case against Mr Abu Zubaydah had been listed for trial and found that his indefinite detention without charge in itself amounted to a flagrant denial of justice.

In Abu Zubaydah v. Lithuania, the European Court found it established beyond reasonable doubt that Lithuania had hosted a Central Intelligence Agency (CIA) detention facility, code-named “Detention Site Violet”, operated from either 17 or 18 February 2005 until 25 March 2006 and the applicant was secretly detained there during that period. He was transferred by the CIA out of Lithuania to another CIA detention site in Afghanistan and eventually to the United States Guantánamo Bay Naval Base in Cuba.

The Court found that, by enabling the applicant’s further transfer to another CIA detention site, the Lithuanian authorities had also exposed him to a foreseeable risk of continued secret, incommunicado and otherwise arbitrary detention, liable to continue for the rest of his life as well as to further ill-treatment and conditions of detention, in breach of Article 3. At the time of the judgment, the applicant was detained in the Guantánamo Bay Naval Base. No criminal proceedings against him had been engaged.

Overview of the Abu Zubaydah v Poland and Abu Zubaydah v Lithuania Briefing

Human Rights in Practice reminded participants of the issues of concern of the cases:

  • The Court concluded that, through collaboration with Lithuanian, Romanian and Polish authorities, the CIA secretly imprisoned, tortured, and ill-treated Mr Abd al Rahim al Nashiri and Mr Abu Zubaydah, subjecting them to years of abuse. Now detained at Guantanamo Bay since 2006, both men are subject to an ongoing “flagrant denial of justice”. 

  • Compliance with these judgments is a critical aspect of meaningful accountability for European complicity in the CIA’s secret detention and torture program. 

Human Rights in Practice provided information on recent developments regarding the cases:

  • Mr Abu Zubaydah has been held without any review of the lawfulness of his detention by a court or independent legal authority, and without charge or trial, for nineteen years. He falls into the category dubbed “forever prisoners” who the U.S. administration refuses to charge or try but will not release. This situation remains unchanged.

  • Welcomed the securing of power of attorney status for the applicant, and a beneficiary has been nominated, this is the first step for just satisfaction to be released.

Human Rights in Practice recommended that the Committee of Ministers:

  1. Monitor these cases more frequently and schedule them for oral debate, beginning with the next CM/DH meeting in September 2021;  

  2. Issue an interim resolution deploring the failure to execute the Court’s judgments and calling upon Poland, Romania, and Lithuania to promptly pursue the following common measures:  

    • Undertake effective and transparent domestic investigations. Where criminal investigations have already been closed, authorities should undertake specific measures to reopen them with the aim of conducting a prompt, thorough and effective inquiry into their government’s role in the CIA’s extraordinary rendition and secret detention program, consistent with the ECtHR’s findings that such conduct indeed occurred. The terms of reference of the investigations should be disclosed to Mr Al Nashiri’s and Mr Abu Zubaydah’s counsel and the public, and the materials from these investigations should be declassified to the fullest extent possible and, where possible made public, particularly transcripts of witness testimonies, responses to data/documents requests, and any procedural decisions made by the Prosecutor.  

    • Seek reliable and specific diplomatic assurances from the U.S. authorities that Mr Nashiri and Mr Abu Zubaydah will not be subjected to the death penalty and/or a flagrant denial of justice. With a new U.S. administration in place, Polish, Romanian, and Lithuanian authorities at the highest level should redouble their efforts to seek such assurances. All communications to and from the U.S. government in relation to these assurances should also be disclosed to Mr Al Nashiri’s and Mr Abu Zubaydah’s counsels, so that they can monitor the government’s compliance with the Court’s judgment.  

    • Issue an official acknowledgement that Romania, Poland, and Lithuania hosted a secret CIA prison on their territories and public apologies to Mr Al Nashiri and Mr Abu Zubaydah for the abuse they endured.

  3. Insist that Poland and Lithuania facilitate the prompt payment of just satisfaction due to Mr Abu Zubaydah’s designated beneficiary.  

  4. Insist that Romania removes the statute of limitations for the crime of torture “in all instances” i.e. to include liability for acts of torture whenever they occurred, including retrospectively.  

  5. Encourage all relevant organs of the Council of Europe to continue to press for the execution of these cases, including the offices of the Commissioner for Human Rights, the Parliamentary Assembly, the PACE Rapporteur for Execution of Judgments, and the Secretary General. In particular, request the Secretary General to diplomatically engage with the new U.S. administration in order to obtain assurances that neither Mr Al Nashiri, nor Mr Abu Zubaydah would be at risk of the death penalty and/or a flagrant denial of justice.

 

Relevant Documents on Abu Zubaydah v Poland

 9.2 Submissions

 

Relevant information on Abu Zubaydah v Lithuania

 

Sejdic and Finci v BiH

These cases concern discrimination against the applicants on account of their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (i.e. Bosniaks, Croats or Serbs) or due to their failure to meet a combination of the requirements of ethnic origin and place of residence (violations of Article 1 of Protocol No. 12).

In accordance with the Constitution of Bosnia and Herzegovina, only persons declaring affiliation with a “constituent people” are entitled to stand for election to the Presidency, which consists of three members: one Bosniak and one Croat, each directly elected from the Federation of Bosnia and Herzegovina, and one Serb directly elected from the Republika Srpska.

Overview of Sejdic and Finci v BiH Briefing 

Minority Rights Group International updated participants on recent developments relating to the case:

  • May 2019: European Commission’s ‘Opinion on Bosnia and Herzegovina’s application for Membership of the European Union’.

    • BiH must undertake legislative and constitutional reforms ordered by ECtHR in Sejdić & Finci group of cases.

  • EU is pushing for a quick deliverable in BiH by focusing on reforms to the electoral law without touching the constitution.

    • The proposed law would divide the Federation into two electoral units, to be defined either by territory or by categorization of people into a Constituency 1 and Constituency 2 (clearly meant to create a Bosniak unit and a Croat unit).

    • The move placates Serb and Croat hardliners who oppose strengthening the central government.

    • High-level negotiations are being held behind closed doors without consulting civil society and minorities.

 Minority Rights Group International reminded participants of the case’s status of implementation:

  • BiH has failed to adopt necessary constitutional and legislative reforms.

    • 3 national elections have taken place since the Sejdić & Finci judgment without necessary reforms

    • The next elections are likely to take place in October 2022

    • BiH failed to file an updated Action Plan on implementation since 2017

  • Inter-agency working group established within the Joint Collegium of the two legislative chambers to propose amendments to the electoral law

    • No inclusion of non-constituent minorities in the process

  • Croat and Serb nationalist parties are threatening to derail upcoming elections unless the plan for ‘implementation’ through electoral law reform is adopted.

Minority Rights Group International respectfully set forward the following recommendations for the Committee of Ministers:

  • We urge the Committee of Ministers to adopt a strongly worded interim resolution directing BiH to submit an Action Plan on implementation before the next session, underscoring that:

    • Adoption of amendments to the constitution and electoral law must be a participatory process that ensures the inclusion of non-constituent minorities. This entails:

      • Direct participation of minorities and their representatives in the Task Force drafting amendments

      • Creation of a monitoring body that includes the plaintiffs in the Sejdic and Finci group of cases

      • Transparency and adherence to international standards on consultation of minority groups

    • Implementation requires amending the Constitution, not just the electoral law

  • The Interim resolution should:

    • Include a detailed timeline with deadlines on steps BiH must take to implement the judgment

    • Direct BiH to adopt specific mechanisms and safeguards to ensure that minority communities and CSOs can effectively participate in the consultation and drafting process of any legislative and constitutional amendments

    • Direct BiH to share any draft amendments to the electoral laws and constitution with the CoM prior to their adoption to ensure they comply with the Sejdic & Finci judgment

  • The Committee of Ministers should appeal to member states (particularly those involved in closed-door negotiations) and urge them to take appropriate action to ensure full compliance with the judgments of the Sejdić and Finci group of cases.

  Please see the slides for the full Briefing.

Relevant Documents

Rule 9.2 Submissions

EIN Civil Society Briefing September 2021: Hungary, Turkey, & Russia (Part 1)

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On 6 September 2021, EIN held the first session of its latest civil society briefing for permanent Representations of the Council of Europe, ahead of the Committee of Minister’s Human Rights Meeting on 14-16 September 2021. The event was held online due to the COVID-19 pandemic.

The first briefing focused on the following cases:

1. Baka v Hungary, which concerns the lack of access to court as regards the premature termination of the applicant’s mandate as President of the Supreme Court, which also led to a violation of his right to freedom of expression. András Kádár, Co-Chair, Hungarian Helsinki Committee, and Dr  Dávid Vig, Director of Amnesty International Hungary, presented relevant developments, ongoing concerns and made recommendations for the implementation of this case.

2. A. Selahattin Demirtas (no.2) v Turkey, which concerns the unjustified detention of the applicant without reasonable suspicion that he had committed an offence, with the ulterior purpose of stifling pluralism and limiting freedom of political debate; unforeseeable lifting of parliamentary immunity and subsequent criminal proceedings to penalise the applicant for political speech. The case was briefed on by Ayşe Bingol, Co-Director of the Turkey Litigation Support Project.

2. B.  Kavala v Turkey, which concerns the unjustified and arbitrary detention of the applicant without providing objective evidence and with the ulterior purpose of reducing the applicant to silence. Emma Sinclair-Webb, Turkey Director of Human Rights Watch, presented relevant developments, ongoing concerns and made recommendations for the implementation of this judgment.

3. Oao Neftyanaya Kompaniya Yukos v Russia, which concerns violations concerning tax and enforcement proceedings brought against the applicant oil company, leading to its liquidation in 2007. Piers Gardner, Legal counsel of the injured parties and Barrister at Monckton Chambers, presented this briefing to participants.

The Baka v Hungary Case

Overview of the Baka v Hungary Case

This case concerns the undue and premature termination of the applicants’ mandates as President (Baka) of the former Hungarian Supreme Court through legislative acts of constitutional rank and therefore beyond judicial control, prompted by views and criticisms he expressed on reforms affecting the judiciary and exerting a “chilling effect.” The European Court of Human Rights found a violation of Articles 6 and 10 of the European Convention on Human Rights.

The Hungarian Helsinki Committee and Amnesty International Hungary reminded the participants of the areas that the Hungarian authorities have not fulfilled the implementation of the case:

  • not only failed to take any measures at all to implement the judgment, but

  • further deepened the chilling effect on the freedom of expression of judges, and

  •  continued to undermine the independence of the judiciary in general. 

The structural deficiencies that contribute to a chilling effect remain in place:

  • The Integrity policy is used to sustain a climate of self-censorship

  • Detailed recommendations of the National Judicial Council (NJC) to eliminate the power imbalance with NOJ President are disregarded (Resolution 99/2018)

  • The NOJ President and judicial leaders have full discretion in the distribution of fringe benefits and bonuses

Recent developments of examples of the chilling effect in Hungary:

  • Statements by high-ranking government politicians continue.

    • Máté Kocsis, parliamentary faction leader of ruling party Fidesz about suspended imprisonment imposed for possession of child pornography photographs: the judgment is “outrageous and unacceptable” (July 2020).

    • Tamás Deutsch, MEP of Fidesz about the acquittal of Béla Kovács, former MEP of opposition party Jobbik of espionage charges: talks about „independent” Hungarian courts (in quotation marks) and calls the acquittal„ net high-treason” (September 2020).

    • The new NOJ President speaks up against such communication, but he adds that it is only the first instance decision that may be overruled by the second instance. In June 2021, the judgment is overruled and Béla Kovács is found guilty of preparing espionage.

  • A Judge was forced out of the judiciary for political reasons.

    • Judge Gabriella Szabó referred to CJEU in 2018, as she deemed one of the cornerstones of the Hungarian government’s asylum policy might contradict EU Law. Her three-year tenure ended in June 2021. Her employer deemed her unsuitable for a judicial position.

  • Election of an external actor as President of the highest judicial body.

    • The election of András Zs. Varga, as President of the Kúria (Hungary’s highest judicial body), was made possible by three separate ad hominem legal amendments. Mr Varga was elected as a one-party political appointee in complete disregard for the manifest objection of the NJC and holds the same unlimited and uncontrollable powers concerning the appointment of judges and judicial leaders.

Hungarian Helsinki Committee and Amnesty International Hungary Recommendations to the Committee of Ministers:

  • Protect the integrity of the NJC’s judge members and guarantee that they can exercise their statutory rights and obligations of safeguarding judicial independence without any undue interference;

  • Amend the legislation providing the NOJ President with overly broad and excessive powers regarding the appointment of court leaders;

  • Provide a thorough de iure analysis of the Hungarian legislation identifying provisions capable of exerting a negative influence on judges;

  • Refrain from and condemn any public harassment, intimidation or retaliation against judges; abstain from any public critique, recommendation, suggestion or solicitation regarding court decisions that may constitute direct or indirect influence on pending cases or otherwise undermine the independence of judges;

  • Ensure that the remuneration of judges is based on a general standard and rely on objective and transparent criteria and phase out bonuses which include an element of discretion, and therefore potential arbitrariness;

  • Amend the law to ensure that judges may be reinstated to their former leadership position after it is concluded that their dismissal was unlawful;

  • Address the issue of judicial independence holistically and comprehensively, in line with the respective international standards and the specific recommendations for Hungary by international bodies.

Please see the slides for the full Briefing.

Relevant Documents

9.2 Submissions

Selahattin Demirtas (no 2) v. Turkey & Kavala v. Turkey

Overview of Selahattin Demirtas (no.2) v Turkey

The Court found that the applicant was detained in the absence of evidence to support a reasonable suspicion he had committed an offence (violation of Article 5 §§ 1 and 3) and that his arrest and pre-trial detention especially during two crucial campaigns pursued an ulterior purpose, namely to stifle pluralism and limit freedom of political debate (violation of Article 18 taken in conjunction with Article 5); that lifting of the applicant’s parliamentary immunity and the way the criminal law was applied to penalise the applicant for political speeches were not foreseeable and prescribed by law (violation of Article 10) and that his consequent detention made it effectively impossible for the applicant to take part in the activities of the National Assembly (violation of Article 3 of Protocol No. 1).

Overview of Kavala v Turkey

The Court’s found that the applicant’s arrest and pre-trial detention took place in the absence of evidence to support a reasonable suspicion he had committed an offence (violation of Article 5 § 1 of the Convention) and pursued an ulterior purpose, namely to silence him and dissuade other human rights defenders (violation of Article 18 taken in conjunction with Article 5 § 1); and that the one year and nearly five months taken by the Constitutional Court to review his complaint was insufficiently “speedy”, given that his personal liberty was at stake (violation of Article 5 § 4).

The Turkey Litigation Support Project and Human Rights Watch identified several ‘evasive judicial tactics’ adopted by Turkey to participants on the commonalities between Selahattin Demirtaş and Osman Kavala judgments. These tactics are used by Turkey to:

  1. Ensure the continuation of the detention of Mr Demirtaş and Mr Kavala for illegitimate political purposes.

  2. Argue before the CM that the individual measures namely the immediate release of the applicants have already been implemented.

  3. Claim that the ongoing detentions of Mr Demirtaş and Mr Kavala do not fall within the scope of the ECtHR judgments.

  4. Claim that their ongoing detentions are in the scope of ‘new’ charges or cases that are not covered in the Court’s judgments.

  5. Argue that the legal status of the applicants has changed detainee versus convict).

Tactic 1: ‘Issuing non-implemented or ‘sham’ release orders’

  • Used in both cases. The Turkish government has been arguing before the Committee that the individual measures of release have already been implemented as at one point in the proceedings the domestic authorities adopted release orders for Mr Demirtaş and Mr Kavala. In reality, however, both applicants were never released as these orders were always followed by re-detention and/or further imprisonment orders.

Tactic 2: ‘Initiating multiple criminal proceedings against the applicants on the same or similar factual and legal grounds’

  • Used in both cases. The Turkish authorities have cited multiple files, investigations, and cases relying on the same or similar factual and legal grounds as those already reviewed by the ECtHR and have used them as allegedly ‘new’ grounds to justify further detention orders, especially following the ECtHR judgment and/or the increased pressure from the Committee of Ministers.

Tactic 3: ‘Chain detention orders’

  • Used in both cases. Following the release orders that are not intended to be implemented, both applicants were re-detained for the same or similar facts, grounds, or charges already examined by the ECtHR. This has, so far, taken the form of (1) re-classification of the same facts and acts under different articles of the Penal Code; (2) re-activating other files and generating detention orders under them; and (3) expediting different procedures and concluding them with imprisonment decisions.

Tactic 4: ‘Unwarranted procedural decisions’

  • Used in both cases. The proceedings against the applicants are made complex by unwarranted joinder or dis-joinder decisions to first ensure prolongation of the detentions and second to make it more difficult for the Committee of Ministers to follow the proceedings. 

Tactic 5: ‘Expediting cases to obtain a conviction'

  • Used in relation to Mr Demirtaş, so far The proceeding before the Istanbul 26th Assize Court was expedited when the case was still pending before the ECtHR. It was concluded with a conviction and a prison sentence far higher than observed in any comparable cases known to human rights organizations. The appeal of Mr Demirtaş was rejected and the conviction became final in April 2021 while the CM was considering the next steps to take to ensure implementation. The government has been using this case repeatedly to argue before the CM that the ECtHR’s judgment does not apply to Mr Demirtaş’s ongoing imprisonment which is factually and legally incorrect as discussed in our submission on 23 July 2021. He is currently held in prison both as a convicted prisoner serving this sentence and as a pre-trial detainee in relation to the case before the Ankara 22nd Assize Court.

Turkey Litigation Support Project and Human Rights Watch Recommendations to the CM:

  • to take into account Turkey’s ‘evasive judicial tactics’ in its analysis of the developments in the domestic proceedings against Mr. Demirtaş and Mr. Kavala;

  • to determine its next steps in the judgment implementation supervision process accordingly; and

  • to adopt a holistic approach when assessing the state of implementation of the two ECtHR judgments and to take full consideration of the violation of Article 18

    (in Demirtaş Article 10 and Protocol 1 Article 3) as well as Article 5.

Recommendations to the CM in relation to Selahattin Demirtaş v. Turkey (2) judgment:

  1. To insist on the immediate release of Selahattin Demirtaş as required by the ECtHR judgment, and indicate that continuation of Mr Demirtaş’s detention in any form under the criminal proceedings remaining within the scope of the Grand Chamber judgment constitutes a prolongation of the violation of his rights under the Convention, as found by the ECtHR;

  2. To underline that the Grand Chamber judgment clearly applies to Mr Demirtaş’s ongoing pre-trial detention, the criminal proceeding under which he was convicted, and to any other ongoing or future proceedings or detention, in which the factual or legal basis is substantially similar to that already addressed, and found to violate his Convention rights, by the ECtHR in its judgment;

  3. To call for the halt of all criminal proceedings initiated against Mr. Demirtaş following the constitutional amendment lifting his parliamentary immunity, as the Grand Chamber found that the amendment did not meet the legality standard of the Convention, and that all proceedings initiated pursuant to it should therefore be deemed unlawful;

  4. To request the Government of Turkey to end the persecution through abusive criminal proceedings of Selahattin Demirtaş including by dropping all charges under which he has been investigated, prosecuted and detained, which have pursued an ulterior purpose of stifling pluralism and limiting freedom of political debate, in conformity with the Court’s finding that his rights under Article 5(1 ) in conjunction with Article 18 were violated, and that his exercise of the right to freedom of expression was wrongfully used as evidence to incriminate him;

  5. To emphasise that restitutio in integrum in this case, requires the cessation of the persecution of Mr Demirtaş through criminal proceedings, in the form of future investigations, prosecutions and detentions, including pre-trial detentions, solely for his political activities and his political speech; and

  6. In the event that Selahattin Demirtaş remains in detention at the time of the 1411 DH 14 16 September 2021 meeting, to trigger infringement proceedings against Turkey under Article 46 (4) of the Convention.

Recommendations to the CM in relation to Osman Kavala v. Turkey judgment:

  1. Call on Turkey to comply with the ECtHR judgment and ensure the immediate and urgent release of Osman Kavala; and

  2. In the event that Osman Kavala remains in pre-trial detention at the time of the 1411th 16-18 September 2021 meeting, trigger infringement proceedings against Turkey under Article 46(4) of the Convention.

Please see the slides for the full Briefing.

Relevant Documents for Selahattin Demirtas (no.2) v Turkey

Rule 9.2 Submissions

CM Decisions

The Oao Neftyanaya Kompaniya “Yukos” v Russian federation Case

Overview of the “Yukos” Case

The case concerns different violations concerning tax and enforcement proceedings brought against the applicant oil company, leading to its liquidation in 2007, namely:

  • Insufficient time allowed for the preparation of its defence at first instance and on appeal during the 2000 tax-assessment proceedings (violation of Article 6 § 1, taken in conjunction with Article 6 § 3(b));

  • Unforeseeable imposition of penalties in the 2000-2001 tax assessments on account of the retroactive application of a subsequent Constitutional Court decision of 2005 defining in a new way the time-limit for liability for tax offences (violation of Article 1 of Protocol No. 1);

  • Failure to strike a fair balance in the enforcement proceedings between the legitimate aim pursued and the measures employed (violation of Article 1 of Protocol No. 1):

  • No global assessment of the consequences of the chosen enforcement actions for the applicant company;

  • Imposition of a fixed 7% enforcement fee completely out of proportion with the expenses incurred;

  • Unyielding inflexibility as to the pace of the enforcement actions.

Piers Garden, legal counsel of the injured parties and barrister at Monckton Chambers, reminded participants of the Russian authorities action plan of 2013 and voiced with regret that authorities have not taken any substantial steps to implement any of the measures advised by the Committee of Ministers.

Specifically,

  • That will be the eleventh time that the execution of the Yukos judgment has been examined by the CM-DH in the six and a half years since the Judgment became final.

  • The respondent Government have failed to fulfill their obligation under Article 46 § 1.

  • The amounts awarded in the judgment remain due and have been owed to the Yukos shareholders for almost 7 years.

Recent developments

Recommendations

  • The CM-DH should resolve to list the Yukos case on the agenda of each of its forthcoming meetings until its questions are answered and the judgment is complied with.

Relevant Information

Rule 9.1 Submission

Overview of Rule 9 Submissions in view of the Committee of Minister’s Deputies Human Rights Meeting September 2021

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From the 14th-16th of September, the Council of Europe’s Committee of Minister’s Deputies will meet for their quarterly Human Rights Meeting. This meeting will examine several judgments of the European Court of Human Rights that are still pending implementation. The agenda consists of 45 cases from 21 members of the Council of Europe.

EIN members/partners, other civil society actors, lawyers and applicants have made 23 submissions in the cases. under consideration. The list below sets out an overview of these submissions related to cases on the current indicative list.

 

 

Overview of Submissions

 

Strazimiri v. Albania (Application No. 34602/16)

Violation: Poor conditions of detention and inadequate medical treatment of a mentally ill person subject to a court-ordered compulsory medical treatment; unlawful detention in an inadequate (penitentiary) institution without proper psychiatric treatment; failure to examine speedily the lawfulness of the applicant's detention; absence of right to compensation.

First Examination

Submissions:

Anar Mammadli v. Azerbaijan (Application No. 47145/14)

Human Rights House Foundation

Human Rights House Foundation

Violation: Arrest and pre-trial detention to punish the applicants for activities in the area of electoral monitoring (Mammadli) or for their active social and political engagement (Rashad Hasanov and others) in breach of Article 18 taken in conjunction with Article 5.

Last Examination: CM/Del/Dec(2021)1406/H46-4 (June 2021)

Submissions:

 Aslan Ismayilov, Namazov and Bagirov v. Azerbaijan (Namazov group) (Applications No. 18498/15, 74354/13, 81024/12)

Violation: Lack of procedural safeguards in disciplinary proceedings, having led to the applicants disbarment for breach of professional ethics following verbal altercations with a judge.

First examination

Submissions:

 Sargsyan v. Azerbaijan (Application No. 40167/06)

Violation: Impossibility for persons displaced during the Nagorno-Karabakh conflict to gain access in 1992 to their homes and properties in the region; lack of effective remedies. 

Last Examined: CM/Del/Dec(2021)1406/A1 (June 2021)

Submissions:

L.B. group of cases v. Belgium (Application No. 22831/08) 

Violation: Structural problem concerning the care of persons with mental health problems detained in prison.

Last Examined: CM/Del/Dec(2018)1324/H46-3 (September 2018)

Submissions:

Sejdic and Finci v. Bosnia and Herzegovina (Application No. 27996/06)

Minority Rights Group International

Minority Rights Group International

 Violation: Ethnic-based discrimination on account of the ineligibility of persons not affiliated with one of the “constituent peoples” (Bosniaks, Croats or Serbs) to stand for election to the House of Peoples and the Presidency.

Last Examination: CM/Del/Dec(2021)1406/H46-7 (June 2021)

Submissions:

J.M.B.  and Others v. France (Application No. 9671/15)

Violation: Poor conditions of detention (overcrowding) and lack of an effective preventive remedy.

First Examination

Submissions:

Merabishvili v. Georgia (Application No. 72508/13)

Violation: Failure of the domestic courts to give sufficiently reasoned decisions for the continued pre-trial detention of the applicant, a former Prime Minister and Minister of the Interior, and use of the pre-trial detention during this period by the Chief Public Prosecutor for the illegitimate purpose of pressurising the applicant into providing information on matters unrelated to the criminal case against him.

Last Examination: CM/Del/Dec(2021)1398/H46-9 (March 2021)

Submissions:

Bekir-Ousta and Others group of cases v. Greece (Application No. 35151/05)

Violation: Refusal of domestic courts to register associations.

Last Examination: CM/Del/Dec(2021)1406/H46-12 (June 2021)

Submissions:

Makaratzis group of cases v. Greece (Application No. 50385/99)

Violation: Use of potentially lethal force and ill-treatment by law enforcement agents and lack of effective investigations.

Last Examination: CM/Del/Dec(2018)1331/H46-13 (December 2018) 

Submissions:

Baka v. Hungary (Application No. 20261/12) 

Amnesty International Hungary

Amnesty International Hungary

Violation: Lack of access to a court as regards the premature termination of the applicant’ s mandate as President of the Supreme Court which also led to a violation of his right to freedom of expression.

Last Examination: CM/Del/Dec(2020)1383/H46-8 (29 September – 1 October 2020)

Submissions:

Abu Zubaydah v. Lithuania (Application No. 46454/11) 

Violation: Various violations related to the secret detention and "extraordinary rendition” of the applicant. As a result, the applicant is exposed to continued arbitrary detention and ill-treatment at the United States Naval Base in Guantanamo Bay.

Last Examination: CM/Del/Dec(2020)1390/H46-15 (December 2020)

Submissions:

Levinta v. the Republic of Moldova (Application No. 17332/03)

Violation: Ill-treatment and torture in police custody; ineffective investigations; lack of an effective remedy; conviction based on evidence obtained under torture.

Last Examination: CM/Del/Dec(2018)1331/H46-16 (December 2018) 

Submissions:

Al Nashiri and Husayn (Abu Zubaydah) v. Poland (Applications No. 28761/11, 7511/13)

Violation: Various violations related to the secret detention and "extraordinary rendition” of the applicant. As a result, the applicant was exposed to a serious risk of further ill-treatment and conditions of detention in breach of Article 3, as well as of further secret detention. He faces a risk of capital punishment in a trial before a United States military commission in which, according to the European Court's judgment, evidence obtained under torture might be used.

Last Examination: CM/Del/Dec(2020)1390/H46-16 (December 2020)

Submissions:

Al Nashiri v. Romania (Application No. 33234/12)

Violation: Various violations related to the secret detention and "extraordinary rendition” of the applicant. As a result, the applicant was exposed to a serious risk of further ill-treatment and conditions of detention in breach of Article 3 as well as of further secret detention. He faces a risk of capital punishment in a trial before a United States military commission in which, according to the European Court's judgment, evidence obtained under torture might be used.

Last Examination: CM/Del/Dec(2020)1390/H46-17 (December 2020)

Submissions:

Navalnyye (Navalnyy and Ofitserov group), Navalnyy and Navalnyy (No. 2) v. Russian Federation (Applications No. 101/15, 29580/12, 43734/14)

Alexey Navalny. Photo copyright of Evgenly Isaev, Creative Commons Licence, Flickr

Alexey Navalny. Photo copyright of Evgenly Isaev, Creative Commons Licence, Flickr

Violation: Criminal conviction based on an unfair trial and an arbitrary application of criminal law (violations of Articles 6 and 7).

Last Examination: CM/Del/Dec(2021)1406/H46-30 (June 2021)

Submissions:

OAO Neftyanaya Kompaniya Yukos v. Russian Federation (Application No. 14902/04) 

Violation: Violations concerning tax and enforcement proceedings brought against the applicant oil company, leading to its liquidation in 2007.

Last Examination: CM/Del/Dec(2020)1383/H46-19 (29 September – 1 October 2020)

Submissions:

Bati and Others group of cases v. Turkey (Application No. 33097/96) 

Violation: Ill-treatment by the police and the gendarmerie; actions of security forces during military and police operations; ineffective investigations.

Last Examination: CM/Del/Dec(2020)1383/H46-21 (29 September – 1 October 2020)

Submissions:

Kavala v. Turkey (Application No. 28749/18)

Amnesty International Europe

Amnesty International Europe

Violation: Unjustified and arbitrary detention of the applicants without providing objective evidence, and with the ulterior purpose of reducing the applicant to silence in the case of Kavala.

Last Examination: CM/Del/Dec(2021)1406/H46-31 (June 2021)

Submissions:

Kasa group and Erdogan (and Others group) v. Turkey (Applications No. 45902/99, 19807/92)

Violation: Ill-treatment by the police and the gendarmerie; actions of security forces during military and police operations; ineffective investigations.

Last Examination: CM/Del/Dec(2020)1383/H46-21 (29 September – 1 October 2020) 

Submissions:

Selahattin Demirtas v. Turkey (No. 2) (Application No. 14305/17)

Human Rights Watch

Human Rights Watch

Violation: Unjustified detention of the applicant without reasonable suspicion that he had committed an offence, with the ulterior purpose of stifling pluralism and limiting freedom of political debate; unforeseeable lifting of parliamentary immunity and subsequent criminal proceedings to penalise the applicant for political speech.

Last Examination: CM/Del/Dec(2021)1406/H46-32 (June 2021)

Submissions:

Orphanides v. Turkey (Xenides Arestis group) (Application No. 36705/97)

Violation: Continuous denial of access to property in the northern part of Cyprus (individual measures and just satisfaction).

Last Examination: CM/Del/Dec(2020)1377bis/A2 (September 2020)

Submissions:

Zelentsov (Kuzmenko) v. Ukraine (Application No. 40978/05) (Svetlana Naumenko group)

Violation: Excessive length of criminal and civil proceedings and lack of effective remedy.

Last Examination: CM/Del/Dec(2020)1383/H46-24 (29 September – 1 October 2020)

Submissions:

Dembo and Others v. Ukraine (Application No. 2778/18) under PETUKHOV v. Ukraine (no. 2) (Application No. 41216/13)

Violation: Irreducibility of life sentence and lack of appropriate medical care in prison.

First Examination

Submissions:

Seminar: Structural Reform Processes to Improve ECHR Standards in Russia

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In 2020, the Netherlands Helsinki Committee (NHC), in cooperation with the European Implementation Network, launched a project focused on promoting compliance with the European Convention on Human Rights, in particular with regard to violations concerning the repression of government opponents and freedom of expression, in Azerbaijan, Russia, Turkey and Ukraine. This initiative highlights the lack of full and meaningful implementation of European Court of Human Rights (ECtHR) judgments.

ECtHR judgments are binding on the countries involved. However, statistics indicate that implementation of these judgments is woefully insufficient. These judgments require governments to amend or introduce new legislation, policies, and practices and to address underlying human rights issues. When governments do not act on the Court’s judgment, human rights issues continue to reoccurr. Having this in mind, the initiative aims to advance policies and practices in the target countries for systemic improvements required by ECtHR judgments and the implementation process.

This seminar focused on how to stimulate reform steps to improve compliance with ECtHR standards in Russia. The seminar provided a medium for in-depth discussions on existing and new approaches to engage with the implementation process in order to promote changes in legislation, policies and practices of Russian authorities and courts. 

The seminar began with an introduction and warm welcome by Antanina Maslyka, Netherlands Helsinki Committee, Programme Officer. The first presentation was on Russia’s overall implementation record of ECtHR judgments by George Stafford, EIN Director. Next, Maria Voskobitova, PhD, ABA ROLI, Europe and Eurasia Division, Program Director, presented systemic challenges in implementing ECtHR judgments in Russia. This presentation was followed by Maria Filatova, PhD, Higher School of Economics University, Faculty of Law, School of International Law, Associate Professor, who presented on how the practice and approaches of the ECtHR have changed the Russian court system and how the implementation of ECtHR judgments should be applied at the national level.

Irina Khrunova from the AGORA International Human Rights Group then discussed the implementation status of ECtHR cases related to access to information, her experience on implementing ECtHR judgments on Article 8 and lessons learnt and relevance for work on Article 10 implementation.

The second half of the seminar covered the challenges and opportunities encountered in implementing ECtHR judgments on Article 3 by Asmik Novikova, Public Verdict Foundation, Head of Research Programmes. Then, Denis Shedov, OVD-Info, Lawyer and Analyst, presented new approaches towards implementing ECtHR judgments, with a focus on national coalition-building (Lashmankin v. Russia, Article 11 ECHR). The final presentation focused on challenges and opportunities in implementing ECtHR judgments on Article 18 ECHR: relevant experience for Russia made by Anna Maralyan, Centre de la Protection Internationale, Deputy Director for Program and development.

A big thank you goes out to everyone who presented. We would also like to thank everyone who joined this online event. We hope to continue to engage and advocate for the full and effective implementation of ECtHR judgments in Russia.

For information about the NHC, visit their website at https://www.nhc.nl/ and/or follow them on Twitter @NHC_nl, Facebook or LinkedIn, and subscribe to their newsletter.

Briefing: Judgments of the ECtHR pending implementation concerning victims of political repression in Azerbaijan, Russia, and Turkey

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Last week, the Netherlands Helsinki Committee (NHC) and the European Implementation Network (EIN) held an online briefing on the topic of Judgments of the European Court of Human Rights pending implementation concerning victims of political repression in Azerbaijan, Russia, and Turkey. 

This briefing to officials from the Council of Europe Member States and the EU concerned insights and recommendations from various members of civil society involved in political repression cases, including victims, lawyers, and NGO leaders. While the theme of the briefing focused on political repression in Azerbaijan, Russia, and Turkey, presentations specifically covered four different cases: Navalny, Kavala, Demirtaş, and the Mammadli group. 

The briefing began with Pepijn Gerrits, Executive Director, NHC; and Professor Philip Leach, Director of the European Human Rights Advocacy Centre and Vice-Chair of the European Implementation Network welcoming participants and introducing the sessions. Next, a presentation was given by Ilgar Mammadov, Chairperson of the Republican Alternative Party (Azerbaijan), former political prisoner, and applicant in the only ECHR infringement proceedings to date, on the lessons learnt from his own case in the implementation of ECtHR cases concerning victims of politically motivated prosecution. 

Then a presentation on the case of Alexei Navalny (Navalnyy and Ofitserov v Russian Federation (46632/13); (Navalnyye v Russian Federation, (101/15), was given by the legal representative of Mr. Navalny. This was followed by a presentation by Professor Köksal Bayraktar, legal representative of Mr. Kavala, and Emma Sinclair-Webb, Europe and Central Asia Associate Director, Human Rights Watch, also regarding the case of Osman Kavala (Kavala v Turkey, 28749/18). The case of Selahattin Demirtaş (Selahattin Demirtaş No 2, 14305/17) was then presented by Mr. Demirtaş’ legal representative Benan Molu.

The final presentation focused on Azerbaijani politicians, human rights lawyers, journalists and activists’ cases subjected to political persecution, and was given by Anar Mammadli, Chairperson of the Election Monitoring and Democracy Studies Center, one of the applicant in the Mammadli group of cases v Azerbaijan (47145/14 and others). The briefing concluded with an open discussion, allowing participants to ask questions and deepen their understanding of the presentations given.

We would like to thank all those who were able to join the briefing, especially those who presented on these important cases. We hope that this briefing will help promote and encourage the full implementation of these cases.

For information about the NHC, visit their website at https://www.nhc.nl/, follow them on Twitter @NHC_nl, Facebook or LinkedIn, and/or subscribe to their newsletter.

Turkey Implementation Training with Netherlands Helsinki Committee

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Last week, EIN and the Netherlands Helsinki Committee (NHC) hosted a 3-day training workshop on advocating for full and effective implementation of judgments of the European Court of Human Rights (ECtHR) in Turkey. Each day of training focused on three main topics on ECtHR implementation in Turkey. 

The first session was introduced and moderated by EIN Director George Stafford, starting with a discussion session regarding participants’ experiences and training expectations, as well as the basics of the implementation system (based on previously circulated video material on implementation). Following this discussion, three presentations were given, with each presentation concluding with a question-and-answer period for participants to deepen their understanding of the implementation process. The first discussion of the day provided participants with an overview of the ECtHR implementation process.

Ayse Bingol, Co-Director of the Turkey Litigation Support Project, presented how Non-Governmental Organisations (NGOs) can get involved in the ECtHR implementation process. Ayse specifically outlined what to include in submissions to the Council of Europe Committee of Ministers (CM) and the importance of engaging with the CM. Next, Işık Batmaz, Head of Section at the Department for the Execution of Judgments of the European Court of Human Rights presented on best practices for NGO submissions and discussed what mistakes to avoid. The session concluded with George Stafford, Director of the European Implementation Network, who discussed infringement proceedings under Article 46 of the European Convention on Human Rights, and its potential to execute European Court of Human Rights judgments.

The second day of training focused on Turkish NGOs and human rights lawyers experience with engaging in the ECtHR implementation, who shared their own experiences. The session was introduced and moderated by Ayse Bingol, followed by three brief presentations. The first was by Emma Sinclair-Webb, Turkey Director of Human Rights Watch, focused on CM submissions as an advocacy tool. Next, Özlem Zingil, Hafiza Merkezi Turkey (Truth Justice Memory Centre) on forming alliances with other organisations. The final presentation was by Benan Molu, an independent human rights lawyer, on the need for more lawyers to be involved in the implementation process. These presentations gave participants valuable information on ECtHR implementation and lessons learned thus far. The session concluded with a roundtable session on opportunities and challenges in implementing ECtHR judgments in Turkey. 

EIN Director George Stafford introduced and moderated the final training session, which focused on practical discussions on approaching selected cases. This last day of training took the form of three breakout sessions, allowing participants to discuss how they would approach specific ECtHR judgments pending implementation in Turkey. The cases selected concerned the absence of any review mechanism in Turkish legislation for an aggravated life imprisonment sentence (Gurban v. Turkey group); freedom of expression on account of the seizure and confiscation of magazines considered to infringe on public morals (Kaos GL v. Turkey); and the inadequate judicial review of the dismissal of an employee of a public institute, under an emergency legislative decree, on account of his alleged links with a terrorist organisation (Pişkin v. Turkey). The session concluded with presentations from each breakout group explaining their approach to tackling the implementation process of their case, which allowed participants to apply all three days of training.

We thank all moderators and participants for attending the training session, especially NHC, for supporting and collaborating on this training event, as well as the exceptional translators. Thank you all.

 For information about the NHC, visit their website at https://www.nhc.nl/ and/or follow them on Twitter @NHC_nl, Facebook or LinkedIn, and subscribe to their newsletter.

 

EIN Civil Society Briefing on Turkey and Ukraine: Freedom of Expression & Violations Related Detention

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EIN held its latest civil society briefing on 25 May 2021 ahead of the Committee of Minister’s Human Rights Meeting on 7-9 June 2021. The event was held online due to the COVID-19 pandemic.

The second briefing focused on the following cases:

1.     The Öner and Türk Group /Artun and Guvener Group / Nedim Şener Group /Altuğ Taner Akçam Group of cases, concerning unjustified interferences with freedom of expression, in particular through criminal proceedings, including for defamation, and the consequent chilling effect of these proceedings. The briefing on this case was presented by Aslı Ece Koçak, Editor and Project Coordinator from the Media and Law Studies Association.

2.     The Logvinenko Group /Isayev Group /Kats and others group of cases, concerning various violations related to lack of adequate medical treatment in detention and lack of effective remedies, failure to comply with an interim measure, presented by Gennadiy Tokarev, Head of the Strategic Litigation Center of the Kharkiv Human Rights Protection Group.

The Öner and Türk Group of cases/ Artun and Guvener group/ Nedim Şener Group of cases/ Altuğ Taner Akçam Group of cases

Overview of the group of cases

  • The Öner and Türk group mainly concern unjustified and disproportionate interferences with the applicants’ freedom of expression on account of criminal proceedings initiated under various articles of the Criminal Code or Anti-Terrorism Law for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole (Article 10).

  • The Nedim Şener group focuses on the pre-trial detention of journalists on serious charges, such as aiding and abetting a criminal organisation or attempting to overthrow the constitutional order, without relevant and sufficient reasons (violations of Articles 5 and 10). 

  • The Altuğ Taner Akçam group deals with prosecutions under Article 301 of the Criminal Code (publicly denigrating the Turkish Nation or the organs and institutions of the State, including the judiciary and the army), which the Court found not to meet the “quality of law” requirement in view of its “unacceptably broad terms” (Article 10).

  • The Artun and Güvener group concerns unjustified interferences with the applicants’ right to freedom of expression on account of their criminal convictions for insulting public officials (the President, the Prime Minister and a tax inspector respectively) (Article 10).

Overview of the group of cases Briefing by the Media and Law Studies Association

The Media and Law Studies Association reminded the participants of the latest Action Plan by Turkish Authorities, and the measures the authorities indicated to have taken so far:

  • Legislative amendments: Article 6 § 2 and Article 7 § 2 of the Anti-Terror Law; Article 215 and Article 301 of the Turkish Criminal Code.

  • Introduction of an effective individual application before the Constitutional Court (TCC).

  • Publication and dissemination of the European Court‘s judgments.

  • Necessary individual measures in the 44 cases examined under the 4 groups of cases and invite the CM to close the cases.

The Media and Law Studies Association reminded the participants of the current situation in Turkey:

  • 2017 Constitutional Referendum replaced the parliamentary system with a presidential system, characterized by observers as “one-man rule“ (Financial Times, 2018).

  • The constitutional amendment increased the executive‘s control over the judiciary and has been used by the government to punish and silence political dissent.

  • The state of emergency issued following the failed coup attempt of 2016 allowed the government to shut down at least 179 media outlets and revoke at least 778 press cards.

  • Turkish Presidency’s Directorate of Communications is given jurisdiction over press cards.

  • According to the Court’s 2020 statistics, Turkey remains the top violator of Article 10 (31 violations in 2020 only); ranks 153 out of 180 in the RSF’s 2021 World Press Freedom Index.

  • The judiciary continues to find loopholes and back doors when it comes to prosecuting journalists under Art. 7 § 2.

  • In 2020 and 2021, MLSA observed a high number of cases where new investigations were launched against journalists for this charge based on Twitter and/or Instagram posts from five to six years ago.

The Media and Law Studies Association Recommendations to the CM:

  • Since there has been no progress regarding the legislative framework, the Committee should continue the supervision on the execution of the judgements in these groups of cases under the enhanced procedure.

  • The Committee should re-examine these groups of cases at a future CM-DH agenda.

  • The Committee should also carefully examine the governmental activities under the Action Plan for Human Rights.

  • The government should provide examples where persons have been convicted under the relevant provisions

  • The government should provide information on how many people have been investigated and prosecuted based on the mentioned charges.

  • The government should explain why the judgements in this group of cases are not implemented in many similar cases before the national courts and address the issue of judicial independence holistically and comprehensively, in line with the respective international standards and the specific recommendations for Turkey by international bodies.

    Please see the slides for full Briefing

Relevant Documents

 

The Logvinenko Group /Isayev Group /Kats and others group of cases

Overview of Logvinenko Group, Isayev Group, and Kats and others group of cases

  • Logvinenko Group and Isayev Group, mainly concern inhuman and/or degrading treatment due to overcrowding, poor material conditions and inadequate nutrition in police establishments, pre-trial detention centres and prisons, as well as during transportation by road or rail between detention facilities or to courts; inadequacy of medical care in general and for infectious diseases, drug addiction and physical disability in particular; and lack of effective preventive and compensatory remedies in all these respects (violations of Articles 3 and 13).

  • Kats and others, concerns authorities’ failure to protect the right to life of the applicants’ relatives remanded in pre-trial detention due to inadequate medical care with regard to their HIV positive status (substantive violations of Article 2) and failure to conduct an effective investigation into the circumstances of the deaths, notably due to the lack of independence, exemplary diligence, public scrutiny and the lack of safeguard for the interests of the next-of-kin (procedural violations of Article 2). In the case of Kats and others, the Court found a violation of Article 5 on account of the applicants’ relative’s (daughter and mother, respectively) unlawful detention.

Overview of the Logvinenko, Isayev, Kats and others group case Briefing by Kharkiv Human Rights Protection Group

Kharkiv Human Rights Protection Group Lex reminded the participants of the latest findings from the last CM Decision

  • Regarding Logvinenko (CM/DH September 2020)

    • […] 7.expressing deep concern at the insufficiency of resources to take the necessary measures, as well as underlining the obligation to ensure adequate conditions of detention for all detainees notwithstanding their financial capacity, called on the authorities to find adequate sources of funding for the necessary major renovation work in the detention facilities  and provision of adequate medical care in detention, and to inform the Committee on the medium and long-term plans on improving the detainees living conditions and access to adequate medical care;

  • Regarding Isayev (CM/DH December 2020)

    • […] 6. decided to examine the issues of medical care in prison separately from material conditions of detention and nutrition and invited the authorities to submit detailed information on the measures taken or envisaged to address all the aspects related to healthcare and provision of necessary medical treatment in detention as identified by the Court; further invited the authorities to take into account the Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic elaborated by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in March 2020;

Kharkiv Human Rights Protection Group reminded the participants of the current situation in Ukraine regarding medical care in prisons:

Positive developments:

  • Regulations on providing medical care for convicts were amended

  • State budgeting separate from penitentiary institutions

  • Problem with staffing of medical units solved (according to the Government - around 90% now)

  • Implementation of opioid substitution therapy to the correctional institutions has started

  • Treatment provided for a number of prisoners with hepatitis C/B

Key shortcomings:

  • Provisions or bylaws on the matter of organization of providing medical care for convicts typically are not observed

    • Medical treatment is provided only in cases of serious threat to the prisoner’s health with a significant delay, in some cases only following the complaint to the court or even following a criminal complaint for the inactivity of the prison doctors

    • Health problems of inmates of a non-urgent nature generally are not registered and are addressed only upon persistent requests

    • Inhuman conditions of transportation of sick prisoners to prison hospitals and back

    • Bodily injures of inmates are registered only upon the approval of the prison administration

    • Violation of confidentiality of the inmates’ medical information and violation of their right to obtain information about themselves

  • Excessive use of measures of restraint to prisoners being cured in civil health care institutions

  • Violation of time limits for procedures for transferring prisoners to hospitals

  • The opioid substitution therapy is provided only in 2 institutions from 105

Kharkiv Human Rights Protection Group’s Recommendations to the CM

  • To initiate, possibly in the form of a consensus conference, a transparent process for the transfer of prison medicine to the MoH, comprising a national debate involving all the actors concerned, including civil society and international organizations, in order to identify the main difficulties and the means of resolving them, and to define the main stages of the reform.

  • To ask the State to provide, as soon as possible, an action plan containing a specific list of measures and steps to be taken to address the structural problems of access to health care in the prison system, with an indicative timetable.

  • To promptly enact the regulation on the provision of medical care for detainees kept in the pretrial detention facilities.

  • Until transferring prison medicine to the MoH, to ensure compliance by the medical staff with provisions on medical care for prisoners, starting from securing real access to the medical personnel for prisoners, and the due fixation of all medical records prescribed by law.

  • To recommend to the Ukrainian authorities to extend the system of monitoring visits to correctional institutions by public activists to pretrial detention facilities, with necessary accommodations for the communication between monitors and detainees.

  • Finally, the Logvinenko group (application No. 13448/07) of cases should be:

    (a)  be kept under enhanced supervision

    (b) examined again soon, perhaps in six months in the December CM/DH meeting.

Please see the slides for full Briefing

Relevant Documents

CM Decisions

Logvinenko and Isayev

CM Interim Resolutions

Logvinenko and Isayev

EIN Civil Society Briefings on Russian cases: The Right to Education & Freedom of Peaceful Assembly

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EIN held its latest civil society briefing on 25 May 2021 ahead of the Committee of Minister’s Human Rights Meeting on 7-9 June 2021. Due to Covid-19, the event was online.

The first briefing focused on the following cases:

1.   The Catan v Russian Federation case, concerning violations of the right to education of children and parents using Latin-script schools in the Transnistrian, This presentation was made by Vadim Vieru, from Promo-LEX.

2.  The Lashmankin and others v Russian Federation case, concerning different violations mainly relating to the right to freedom of peaceful assembly, was presented by Tatiana Chernikova, Memorial Human Rights Centre, and Denis Shedov, OVD-Info.

The Catan v Russian Federation case

Overview of the Catan Case

This case concerns the violation of the right to education of children and parents using Latin-script schools in the Transniestrian region of the Republic of Moldova. The European Court of Human Rights found a violation of Article 2 of Protocol No. 1 to the European Convention on Human Rights in respect of the Russian Federation.

Overview of the Catan Briefing by Promo-Lex

Promo-Lex reminded the participants of the findings from the last CM Decision:

  • Russian authorities have failed to present an action plan setting out concrete measures to execute the judgments in this group. They have not paid the just satisfaction and default interest owed to the applicants.

Key points on relevant developments:

What can be done?

  • Remove any provisions from the legislation that can be regarded as a threat to the use of Latin script in the Transnistrian region.

  • Stop harassment by the Transnistrian “militia and law enforcement bodies” of the break-away administration.

  • Return the premises of all Latin-script educational institutions.

Promo-Lex Recommendations to the CM

  1. Request that the Russian authorities pay the compensation due to all applicants;

  2. Request the authorities to present a concrete action plan including the general measures indicated above;

  3. Schedule the case for examination at all future CM/DH meetings; and

  4. Invite the Chair of the Committee of Ministers to write a letter to the Ministry of Justice of the Russian Federation, highlighting the non-implementation of the judgment and requesting measures to be taken, initiating the infringement proceedings under Article 46(4) of the ECHR. 

Please see the slides for the full Briefing.

Relevant Documents

Catan v. Russia status of Execution

CM Interim Resolution

CM Interim Resolution (CM/ResDH(2020)183)

CM Interim Resolution (CM/ResDH(2015)157)

CM Interim Resolution (CM/ResDH(2015)46)

CM Interim Resolution (CM/ResDH(2014)184)

The Lashmankin and others v Russian Federation case

Overview of the Lashmankin and Others case

This group of cases mainly concerns the right to freedom assembly in different Russian cities in 2006-2017.

Overview of Lashmankin and Others by Memorial Human Rights Centre & OVD-Info

Memorial Human Rights Centre & OVD-Info reminded the participants of the findings from the last CM Decision, which strongly urged Russian authorities to:

  • Continue legislative reform

  • Improve domestic court practice

  • Exclude criminal sanctions

  • Provide information and statistics

  • Send messages of tolerance of peaceful assemblies. 

Memorial Human Rights Centre & OVD-Info updated the participants on the current situation in Russia on freedom of assembly:

  • Spontaneous assemblies are still not authorized in Russian law.

  • The procedure of approval of assemblies became more strict. The organizers are obliged to agree with the alternative places proposed by the authorities.

  • There is still a legal possibility to detain individuals for participating in non-approved assemblies. The administrative fines are very high, and administrative arrests still exist.

  • There is still a criminal liability for participation in the non-approved assemblies, and it was applied during the past year.

  • Over 13,000 individuals were detained during the opposition rallies during the last year. Many individuals faced different punishments as well as police violence and hard conditions of detention.

What is Necessary to Implement the Judgment

  • To legally authorize spontaneous assemblies in Russia;

  • To liberalize the procedure of approval of assemblies. Organizers should be able to freely choose the place and time of assemblies.

  • To abolish the criminal liability for participation in non-authorized assemblies.

  • To abolish administrative arrests for non-authorized assemblies and to reduce administrative fines.

  • To regularly provide the CM with information about the number of assemblies approved and not approved by the authorities and the consequences of this.

Memorial Human Rights Centre & OVD-Info Recommendations to the CM:

Public Verdict Foundation, HRC Memorial, Committee against Torture, and OVD-Info propose to the Committee of Ministers the following measures:  

  1. To adopt an interim resolution recognizing that the case of Lashmankin has not been implemented by Russian authorities.  

  2. To remind the authorities about the necessity of adopting the recommendations made by the Committee of Ministers in its previous decision.  

  3. To propose to the authorities the adoption of the list of recommendations made by “Memorial” and OVD-Info in their previous submission to the Committee of  Ministers on 20 April 2020.  

  4. To remind the authorities that the most important reforms deriving from the case of Lashmankin have still not been adopted by the authorities and to urge them to adopt these reforms.  

  5. To condemn the new restrictive laws adopted by Russian authorities during the last year and to state that the authorities must withdraw these laws.

  6. To welcome some positive drafts laws proposed by Russian deputies and to encourage the authorities to adopt these drafts laws.  

  7. To indicate that the practice of the Constitutional Court and regional laws must be more consistent and fully follow the findings of the ECHR in the Lashmankin case.  

  8. To indicate that the restrictions due to the COVID-19 pandemic must not be applied in a discriminatory and non-proportional way.

  9. To condemn the mass arrests and prosecutions of participants in peaceful assemblies, perpetrated by the authorities during the last year. 

  10. To propose that authorities create a working group at a federal level consisting of experts and civil society to discuss the reforms necessary for the implementation of the Lashmankin case.

  11. To decide to consider again the Lashmankin case during the next session of the Committee of Ministers together with the cases dealing with the related issues including “Tomov and others v. Russia”, “Fedotov v. Russia”, “Mikheyev v. Russia”, “Atyukov v. Russia”, “Zakharov and Varzhabetyan v. Russia”.

Please see the slides for the full Briefing.

 Relevant Documents

The Lashmankin Case status of Execution

 

Online Training for Moldovan Civil Society on the ECtHR Judgments Implementation Process

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On February 25 and 26th of 2021, EIN hosted its first online training session of the year. This session focused on Moldovan civil society’s engagement with the implementation process for judgment of the European Court of Human Rights (ECtHR).

The first of the two sessions focused on the general implementation process.

EIN Director George Stafford and LRCM Executive Director Vladislav Gribincea provided welcoming remarks, which were followed by the first presentation. Tatiana Cojocaru, Lawyer at the Council of Europe’s Department for the Execution of Judgments, discussed how the implementation monitoring process works. More on the implementation process here and here.

Next, Agnes Ciccarone, EIN Programme Manager, discussed how NGOs can get involved in the implementation monitoring process, followed by the “The Dos and Don’ts of NGO submissions in the implementation process”, presented by George Stafford. The final presentation highlighted examples of successful advocacy in Strasbourg for the implementation of ECtHR judgments, provided by Ioana Iliescu, EIN Law and Advocacy Officer.

The second training session focused on how to address the issue of the non-implementation of ECtHR judgments in Moldova. This contained presentations from EIN and Moldovan civil society members and started with a discussion surrounding the ECtHR judgments pending implementation against Moldova by the Director of EIN.

LRCM gave the next two presentations. The first by Legal Officer Daniel Goinic on implementing ECtHR judgments in Moldova, covered the roles of the main actors involved in the process. The second focused on tips for effective domestic advocacy strategy for ECtHR judgment implementation by Vladislav Gribincea.

Alexandru Postica, Strategic Development Advisor of Promo-LEX, gave the following presentation, discussing his organization’s experience in advocating for the implementation of ECtHR judgments. Insights on this subject were also provided by Violeta Andriuta, a lawyer from the Women’s Law Centre.

The training was concluded with a breakout session. This activity allowed participants to discuss how they would write Rule 9 submissions on pending Moldovan cases.

We thank everyone who attended the training sessions, especially those who presented. We look forward to the next online training event!

Civil Society Briefing: UK and Poland

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Last week EIN concluded its civil society briefings prior to the March meeting of the Committee of Ministers, with a briefing held on February Friday 26th. Due to Covid-19 it was held online.

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This second civil society briefing focused on cases concerning the U.K and Poland. Gemma McKeown from the Committee on the Administration of Justice (CAJ) presented on the McKerr group, with an additional briefing on the case of Pat Finucane, the son of Pat Finucane given by the victim’s son, Michael Finucane.  Jarosław Jagura from the Helsinki Foundation for Human Rights Poland and Kamila Ferenc from the Federation for Women and Family Planning presented on the P. and S., Tysiąc and R.R. cases v. Poland.

The purpose of civil society briefings is to update the Committee of Ministers (CM) with crucial information on specific cases. Read more on the implementation process here.

McKerr Group v. U.K.:The case concerns actions of security forces in Northern Ireland in the 1980s and 1990s and the failure of the UK to conduct Article 2-compliant investigations.

Recommendations on McKerr v. U.K. group of cases by the Committee on the Administration of Justice

General Measures

CAJ invites the CM to ask the U.K:

  • Whether it is recommitting to implementing the Stormont House Agreement and if it is, what action is it taking without further delay to take this forward.

  • What action it is taking to address the underfunding of the Office of the Police Ombudsman and failure of the PSNI to comply with disclosure obligations.

  • What action it is taking to address issues of delays in the provision of disclosure in legacy inquests.

Individuals Measures:

  • CAJ echoes the CM’s profound regret that the inquests and investigations in McKerr, Shanaghan and Kelly & Ors have still not been completed, resulting in ongoing breaches of Article 2 ECHR, and repeats its calls for infringement proceedings, under Article 46 (4) ECHR.

  • CAJ calls for all of the Individual Measures to remain under the supervision of the CM.

  • CAJ repeats its request for the reopening of the supervision of the Individual Measure under the Finucane v. U.K. case without further delay and that this be kept under regular scrutiny by the CM.

The P. and S., Tysiąc and R.R. cases v. Poland:

P. and S. v. Poland: The case concerns the state’s failure to provide reliable information on lawful abortions to the applicant. This case is under enhanced procedure by the Committee of Ministers. More on the case here.

Tysiąc v. Poland: The case concerns the absence of an adequate legal framework for the exercise of the right to therapeutic abortion in the event of disagreement between the patient and the specialist.

R.R.  v. Poland: The case concerns the applicant's lack of access to a prenatal test, enabling the applicant to make an informed decision on whether to seek an abortion.

Recommendations on P. and S., Tysiąc and R.R. cases v. Poland

By Helsinki Foundation for Human Rights

  • Recommends the CM to continue its supervision of the P. and S. v. Poland, R. R. v. Poland, and Tysiąc v. Poland cases.

  • Urges the CM to consider the possibility of issuing an interim resolution given the considerable time elapsing from the delivery of the ECtHR's judgments in the following cases: P. and S. v. Poland, R. R. v. Poland, and Tysiąc v. Poland.

  • Recommends that CM should again request the Polish authorities to provide data on the actual availability of abortion in hospitals, specifically the data on hospitals where a woman can't have her pregnancy terminated because of the conscience clause invoked by the doctors.

  • Polish authorities should guarantee that women may receive reliable and objective information on the grounds for the Iawful termination of pregnancy and the condition of the foetus. This information should be provided before the end of the legal period when an abortion is allowed. Polish authorities should introduce an expedient and effective procedure to ensure that women have an opportunity to exercise the right to Iawful abortion. 

  • Mechanisms should be introduced to ensure that the right to abortion is not nullified by the invocation of the conscience clause by doctors.

See Helsinki Foundation for Human Rights presentation below.

By the Centre for Reproductive Rights and the Federation for Women and Family Planning

  • Recommends that the CM continue its enhanced scrutiny of the Tysiąc, R.R. and P. and S. judgments and urge Poland to adopt the measures required by the judgments to address prevailing legal barriers and enforcement deficits and enable women and adolescents to exercise their rights under Polish law to obtain reproductive health services. 

  • Recommends the Committee of Ministers request the authorities to:

    • Establish effective and timely procedure for women to challenge and resolve disagreements with and between doctors regarding their entitlement to legal abortion care and to exercise their rights in this regard. This mechanism must ensure: a decision within no more than 3 days; the right of judicial appeal; the issuance of enforceable orders mandating a particular health care facility or medical provider to provide the care sought.

    • Adopt effective measures to ensure that refusals based on the “conscience clause” by medical professionals do not undermine or delay women’s access to legal abortion or prenatal testing. This should include enacting legally binding measures requiring medical professionals to timely refer women who are refused abortion care based on the “conscience clause” to alternative medical professionals committed and able to provide the care; establishing effective oversight and monitoring mechanisms; and ensuring an adequate number of medical providers committed to provide abortion care throughout the country.

    • Strengthen enforcement procedures and measures, including by ensuring appropriate sanctions and disciplinary actions against health care facilities and professionals for any failures to comply with obligations to provide legal reproductive health services and information.

    • Effectively monitor compliance by all health care facilities with their contractual obligations to the National Health Fund and actively enforce these contracts, including by sanctioning breaches by health care institutions and medical providers.

    • Adopt effective measures to guarantee women timely access to reliable information on the conditions and effective procedures for their access to legal abortion care, such as comprehensive guidelines to all health facilities and professionals providing reproductive health care.

    • Adopt effective measures to ensure that full and reliable information is provided to women and adolescent girls enabling them to take informed decisions about their pregnancy.

    • Adopt effective measures to enhance protection of patient data confidentiality.

    • Introduce targeted measures to ensure that the needs of adolescents who are seeking legal abortion care are met and that they are treated with respect and due consideration for their vulnerability.

    See the original recommendations here.

We thank the Committee on the Administration of Justice, the Helsinki Foundation for Human Rights Poland, and the Federation for Women and Family Planning for sharing their insights and recommendations on these cases.

Relevant Documents:

Civil Society Briefing: Turkey, Kavala, and Demirtaş

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This week EIN held its first civil society briefing of 2021. The briefing was held online due to Covid-19. These civil society briefings update the Committee of Ministers (CM) with information on the progress of specific cases. Read more on the implementation process here.

This briefing had two sessions, the first took place on Tuesday, February 23rd, and the second was on February 26th. The first session covered two Turkish cases, presented by Emma Sinclair, Turkey Director at Human Rights Watch, Ayse Bingol, Project Co-Director at the Turkey Human Rights Litigation Support Project, and Kerem Altiparmak, Human Rights Lawyer and Founder at the Freedom of Expression Association (IFÖD).

The Kavala v. Turkey case concerns a Turkish philanthropist and human rights defender who is unjustifiably being detained, for over 1200 days, as a means to silence his speech. More on Kavala here.

Overview of Recommendations by Human Rights Watch, the International Commission of Jurists, and the Turkey Human Rights Litigation Support Project on Kavala 

Individual Measures:

The NGOs urge the immediate release of Kavala. If he does remain in pre-trial detention at the time of the 1398th 9-11 March 2021 meeting, the CM should trigger infringement proceedings against Turkey.

General Measures:

The NGOs urges Turkey to address/implement ECtHR violations concerning the right to liberty and security and on the limitations on restricting rights.

Specifically, to: 

  • Request Turkey to inform the Committee of Ministers about the number of people detained on remand since 15 July 2016.

  • Urge Turkey to revise its Action Plan and address in full the structural problems identified in the ECtHR Kavala v. Turkey judgment and recommendations by NGOs.

  • Call on Turkey to pursue a clear and detailed strategy to prevent violations of the rights protected in the Convention. 

Overview of Recommendations by Freedom of Expression Association (IFÖD) on Kavala 

IFÖD urges the CM to invite Turkey to provide statistical information about detention orders issues in the last 5 years and continue to supervise Turkish judicial practice concerning pre-trial detention with the Convention standards.

The Selahattin Demirtaş v. Turkey (No.2) case concerns the arrest/detention of one of Turkey's main opposition leaders to limit political debate.

Overview of Recommendations by ARTICLE 19, Human Rights Watch, the International Commission of Jurists, the International Federation for Human Rights, and the Turkey Human Rights Litigation Support Project on Demirtaş

Procedural Matters:

The NGOs urge the Committee of Ministers to place Demirtaş v. Turkey (No.2) under enhanced procedures and treated as a leading case.

 Individual Measures:

The NGOs urge the Committee of Ministers to: 

  • Call for the immediate release of Demirtaş required by the judgment and indicate that his ongoing detention is a prolong violation of his rights.

  • Request the Government of Turkey to end the abuse of judicial proceedings to harass Demirtaş, including by dropping all charges under which he has been investigated and detained.

  • Publicly correct false claims promoted by senior officials of the Government of Turkey.

The second briefing took place on Friday, 26th February 2021. This session focused on two case groups:

Relevant Documents: