What role for lawyers in promoting the implementation of Strasbourg Court judgments?

EIN partners with Fair Trials to organise a thematic training seminar

On 17 March, the EIN was in Zagreb, Croatia, to hold a one-day thematic training seminar for criminal defence lawyers and representatives of NGOs who litigate cases related to fair trials. The event, which was organised with the support of EIN’s member Fair Trials, brought together more than a dozen members of Fair Trial’s Legal Experts Advisory Panel (LEAP) network of experts in criminal justice and human rights from different countries, with the aim of equipping them to better follow up on the cases they won at the European Court of Human Rights (ECtHR, ‘the Court’).

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The trip to Zagreb also provided an opportunity for EIN Chair Başak Çalı and EIN Co-Director Anne-Katrin Speck to hold a meeting with one of the Network’s newest members, the Human Rights House Zagreb.  We had a useful exchange about how to enhance, in a sustainable fashion, Croatian civil society’s capacity to use the Strasbourg process to promote urgently needed reforms in their country, which has 45 leading cases pending before the CM.

 

Making sure the judgments from Strasbourg lead to real change in your clients’ lives

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Başak Çalı kicked off the training seminar by stressing that a case won in Strasbourg was no reason, by itself, to open the champagne quite yet. True success only comes with full implementation of the ECtHR’s judgment. Since there can be disagreements about when that point has been reached, it is vital for lawyers and NGOs with knowledge from the ground to counter any unduly positive accounts by the government about the status of implementation. That way, they can help avoid the Committee of Ministers (CM), which supervises the execution of the ECtHR’s judgments, closing a case prematurely.

The seminar highlighted lawyers’ responsibility to make sure their clients are adequately redressed for the Convention violations they suffered, and inform the Committee of Ministers of any failure on the part of the state to take the relevant (monetary or non-monetary) individual measures required to execute the Court’s judgment.


What is more, litigating lawyers will often be aware of the status of implementation of so-called ‘general measures’, and notably any prevailing inconsistencies of national courts’ jurisprudence with Convention standards and the ECtHR’s case law. A representative of the Department for the Execution of Judgments of the European Court of Human Rights (DEJ) of the Council of Europe stressed that the Department needed NGO and lawyers’ input from the ground to understand the domestic environment in which a judgment is landing, and invited them to tell the DEJ what has changed domestically since the violation occurred. EIN’s training seminar participants learned how lawyers, who are not entitled under the Rules of the Committee of Ministers to comment on general measures, can partner with NGOs to submit such contextual information to the CM in the form of a Rule 9.2 submission. A huge thank you goes to Maria Radziejowska and Katarzyna Wiśniewska, who offered inspirational suggestions on how the human rights commissions of national bar associations and NGOs can systematically collect evidence from lawyers, and bring this data to the CM’s attention.  

Work on implementation starts at the litigation stage

The participants also heard from the EIN secretariat about how they can make sure their Rule 9 submissions have the greatest possible impact.

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One key take-away from the seminar was that submissions to the CM are not a panacea, but only one tool in a widerarsenal that lawyers and NGOs can use to advocate for the full and rapid implementation of the cases they are supporting. Importantly, reflecting on implementation should start way before the ECtHR hands down its judgment. Lawyers should clearly spell out the origin of any violation they allege in their applications to the Court, and consider inviting it to call for specific remedial measures. Domestically, they should seek, as far as possible and in coordination with other actors, to engage with the authorities with a view to influencing the drafting of Action Plans. This way, Rule 9 submissions can become embedded in a holistic advocacy strategy, spanning the entire ‘lifetime’ of a case.

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EIN is excited to see participants return to their countries and implement the lessons learned in their daily work. One participant undertook to donate his pro bono hours to working on implementation, and to encourage his colleagues to do the same. Another has already carried out an analysis of all fair trials related cases pending before the CM against his country, and is exploring ways to engage the human rights commission of his national bar association, of which he is a vice-president, to collect evidence on the implementation of these rulings. Opportunities for lawyers to engage in implementation are manifold, and we look forward to more Rule 9 submissions from our training participants.

If you are a lawyer or NGO representative, and want to see more tips shared with the participants of EIN’s training about how you can effectively advocate for the implementation of your cases, read-up on our live tweeting from Zagreb on Twitter, under the hashtag #EINtrainingFairTrials.

EIN would like to extend a warm thanks to Fair Trials, who have been a great partner in organising this training seminar, and to Geanina Munteanu from the DEJ for sharing an insider’s view on the CM judgment execution process and avenues for lawyers and NGOs to engage with it.

Photos: EIN

 

 

 

Representatives of EIN member Promo-LEX visit Strasbourg to raise awareness of important cases

Photo: EIN

Photo: EIN

On 5 and 6 March, a delegation of one of EIN’s newest members, the Moldovan organisation Promo-LEX, paid a visit to EIN in Strasbourg, where they held a number of meetings with Council of Europe interlocutors. The delegation was headed by Promo-LEX’s Executive Director, Ion Manole, and its Director of the Human Rights Program, Alexandru Postica, who were accompanied by Maria Roibu, Director of Alexandru cel Bun Lyceum, a school in the Transdniestrian region.

Promo-LEX, which was established as an association in 2002, is a non-governmental organisation that aims to advance democracy in the Republic of Moldova, including in the Transdniestrian region, by promoting and defending human rights, monitoring the democratic processes, and strengthening civil society.

The purpose of Promo-LEX’s working visit to Strasbourg was to raise awareness, ahead of this week’s 1340th DH meeting of the Ministers’ Deputies, of several important judgments of the European Court of Human Rights which are still awaiting full implementation: the Catan and others v Russia case, on access to education in Transdniestria, the Mozer v Russia case on inhuman conditions of detention in Transdniestria  and the PROMO LEX and Others v the Republic of Moldova case on freedom of assembly.

The EIN Secretariat facilitated a series of meetings for the Promo-LEX delegation with lawyers from the Council of Europe’s Department for Execution of Judgments (DEJ) dealing with their cases. Ms Roibu and Messrs Manole and Postica also had the opportunity to exchange views with staff from the Human Rights Commissioner’s Office, the secretariat of the Committee for Legal Affairs and Human Rights of the Parliamentary Assembly, and the EU representation to the Council of Europe.

Photo: EIN

Photo: EIN

On the second day of their visit, Promo-LEX briefed representatives of 18 delegations from Council of Europe member States about the continued failure of the Russian government to implement the judgment in the Catan case against the Russian Federation. 6.5 years after the ruling was handed down, the victims have still not received compensation, and no general reforms have been adopted. As a result, hundreds of schoolchildren in Transdniestria are still denied proper education in Latin-script schools. Ion Manole explains the situation in the video below. You can find further details here. Promo-LEX’s latest Rule 9.2 submission on the Catan case is available here.


EIN held its first 2019 advocacy briefing

On 25th February 2019, EIN held its quarterly civil society briefing, ahead of the 1340th CM-DH meeting.

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Presentations were given on the following cases:

1.      Oya Ataman group v Turkey (Application Nr 74552/01)

2.      Fedorchenko and Lozenko group v Ukraine (Application Nr 387/03)

3.      P. and S. v Poland (Application No 57375/08)

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In addition, EIN Co-Director George Stafford gave, on behalf of EIN and REDRESS, an overview of the fundamental problems regarding ineffective investigations in Article 2 and 3 cases, in preparation for the CM thematic debate of 12th March.

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Over 30 participants attended the briefing, including participants from the Permanent Representations to the Council of Europe, the EU representation to the Council of Europe and other CoE staff members. The briefing was co-financed by the UK Permanent Representation to the Council of Europe and organised with the support of the Irish Permanent Representation.

1- Oya Ataman group v Turkey (Application Nr 74552/01)

These cases concern violations of the applicants’ right to freedom of peaceful assembly and/or their ill-treatment or the death of their relatives when excessive force was used to disperse peaceful demonstrations. Certain cases also concern failure to carry out an effective investigation into the applicants’ allegations of ill-treatment or lack of an effective remedy in this respect (violations of Articles 2, 3, 11 and 13 of the Convention). In its decision of March 2018, the Committee of Ministers recalled that the origin of the problems stemmed from the legislation under which any demonstration carried out without prior notice was considered to be unlawful, and asked Turkey to fully align Law No 2911 with the Court’s jurisprudence. The Turkish government provided information on the state of implementation on 20 December 2017 and on 4 January 2019.

Photo: EIN

Photo: EIN

An update on the group was delivered by Basak Cali,  EIN Chair, Hertie School of Governance, Berlin; Center for Global Public Law, Koç University, Istanbul, on behalf of the Human Rights Joint Platform (IHOP). IHOP submitted a Rule 9.2 communication on the case on 4 February 2019.

First of all, she underlined that, since the last review of the state of implementation of the cases, Law N0 2911 had not been aligned with the Court’s jurisprudence. On the contrary, further restrictions on freedom of assembly were introduced through new legislative amendments, in particular to the Provincial Administration Law (No 5442).

Beyond these legislative developments, the practice shows the bans of assemblies of selected groups, the retaliatory use of tear gas, as well as civil and criminal law against peaceful protesters. Ms Cali gave examples related to the period after the end of the state of emergency in the country (18/7/2018): the Saturday mothers, continuous ban on gay pride and LGTBI events, despite existence of lawful requests to hold them, the case of Yüksel Resistance (see for further details the full text of the IHOP Rule 9.2 submission available below).

As far as the judicial practice is concerned, Ms Cali also pointed out that none of the judicial organs in Turkey was able to amend ordinary law through individual cases. “The root of the problem clearly lies in the lack of adequate legal framework, and arbitrary nature of the existing legal framework”, she said.

In conclusion, Ms Cali therefore called the Committee of Ministers to:

  • take note of the lack of progress in full alignment of Law 2911 with Convention standards in the past twelve years.

  • take note of the amendments to law 5442 and its use in supplementing the existing non compliant domestic legal framework, including the use of misdemeanour laws to punish peaceful assembly.

  • request disaggregated statistical data from the Government to establish whether peaceful assemblies and gatherings are protected under all circumstances and without selective and arbitrary use of laws for assemblies and gatherings unfavourable to the executive authorities.

The presentation of Ms Cali on this group of cases is available here. The latest communication from the Turkish government ( 8  January 2019) is here. You can also download the Rule 9.2. submission by IHOP ( 24th January 2019) and the government answer (1st February 2019) to this communication here.

2-     Fedorchenko and Lozenko group v Ukraine (Application Nr 387/03)

These cases concern the failure to carry out effective investigations into violent acts allegedly carried out on racial/ethnic grounds (violation of the procedural limb of Articles 2 or 3) and to investigate a possible causal link between alleged racist attitudes and the attacks (violation of Article 14 taken in conjunction with Articles 2 or 3 in respect of its procedural limb). In Fedorchenko and Lozenko, the authorities failed to investigate the deaths of the applicants’ Romani-origin relatives caused by an arson attack on their house in October 2001.

The authorities submitted a first action plan on 17 September 2013 (see DH-DD (2013)1012) for Fedorchenko and Lozenko case. An updated action plan was published on 4th January 2019.

On 1st February, the European Roma Rights Centre and ICO Roma Fund Chiricli made a submission on this case, which they presented at the briefing.

Based on their fact-finding, both organisations argued that the Ukrainian government had not taken the necessary general measures to comply with the judgment. Throughout 2018, attacks occurred in Ukraine which targeted Romani communities in at least 5 cases. They appeared to be carried out by organised racist groups, and were not isolated. However, none of them were being treated as hate crimes.  In other words, none of the mechanisms the Ukrainian Government described in its updated Action plan were being deployed in these cases, which bear all the hallmarks of racially-motivated violence.

In view of this situation, the representatives of ICO Roma Fund Chiricli and the European Roma Rights Centre therefore invited the CM to ask the Ukrainian authorities to:

  • amend Article 161 § 2 of the Criminal Code

  • regularly report to the Committee of Ministers on current hate crime cases (including the five presented at the briefing)

  • ensure effective training of law enforcement

  • set up an oversight structure for dealing with hate crimes

  • strengthen mechanisms for complaints against police

  • report to the Committee of Ministers on the budgets and financing for related aspects of Roma Integration Strategy 2020

The power point presentation of Mr Weiss, Ms Kondur and Ms Brassoi is available here. The January 2019 Action Plan by the Ukrainian Government is available here. The February 2019 Rule 9.2 submission by ERRC/ Chiricli made in February, and the answer by the Government, is available here.

3-     P. and S. v Poland (Application No 57375/08)

The 2012 judgment in the case of P. and S. v. Poland (application no. 57375/08) is one of three important decisions of the European Court of Human Rights (ECtHR) concerning access to legal abortion in Poland. In all three cases, the ECtHR ruled that the rights of the applicants were violated because of the practical difficulties they experienced in exercising their right to legal abortion. To fully implement these judgments, the Court stated that the national authorities must take steps to guarantee not only theoretical but also practical access to abortion.

An update on the case was delivered by Katrine Thomasen, Senior Legal Adviser for Europe at the Centre for Reproductive Rights, and Kamila Ferenc, lawyer at the Federation for Women and Family Planning in Poland.

They underlined that the authorities’ communications dated January 2019 had not provided information on any measures towards establishing such a “viable system” for effective access to legal abortion care and thus comply with the Court’s judgment and the Committee of Ministers’ decision of September 2018 on the case. The authorities continued to claim that existing legal provisions and mechanisms are adequate. However, as Ms Thomasen highlighted, according to official statistics only between 0 and 3 legal abortions are performed each year in Poland on grounds of a pregnancy resulting from sexual assault. In addition, conscience-based refusals of abortion care remain widespread.

In light of this situation, Ms Thomasen and Ms Ferenc invited the Committee of Ministers to ask the Polish authorities to:

  • guarantee timely referral in situations of conscience-based refusals of legal abortion care

  • rigorously enforce legal provisions on abortion and refusals of care, including through sanctions and disciplinary measures

  • adopt urgent procedural mechanism: decision within max. 3 days; the right of judicial appeal; enforceable orders mandating the care to be provided

  • monitor and enforce National Health Fund contracts

You can find the memo of Ms Thomasen and Ms Ferenc here. Their power point presentation is here and their Rule 9.2 communication is there. The more recent communication from the Polish authorities on this case is here.

Photo credit: EIN