On 23 November 2018, EIN held its quarterly civil society briefing, ahead of the 1331st CM-DH meeting.
Presentations were given on the following cases:
1- Alekseyev v Russia (Application No 4916/07) and Bayev v Russia (Application No 67667/09) – Repeated bans on the holding of LGTBI marches and pickets; fines imposed for displaying banners considered to promote homosexuality among minors (against laws prohibiting such “propaganda”).
2- Makaratzis v Greece (Application No 50385/99) – Ill-treatment by coastguards and other state agents and a lack of effective investigations.
3- Merabishvili v Georgia (Application 72508/13) – Failure by the domestic courts to give relevant and sufficient reasons to justify continuation of detention on remand; continued detention on remand with the predominant purpose of obtaining information from the applicant about third persons.
4- Bekir Ousta v Greece (Application 35151/05) – Refusal of domestic courts to register the applicants’ associations.
Over 35 participants attended the briefing, including participants from the Permanent Representations to the Council of Europe, the office of the Commissioner for Human Rights, and other CoE staff members. The main recommendations from the briefing are available here.
1- Alekseyev v Russian Federation (Application No 4916/07) and Bayev v Russia (Application No 67667/09)
The Alekseyev v. Russia case addresses repeated bans on demonstrations promoting tolerance and respect for the human rights of LGBTI persons in 2005, 2006 and 2007, and the absence of an effective remedy to challenge those bans. The European Court of Human Rights (the Court) found violations of Convention Articles 11 (right to freedom of assembly), 13 (right to an effective remedy), and 14 (prohibition of discrimination) taken in conjunction with Article 11.
The Bayev v. Russia case addresses violations of the right to freedom of expression and discrimination on account of fines imposed on the applicants for displaying banners considered to promote homosexuality among minors. The banners were held by the Russian courts to be against the regional laws prohibiting such “propaganda”, adopted in several regions since 2006, and followed by a nation-wide law of 2013 similar to that effect (violations of Article 10 and of Article 14 in conjunction with Article 10).
The main argument advanced by the RF in support of these laws – that they are necessary to protect minors from information about homosexuality – was dismissed by the ECtHR as “lacking any evidentiary basis”.
The execution of judgments process in the Alekseyev case has now been proceeding for 7 ½ years. Over that time, in numerous Decisions, the CM has repeatedly expressed concern that the competent authorities have refused the majority of requests to hold public events similar to those in the Alekseyev judgment. It has also made numerous warnings against the introduction of regional and federal laws prohibiting so-called “propaganda of non-traditional sexual relationships” (the “propaganda” laws). These were ignored, and despite assurances by the Russian government to the contrary, these laws have been used on many occasions to refuse authorisation of public events in support of the rights of LGBTI persons. As far as the Bayev case is concerned, the judgment is relatively recent (June 2017).
In his presentation, Nigel Warner focused on the main recommendations listed in the Rule 9.2 communication submitted on those cases by Coming Out, a St Petersburg-based NGO, and ILGA Europe, in October 2018. According to Mr Warner, the latest Action Plan of the Russian Federation on those cases offers no evidence of any improvement or prospect of improvement in the situation. Furthermore, it appears to repudiate the Bayev judgment, citing a ruling of the RF Constitutional Court to the effect that the “propaganda laws” are consistent with the constitution. The “propaganda laws” continue to be used to the detriment of LGTB youth.
In view of this situation, Mr Warner therefore invited the CM to:
repeat its request to the Russian authorities to adopt a comprehensive action plan to ensure execution of the Alekseyev and Bayev judgments. This request should, as a minimum, include the repeal of legislation prohibiting so-called “propaganda of homosexual relations”; and
continue requesting information on the treatment of notifications to hold public events similar to those in the Alekseyev case.
The memo of Mr Warner is available here. His power point presentation is here. The October 2018 rule 9.2 submission form ILGA Europe and Coming Out is here. You can access the October 2018 Action Plan from the Russian Federation here.
2- Makaratzis and others group of cases v Greece (Application No 50385/99)
These cases concern ill-treatment and the unauthorized and disproportionate use of force by law enforcement officials.
An update on the group was delivered by Panayote Dimitras from the Greek Helsinki Monitor (GHM), which represents the victims in nine of thirteen cases of the group.
Mr Dimitras first underlined the positive points included in Greece’s communication dated 4/10/2018 on the Makaratzis group of cases, i.e. the beginning of the functioning of the National Mechanism for the Investigation of Arbitrary Behaviour (hereafter “the Mechanism”) within the framework of the Greek Ombudsman; and the agreement of the Government with the Mechanism recommendation that letters of apology be sent to victims of the incriminating acts.
He further highlighted the historical decision of the Supreme Court Prosecutor, in the Chowdury and others v Greece case, to file an appeal for the cassation of a domestic court judgment for the benefit of the law, to comply with the ECtHR judgment ruling that this domestic judgment was violating the ECHR. He reminded that GHM had recommended as a fundamental remedy to execute ECtHR judgments the filing of such appeals for cassation by the Supreme Court Prosecutor in case where the violations ruled by the ECtHR resulted from domestic court judgments.
Despite these positive developments, there is still need for further progress. With regard to the work of the Ombudsman as the Mechanism for the investigation of arbitrary behaviour, in particular, Mr Dimitras regretted the lack of transparency and information on the Mechanism. GHM, which represents the victims in nine out of thirteen cases has never received any communication from the Mechanism. Most importantly, Mr Dimitras expressed his concern over the decision by the Ombudsman on almost all new cases not to carry out his own investigations but only to supervise them, and entrust the disciplinary investigations to what GHM considers as objectively partial investigation bodies. He also recalled that, in its Report on Greece of 2 November 2018, the UN Human Rights Committee evaluated the answers from Greece related to the work of the Ombudsman and the effectiveness of the Mechanism as either partially satisfactory or not satisfactory.
With regard to the Makaratzis group of cases, GHM therefore urged the CM to ask the Greek government to:
reopen all disciplinary investigations in the 13 cases of the Makaratzis group;
request the Supreme Court Prosecutor to file appeals for cassation for the benefit of law of ten domestic judgments in the Makaratzis group of cases found by the ECtHR to be in violation of the ECHR;
provide detailed information on the punishment of law enforcement officials for misconduct, ill-treatment or disproportionate use of force;
make sure that the Ombudsman investigates himself the torture or ill-treatment allegations;
empower the Ombudsman to impose sanctions. To do so, the law should be amended so that the Mechanism can impose penalties; concretely, a solution would be to remove the Mechanism from the Ombudsman and make it independent.
introduce the necessary amendments so that the definition of torture is compatible with Article 1 of UN CAT
The memo of Mr Dimitras on this group of cases is available here. The latest communication from the Greek government (September 2017) is here. You can also download the Rules 9.2. September and October submissions by the Greek Helsinki Monitor.
3. Merabishvili v Georgia (Application 72508/13)
The case concerns violations suffered by the applicant, a formerPrime Minister of Georgia, in the context of the criminal proceedings instituted against him in December 2012 and January 2013, for alleged embezzlement and the abuse of official authority (violations of Article 5 § 3 and Article 18 taken in conjunction with Article 5 § 1 of the Convention).
The presentation on this case was given by Mr Kakhidze, MP of Georgia, on the basis of the Rule 9 submission filed on this case by EHRAC in September 2018.
Mr Kakhidze noted that, following the release of Ilgar Mammadov on 13 August 2018, Mr Merabishvili was the only convicted individual against whom a violation of Article 18 of the Convention had been found who remained in detention.
In its Action Plan, the Government proposes to undertake further investigative measures taking full account of the Grand Chamber’s findings. “The only potential investigative mechanism in which Mr Merabishvili has confidence”, stated by Mr Kakhidze, “is an investigation by the Parliamentary Commission (a Temporary Investigative Commission, set up pursuant to the Rules of Procedure of the Parliament of Georgia, Chapter 6, Articles 55-70”). Mr Kakhidze reminded that in September 2017 he requested that such a Parliamentary Commission be established to investigate Mr Merabishvili’s covert removal. Despite the fact that this request remains pending before Parliament, the Government rejected this proposal in its Action Plan (para. 33).
Mr. Kakhidze stated that without Mr. Merabishvili’s early release another investigation was not an answer to the established breach of Article 18/5. He emphasized that even the judges dissenting on violation of Article 18 agreed that Mr. Merabishvili was removed from his cell. Mr Kakhidze also reminded that an official internal inquiry of Merabishvili’s covert removal was conducted in 2014, and another formal investigation was launched in 2016 by the “reformed” prosecution service with a “newly appointed chief prosecutor”. However, the outcome which they published in 2017 clearly contradicted the ECtHR findings, both in the chamber and GC.
The Georgian Government indicated that the current domestic law prevented mobile telephone records and cell tower data from being examined as part of any further investigation, as the offence being investigated in relation to Mr Merabishvili’s removal fell within the category of less grave crimes (Action Plan, paras 34-36). It therefore proposed to amend the domestic legislation in order to permit such investigative steps to be carried out (Action Plan, para. 37). However, as Mr Kakhidze underlined, the Government failed to provide any further information as to what specific amendments it proposed to make, within what time period, whether such amendments would be retrospective (i.e. could be applied in Mr Merabishvili’s case) or whether practically this would have any effect (i.e. whether the relevant records in this case continue to exist almost 5 years after the event in question).
The Government also indicated that it has already undertaken a number of General Measures, in light of the Grand Chamber’s judgment, including:
a. Extending the period of time for storing video surveillance footage from 24 to 120 hours (Action Plan, para. 66; Order N35 amended by Order N19 (20 March 2017)); and
b. Creation of State Inspector’s Service SIS (Action Plan, paras 74-5).
Mr Kakhidze underlined that, in reality, video surveillance footage in detention facilities are stored for 30 days, but the Government tries to make the impression that “the system change” will be seen by the CM as an effective general measure. He noted that the proposed SIS was entirely irrelevant to Mr Merabishvili’s case as the crimes that it is empowered to investigate does not include any crimes related to Mr Merabishvili’s covert removal.
Mr. Kakhidze submitted that the Government intends to take the Committee of Ministers’ attention from individual measures to general legislative measures which, in his opinion, aims at delaying Mr. Merabishvili’s early release. According to him, the applicant’s continuous detention still has ulterior purposes disclosed by the Court when establishing violation of Article 18 in conjunction with Article 5.
As previously submitted (see letter to the Committee of Ministers dated 26 January 2018), in order to effectively implement the Grand Chamber judgment in his case, the Georgian authorities should therefore:
Re-open the criminal proceedings against him;
Pending the outcome of the re-opening of the criminal proceedings, order Mr Merabishvili’s release; and
Ensure rigorous investigation of his covert removal by an independent body.
You can download the text of the EHRAC rule 9 submission on this case, as well as all attachments: annexe 1, 2, 3 , 4 and 5. The power point presentation of Mr Kakhidze is here. The October 2018 Action Plan from the Georgian government can be downloaded here. The November 2018 Rule 9.2. submission by the Public Defender of Georgia can be downloaded here.
Other documents presented by Mr Kakhidze:
Nov 2018 letter from Georgian MPs to the CM-DH.
October statement from Georgian NGOs on the crisis of institutions in Georgia
Excerpt from the Georgian Public Defender Report 2018
4. Bekir Ousta and others group of cases v Greece (Application No 35151/05)
These cases concern violations of the right to freedom of association (Article 11) due to the refusal to register Turkish minority associations (Bekir-Ousta and Others and Emin and Others; final domestic decisions in 2006 and 2005 respectively).
Mr Dimitras, from the Greek Helsinki Monitor, gave a summary of the developments since the last examination of the case by the CM, in December 2017. In February 2018, the Cultural Association of Turkish Women of the Prefecture of Xanthi was refused registration on similar grounds as in the present group of cases. In its 2018 communications, mentioned Mr Dimitras, Greece has refused to address the CM December 2017 concerns on these developments. More importantly, the Supreme Court Judgment dissolving the Turkish Union of Xanthi(which was the first of the three Turkish minority associations of the group of cases that filed an application for the reopening of the domestic proceedings), was considered by the Greek government as irrevocable. This means, Mr Dimitras explained, “that any similar applications for the reopening of the proceedings on the basis of Articles 29 and 30 of Law 4491/2017 by ethnic Turkish and ethnic Macedonian minority associations vindicated by the ECtHR will have no chance to become admissible by domestic courts”.
Bearing in mind these developments, Mr Dimitras called on the CM to ask the Greek government to:
provide explanations for the two domestic court decisions not to register the new Cultural Association of Turkish Women in the Prefecture of Xhanti, and to reject as inadmissible the Turkish Union of Xhanti’s application to have its dissolution annulled;
promptly introduce a legislative amendment that will change the procedure so as to introduce a simple registration of associations, along the line of (for instance) the French model;
request that the Supreme Court Prosecutor to file appeals for cassation against all domestic judgments that were found by the ECtHR to violate the ECHR, including the four judgments related to the Bekir -Ousta associations.
The memo of Mr Dimitras and his recommendations are available here. The Rule 9.2. submission of the Greek Helsinki Monitor published in September and October 2018 are there. The December 2017 CM decision on this case is here.