The European Implementation Network (EIN) convened a quarterly civil society briefing to Permanent Representations to the Council of Europe on 28 May 2018. This briefing was first established by the Open Society Justice Initiative in 2014 and subsequently co-convened with EIN from 2015 to 2017. The event is now fully conducted by the Network as of the beginning of 2018.
The latest briefing, which was the second in 2018, focused on analyses by civil society representatives to support the implementation of cases of the European Court of Human Rights (ECtHR) scheduled for review from 5 to 7 June at the 1318th Human Rights Meeting of the Committee of Ministers’ Deputies. The Committee is responsible for supervising the judgment execution process.
The event at the Palais de l’Europe was attended by over 30 participants, including representatives of 22 Permanent Representations to the Council of Europe and a representative of the Council of Europe’s Commissioner for Human Rights.
The following ECtHR judgments were presented and discussed: Balsan v Romania, Laszlo Magyar Group v Hungary, Identoba and others group v Georgia, and Yuriy Nikolayevich Ivanov + Zhovner group, Burmych and others v Ukraine. The first two of these four cases were under first examination by the Committee of Ministers’ Deputies.
A summary of points in the form of 3-5 recommendations made by each of the presenters in support of the implementation of the respective cases can be found here.
Balsan v Romania (Application No 49645/09)
This case concerns the failure by the national authorities to adequately protect the applicant from domestic violence inflicted by her spouse in 2007 and 2008. The Court ruled that:
"… the violence suffered by the applicant can be regarded as gender-based violence, which is a form of discrimination against women. Despite the adoption of the Government of a law and a national strategy on preventing and combating violence, the overall unresponsiveness of the judicial system and the impunity enjoyed by the aggressors, indicated that there was an insufficient commitment to take appropriate action to address domestic violence."
The ECtHR found a violation of Article 3 and of Article 14 in conjunction with Article 3.
Ms Ecaterina-Georgiana Gheorghe, Legal Officer, Association for the Defence of Human Rights in Romania – the Helsinki Committee, underlined in her presentation how the ECtHR also noted its concern with the fact that the national authorities had considered the domestic violence to have been provoked and that the violence was not severe enough to fall within the scope of the criminal law. In terms of recommendations to support implementation of the judgment, Ms Gheorghe noted the need for the Romanian police to adopt new working procedures concerning restraining orders to immediately and effectively protect victims and restrain attackers. Furthermore, there are too few shelters nationwide and in fact in eight counties in Romania there are no shelters at all.
The memo by Ms Gheorghe identifying the main domestic violence problems and recommendations on the case can be found here. The latest action plan of the Romanian authorities submitted on 16 April 2018 can be found here.
Laszlo Magyar Group v Hungary (Application No 73593/10)
This group concerns the execution of the judgment reached by the ECtHR in the case of Laszlo Magyar v Hungary, establishing that life imprisonment without the possibility of parole (whole/actual life sentence) imposed upon the applicant violated Article 3 of the Convention; and the judgment in the T.P. and A.T. v Hungary case, establishing that, irrespective of the new “mandatory pardon procedure” introduced for whole lifers, Hungarian rules on life imprisonment without parole still violate Article 3. In the case of Laszlo Magyar, the Court also found violation of the right to a fair trial (Article 6) because of the excessive length of the criminal proceedings against the applicant, which lasted from 2002 to 2010.
In her briefing, Ms Nora Novoszadek, Senior Legal Officer, Hungarian Helsinki Committee, stated that the national authorities had not yet taken any general measures to execute the judgments in this group of cases. She also noted that the pending constitutional complaint procedures initiated by Laszlo Magyar and an applicant in a pending case before the ECtHR, which the national authorities stated need to be awaited before any general measures can be undertaken, had no relevance in terms of the execution of the judgments in the Laszlo Magyar v Hungary case.
Ms Novoszadek put forth several recommendations to support implementation of this group of cases, starting first and foremost with the need to abolish the institution of life imprisonment without the possibility of parole. It would be necessary to ensure that a review complying with the ECtHR standards takes place no later than 25 years after the imposition of every life sentence, with further periodic reviews after that.
Identoba and Others Group v Georgia (Application No 73235/12)
The case of Identoba and others v Georgia concerns the failure of the national authorities to provide adequate protection against inhuman and degrading treatment inflicted by private individuals on LGBT activists during a peaceful demonstration in May 2012 (violations of Article 3 in conjunction with Article 14). There was also a failure to conduct any effective investigation into these events (violations of Article 3 in conjunction with Article 14). In addition, the Court held that the authorities breached their obligation to ensure that the march could take place peacefully by failing to contain violent counter-demonstrators (violation of Article 11 in conjunction with Article 14).
Ms Lika Jalagania, Project Coordinator, Human Rights Education and Monitoring Centre, noted in her presentation the fact that anti-discrimination legislation was adopted in 2014. Additionally, the Government put forth a Human Rights Strategy for 2014-2020 along with a series of specific annual Action Plans. However, implementation is lacking due to shortcomings in the law. The recommendations of the Public Defender’s Office (which acts as an enforcement mechanism under the law) are not legally binding. Furthermore, private entities are not obliged to provide any information in the case examination process. As of today, Parliament has not adopted relevant changes in the law to the extent that the effective institutional and procedural guarantees of the equality mechanisms are still lacking.
Going forward, Ms Jalagania noted the need for the national authorities to implement the proposals made by the Public Defender of Georgia and the European Commission against Racism and Intolerance to strengthen the enforcement mechanisms of the Law on the Elimination of All Forms of Discrimination. An enhanced commitment by the national authorities was also required to improve the monitoring and prosecution of hate crimes and incidents and discrimination cases, including by setting up a unified data collection system and an effective investigations model.
The memo of Ms Jalagania can be found here. You can also find the communication from the Public Defender of Georgia from April 2018 here. The Rule 9.2 communication of May 2018 from the Human Rights Education and Monitoring Centre, the Women’s Initiatives Support Group and ILGA-Europe is here.
Yuriy Nikolayevich Ivanov + Zhovner Group, Burmych and Others v Ukraine (Applications No 40450/04, 56848/00, 46852/13)
These cases relate to the chronic problem of non-enforcement or delayed enforcement of domestic judicial decisions in Ukraine, especially against the State and State-owned or -controlled entities, together with the lack of an effective remedy in respect to these cases (violations of Article 6, 13 and Article 1 of Protocol 1).
Most notable, in October 2017, the Grand Chamber delivered its judgement in the Burmych case, effectively transmitting over 12,000 pending and future similar cases to the Committee of Ministers to be dealt with in the context of the general measures that would be required going forward to execute the Ivanov pilot judgment. This includes providing redress for all the domestic judicial decisions that remain non-enforced or delayed as well as payment of the debt stemming from the judgment.
Mr Maksym Shscherbatyuk, Programme Director, Ukrainian Helsinki Human Rights Union, focused his presentation on the root causes of the problem of non-enforcement or delayed enforcement of domestic judicial decisions in Ukraine. These include the excessive use of moratoriums, the scale and scope of the State’s social benefit responsibilities and obligations, the public’s lack of trust in the judiciary, and others. He also noted that the national authorities have allocated 1 billion UAH to cover the debt even though it appears that at least 31 billion UAH may be needed. Mr Shscherbatyuk recommended the abolishment or limitation of moratoriums that make it impossible to enforce court decisions against the State and State-owned and -controlled companies in various sectors; and the establishment of a special mechanism to help align the amount of the State’s obligatory social obligations with the State budget.
Mr Shscherbatyuk’s memo is here; the 2017 Rule 9.2 submission by the Ukrainian Helsinki Human Rights Union and answer from the authorities can be found here; and the 2018 Action Plan from the Ukrainian authorities is here.