UCLA students assist EIN in effort to develop future implementation-support strategies

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This past year, the European Implementation Network (EIN) cooperated with the Luskin School of Public Affairs at the University of California, Los Angeles (UCLA) in an effort to help the Network explore future strategies and plans in support of the implementation of judgments of European Court of Human Rights (ECtHR).

Four UCLA students completing the degree of Masters of Public Policy (MPP) – Paola Perez, Hillary Smith, Siyuan Meng and Daniel Coltellaro – worked with EIN to develop an initial system to quickly rank and compare ECtHR judgments still pending full implementation. The main approach taken by the students was to find a system that could potentially allow EIN to prioritize its future work with the assistance of enhanced evaluation measurements.

 The four students involved in the study. From left to right: Paola Perez, Hillary Smith, Siyuan Meng and Daniel Coltellaro. 

The four students involved in the study. From left to right: Paola Perez, Hillary Smith, Siyuan Meng and Daniel Coltellaro. 

This project was completed as part of the Luskin School’s Applied Policy Project. In their final year of study, students work in teams with a real world client to provide recommendations on addressing relevant policy issues. These topics may range from criminal justice reform to environmental protection policy. Selected clients can have influence at any level of policy-making, such as government entities, non-profit organisations, private businesses and even politicians.

The project provides students with an opportunity to demonstrate skills learned in the two-year MPP programme while engaging with stakeholders to create tangible results that hopefully generate positive impact outside of simply pursuing activities for profit. Past years’ teams have worked on various foreign policy projects, but the selection of EIN as a client marks the first time a group of Luskin MPP students have helped assist in the development of international human rights policy more specifically.

The four students, all passionate about international affairs, human rights and organisational management, were from different parts of the world and were excited to work with a European non-profit like EIN. The initial system they designed for EIN was built on value criteria, used ECtHR data and checked for consistency through a bias analysis.

EIN worked with the team to identify as objectively as possible values by which a pending, non-implemented case could be judged. These included variables such as the length of time pending since the final judgment, the number of repetitive violations attached to each leading case, and others. The HUDOC-EXEC online database provided details for each case that could be used as values for the comparison. The students normalised the values, then used an analytical hierarchy process (AHP) to weigh the values in a relative pairwise analysis. AHP has been used across a variety of fields and helps decision-makers narrow down potential alternatives. In this case, it was used to narrow down pending cases through ordering by values. This ultimately provided a final score indicating EIN’s predicted interest in working on a case and in focusing on cases from prospective countries.

After creating the evaluation system, the students were able to run some initial tests. This led them to identifying countries where high counts of repetitive cases indicated large-scale systematic judicial failures, violation patterns across states and continent, and areas that could drastically benefit from increased engagement.

In late May, the students presented their project in Los Angeles to their cohort, Luskin professors, researchers and policy-makers. Following their graduation, all of the students will be continuing with their policy careers in the US. Perez is completing her medical residence in Los Angeles; Smith will be working on world heritage preservation in Boston; Meng has accepted a role at a major Chinese-California investment firm; and Coltellaro is preparing to take the US Department of State’s Foreign Service Officer Test in fall 2018.

Call for applications - EIN training seminar (now closed)

The European Implementation Network (EIN) is calling for applications by civil society organisations (CSOs) to participate in a training seminar on advocating for full and effective implementation of judgments of the European Court of Human Rights (ECtHR).

CSOs are accorded a critical role in the Council of Europe’s (CoE) process that underpins the supervision by the Committee of Ministers (CM) of the implementation of these judgments (known as the CM judgment execution process). This is made possible under Rule 9.2. of the Rules of the CM. However, there is little readily accessible information on how this process works and how CSOs can engage with it to best effect, with the result that this powerful mechanism for implementing human rights is very underutilised. 

The aims of the seminar are to equip CSOs to use the CM judgment execution process to support full and effective implementation of ECtHR judgments; and to share best practice on advocating for implementation at the national level.

For information about EIN, see http://www.einnetwork.org/

Date and place of seminar:

Date: 21-22 June 2018
Place: Strasbourg, European Youth Centre
Arrival: 20 June evening
Departure: 22 June afternoon at the earliest

 Strasbourg. Photo: EIN

Strasbourg. Photo: EIN

Seminar content:
The seminar will cover the following issues:

  • The CM execution process and the role of NGOs.
  • How to use Rule 9.2 submissions to push for effective implementation at national level: case studies.
  • Rule 9.2 submissions: group exercises on developing general measures and/or responses to non-implementation. The session is aimed at helping participants who have not engaged with the CM judgment execution process to do so – gaining advice from other participants.
  • Advocacy: EIN and Strasbourg-based advocacy, advocating for improved implementation structures at the national level.

Training methodology:
The seminar will combine:

  • presentations by experts on how to engage effectively with the CM judgment execution process;
  • sharing of learning by participants who have already engaged with implementation, whether through the CM judgment execution process, or at the domestic level;
  • group exercises to help participants starting work on a new case to develop the content and recommendations they should include in their written submissions to the CM (i.e., Rule 9.2 submissions).  

Target audience:
Staff of civil society organisations working on, or planning to work on, implementation of ECtHR judgments; independent lawyers supporting civil society organisations in these activities.

Criteria for selection of participants:
Participants will be selected on the basis of following criteria:

  • The impact resulting from full and effective implementation of any cases their organisation is supporting.
  • Any relevant experience the participant is able to share. The training methodology requires a number of participants with particular attributes – some with experience in different aspects of implementation, others with cases which will be particularly suitable for group exercises.

Participants will be limited to one per CSO and are required to have a good working knowledge of English. They must be present for the full duration of the seminar.

Please note that EIN will be conducting further training seminars on an ongoing basis. Applicants not selected will be able to apply for a later seminar. CSOs that are supporting cases currently before the ECtHR should also consider applying for future EIN training seminars as and when their cases are settled.

Travel and accommodation expenses:
EIN will cover the costs of participants’ travel, accommodation, food and visas. Guidelines on the funding procedure will be provided to selected participants.

Application process:
Please complete the application form and return to Agnes Ciccarone (aciccarone@einnetwork.org) by 26 April 2018 (now closed) . Please also arrange for your organisation to send a letter supporting your application, confirming that you have a good working knowledge of English and can be present for the full duration of the seminar.

The results of the application review will be made know by mid-May.

 The first EIN training seminar, Warsaw, 2-3 February 2018. Photo: EIN

The first EIN training seminar, Warsaw, 2-3 February 2018. Photo: EIN

Statement following the Danish Chairmanship’s High-Level Expert Conference

EIN and 5 other NGOs have adopted a joint statement on the High-Level Expert Conference ‘2019 and Beyond: Taking Stock and Moving Forward from the Interlaken Process’, held in Kokkedal, Denmark from 22-24 November 2017. This is the first of the events to be held within the framework of the Danish Chairmanship of the Council of Europe. The undersigned organizations commended the Danish Chairmanship for its stated commitment to involving civil society throughout the process leading up to the adoption of a political Declaration on the European Convention on Human Rights’ system in April 2018 and urged it to focus on meeting existing legal and political commitments on national implementation, including those in the Brussels Declaration. A full text of the letter with the NGO recommendations can be found here.

The undersigned organizations:

Open Society Justice Initiative 

Amnesty International 

European Human Rights Advocacy Centre 

European Implementation Network 

International Commission of Jurists 

World Organisation Against Torture 

Greek, Russian and Ukrainian cases presented at latest EIN briefing on implementation

 EIN briefing on 24 November 2017

EIN briefing on 24 November 2017

On 24 November 2017, the European Implementation Network convened a quarterly civil society briefing on cases of the European Court of Human Rights (ECtHR) scheduled for review at the 1302nd Human Rights Meeting (DH) of the Committee of Ministers’ (CM) Deputies on 5-7 December 2017.

The meeting was held at the Palais de l’Europe and attended by representatives of over twenty delegations, the Office of the Commissioner for Human Rights and the Committee of Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe.

This was the fourth briefing undertaken in 2017, following previous briefings on different cases held in February, May and September respectively.

The following cases were discussed at the briefing: Bekir-Ousta and others group v Greece, OAO Neftyanaya Kompaniya Yukos v Russian Federation, Kaverzin, Afanasyev groups, Karabet and Others, and Belousov v Ukraine, and Nevmerzhitsky, Yakovenko, Logvinenko, Isayev and Melnik groups v Ukraine.

A summary of points in the form of 3-5 recommendations made by all presenters on their respective cases can be found here and further information on the discussions at the briefing is provided below.

Bekir-Ousta and others group v Greece (Appl. No. 35151/05)

This group of cases concern the refusal by domestic courts to register associations on the grounds that their aim was to promote the idea that an ethnic Turkish minority existed in Greece. In 2008 the ECtHR found a violation of Article 11 of the Convention; however, none of the applicant organisations have been registered or re-registered to date. A similar judgment was made in 2015 in the case of a Macedonian minority organisation in Greece House of Macedonian Civilization and others v Greece.

Panayote Dimitras, Spokesperson of the Greek Helsinki Monitor (GHM), provided an overview of the recent developments related to the recognition of Turkish and Macedonian minorities in Greece. He drew the CM’s attention to the fact that Greek courts continue to refuse registration of the associations. As stated by the Greek courts in 2017 in the cases of the Cultural Association of Turkish Women in the Prefecture of Xanthi and the House of Macedonian Civilization, there is no “structured Turkish minority” and no Macedonian nation, no Macedonian culture, no Macedonian language, and no Macedonian minority”. Mr. Dimitras also gave his assessment of the recent legislative amendments allowing the reopening of the cases adjudicated by the ECtHR and adopted by Parliament on 13 October 2017.

The GHM memo can be found here. The four submissions of the GHM to the Department for Execution of Judgments of the European Court of Human Rights pursuant to Rule 9.2 of the CM’s Rules for the Supervision of the Execution of Judgments can be found here, here, here and here.

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

The case concerns violations concerning tax and enforcement proceedings brought against the applicant oil company, leading to its liquidation in 2007. In its judgment of 2012, the ECtHR ruled that it led to violations of a right to fair trial (Article 6) and a right to property (Article 1 of Protocol 1) and awarded the applicant a total of EUR 1,866,104,634 as pecuniary damages to be paid to Yukos shareholders.

The judgment requires the Russian Federation to prepare a distribution plan for paying the just satisfaction, but it has not done so. On 19 January 2017 the Russian Constitutional Court held that the judgment was incompatible with the Russian Constitution.

At the briefing, Piers Gardner, Barrister at Monckton Chambers and legal representative of Yukos, reiterated the immediate, mandatory and unconditional obligation of the Russian Federation to pay just satisfaction. He urged the Committee to actively engage in developing a plan for the distribution of the just satisfaction, as a cooperative undertaking between the Russian Federation and the CM, as indicated in the Court’s judgment. The briefing stressed how the various facets associated with the preparation of a distribution plan were essentially of a technical and practical nature.

Mr. Gardner’s memo as shared with the briefing participants can be found here.

Kaverzin, Afanasyev groups, Karabet and Others, and Belousov v Ukraine (Appl. Nos. 23893/03, 38722/02, 38906/07 and 4494/07)

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This group of cases relates to torture and/or ill-treatment by police, the lack of effective investigations into such complaints and the absence of an effective remedy in this respect, in violation of Article 3 of the Convention. In some of the cases, the Court also found violations of Articles 5, 6, 13 and Article 1 of Protocol 1.

Vitalia Lebid, Attorney at the Ukrainian Helsinki Human Rights Union, provided the CM with a comprehensive overview of the existing problems related to implementation of these judgments. She alerted the CM that ill-treatment still remains a widespread problem and is often used as a disciplinary method by police in Ukraine. Highlighting the lack of any effective remedies against ill-treatment by police, Ms. Lebid noted the need to speed up the establishment of the State Bureau of Investigation. This is because current investigations being conducted by the Prosecutor’s Office remain ineffective due to the lack of independence of the office and the current response to reported allegations, which results in the lose of evidence and more generally yields inadequate investigations. Additionally, there is still no effective mechanism in place to provide compensation for ill-treatment/torture.

Ms. Lebid provided the participants with a memo identifying key problems and recommendations, which can be found here. The latest action plan of the Ukrainian authorities submitted to the CM on 31 October 2017 can be found here.

Nevmerzhitsky, Yakovenko, Logvinenko, Isayev and Melnik groups v Ukraine (Appl. No. 54825/00)

These cases concern inhuman and/or degrading treatment (Article 3) suffered by the applicants because of overcrowding and the poor conditions of prison and detention facilities; the unacceptable conditions for detainees during transfer by road and rail; and the inadequacy of medical care. In the Nevmerzhitsky case, the Court concluded that the force-feeding of the applicant amounted to torture. In some of the cases, the Court also found a lack of effective remedies (Article 13).

Vitalia Lebid, as above, provided the briefing participants with information on the current situation in pre-trial detention facilities, where overcrowding still remains a problem – as noted in the November 2016 report of the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment – and material conditions remain inadequate in most penitentiary facilities in Ukraine. She also highlighted the need to adopt several legislative amendments that would pave the way for improvements in these areas. Finally, Ms. Lebid drew the CM’s attention to the fact that there is no effective mechanism to protect the rights of prisoners, including a mechanism to obtain compensation for inadequate conditions.

Ms. Lebid’s memo disseminated during the briefing can be found here. The latest action report of the Ukrainian authorities submitted in 26 October 2017 can be found here.

 

 

Third EIN briefing in 2017 addresses important cases from Georgia, Azerbaijan and Russian Federation

On 5 September 2017, the European Implementation Network convened a quarterly civil society briefing on cases scheduled for review at the 1294th Human Rights Meeting (DH) of the Committee of Ministers from 19 to 21 September 2017. This was the third such briefing undertaken to date in 2017, following previous briefings on different cases held in February and May respectively.

 From left: prof. Philip Leach (EHRAC), Nino Jomarjidze (GYLA), Ramute Remezaite (EIN), Karinna Moskalenko and Anna Maralyan (International Protection Centre), Alexey Navalny (Anti-Corruption Foundation)

From left: prof. Philip Leach (EHRAC), Nino Jomarjidze (GYLA), Ramute Remezaite (EIN), Karinna Moskalenko and Anna Maralyan (International Protection Centre), Alexey Navalny (Anti-Corruption Foundation)

DH members were briefed at the Palais de l’Europe on the implementation of the following cases: Gharibashvili group v Georgia; Rasul Jafarov v Azerbaijan (as part of the Ilgar Mammadov group); Navalnyy and Ofitserov v Russian Federation; and Kudeshkina v Russian Federation.

Gharibashvili group v Georgia (Appl. No. 11830/03)

This group of six judgments and eleven decisions concerns the lack of effective investigations into allegations of violations of the right to life and of ill-treatment (procedural aspects of Articles 2 and 3 of the European Convention on Human Rights). In addition, the European Court of Human Rights (ECtHR) found in two cases a substantive violation of Article 3 due to the excessive use of force by the police in the course of the applicants’ arrest and/or in custody. In these cases, the ECtHR concluded that the official investigations lacked the requisite independence and impartiality due to the institutional connection between those implicated and the investigators in charge of the cases.

Nino Jomarjidze, Strategic Litigation Lawyer, Georgian Young Lawyers’ Association (GYLA), provided an overview of general measures currently taken by the Georgian authorities.  In her intervention, which can be found here, she particularly highlighted the need to enhance efforts relating to effective investigation into allegations of ill-treatment and the meaningful involvement of victims into investigations. The recent action report of the Georgian authorities of 11 August 2017 can be found here.  

Rasul Jafarov v Azerbaijan, as part of the Ilgar Mammadov group (Appl. No. 69981/14)

The case concerns an arrest and pre-trial detention of Azerbaijani human rights defender Rasul Jafarov, which the Court found unlawful and aimed to silence and punish the applicant for his human rights activities, in violation of Articles 5 and 18 of the Convention.

At the briefing, prof. Philip Leach, legal representative of Rasul Jafarov and Director of the European Human Rights Advocacy Centre (EHRAC), argued that the criminal proceedings that led to Jafarov’s conviction should be re-opened on the basis of the Court’s judgment so that a full restitution is achieved. Prof. Leach introduced an opinion of a leading criminal law expert Julian B. Knowles QC at Matrix Chambers suggesting that the findings of the Court in Jafarov’s case arguing that the whole criminal case against him was politically motivated, and accordingly that Mr Jafarov`s conviction was based on procedural errors or shortcomings `of such gravity that a serious doubt is cast on the legitimacy of his conviction`. EHRAC submission of 1 September 2014 and the opinion can be found here.

Navalnyy and Ofitserov v Russian Federation (Appl. No. 46632/13)

The case concerned a complaint of arbitrary and unfair criminal proceedings that led to a conviction for embezzlement of property belonging to a Russian state company Kirovles by a prominent opposition politician and anti-corruption activist Alexey Navalny and a businessman Petr Ofitserov. The Court found a violation of the right to a fair trial under Article 6 of the Convention, noting that the trial was conducted ‘without judicial examination’ and the judgement of the Russian courts had been prejudicial, establishing ‘a link to public activities’ of Mr Navalny.

 Members of the Committee of Ministers at the EIN civil society briefing 

Members of the Committee of Ministers at the EIN civil society briefing 

Aleksey Navalny, co-applicant and Founder of the Anti-Corruption Foundation, and Nikita Kulachenkov, Investigations, Anti-Corruption Foundation argued that the individual measures taken, i.e., the re-opening of the case that led to the conviction of Mr Navalny, was not effective as the re-trial was simply repeated with the identical violations of fair trial. The Committee was invited to establish that the re-opening of the proceedings as a result of an ECtHR judgment entails the proceedings to be wholly compliant with Convention norms, including fair trial. The briefing note can be found here. The latest action report of the Russian authorities submitted in August 2017 can be found here.

Kudeshkina v Russian Federation (Appl. No. 29492/05)

In this case, the ECtHR found that the applicant’s dismissal from the judiciary in 2004 to be in violation of Article 10 of the Convention as the penalty imposed on the applicant (i.e. early termination of office at the respective court as well as abrogation of the judge’s rank) for her comments critical of the Russian judiciary was disproportionately severe and capable of having a “chilling effect on judges who wish to participate in the public debate on the effectiveness of judicial institutions.”

Karinna Moskalenko, legal representative of the applicant and Director of International Protection Centre, called upon the Committee to urge the Russian Federation to provide an action plan in this case, which it has failed to present for over 8 years.  As the applicant judge is no longer in a position to call for restoration of her office due to severe illness and age, the Russian Federation was invited to ensure that the applicant is provided with the status of a retired judge and in that way would be entitled to a retirement pension and other privileges, which she has been deprived of since her dismissal. Ms. Moskalenko’s intervention can be found here.

A summary of points in the form of 2-3 recommendations made by all presenters on their respective cases can be found here

Principled Resistance against ECtHR Judgments – a New Paradigm?

By Anne-Katrin Speck, Research Associate, Human Rights Law Implementation Project, Middlesex University London, School of Law

 Photo credit: University of Konstanz 

Photo credit: University of Konstanz 

EIN founding member and Vice President Professor Philip Leach (Middlesex University London) participated in a Conference entitled ‘Principled Resistance against ECtHR Judgments – a New Paradigm?’, which took place at the University of Konstanz (Germany) on 1-2 June 2017. The Conference provided a forum to discuss certain states’ refusal, notably by reference to national (constitutional) law, to abide by the judgments of the European Court of Human Rights (ECtHR).

Two general presentations, country reports on Germany, Italy, Switzerland, the United Kingdom and Russia, two speeches presenting the ‘view from Strasbourg’, a concluding roundtable discussion and intense discussions raised a number of issues of interest to EIN.

Grounds for resistance

Several speakers suggested a typology of grounds invoked by domestic actors – principally national courts, but also political, academic and media actors – for justifying non- (or partial) implementation. Among the reasons identified for why criticism of the Strasbourg Court had surfaced were:

  • the claim that the ECtHR had overstepped the boundaries of justified evolutive interpretation;
  • a perceived failure on the part of the Court to respect the principle of subsidiarity;
  • alleged shortcomings in the ECtHR’s way of establishing the facts of a case;
  • reasons related to the Court’s legitimacy and authority;
  • policy makers seeing human rights as an impediment to making policies;
  • the emphasis put on the counter-majoritarian dynamics of human rights;
  • the vagueness of human rights norms, which is seen as creating a risk for judicial interpretation unduly interfering with politics;
  • the ‘foreignness’ of the Court, resulting in both a lack of ‘ownership’ of (international) human rights commitments and in viewing Strasbourg as a threat to national sovereignty; and
  • an alleged lack, in some judgments of the ECtHR, of convincing reasoning.

Most speakers explicitly challenged the validity of most of these criticisms, and there was agreement that these could not be valid justifications for non-compliance.

Has this criticism translated into 'principled' or 'reasoned resistance'?

Participants observed that instances of outright rejection of an ECtHR judgment were very rare – the infamous prisoner voting saga being perhaps the clearest example of ‘principled resistance’ (though not by all UK actors). Even the Russian Constitutional Court’s (RCC) decision declaring the OAO Neftyanaya Kompaniya Yukos judgment on just satisfaction impossible to execute was not seen as a stand-out example of ‘principled resistance’ and it was noted that, quite remarkably, the RCC had not challenged the ECtHR’s ruling on the merits (instead, it had referred to the element of Russia being a country in transition to justify non-execution of the just satisfaction judgment).

Interesting parallels can be drawn between the techniques devised by the courts and legislatures of the states analysed to depart from the Strasbourg Court’s case law. The highest courts of the UK, Italy and Russia, for instance, were all found to make a distinction, though in varying forms, between well-established ECtHR case law (which ought to be followed) and non-established case law (which merely needs to be taken into account). Challenges to the binding force of ECtHR challenges moreover appeared to stem from the sub-constitutional rank of the Convention in some Contracting States’ legal orders.

Many more examples of judicial ‘reluctance’ to follow Strasbourg jurisprudence were discussed, among them cases concerning visitation rights of life prisoners (Khoroshenko v Russia); the balancing of freedom of expression and the right to respect for private life (the Von Hannover cases against Germany); the use of hearsay evidence in criminal trials (the Al-Khawaja and Tahery cases against the UK); and political advertising on TV (the Verein gegen Tierfabriken cases against Switzerland). In all of these instances, reconciliation of conflicting domestic and international provisions or interpretations was ultimately possible, leading the experts to conclude that these instances of criticism could most accurately be construed as genuine engagement of states with the Strasbourg system. Such ‘reasoned resistance’ provided a welcome opportunity for dialogue capable of strengthening the legitimacy and authority of the Court.

How can the tension be overcome?

This dialogue was identified as a crucial means to accommodate the inherent tension between international obligations and national (constitutional) law invoked as justification for non-implementation.

Judge Nußberger pointed to a number of legal tools used in the ECtHR’s decision-making process to accommodate criticism directed at the Court, notably (i) the margin of appreciation doctrine; (ii) transparency of the decision-making process by allowing for dissenting opinions; (iii) the possibility of self-correction (in Grand Chamber judgments); (iv) third party interventions; (v) adaptation and change of jurisprudence; and (vi) the adoption, within limits,  of a deferential approach.                  

Professor Nollkaemper (University of Amsterdam) ventured that by interpreting ‘consubstantial’ norms, i.e. internationalised (domestic) norms, national courts could in effect be seen as engaging in judicial dialogue on the interpretation of substantially equivalent international norms. It was moreover suggested that one may have to respect internal processes and allow for non-performance by some domestic actors as long as the state as a whole complies with its obligations.

This last point arguably underscores the need to not regard the state as a monolithic entity, but as a collection of actors which, through their relative strengths and interactions, determine whether, and to what extent, implementation occurs. This is the premise on which the Human Rights Law Implementation Project, a three-year (2015-2018) collaborative project between four leading academic human rights Centres (Bristol, Essex, Middlesex and Pretoria) and the Open Society Justice Initiative, seeks to examine the factors which impact on human rights law implementation by nine states across Europe, Africa and the Americas, looking at (i) selected decisions deriving from individual complaints to UN treaty bodies; and (ii) selected judgements and decisions of the bodies in the three regional human rights systems.

Concluding reflections: the notion of 'principled resistance'

 Photo credit: University of Konstanz

Photo credit: University of Konstanz

During the concluding roundtable discussants inter alia reflected on the usefulness of the term ‘principled resistance’. While some argued the notion had proved capable of triggering an important debate, Professor Leach rejected the term because it risked normalising non-compliance (see also this recent blog post by Dr. Alice Donald). He ventured that one could not speak of ‘principled resistance’ and deny the politics behind such behaviour. Others agreed that the term ‘principled’ hinted at an ethical stance, although domestic actors’ intensions may be pragmatic or even opportunistic. Moreover, it was found difficult to make a distinction between ‘functional disobedience’ or ‘reasoned resistance’ and outright non-compliance.

The Conference made a valuable contribution to exploring the root causes of criticism against the ECtHR. It provided a forum for examining the reaction of the Strasbourg system, most notably the ECtHR itself, to the discernible ‘critical mood’. The discussions cumulated in a call upon both the Committee of Ministers and all States Parties to the Convention to use all the tools at their disposal to ensure effective implementation of Strasbourg Court judgments, and invited all relevant actors to stress the fundamental achievements of the Convention system (see this CoE study on the issue).

Reflections on the 2016 Annual Report of the Committee of Ministers on the Execution of ECtHR Judgments

Başak Çali, EIN President 

The Committee of Ministers published its 10th Annual Report on the Execution of the Judgments of the European Court of Human Rights (the Report) in March 2017. These annual publications are a crucial source of information for members of civil society and those researching human rights implementation in Europe. They give us, in particular, a comparative understanding of the state of implementation in two ways: 1) how the implementation record of all member States stands compared to previous years; 2) how member States’ implementation efforts stand in comparison to one and another.

These two dimensions are crucial for devising effective civil advocacy tactics that advocate for implementation of judgments. They are also a powerful way of scrutinising the effectiveness of the supervisory system for the execution of human rights judgments as a whole with the view to improvement. In contrast, the Report helps us less to understand how different fields of human rights judgment implementation compare and which thematic areas overall are subject to major delays in implementation. This gives us a lesser view of what all this means for the health of the Convention system of human rights protections as a whole. In what follows, I offer a review of the descriptive statistics to show: what this means for the state of implementation in 2016; what areas of concern exist; and how information provision can be improved in future reports.

Year 2016 in a comparative perspective

There are a number of positive signals in the Report with respect to absolute improvements in the number of ‘closed’ cases (cases that are deemed to be fully implemented by the Committee of Ministers). In particular, the number of non-implemented cases dropped just under the daunting figure of 10,000 to 9,944. It is also significant to note that the Committee of Ministers was also able to close a higher number of cases under enhanced supervision than in previous years, suggesting that placing cases under enhanced supervision could make a beneficial difference.

Beyond the improvements in the absolute number of cases closed, however, the statistics advise caution. New cases added to the docket of supervision increased from 1,285 to 1,352 in 2016. Given the significant increase in the caseload of the European Court of Human Rights in 2017 (in particular, from Turkey), the number of cases transmitted to the Committee of Ministers from the Court can only increase further this year and beyond. The number of leading cases that reveal systemic and structural problems and thus require long-term scrutiny have also not dropped in any significant manner. The Report notes a small drop to 1,493 in 2016 from 1,555 previously. The Report further notes a delay in payment of compensation in 2016, an area often hailed as one of the strongest areas of effective implementation.

An important area of concern for civil society in the years to come will be the fate of cases that are placed in standard supervision and the difference this makes to the speed of implementation and the level of scrutiny by the Committee of Ministers. In particular, given that States have been more responsive to implementing cases that are under enhanced supervision, the determination of when a case should be upgraded to this procedure and how civil society should provide input to this process will require important attention. In 2016, only 18 cases were transferred from standard to enhanced supervision out of the 5,950 standard supervision cases. A second area of concern is the Well-Established Case Law (WECL) track of cases, for which the European Court of Human Rights has started to deliver short judgments without any indication as to the kind of measures that need to be taken. From an implementation perspective, the fact that a case involves WECL does not offer any clues as to whether such cases should be subject to standard or enhanced supervision. There is therefore a risk of a lack of attention to what level of scrutiny a case requires for supervision of implementation when it falls under WECL.

Comparing the performance of States in 2016

Page 67 of the Report provides absolute data comparing States’ performance in terms of the number of cases pending for implementation both under standard and enhanced supervision over five or more years. As the Report highlights, and we at the European Implementation Network (EIN) would agree, the implementation of judgments takes time. The particulars of a case and the complexity of the measures that need to be implemented are all relevant considerations in assessing the reasonableness of the steps taken by States over time.

However, cases that are pending for five or more years are cause for special concern. In absolute terms, Russia, Turkey, Ukraine, Moldova, Bulgaria, Croatia, Greece, Italy, Hungary and Azerbaijan are the top 10 countries with standard supervision cases pending for five or more years. In enhanced supervision, the ranking is not dissimilar. Russia, Turkey, Ukraine, Moldova, Bulgaria, Italy, Azerbaijan, Romania, Greece and Serbia have the highest number of enhanced cases pending for implementation for five or more years. Future Reports need, however, to provide the number of pending cases for five or more years both in terms of the percentage of those cases and their thematic coverage. For example, looking at the statistics provided, we do not get a clear understanding of why some cases take over five years to implement or whether there are discerning patterns for this degree of delayed implementation.

What is missing in the Report? A comprehensive thematic approach to human rights judgment implementation

The Report successfully presents a picture of the state of implementation with regard to absolute improvements in numbers and over time. What the Report does not explain, however, is what the level of implementation as a whole means for the health of the Convention system, and the core human rights values it stands for. The only related information in this regard about the types of cases facing implementation challenges is on page 63 under the title of ‘main themes under enhanced supervision’. Here we see the respective percentages under the themes: actions of security forces; conditions of detention - medical care; lawfulness of detention and related issues; right to life - protection against ill-treatment: specific situations; length of judicial proceedings; execution of domestic judicial decisions; other interferences with property rights; home / private and family life; lawfulness of expulsion or extradition; and freedom of assembly and association. However, 22 per cent of cases under enhanced supervision are shown as ‘other.’

This presentation does offer us some clues as to the thematic areas where implementation challenges or indifference are most concentrated in any given year. It does not, however, offer an account of which thematic areas have proven harder to implement over time. Undoubtedly, given the range of human rights issues that are brought forward by the European Court of Human Rights cases, it is difficult to present a comprehensive thematic view of where the most significant challenges of implementation lie. Future Annual reports may be able to overcome this problem by identifying which thematic areas remain unimplemented for five or more years. What is more, a comprehensive thematic reporting can enable us to see how a multiple number of States are faring on the same human rights issue, be it lawfulness of expulsion or extradition or domestic violence.

Linking delays, challenges and push-backs in implementation with thematic areas would allow more concerted effort not only on the part of civil society, but also on the part of Committee of Ministers and the Council of Europe organs. Human rights implementation is more than absolute number of cases closed.

The role of civil society in the implementation process

The Report notes the establishment of EIN and recognises the important role of civil society in facilitating implementation and acting as a public watchdog to monitor cases of non-implementation and under-implementation. The Committee of Ministers now publicises the cases that it will review in its quarterly sessions ahead of time. This is an important window of opportunity for civil society to offer critical input. EIN will continue to monitor these cases and enable domestic NGOs to offer meaningful input through quarterly briefings. In gearing up to the final stocktaking of the “Interlaken-Izmir-Brighton-Brussels Process” in 2019, EIN will also continue to monitor the effectiveness of the supervision system and promote increased NGO input into the system.

Compared to 2015, the Report notes that NGO interventions under Rule 9 increased from 80 in 2015 to 90 in 2016. Considering the number of cases that need to be implemented hovers around 10,000, this figure can clearly be improved. EIN will thus seek to realise this objective and also focus on the content of the Rule 9 Submissions of our Network members in 2017 and beyond.

NGO briefing in Strasbourg discusses cases against Bulgaria, Russia and Ukraine

 EIN NGO briefing at the Council of Europe premises on 24 May 2017

EIN NGO briefing at the Council of Europe premises on 24 May 2017

On 24 May 2017, the European Implementation Network (EIN) convened its quarterly civil society briefing to the Committee of Ministers (CM) on cases scheduled for its review at the 1288th CM-DH meeting on 6-8 June 2017. On that occasion, the EIN briefed CM members on the implementation of cases of United Macedonian Organisation Ilinden and Others group v Bulgaria, Ananyev and Others group and Kalashnikov group v Russian Federation and Yuriy Nikolayevich Ivanov and Zhovner group v Ukraine. The briefing took place at the premises of the Council of Europe. 

United Macedonian Organisation Ilinden and Others group v Bulgaria (Appl. No. 59491/00)

The cases concern the unjustified refusals of the courts to register an association aiming at achieving "the recognition of the Macedonian minority in Bulgaria". The refusals were based on considerations of national security, protection of public order and the rights of others and on the constitutional prohibition on associations pursuing political goals, which the European Court of Human Rights found in violation of Article 11 of the European Convention on Human Rights. To date, no Macedonian group has been registered by the Bulgarian courts under the existing procedure despite numerous attempts by several organisations, including the UMO Ilinden. 

The assessment of the latest domestic developments was provided by Krassimir Kanev, Chairperson of the Bulgarian Helsinki Committee (BHC). A brief note of the BHC disseminated at the briefing can be found here. All action plans and reports of the Government of Bulgaria in these cases, including the latest addendum to the action plan of March 2017, can be found on HUDOC EXEC here (see under 'Related'). 

Ananyev and Others group and Kalashnikov group v Russian Federation (Appl. Nos. 42525/07, 47095/99)

In these cases, the Court found that poor detention conditions in Russian remand centres and lack of effective remedies to challenge it amounted to violations of Articles 3 and 13 of the Convention respectively. The Court highlighted this as a structural problem in the Russian Federation by applying a pilot judgment procedure in the case of Ananyev and Others. 

During the briefing, Natalia Taubina, Director of the Public Verdict Foundation (PVF) discussed the latest developments in the execution process of the respective cases, including the latest action plan of the authorities of April 2017, and provided recommendations. The latest PVF submission under the rule 9(2) of the Rules of the Committee of Ministers filed after the NGO briefing can be found here.

Yuriy Nikolayevich Ivanov and Zhovner group v Ukraine (Appl. Nos. 40450/04, 56848/00)

These cases relate to the structural problem of non-enforcement or delayed enforcement of domestic judicial decisions, mostly delivered against the State and against state owned or controlled entities, and to the lack of an effective remedy in this respect. The Court found Ukraine in violation of Articles 6.1, 13 and Article 1 of Protocol 1 of the Convention. According to the Hudoc Exec database, the group concerns about 420 cases. The Court's judgment in the case of Yuriy Nikolayevich Ivanov was adopted through a pilot judgment procedure highlighting the non-enforcement of domestic decision as a structural problem in Ukraine. According to the information available on the Hudoc Exec database, as of 18 January 2017, there were 11,780 Ivanov-type cases pending before the Court, of which 8,479 have been communicated to the Ukrainian Government. The latest action plan of the authorities was submitted for the CM-DH meeting on 9-11 June 2015.

Latest information on the execution of these cases and recommendations to the Ukrainian Government were presented by Maksim Shcherbatyuk from the Ukrainian Helsinki Human Rights Union (UHHRU). The UHHRU submission under the rule 9(2) of the Rules of the Committee of Ministers filed after the NGO briefing can be found here. 

 

New HUDOC-EXEC Database on Execution of Judgments of the European Court of Human Rights: The EIN Test Drive

 A screenshot of the HUDOC EXEC database front page 

A screenshot of the HUDOC EXEC database front page 

The database on the execution of judgments of the European Court of Human Rights (ECtHR) has been of long-standing concern for advocates of the implementation of judgments.  The old database required perseverance, experience and no little wisdom. Whilst most information was available, it was not always discoverable. Human rights civil society has long advocated for changes in the database and its integration into the HUDOC system. We therefore welcome the news that the Committee of Ministers has launched the HUDOC-EXEC database.

What are the improvements brought by HUDOC-EXEC and how may they be improved further?  Ramute Remezaite (EIN), Dominika Bychawska-Siniarska (EIN Secretary, Helsinki Foundation for Human Rights) and myself conducted a test drive to share with the EIN community.  Here is our verdict:

Positives

•      The new database is much more user friendly.

•      It’s a one-stop-shop that provides all relevant information about a single case in one place. This allows easy and systematic access to submissions of all relevant parties (member states, ‘Rule 9’ submissions from NGOs and NHRIs) and decisions of the Committee of Ministers. This is a very positive improvement.

•      The search engine, similar in style and mode of operation to the HUDOC database of ECtHR judgments, allows searches focusing on countries, articles of the Conventions and human rights violation themes. It has now become much easier to assess thematic shortcomings in implementation across countries as well as which issues suffer from slow implementation in a single state.

•      It is now much easier to find systematised information on closed cases. With the previous database this was very difficult, so this is a great improvement.

Needs further improvement

•      Full information seems to be missing for some of the cases we searched on.  We hope that this is due to the work in progress nature of the database. 

•      The new database uses labels of lead and repetitive cases.  But we are unable to access full information on individual repetitive cases when clicking on them. We hope it is only a matter of time before these appear on the database.

•      It is not possible to search for pilot judgments. As monitoring the effective execution of pilot judgments is of utmost importance, it should be possible to generate searches on pilot judgments with respect to all countries.

•      Thematic searches can be improved further, and it is not at all times clear what the difference is between themes/domains and violations.

•      The search engine does not include information on the payment status of just satisfaction claims. 

•      The search engine does not allow the implementation status of general and individual measures to be searched for separately.

•      In some cases, unilateral declarations appear on the database. We would welcome all unilateral declarations to be in the database (and involvement of the Committee of Ministers in their supervision). But when they appear, unilateral declarations are listed under the heading of friendly settlements. As unilateral declarations are clearly not friendly settlements this is a confusing way of organising the information.

•      We would welcome the better integration of the HUDOC and HUDOC-EXEC databases.  It would be very helpful for lawyers litigating cases to see the status of execution of similar repetitive cases in a one-stop search engine. This would also increase the awareness of the ECtHR with respect to the execution/non-execution status before further improvements that of repetitive judgments they address.

We believe that the voices of NGOs and lawyers have played a part in the revamping of the database. We look forward to further improvements that would enable us to fully track the status of judgments and thus enhance our ability to champion their implementation.

EIN would like to compile feedback from our members and partners. Let us know your feedback by contacting us at ein.strasbourg@gmail.com

Başak Çalı, EIN Chair

 

EIN welcomes cooperation with NGOs and the CoE upon its establishment in Strasbourg

By Ramute Remezaite, EIN, and Shirley Pouget, Open Society Justice Initiative

Dear EIN friends

It is our great pleasure to share the recent developments relating to the European Implementation Network (EIN) with you. Initially conceived as a project of Judgment Watch, with the support of the Open Society Justice Initiative (OSJI), the EIN has been registered as an association in Strasbourg in January 2017 to start its life as an independent organization dedicated to supporting and monitoring implementation of judgments of the European Court of Human Rights (ECtHR). EIN is currently governed by a Board, comprised of six prominent academics, litigators and NGOs: Professor Başak Çalı (Hertie School of Governance, Berlin), Professor Philip Leach (School of Law, Middlesex University, London), Nigel Warner (ILGA-Europe Advisor on Council of Europe, the Helsinki Foundation for Human Rights, the Legal Resources Centre Moldova and Judgment Watch.

Thanks to a grant awarded by the Oak Foundation, the EIN is now in a position to hire its Director, who we expect to be in place by the Summer. With its permanent presence in Strasbourg, the EIN will not only serve as a bridge between domestic NGOs but also contribute to strengthening the influence of civil society in Strasbourg.

EIN’s effective cooperation with human rights lawyers, NGOs and communities is at the very heart of its work. Dedicated to building and strengthening the ability of domestic groups to contribute to better implementation of ECtHR judgments, EIN aims to become a vibrant and diverse network of NGOs and lawyers from all 47 member states of the Council of Europe (CoE), with its Secretariat in Strasbourg. We believe that the greater the participation of EIN’s members and partners, the greater the value of the network. In the current climate of the increasing resistance to full and effective implementation of ECtHR judgments and the spreading of populist and authoritarian ideas across the continent, there is a strong need for civil society groups to come together to share knowledge and experiences in addressing the existing challenges both domestically and on the regional level.  

The EIN has been cooperating with numerous litigating NGOs and lawyers from across the CoE region to date and invites civil society organizations working towards effective implementation of ECtHR judgments to get in touch to discuss collaboration. Organizations and individuals can join the EIN by becoming members or by partnering with the EIN. EIN members have a right to participate in EIN General Assembly meetings, receive information about EIN activities and actively contribute to its development. EIN partners can participate in and benefit from various activities, such as trainings and implementation briefings (without becoming full members). You can find more information on how to join the EIN here.

We also greatly value our existing fruitful cooperation with a number of CoE bodies and their representatives, who play a crucial role in pushing member states for effective implementation of ECtHR judgments domestically. Following the well-received EIN launch event at the ECtHR on 2 December 2016, attended by over a hundred representatives of the CoE officials, civil society and academia, where the increasing importance of the collective responsibility for implementation was reiterated, we hope for even stronger cooperation with the CoE bodies in our efforts to assist and encourage member states to enhance their domestic implementation efforts. We believe that more transparency, inclusiveness and collaboration are of paramount importance in response to the deepening human rights crisis in Europe.

Job Opening: EIN Director (Strasbourg)

About us

The European Implementation Network (EIN) is a newly established non-governmental, member-based organization set up to champion the implementation of European Court of Human Rights (ECtHR) judgments. The EIN’s mission is to build and strengthen the ability of lawyers, NGOs, and applicants to access every part of the Council of Europe (CoE) that can contribute to better implementation of these judgments; to advocate for full implementation of particular cases; and to support more robust structures that facilitate implementation at the national level. EIN undertakes initiatives ranging from supportive (information sharing, access, advice and technical support, capacity-building) to proactive (advocacy, new initiatives) to advance its vision and mission. Its work is overseen by a Bureau elected by its members.

EIN is seeking to recruit a full-time Director in Strasbourg to manage its organizational development and to develop and implement a programme of activities focused on delivering its mission.

Please find a full job description here

How to Apply

Please complete the application form which can be downloaded here and send it with a covering letter, by email, both to ein.strasbourg@gmail.com and to nwarner@gn.apc.org.  The cover letter should fully address the qualification requirements listed above, giving concrete evidence of how you meet these requirements wherever possible. Please do not send separate CVs or other attachments – these will not be considered.

The closing date for applications is Thursday 23rd March at midnight GMT. The interview date is set provisionally for Friday 7 April in London. The successful applicant will be expected to start duties in May 2017 or as soon as possible thereafter.

If you have any questions concerning this application, please contact Nigel Warner at nwarner@gn.apc.org or 00 44 207 278 1496.

 

 

 

 

EIN and OSJI briefing discusses cases from Azerbaijan, Belgium and Greece, Romania, Moldova and Russia

 Photo credit: EIN

Photo credit: EIN

On 20 February 2017, the European Implementation Network (EIN) and the Open Society Justice Initiative (OSJI) convened its quarterly civil society briefing to the Committee of Ministers (CM) on cases scheduled for its review at the 1280th CM-DH meeting on 7-9 March 2017. On that occasion, EIN and OSJI briefed CM members on the implementation of cases of Rasul Jafarov v Azerbaijan, M.S.S v Greece and Belgium, Centre for Legal Resources on behalf of Valentin Campeanu v Romania, and Catan and Others v Moldova and Russia. The briefing took place at the premises of the Council of Europe, under the invitation of the Permanent Representations of Ireland and Norway. 

Rasul Jafarov v Azerbaijan (Appl. No. 69981/14)

Rasul Jafarov is an Azerbaijani human rights defender and Chairman of the Human Rights Club whose arrest and pre-trial detention in August 2014 the European Court of Human Rights (ECtHR) found unlawful and aimed 'to silence and punish the applicant for his activities in the area of human rights’ (violations of Articles 5 and 18, and 34 of the Convention). The Government of Azerbaijan has so far failed to take any individual measures to implement the judgment. It has not yet paid the compensation of €25,000 indicated by the ECtHR despite the deadline of 4 October 2016. The Supreme Court dismissed Jafarov's appeal to re-examine the criminal case that led to his conviction on the basis that the ECtHR judgment of 17 March 2016 is a `newly discovered fact` provided for in the Criminal Procedure Code of Azerbaijan.

Information on the latest developments in the case was provided by Ramute Remezaite, Legal Consultant of the European Human Rights Advocacy Centre representing Rasul Jafarov before the ECtHR. Two written submissions to the CM can be found here and here.

M.S.S v Belgium and Greece (Appl. No. 30696/09)

The M.S.S group of cases concerns the degrading treatment of the applicants (asylum seekers or irregular migrants) on account of their conditions of detention such as overcrowding, insufficient ventilation, lack of regular access to toilets or sanitary facilities, unsuitable food or inadequate allowances for food in various detention facilities. The ECtHR found such a treatment amount to a violation of Article 3 of the Convention (degrading ill-treatment). Some of the cases of the group concern the violations of the applicants’ right to an effective remedy in relation to deficiencies in the examination of the applicant’s asylum application and the conditions of the detention. 

At the briefing, Simon Cox, Migration Lawyer, Open Society Justice Initiative, Irem Arf Rayfield, Regional Researcher on Migration (Europe) - Amnesty International and Eleni Takou, Senior Advocacy Officer, Solidarity Center, Greece provided detailed information on the current state of execution of the cases and the suggested actions to be taken by the CM. 

The submission of the Amnesty International to the CM can be found here

Centre for Legal Resources on behalf of Valentin Campeanu v Romania (Appl. No. 47848/08)

The case concerns the authorities’ failure to protect the right to life of Mr. Câmpeanu, a young man of Roma origin, orphaned, HIV-positive and diagnosed with profound intellectual disability. The ECtHR found a substantial violation of Article 2 of the Convention in relation to severe shortcomings in the social and medical care afforded to the applicant before his death at the neuropsychiatric hospital. Under Article 46 of the Convention, the ECtHR indicated that Romania take the necessary general measures to ensure that persons with mental health problems in a situation comparable to that of Mr Câmpeanu are afforded independent representation, enabling them to have Convention complaints relating to their health and treatment examined before a court or other independent body.

The current state of execution and the latest domestic developments were presented by Georgiana Iorgulescu, Executive Director, and Georgiana Pascu, Programme Manager of the Centre for Legal Resources (CLR), Romania.

The CLR submission of 20 February 2017 to the CM in response to the revised action plan of the Romanian Government of 2 January 2017 can be found here.

Catan and Others v Moldova and Russia (Appl. Nos. 43370/04, 8252/05 and 18454/06)

The case concerns the violation of the right to education of 170 children or their parents from Latin-script schools located in the Transdniestrian region of the Republic of Moldova. Pursuant to the “Moldavian Republic of Transdniestria” “law” on languages, they had suffered from the forced closure of these schools between August 2002 and July 2004, as well as from measures of harassment, which the ECtHR found in violation of Article 2 of Protocol No. 1 by the Russian Federation. 

The review of execution of judgments process to date and the latest developments were presented by Alexandru Postica, Human Rights Programme Director, PROMO-LEX, Moldova. A brief summary of the presentation can be found here.

More information on the execution process of the cases supervised by the CM can be found on the HUDOC-EXEC database of the Department for Execution of Judgments of the European Court of Human Rights. 

EIN and OSJI quarterly briefing: cases against Georgia, Russia and the United Kingdom

 EIN and OSJI briefing on 28 November 2016

EIN and OSJI briefing on 28 November 2016

On 29 November 2016, the European Implementation Network (EIN) and the Open Society Justice Initiative (OSJI) convened its quarterly civil society briefing on cases scheduled for review at the 1273 CM-DH meeting. On that occasion, EIN and OSJI briefed members of the Committee of Ministers on Identoba and Others v Georgia, Alekseyev v Russia, Israilova and Others v Russia, and McKerr group v the United Kingdom.

Identoba and Others v Georgia (Appl. No. 73235/12)

The case concerns a peaceful demonstration in Tbilisi in May 2012 to mark the International Day against Homophobia and Transphobia, which was violently disrupted by counter-demonstrators. The applicants, an NGO, Identoba, and 13 individuals, complained that the Georgian authorities had failed to protect them from violent attacks and to effectively investigate the incident, including the discriminatory motive behind the attacks. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) taken in conjunction with Article 14 (prohibition of discrimination), and of Article 11 (right to freedom of peaceful assembly), also taken in conjunction with Article 14 (prohibition of discrimination).

The current state of execution and suggested actions to be taken by Georgia were presented by Nigel Warner of ILGA-Europe.

A joint NGO submission by Identoba, Women's Initiatives Support Group (WISG), Amnesty International, and ILGA-Europe as non-governmental organisations under rule 9(2) of the Rules of the Committee of Ministers can be found here

The Committee's decision on the case adopted at its 1273 CM-DH meeting can be found here

Alekseyev v Russia (Appl. Nos. 4916/07, 25924/08, 14599/09)

 Nigel Warner of ILGA-Europe presents on Alekseyev v Russia case

Nigel Warner of ILGA-Europe presents on Alekseyev v Russia case

The Alekseyev v. Russia cases address repeated bans on demonstrations promoting tolerance and respect for the human rights of LGBTI persons, and the absence of an effective remedy to challenge those bans. The European Court of Human Rights 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 execution of judgments process in this case has now been proceeding for 5 ½ years. 

The review of execution of judgments process to date and latest developments were presented by Nigel Warner of ILGA-Europe. 

A joint NGO submission by Coming Out and ILGA-Europe as non-governmental organisations under rule 9(2) of the Rules of the Committee of Ministers can be found here

The Committee's decision on the case adopted at its 1273 CM-DH meeting can be found here.

 Israilova and Others v Russia (Appl. No. 4571/04)

The case concerns enforced disappearance of the applicant's son and is being reviewed by the Committee of Ministers as a part of the Khashiyev and Akayeva group. The Court found violations of Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment), Article 5 (right to liberty and security), and Article 13 (effective remedy) in respect to a violation of Article 2 of the Convention. As reported by the applicant's legal representatives, in May 2015, the applicant has been informed that her son's remains had been found. According to an expert forensic examination conducted in October 2015, the authorities have determined with close to 100% accuracy that the remains found belong to the applicant’s son. However, the remains have still not been handed over to the applicant for burial. 

Information on the latest developments in the case and suggested questions to the Russian Government were presented by Diana Kostina of the Russian Justice Initiative.  

Submission of the Russian Justice Initiative on the developments related to the remains of the applicant's son under rule 9(2) of the Rules of the Committee of Ministers can be found here

The Committee's decision on the Khashiyev and Akayeva group adopted at its 1273 CM-DH meeting can be found here.

McKerr group v the United Kingdom (Appl. No. 28883/95)

In these cases the Court found the United Kingdom in violation of its procedural obligations under Article 2 (right to life) of the Convention.

Six of these judgments, delivered in 2001-2003, concern the deaths of the applicants’ next-of-kin in Northern Ireland in the 1980s and 1990s either during security forces operations or in circumstances giving rise to suspicion of collusion with those forces. A ‘package of measures’ was put forward to remedy these violations however implementation of these judgments has been subject to excessive delay.

Further judgments have been delivered since 2013 again finding Article 2 investigative violations due to excessive delays in inquest proceedings into deaths concerning the security forces in Northern Ireland. 

Latest information on the execution of this group of cases and recommendations were presented by Gemma McKeown of the Committee on the Administration of Justice (CAJ). 

CAJ submission under rule 9(2) of the Rules of the Committee of Ministers can be found here

The Committee's decision on the McKerr group adopted at its 1273 CM-DH meeting can be found here

 

Secretary General of the Council of Europe endorses EIN

 Thorbjørn Jagland, Secretary General of the Council of Europe

Thorbjørn Jagland, Secretary General of the Council of Europe

I am delighted to welcome the European Implementation Network as a new force to help ensure that the judgments of the European Court of Human Rights are properly implemented.

The European Convention on Human Rights and the Strasbourg Court exist to protect peace, liberty and justice across our continent. The obligation on states to abide by the Court’s rulings is the linchpin on which the system depends.

In the majority of cases, states respect the Court’s decisions and execute its judgments. However, we are seeing a growing and dangerous trend in Europe, in which international human rights law is increasingly challenged.

The Council of Europe’s 47 member states share responsibility for ensuring that judgments are implemented. By creating a bridge between Strasbourg and civil society, I am sure that the EIN can play an extremely important role in supporting this process.

Through the EIN’s work, I hope that we will see greater public debate and scrutiny, at the national level, over the ways in which governments meet their obligations. The message from many of Europe’s citizens is that they want their governments to uphold human rights.

 Thorbjørn Jagland  Secretary General of the Council of Europe

Thorbjørn Jagland

Secretary General of the Council of Europe

 

 

EIN launch event: a strong call for collective responsibility over implementation of ECtHR judgments

Eminent Council of Europe officials, judges, civil society and academics called for stronger implementation of European Court of Human Rights judgments through a greater sense of “collective responsibility” at an event launching the European Implementation Network at the European Court of Human Rights in Strasbourg on Friday, 2 December.

The European Implementation Network (EIN) is a new non-governmental organisation established to serve as a bridge between the Council of Europe and civil society, and to advocate for the full, effective and rapid implementation of judgments.  A panel discussion, moderated by Professor Philip Leach of Middlesex University and Vice-Chair of EIN, focused on how Court judgments might be realized to produce real change on the ground for affected people. Each of the four speakers—Judge Işil Karakaş, Vice-President of the Court; Nils Muižnieks, Commissioner for Human Rights of the Council of Europe; Christos Giakoumopoulos, Director of the Human Rights Directorate of the Council of Europe; and Professor Başak Çalı, Chair of the EIN—stressed the urgent need for governments to fully and effectively implement Court judgments.

 From left: Christos Giakoumopoulos, Director of the Human Rights Directorate of the Council of Europe, Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, Professor Philip Leach, Vice-Chair of the EIN, Judge Işil Karakaş, Vice-President of the European Court of Human Rights, and Professor Başak Çal ı , Chair of the EIN  ©  Arnaud Fonquerne

From left: Christos Giakoumopoulos, Director of the Human Rights Directorate of the Council of Europe, Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, Professor Philip Leach, Vice-Chair of the EIN, Judge Işil Karakaş, Vice-President of the European Court of Human Rights, and Professor Başak Çalı, Chair of the EIN © Arnaud Fonquerne

“We’ve moved from a backlog crisis [with the Court] to an implementation crisis,” noted Commissioner Muižnieks, “and one way to address it is to find implementation champions at the national level—or ‘organize the troops’—to take focused action.”

“We don’t just have a problem with non-implementation; we also see some governments engaged in “minimalist compliance,” where they do as little as possible to implement a Court judgment,” explained Professor Çalı, who teaches both at Koç University in Istanbul and the Hertie School of Governance in Berlin.

One solution to the crucial problem of unimplemented judgments, Mr. Giakoumopoulos noted, is a stronger sense of “collective responsibility” for these judgments. The Committee of Ministers—the Council of Europe body charged with supervising the execution of Court judgments—has an important role to play. So does the Court, as Judge Karakaş explained, in crafting judgments with clear and specific remedies. Ultimately, however, compliance is a national-level project.  Governments must not only feel obliged to execute the judgments against them, but also need to stand firm when other states fail to do so.

 EIN launch event at the European Court of Human Rights  ©  Arnaud Fonquerne

EIN launch event at the European Court of Human Rights
© Arnaud Fonquerne

This is where the European Implementation Network comes in, as EIN Chair Professor Çalı explained: to help litigators and activists from Council of Europe member states understand how the Council of Europe mechanisms relating to implementation of judgments work and empower them to use them; and to provide those mechanisms with the information and arguments needed to improve the supervision process. The EIN, as a bridge between those working on the ground and those in Strasbourg, aims to help “stiffen the spines” both of the Committee of Ministers (described by Mr. Giakoumopoulos as “a very polite body”) and of national governments in the service of improved implementation.

The EIN is the first entity entirely dedicated to the implementation of European Court judgments, and one of a few NGOs based in Strasbourg dealing with compliance in this manner. The EIN works with a range of partners, from Council of Europe institutions to litigating NGOs to national government officials, to address the crisis of non-implementation of human rights cases.

 

 

Invitation to the launch of the European Implementation Network in Strasbourg, 2 December 2016

Friday 2 December 2016, 1630-1900
European Court of Human Rights, Strasbourg

Panel discussion followed by drinks reception

The European Implementation Network (EIN) is a non-governmental organisation established to champion the implementation of judgments of the European Court of Human Rights. Partnering with national NGOs from across the Council of Europe, EIN serves as a bridge between Strasbourg and civil society working across the region to advocate for the full, effective and rapid implementation of judgments.

The EIN has worked as a project since 2014 and is now about to enter a new phase as a standalone entity in Strasbourg. The launch will feature a roundtable discussion that aims to encourage an exchange of views on implementation and to reflect on how compliance can be improved and speeded up. Speakers include:

  • Prof. Başak Çali, Co-founder of the European Implementation Network and Professor of International Law, Hertie School of Governance
  • Christos Giakoumopoulos, Director, Human Rights Directorate, Council of Europe
  • Judge Işil Karakaş, Vice-President, European Court of Human Rights
  • Prof. Philip Leach, Director, European Human Rights Advocacy Centre (Chair)
  • Nils Muižnieks, Commissioner for Human Rights, Council of Europe

A drinks reception will follow the panel discussion.

RSVP essential due to the Court’s security regulations. Click here to register.

 

EIN welcomes the Commissioner Muižnieks' call for enhanced ECHR implementation efforts

This blog of Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe was originally published on the Council of Europe website on 23 August 2016.

Non-implementation of the Court’s judgments: our shared responsibility

In December last year, the Council of Europe’s Steering Committee on Human Rights (CDDH) published a report on the longer-term future of the system of the European Convention on Human Rights (“the Convention”). There were two challenges which particularly struck me: firstly, prolonged non-implementation of a number of judgments of the European Court of Human Rights and secondly, direct attacks on the Court’s authority.

It is difficult to overstate the extraordinary contribution of the Court to the protection of human rights in Europe.  This has been acknowledged in each High Level conference declaration along the Interlaken-Izmir-Brighton-Brussels reform process. The fact that so many Europeans turn to the Strasbourg Court for redress reflects the high level of trust that they place in the Convention system. Yet states must make sure that the system works.

Prolonged non-implementation of the judgments of the Court is a challenge to the Court’s authority and thus to the Convention system as a whole.

While the 2015 Annual Report of the Committee of Ministers on the execution of the Court’s judgments shows that a new record number of cases were closed in 2015, there is a continued increase of cases pending for more than five years. In 2011 these cases accounted for 20% of the total number of cases, while by the end of 2015 that figure had risen to 55%. The number of ‘leading’ cases pending, those indicating structural problems, has also risen steeply from 278 cases in 2011 to 685 cases in 2015.

The average time it takes to close a case is generally around 4 years, however in some States that figure is much higher: around 10, 8 and 7 years in cases concerning Russia, Moldova and Ukraine, respectively.

Indeed, last year, in its eighth report on the implementation of Court judgments, the Legal and Human Rights Committee of the Council of Europe’s Parliamentary Assemblyconcluded that there was a rising number of judgments concerning complex or structural problems, so-called ‘leading’ cases, that have not been implemented for more than ten years. It expressed its concern about the approximately 11,000 non-implemented judgments pending before the Committee of Ministers.

Prolonged non-implementation is problematic, even if it is true that complex problems do take time to resolve.  Reforms can legitimately take time to design and implement. Nevertheless, the rule of law requires that all judgments should be implemented promptly, fully and effectively. Prompt execution of domestic court decisions is one of the hallmarks of a democratic society. The same should apply for execution of international judgments.

As Commissioner for Human Rights, I travel to many member states and push for the execution of the Court’s judgments and the implementation of reforms aimed at addressing the root causes of repeat applications. This goes on in my bilateral meetings with government representatives and publicly in my reports. Sometimes my discussions with the authorities go even further. In 2013 I was invited to engage with a UK Parliamentary Committee by submitting my views on the UK’s non-implementation of the Hirst (No. 2) and Greens and M.T. judgments concerning voting rights for prisoners. In that written submission I underlined that continued non-compliance would send a negative signal to other member states.

To execute or not to execute: that is not the question

Let us recall the basics.

State parties to the Convention have accepted the creation of a mechanism which has the competence to examine and decide on the way they ensure Convention rights and freedoms within their jurisdiction. That mechanism is the Strasbourg Court. States have also accepted the Court’s ability not merely to apply, but to interpret the Convention.

According to Article 46 of the Convention, contracting parties must abide by the final judgment of the Court in any case to which they are parties. Article 46 (1) is an unequivocal legal obligation.

Article 1 of the Convention does not exclude any part of a member state’s jurisdiction, including the Constitution, from scrutiny under the Convention.  Possible conflicts between national law and the Court’s case-law cannot be settled through refusing to execute a judgment of the Court. That would be unacceptable.

Moreover, a State is bound under Article 26 of the Vienna Convention on the Law on Treaties to respect ratified international agreements and pursuant to Article 27 it cannot invoke the provisions of its internal law as justification for its failure to perform a treaty, including the European Convention on Human Rights.

The authority and the efficiency of the human rights protection system based on the Convention is undermined where national authorities chose not to fully comply with judgments of the Court. Member states can fully see what their peers are doing during the Committee of Ministers’ meetings. 

Pitting sovereignty against the Convention system

In recent years direct challenges to the authority of the Court within a handful of member states have also become more explicit and vocal. They have gone beyond prolonged non-implementation of a few of the Court’s judgments.

They are of particular concern because the integrity and legitimacy of the Convention system is at stake. I have been able to catalogue a number of these worrying national examples during my country visits and through my on-going discussions with civil society. 

Last year the first political party in Switzerland, the UDC, launched a popular initiative entitled “Swiss law instead of foreign judges”. The initiative does not rule out the possibility of Switzerland leaving the Convention in the event of repeated, fundamental conflicts with Swiss Constitutional law. This is worrying even though we are still at an early stage of the procedure, with a popular vote not foreseen until 2017 or 2018.

Six years ago in the United Kingdom, the Conservative Party’s manifesto set out its proposal to repeal a domestic piece of legislation which gives effect to the Convention into national law (the Human Rights Act) and replace it with a UK Bill of Rights. Consultation on those proposals is still awaited.

The authority of Strasbourg judgments has also been questioned in Russia. In December last year the Federal law on the Federal Constitutional Court was amended to allow the Russian Constitutional Court to declare some judgments of the Strasbourg Court (and other human rights bodies) unconstitutional and therefore impossible to implement. The Council of Europe’s Commission for Democracy through Law (the Venice Commission) issued an interim opinion in March this year on the amendments(1). The Opinion underlined that a State does not have the choice to execute or not to execute. Only the modality of execution may be at a State’s discretion.

On 19 April this year, the Russian Constitutional Court applied the amended law for the first time in the case of Anchugov and Gladkov v. Russia (2013). It found that the Constitutional provisions enshrining the ban on prisoners’ voting could not be amended and therefore the general measures flowing from the judgment could not be directly implemented. While the Constitutional Court suggested legislative amendments which would give some effect to the Strasbourg judgment, the principle of review of Strasbourg judgments by a Constitutional Court is problematic and cannot affect their validity in international law.

In Azerbaijan, a Draft Constitutional Law, along the lines of the Russian Constitutional Court law, has been introduced by one of the members of parliament during the 2016 spring session of the National Assembly.

The way forward

If we need reminding about what the Convention has done for us, a recent Parliamentary Assembly report provides examples from all 47 member states which illustrate how the protection of human rights and fundamental freedoms has been strengthened at the domestic level thanks to the Convention and the Strasbourg Court’s case law. A member state’s commitment to the implementation process sends a strong signal of continued commitment to upholding and advancing human rights globally. This is what I urge to all member states of the Council of Europe.

Some judgments may be difficult to implement because of technical reasons, or because they touch extremely sensitive and complex issues of national concern, or because they are unpopular with the majority population. Nevertheless, the Convention system crumbles when one member state, and then the next, and then the next, cherry pick which judgments to implement. Non-implementation is also our shared responsibility and we must not turn a blind eye to it any longer.

The way forward is through three major lines of action: improving domestic implementation of the Convention thus reinforcing subsidiarity; improving the efficiency of the procedures before the Court and improving the Committee of Ministers supervision of the implementation process. A future where each Council of Europe member state reorganises its internal constitutional hierarchy so that the Convention can be trumped is a danger to the rule of law in that state and in all other states.

Nils Muižnieks

EIN and OSJI quarterly briefing: cases against Azerbaijan, Bosnia & Herzegovina, Macedonia and Poland

 Mr Jakob Finci (middle) and Rasul Jafarov (right) at the NGO briefing 

Mr Jakob Finci (middle) and Rasul Jafarov (right) at the NGO briefing 

On 12 September 2016, the European Implementation Network (EIN) and the Open Society Justice Initiative (OSJI) convened its quarterly civil society briefing on cases scheduled for review at the 1265 CM-DH meeting. On that occasion, EIN and OSJI briefed members of the Committee of Ministers on Sejdić and Finci v Bosnia and Herzegovina; CIA rendition cases (Al Nashiri v Poland and El Masri v. The Former Yugoslav Republic of Macedonia, as well as Ilgar Mammadov v. Azerbaijan, and Namat Aliyev group v. Azerbaijan.

Sejdić and Finci v Bosnia and Herzegovina (App. Nos. 27996/06 and 34836/06)

The case concerns constitutionally entrenched racial discrimination in relation to the right to vote and the right to stand for elections. In 2009, the Grand Chamber of the European Court of Human Rights (ECtHR) found Bosnia and Herzegovina to be in breach of Protocol 12, which provides for the right to equal treatment and non-discrimination, in failing to allow its citizens who are not ‘Constituent Peoples’ to stand for election to the Presidency. The ECtHR also found a violation of Article 14 of the ECHR, which provides for freedom from discrimination, taken in conjunction with Article 3 of Protocol 1, which protects free elections to the legislature, as a result of the inability of ‘Others’ to stand for election to the House of Peoples.

The current state of execution and suggested actions to be taken by Bosnia and Herzegovina was presented by Mr Jakob Finci, former Ambassador and applicant.

Namat Aliyev group (App. 18705/06) v. Azerbaijan

These cases concern parliamentary elections that occurred in Azerbaijan in November 2005; applicants were members of the opposition parties or independent candidates. The ECtHR found violations of Article 3, Protocol No. 1 due to actions by the electoral commissions and domestic courts deemed arbitrary and without motivation, including rejecting complaints alleging breaches of electoral law and cancelling candidate registration. The Constitutional Court of the Republic of Azerbaijan annulled the elections in the electoral constituencies of certain applicants without sufficient reason, and without affording procedural safeguards to the parties (including the inability to participate in a review hearing).

Ilgar Mammadov v. Azerbaijan (App.15172/13)

The case concerns the arrest and detention of the applicant, an opposition politician, in violation of Articles 5, 6 and 18 of the Convention. The ECtHR concluded inter alia that the applicant was arrested for reasons other than those permitted by Article 5, namely to silence or punish the applicant for having criticized the Azerbaijani government.

Both cases were presented by human rights defender and chair of the Human Rights Club, Rasul Jafarov, whose arrest and pre-trial detention the ECtHR has also found politically motivated in his case Rasul Jafarov v Azerbaijan (App. 69981/14).

 OSJI Litigation Director  RUPERT SKILBECK presents on the CIA rendition cases

OSJI Litigation Director RUPERT SKILBECK presents on the CIA rendition cases

Al Nashiri v Poland (App. No 28761/11)

In this case, the ECtHR concluded that Poland violated Articles 2, 3, 5, 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 6 by participating in the extraordinary rendition and secret detention of Mr. Al Nashiri in a secret CIA prison on Polish soil, and by failing to effectively investigate this participation. The ECtHR found it established beyond reasonable doubt that the applicant was secretly detained in a secret CIA prison on Polish territory from 5 December 2002 until 6 June 2003. In addition, it found that by refusing to comply with its evidentiary requests, Poland failed to discharge its obligations under Article 38 of the Convention. Since 2006, the applicant has been held at Guantanamo Bay, facing the prospect of an unfair trial by a military commission and continuing risk of the death penalty.

El Masri v. The Former Yugoslav Republic of Macedonia (App no 39630/09)

In El-Masri v. The Former Yugoslav Republic of Macedonia, the Grand Chamber of the European Court found Macedonia in violation of the Convention for the extraordinary rendition of Khaled El-Masri, and the subsequent failure to conduct an effective investigation into his torture and ill-treatment.

The CIA rendition cases were presented by Rupert Skilbeck, Litigation Director at Open Society Justice Initiative.

Summary of the main points and recommendations on the above mentioned cases presented at the briefing can be found here

EIN holds first consultations with civil society

EIN consultations with NGOs from across the Council of Europe countries in Istanbul, Turkey.

On 11-12 April 2016, the European Implementation Network (EIN), with the support of the Consulate General of Sweden in Istanbul, convened its first meeting with civil society from across the Council of Europe (CoE) countries in Istanbul, Turkey. Over two days, 30 human rights lawyers from 23 litigating NGOs in 14 CoE countries shared their experiences and good practices in pressing for the implementation of European Court of Human Rights’ judgments.  NGOs explored strategies to maximize their efforts and enhance their advocacy on implementation at the national level and with Strasbourg-based institutions.

 “The meeting provided a good opportunity for us to present the work of the European Implementation Network to litigating NGOs from across the CoE and receive their input on the draft EIN strategy, which is primarily aimed at supporting and enhancing their implementation efforts", said Dr Başak Çalı, Director of Judgment Watch. 

The participants collectively reviewed the proposed EIN’s program of work and revised the EIN strategy for 2016-2020, which was subsequently endorsed by individual partners.

The EIN meeting report summarizing the key discussions and findings on implementation can be found here.