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.
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.
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.