Denying the right to hope – whole life sentence in Hungary

By Nóra Novoszádek, Senior Legal Officer, Hungarian Helsinki Committee

“I do not really trust other people. I do not want them to lie to my face and say how sorry they are for me that I am serving a whole life sentence, and then talk behind my back about why I do not rather hang myself” – says “Samu”, a detainee serving life imprisonment without the possibility of parole in Hungary, about his fellow inmates when explaining why he does not want to be transferred to an “ordinary” unit from the one designed specifically for whole lifers. There are currently 55 inmates in Hungary in a situation similar to him, without any real prospect of ever being released.

Whole life sentence in Hungary

 Photo:  Hungarian Helsinki Committee

Photo: Hungarian Helsinki Committee

The story of whole life sentence, dubbed as “lying eight” in prison slang after the symbol of infinity, started in 1993 in Hungary, when the Parliament introduced into the Criminal Code the option of excluding the possibility of parole when imposing a life sentence. In 1998 the scope of this possibility was extended considerably. According to the rules currently in force, when imposing a life sentence, the judge may decide to exclude the possibility of parole in the case of certain criminal offences. Moreover, under certain circumstances, e.g., when the defendant is categorised as a so-called “violent multiple recidivist” (which can happen quite easily), the law obliges the judge to do so.

The issue is not free of politics of course: for example, before the adoption of the new constitution of Hungary (the Fundamental Law) in 2011, one of the 12 questions contained in the so-called “National Consultation” questionnaire sent by the Government to the public was whether whole life sentence should be included in the Criminal Code. The Hungarian Helsinki Committee (HHC) and its partners considered this and some other questions in the consultation to constitute a populist wish-list. Subsequently, the possibility of imposing a whole life sentence finally made its way into the Fundamental Law.

In turn, Hungary’s Constitutional Court has never been eager to decide on the issue. HHC submitted an actio popularis request to the Constitutional Court in 2009, requesting the constitutional review of the legal provisions allowing for imposing whole life sentence, and requested the Constitutional Court to abolish these provisions because they violate human dignity. In addition, there has been at least one other such review request pending before the Constitutional Court since 2004. However, these requests were not decided upon for years. The issue was finally put on the agenda of the Constitutional Court and was debated 11 times in 2010/11, but no decision was reached in the case. Eventually, the review requests were terminated altogether for procedural reasons when the possibility of submitting actio popularis requests in Hungary was abolished as of 1 January 2012.

ECtHR decisions establishing the violation of Article 3 of the Convention

In May 2014, the European Court of Human Rights (ECtHR) assessed for the first time the compatibility of the respective Hungarian rules with Article 3 of the European Convention on Human Rights (prohibiting inhuman or degrading treatment or punishment) in the László Magyar v. Hungary case. The Hungarian Government in this case argued that because the President (with a counter-signature by a Minister) may – in theory – exercise pardon (clemency) also in the case of whole life prisoners, the whole life sentence of the applicant in the case was reducible both de jure and de facto – such reducibility and a real prospect of release being the cornerstone of the ECtHR’s case-law when assessing the compatibility of a life sentence with the Convention.

However, the ECtHR – in line with HHC’s standpoint submitted as a third-party intervener – concluded that László Magyar’s life sentence indeed violated the Convention, since it was “not persuaded that the institution of presidential clemency, taken alone (without being complemented by the eligibility for release on parole) and as its regulation presently stands, would allow any prisoner to know what he or she must do to be considered for release and under what conditions”. The ECtHR also concluded that the case “discloses a systemic problem” and that Hungary “would be required to put in place a reform […] of the system of review of whole life sentences”.

After the judgment in the László Magyar case, Hungary introduced a “mandatory pardon procedure” for detainees serving a whole life sentence, which is to be conducted ex officio after 40 years of detention. In the course of the procedure, a judicial board adopts a recommendation on the granting of clemency (pardon), but the procedure concludes with the fully discretional clemency decision of the President of the Republic.

The Hungarian Constitutional Court subsequently used this development to back down from deciding on the issue once again: the majority of the judges ruled in January 2015 that due to the above changes in the law, the case became “obsolete” and so did not decide on it on the merits. This resolution was harshly criticized by many. Later that year, in July 2015, a representative of the Ministry of Justice stated at a press conference that the Government had trust in the President and the judiciary and, although they would have the possibility to do so, trusts “they will never release murderers who killed children, old and helpless persons, innocent victims”.

The ECtHR examined the conformity of the new rules with the Convention in the T.P. and A.T. v. Hungary case in October 2016. It concluded again that it was not persuaded that “the applicants’ life sentences can be regarded as reducible” and established the violation of Article 3 – again in accordance with HHC’s third-party intervention and its Rule 9(2) communication submitted to the Council of Europe’s Committee of Ministers with regard to the László Magyar case earlier that year. Concerns of the Court included that the 40-year waiting period “unduly delays the domestic authorities’ review” and that the new legislation “does not oblige the President … to assess whether continued imprisonment is justified on legitimate penological grounds” and fails to “oblige him or the Minister of Justice […] to give reasons for the decision, even if it deviates from the recommendation of the [judicial] Clemency Board.”

Lack of execution

The T.P. and A.T. judgment became final in March 2017. However, the Government has not taken any general measures to date to address the respective rights violations and has not amended the law. In addition, as it was also pointed out by HHC at the NGO briefing organised by the European Implementation Network (EIN) in May 2018 for representatives of Council of Europe member states, adequate individual measures are also missing. T.P. and A.T. remain in life imprisonment without parole, in direct contrast with the ECtHR’s decision, while László Magyar will be first eligible for parole only after 40 years of imprisonment served, which is a much longer period than what is deemed acceptable by the ECtHR (i.e., 25 years). HHC also pointed out at the EIN briefing that the Government, as it states in its Action Plan, is wrong to state that the outcome of pending constitutional complaints “needs to be awaited before adequate legislative measures can be taken” or that judgments in currently pending cases before the ECtHR would have any effect on the execution of judgments in the László Magyar group of cases.

The execution of the above judgments was first examined by the Committee of Ministers in June 2018. The Committee called on the Hungarian authorities to align their legislation with the Court’s case-law and address the concerns raised by the ECtHR “without further delay”.

HHC and others now eagerly await the Hungarian Government’s next steps regarding the issue.

 

The fate of missing babies in Serbia

By Ana Jankovic Jovanovic, Legal Adviser at Lawyers’ Committee for Human Rights

Background

Decades ago, over two thousand couples in Serbia lost their babies. The national authorities provided no information about the disappearances, stating only that the babies died shortly after birth. Since 2002, several groups of parents with similar cases have banded together to compare documentation to uncover the truth. Unfortunately, the long painful struggle of these parents continues.

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On their path to learning the truth about their babies, the parents requested funeral companies to provide registries which would help them know whether their children had been buried. In general, the companies provided written answers that the supposedly deceased children never reached the cemeteries from hospitals or maternity wards and had not been buried or cremated. This information led to the parents’ continued search, deepening their belief that the children are still alive.

The national health institutions in turn informed the parents that there were no medical records about their babies, stating that the records had been destroyed by floods or fires. The official state registers of birth and death, which are required by law to keep documentation indefinitely, refused to disclose any information about the babies. Thereafter, the parents informed the Department of Administrative Inspection in the Ministry of Public Administration and Local Self-Government, who investigated the case and declared that there had been omissions and deficiencies in the work of the state registers. Unfortunately, no further steps were taken by the Department. Eventually, the parents of the missing babies filed criminal charges, but they were dismissed due to lack of evidence or expiration of statutes of limitation.

The facts behind the disappearances

The ongoing suffering of more than 2,000 parents in Serbia is evident by the facts, including the following:

  • the missing children were declared dead by the issuance of death certificates without any other proof of death;
  • the parents were not allowed to take over the bodies of their children, instead being told that it was the responsibility of the hospital;
  • there are no graves because there are no corpses of the babies;
  • the parents were given the moulds of corpses after falsified autopsies, whereupon no analysis was provided confirming the children’s’ death;
  • in most cases, it was the first-born child of a young married couple which disappeared;
  • the disappearances took place mostly on weekends;
  • the same doctors appear in many of these cases over the years; and
  • when there were twins, the healthier twin allegedly died.

All of this led the parents to suspect the work of individuals or a well-organized criminal group and everyone believed that the national authorities would investigate the cases seriously and adequately. This was especially the case after the judgment by the European Court of Human Rights (ECtHR) in 2013 in the case of Zorica Jovanovic v Serbia. Since 2001, there have been numerous media articles in Serbia on missing babies. But until the Jovanovic judgment, those cases were never taken seriously by the relevant national authorities.

The case of Zorica Jovanovic v Serbia

 Ana Jankovic Jovanovic at the EIN briefing Photo: EIN

Ana Jankovic Jovanovic at the EIN briefing
Photo: EIN

Ms Zorica Jovanovic gave birth to a healthy baby in a state-run hospital in October 1983. After several days in the hospital for a regular birth recovery, she had frequent contact with her child. One day she was informed by the doctor that her baby had died without any further information on the cause of death.

In March 2013, the ECtHR adopted its judgment in the case of Zorica Jovanovic v Serbia, which became final on 9 September 2013. In the judgment, the ECtHR stated that:

the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention” [as well as that] “the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may, however, be additional positive obligations inherent in this provision extending to, inter alia, the effectiveness of any investigating procedures relating to one’s family life.”

Furthermore, the ECtHR gave special attention to the following facts: the body of the child was never released to Ms Jovanovic; the cause of death was never determined; Ms Jovanovic was never provided with an autopsy report or informed in any way about when and where her baby had allegedly been buried; and the child’s death was never officially recorded.

In respect to these and other points noted in the judgment, the ECtHR concluded that “the applicant has suffered a continuing violation of the right to respect for her family life on account of the respondent State’s continuing failure to provide her with credible information as to the fate of her son.”

In addition, as there is a significant number of other potential applicants involving claims of missing babies, the ECtHR ordered the national authorities to provide individual redress to all parents in similar circumstances to Ms Jovanovic by establishing a mechanism which can provide credible answers regarding the fate of each child and award adequate compensation as appropriate.

Non-implementation of the Jovanovic case from 2013 to 2017

Since the Zorica Jovanovic v Serbia judgment in 2013, more than 2,000 parents are waiting for the implementation of the decision. They consider themselves to be covered by the same general measures prescribed in judgment.

To date, the national authorities have tried unsuccessfully to establish commissions that would deal with cases like that of Ms Jovanovic. The authorities also prepared a draft law to address the general measures in the Jovanovic case, but this was deemed inadequate and the Committee of Ministers, the Council of Europe’s decision-making body responsible for the implementation of ECtHR judgments, was made aware of these deficiencies by the Lawyers’ Committee for Human Rights (YUCOM), ASTRA as well as the Serbian Ombudsman.

Bearing in mind the fact that all draft laws were withdrawn from Parliament after the presidential elections in April 2017, no further steps were taken by national authorities regarding the execution of the judgment nor the respective interim resolution that was adopted by the Committee of Ministers in September 2017. The national authorities subsequently announced their intention in early 2018 to proceed again with the same draft law that was assessed as inadequate by civil society organisations and the Serbian Ombudsman.

The main concern regarding the “Draft Law on determining the facts concerning the status of new-borns suspected to have disappeared from the maternity wards in the Republic of Serbia” is that it only formally aims to fulfil its obligations stemming from the ECtHR judgment. More specifically, the Draft Law prescribed that an investigation should be done using non-litigation court procedure. This would not allow for the conduct of adequate investigations, for example in obtaining biometric and biological samples.

The Draft Law also contains numerous unclear provisions and problematic proposals and solutions, including that:

  • the very title of the Draft Law does not include other medical institutions other than maternity wards;
  • the collecting of evidence is the obligation of the parent, instead of being the court’s obligation;
  • the proposed creation of a new special police unit is contrary to provisions contained in Law on the Police;
  • the initiator of a proceeding cannot be a child who believes to be a missing baby;
  • a maximum amount of non-pecuniary damages in the amount of €10,000 is prescribed, which is contrary to the standards of fair trial and the principle of free judicial opinion; and
  • the respective court may adopt a decision that it is not possible to establish the status of the missing child which is contrary to the aim of the Draft Law.

Latest developments

It is now almost five years since the adoption of the Zorica Jovanovic v Serbia judgment even though the ECtHR called for a one-year implementation period which expired on 9 September 2014.

In the context of almost four years of non-implementation of the ECtHR judgment, the Government of Serbia submitted a revised Action Plan on the eve of the 1310th Human Rights meeting of the Council of Ministers’ Deputies from 13 to 15 March 2018.

Based on an initial analysis by YUCOM, the revised Action Plan contains some potentially misleading information. Examples include the following:

1)     The Government of Serbia stated that a meeting was held in January 2018 with representatives of the parents. Yet there was no public call to attend the meetings for all representatives of all parents. Instead only a selected number of representatives were invited, and many representatives remain fully unaware of the meeting and its results.

2)     In fact, during the above-mentioned meeting, several changes in the Draft Law were agreed. An amended version of the law was then approved in early March 2018 by the Government and transferred to Parliament for adoption. As the amendments are not publicly available, it remains impossible to determine what those changes are or how they may affect the judgment execution process.

3)     The Government also stated its intention to provide support to the parents of the missing babies while the Draft Law is pending. It noted the case of a non-final judgment of a national court where a parent was awarded €10.000. However, this award was delivered in a classical court litigation procedure for damage compensation without examination of the fate of baby. As such, this award cannot be seen in any way as being related to the execution of the Zorica Jovanovic v Serbia judgment. Instead, it represents compensation for the lack of a response from the national authorities. Furthermore, the judgment did not become final as the State filed a complaint against it and it is pending before the Court of Appeal. This suggests the State is trying to suppress the reasons stated in that judgment and at the same time trying to present this as a positive step. Additionally, it is important to stress that similar cases in Serbia usually last for many years, even decades, but this one was completed in a month and a half with only one hearing held.

After the 1310th Human Rights meeting in March, the Committee of Ministers adopted a decision on 15 March in which they “noted with interest that the Serbian authorities revised the draft law following consultations with parents of the [missing] babies …. as well as that … the government approved this draft law and transmitted it to Parliament for adoption.” The Committee also noted the above-mentioned non-final judgment award of €10.000 to one of the parents.

Conclusion

Unfortunately, it appears from the wording of the 15 March decision that the Committee of Ministers has positively assessed the recent steps undertaken or proposed by the national authorities and, despite concerns and deficiencies noted above, called on the national authorities to adopt as soon as possible the Draft Law as it has been presented to them by the Government.

As a result, YUCOM and other civil society organisations will continue to monitor the execution judgment process regarding the case of Zorica Jovanovic v Serbia. Civil society organisations and others intent on seeing justice in this case will not lose sight of the fact that this judgment was initially perceived as a true beacon of hope and redress for Ms Jovanovic and the more than 2,000 parents who still seek the truth about their missing children.

Among others, YUCOM and others will call for the establishment of a sui generis mechanism, a special court, one with a mandate to fully investigate the status of new-borns who are suspected to be missing from hospitals and maternity wards in Serbia.

Access to legal abortion in Poland – reforms and action needed

Introduction

The 2012 judgment in the case of P. and S. v. Poland (application no. 57375/08) is one of three important decisions of the European Court of Human Rights (ECtHR) concerning access to legal abortion in Poland. [1] In all three cases, the ECtHR ruled that the rights of the applicants were violated because of the practical difficulties they experienced in exercising their right to legal abortion. To fully implement these judgments, the Court stated that the national authorities must take steps to guarantee not only theoretical but also practical access to abortion. However, after more than five years since the P. and S. v. Poland decision, full implementation of the judgement is still lacking. As a result, the case is still being supervised by the Committee of Ministers under its enhanced monitoring procedure. This indicates that access to legal abortion in Poland is still more a “law on the books” rather than a “law in action.”

 Photo: Getty Images

Photo: Getty Images

The legal framework

Access to legal abortion in Poland is framed narrowly. According to Article 4(a) of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), abortion is legal only when:

1)     pregnancy endangers the mother’s life or health;

2)     prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life-threatening ailment (as such, an abortion can be performed until the foetus is capable of surviving outside the mother’s body);

3)     there are strong grounds for believing that the pregnancy is the result of a criminal act (in such an event, an abortion may be performed only until the end of the 12th week of pregnancy).

It is worth noting that Parliament adopted an amendment in 1996 which liberalized access to abortion. According to the provision, abortion was deemed legal if a pregnant woman was in a difficult personal situation or was living in difficult conditions. However, the Constitutional Tribunal ruled in 1997 that the new provision violated the constitutional right to life.[2]

Women who try to exercise their right to legal abortion in Poland also face many practical obstacles. For instance, the case of Tysiąc v. Poland (application no. 5410/03) concerned a woman who tried to have an abortion because the pregnancy threatened her health. However, the respective doctors refused to issue the necessary certificate and the law at that time did not provide any legal remedies against their decision. After the ECtHR issued its judgment finding a violation of Article 8 of the European Convention of Human Rights, Parliament enacted a law which gave patients the possibility to submit an objection against a doctor’s refusal to perform an abortion. As described below, however, the practical functioning of this procedure is far from perfect.

Another practical obstacle in accessing legal abortion is the so-called “conscience clause.” Polish law entitles doctors to refuse to perform abortions if it contradicts their moral or religious values. Until 2015 a physician who invoked this clause had to indicate an alternative way of obtaining an abortion from another doctor or different medical facility. However, the Constitutional Tribunal ruled in 2015 that such a requirement disproportionately restricted the doctor’s freedom of conscience and so the law was repealed.[3] As a consequence, many women face serious difficulties in accessing information to obtain an abortion.

Summary of the case

The P. and S. v. Poland case concerned a 14-year old girl who was denied an abortion by consecutive doctors even though her pregnancy was the result of a rape. The girl and her mother were provided with incorrect information from three hospitals about the conditions for lawful termination of the pregnancy. Moreover, the respective doctors invoked the “conscience clause” and, contrary to the law then in force, did not indicate an alternative way to obtain the abortion.

In its judgment the ECtHR found violations of Articles 3, 5 and 8 of the Convention. It underlined that “States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”[4] According to the ECtHR, “effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent (...). The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time”.[5]

The Government’s response

The Government submitted its Action Report to the Committee of Ministers in November 2013.[6] It argued that the existing law sufficiently ensured the practical access to legal abortion and as a result there was no need to adopt any new general measures. In particular, the Government reiterated that physicians “were legally obligated to inform the patient about his/her real options of obtaining abortion from another doctor or [other] medical facility and to record and provide grounds for this fact in medical documentation.”[7] Doctors who failed to fulfil this obligation could face disciplinary sanctions.

The Committee of Ministers’ decision

The Committee of Ministers adopted a decision in September 2017 regarding the execution of the judgment in the case of P. and S. v. Poland.[8] It underlined that the general measures adopted by the Government “do not appear to address adequately the sources of violations” and did not seem to protect women effectively from “the improper behaviour of the medical staff.”

The Committee recommended that the national authorities focus more on ensuring that women seeking lawful abortion would receive sufficient information as to how to obtain an abortion and what steps to take if they face any obstacles. Moreover, the Committee “invited the authorities to provide information on how, when a doctor invokes the conscience clause, they will ensure that women seeking lawful abortion receive full and credible information about accessing the health care services to which they are entitled.” In this regard, the Government was asked to provide more detailed information as to the practice of imposing contractual penalties on the hospitals which fail to comply. More broadly, the Government should also provide general information on lawful abortion in the Polish healthcare system.

Implementation of the judgment

As stated above, the Government’s position in the case of P. and S. v. Poland is that current laws are sufficient to allow for access to legal abortion and thus there is no need to adopt any new general measures. However, quite contrary, current Polish law does not guarantee that similar violations of the Convention will not happen in future. Moreover, recent developments in law and practice may result in impeding the access to legal abortion even further.

In its communication submitted to the Committee of Ministers on 1 September 2017, the Helsinki Foundation for Human Rights indicated that the law in force does not provide women with effective legal remedies which could be used to enforce the right to legal abortion. [9] While women may file an objection to the Medical Board against a physician’s opinion or certificate stating that the conditions for legal abortion have not been met, the procedure is too vague and imprecise. For instance, it is not clear whether an objection can be filed if the physician in question refuses to issue a written opinion or issues it only orally. Moreover, as the current procedure stands, there are no guarantees that the Medical Board will issue its decision before the expiration of the deadline for legal abortion.

The law also does not protect patients from any abuse of the “conscience clause.” As already mentioned, after the 2015 judgment of the Constitutional Tribunal, physicians who refuse to perform an abortion are no longer required to indicate another doctor or medical entity where such service may be obtained. At the same time, the law does clearly define as to who should provide such information to a patient. Lack of effective safeguards in this regard is even more worrisome taking into account the huge number of doctors who make use of the “conscience clause.” For example, media reported in 2016 that there were no hospitals which would perform legal abortion services in the province of Podkarpackie in south-eastern Poland.[10] As a result, the Patients’ Rights Ombudsman recommended that hospitals in which all doctors invoked the “conscience clause” should subcontract a medical entity to perform the service.[11] Unfortunately, such legislative changes have not to date been adopted or even drafted.

In theory, the unclear and insufficient legal framework could be supplemented by reasonable internal procedures adopted by hospitals. Such regulations could, for example, specify bodies obliged to inform patients about the conditions for access to legal abortion or define what steps should be taken in cases of refusal by physicians on the grounds of the “conscience clause.” Unfortunately, the majority of hospitals have to date not adopted such procedures. According to a report by the Federation for Women and Family Planning,[12] 66 per cent of the hospitals examined did not have any procedures regulating the access to abortion.[13] Moreover, many of those which had adopted such regulations also introduced therein limitations to the right to abortion not provided for in the law (for example, they added a requirement to obtain the opinion of two doctors or to obtain the opinion of a medical council).[14]

The above-mentioned legal flaws can be addressed only to a limited extent by the Patients’ Rights Ombudsman. This organ may inform patients about their rights and contribute to the identification and elimination of illegal practices by medical entities. However, it cannot replace the effective and speedy procedure of objection against a doctor’s refusal. The Ombudsman also cannot quash the negative decision nor force the hospital to perform an abortion.

Conclusion

There are currently no indications that the Government will undertake requisite reforms and action soon to fully implement the judgment in the case of P. and S. v. Poland. On the contrary, Parliament is now working on a draft civil law which aims to eliminate the possibility of obtaining an abortion on the grounds of serious damage to the foetus.[15] Moreover, in June 2017, a group of Members of Parliament submitted a motion to the Constitutional Tribunal with the aim of securing a ruling that this condition of legal abortion violates the Constitution.[16] It is therefore possible that the conditions for legal abortion could be narrowed down even further in the future. While the P. and S. v. Poland case does not concern the right to abortion per se, these actions could have a negative impact on access to legal abortion as well. The same could also be said as a result of public statements by the former as well as current Minister of Health, both of which have expressed their views against abortion.[17]

 

[1] See also Tysiąc v. Poland, 20 March 2007, app. no. 5410/03; and R.R. v. Poland, 26 May 2011, app. no. 27617/04.

[2] Judgment of the Constitutional Tribunal of 28 May 1997, ref. no. K 26/96.

[3] Judgment of the Constitutional Tribunal of 7 October 2015, ref. no. K 12/14.

[4] P. and S. v. Poland, § 106.

[5] Ibid., § 111.

[6] Action Report. Information about the measures to comply with the judgment in the case of P. and S. v. Poland, 29 November 2013, https://rm.coe.int/16804a9186.

[7] Ibid., p. 10.

[8] http://hudoc.exec.coe.int/eng?i=004-20614

[9] Communication from the Helsinki Foundation for Human Rights concerning execution of ECtHR judgment in cases: P. and S. v. Poland (application no. 57375/08), R. R. against Poland (application no. 2761/04), Tysiąc against Poland (application no. 5410/03), 1 September 2017, https://rm.coe.int/16807438d7.

[10] See e.g. A. Gorczyca, Legalna aborcja? Nie na Podkarpaciu, 11 May 2016, http://rzeszow.wyborcza.pl/rzeszow/1,34962,20050830,legalna-aborcja-nie-na-podkarpaciu.html

[11] Letter of the Patients’ Rights Ombudsman to the Human Rights Commissioner, 11 August 2016, https://www.rpo.gov.pl/sites/default/files/RPP%20o%20prawie%20do%20legalnej%20aborcji%20na%20Podkarpaciu%2C%20sierpie%C5%84%202016.pdf

[12] A. Chełstowska, M. Dziewanowska, K. Więckiewicz, „Dzień dobry, chcę przerwać ciążę…” O procedurach dostępu do legalnej aborcji w polskich szpitalach. Raport z Monitoringu, Federacja na rzecz Kobiet i Planowania Rodziny, Warszawa 2016, http://federa.org.pl/wp-content/uploads/2017/06/RAPORT-SZPITALE-FEDERACJA.pdf

[13] Ibid., p. 13.

[14] Ibid., pp. 18-20.

[15] Draft law available at: http://orka.sejm.gov.pl/Druki8ka.nsf/0/F18A213C98C5BDC0C125820B005793D9/%24File/2146.pdf

[16] Motion available at: http://ipo.trybunal.gov.pl/ipo/dok?dok=F1326803962%2FK_13_17_wns_2017_06_22_ADO.pdf

[17] See e.g. A.J. Dudek, Nowy minister zdrowia antykoncepcję i in vitro uważa za "pogwałcenie Dekalogu" i "odrzucenie samego Stwórcy”, 10 January 2018, http://www.wysokieobcasy.pl/wysokie-obcasy/7,115167,22878188,nowy-minister-zdrowia-antykoncepcje-i-in-vitro-uwaza-za-pogwalcenie.html?disableRedirects=true; A. Siek, Min. Radziwiłł o aborcji: Katastrofa cywilizacyjna. Obowiązujące przepisy budzą niepokój, 21 March 2016, http://www.tokfm.pl/Tokfm/1,103454,19798246,min-radziwill-o-aborcji-katastrofa-cywilizacyjna-obowiazujace.html

How do European Court judgments influence detention conditions in Russia?

By Natalia Taubina, Director of the Public Verdict Foundation

Background

Since Russia’s accession to the Council of Europe and recognition of the jurisdiction of the European Court of Human Rights (Court) on 5 May 1998, the Court has delivered more than 600 judgments finding inhuman and degrading treatment of individuals in Russia’s restricted-access detention facilities. This figure represents one-third of all the judgments in the Court’s history in this category of cases, making Russia by far the worse culprit in this area among all Council of Europe member States.

Overall, judgments on inhuman and degrading treatment cases account for 31 per cent of all Court judgments against Russia[1]. For Russian human rights organizations including the Public Verdict Foundation, these judgments offer a framework for the elaboration and implementation of programmes aimed at improving detention conditions as well as negotiation with the State authorities and demands for changes.

 Moscow remand center "Matrosskaya tishina", mid 90s, from the archives of the Moscow Center for Prison Reform

Moscow remand center "Matrosskaya tishina", mid 90s, from the archives of the Moscow Center for Prison Reform

The judgment in Kalashnikov v. Russia (application no. 47095/99) of July 2002 was the first judgment against Russia concerning detention conditions in pre-trial detention centres (SIZOs), followed by more than 200 similar cases which now form the Kalashnikov group of cases, pending implementation before the Committee of Ministers (CM). In January 2012, the Court also issued a pilot judgment in Ananyev and others v. Russia (applications no. 42525/07 and 60800/08). This pilot judgment and the judgments in the Kalashnikov group of cases address the problems of cell overcrowding in SIZOs and inadequate detention conditions, such as a lack of separation between the sanitary and living areas, limited access to natural light, and problems with water, heating and ventilation.

In Ananyev and Others v. Russia, the Court separately addressed the excessive recourse to detention on remand as a preventive measure and the need to take steps at the domestic level to ensure that remand in custody be used only as an exceptional measure. It stated the need for a domestic remedy for appealing detention conditions and obtaining compensation. The Court also noted that the award of compensation should not be conditional on the claimant’s ability to prove the fault of officials or bodies and the unlawfulness of their actions.

Over the years, Russia has in turn made substantial efforts to improve pre-trial detention conditions[2]. In particular, the extent of SIZO overcrowding has tangibly decreased. Although certain facilities continue to fall short of the minimum standard of floor space per person, the nightmarish situation of the 1990s is now mostly a thing of the past. However, a number of problems persist.

Current situation with detention conditions

The information below is based on an analysis prepared by the Public Verdict Foundation using publicly available data, such as the findings of public monitoring commissions (PMCs) in Krasnoyarsk Territory, Irkutsk Region, Sverdlovsk Region, Kaliningrad Region, as well as information provided by the Association of Independent Observers, Committee Against Torture NGO and Russia Behind Bars Movement for Prisoners' Rights. More details can be found in the Memorandum entitled “The execution of the European Court of Human Rights pilot judgment on the case of Ananyev and others vs. Russia (applications nos. 42525/07 and 60800/08)” submitted by the Foundation under Rule 9(2) of the Rules of the C for the supervision of the execution of judgments and of the terms of friendly settlements[3].

Material conditions

Today, Russia’s Federal Penitentiary System (FSIN) operates facilities at various degrees of wear and tear. Alongside recently constructed buildings (such as SIZO-2 in Nizhny Novgorod) that generally meet the minimum standards for detention facilities, the FSIN continues to use buildings constructed in the 15th to 19th centuries (in Kaliningrad Region and Krasnoyarsk Territory), the 18th century (in Kaluga Region) and the early 20th century (in Nizhny Novgorod, Sverdlovsk and Irkutsk Regions). At 70 to 90 per cent of depreciation, these facilities are beyond repair. Problems include pervasive and overgrown mould, damp walls, leakages, lack of proper heating in the cold season and inadequate sewage. Detainees at SIZO-1 in Nizhny Novgorod, for example, use a hot water tank for heating their cell in winter when outside temperatures can be as low as minus 20 degrees Celsius and even lower. Some old facilities do not have toilets. Outhouse toilets have to be used, while inmates confined to their cells have to use a bucket as a toilet.

In a number of regions, punishment cells in penitentiary facilities fail to meet the standards for prisoners’ accommodation due to insufficient lighting and ventilation, low temperatures in winter, concrete floors, black mould on walls, damp air, toilets lacking separation from the living area and no sinks. These problems have been reported, in particular, in Sverdlovsk, Kaliningrad, Nizhny Novgorod and Irkutsk Regions, and in Krasnoyarsk Territory.

Still common is the use of unsuitable cells at police stations for prolonged and overnight detention. Specifically, temporary detention wards at all police stations in Irkutsk Region are not designed for overnight detention; in Nizhny Novgorod Region, rooms for detainees are equipped with wooden benches 40 to 70 cm wide, which serve as beds for persons detained overnight; mattresses are generally unavailable, and bedding is rarely available. This problem has become particularly relevant in recent years due to a growing number of arrests of peaceful protesters, often followed by their detention at police stations for more than three hours. The lack of proper detention conditions at police stations has repeatedly been challenged in Russian courts, and a few cases have been taken to the Court. In particular, the cases of Irina Leonidovna Kalmykova, Yelena Gennadyevna Koroleva, Mariya Aleksandrovna Ryabikova and Anastasiya Mikhaylovna Sheveleva (application no.  56516/15 lodged on 6 November 2015) are currently at the communication stage and have been added to Kapustin v. Russia (application no. 36801/09) and 18 other applications[4].

Separating smokers from non-smokers remains a serious problem, according to human rights defenders and PMC members in Krasnoyarsk Territory and Kaliningrad, Nizhny Novgorod, Sverdlovsk, Kaluga and Irkutsk Regions.

Sanitary conditions

Despite media reports from FSIN officials about having completely solved the problem of partitions for separating toilets from the living space – and despite a genuine investment of effort and resources in the solution – the actual situation is somewhat different from the reports. According to FSIN Order no. 512, there must be just one partition one meter high; the low partition provides shielding only from one side, leaving the rest uncovered. Most toilets are equipped with steel Genoa bowls mounted on a platform raised by one or two steps. Taking into account the height of the platform and the one-meter partition, the person using the toilet is virtually in full view. Inmates often hang sheets or rags on ropes to shield the toilet. Very common are odour problems resulting from poorly functioning sewerage systems, irregular water supply and obsolete and worn-out sanitary equipment.

Medical care

Generally, PMC members in Irkutsk, Kaluga, Kaliningrad, Nizhny Novgorod and Sverdlovsk Regions and Krasnoyarsk Territory report problems with the availability of medical personnel and access to medical assistance. Prisoners have to make appointments repeatedly and wait for long periods to be seen by a medic; medicines are in short supply, as well as devices such as blood glucose and blood pressure monitors, and in some places, e.g., in Sverdlovsk and Nizhny Novgorod Regions, inmates cannot access treatment for HIV and TB. Prisoners with mobility problems are not always provided with wheelchairs and other mobility support devices (IK-6 in Irkutsk Region, Krasnoyarsk Territory).

Access to lawyers

 Correctional facility 1 (IK-1) of Yaroslav region, entrance to the transfer reception room. Photo: Irina Biryukova, barrister working with the Public Verdict, summer 2017   

Correctional facility 1 (IK-1) of Yaroslav region, entrance to the transfer reception room. Photo: Irina Biryukova, barrister working with the Public Verdict, summer 2017

 

Problems with access to lawyers also persist. In particular, denials of access to lawyers and defenders to their clients in SIZOs are common; lawyers have complained about having to wait in line to see their clients because the facility does not have enough space to accommodate all visits. Prisoners who have been beaten in detention face particular difficulties with access to lawyers and defenders. Notably, although the Court indicated interim measures in Vakhapov and others v. Russia (application no. 31236/17) and explicitly urged Russia to ensure that the prisoners have unhindered access to their lawyers, the latter’s repeated attempts to meet with their clients have been unsuccessful.

The new procedure for challenging inappropriate conditions of detention

In April 2017, the Russian Federation submitted yet another Action Plan for the execution of the Court’s pilot judgment in Ananyev and others vs. Russia and the judgments in the Kalashnikov group of cases. In particular, this document describes in detail a new procedure for challenging inappropriate conditions of detention in remand prisons pending trial and in penitentiary institutions by relying on provisions of the Code of Administrative Procedure adopted in 2015 (Federal Law No. 21-FZ of 8 March 2015, hereinafter CAP). Indeed, the procedure established by CAP has certain advantages over that available under the Code of Civil Procedure (hereinafter CCP). Notably, the CAP provisions strengthen the role of courts, introduce instruments for holding the authorities responsible (such as fines for failure to appear in court, possibility of being brought to court, etc.), and include provisional measures.

However, the new procedure under the CAP fails to resolve the problem that conditions of detention may be found inadequate only if the actions of the relevant authority or official are proven unlawful, nor does it permit simultaneous examination of complaints about the conditions of detention and related claims for compensation, as indicated by the Court in its pilot judgment.

In order to use CAP provisions for challenging the conditions of detention, detainees need to know that in the CAP terminology, inadequate conditions are understood as actions or inaction (omission) of a State authority or official, and that appealing against the conditions of detention means challenging certain acts or inaction of authorities responsible for ensuring proper conditions of detention. Individuals cannot make a claim for compensation under the CAP. In practice, this means that a detainee first needs to prove under the CAP the unlawfulness of an authority’s action or inaction leading to inadequate detention conditions, and only then make a claim for compensation of pecuniary and/or non-pecuniary damage under a different procedure stipulated by the CCP.

Notably, the State, in order to comply with the Court’s judgment concerning general measures, needs not only to develop and adopt relevant procedures and follow them in practice but also to demonstrate that adopted procedures are effective in practice. As regards the procedure for using the CAP to challenge inadequate conditions of detention in remand prisons and penitentiary facilities, Russia's Action Plan fails to provide any such proof or any information as to how the State plans to monitor and evaluate the effectiveness of this procedure as a remedy for inadequate conditions of detention.

Moreover, by adopting this new procedure, the State failed to consider important aspects that potentially create significant barriers in applying the CAP. Based on what we know from the experience of human rights organizations and from regular engagement with both lawyers and inmates, at least two key barriers to applying CAP provisions for challenging inadequate conditions of detention are foreseen.

First, the CAP has established a three-month timeline for filing a complaint about actions (omissions) of authorities of officials. In other words, an administrative complaint must be filed with a domestic court within three months following the action (inaction) in question. However, it is well known that many detainees take longer than three months to seek help. This is due to a number of reasons. In particular, an individual may need extra time to decide to challenge the actions of officials in a situation where he or she is under control of such officials, restricted in his/her freedom and vulnerable to pressure. Detainees’ correspondence is subject to censorship, and letters may get delayed in the mail. Therefore, detainee awareness of the three-month deadline is essential.

Another important limitation of the CAP procedure is the requirement that the plaintiff’s representative must have confirmed legal education and training. Plaintiffs in this category of cases are not provided with free legal aid from the State. For detainees with limited financial means, finding a lawyer to represent them can be a major problem.

Conclusion

An important component of introducing any new procedure is explaining to potential users how it works. According to information provided by lawyers, inmates and PMC members, no meaningful effort has been made to offer inmates a comprehensive and adequate explanation of the new CAP procedure. Moreover, no advice has been provided to detainees – regular suppliers of complaints to the Court about inadequate conditions of detention – that the new administrative procedure can be used, inter alia, for appealing against conditions of detention. This means that the respondent State has failed so far to comply with the key objective of creating an effective domestic remedy capable of addressing poor conditions of detention in the domestic jurisdiction and thus reducing the flow of recurrent complaints to the Court.

 

 

[1] Statistics of the European Court of Human Rights “Violation by Article and by States (1959-2016)

[2] Interim report/Plan of action on execution of pilot judgment Ananyev and others v. Russia; Russian NGO Shadow Report on the Observance of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by the Russian Federation for the period from 2006 to 2012

[3] Submission of the Public Verdict Foundation to the Committee of Ministers in the cases of Kalashnikov and Ananyev and Others v Russian Federation, (Appl. Nos. 47095/9942525/07), 16 June 2017 

[4] Vladimir Yakovlevich Kapustin against Russian Federation and 18 other applications, Appl. no. 36801/09, communicated by the Court on 30 June 2017

 

 

The independence and impartiality of investigative authorities and rights of victims in Georgia

Nino Jomarjidze, Lawyer, Georgian Young Lawyers’ Association

For many years, the lack of transparent, independent and effective investigation of crimes committed by law enforcement agencies has been identified as one of the most serious problems in Georgia.[1] Impunity cultivated by the failure to investigate and punish perpetrators of ill-treatment has led to the systemic abuse of power by law enforcement officials.

This article explores the Georgian Government’s failure to ensure the institutional and practical independence of investigative bodies, in spite of some general measures being undertaken by the Government on the basis of judgments from the European Court of Human Rights (ECtHR) delivered against Georgia in the Gharibashvili group of cases.[2] The article firstly argues that the adopted general measures have been inadequate to ensure the independence and impartiality of investigative authorities nationally. Secondly, this article examines some of the deficiencies in the domestic legislation regarding the requirements of impartiality of investigative bodies, namely the importance of creating an independent investigative mechanism with prosecutorial and investigative powers as an effective tool to execute the general measures undertaken on the basis of the ECtHR judgments. Finally, the article highlights the need to enhance efforts for the meaningful involvement of victims into investigations.

 Chief Prosecutor's Office in Georgia

Chief Prosecutor's Office in Georgia

Execution status of the Gharibashvili group of cases

The Committee of Ministers (CM) has supervised Georgia’s implementation of the ECtHR’s Gharibashvili group of judgments since 2008. This group of six judgments concerns the lack of an effective investigation into allegations of violations of the right to life and of ill-treatment (procedural limbs of Articles 2 and 3 of the European Convention on Human Rights (ECHR)). In addition, in two cases the Court found a substantive violation of Article 3 due to the excessive use of force by the police in the course of the applicant’s arrest and/or in custody. Despite differences in factual circumstances, in all of these cases the ECtHR concluded that the official investigations conducted at the material time lacked the requisite independence and impartiality due to the institutional connection, and even hierarchical subordination, between those implicated and the investigators in charge of the cases. This group of judgments include the case of Tsintsabadze v Georgia, in which the Georgian Young Lawyers’ Association (GYLA) and the European Human Rights Advocacy Centre represented the applicant before the ECtHR.[3] This case concerned the death of the applicant’s son at a penitentiary institution, where prison officers discovered him hung in the prison's storeroom. The applicant consistently denied that her son had committed suicide and claimed that he had been killed and then hung to conceal the murder. The ECtHR found a violation of the procedural limb of Article 2 on account of deficiencies and omissions identified in the course of the investigation into the death of Mr. Tsintsabadze.

Additionally, in December 2016, the Committee decided to transfer the 11 friendly settlements from the standard to the enhanced supervision procedure and to join them with the Gharibashvili group. In all of the cases, the Government of Georgia acknowledged allegations of failure to investigate violations of right to life and ill-treatment and has undertaken the obligation to provide effective investigation.[4] 

In December 2016, while examining this group of cases, the CM called upon the Georgian authorities to intensify “their efforts to remedy the deficiencies in domestic legislation regarding the requirements of impartiality of investigative bodies, in investigations to which Articles 2 and 3 of the Convention apply.”[5]

On 6 September 2017, a quarterly civil society briefing was held on cases scheduled for review at the 1294th Human Rights Meeting (DH) of the CM from 19 to 21 September 2017.[6] During the meeting the members of the CM were briefed on the implementation of different cases, including Gharibashvili group v Georgia. GYLA provided an overview of general measures taken by the Georgian authorities and highlighted the need to adopt further measures in order to ensure systematic and meaningful reform of the investigative authorities and to enhance efforts relating to effective involvement of victims into investigations.

As the latest decision adopted on 21 September by the CM reveals, the CM closed the examination of two cases (cases of Gharibashvili and Khaindrava and Dzamashvili v. Georgia) and underlined that the examination of the outstanding questions regarding individual and general measures in the former Gharibashvili group of cases will be pursued within the framework of the new Tsintsabadze group of cases.[7]

Overview of the national legislation

In order to remedy the deficiencies regarding the independence and impartiality of investigative bodies, the Georgian Government has adopted various legislative amendments in the Law on the Prosecutor’s Office and Order 34 of the Minister of Justice of Georgia (7 July 2013) on Determination of Territorial and Investigative Subordination of Criminal Cases (hereafter “the regulations”). However, the amendments (described below) made in these regulations fail to adequately address the primary concerns surrounding the independence, impartiality and politicisation of the Prosecutor’s office.

The amendments to the Law on the Prosecutor’s Office puts in place a new procedure for the appointment of the Chief Prosecutor and rules for the appointment, dismissal, promotion and discipline of city, regional and other prosecutors. Yet the amendments still do not ensure sufficient protection from political interference with the Chief Prosecutor’s selection and appointment and does not fully achieve the stated goal of depoliticising the office of the Chief Prosecutor. This is due to several reasons, including:

·       The law on the Prosecutor’s Office proclaims that the Prosecutorial Council, one of the functions of which is to select the Chief Prosecutor, “shall be established at the Ministry of Justice”. The meaning of this provision is not entirely clear and could be defined as being an integral part of the executive branch. The goal of establishing the Prosecutorial Council was to ensure the depoliticisation and autonomy of the prosecution service from the executive (including the Ministry of Justice) and legislative branches, thus the present norm raises doubts about the independence and impartiality of the Prosecutorial Council.

·       The Minister of Justice, which is part of the Government representing the parliamentary majority, heads the Prosecutorial Council. According to the Law, the position of the Minister of Justice within the Prosecutorial Council is very strong. In particular, he/she has the following powers: 1) to chair the meetings of the Prosecutorial Council ex officio; 2) to nominate a candidate for the position of the Chief Prosecutor; and 3) vote as a member of the Prosecutorial Council for the approval of this person. Even if the Minister is a member of the Prosecutorial Council ex officio, having him/her chair the Council raises doubts as to the independence of this body.

·       The Minister of Justice has the initial power to nominate the candidate. According to the new amendments, the Minister of Justice shall hold formal discussions concerning the candidates for membership and substantiate his/her choice before presenting three candidates to the Prosecutorial Council. Despite the obligation of the Minister to hold discussions/consultations concerning the candidates, it did not make the process transparent as under the Law the Minister is not bound by any rules of selection. Second, the Government and the Parliament, by a simple majority, approve the decision of the Prosecutorial Council on the appointment of the candidate proposed by the Minister of Justice. Thus, the powers of the Minister of Justice with respect to the nomination of candidates for the position of Chief Prosecutor are too strong and should therefore be reconsidered and the influence of the Government/parliamentary majority reduced.

The above-mentioned shortcomings clearly confirms that the reform remains essentially political in nature and attempts to depoliticise the Office of the Chief Prosecutor have not been successful.[8] 

In addition, Order 34 provides that crimes allegedly committed by law enforcement officials fall under the jurisdiction of the Prosecutor’s Office of Georgia (POG). However, the Order retains a discretion for other investigative bodies to investigate crimes allegedly committed by law enforcement officials in particular circumstances. For example, under the Order investigators of the Ministry of Corrections (MOC) are entitled to investigate crimes committed on the territory of the penitentiary institutions of the MOC. The investigative jurisdiction of the MOC covers crimes committed by both its employees and by prisoners. In order to carry out the investigation the MOC has created an Investigative Division (ID). Hence, when the ID investigates a crime allegedly committed on the territory of the penitentiary institution by its employees, legitimate questions arise regarding independence and impartiality of the investigation since the ID is a department within the MOC. Furthermore, the present Order allows crimes allegedly committed by the employees of the Ministry of Internal Affairs (MIA) to be investigated by the investigative authorities of the same Ministry if these crimes are uncovered by the MIA. The same rule applies to the POG, which under the law is authorized to investigate crimes committed by its employees.

Moreover, one of the most significant disadvantages of the legislation is the wide discretion granted to the Prosecutor to transfer a criminal case from one investigative body to another without providing any justification or supporting arguments for the decision. Such wide discretion gives the possibility to the Prosecutor to transfer the criminal case to another investigative body even if under the Order, the case falls under the jurisdiction of the POG.[9]

Proposed draft law to create an effective independent investigative mechanism

The lack of institutional independence while investigating crimes allegedly committed by law enforcement officials therefore remains a challenge in Georgia. Concern about the systemic failure to conduct effective investigations has also been raised by both international and national organisations.[10]  

In order to eradicate such structural and/or systemic deficiencies and guarantee the independence and impartiality of investigations, it is of the utmost importance to establish an independent investigative mechanism with a mandate to ensure the institutional independence of investigations in criminal cases. Georgian NGOs, supported by international actors, have contributed to a draft law on setting up this independent mechanism.[11]

The draft law proposes that the mechanism will be separate from the executive authorities, and will have exclusive jurisdiction to investigate and prosecute crimes that are allegedly committed by law enforcement officials. Moreover, the mechanism has discretionary jurisdiction over any crime if there is a reasonable suspicion that a conflict of interest might arise during the investigation process or prosecution. To ensure the legal and practical independence of the mechanism, it will have a mandate to unilaterally decide whether or not to initiate an investigation or prosecution as well as to undertake relevant investigative measures. Under the draft law, victim participation is secured through mandatory information disclosures, with reasonable frequency. Furthermore, the mechanism will be headed by an independent Commissioner selected with the involvement of all three branches of the Georgian Government and civil society, ensuring the comprehensive institutional independence of the mechanism and its staff. Under the draft law, a further layer of independence and impartiality is ensured as political party members cannot be appointed as Commissioner. The draft law makes the mechanism accountable to Parliament, and the Commissioner is required to submit an activities report twice a year.

Overview of the national legislation regarding the victim’s effective involvement within the pending investigation

In order to address the discrepancies identified by the ECtHR in the above-mentioned cases regarding the victim’s effective involvement within the pending investigation, the Georgian Government amended the Criminal Procedure Code of Georgia (CPC) in 2014. By the amendments, the legislation has improved; however, the existing legislation is not in full compliance with general principles concerning the rights of the victim in the criminal proceedings, thus the condition of the victim still remains a problem.

 GYLA report on Victims’ rights under Criminal Procedure Code (practice in Georgia and international approaches)

GYLA report on Victims’ rights under Criminal Procedure Code (practice in Georgia and international approaches)

Under the new amendments, the following procedural rights can be afforded to a victim: a right to appeal the Prosecutor’s resolution on the refusal of the status of a victim, on the annulment of the victim status and on the termination of the investigation/criminal prosecution. According to the amendments, in cases of particularly grave crime, the victims are authorized to appeal the above-mentioned resolutions to the superior prosecutor and afterwards to the domestic court of first instance. While the legislation provides the victims in case of particularly grave crime a two-tier system for appealing, the victims in case of less grave and grave crimes are deprived of such possibility. In particular, under the CPC the latter has the right to appeal the prosecutor’s resolutions on the above-mentioned issues only to the superior prosecutor.

In its action plan of June 2015 the Georgian Government noted that the fact that appeal to the domestic court is only possible in cases of particularly grave crimes reflects the State’s need to prevent the overburdening of the relevant systems by ensuring their effective and expeditious operation.[12] However, the difficulties of general administrative nature, which may occur in case of appeal, may not be the basis for restricting the right to appeal to the court. The victim is more than just a witness, which requires proper and sufficient involvement in the process. Thus, it is not appropriate to link the right of appeal to the gravity of crime as such regulation unreasonably restricts the rights of the victims in case of less grave and grave crime. It is noteworthy to note the judgment of the Constitutional Court of Georgia regarding this issue. In particular, the Court highlighted that for proper protection of the victim’s rights, it is of utmost importance to carry out judicial control on the resolutions of the superior prosecutor. The judicial control is the most powerful and effective way to force the prosecutor to be impartial while exercising discretionary powers. Thus, the Constitutional Court underlined that the victim shall have the opportunity to appeal, including to the domestic court the resolutions on the above-mentioned issues despite the categories of crimes.[13]

Conclusion

Based on the above, the Georgian Government should adopt appropriate legislative amendments and practical measures to the effect of establishing an independent investigative body to conduct investigations and bring charges in cases involving violations of Articles 2 and 3 of the Convention. Creation of an independent investigative mechanism with a mandate and competence that will guarantee the independence and impartiality of the investigative bodies is the only existing solution to counter the culture of impunity and the systemic failure of the State to effectively investigate crimes allegedly committed by law enforcement officials. Furthermore, the Georgian Government should undertake further amendments for ensuring adequate protection of the victim’s interests within the ongoing investigation as well as for the full execution of the general measures communicated by the ECtHR to the Georgian Government in the Gharibashvili group of cases (re-grouped by the CM as the Tsintsabadze group since 17 September 2017).

This is an updated version of the article published in the Summer 2017 Bulletin of the European Human Rights Advocacy Centre.

 

[1] https://goo.gl/KLglP3, https://goo.gl/n1ENAR, https://goo.gl/dvztwX.

[2] https://goo.gl/JAAZ0T

[3] Tsintsabadze v Georgia  (No. 35403/06), 15.2.11, https://goo.gl/xIJ0tu

[4] https://goo.gl/9j89DT

[5] https://goo.gl/JAAZ0T

[6] https://goo.gl/tXQXzd

[7] https://goo.gl/bPbJh5

[8] https://goo.gl/Hlmzxe

[9] https://goo.gl/g6Xk5v

[10] https://goo.gl/KLglP3, https://goo.gl/n1ENAR, https://goo.gl/dvztwX

[11] https://goo.gl/B5A3yD, https://goo.gl/BCq71r

[12] https://goo.gl/5TLxag

[13] https://goo.gl/a39ZTq

Transgender rights in Lithuania – The European Convention as a catalyst for change

By Tomas Vytautas Raskevičius of the Lithuanian Gay League and Nigel Warner of ILGA-Europe

In this article we show how, in recent years, a combination of European Convention cases and advocacy at national and Strasbourg levels[1] is moving forward the debate on the rights of trans persons in Lithuania, a country where political and faith-based opposition is such that any progress for long seemed impossible.

The right of trans persons to legal recognition of their gender identity[2] (‘legal gender recognition’) was finally acknowledged by the European Court of Human Rights (ECtHR) in 2002 in two cases where the UK was required to change the gender of the applicants on their birth certificate, and permit them to marry a person of the gender opposite to their reassigned gender.[3] At that time a requirement for trans persons to undergo gender reassignment (generally taken to include being rendered infertile) as a pre-condition for legal gender recognition was the norm in Council of Europe member states, regardless of whether desired by the individual concerned. Since then such a requirement has come to be seen as a serious human rights violation, condemned at the Council of Europe by the Commissioner for Human Rights in 2009 and by the Parliamentary Assembly in 2013.[4] However, as we shall discuss further below, it is only in recent months that the European Court of Human Rights has had an opportunity to rule on this.

 Social campaign #TRANS_LT by the National LGBT* rights organization LGL. Photo credit: LGL

Social campaign #TRANS_LT by the National LGBT* rights organization LGL. Photo credit: LGL

Back in 2000 Lithuania’s Civil Registration Rules permitted “a change of civil status documents”, but only following gender reassignment. In 2001 a new Civil Code supplemented this by confirming that an unmarried adult had the right to gender reassignment. However the subsidiary legislation needed to implement this right was never adopted due to opposition in parliament and by the Catholic Church. Without access to gender reassignment there could be no legal gender recognition. In 2007, in L v. Lithuania, the European Court of Human Rights found this situation to be a violation of the right to respect for private life.

The applicant in L v. Lithuania had taken his case at a time when the capacity of local NGOs to advocate for the introduction of gender reassignment treatment was very limited. In the absence of such advocacy, and relegated to the Committee of Ministers’ “standard” execution of judgments procedure,[5]  the case lay dormant at Strasbourg until 2013 when the Lithuanian authorities finally submitted an Action Plan. Implicitly acknowledging the difficulty of persuading Parliament to adopt the necessary subsidiary legislation, it proposed repealing the requirement for this legislation, and introducing two separate initiatives: a simplified procedure for changing entries in official documents; and a request to the medical profession to develop reassignment treatment procedures. While the former was a welcome proposal, the latter was not. Hostility to trans rights in the medical profession was such that there was no guarantee that the procedures would be forthcoming if merely voluntary. Moreover, the need was not just for written procedures, but for suitable medical facilities. And, just as seriously, the proposals maintained the requirement that legal gender recognition be conditional on gender reassignment.

Even these defective proposals met with strong opposition. In May 2013 the Lithuanian Parliament gave initial approval to a draft bill (supported by the Catholic Church) which proposed banning gender reassignment surgery altogether.[6]

 Staff members and European Voluntary Service volunteers of the National LGBT* rights organization LGL. Photo credit: LGL

Staff members and European Voluntary Service volunteers of the National LGBT* rights organization LGL. Photo credit: LGL

Given the slow progress on the case, and the fact that it affected the rights of all trans persons seeking legal gender recognition in Lithuania, the Lithuanian Gay League (LGL) and its partners began advocating that L v. Lithuania be the subject of increased scrutiny by the Committee of Ministers through “promotion” to the enhanced execution of judgments procedure. A joint hearing by the Parliamentary Assembly’s Legal Affairs and Human Rights and Equality and Non-Discrimination Committees in January 2014 provided an opportunity to make the case to a wide audience. In September 2014 L v. Lithuania was moved to the enhanced supervision procedure.

This prompted the Lithuanian authorities to make more serious efforts. In January 2015 a working group led by the Deputy Minister of Health (consisting of professors of medicine, officials of the Ministries of Health and Justice as well as the Government Agent) was set up. It heard independent experts and NGOs, including LGL and  the Human Rights Monitoring Institute (HRMI) . However the proposal then developed by the Ministry of Justice ignored their input, continuing to require gender reassignment as a condition of acquiring legal gender recognition and failing to allow for the provision of healthcare services. Moreover, as a result of divisions within the government the bill was not even presented to Parliament.

In May 2016 the  Lithuanian Government Agent organised a public consultation requesting views on whether gender reassignment should  or should  not be a precondition for legal gender recognition. The majority of replies supported the latter proposition. The following month she organised a roundtable bringing together ministries, the equal opportunities ombudsman, academics, the Catholic bishops, and LGL and HRMI. It was clear from the viewpoints expressed that no compromise meeting the interests of all the stakeholders could be found.

In June 2016 the Committee of Ministers expressed its concern that after more than eight years the judgment still had not been implemented.

Ensuring that any legislation eventually adopted does not require gender reassignment as a precondition for legal gender recognition remained of particular concern for LGL and its partners. The L v. Lithuania judgment had been silent on this question. LGL’s submissions to the Committee of Ministers argued that in view of other Council of Europe policy on the subject (referred to above), such a requirement should be ruled out.  However, there was no indication that the Committee of Ministers would support this position.

Accordingly, in December 2016 LGL opened a new front, initiating cases in the domestic courts on behalf of two trans men challenging the requirement for reassignment surgery. The timing was perfect. Just four months later, in April 2017, the European Court of Human Rights delivered its historic decision in the cases of A.P., Garçon and Nicot v. France, ruling for the first time that such a requirement violated Article 8 of the Convention. In their subsequent judgments, the Lithuanian courts followed the ECtHR’s lead. While their judgments do not of themselves establish binding precedents, they mark the beginning of what is hoped will become a judicial standard. Such a standard, combined with the newly adopted position of the ECtHR should ensure that the requirement for gender reassignment will be dropped in future legislation on legal gender recognition.

In parallel with these developments, the government has instructed the Ministry of Justice and the Ministry of Health to prepare draft legislation on a gender reassignment procedure. While it is too early to predict how this will develop, the authorities appear more receptive to input and involvement by the trans and NGO communities than was the case during the development of the previous legislative proposals in 2015.

 

[1] The NGOs involved in this advocacy work are the Lithuanian Gay League, the Human Rights Monitoring Institute, Transgender-Europe, and ILGA-Europe.

[2] Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other expressions of gender, including dress, speech and mannerisms.

[3] Christine Goodwin v. UK, I. v. UK

[4]  Commissioner for Human Rights – Issue Paper on Human Rights and Gender Identity (2009); Parliamentary Assembly Resolution 1945 (2013)1 - Putting an end to coerced sterilisations and castrations

[5] Under the execution of judgments process there are two modes of supervision: “standard” and “enhanced” supervision. Resolution of cases under the “standard” procedure is left to a dialogue between the execution of judgments department and the state concerned. For a case to be considered under the “enhanced supervision” procedure, which involves full and regular review by the Committee of Ministers, a case must be deemed to face either “structural” or “complex” problems.

[6] This bill did not proceed further.

Discrimination against Roma in education: waiting for changes on the ground

By Štěpán Drahokoupil, Advocacy Officer, Open Society Fund Prague

In 2007, the European Court of Human Rights rendered judgment in D.H. and others v. the Czech Republic (Application No. 57325/00, November 13, 2007). This landmark case was brought by 18 Roma students from the Ostrava region who complained that they were diagnosed as children with “mild mental disability” and enrolled into special education because of their ethnicity. The ECHR’s Grand Chamber found that the practice of labelling Roma children as children with “mild mental disability” and segregating them in special education violated Article 14 of the European Convention.[1]

 Roma children with their teacher in a kindergarten in Ostrava. Photo credit: Open Society Fund Prague 

Roma children with their teacher in a kindergarten in Ostrava. Photo credit: Open Society Fund Prague 

Roma children in the Czech Republic are still disproportionally assessed as individuals with mild mental disability. The data from the 2016/2017 school year collected by the Ministry of Education, Youth and Sports show that 30.9 % of children who are taught as children with “mild mental disability” are Roma[2], yet the share of Roma children in all elementary schools in the Czech Republic is 3.7 %.

But even though the share of Roma children has not significantly changed over the last four school years, there is some hope for the future. After years of political instability, the Czech Republic has approved a number of reforms that lay the groundwork for inclusive education; however, the impact on the ground of these measures is still unclear and needs to be closely monitored.

The implementation of the D.H. judgment has been greatly complicated by the instability of the Czech Governments and Ministers of Education. Since 2006 the average time at the post of the minister was less than 13 months. The Czech Government proceeded with some changes during the first few years after the judgment, but it took until 2015 and 2016 for significant legislative changes in the law. 

The inclusive reforms of 2015 and 2016 consisted of approving two amendments to the Czech Republic’s School Act and the abolishment of its educational program for children with mild mental disability. The Parliament approved a bill in 2015 that guarantees support measures to every child with disabilities and to children with other special educational needs. These support measures are free of charge and are provided to children in mainstream and special schools[3]. Mainstream schools educating children with special educational needs faced more obstacles and received less funds than the special schools. One analysis showed that the state provided 2.2 times more funds, when a child with mild mental disability was educated in a “practical school”.[4] Despite the fact that “practical schools”—where most of the children with mild mental disability were educated in the past—have been abolished in name, these same schools were then transformed into either mainstream or special schools. This transformation—and whether it has led to less segregation and discrimination against Roma children—is still to be assessed.

The second inclusive reform introduced a compulsory year of pre-school to all children from the age of five years. This measure aims at improving enrolment of Roma children into kindergarten. According to data from the EU Agency for Fundamental Rights, only 34 percent of Roma children are enrolled into pre-school education, in comparison with 86 percent of non-Roma[5].

When the bill on compulsory pre-school education was discussed in the Parliament, inclusive education became a politically controversial issue. Even though the Parliament approved the first inclusive reform in February 2015, some MPs—including many who had voted for the 2015 bill—started questioning inclusive education within less than a year. One of the reasons for their decision was a massive campaign by the biggest tabloid in the Czech Republic against inclusive education called “Stop Harmful Inclusion[6].

Several MPs in the Chamber of Deputies (the lower chamber of the Czech Parliament) also tried to misuse the bill on compulsory pre-school by proposing to postpone the date of the effect of the support measures by two years (from September 2016 to September 2018). Even though the main aim of the bill was compulsory pre-school, MPs spent more time debating details of the first inclusive education reform they had passed the previous year. This attempt to postpone the effect of the support measures was not successful in the Parliament; a similar unsuccessful attempt was made in the Senate.

Every bill must be signed also by the President of the Czech Republic, who has a power to veto it. The veto can be overridden by the Chamber of Deputies. The president Miloš Zeman decided to veto the bill on compulsory pre-school and one reason that he gave was that he did not agree with the system of support measures and inclusive education[7] (again, this was the very bill he had signed into law the previous year with no objection.) Vetoing a bill, because of measures that the bill does not contain is a text-book case of what is now being called post-truth politics. The Chamber of Deputies overrode the veto.

In the face of these obstacles, civil society organizations, inclusive schools and parents have played a crucial role in the implementation of the judgment, particularly in the area of providing relevant information to stakeholders at the national and international level. Indeed, at one point NGOs that supported inclusive education reforms became a target of the “Stop Harmful Inclusion” campaign and were portrayed as a group only lobbying for their own financial resources[8]. This accusation turned out to be an “alternative fact”, because almost all targeted NGOs received no funds from the state.                                                            

 Roma university students in Prague. Photo credit: Open Society Fund Prague

Roma university students in Prague. Photo credit: Open Society Fund Prague

In the end, all necessary reforms were passed and came into effect or about to come into effect. The first inclusive reform introducing support measures took effect in 2016 and the second, regarding the compulsory year of pre-school, will come into effect in September 2017. The educational program for children with mild mental disability was abolished at the start of the current school year.

The bad news is that after almost a decade after the judgment, Roma children in the Czech Republic still face widespread discrimination and segregation. Not only are they wrongly assessed as children with mild mental disability, but one quarter of all Roma children are educated in the 83 segregated schools that have Roma majorities. Some Roma children also face segregation on the classroom level. There is no data for the whole country, but there are some known cases. One is in the town Krásná Lípa, where a headmaster established two classes according to a “neutral” criteria which was whether or not a child had attended kindergarten. This resulted in there being one all-Roma classroom and one non-Roma classroom[9].

Importantly, discrimination in mainstream education was recently recognized by the Czech judiciary as well, by a District Court in Ostrava[10]. The Court decided that two Roma boys were denied enrolment into mainstream school due to their ethnicity. The decision of the Court is groundbreaking, since it is the first acknowledgment of discrimination in education on the basis of ethnicity at the level of District Court (the first level of courts in the Czech Republic). 

The good news is that the Government passed major reforms from the Action Plan presented to the Committee of Ministers[11]. We can see how crucial political will is for the proper implementation of judgments. Another piece of good news should also be seen in the very fact that this data is now being collected. Since the inclusive reforms are so recent, it is hard yet to evaluate this data. Moreover, having such data will not change anything on its own, but it is and will continue to be a key tool for monitoring and evaluating the inclusive reforms that are being implemented.

 

[1] Most of children with the diagnosis of “mild mental disability” are taught in special education, Roma and non-Roma. According to the data of the Ministry of Education, Youth and Sports, only 15, 25 percent of children with mild mental disability were taught in mainstream school in 2016. Despite this low number, it is an increase from 4 percent in 2007. Vzdělávání dětí s lehkým mentálním postižením (LMP) v datech, www.cosiv.cz, January 17, 2017

[2] DD(2017)217 - Communication from the Czech authorities - Action plan, February 15, 2017

[3] The are two types of elementary schools in the Czech Republic: mainstream and special school. Every child has a right to be enrolled into his, her local mainstream school, including children with disabilities and special educational needs. If the child is diagnosed with disability, it needs an approval of Special Educational Center to be enrolled into special education. Parents also must provide an „informed consent“ with such enrollment.

[4] Klusáček, Jan, Hrstka, Daniel: Nákladnost vzdělávání dětí s lehkým mentálním postižením v základních školách praktických, 2015

[5] Second European Union Minorities and Discrimination Survey (EU-MIDIS II) Roma – Selected findings, November 2016

[6] Czech foundation says tabloid is bolstering media hysteria about school reforms, Romea.cz, February 23, 2016

[7] Czech President says he vetoed education amendment because of inclusion, Romea.cz, May 5, 2016

[8] Analysis: Czech tabloid launches campaign against inclusive education, Romea.cz, March 20, 2016

[9] Czech mayor rejects ombudsperson's proposal on how to end discrimination of Romani children in local school, Romea.cz, June 28, 2016

[10] Justice Served - Romani Boys Denied Enrolment in School Win Case in Czech Republic, ERRC, March 2017

[11] DD(2017)217 - Communication from the Czech authorities - Action plan - 15.02.2017