All hat, no cattle: 12 years of unfulfilled ‘mentality reform’ promises in Turkey

By Mümtaz Murat Kök, Media and Law Studies Association (MLSA)

On 11 July 2022, the European Court of Human Rights (ECtHR or the Court) ruled that Turkey failed to execute the Court’s judgment in the case of Kavala v. Turkey. In its history, this is the second time the court has ever conducted infringement proceedings against a member state since Mammadov v. Azerbaijan. Considering this situation, it would be an understatement to call Turkey's non-implementation of the judgments of the ECtHR simply a problem.

In their article, lawyers Tatiana Chernikova and Denis Shedov discuss the same predicament in Russia. Among the reasons for non implementation of the ECtHR’s judgments by Russia, the authors list the lack of a specific institution responsible for the implementation of the ECtHR’s judgments. Though Turkey and Russia may appear similar when it comes to the average time leading cases have been pending implementation, unlike Russia, Turkey does have a specific institution responsible for implementing the judgments of the European Court of Human Rights.

Foto credit: Filiz Gazi

Non-implementation as ‘sickness’, ‘mentality reform’ as cure

“The Department of Human Rights" was established within the Ministry of Justice by Executive Decree no. 650 dated 26 August 2011 and published in the Official Gazette to amend Article 13 of the Law No. 2992 on the Organization and Duties of the Ministry of Justice.  Among other things, the department has been tasked “to perform duties and procedures in the enforcement of the judgments of the Court finding violations against the Republic of Turkey.” Not long after, the department’s jurisdiction was extended through a protocol signed between the Ministry of Justice and the Ministry of Foreign Affairs on 14 November 2011. As per Article 5/1 of said protocol, the department has been entrusted with carrying out all procedures in the implementation of the judgments of the ECtHR.

In the press conference held after the signing of the protocol, the ministers, among others, answered to the question “Why are the judgments of the Court not implemented?” Then Foreign Minister Ahmet Davutoğlu acknowledged that Turkey’s record before the European Court of Human Rights is “a sign of sickness.” According to Davutoğlu, a systematic illness caused the ever increasing number of applications to the Court from Turkey. Following his diagnosis, the minister prescribed “procedural” and “mentality reform.” In terms of procedural reforms, he praised the protocol that had just been signed and added that “even legislative changes” may be considered if deemed necessary in the future. With the new protocol, so the minister claimed, the way to any such change had been opened as a preventative measure. In terms of “mentality reform”, Davutoğlu declared that henceforth, there would be no more excuses for the mistakes of previous governments which gave way to violations in the first place and against which the AKP government now still had to submit “defenses” in the course of the implementation process. Instead of “defending a wrong judicial decision,” the minister continued, Turkey would start “cleaning up its act” and consider “all kinds of alternatives” to decrease the number of applications before the court on matters of fundamental freedoms.

12 years after these bold statements, no signs of an actual mentality reform are in sight. On the contrary, not only does the current government defend the mistakes of the past, in practice they enthusiastically add up to them. The Oya Ataman Case, which is one of 133 leading cases pending implementation by Turkey, is a perfect example of this gangrenous reality.

The Oya Ataman Case

In 1997, the Ministry of Justice introduced a new project for the construction of “high security” prisons across Turkey. The government of the time claimed that these prisons, widely known as “F-Type prisons”, introduced more effective and more humane methods of prison administration. Several reports by human rights organizations (e.g. a report by the Turkish Medical Association) pointed out that these prisons, which rely on the isolation of political prisoners, are not compatible with human rights.

On 22 April 2000, eight months before the so-called “Operation Return to Life”, the Istanbul Branch of the Human Rights Association planned a press statement in Istanbul’s Sultanahmet Square in order to protest F-Type prisons. A group of 40 - 50 human rights defenders and activists arrived at the square around noon. They were immediately ordered by the police to disperse under the claim that they might “disrupt public order” at that busy time of the day. When the demonstrators refused to scatter, the police resorted to pepper spray and took 39 demonstrators into custody. Among those who were detained was lawyer Oya Ataman. After the Turkish authorities had refused to initiate proceedings against the police, he filed an application with the European Court of Human Rights in 2001.

On 5 December 2006, the European Court of Human Rights ruled that the intervention of the police to a peaceful demonstration violated the applicant’s freedom of assembly. In its judgment, the court granted that there may be regulations requiring prior notification about planned demonstrations to the authorities but also noted that these requirements must not serve as “a hidden obstacle to the freedom of peaceful assembly.” The court established that the interference with the applicant’s freedom of assembly was “prescribed by law”, namely Law no. 2911 on Demonstrations and Assemblies. However, being “struck by the authorities’ impatience in seeking to end the demonstration”, it found such interference unnecessary in a democratic society.

It is important to mention here that three years before the ECtHR’s judgment, an Istanbul court had sentenced 38 of the demonstrators of the event in question to 1 year 8 months in prison, in addition to 91 million Turkish Liras of judicial fine. The first instance court ruled not to suspend the prison sentences for three of the human rights defenders on the grounds that “they are incorrigible” and that they show no sign of remorse.

PHOTO credit: Hayri Tunç

The ECtHR’s judgment in the Oya Ataman Case has been pending implementation since 5 March 2007. In fact, Oya Ataman’s case has become the leading case of a group of cases concerning violations of the right to freedom of peaceful assembly, including the prosecution of participants in demonstrations and the use of excessive force to disperse peaceful demonstrations.

‘The problem is not the law, but it’s application’
Contrary to the statements made 12 years ago and in defiance of reality, in their latest Action Plan submitted to the Committee of Ministers on 16 January 2023, the authorities claimed that “the underlying reason for the violations at hand is the application of the law in practice rather than its substantive provisions.” Showing how far they have come from the statements made in 2011, the authorities even gave a  “warning” to the Committee: “considering that there is no deficiency in the Turkish legislation, the Government of Türkiye would like to note that insisting on a legislative amendment would lead to excess of power.”

The repetitive cases in this group and daily experiences prove what the Committee of Ministers has insistently stressed upon: the problem is the law. The very same legislation that was used to sentence human rights defenders who went to the Sultanahmet Square in 2000 to protest inhuman prisons is used against protestors today. In its latest submission to the Committee, the Media and Law Studies Association (MLSA), through data gathered by monitoring of freedom of assembly trials, has put forward how the Law itself (more specifically Articles 9, 10, 16, 17, 22, 23, 28-32) still gives way to violations. These articles, which are vaguely worded, allow interpretation contrary to the Convention standards and make it possible for the authorities to declare peaceful assemblies “illegal”, impose arbitrary bans and sentence individuals for attending peaceful demonstrations. The arbitrary restriction of freedom of assembly, MLSA argued, can be seen in the radically different attitude of the authorities towards the Saturday Mothers/People and the group called “the Defense of the Islamic Movement” both of which wanted to hold demonstrations in front the Çağlayan Courthouse in Istanbul. Article 22 of the Law no. 2911 stipulates that demonstrations in the vicinity of certain public buildings such as the parliament and courthouses are “forbidden.” In its submission, MLSA shared with the Committee that whereas Saturday Mothers who wished to make a press statement before the September 21st hearing of their trial, were violently dispersed by the police, the group called “the Defense of the Islamic Movement” who are also known for their hate campaigns against LGBTİ+ were allowed to hold a demonstration on 21 December 2022 despite the fact that they were chanting “Death to infidels!” In the eyes of the authorities, Saturday Mothers/People were a bigger threat to public order. Therefore we believe these submissions - which have been prepared with the input/support of EIN - are one of the ways to be a crucial instrument to contribute to the long-winded implementation process of ECtHR judgments.

Another way to support the implementation of the Court’s judgments is through strategic litigation. In addition to individual legal support, MLSA files lawsuits which serve not only to protect freedom of assembly but also journalists who record the violations of freedom of assembly. One such example is the General Directorate of Security’s circular published on 27 April 2021, which attempted to ban audio-visual recordings during public demonstrations. Reviewing the lawsuit filed by MLSA, the Council of State ruled to suspend the execution of the circular on the grounds that it violated Articles 7 (legislative power) and 13 (restriction of fundamental rights and freedoms) of the Constitution.

Final remarks

Especially since the Gezi Park Protests, freedom of assembly in Turkey is a freedom only selected groups are allowed to enjoy. The blanket bans imposed in Batman and Van or on Saturday Mothers who have been arbitrarily banned from gathering at the Galatasaray Square where they had gathered since 1995 to demand justice for their loved ones who have been forcibly disappeared, are all made possible by the Law no. 2911. It is clear that the Law no. 2911 needs to be amended. However, the amendment of the Law requires a profound mentality reform.

However, in a political climate in which the president himself repeatedly defied the Court’s judgments, it would be naive to expect such a reform. Emboldened by such actions of high level politicians as well as other member states which continue to undermine the Convention system, the authorities do not even bother to provide accurate statistics which would clearly demonstrate that the application of the law is not the problem. 

Therefore the Committee should insistently demand Turkey to amend the law and should supervise the implementation of the Court’s judgment in the Oya Ataman Case more frequently. Also important, the Committee should take individual examples such as Saturday Mothers into consideration and demand explanation on these symbolic cases. The ongoing legal harassment of Saturday Mothers as well as arbitrary restrictions imposed on them would provide the Committee with a crystal clear picture that Turkey is trending backwards with regards to freedom of assembly. 

The indignity of French prisons: Using ECtHR judgments as a lever for action

By Prune Missoffe, Head of Analyses and Advocacy, and Nicolas Ferran, Head of litigation, at the French section of the International Prison Observatory (OIP-SF)

Prune Missoffe, ©OIP-SF

Nicolas Ferran, ©OIP-SF

You can also find the original French version of this article here.

From the litigation campaign to the condemnation of France

Photo by Marco Chilese on Unsplash

In its judgment JMB and others v. France of 30 January 2020, the European Court of Human Rights (ECHR) condemned France on the basis of Article 3 of the European Convention because of the indignity of its prisons. Noting that "the occupancy rates of the prisons concerned reveal the existence of a structural problem", it ordered the national authorities to adopt general measures to guarantee prisoners dignified conditions of detention, in particular by ensuring the "definitive reduction of prison overcrowding". The ECHR also recognised the violation of Article 13, sanctioning the absence of an effective domestic remedy to remedy these detention conditions contrary to human dignity. In particular, it underlined the ineffectiveness of the emergency proceedings that could be brought before the administrative judge, and in particular of the interim relief procedure.

This conviction was the result of a litigation campaign conducted since 2015 by the French section of the International Prison Observatory (OIP-SF) in reaction to the inaction of the public authorities. In total, some forty applications targeting seven institutions were filed with the ECHR. The aim of this campaign was certainly to obtain a conviction of France but, above all, the consequences that could be drawn from such a conviction. With regard to Article 3, recognition of inhumane conditions of detention would force the government to reorient its penal policy towards less recourse to imprisonment. As for the recognition of a violation of Article 13, it would open up the possibility of requiring the domestic administrative courts to review the conditions of detention, which in turn would exert pressure on the national authorities.

From the conviction to the monitoring the (non-)execution of the judgment

In the litigation and advocacy strategy put in place by the IOP-SF following the conviction of France, the monitoring of the (non-)execution of the judgment can be divided into two parts.

Giving the Court's injunctions a central place in the public debate

The first is advocacy: the aim is to use the findings and injunctions formulated by the ECHR - which require the State to act - to promote progress. The OIP-SF is thus working to make the JMB ruling a reference decision in its positions and statements to institutions, politicians and the media, but also to other actors in the prison-justice world. The fight against prison overcrowding has been at the heart of all legislative and parliamentary activity: the Finance Act, the parliamentary enquiry into the dysfunctions of prison policy, the information mission on the prison integration and probation services, and the examination of France by the Parliamentary Assembly of the Council of Europe. Sometimes central, it is almost always mobilised because it is intrinsically linked to the respect of all the rights of detainees and the penal and prison policies implemented.

Advocacy actions must also work to prevent the judgment from being poorly executed, i.e. the government from providing the wrong solutions. These include the policy of building more and more prison places. This has been a constant for over thirty years, and in reality it means that more and more people are being locked up. The challenge is therefore to make the judgment and its injunctions central, while countering the perverse effects that governmental responses can have.

It also seemed essential to bring together the strengths of civil society organisations in order to multiply their voices, which are as many ways of soliciting the State, but also to carry a common voice. Numerous organisations from the prison-justice world, which regularly engage in dialogue through an informal network, have thus taken up the judgment. This was done both in their own advocacy and in collective initiatives, for example in the context of the vote on the 2022 prison budget, or in a coordinated manner, such as in the context of the hearings requested by the aforementioned parliamentary commission of enquiry. The OIP-SF has also set up an informal working group to monitor the execution of the judgment, bringing together lawyers' and magistrates' unions, an association of lawyers defending the rights of detainees, and the national organisation representing French lawyers. It has made it possible to send several additional contributions to the Committee of Ministers of the Council of Europe in the context of the first review of the execution of the judgment.

In their decision of September 2021, the Ministers' Deputies found that the judgment was indeed not executed[1]. In turn, they suggested that increasing the prison population was not a satisfactory solution and called on the authorities to adopt general measures and, in particular, "new legislative measures that would regulate the prison population in a more restrictive manner". The ministers' delegates also heard concerns about the limitations of the new remedy and asked the authorities to comment on them.

As a member of the National Consultative Commission on Human Rights, the OIP-SF was also closely involved in the drafting of an "Opinion on the Effectiveness of Fundamental Rights in Detention", which was considered in the light of the condemnation by the ECHR and adopted in March 2022. Finally, it joined forces with Amnesty International to co-sign the report "Dignity in prison. What is the situation two years after France's conviction by the ECHR?” published in June 2022.

Other institutions, such as the Contrôle général des lieux de privation de liberté, the French independent administrative authority of reference on prisons, have also used this condemnation as a reference point in their observations of the conditions of detention and the policy adopted by the French authorities, but also to refer directly to the Minister of Justice. In its report published in June 2021, the Committee for the Prevention of Torture (CPT) recalled the findings and injunctions of the ECHR before calling for the adoption "within six months, [of] a global strategy for penal and penitentiary matters [...] in order to drastically reduce the occupancy rate of French prisons and to offer dignified conditions of incarceration". In its aforementioned decision of September 2021, the Committee of Ministers in turn relied on the CPT's recommendations to urge France to adopt "a coherent long-term strategy to reduce the occupancy rate of prisons".

Parliamentarians are also taking up the issue. In September 2022, fifteen senators tabled a bill "aimed at putting an end to prison overcrowding" which introduced a binding prison regulation mechanism prohibiting incarceration beyond the number of operational places. The "urgent need for the introduction of such a mechanism" is mainly motivated by the European condemnation. The proposal also aims to include this mechanism in a more global reflection on how to develop a deflationary policy. The explanatory memorandum also refers specifically to the ECHR's recommendation to revise the method of calculating operational places so that, in addition to the size of cells, it takes into account many other aspects of daily life and care in prison.

In the wake of this, some MPs are considering tabling a similar proposal in the National Assembly, again after discussions with civil society actors who monitor the execution of the judgment.

Making the conviction a new litigation lever

The second strategic aspect of monitoring the judgment is to make it an anchor point for documenting blockages and shortcomings with a view to taking future legal action. The results of which in turn feed into the advocacy.

A few days after the judgment was published, the OIP-SF was already taking new legal action. With other organisations, it obtained from the Court of Cassation that it took into account, for the first time, the issue of the dignity of detainees, and then from the Constitutional Council that it censured several legislative provisions. These jurisprudential developments forced the legislator to adopt a law in April 2021 opening a new legal remedy for detainees to challenge their undignified detention conditions, as demanded by the ECHR. Advocacy then took over with the production of a collective note addressed to parliamentarians and presented during a hearing. The association indicated the progress made but, above all, the limits of the proposed system, particularly with regard to the requirements imposed by France's conviction. Some of the points of concern raised led to the formulation of amendments to the proposed law by parliamentarians.

Following the adoption of this mechanism, the OIP-SF continued to work in concert with those involved in the justice system in order to gather information on the use made of it via a questionnaire for lawyers, to promote its use via the production of a document for lawyers in December 2021, and to evaluate its effectiveness. To date, the feedback shows little use of the new remedy, probably due to the malfunctioning of the system denounced during the legislative debates. A training course for lawyers has been launched in partnership with the Conseil national des barreaux.

At the same time, the OIP-SF is pursuing its litigation activities with the aim of forcing the judge, this time an administrative judge, to participate in the improvement of detention conditions. In its condemnation of France for violation of Article 13, the ECHR pointed out the limited scope of the power of injunction conferred on the interim relief judge by the case law. The latter considered that he was not entitled to pronounce structural measures such as the renovation of buildings or the reinforcement of the means of the integration and probation services. Therefore, only limited, one-off measures, usually with little effect on the conditions of detention, could be obtained. The Court then noted that the interim relief judge made his intervention dependent on "the means available to the administration" by authorising the latter to invoke "the scale of the work to be carried out or its cost to obstruct the interim relief judge's power of injunction". Finally, the Court emphasised that the execution of the injunctions issued was subject to "delays that do not comply with the requirement of diligent redress" and that these prescriptions "do not always produce the expected results". These are all litigation levers at the level of national courts that the OIP-SF has used to try to force the authorities to strengthen the procedures for monitoring the execution of the judgment. The inertia of the administrative judge led the association to refer again to the ECHR in September 2022 on the non-execution of the interim orders.

The inaction of both the legislator and the executive will thus feed into the next review of the execution of the judgment by the Committee of Ministers of the Council of Europe scheduled for the end of the year. In conclusion, JMB is a very important step in the recognition of prison overcrowding and the indignity of prison conditions, and the monitoring of the execution of this judgment allows us, in a dynamic approach, to pursue litigation and advocacy with a view to obtaining further progress

[1] https://oip.org/analyse/le-conseil-de-leurope-tacle-linertie-de-la-france-face-a-la-surpopulation-carcerale/

Legal gender recognition in Lithuania: steps towards ensuring respect for the private life of transgender persons

By Andrė Jurgaitė Project coordinator, Human Rights Monitoring Institute, Chairperson of Trans Autonomija

Andrė Jurgaitė

Introduction

On 31 December 2021, Lithuania’s Minister of Justice signed an order which introduced, for the first time, an administrative procedure for transgender persons to change their legal name at the civil registry office, upon presenting proof of a psychiatric ‘transsexualism’ diagnosis. Before this, due to a legal gap in Lithuanian legislation, transgender persons could only change their legal name, together with gender marker and personal identification number, through a court procedure.

This is one of the positive steps forward taken by Lithuanian authorities since the European Court’s of Human Rights (ECtHR) judgment in the case L v Lithuania (2007). However, despite ongoing efforts, to this day legislation regulating legal gender recognition has not been adopted, leaving many transgender persons in Lithuania in a gray area of legal uncertainty.

L. v. Lithuania judgment and implementation

Although the Lithuanian Civil Code recognizes the right of an unmarried adult person to change their gender, it does not lay out the conditions and procedure for legal gender recognition.

In 2007, the Human  Rights Monitoring Institute (HRMI) submitted an application on behalf of L. to the European Court of Human Rights, alleging a violation of a right to respect to private life. In its judgement in the case L. v. Lithuania, which became final in 2008, the ECtHR held that by failing to pass the necessary legislation regulating the conditions and procedure for gender reassignment surgery and legal gender recognition, the State of Lithuania did not fulfil its positive obligation to ensure respect for private life (violation of Article 8 of the European Convention on Human Rights).

Since the judgment became final, HRMI, together with the National LGBT Rights Organization LGL have been actively involved in monitoring and promoting the implementation of the L. v. Lithuania judgment.

Vilnius Pride 2020, Andrė Jurgaitė

For example, in 2013, HRMI, together with LGL, ILGA-Europe and Transgender Europe (TGEU) submitted a briefing under Rule 9.2 of the Committee of Ministers for supervising the execution of ECtHR  judgments, requesting that, if there is no rapid progress with implementation, consideration be given to monitoring the case under the enhanced supervision procedure. In 2014, the Committee of Ministers of the Council of Europe transferred the case to the enhanced supervision procedure.

In 2017, HRMI and LGL representatives also participated in the working group, established by the Ministry of Justice, responsible for the drafting of the Draft Law on Recognition of Gender Identity. That same year, LGL was also helping a number of transgender persons change their documents through domestic courts, which facilitated the evolution of domestic case law.

The involvement of the civil society in the monitoring and promotion of the implementation process has definitely aided in achieving some progress in ensuring the rights of transgender persons, even when political will in the State institutions was lacking.

While there had not been much direct involvement of the Lithuanian transgender community in the dialogue with State institutions until recently, the last few years have seen more active organizing among transgender persons in Lithuania. At the end of last year, the first trans-led trans rights and mutual support association “Trans Autonomija” was founded. In April 2022, “Trans Autonomija”, together with TGEU, HRMI and LGL, also drafted a joint submission based on Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and in response to the updated action plan on the execution of the judgment in the case L. v. Lithuania.

Domestic case law – filling the legal gap

Since 2017, Lithuania’s domestic courts have developed case law according to which one’s gender identity can be legally recognized through a court procedure, main requirements for it being a psychiatric diagnosis and the applicant’s self-identification with a particular gender. No surgery or medical sterilisation is required. However, this judicial procedure for legal gender recognition is not accessible to many transgender persons, due to both material and procedural factors – including the psychiatric diagnosis requirement, the costs of legal representation, lack of information on the court procedure and the legal implications after a positive court decision, etc.

A positive aspect of the domestic case law is that it is dynamic and changing – for example, despite the fact that the Civil Code only mentions the possibility of gender reassignment for adults, in April 2021 a request submitted on behalf of a minor was also granted.

Implementation efforts by the government

In 2017, a Draft Law on Recognition of Gender Identity was prepared by the Ministry of Justice; however, it received strong opposition from a group of Members of the Parliament (MPs), who in response registered a draft amendment to the Civil Code that would prohibit gender reassignment. Due to this backlash and a lack of political will, the draft law never reached the Parliament.

However, since then some positive steps forward have been taken by the Lithuanian authorities. In 2019-2020 the ‘transsexualism’ (F64.0, ICD-10) diagnosis was removed from the list of diseases precluding taking up certain legal positions. In 2020, amendments to the orders of the Minister of Education, Science and Sports were adopted, enabling transgender persons who had undergone the process of legal gender recognition to amend entries in their diplomas and education certificates.

On 9 March 2022 an updated action plan on the L v Lithuania case was submitted by the Lithuanian government. In it, it is stated that “among the legislative priorities in the programme of the new Government the preparation of the legal acts aiming to guarantee the execution of the judgments of the European Court of Human Rights is included”, and the legal acts necessary for the execution of the Court's judgment in L. v Lithuania case must be prepared by the end of 2023.

The updated action plan states that the necessary amendments of the Civil Code with a view of removing the existing legal gap regarding legal gender recognition are being prepared. The draft diagnostic and health care protocol for transgender persons has been submitted for consultations and is currently also being reviewed. It will not concern gender reassignment surgeries, which are to this date still not available in Lithuania, but it will regulate the necessary healthcare services “in the context of psychiatric, psychological assistance and hormone therapy”.

New administrative name change procedure for transgender persons

The already mentioned amendments to the legal name change procedure, introduced by the Ministry of Justice of Lithuania, came into force in February 2022. As Lithuanian names are strictly gendered and must correspond to an individual’s legal gender, the option to change one’s legal name into one associated with a different gender is an important part of social transition for trans persons in Lithuania. However, to change one’s gender marker and personal identification code, which also indicates the person’s legal gender, a court procedure is still necessary. As this change is very recent it is difficult to say what difficulties, if any, may arise for a person whose legal name does not correspond to their legal gender.

As for the requirements, only adult, unmarried persons who are able to present a certificate issued by a Lithuanian healthcare institution, or by a healthcare institution of a Member State of the European Union, on the diagnosis of “transsexualism”, to the civil registry office, are able to change their names through this procedure.

Since this new administrative procedure entered into force, at least five applications have been granted. “Trans Autonomija” has received testimonies from three transgender persons who applied for a name change through the new procedure – two persons who had a positive outcome, and one who received a notification from the civil registry office that their request was not granted.

The two persons who got a positive outcome said that they were currently waiting for new ID documents. One of them noted that even though they already had the psychiatric diagnosis, they had to request a different form to be filed by the healthcare institution in order to access the new name change procedure. They have also mentioned that other than receiving an automatic email telling them that their request has been granted, there was no follow-up or further instruction on what further steps needed to be taken afterwards to apply for new ID documents, if any. Eventually they went to the Migration office (which is responible to issue new documents after the name has been changed at the civil registry office) and were able to successfully apply for new documents to be issued.

The third person who applied for a name change at the civil registry did not have their request granted due to the requirements regarding the medical certificate concerning the ‘transsexualism’ diagnosis. As only a specific form (form 046/a) of a medical certificate is accepted as proof of the ‘transsexualism’ diagnosis (if issued by a Lithuanian healthcare institution – certificates from other EU members’ healthcare institutions are also accepted), a different form/type of certificate with the same diagnosis was not accepted, they said.

Diagnosis requirement

This last example illustrates one of the many issues with the diagnosis requirement – currently there is no uniform and transparent diagnostic procedure, which can be an additional obstacle to legal gender recognition and/or legal name change. As long as the diagnostic and health care protocol is not approved, the diagnostic process varies from specialist to specialist, with some issuing a diagnosis after one or two visits, and others requiring additional tests and visits, which can prolong the whole process to take a year or longer.

In December 2021, a roundtable discussion on legal gender recognition took place, organized by the Council of Europe SOGI department together with the Lithuanian Ministry of Justice. During it, members of the trans community expressed their worries that the new diagnostic and treatment protocol for ‘Gender Identity Disorder’ could possibly prolong and make more difficult the diagnostic procedure for accessing the psychiatric diagnosis, which is currently needed for both medical transition procedures and legal gender recognition. Both the members of the trans community and the representatives of the Ministry of Health agreed that it is important to ensure that the draft diagnostic and treatment protocol for ‘Gender Identity Disorder’ does not make it more difficult to access the diagnosis currently needed for legal gender recognition, as well as medical transition procedures.

Conclusion

According to Recommendation CM/Rec (2010)5 of Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity by Council of Europe Member States, CoE member states “should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way”. Unfortunately, at the moment legal gender recognition for transgender persons in Lithuania is neither quick nor transparent or accessible.

While the newly introduced administrative legal name change procedure demonstrates the willingness of the Lithuanian government to guarantee the execution of the ECtHR judgment in the case L. v. Lithuania and ensure respect for the private life of transgender persons, it is far from sufficient.

The legislation that would regulate the administrative procedure for the legal gender recognition and ensure access to the necessary medical transition procedures has not been adopted yet. The draft diagnostic and health care protocol for transgender persons, which would regulate the diagnostic procedure and access to hormone replacement therapy, is supposed to be adopted soon. As for legal gender recognition, while the Ministry of Justice has been preparing relevant draft legislation, in the action plan in the case of L. v. Lithuania, it is mentioned that the implementation of this measure has been postponed due to the ongoing efforts to introduce into the legal system of Lithuania the institute of civil partnership. In the previous attempts to introduce such legislation, lack of support in the Parliament and lack of political will have proved to be the main obstacles.

Hopefully the current efforts to ensure respect for the private life of transgender persons in Lithuania will be successful, and Lithuanian authorities will continue to increase efforts to meaningfully involve the civil society representing transgender persons in the relevant processes.

Implementation campaign in Russia is going on despite persecution

By Tatiana Chernikova, a lawyer at HRC “Memorial”,

Aleksandra Chilikova and Denis Shedov, lawyers at OVD-Info

Introduction

From April 2020 Russian NGOs are undertaking a campaign in support of implementation of the ECHR’s judgment “Lashmankin and others v. Russia” concerning the systemic problems with the freedom of assembly in Russia. During this campaign the leading Russian NGOs made three submissions to the Committee of Ministers under Rule 9.2 on the implementation of the general measures. The NGOs also submitted requests with the proposals of the reforms to the Russian national institutions including the Ministry of Justice, federal and regional Ombudsmans on human rights, the Presidential Council on human rights, the regional parliaments. Some positive results have been achieved, for instance the changes in several restrictive regional laws.   

At the same time Russian law enforcement agencies replied to this campaign and other activities of the NGOs by persecution of several NGOs.  The statement below describes two alarming cases of persecution of Russian human rights activists for their interaction with the Council of Europe institutions, namely, OVD-Info and HRC Memorial projects.

Prosecution for the implementation campaign

OVD-Info was included in the registry of foreign agents on September 29, 2021. These registries are maintained by the Ministry of Justice. The project appealed that decision and filed an administrative claim to be excluded from the registry. Ministry objected and expressly stated that OVD-Info is engaged in political activities, which, among other, are expressed in ‘public appeals to state bodies and other actions that affect the activities of these bodies’ and ‘dissemination of opinions on decisions made by state bodies and their policies’. These activities are carried out in the form of ‘reports on the problems of freedom of speech and assembly, including joint reports with HRC Memorial to the Council of Europe, with a description of problems in Russian legislation and a detailed list of recommendations for changing it’. The engagement of the project in these activities is one of the main grounds of inclusion to the foreign agents list. The same position was later repeated in the decision of Zamoskvoretsky District Court of Moscow on November 11, 2021. Moreover, on December 25, 2021, OVD-Info encountered the blocking of their website. It was blocked at the request of Russian state media watchdog Roskomnadzor on the basis of a Court, which recognized the work of the project ‘aimed at promoting terrorism and extremism.’ The court also ruled to remove the project’s accounts from social networks on the same basis.

At the very end of the year, the Russian courts of first instance adopted the decisions about the liquidation of  International Memorial and Memorial Human Rights Center, two of the biggest and oldest Russian NGOs. The courts referred to the repeated violations of the ‘foreign agents’ law. Currently the NGOs are appealing these decisions. Although the courts referred only to the ‘foreign agents’ law as a ground  for liquidation of Memorials the Prosecutor’s Office also claimed that Human Rights Center Memorial had been justifying extremist  and terrorist activities. The Prosecutor’s Office argued that Memorial had included several persons convicted for extremism and terrorism to their list of political prisonners. The prosecutor evaluated these activities as ‘pretentious promotion of provocative materials on human rights issues, which are used to destabilize the political structure of the Russian Federation’. However HRC Memorial is maintaining its list of political prisoners on the basis of the criteria elaborated in the PACE resolution 1900 (2012). This means that Memorial includes a person in this list only if it is persuaded that his activities were non violent and his prosecution was conducted in violation of human rights law and for political grounds. Memorial also directly says that the inclusion of a person in this list does not mean that Memorial supports his views. Memorial always condemned extremist and terrorist activities in the sence of international law. This debate also indirectly pointed to the international advocacy activities by OVD-Info. The fact that in the hearing on the liquidation of the HRC Memorial, the prosecutor's office decided to speak out about a separate project OVD-Info and its international communications is itself quite daunting.

Memorials are researching the history of political repressions in the USSR and fighting against human rights violations in modern Russia. They dealt with human rights issues in Chechnya, the rights of migrants, supporting political prisoners, defending the rights of Russian citizens in the ECHR and has become one of the largest and most respected human rights organizations in the country, a symbol of Russian civil society, and their persecution is sending a clear threat message to all civil society and russian non-profit organizations. This is also a clear attempt to prosecute the organisations who work on the implementation of the ECHR’s judgments. 

Unprecedented crackdown on NGOs and independent media in Russia

These incidents took place in a context of unprecedented pressure on civil society in Russia: dramatically active expansion of foreign agents registries (in 2021, 131 items were added to the registries, including the largest independent media, civil projects without state registration, 70 individuals: journalists, activists, ecologists, and lawyers); the liquidation of NGOs and independent media; active use of anti-extremist and anti-terrorist legislation to combat political opposition and human rights defenders. All this was accompanied by permanent massive arrests of peaceful protesters and hundreds of politically motivated criminal cases.

We believe that this new wave of pressure on human rights defenders and independent media is quite daunting and alarming, not only for all Russian NGOs, but the whole Russian society. The discriminatory law enforcement of the legislation on the Foreign Agent Act has reached an unprecedented scale. Currently, the lists of foreign agents include 75 NGOs, 36 media outlets, 67 individuals, four unregistered public associations, including OVD-Info. In addition, 50 foreign NGOs have been declared undesirable in Russia. It is a potential signal of the end of the openness period, and the ability to freely exercise basic human rights. Without proper defence mechanisms, even for human rights defenders, we will go only downhill from here. 

European Parliament in its resolution 2021/3018 expressly called for the Member States to increase support for civil society, independent NGOs, human rights defenders, historians and independent media outlets active in Russia and urged the VP/HR and the Member States to take coordinated action with like-minded countries to increase international scrutiny of Russia’s restrictive laws, policies and actions and to persistently raise and condemn the restrictions of fundamental freedoms and human rights by the Russian authorities, including through high-level and public interventions.

Strengthening the coalition and horizontal ties

Despite the pressure from the government, there is a tendency of growing solidarity and coalition between human rights NGOs in Russia. On 18 January 2022, 11 NGOs and human rights projects collaborated and filed a joint submission to the Committee of Ministers regarding implementation of the general measures in the case of Lashmankin et al. v. Russia. Seven organizations out of these 11 filed such a submission for the first time, which shows that more institutions become involved in this dialogue. 

On 26 January 2022, 4 organisations (OVD-Info, Moscow Helsinki Group, Committee against Torture, Public Verdict) filed reports and requests regarding the freedom of assembly situation in Russia directly to the Russian General Prosecutor, the Human rights ombudsman and the President’s Council on human rights. 

We hope that expansion of horizontal ties between human rights institutions will help to ensure the productive communication between the government and civil society. 

Conclusion 

On the one hand, all described above shows how the conditions in which Russian NGOs work are hard. It also shows that Russian law enforcement agencies are conducting a campaign against the most important Russian NGOs and those who work on the implementation of the ECHR’s judgments. On the other hand, the main NGOs are continuing coalition efforts for the implementation of the ECHR’s judgments and even this coalition is growing.

2022: A testing year for the Council of Europe and Turkey

by Ayşe Bingöl Demir, Co-director, the Turkey Human Rights Litigation Support Project

A warm goodbye to 2021 but what comes next?

The human rights community of Turkey was happy to leave behind the difficult year of 2021, but it also welcomed 2022 reluctantly. Because it is not possible to foresee how far -and where else- the non-stop back peddling of the AKP government in human rights, rule of law and democratic standards will go. Led by President Recep Tayyip Erdogan, the government’s adherence to an authoritarian regime, especially since the July 2016 coup attempt, has indeed become more fearless and aggressive over the last couple of years. The extent of the damage of this period to the country’s founding pillars -which already had had serious existential issues before- has caused is yet to be seen. The recent Human Rights Watch report, however, gives us a hint of what it looks like: Turkey’s human rights record has been set back by decades.

Not surprisingly, despite this extremely serious human rights, rule of law and democratic backsliding in the country, the reaction of the international community has been considerably limited. Turkey has a long-standing relationship with the EU, it is a NATO member and part of many UN monitoring mechanisms. Thus, the country has been one of the earliest members of the Council of Europe. The European Court of Human Rights, the most important guardian of the Council of Europe’s founding principles, has been determining individual applications from Turkey for over three decades. Moreover, the country has been an ally and trade partner of a number of western democracies, including the United Kingdom, Germany and the USA despite some setbacks in relations here and there.

In an ideal world, it would not be unreasonable to expect that a country that is part of a vibrant international relations circle would face consequences for its systemic failure to meet its international human rights obligations. But the case of Turkey is a clear illustration that we are far from experiencing the ‘ideal’ as none of these institutions or countries has so far taken an effective and meaningful stand to address the human rights situation in the country. This lack of proper response to the government stifling a whole population with its authoritarian practices has been seen as a contributing factor to the deteriorating situation.

A test case for the Council of Europe and Turkey: Osman Kavala

January 2022 and the months following might bring some changes to this worrying picture. Turkey’s notorious treatment of a prominent human rights defender, Osman Kavala, has become a key case -along with the case of jailed Kurdish opposition politician Selahattin Demirtaş- forcing the international community to review its stance. Mr. Kavala is a personal target of President Erdogan and has been unlawfully detained since November 2017 on bogus charges. Despite a strong judgment from the ECtHR on 10 December 2019 finding that his detention lacked legal basis (Article 5 of the European Convention on Human Rights), that it pursued the ulterior purpose of silencing him and deterring other human rights defenders (Article 18 in conjunction with Article 5), and that the Constitutional Court’s review of his complaints was insufficiently “speedy”(Article 5(4)), the Turkish authorities have been refusing to release him.

In Mr. Kavala’s own words, he is held behind bars because the President wants “to nurture the claim that the 2013 Gezi protests were a foreign plot to overthrow the government. In the absence of any tangible evidence on the matter, the fact that I opposed construction in the [Gezi] park, the reason for the protests, and therefore empathized with the protestors, as well as my relationship with the Open Society Foundation, which was established in our country with the support of George Soros, have become the sole basis of this conspiracy theory. The belief that Soros supported public riots in various countries became the official view in government circles after the failed coup attempt on July 15, 2016.”

After the ECtHR’s judgment became final in May 2020, the Council of Europe’s Committee of Ministers started its judgment implementation supervision process pursuant to Article 46 of the Convention. A coalition of human rights organisations, including the Turkey Human Rights Litigation Support Project, Human Rights Watch, and the International Commission of Jurists, has been actively participating in and contributing to the procedure before the Committee by way of their Rule 9.2 submissions (here, here, here and here) and advocacy efforts. Mr. Kavala’s lawyers have also been regularly updating the Committee about the developments before the domestic courts in their Rule 9.1 submissions. EIN has been playing an instrumental role in the coordination of the efforts and ensuring that the assessments of the stakeholders reach the correct address.

The Committee so far adopted eight decisions and two interim resolutions (here and here) repeatedly calling on Turkey to release Mr. Kavala immediately, to conclude the criminal proceedings against him in line with the Court’s findings and to take all necessary individual and general measures to implement the judgment in its entirety. Along with these steps, the Committee applied other tools to ensure Turkey’s compliance. These included: using stronger language in its criticism of Turkey’s failure; keeping the ongoing detention of Mr. Kavala on the agenda of its each regular and human rights meeting; inviting the Chair of the Committee and member states of the Council of Europe to raise the case with the Turkish authorities directly; and repeatedly emphasising its readiness to take all necessary steps to ensure implementation. Turkey’s response to this, however, has been using different evasive tools, arguments, and tactics to avoid implementation.

Turkey’s evasive judicial tactics to circumvent the ECtHR judgment

Through our joint submissions to the Committee, indeed, as a coalition of NGOs, we identified and drew the attention of the Committee to a number of evasive judicial tactics Turkey has adopted to circumvent the ECtHR judgment, most importantly to avoid its obligation to release Mr. Kavala. Examples of these tactics have included, but are not limited to; (1) issuing a ‘’sham’’ release order while preventing the actual release by issuing another arrest and detention order; (2) initiating multiple criminal proceedings on the same or similar factual and legal grounds which were already reviewed by the ECtHR and arguing that they were ‘new’ grounds to justify further detention orders; (3) issuing chain detention orders given in relation to either the same facts and acts re-classified under different articles of the Penal Code or by re-activating other files initially having no link to Mr. Kavala; (4) making the procedures complex and hard to follow by the Committee, e.g. by adopting a number of unwarranted joinder or dis-joinder decisions and in that way merging or disjoining several voluminous files; and (5) expediting proceedings on need basis to gain the desired result e.g. expediting appeal proceedings.

These strategies have been used by the government to serve multiple purposes: first, to ensure Mr. Kavala remains behind bars no matter what happens at domestic or international level; second, to falsely argue before the Committee that the individual measure of release required by the judgment was in fact implemented; third, to claim that Mr. Kavala’s ongoing detention did not fall within the scope of the Court’s judgment; and fourth, to argue that his ongoing detention was in the scope of ‘new’ charges or cases that were not addressed in the Court’s judgment.

These arguments put forward by the government in lengthy submissions forced the Committee to make a detailed determination, each time, of the developments in the domestic proceedings and measure them against its mandate and the scope of the Court judgment. The Rule 9.2 submissions of the NGOs and Rule 9.1 submissions of Mr. Kavala’s lawyers were, therefore, vital in providing the Committee with the necessary explanation, information and expert analysis on the developments and the government’s claims.

Another striking factor we underlined in our submissions to the Committee has been the complete ignorance of the domestic courts towards the ECtHR’s judgment, more particularly, the Strasbourg Court’s thorough evaluation of the accusations and state of evidence against Mr. Kavala. This ignorance did not only come from the first instant courts and the prosecutorial authorities but the appeal courts and the Constitutional Court as well. Along the process, the government representatives have never stopped using their populist discourse claiming that the ‘westerns powers’ had a political agenda and that the Court judgment was not binding but advisory in nature. The President also continued his public speeches blatantly targeting Mr. Kavala to consolidate his political agenda. We also saw examples of direct interference with the judicial conduct by the government which included promotion of prosecutorial actors in the case to higher judicial roles (one to Deputy Minister of Justice and one to a member of the Constitutional Court).

The Council of Europe Commissioner for Human Rights criticised this picture strongly in a statement dated September 2021 expressing that Mr. Kavala “is a victim of a justice system that has been used to silence  human rights defenders, lawyers and journalists and displayed unprecedented levels of disregard for the most basic principles of law, such as the presumption of innocence, no punishment without crime and non-retroactivity of offences, or not being judged for the same facts again.”

Turkey to become the second Council of Europe member facing infringement proceedings

It was against this background that the Committee of Ministers had to conclude in its 30 November-2 December 2021 session that ‘Turkey is refusing to abide by the final judgment of the Court’ in the case of Mr. Kavala. The Committee made it clear that if Mr. Kavala is not released by the Committee’s 2 February 2022 session, pursuant to Article 46(4) of the Convention, it will refer to the ECtHR the question of whether Turkey has failed to fulfil its obligation under Article 46(1) -the obligation to implement final judgments of the Court- particularly in respect of individual measures required in this case.

Launching infringement proceedings is a striking confirmation of Turkey’s flagrant disregard for the Council of Europe’s human rights and rule of law standards and democratic principles. It is one of the most serious measures the Committee can use against a member state under the Convention which has serious legal and political consequences. Turkey will potentially be the second country, after Azerbaijan, in the history of the Council of Europe against which this tool will be applied.

If the Committee refers the case back to the ECtHR and the Court concludes that Turkey failed to comply with its Article 46(1) obligation, more serious steps against the country might follow. This is of course if Turkey continues its refusal to release Mr. Kavala. This scenario might bring to the table of the Committee the sanctions of suspending Turkey’s Council of Europe membership or even expelling it from the Council pursuant to Article 8 of the organisation’s statute.

The decision of the Committee of Ministers to notify Turkey of its intention to launch infringement proceedings seems to not have much impact on the judiciary’s handling of the arbitrary proceedings against Mr. Kavala. As recently as 17 January 2022, an Istanbul Assize Court once again decided on the continuation of his detention. This came as a further confirmation of the appropriateness of the Committee’s decision as well as its fairness and necessity pursuant to Article 46 of the Convention and its past practices.

The Council of Europe must show its firm commitment to its founding principles

Some scholars share concerns over the potential consequences of such robust actions against Turkey and other member states. Accordingly, the government might react to the developments poorly and use this step as a pretext to further its ‘anti-Western’ political agenda which in turn might cause a further drift of the country from democratic principles. They argue that applying more soft tools and keeping an open dialogue might work better. I simply do not agree. A close look at the government’s practices, especially since the July 2016 coup attempt, clearly shows that such strategies have not been helpful in improving the situation in the country. In contrast, the inaction of the international community, including the Council of Europe institutions, has been presented by the government as a justification of its problematic actions and confirmation of their legitimacy. As a result, the government became more abrupt and reckless in the steps it has taken to consolidate its power and adopt its authoritarian agenda.

It must also be borne in mind that the founders of the Council of Europe and the drafters of the Convention and its subsequent amendments had foreseen that there might be instances where the state parties would not comply with their obligation to implement the ECtHR judgments. In response to this scenario, they put in place a mechanism and gave this mechanism tools to use to ensure implementation. Arguing that these tools must not be used in practice for potential consequences, despite the clear roadmap in the Convention and other relevant instruments, means a disregard to the Council’s very own rule of law principles.  

Finally, the situation in Turkey does not present an isolated case among the Council of Europe states. It is only one example of growing authoritarianism across Europe. There are several others, such as Russia, Azerbaijan, Hungary, and Poland, who have been going through similar fallouts from the Council of Europe’s founding principles. These countries are learning from each other, they tend to adopt similar policies and measure their next steps according to the challenges one other faces in the process. It is, therefore, crucial for the Council of Europe bodies -as well as individual countries and other international institutions- to show a firm stand and, when conditions are met, to use available political, legal and financial tools designated to be used for the circumstances they were designated for. A position otherwise has a potential, under the current atmosphere, to damage the fundamental values of the Council further and to bring the Council organs into an existential crisis.

Implementing political persecution judgments: Civil society advocacy efforts help put infringement on the horizon

Introduction

By Ioana Ilescu, EIN Law and Advocacy Officer

This blog piece aims to show how ongoing civil society advocacy for the implementation of political persecution ECtHR judgments in Azerbaijan, Russia and Turkey has been key in maintaining the international spotlight remains on these cases, slowly pushing progress forward, ensuring that the cases are not set aside and forgotten due to deceptive government arguments, and in evolving the Committee of Ministers’ approach to assessing the implementation of political persecution cases.

Backlash against human rights defenders and government critics

Photo: civicsolidarity.org

ECtHR judgments regarding the misuse of criminal law against human rights defenders and government critics have been piling up since 2013 in Azerbaijan – with the former Mammadov, now Mammadli group of cases -, in Turkey – with the cases of philanthropist Osman Kavala and opposition politician Selahattin Demirtaş (no. 2), and in Russia, with the case of opposition politician and anti-corruption activist Alexey Navalny.

The common thread behind these cases is the intention of the government to punish and silence its’ critics, whether they are opposition politicians, civil society activists, human rights lawyers or journalists.

Photo Credit: Council of Europe - Ilgar Mammadov

In Azerbaijan, opposition politician and activist Ilgar Mammadov, was arrested after having announced his candidacy for the presidency. Co-founder of the political movement Republican Alternative Civic Movement (REAL), Natig Jafarov, was arrested after having campaigned against the amendments to the Constitution proposed by the president. Human rights lawyers and civil society activists, Rasul Jafarov and Intigam Aliyev, were imprisoned following smear campaigns against them by State media reports, after having participated in a side event organised in the Council of Europe, delivering a report on human-rights abuses in Azerbaijan.  Electoral monitoring activist Anar Mammadli was arrested after having reported that the presidential elections had failed to comply with democratic standards. In other cases, civil society activists from the civic movement NIDA were arrested after having organised peaceful demonstrations, while others were arrested on false drug charges and subjected to ill-treatment in retaliation for having sprayed political graffiti on the statue of the former Azerbaijani president. The pattern continued with a new wave of arrests in March 2020.

In Turkey, opposition politician and leader of the pro-Kurdish Party, Selahattin Demirtaş, had had his parliamentary immunity lifted by authorities so he could be prosecuted for critical statements made as MP regarding the Kurdish issue in Turkey. He has been imprisoned since 2016. Philanthropist Osman Kavala has been imprisoned since 2017, accused of attempting to overthrow the government within the context of the Gezi Park events of 2013 and of attempting to overthrow the constitutional order within the context of the attempted coup in July 2016.

Photo credit: Evgeniy Isaev

In Russia, opposition politician and anti-corruption activist Aleksey Navalny has been imprisoned since January 2021, following a criminal conviction which the Court has already established to be based on an unfair trial and an arbitrary application of criminal law.

Intense civil society advocacy efforts in the past years have succeeded in raising the profile of these cases internationally, which led to a significant increase of diplomatic pressures for their implementation. At the Committee of Ministers level, these pressures have initially led to the first application of infringement proceedings under Article 46 § 4 against Azerbaijan, in 2019, which resulted in the release and acquittal of Ilgar Mammadov. Furthermore, the past year has seen a gradual increase in the use of ‘pre-infringement’ steps, as well as a positive evolution of the Committee of Ministers’ approach on political persecution cases. However, much more remains to be done to achieve implementation of these cases, ensuring both the release and acquittal of all applicants in political persecution cases, as well as the non-repetition of new similar cases.

Initial progress and challenges

While the Azerbaijani applicants (in the Mammadli group of cases) had been released from imprisonment following presidential pardons – as opposed to their Russian and Turkish counterparts which remain in prison to this day - all the applicants’ criminal convictions remained standing, leaving them with criminal records and unable to practice their professions or exercise their political rights. After a series of submissions to the Committee of Ministers highlighted the authorities’ inaction regarding the acquittal and the payment of just satisfaction in the cases of several applicants, in April 2020, Ilgar Mammadov and Rasul Jafarov were finally acquitted by the Azerbaijan Supreme Court. But for the other applicants, the situation has not been remedied.

As for the Turkish cases, implementation had proven to be even more challenging. In Kavala and Demirtaş, the Turkish authorities have been engaging in several evasive judicial tactics meant to circumvent the judgments’ implementation and maintain the applicants in detention[i], for example, by initiating multiple criminal proceedings against the applicants based on the same or similar factual and legal grounds, or by initiating chain detention orders.

In the case of Alexey Navalny, the Russian authorities had reopened the proceedings impugned by the Court, but reached the same conclusion and refused to quash the judgment. The government is now arguing that all individual measures have been implemented and that it cannot interfere in judicial activities or cancel the decision.

EIN support, civil society advocacy and positive developments

In October 2020, EIN set up an international alliance with five other international organisations – EHRAC, Amnesty International, International Partnership for Human Rights, Human Rights House Foundation and the Netherlands Helsinki Committee – with the intention of dialling up the pressure for the implementation of political persecution cases in Azerbaijan. The alliance issued joint public statement and submitted a joint Rule 9.2 submission, calling upon the Committee of Ministers to maintain the Mammadli group on the agenda of every upcoming CM DH meeting and to apply continuous and increased scrutiny for the implementation of both individual and general measures. In November 2020, EIN also organised a briefing to several delegations of the Committee of Ministers, during which applicant Rasul Jafarov and Prof. Philip Leach discussed the current problems of politicised prosecution and the need for sustained pressure by the Council of Europe.

Following these advocacy efforts, in its’ December 2020 decision in the Mammadli group, the Committee decided to “continue examining this group of cases at each of their human rights (DH) meetings, until all convictions are quashed”. Later, in March 2021, it issued a strong Interim Resolution, exhorting the Azerbaijan authorities to put an immediate end to the situation by ensuring “the quashing of the applicants’ convictions, their erasure from their criminal records and the elimination of all other consequences of the criminal charges brought against them, including by fully restoring their civil and political rights”.

Furthermore, since last year, EIN reached out and established contact with victims and legal representatives in political persecution cases, seeking to ensure that all victims of political persecution who have won cases in the last 3 years were represented and/or supported in the implementation process before the Committee of Ministers. EIN has provided support in engaging with the implementation process at the Committee of Ministers level to all main actors in these cases, by prompting, reviewing and advising on Rule 9 submissions.

In the Mammadli group, further submissions on behalf of individual applicants informed the Committee about ongoing developments, from the failure to pay full just satisfaction to all Azerbaijani applicants, to the refusal of the Supreme Court in Baku to respect the deadline for reviewing (and overturning) the remaining convictions. In the Mammadli group of cases, EIN provided support in making 15 Rule 9.1 submissions for the applicants in Rashad Hasanov and others, and in Ismayilova. Furthermore, EIN also provided advice on Rule 9.2 submissions made by the Election Monitoring and Democracy Studies Centre, and in several other Azerbaijani cases regarding shrinking civic spaces.

As regards the delays in paying just satisfaction, submissions made by Mr. Aliyev’s representatives pointed out that payments made to his account did not indicate in relation to which cases these payments had been made, as he was an applicant and lawyer in several judgments; his written inquiries to the government about this matter remained unanswered. Eventually, just satisfaction was paid to him, as well as to all other Azerbaijani applicants except two, which remain outstanding.

Another challenge occurred this year, when the Baku authorities argued that some of the convictions (of applicants in the Mammadli group of cases) had been expunged through the passage of time (6 years having passed since the pardon decree). With EIN support, concerned applicants showed in submissions that time-limit expungement of criminal records would not suffice to implement their cases, and that acquittal was still required. One significant positive development which followed as a result of these communications, was that the Committee of Ministers accepted this argument in its’ June 2021 decision, when it restated that, despite the expunging through the passage of time of the convictions of four applicants, “it is still of the utmost importance that all the applicants’ convictions are quashed in order to remove all the negative consequences of the abusive criminal proceedings”.

In the Navalnyye case, EIN has been providing updates on relevant developments to the main NGOs working on the case and Navalny’s legal representatives in Strasbourg, while also providing support in making a Rule 9 submission to the latter NGO in March 2021. Following submissions from the Centre de la Protection Internationale and the Human Rights Centre Memorial, in June 2021, the Committee of Ministers issued an Interim Resolution in the case, strongly urging the authorities “to release immediately Mr Aleksey Navalnyy”.

In the Kavala case, EIN has provided continuous updates on relevant developments to civil society organisations working on the case. Following ongoing pressure, in part through submissions made by Human Rights Watch, the Turkey Human Rights Litigation Support Project, the International Commission of Jurists and the applicant’s representative, the Committee of Ministers issued an Interim Resolution in December 2020, giving effect to the arguments that his detention under different charges was, in fact, based on the same facts and evidence and fell within the scope of the ECtHR judgment. It noted that ‘the information available to the Committee raises a strong presumption that his current detention is a continuation of the violations found by the Court’.

This approach was repeated in the Demirtaş case in March 2021, when the Committee of Ministers stated that the ongoing pre-trial detention of Selahattin Demirtaş, “on grounds pertaining to the same factual content, would entail a prolongation of the violation of the applicant’s rights as well as a breach of the obligation of the respondent State to abide by the Court’s judgment.” Since then, EIN has provided further support to the applicant’s legal representative in making a Rule 9 submission – while joint civil society submissions were also made in parallel. The latest decision on the case, in September 2021, went further, acknowledging that new prosecutions for similar statements made in the exercise of his function as member of Parliament, would be considered as part of that prolongation of the violation of the applicant’s rights.

This emerging approach shows that the Committee of Ministers is ready to recognize judicial tactics used for the circumvention of political persecution judgments, and to agree to maintain proceedings resulting from such tactics within the scope of the judgments.

Pressure for the implementation of political persecution cases was also maintained through briefings to Council of Europe delegates and European Union officials. In July 2021, EIN, in collaboration with the Netherlands Helsinki Committee, organized a briefing on cases involving victims of political persecution in Azerbaijan, Russia, and Turkey to officials from the Council of Europe Member States and the EU, with international experts, lawyers, and individual victims discussing the non-implementation of these judgments – and their wider impact. EIN also briefed members of the European Union’s External Action Service, in March 2021, prior to the EU-Azerbaijan human rights dialogue on the situation of political persecution cases in the country.

Furthermore, in view of the September 2021 meeting of the Committee of Ministers, further briefings were held on the Selahattin Demirtaş and Osman Kavala cases in September 2021, with experts from Human Rights Watch and the Turkey Human Rights Litigation Support Project providing insight about the different judicial tactics used by the Turkish authorities to circumvent the implementation of the judgments, calling for infringement proceedings.

Infringement proceedings on the horizon

The road to infringement proceedings is a very slow-moving process, which requires that many other ‘pre-infringement’ steps take place in advance. In their advocacy efforts, civil society organizations have been calling for infringement proceedings to be initiated in the Mammadli group again, as well as in the Kavala and Demirtaş cases.

In September 2021, the Committee of Ministers finally agreed to start giving effect to ongoing civil society requests on the Kavala case, and “expressed their resolve to serve formal notice on Turkey of their intention to commence these proceedings in accordance with Article 46 § 4 of the Convention at their 1419th meeting” in December 2021.

A positive ‘pre-infringement’ step was also taken in the Navalnyy case in September 2021, as the Committee of Ministers “invited the Secretary General to write a letter to the Minister of Foreign Affairs of the Russian Federation conveying deep concern about Mr Aleksey Navalnyy’s continuing detention”.

Progress was achieved in Demirtaş too, as the Committee of Ministers acknowledged that implementation also requires the removal of negative consequences of “criminal prosecutions in respect of statements made by him which would otherwise have been protected under Article 83 § 2 of the Constitution”. This was a positive development which signified that further criminal cases against the applicant - in respect of statements he made as a member of Parliament – would be considered to fall within the scope of the judgment.

Conclusion

While much more remains to be done to implement political persecution cases, the concerted advocacy efforts of international civil society have not only succeeded in preventing that these cases are forgotten, but have also ensured that they are not nullified by ongoing government efforts to either indefinitely postpone or circumvent implementation.

The progress made in Kavala and Demirtaş in September 2021 - which sets infringement on the horizon for Turkey, on one hand, and, on the other hand, also shows that the Committee of Ministers is not fooled by the various judicial tactics used by authorities - represents a significant step forward in the implementation process of these judgments, as well as a noteworthy evolution of the Committee of Ministers’ jurisprudence on political persecution cases, reflecting the work of civil society and ensuring that the ECtHR system can still be as effective it is meant to be.

[i] https://www.einnetwork.org/blog-five/2021/9/7/ein-civil-society-briefing-hungary-turkey-amp-russia

Change for the Implementation of Judgments of the European Court of Human Rights

EIN Director George Stafford

It is now three years since the European Implementation Network became fully operational. During that time, civil society’s work on the implementation of European Court of Human Rights Judgments has hugely increased. However, it is important to also note how the work of the Council of Europe is developing – and what this means for us.

Strategic Prioritisation of the Council of Europe 

At the start of 2021, the Secretary General of the Council of Europe circulated a strategy document to the Strasbourg delegations. This listed the priorities of the Council of Europe for the next four years, 2021-2024. The number one priority is the implementation of judgments of the European Court of Human Rights.

For everyone working on this issue, this strategic prioritisation is very welcome news.

It is not yet clear exactly what additional activities will happen in practice. However, it seems likely they will include more co-operation projects aimed at promoting implementation through joint events and activities between the Council of Europe and national governments. There is also likely to be an increased focus on implementation during high-level visits.

EIN has contributed to this prioritisation through our mapping of the scale of non-implementation; network members promoting the issue on television (see here, here and here) , in newspapers (see here, and here), and on social media; EIN reporting on overly-optimistic Council of Europe implementation statistics; and briefings to members of the Committee of Ministers about the overall state of implementation.

What this means for civil society

First of all, it is important to welcome the increase in Council of Europe and government activity – and be proud that the work of civil society has contributed to this. However, we also need to recognise the opportunities and risks involved.  

The next four years are likely to be critical for ECtHR implementation. The Council of Europe is likely to increase efforts to meet internal targets of bringing down the number of pending leading cases by a certain amount every year. Governments will be encouraged to submit more and more Action Plans/Reports.

It is therefore a time when many important implementation reforms will be drafted – and many cases will be closed. Members of the network might worry that, without adequate civil society involvement, some reform plans will be insufficient – and cases might be closed prematurely.

It is encouraging that there will be a greater focus on implementation. However, civil society will want to ensure that this focus leads to real changes.  

Looking ahead

We would therefore encourage the network to be particularly active in ECtHR implementation during this time. This will involve responding to important case developments – but also planning ahead. As all EIN members will know, effective work on implementation can take a lot of time. We therefore hope that the likely need for additional implementation work can be taken into account in the drafting of workplans and fundraising proposals for the years ahead. This could include EIN members co-operating in joint bids for large-scale fundraising calls.  

We also hope that our members and partners can increase their impact through promoting implementation work in their own country. I take this opportunity to highlight a recently published EIN guide on Implementation Hubs. This showcases the work of organisations across our network in engaging other groups, in order to make a bigger impact on implementation. We hope that it can serve as a source of inspiration for your activities going forward. As ever, the EIN Secretariat stands ready to assist you in your important work. The increased Council of Europe activity provides a welcome opportunity. We encourage our network to seize it!

Russian civil society for freedom of assembly and the ECtHR Judgment implementation

By Tatiana Chernikova, a lawyer at HRC “Memorial”

and Denis Shedov, a lawyer at OVD-Info

The non-implementation of the ECtHR’s judgments is a very serious problem for Russia. According to the EIN data 221 leading cases against Russia are pending implementation. This represents 88% from all Russian leading cases from the last 10 years. The average time leading Russian cases have been pending implementation is 7 years and 6 months. In all Council of Europe’s countries except Azerbaijan the situation with the implementation of the ECtHR judgments is better than in Russia.

The reasons for non implementation of the ECtHR’s judgments by Russia are complex and are due to several factors.

Firstly, the mechanism of the implementation of the ECtHR’s judgments itself is not very strong. The ECtHR as a general rule does not indicate particular measures of implementation in its judgments except the payment of the compensation. It is up to the States to define the measure of implementation needed in each case and to report about it to the Committee of Ministers. So this process highly depends on the motivation and professional skills of the national authorities. Then the Committee of Ministers often does not give detailed recommendations to the authorities.

Secondly, Russia does not have a specific national institution responsible for the implementation of the ECtHR’s judgments. The Ministry of Justice is informing the other agencies about the ECtHR’s judgments and is collecting the information from them about the implementation. However the Ministry of Justice does not influence the other national agencies to implement the judgments.

Thirdly, some of the ECtHR’s judgments are politically sensitive for Russia as they contradict the politics of the Russian authorities. This particularly concerns the cases on freedom of assembly. Russia’s politics of the last years consists in numerous restrictions of the freedom of assembly. The ECtHR’s judgments at the opposite gave a large number of rights to the participants to the peaceful assemblies.

Special context for freedom of assembly in Russia

The situation with freedom of assembly remains alarming in Russia. Thousands of people are detained during  peaceful assembly yearly. For instance, 3637 people were detained at public events in Moscow last year. At the same time, Russian courts considered 4974 cases of violation on the procedure for holding public events in 2019. Usually, protesters faced fines and arrests in domestic courts. The total amount of fines for participation in peaceful assemblies in 2015-2019 was more than €2 millions. In 2014, the Russian parliament passed a special criminal article, which provides for punishment of up to 5 years in prison for repeated participation in protest gatherings or even solo demonstrations.

Currently, the Russian parliament discusses new bills to restrict even more freedom of assembly. Particularly, it is proposed to make gatherings’ authorisation more complicated, to ban all gatherings near buildings occupied by emergency services, including police and the Russia’s FSB security agency, to prohibit foreign and anonymous funding for gatherings, to introduce new restrictions for solo demonstrators and journalists, as well as to increase punishments for participants of gatherings in general. Some of these bills have been already passed in their first reading.

At the same time, since the ECtHR extended its jurisdiction to the Russian Federation in 1998, by early 2020 it has declared violations of the freedom of assembly by Russian authorities in 45 cases. This is almost 16% of all cases where the ECtHR has ever declared a violation of the freedom of assembly in 47 Council of Europe’s countries. In 2020, the ECtHR passed at least 20 judgments holding that there has been a violation of Article 11 of the European Convention by the Russian authorities. 9 leading cases of the ECtHR declaring violation of the freedom of assembly by Russian authorities are still not executed.

One of such leading cases is the case of Lashmankin and Others v. Russia, concerning issues of restrictive authorization procedure for public events, legislative bans on holding public events at certain locations, mass detention and arrests of peaceful demonstrators, excessive security measures taken by the police during public events in Russia, etc.

Taking into account the urgency of these issues for Russian society, the Human Rights Centre “Memorial” and the Human Rights media project OVD-Info launched a campaign to implement this ECtHR Judgment.

Campaign: steps, challenges and results

On 20 April 2020 “Memorial” and OVD-Info assisted by EIN prepared a Rule 9.2 submission to the Committee of Ministers on the implementation of the general measures in Lashmankin’s case. In this submission the NGOs provided a huge evidence of the violations of the right to freedom of assembly occurred in Russia after the Lashmankin’s case. They also described the problems with Russian law and practice. This includes the large possibilities for Russian authorities to not authorise peaceful assemblies, the contradictions between federal and regional laws, the lack of statistics on the number of authorised and non-authorised assemblies by the authorities,  the possibility of administrative arrests for the participation to peaceful assemblies, very high administrative fines,  criminal liability for participating in several unauthorised public assemblies, ineffective control over the police’s actions during detentions, ineffective court’s control over the whole process of implementation of the right to freedom of assembly in Russia. The submission also provided a detailed list of recommendations.

On 3 September 2020 the Committee of Ministers adopted a decision with the assessment of the implementation of the Lashmankin’s case by Russian authorities. It states that although certain positive steps were taken by Russian authorities this is insufficient to achieve tangible progress. The Committee of Ministers also gave some recommendations to the Russian authorities asking them to narrow the local authorities’ discretion on planning assemblies, to show tolerance to peaceful assemblies, to exclude the criminal responsibility for the participants to peaceful assemblies, to make reasonable the fines, to not apply to solo demonstrations the restrictions applicable to mass demonstrations. The Committee of Ministers decided to return to the examination of this issue in June 2021.

Creation of the national coalition of NGOs

In September - November 2020 a coalition of NGOs was created in Russia in support of the national implementation of the Lashmankin’s case. It includes the following NGOs: Human Rights Center Memorial, OVD-Info, Moscow Helsinki Group, Apology for protest, Public Verdict, Team 29, the Institute for Law and Public Policy,  Mass Media Defence Centre, Open Russia, LGBT-group “Stimul”.

On 3 December 2020 the coalition submitted a united request to the Ministry of Justice asking to support the national implementation of the general measures based on Lashmankin’s case. The coalition referred to the recommendations from the submission of “Memorial” and OVD-Info to the Committee of Ministers of 20 April 2020 and from the decision of the Committee of Ministers of 3 September 2020. The NGOs asked the Ministry of Justice to share these recommendations with the other Russian national agencies and the authorities. The NGOs also asked to initiate an expert discussion on the implementation of the general measures on Lashmankin’s case with the participation of members of different Russian agencies and the members of NGOs working on this issue. The information about the submission of this request has been published in several Russian media (e.g. Interfax and Kommersant).

Campaigning on specific issues

As a part of the Lashmankin’s case implementation campaign, a smaller campaign on the Kablis v. Russia Judgment execution is runned. The Kablis’ case is the ECtHR’s Judgment from Lashmankin’s execution group concerning regional territorial bans for public events in Russia. It stands to mention that the execution of this case seems to be more successful. Following the ECtHR’s Judgment, the Russian Constitutional Court also issued two decisions on this issue, declaring inadmissible the restriction of gatherings near government agencies, educational, medical, military and religious sites.

In this campaign the NGOs coalition is supported by members of the Presidential Human Rights Council, they communicate the issue with the heads of Russian regions, and by the Russian Commissioner for Human Rights, she sent out relevant proposals for changing local laws to the regional parliaments.

As a result, the effects of this work are already visible: Russian regions are changing local laws in a positive way. The maps below show how local laws have been changed during one year in order to allow assemblies near buildings occupied by authorities.

Conclusion

Overview of the execution of the Constitutional Court Judgment in 60 regions where there were bans on actions around the types of objects explicitly indicated in the ruling of June 4 (data relevance - early October 2020).

●      Red - no more ban;

●      Orange - the ban is partially canceled;

●      Light orange - local law changes discussed;

●      Black - refused to lift the ban;

●      Gray - no information.

The implementation of the ECtHR’s judgments on the freedom of assembly cases in Russia is a complex and long-standing process. It requires a number of actions in different areas including monitoring and reporting process, legal actions in support of the individuals, advocacy actions for the establishment of the contacts with the national authorities, information campaigns with the participation of the media, preparation of reports to the international organisations.

We have started the work in all these directions. However this work needs to be followed up and become stronger. We plan to continue the work of the coalition of the national NGOs and to send new requests to different Russian agencies including the Commissioner on human rights and the Parliamentary parties. We are continuing to monitor the new violations of the right to freedom of assembly in Russia (including the new restrictive laws) and we expect to inform the Committee of Ministers about the new development of the situation in April 2021. We plan to build a stronger cooperation with the media in order to inform the new audience about this issue.

It is important to not stop the efforts in this direction and to do all we can in order that the  right to freedom of assembly is respected in Russia.

The map below shows regions where local laws have to be changed until 5 December 2020

Council of Europe’s old pandemic: ‘endemic’ ill-treatment and torture in custody in Azerbaijan

By Ramute Remezaite, EHRAC Legal Consultant and Ulkar Aliyeva, former EHRAC Oak Fellow

As the safety of detainees and prisoners is among the growing concerns amidst the Covid-19 pandemic and as the world watches the growing resistance to police brutality in the United States, in Azerbaijan one should also be concerned about another pandemic: ill-treatment and torture in police stations, detention facilities and prisons that has long existed.

It is nearly two decades since Azerbaijan joined the ‘European family’ in 2001, yet ill-treatment and torture of detainees and prisoners in Azerbaijan remain endemic. In 2018, Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the CoE guardian institution against ill-treatment and torture in Europe, for the first time in over a decade of monitoring the situation in the country, was given permission by the Government of Azerbaijan, for the first time since its membership, to publish its seven visit reports. Covering the period of 2004-2017, the reports conclude:

“torture and other forms of physical ill-treatment by the police, other law enforcement agencies and the army, corruption in the whole law enforcement system and impunity remain systemic, widespread and endemic” (2017 report, para 27).

Photo credit: Meydan TV

The CPT found that ‘punches, kicks and blows struck with truncheons, electroshocks, falaka, burning cigarettes, threats with family members and sexual violence’ are commonly used to obtain confessions from detainees (2017 report, para 20) and that forensic examinations of torture traces by doctors are mostly superficial and perceived primarily as a means to protect police officers (2017 report, para 37). Safeguards against ill-treatment such as access to a lawyer or a doctor, remain ‘largely a dead letter and are mostly inoperative in practice’ (2017 report, para 31). The CPT concluded that the prevailing impunity and the failure to effectively investigate and prosecute law enforcement agents renders ‘the situation in the country exceptional in the entire Council of Europe’ (2017 report, para 28).

The issue of ill-treatment and torture in Azerbaijan has been and continues to be extensively addressed by the CoE’s European Court of Human Rights (ECtHR). In 2007 the ECtHR first found Azerbaijan in violation of its obligation to protect and respect the right to be free from torture and other kinds of ill-treatment in respect of a case from 2003. It established that traces of falaka on the feet of the applicant, political opposition member, in the detention facility amounted to torture and that it had the purposive nature to obtain admissions of guilt by the applicant. The authorities interrogated only police officers as witnesses, following which no criminal proceedings were initiated to investigate such serious allegations and bring those responsible to justice, as a result the torture remains unpunished 17 years later. Since then, the ECtHR established violations of prohibition of ill-treatment and torture under Article 3 of the European Convention on Human Rights in over more than 20 cases against Azerbaijan concerning excessive use of force by the police, lack of effective investigation into ill-treatment imputable to law enforcement officers and the absence of an effective domestic remedy to challenge it. In one of its latest judgments finding that two young Azerbaijani activists Giyas Ibrahimov and Bayram Mammadov, both members of the N!DA Youth movement, were ill-treated into confessing to the crime of drug possession, the ECtHR relied, among other evidence, on the CPT reports referring to the systemic problem of ineffectiveness of official investigations into allegations of ill-treatment. For more than 10 years these cases have been (and remain) pending implementation by the Azerbaijani authorities before the CoE Committee of Ministers (CM) as the supervisory body: no adequate remedies have been offered to the victims of severe ill-treament and torture to date. According to the CM’s HUDOC EXEC database, only once in all these years, has the Government of Azerbaijan submitted an action plan on the implementation of these cases, in March 2018, 11 years after the first judgment. The plan makes no reference to remedies to individual applicants, such as effective investigation of their allegations, as a fundamental requirement both under international and Azerbaijani law, or any constructive steps to address the systemic structural nature of the problem in the law enforcement system. In its plan, the Government reported on the adoption of two executive orders aimed to ‘strengthen control of detention conditions’ and ‘to secure the rights of those arrested and detained’ to prevent ill-treatment and torture, failing to indicate how this translates into effective change in practice.

Photo credit: Meydan TV

The March 2018 action plan was submitted just a few months after more than 80 members of the LGBT+ community were subjected to coordinated, violent police raids and arrests in September 2017, with many of them reporting being subjected to psychological, physical and sexual violence explicitly related to their sexual orientation. Transgender women detainees complained of having their heads shaved as a commonly used technique to intimidate and punish them. None of the allegations of police violence have been effectively investigated to date, with cases currently pending examination before the ECtHR. In July 2018, dozens of protesters in Ganja city reported being brutally mistreated and tortured in detention, and forced to sign incriminatory statements on the basis of which they were convicted for crimes they claimed they did not commit, in retaliation for the murder of two police officers by a lone attacker at the scene of the demonstration.

Office of the Prosecutor General in Azerbaijan, the main institution resposible for investigations of ill-treatment/ torture allegations.

A year later, in July 2019, Minister of Internal Affairs Vilayət Eyvazov assured the CoE Commissioner for Human Rights Dunja Mijatović, during her first visit to Azerbaijan, that no cases of ill-treatment and torture by law enforcement agents had been established in the country in recent years. Similarly, the authorities in Baku disagreed with the CPT findings published in 2018 that ill-treatment and torture is ‘widespread and systematic’ among law enforcement agencies in Azerbaijan and that the penitentiary services ‘try to solve problems’ when they occur. Back in 2013, commenting on the pressure from international organisations to condemn the unlawful actions of police officers, including in relation to violently dispersed peaceful protests, President Ilham Aliyev announced that ‘not a single police officer will be punished.’

While the authorities dismiss the CPT findings, human rights groups, lawyers and independent media continue reporting on cases of detainees being severely mistreated, with many of them being subjected to brutal physical and psychological violence with the aim of obtaining confessions for crimes they did not commit, or to punish them for their activism, protest against the authorities or for belonging to marginalised or otherwise unpopular groups, such as LGBT+ or religious communities critical of the authorities. Most of these cases entail the purposive element required for torture, to punish, intimidate or extract confessions or other information from the victims, who are often from the regime’s ‘unfavoured groups’. In 2016, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has clarified that a discriminatory motive is sufficient for the intent element in torture, including on grounds of sexual orientation. With no independent domestic human rights groups having access to detention facilities and prisons to monitor the situation in custody, lawyers whose clients report being ill-treated, as the only ‘whistle-blowers’, are punished for conveying such information by having their licences suspended, being disbarred or subjected to defamation charges (see, for example, here, here and here).

What response from the Council of Europe and European states?

As the publicised CPT reports shed more light on the systemic and widespread nature of the issue of ill-treatment and torture in custody in Azerbaijan, and serve as a credible authoritative first hand source of information on the issue, it naturally begs the question as to what the follow up to these revelations should be. Can the Council of Europe and its member states tolerate a member state with a record of more than sixteen years of practices of ‘endemic’ ill-treatment and impunity, with no clear signs of progress or willingness to change the situation, and what should be their response? Below, we set out some reasons as to why the CoE as the leading Europe’s human rights institution, and individual European states should enhance their efforts in addressing this issue with Azerbaijan.

Firstly, as far as the European Convention on Human Rights is concerned, such deep-rooted deficiencies of the domestic law enforcement system do not only raise the questions of Azerbaijan’s failure in adhering to its obligation to comply with above-listed ECtHR judgments; this issue concerns a pattern of years of egregious violations of one of the most fundamental and absolute values that Europe stands for: the non-derogable prohibition of torture. The Convention system was created to ensure that no one in its jurisdiction is ill-treated or tortured, yet this is a long-term ‘widespread and endemic’ problem with no accountability of those responsible in Azerbaijan, a member state of the CoE.

Secondly, as the authorities demonstrate, with no sign of genuine political willingness to address this problem, requiring substantial structural and attitudinal reforms, CoE bodies should enhance their efforts to ensure that this issue is on their agenda on a regular continuing basis and raised with the Azerbaijani authorities at every occasion until it is adequately addressed. For example, in its public statement marking its 30th anniversary in 2019, the CPT takes stock of its existing challenges, amongst which it lists prison overcrowding, immigration detention, involuntary treatment of psychiatric patients or the detention of juveniles. While these are all very concerning issues in a number of European countries, this list should also include the long-standing problem of ill-treatment and torture in custody in a number of its member states, including Azerbaijan. In its 2019 annual report, the CPT congratulates Azerbaijan for agreeing to publicise the CPT reports, however, makes no mention of the egregious findings in its reports. It would have been timely to do so as Azerbaijan’s leadership has yet to live up to the CPT’s hope expressed in its 2018 annual report that the publication of the seven visit reports would mark the authorities’ ‘resolve to address effectively the serious problems’, starting with a ‘public, firm and unequivocal statement of “zero tolerance” towards torture and other forms of ill-treatment of persons deprived of their liberty in Azerbaijan.’ The continuing practice indicates the opposite.

CPT and CM offices in Strasbourg. Photo credit: Council of Europe

Under its mandate of supervision of implementation of ECtHR judgments, the CM should uplift the review process of implementation of more than 20 judgments, addressed above, through its existing procedures, with the aim to enhance communication with the Azerbaijani authorities on these matters. As experience shows, Baku’s engagement is attuned to such enhancement: it was only after the CM’s decision in 2017 calling for an update on the respective cases that the Government provided its action plan in March 2018, eleven years after the first judgment on this issue. It is time these cases are adequately and routinely scrutinised, particularly following the revelations in the publicised CPT reports, until adequate progress is reported – or otherwise the issue of failure to implement ECtHR judgments is raised. We have already seen some positive developments in the cases of Azerbaijani human rights defenders and other critical voices criminally prosecuted for ‘ulterior purposes’ where the consistent engagement of the CM and other CoE bodies on ECtHR judgments in these cases bore results.

Thirdly and lastly, the various CoE bodies dealing with the issue of ill-treatment and torture in custody and the prevailing impunity in Azerbaijan, should increase their coordination and cooperation on these issues to amplify their efforts. For example, the CM should include the CPT reports and its findings as new relevant information in reviewing the implementation of ECtHR judgments and call upon the Government to account for its actions to address those findings as part of the implementation process. Similar initiatives of other CoE bodies such as the Parliamentary Assembly or the Office of the Commissioner for Human Rights would be welcome too – and we have seen such enhanced cooperation with regard to a number of human rights defenders, activists and other Government critics following their detention as part of civil society crackdown in 2014 (see here, here and here). Individual European states who stand for absolute prohibition of ill-treatment and torture should use their seats and votes to ensure that these cases are prioritised and to signal that torture is not tolerated in Europe.

Implementation and Covid-19

by George Stafford, EIN Director

EIN Director George Stafford

Covid-19 has placed a significant strain on the human rights community across Europe. With limited resources, NGOs are struggling to react to the virus and all of its consequences. At the same time, Covid-19 has had a serious impact on the implementation monitoring process in Strasbourg.

Below is a summary of the main impacts of the virus so far – and some reflections about what they mean for the implementation of judgments of the European Court of Human Rights.

NGOs stretched thin

Source: shearman.com

The coronavirus has presented European civil society with a huge challenge. The impact of the virus itself has led to very serious human rights situations – such as terrible conditions in prisons, as one example. Meanwhile, the reactions of governments have often constituted threats to human rights in themselves – ranging from containment measures that are not compliant with international standards, to full-blown assaults on the country’s constitutional order. All of this leaves aside the personal challenges of the virus, including family tragedies, ill-health and the closure of offices.

In these circumstances, the commitment shown by many colleagues in maintaining their implementation work has been extraordinary. We know of a number of EIN network members and partners who have been overrun by additional virus-related challenges, but have chosen to address them in addition to their other work (including implementation activities), rather than instead of them.

It is a testament to the passion and professionalism of our network that it has been able to continue its work on ECHR implementation, despite the challenges of the virus. Indeed, this year has seen more Rule 9s than the same period in any previous year. We continue to be inspired by the hard work and dedication of our colleagues from across Europe.

Delays in the implementation monitoring process

Another impact of the coronavirus on our work has been the changes to the June CM/DH meeting. The meeting did not take place in person and there was no oral debate. CM Decisions were issued in only around half of the cases scheduled to be considered, which were those cases where the government agreed with the proposed Decision put forward by the Council of Europe Secretariat. The other half of the cases were postponed to an additional ad hoc meeting scheduled for 1-3 September. The usual September meeting was delayed to 29 September–1 October. EIN repeatedly pushed for this development to be properly communicated to civil society, in advance of the June meeting.

The reasons for the delay which have been provided to us are as follows. It is said that it was impossible to hold the meeting in-person, due to the restrictions on movement and gatherings in France imposed at the time, as well as international travel. Meanwhile, certain member states objected to the meeting being carried out over video call, because of alleged security concerns about the privacy of the communications.

The delay is very unfortunate for those eagerly awaiting Decisions or Resolutions from the Committee of Ministers, requiring important changes to take place. To take one example of many, campaigners for the release of Turkish philanthropist Osman Kavala will have to wait until September for a decision requiring that he be set free, whilst he remains imprisoned on false charges designed to punish him for his human rights activities.

EIN will continue to monitor the situation closely in regard to the postponement of any future meetings. We will call clearly for the CM/DH meeting to take place whenever this is possible, and request that any future delays to be communicated to civil society well in advance of them taking place.

Government reporting delayed

Turning again to CM/DH meetings, we have seen numerous government Action Plans and Action Reports which state that it is not possible for the government concerned to make progress with implementation of a judgment or properly report on it, due to the virus.

There are without doubt many cases where proper activities or reporting have been curtailed by the deadly challenge of Covid-19. It continues to be a huge strain on governments and public servants.

Nevertheless, many of the cases where governments have pointed most strongly to the virus as a reason for inactivity, are those where there has been a failure to take steps to implement the judgment for a very long period of time. In the next briefing to representatives of the Committee of Ministers, EIN will raise this issue and ask the Committee of Ministers to properly examine such explanations when they are given, in the context of each particular case.

There is no way to know how long Covid-19 will continue for and what impact it will eventually have. For the time being, we send our warmest wishes to all of those who have been touched by the virus. We will be happy to respond to any of your enquiries about the impact of the virus on ECHR implementation.

The struggle to establish the fate of the ‘missing babies’ continues – in Serbia and Strasbourg

NGOs, parliamentarians, academics, independent media and parents in alliance for the execution of Zorica Jovanović v. Serbia

Source: Radio Free Europe.

Parents: Law on missing babies has holes like Swiss cheese

Source: BrainFact.ora Unconditional love

By Miloš Radovanović and Savo Manojlović, Association for the Protection of Constitutionality and Legality (UZUZ)

Introduction
Winning a case in the Strasbourg Court is not an end in itself. The mission of any litigating NGO is to make human rights a reality for the persons affected by a ruling: on the ground, at national level. It is primarily there that the struggle for achieving justice – not only for the individual applicant, but also for wider segments of society – takes place. This means a judgment of the European Court of Human Rights (ECtHR, the Court) is not the end of a long road, but the starting point of a process which promises to make rights ‘practical and effective’.

A Strasbourg Court judgment itself signals to international and national actors that an applicant’s human rights have been violated. It establishes there is a problem, but it does not solve it. What needs to happen after the Court finds a violation is not always immediately clear. Implementation may require amending legislation, changing court practice, reopening unfair court proceedings, repealing a conviction, stopping a deportation, ensuring effective police protection for a person who has been a victim of repeated assaults, conducting an investigation, providing police protection for a pride march, refurbishing and constructing courthouses, demolishing an unlawfully constructed building, establishing contact between a parent and a child who had been unlawfully separated, or the highest officials of the state issuing a public apology.

None of these various measures, which are but examples of remedies, will implement themselves: an unlawfully constructed building will not immediately collapse after the ECtHR handed down its ruling. A judgment of the Strasbourg Court, in and of itself, cannot establish contact between a parent and their child who disappeared as a newborn. Unfortunately, the parents of the ‘missing babies’ from Serbia know this all too well.

The Court’s judgment in the Zorica Jovanović case

The judgment in the ‘missing babies’ case (Zorica Jovanović v. Serbia) is one of the most important judgments issued by the Strasbourg Court against Serbia. The application was brought by the mother of a child who, then a healthy newborn baby boy, had disappeared from the maternity ward, never to be seen again. Imagine the agony of a mother whose child ‘goes missing’ at the hospital where she gave birth to him just a few days earlier, and who is never given any credible information about what really happened to him. The boy’s parents were not even told if he was dead or alive.

In its judgment of March 2013, the Strasbourg Court found that Serbia had violated the applicant’s right to respect for her family life because the state authorities had effectively done nothing to find out about the fate of her son. As has been stressed on this blog before, this painful case is not unique. There are over two thousand couples in Serbia who lost their babies in maternity wards, mainly in the period from the 1970s to the 1990s, and who fought in vain for years, if not decades, to get an explanation form the authorities about the disappearance of their children.

For the parents of the disappeared children, a pronouncement by a court that they are victims of a human rights violation is important, but it offers little comfort. Monetary compensation is not enough, either. The violations occurred because the authorities had not tried diligently to find out about the fate of the disappeared newborn babies. Therefore, in order for Serbia to start righting the terrible wrongs that were done to the parents of the ‘missing babies’, they should take every possible action to establish what happened to every single one of these children. This is perhaps the most important outcome of the Zorica Jovanović case: Serbia’s obligation to implement the judgment gives the parents hope that contact with their children who disappeared from Serbian maternity wards and hospitals will be re-established. The aim is to find out about the fate of the disappeared children and, wherever this is still possible, re-establish contact between parents and children. Pushing for the implementation of the Court’s judgment in Zorica Jovanović is the means by which a multi-stakeholder alliance of actors in Serbia is seeking to achieve this goal.

The Serbian authorities’ push to close the case
Finding out about the fate of many hundreds of newborn babies who disappeared between the 70s and the 90s is, no doubt, no easy task. But the Serbian authorities have, we would argue, irresponsibly wasted too much time already.

The Court gave Serbia one year to ‘take all appropriate measures, preferably by means of a lex specialis … to secure the establishment of a mechanism aimed at providing individual redress to all parents in a situation such as, or sufficiently similar to, the applicant’s. This deadline expired more than five years ago. This is devastating for the parents. It also appears to be causing increasing frustration within the Committee of Ministers (CM), which is supervising execution of the Zorica Jovanović case under its enhanced supervision procedure. The CM has passed two interim resolutions already (here and here) and, at its ‘Human Rights’ (DH) meeting last week, instructed the Secretariat to prepare a third interim resolution for possible adoption in March.

Serbia wants to present itself as state dedicated to protecting human rights, determined to comply with its international obligations, and interested in providing help to the parents of the ‘missing babies’. The Serbian Government, therefore, is keen to see the CM’s supervision come to an end, even if the main measures for erasing the devastating consequences of the violations – taking all possible actions to establish the fate of the disappeared newborn children – are yet to be implemented.

The shortcomings in the Government’s response to Zorica Jovanović
The debates in Serbia and in Strasbourg today revolves around the adoption of a draft law on the ‘missing babies’; a step that, according to the CM, is ‘long overdue’. There is broad agreement within the Serbian society as well that legislation needs to be to ensure that credible answers are given regarding the fate of newborn children disappeared from Serbian maternity wards and hospitals. This has been the aim of concerted advocacy efforts by parents, NGOs, media actors and parliamentarians. But the Serbian authorities want to swiftly pass a draft law that does not, in the view of numerous civil society actors, provide for a mechanism capable of guaranteeing that investigations into the fate of ‘missing babies’ are not terminated prematurely without result.

Civil society actors have voiced concern about several shortcomings in the draft law (here). The main point of criticism concerns the provision prescribed by the draft law that affords broad discretion to the authorities to declare that the fate of a disappeared child is unknown. Even in the absence of proper investigations, and without having to base their decisions on appropriate evidence showing that no further steps can be taken to determine the fate of a ‘missing baby’, the courts may close a case simply by awarding just satisfaction of up to 10,000 euros. This falls short of an investigatory mechanism capable of giving answers as to the fate of the disappeared children – the real question that has been haunting the parents for many, many years. The draft law thus does little to meet the hope of the parents to have contact with their disappeared children re-established. No money in the world (let alone 10,000 euros) can compensate for this failure.

Parents of the ‘missing babies’ consider that the payment of pecuniary compensation prescribed in a draft law prepared by authorities puts a price tag on selling the hope to re-establish contact with their missing children.

Stopping the passing of a flawed law: the immediate aim of civil society advocacy
The most urgent aim of the alliance of people in Serbia pushing for the full implementation of the Zorica Jovanović is therefore to prevent the adoption of a flawed law that could result in the premature closure of the case by the Committee of Ministers. At the same time, we work towards the adoption of a law with stronger safeguards against investigations being closed without results, without all options being exhausted to establish the fate of a ‘missing baby’.

This is a battle that cannot be done by one group of actors only. In particular, the parents of the disappeared newborn children alone could not force reluctant state authorities to take every possible action in order to find out about the fate of their children. In such a complex and sensitive matter, they need every help they can get. This is why the legal experts at the Association for the Protection of Constitutionality and Legality have joined forces with others in pursuit of the objectives above. Any individual or organisation with good intentions, resources and ideas is welcome to support our joint efforts to stop the enactment of any draft law on ‘missing babies’ that does not provide for a strong investigatory mechanism capable of giving credible answers about the fate of disappeared newborn children.

Collectively, we have used a range of tools to push for meaningful reforms. These include drafting and submitting a series of Rule 9 communications to the Committee of Ministers. Here, we want to focus on our activities at the domestic level to promote the swift and full implementation of Zorica Jovanović.

Legal experts – helping parents make proposals for a comprehensive law
There is near universal agreement that adopting a specific law, lex specialis, is the only possible means to implement the Court’s judgment. It bears repeating that the parents of the ‘missing babies’ are not against enacting a law; what they object to is the inadequate draft law introduced to parliament by the Serbian Government. However, because most of them are not legal experts, the parents involved often struggle to articulate their objections to a legislative proposal lacking strong safeguards against the premature termination of investigations without result. Their voices risk being overheard in the drafting and negotiating process.

Lawyer Danilo Ćurčić
Co-author of the alternative 'Law on missing babies’ drafted in cooperation with parental organisations

There was thus a need for legal experts – scholars and practitioners – to ‘translate’ the parents’ demands into ‘legal language’. Luckily, one of the most prominent Serbian law professors, Vesna Rakić Vodinelić, an expert in civil procedure law, joined the alliance that pushes for the implementation of the Zorica Jovanović case. She, with the help of Danilo Ćurčić, an experienced lawyer in the field of human rights and Program Coordinator of the NGO A11 Initiative, has prepared an alternative draft law on ‘missing babies’. Their proposal foresees the introduction of a series of additional safeguards to strengthen the investigatory mechanism.

As part of their advocacy, several NGOs organised a press conference in Belgrade on 13 November 2019, which was widely reported on in the media (see here, here, here and here). NGOs and parents of ‘missing babies’ informed the public about what they regard as the key deficiencies of the draft law prepared by the Serbian authorities. They noted that, unlike that draft law, which is still pending before Parliament today, the legislative proposal prepared by Vesna Rakić Vodinelić and Danilo Ćurčić would truly allow for establishing the fate of the ‘missing babies’. NGOs and parental organisations therefore prepared amendments to draft law. Those amendments are based on the law prepared by Vesna Rakić Vodinelić and Danilo Ćurčić. ‘Friendly’ members of the Serbian parliament are willing to officially submit those amendments to the National Assembly of the Republic of Serbia.

NGOs, parliamentarians and journalists – exerting pressure on the authorities
The above-mentioned press conference in Belgrade was organised jointly by four NGOs: the Association for Protection the Constitutionality and Legality, YUCOM, the A11 Initiative and the Belgrade Group of Parents of Missing Babies. Representatives of these NGOs informed the public about the deficiencies of the draft law prepared by the authorities. They proposed that the authorities either withdraw the draft law from the legislative procedure or amend it in such a way as to ensure it provides for an effective mechanism which could establish the fate of the ‘missing babies’. They invited parliamentarians to raise their concerns in committee hearings and oppose the draft law in its current form.

Speakers at our press conference held on 13 November 2019: Mirjana Novokmet, President of the Belgrade Group of Parents of Missing Babies; Danilo Ćurčić, Program Coordinator of the A11 Initiative; Katarina Golubović President of YUCOM; Savo Manojlović, President of the Association for the Protection of Constitutionality and Legality; and Radojka Pantelić, member of the Belgrade Group of Parents of Missing Babies. Photo taken by Aleksandar Stojanović.

The impact we had through this outreach activity has been considerable. Several independent media outlets (aljazeera balkans, espreso, insajder) reported about the event, which helped convey the concerns voiced and proposals made at the event to a wider audience. Serbian parliamentarian and Head of the Party of Modern Serbia Parliamentary Group, Tatjana Macura, attended the press conference. Immediately after the event, she promised to actively support us. Indeed, Ms Macura invited parents from the Belgrade Group of Parents of Missing Babies to the National Assembly, where she gave a statement to a journalist.

Besides Tatjana Macura, a second member of parliament, Aleksandra Jerkov from the Democratic Party, vowed to lend his active support to the parental organisations and NGOs. Following the press conference, both MPs were interviewed by journalists. In their statements given to the media, they criticised the draft law (see Tatjana Macura in Novi Magazin and Aleksandra Jerkov in Blic).

Tatjana Macura gives a statement to the media on 28 November 2019 in the hall of the National Assembly of the Republic of Serbia, in front of members of the Belgrade Group of Parents of Missing Babies.
Source: Belgrade Group of Parents of Missing Babies

Winning support from Tatjana Macura, who is a member of the Parliamentary Committee on the Judiciary, also meant we had an ally in parliament who insisted that representatives of the Belgrade Group of Parents of Missing Babies as well as NGOs be able to speak at a public hearing on the draft law, which was held on 28 November 2019 (see here and here). Having MPs echo the demands of victims and civil society activists, and ensuring broad media coverage, also helped raise public awareness about the deficiencies of the draft law. The President of the Belgrade Group of Parents of Missing Babies was a guest on a news programme (the TV show ‘Novi Dan’) broadcast by Serbian TV Station N1, and an expert from YUCOM gave an interview to TV Station N1 on the same topic.

By working together, across NGOs and professions, and with those directly concerned, we have been able to increase the pressure from the public on the Serbian authorities to withdraw or amend the draft law. Under this increased pressure, the Serbian Parliament, a key actor in the implementation process, has started to make limited concessions. The first concession was to invite members of the Belgrade Group of Parents of Missing Babies to address MPs at the parliamentary hearing of 28 November. This presented yet another vital opportunity to present arguments to the member of the Serbian Parliament to not adopt the drat law prepared by the Serbian governments.

Vladimir Čičarević, President of the Association of Parents of the missing babies Serbia, teared up the draft at a public hearing law

At the public hearing on the draft law, held on 28 November, representatives of all organisations of ‘missing babies’ had an opportunity to voice their concerns about the shortcomings in the draft law. They all spoke against the draft law prepared by the authorities (you find a video of the public hearing here). Parents’ organisations showed unity in opposing the draft law in its current form and clearly stated that the draft law was unacceptable. The crucial deficiency was that it does not provide for a mechanism capable of giving credible answers about the fate of disappeared newborn children. Any law on ‘missing babies’ with such deficiency does not fulfil its intended purpose, and it insufficient to implement the ECtHR’s judgment in the Zorica Jovanović case.

Conclusion

Winning a case in Strasbourg is winning an important battle in the non-violent war for human rights. But it is at the implementation stage that the fight is ultimately won or lost. For victims of human rights violations, a judgment constitutes a promise that changes can be achieved. For NGOs and others who hold a stake in the implementation process, a judgment is a call for action in the interest of strengthening human rights protection at the national level.

The draft law as prepared by the Serbian Government has not been adopted. This means that, for now, we have succeeded in preventing the passage of an inadequate law which would disappoint the hope of many parents that contact with their children, who disappeared when they were newborns, could be re-established. This is a small, but important victory achieved by a broad coalition of actors pushing for the full implementation of the Court’s judgment in Zorica Jovanović.

Last week, the Committee of Ministers ‘noted’ the proposals to improve the draft law that were made at the hearing of 28 November. It called for the adoption of the law ‘as a matter of priority with all amendments that can still be included during the present parliamentary session’. Our efforts to ensure the introduction of stronger safeguards in the proposed legislation will thus continue, and so will the larger struggle to put an end to the continuing violations of the human rights of parents of disappeared newborn children.

The judgment in the Zorica Jovanović case was a glimmer of hope for the parents of children who disappeared in Serbian maternity wards and hospitals – hope that the state authorities would finally be forced to do everything in their power to re-establish contact between them and their children. We all – NGOs, parliamentarians, the media, and academics – have a responsibility to ensure their hopes are not disappointed.

FAQ: How to advocate for the implementation of ‘standard’ cases

Introduction

Last week (23-25 September), the Committee of Ministers (CM) held its third Human Rights (‘DH’) meeting this year. The quarterly DH meetings mark important points in the EIN calendar. Many of our members and partners plan their Strasbourg advocacy for judgment implementation around these crucial dates. And rightly so: the case-by-case decisions on the implementation of judgments and decisions from the European Court of Human Rights (ECtHR) are authoritative assessments, by the body tasked with supervising the implementation of judgments, of the progress made by states (or the lack thereof) in the implementation process.

What many don’t know, however, is that three quarters of the more than 1,200 leading cases pending implementation currently have no prospect of coming on the agenda of a CM-DH meeting. This is because they have been classified as ‘standard’ cases under the Committee’s twin-track supervision procedure.

Does this mean these cases do not deserve attention by civil society actors? Are NGOs and others better advised to focus exclusively on cases under enhanced supervision? Does advocacy for the implementation of ‘standard’ cases have lesser prospect of being effective?

The answer to these questions is a clear ‘no’. But there still revolves a lot of uncertainty around why and how best to advocate for the implementation of ‘standard’ cases. EIN has compiled a series of questions we have received over time on how to push for the implementation of these cases. We present below our FAQ. You can also find this article as a PDF document here.

“You will see that, in most respects, advocacy for the implementation of cases under standard supervision does not differ from advocacy for the implementation of cases pending under the enhanced supervision procedure. For general tips about how to make your voices heard in Strasbourg, we therefore refer to EIN’s Handbook on making effective Rule 9 submissions, which contains extensive information and valuable tips for NGOs. ”

You can access the EIN’s Handbook here.

But before we begin, here is…

… A brief recap: grouping and classification of cases & Action Plans vs. Action Reports

Leading vs. repetitive cases

Once a judgment becomes final, it is transmitted from the Court to the CM. In practice, this means that it lands on the desk of a lawyer within the Council of Europe’s Department for the Execution of Judgments of the ECtHR (DEJ). The DEJ consists of lawyers who work closely with the member states to determine the specific actions required to give full effect to the ECtHR’s judgments and provides advice to the CM in respect of implementation in individual cases. It is the DEJ’s task to decide, within two to three months of a judgment becoming final, whether the case is a ‘leading’ or a ‘repetitive’ case.

·        A leading case is a case which has been identified as revealing new, and often structural or systemic, problems.

·        A repetitive case relates to a general problem already raised before the CM in the context of one or several leading cases; repetitive cases are usually grouped together with the leading case(s).

Besides, some cases are classified as ‘isolated’, but we don’t need to get into that here.

Classification of cases: standard vs. enhanced supervision cases

For each leading case, the CM determines whether it should be reviewed under ‘standard supervision’ or ‘enhanced supervision’. The classification decision is taken based on advice by the DEJ. The classification of a cases has important implications for which body will do the ‘heavy lifting’ in the supervision process, as you will see below. Importantly, cases can ‘move’ between the two supervision tracks: they can be ‘bumped up’ from standard to enhanced, or moved down from enhanced to standard supervision.

Action Plans vs. Action Reports

Finally, you may recall that the two most important types of documents that states will submit to the CM for leading cases (regardless of whether they are under standard or enhanced supervision) are Action Plans and Action Reports. Put simply, the key difference between the two is as follows:

·        In an Action Plan, a state sets out the measures it envisages taking to implement a judgment.

·        By means of an Action Report, a state lists the measures it has taken to give full effect of a ruling and invites the CM to ‘close’ the case, i.e. to end its supervision of it.

A state is expected to submit an initial Action Plan at the latest within six months of a leading judgment becoming final.  

With this in mind, let’s jump right into our FAQ!

FAQ about cases pending implementation under the standard supervision procedure

Q

When will a case be classified as a ‘standard’ case?

A

Put bluntly, classification as a ‘standard’ case is the default. Unless a case (a) is a pilot judgment, (b) requires the adoption of urgent individual measures, or (c) discloses major structural and/or complex problems (we are ignoring (d), inter-state cases, which are also subject to enhanced supervision), it will (initially) be put under standard supervision. But it can be transferred to the enhanced supervision track later, for instance if the state fails to submit an Action Plan without explanation.

Q

What’s the practical difference between a ‘standard’ case and an ‘enhanced’ case in terms of how their implementation is supervised?

A

A key difference between cases under standard and cases under enhanced supervision concerns the role of the CM: under the standard procedure, the CM limits its intervention to ensuring that adequate Action Plans/Reports have been presented and verifies the adequacy of the measures taken before closing the case. Importantly, this does not mean implementation is not properly monitored. Developments in the execution of cases under standard procedure are followed by the DEJ. The DEJ engages bilaterally with the authorities, assesses the information obtained, and submits proposals for action if developments in the implementation process require specific intervention by the CM.

Q

Is it even worth working on standard cases, if these won’t ever make it onto the CM’s agenda?

A

Absolutely. Three quarters of the cases pending implementation are ‘standard’ cases. This does not mean they are not important. Leading cases under standard supervision will, as a rule, require that the state adopt general measures to remedy the underlying problem. NGO interventions will often be vital to set the agenda for reforms, help set these reforms in motion, and prevent the early closure of the case. Rule 9 submissions also help counterbalance the CM’s dependence on information provided by the state. These are just some key reasons for why you should submit your views on the implementation of general measures. Needless to add that any important information regarding the individual measures owed to the victim(s) should always be brought to the DEJ’s attention. In all of this, submissions in ‘standard’ cases have the same benefits as submissions on cases under enhanced supervision.  

TIP: Bear in mind that your Rule 9 submission need not be limited to substantive points. You can address procedural questions, too, which specifically includes the possibility to call for a case to be transferred to the enhanced supervision track, as a way to eventually push it onto the CM’s Human Rights meeting agenda.

Q

How do I know when a case under standard supervision will be examined?

A

For cases under standard supervision, there is no timetable, with supervision being conducted behind the scenes between the DEJ and the state. The DEJ will request information from the state and assess any such information provided. From time to time the DEJ publishes an update of developments on the ‘status of execution’ page for the case on the HUDOC-EXEC website. TIP: NGOs should monitor cases regularly, to identify and respond to action plans/reports.

Q

What’s the best timing for a Rule 9 submission, then?

A

Because cases under the standard procedure are not reviewed by the CM (unless the DEJ sees a need for the CM to intervene), the CM’s review schedule should not determine the timing of submissions. Instead, NGOs should make submissions as and when needed. In particular, you may want to respond to (initial or updated) Action Plans or to an Action Report. Because it is often difficult to predict when the state will submit an Action Plan or Action Report, NGOs should be proactive, and submit Rule 9s whenever there are noteworthy developments that need to be communicated to the CM. For many cases, a good rule of thumb is to make a submission roughly once a year.  

Q

But how do I know when the government will submit a new Action Plan that I should react to?

A

The short answer is: you often won’t. For some NGOs, it may be possible to approach the Government Agent’s office directly to seek and obtain information on the timetable for the implementation of a case, though we realise this is not an option in all countries and all cases. It’s worth checking in with the EIN Secretariat; sometimes we have additional information on a case that might appear to be ‘dormant’.

TIP: Also, if you are interested in a particular case under standard supervision, let the EIN Secretariat know. We can inform you about important developments in this case, such as the submission of an Action Plan or Action Report.

Q

Staying on the matter of Action Plans: it has been more than a year since my government submitted an Action Plan. How do I get them to update the information they have provided?

A

Where writing directly to the Government Agent is not possible or has proven futile, it may be worth making a Rule 9 submission to remind the DEJ that no Action Plan has been submitted for a protracted period of time, and invite it to request information from the state. Cases under standard procedure often need a little ‘nudge’ from civil society. Rule 9 submissions can be effective tools to give new impetus to a case that might have slipped under the radar.

Q

When should I push for a standard case to be moved to the enhanced supervision procedure?

A

There are three grounds on which a case can be transferred from the standard to enhanced supervision procedure:

·        Continuous failure to present an Action Plan or Action Report without explanation

·        Disagreement between the state and the DEJ on the content of an Action Plan

·        Serious delay in the implementation of the measures announced in the Action Plan

If you consider that one of these conditions is met, you can call for a change from standard to enhanced supervision procedure. Any such argument needs to be substantiated with appropriate evidence.

Q

The government submitted an Action Report. We disagree with its claim that the judgment has been satisfactorily implemented. Should we make a Rule 9 submission?

A

Yes! And it is important that you do so ASAP. If the DEJ is in agreement with the state on the content of the Action Report, it will present the case to the CM with a proposal for closure. This proposal can be examined at any ordinary meeting of the CM, not just its quarterly Human Rights meetings. To prevent a case from being closed prematurely, it is therefore crucial that any information that would indicate ongoing shortcomings be sent to the DEJ straight away.

Checklist: a step-by-step guide to supporting the implementation of ‘standard’ cases

Let’s recap, then: The classification of a case under the standard supervision procedure does not imply that the case is of minor importance. Many of the more than 900 leading cases that are currently pending under standard supervision would benefit from civil society advocacy. If you are wondering where to start, here is our proposed step-by-step guide to promoting the implementation of ‘standard’ cases:

1.      Review, if you have not yet done so, all leading cases pending execution in respect of your country, and identify your priority cases that you want to support. When doing so, you may want to look out for cases (i) that you think should be transferred to the enhanced procedure, and (ii) (other) cases which seem to be ‘dormant’, i.e. in which no submission has been made in a long time.

2.      Let the EIN Secretariat know what cases you are focusing on. We will try and obtain additional information from the DEJ on those.

3.      Monitor submissions from the government. The EIN Secretariat will be pleased to inform you about important developments in ‘your’ cases, specifically the submission of Action Plans and Action Reports.

4.      Make submissions:

o   early on: in cases where the government has not yet made a submission, you can submit a Rule 9 to make arguments about what measures are necessary to implement the case. This can have a strong influence on what the DEJ requires a government to do, right from the very start.

o   as and when you have noteworthy information that needs to be brought to the DEJ’s attention;  

o   to help push the government to submit an updated Action Plan/Report: in cases where the government has submitted a communication but a long time ago, you can make a submission when you think this could give new impetus into a stalled or protracted process;

o   in response to Action Plans, where you want to comment on the government’s submission. If the government’s proposed reforms are not sufficient to deal with the problem at hand, it is vital that you point this out at this early stage, if sufficient measures are to be included in the implementation agenda;

o   in response to Action Reports, in order to avoid premature closure of a case. This is perhaps the most important type of submission, because without it, the DEJ might propose to the CM that the case be closed at one of its ordinary meetings. You should make your submission as soon as possible following the submission of an Action Report. TIP: Notify the EIN secretariat about your intention to write a Rule 9 submission that would call for a case to remain open.

5.      Keep in mind: Implementation is, first and foremost, a domestic process. Form advocacy alliances with other actors and engage in domestic advocacy to push for the implementation of your cases!

The comments section is open – let us know if you have any additional questions, and tell us about any problems you may have encountered when working on cases under standard procedure.

New Council of Europe Webpage on the Implementation Process

The Council of Europe’s Department for the Execution of Judgments has launched a new webpage, to inform NGOs/NHRIs about how to engage with the implementation monitoring process. Previously there was no accessible information published by the Council of Europe about the existence of the Rule 9 system and how it should be used. EIN saw this as a barrier to NGO/NHRI engagement with the process. The new webpage is a direct result of advocacy efforts by the network’s secretariat, which called for this resource.

The webpage provides information about the basic principles of the execution process, tips for drafting submissions, and some guidance on timing. It provides a useful overview on these issues and some informative guidance. It is particularly helpful to have such information on the institution’s website, so that newcomers to the execution process see that their contributions are welcomed and facilitated by the institution. For more extensive information on these topics, we would direct readers to EIN’s quick guide to writing submissions and our Handbook.

The new website also contains an RSS feed that users can sign up to, in order to get updates about cases involving a particular country. If you would like to stay informed about developments in cases relevant to you -which is vital for any engagement with the implementation monitoring process - we encourage you to use this helpful resource.

A note on timings

When it comes to submitting Rule 9s, the question of timing is an important one. It is welcome that the new Council of Europe webpage does address this issue. However, it concentrates only on one aspect of the timing question, which is the timetable for the enhanced procedure.

In our experience, there are four important things to bear in mind when it comes to the timing of NGO submissions.

1) First and most importantly, it is best for NGOs/NHRIs to make their first submission on any type of case is as early as possible. This could either be in response to a government’s first Action Plan, or maybe even before in order highlight the scope of the case and the need for certain reforms. Early submissions will give you the best chance possible to shape the implementation process.

2) Rule 9s should be made on an ongoing basis either in response to government communications (or indeed lack of them) or to draw attention to new developments. Ideally, this monitoring of government activities should carry on independent of the Committee of Ministers schedule.

3) Cases under the standard procedure are not reviewed by the Committee of Ministers (they are instead dealt with by the Department for the Execution of Judgments). For cases under the standard procedure, the CM’s review schedule should not determine the timing of submissions.

4) Cases under the enhanced procedure are reviewed by the Committee of Ministers, which holds meetings to address certain cases on a quarterly basis. If NGOs/NHRIs wish for the submissions about such cases to be taken into account by the Committee of Ministers, the submissions must be sent in six weeks before the meeting in which the relevant case is scheduled to be debated. This will allow for information included in submissions to be taken into consideration by the DEJ when preparing the briefing notes provided to the Committee of Ministers.

The new Council of Europe website currently addresses number (4) of these points. However, it does not address the first three. The EIN secretariat is currently in discussions with the Council of Europe in the hope of addressing this.

Deinstitutionalisation of psychiatric patients in Romania

by Constantin Cojocariu, Legal Adviser, Association for the support of children with special needs ‘Dr Katz’

On 29 January 2001, Alexandru Nabosnyi was arrested and committed to a psychiatric hospital, based on a short news story in a local newspaper, accusing him of various sexual crimes. A psychiatric report subsequently stated he lacked discernment due to being diagnosed with schizophrenia and a court formally validated the psychiatric detention order. The criminal investigation, which was protracted and superficial, resulted in most charges against him being dropped. Regardless, Mr. Nabosnyi went on to spend his next seventeen years involuntarily detained in high security psychiatric hospitals.

Constantin Cojocariu and the applicant in front of a Court in Romania (2018). Photo: C. Cojocariu

Mr. Nabosnyi went before courts regularly, asking to be released. However, the default position was that he was too ill and too dangerous to be released - despite the charges against him having been dropped. The European Court of Human Rights took a different view. By a judgment delivered on 28 February 2018, the Court decided that Mr. Nabosnyi had been unlawfully detained since at least 2007 (N. v Romania). The national authorities had failed to adduce any evidence to prove that he was dangerous. His release was delayed by the absence of suitable facilities helping patients re-settle after long periods of detention. The proceedings reviewing the validity of Mr. Nabosnyi’s detention were flawed due to poor ex officio legal assistance and widespread procedural irregularities. In line with Mr. Nabosnyi’s request, the Court made use of its powers under Article 46 and instructed the Romanian Government to immediately release him in conditions meeting his needs and to take general measures ensuring that psychiatric detention was lawful, justified and not arbitrary.

From the outset, two obstacles hampered the implementation process. First, after having spent seventeen years in psychiatric detention, Mr. Nabosnyi lacked a network of support in the community, besides not owning any property. Far from being a mere formality, his release and transition to living in the community required substantial preparation and assistance. Second, at the beginning of 2018, after separate proceedings occasioned by his initial complaint to Strasbourg, a local court placed him under plenary guardianship and named a local village mayor to act as guardian. This decision had complex ramifications to do with being able to take decisions related to living in the community or enjoying the just satisfaction awarded by the Court.

On 2 May 2018, I filed a Rule 9§1 submission on Mr. Nabosnyi’s behalf, informing the Committee of Ministers about the bureaucratic inertia hindering his release to a suitable community-based arrangement and about his placement under guardianship. Following the submission, on 29 May 2018, Mr. Nabosnyi was finally released from the psychiatric hospital and transferred to a social care home in Bucharest, his hometown. Although that is also a closed institution, it is a superior arrangement that provides a sense of progress after seventeen years of psychiatric detention. On 20 August 2018, I made the second Rule 9§1 submission, attempting to dispel the Government’s argument to the effect that the social care home constituted a satisfactory solution, rather than, as I argued, a mere stepping-stone to a community-based arrangement, corresponding with the Court’s Article 46 request.

Beyond individual implications, Mr. Nabosnyi’s case shines a light on Romania’s forensic detention system, which warehouses psychiatric patients in very poor conditions, often indefinitely, without meaningful judicial scrutiny. A European Implementation Network seminar in June 2018 helped me prepare the forthcoming exchanges with the Romanian Government before the Committee of Ministers regarding general measures. On 29 October 2018, the Government submitted a poor action plan, devoid of meaningful substance. On 21 November 2018, I submitted a detailed Rule 9§2 briefing on behalf of three disability rights non-governmental organizations, providing the Committee of Ministers with information regarding the general state of the forensic detention system in Romania and outlining the general measures required with a view to achieving reform and ensuring access to justice for patients.

In December 2018, the Committee of Ministers issued a very positive decision, in line with our expectations. On general measures, the CM asked the Government to submit a revised action plan. On individual measures, the CM accepted that the social care home was but a temporary arrangement and called on the Government to ensure Mr. Nabosnyi’s move to community living as soon as practicable. In addition, the CM strongly criticized the guardianship system in place in Romania, which deprived Mr. Nabosnyi of “the exercise of his civil and political rights,” called for immediate reform and asked the Government to ensure his interests were safeguarded in the interim period.

The Committee of Ministers process constituted a catalyst for increased advocacy at the domestic level to reform the forensic detention system. New alliances were formed, that engaged in dialogue with the Government. Other procedures were leveraged for pressure, including by securing positive references in the Commissioner for Human Rights’ report on her visit to Romania in November 2018. On individual measures, the authorities are working towards securing Mr. Nabosnyi’s transfer to the first state-run sheltered housing facilities in Bucharest, that are due to be opened this year.

Torture and ill-treatment by police officers in Greece

By Panayote Dimitras, Spokesperson, Greek Helsinki Monitor

In mid-August 2002, Georgios Sidiropoulos and Ioannis Papakostas, two youngsters who had never met each other before, were taken to an Athens police station on alleged traffic violations (never subsequently confirmed by the courts). A police officer on duty took them to an office and repeatedly used a taser gun against them, to punish them because they had allegedly resisted arrest. The complaints launched in the following days led to an administrative investigation that concluded that their claims were false as the officer simply had used a wireless . A criminal investigation which after several years led to the only trial in Greece where a police officer was irrevocably convicted for torture - a full 12 years after the eents, in 2014 . The sentence was a mere 5 years converted into the minimum fine possible of 5 euros per day. The officer convicted for torture did not spend even one day in detention or in prison.

Source: Panayote Dimitras

In January 2018 the European Court of Human Rights found Greece in violation of Articles 3, 6.1 and 13 of the Convention. In particular, the Court found that “the criminal and disciplinary system had proved to be seriously lacking in rigour and incapable of having a deterrent effect to ensure the effective prevention of illegal acts such as torture.”

This was the most recent of the thirteen cases in the Makaratzis group, concerning impunity for the use of potentially lethal force; ill-treatment sometimes amounting to torture; absence of effective administrative and criminal investigations; inadequate criminal proceedings and penalties; and in some cases a failure to investigate possible racist motives. The leading case (the shooting of Christos Makaratzis) dates from 199

The Committee of Ministers had confined its three examinations of the execution of these cases in 2012, 2015 and 2017 to welcoming the information provided by Greece on the modernization of the law on the use of arms, the establishment of an office to review the related complaints, and the possible reopening of the cases adjudicated by the ECtHR. Three written submissions from the Greek Helsinki Monitor and one from REDRESS highlighted the ineffectiveness of the Greek state’s response. These were followed by an oral briefing to CM representatives by GHM in November 2018. In December 2018, for the first time, the CM issues a very strong decision seeking a detailed set of information from Greece by September 2019

Greece is now obliged to provide documented information about the effectiveness of the Ombudsman as an Independent Complaints Mechanism. This relates not only to the reopening of investigations in old cases, but also to reviewing new complaints that, as GHM has noted, number in the hundreds. Greece must also amend its legislation to bring the definition of torture in line with international standards and prevent the conversions of imprisonment imposed for torture and other ill-treatment into fines. The state must also provide information on the investigation of possible racist motives when ill-treatment occurs in the context of law enforcement; and, finally, implement its commitment to issue written apologies to the victims.

This decision is a powerful weapon in view of the CPT visit to Greece in 2019, the review of Greece by UN CAT in July-August 2019, and the probable new review of the Makaratzis case by the CM in December 2019. The Greek Helsinki Monitor will seek to capitalise on this decision, by seeking the apologies promised from the authorities; pressing the Ombudsman to conclude at least some of the hundreds of the investigations it has been carrying out since mid-2017 so as to assess their effectiveness; and review the proposed amendments to the criminal code announced by the government so as to assess if they are up to the standards defined by ECtHR, CM, CPT, and CAT. These institutions will be kept closely informed of developments.

Domestic violence de facto decriminalised in Moldova

By Natalia Vilcu, Executive Director, Women’s Law Centre

Legal empowerment by WLC of a victim of domestic violence. Photo: Diana Pinzari, Communications Specialist, Women’s Law Centre

Domestic violence is one of the most serious forms of gender-based violence. It severely violates the enjoyment by women of their human rights, in particular their fundamental rights to life, security, freedom, dignity and physical and emotional integrity, and it therefore cannot be ignored by governments[1]. This article analyses the Moldovan Government’s failure to effectively implement the judgments of the European Court of Human Rights (ECtHR) on domestic violence. Although some general measures have been undertaken to implement the judgments in the group of cases Eremia v. the Republic of Moldova[2], adequate protection for victims of domestic violence and prosecution and punishment of perpetrators is still inefficient. The response of the authorities to the judgments in this group of cases highlights the failure of the state authorities to protect victims of domestic violence, eliminate the risk of violence and punish perpetrators for their acts of violence against family members.

Measures undertaken by the Government to amend national legislation

The group of cases Eremia and other v. the Republic of Moldova includes four cases: Eremia and others v. the Republic of Moldova[3], B. v. the Republic of Moldova[4], Mudric v. the Republic of Moldova[5], and T.M. and C.M. v. the Republic of Moldova[6]. The ECtHR found violations in these cases of Articles 3, 8, and 14 in conjunction with Article 3 of the Convention. The Court stated that the national authorities failed to protect the applicants from ill-treatment and to undertake any measures that would deter the abusers from further violent attacks. Moreover, the authorities displayed a discriminatory attitude towards the applicants as women. The ECtHR judgments highlighted that prevention and response to violence were important to ensure the application of protection measures for the victim and to eliminate the risk of violence by the perpetrator.

In response, the national authorities undertook general measures, including amending legislation as follows:  

-        new wording of Article 201/1 of the Criminal Code (Domestic violence) was introduced, which, besides more serious punishment, established criminal liability for other forms of violence, including psychological and economic violence;

-        a new tool to protect victims of domestic violence was introduced – the emergency barring order – a temporary measure applied by police to protect victims of domestic violence by removing the aggressor from the house and setting certain prohibitions established by law;

-        the definition of family member was extended to also include intimate partners and divorced couples living separately;

-        the Contravention Code (which defines actions or inactions with a degree of social danger lower than of a crime) was supplemented with a new Article 78/1 (Domestic violence).

Victim of domestic violence supported by WLC in her efforts to obtain a Protection Order. Photo: Diana Pinzari, Communications Specialist, Women’s Law Centre

On 7 December 2017, at the 1302nd meeting of the Ministers’ Deputies, the Committee of Ministers examined the information provided by the Government on individual and general measures and adopted a resolution[7] to close the examination of cases Eremia and others v. the Republic of Moldova, B. v. the Republic of Moldova and Mudric v. the Republic of Moldova. The Committee of Ministers decided to continue supervision of the outstanding individual and general measures under the T.M and C.M. case.

Amendment to the Contravention Code hinders victims of domestic violence from effective protection

The amendment to the Contravention Code has had serious negative consequences for victims of domestic violence. It has resulted in many fewer cases being treated as criminal, and many more as contravention cases. Thus, in 2015 and 2016, respectively, 1914 and 1679 criminal cases, while 544 and 833 contravention cases were initiated[8]. After the amendment to the Contravention Code was introduced, the number of criminal cases initiated halved compared to previous years (853), while the number of contravention cases doubled to 1941[9]. The contravention rule (Article 78/1) sanctioning domestic violence differs from the criminal rule (Article 201/1) by the degree of bodily injury caused. A perpetrator who causes a victim an insignificant bodily injury is subject to contravention liability. If a light, medium or serious bodily injury is caused, the perpetrator may be subject to criminal liability.

Thus, in practice, a mandatory condition to initiate a criminal investigation is the bodily injuries caused to the victim, which are typically characteristic of physical violence and in some cases of sexual violence. Therefore, while the Government claims that there are now harsher punishments for acts of domestic abuse and that there is criminalisation of psychological and economic violence, the reality is that criminal investigations are initiated primarily based on the degree of bodily injuries caused and there are almost no convictions for psychological or economic violence as these forms of violence do not cause any bodily injuries.

Many criminal justice officials share the perception that economic or psychological violence cannot produce suffering similar to that caused by physical violence. They tend to dismiss cases of economic or psychological violence if no bodily injuries accompany such acts. This is a very wrong perception of domestic violence, in contradiction with international standards. For instance, the Istanbul Convention imposes an obligation on member states to take necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person’s psychological integrity through coercion or threats is criminalised[10]. The Council of Europe Parliamentary Assembly Resolution 1825 (2011) on psychological violence highlights that ‘…it is of utmost importance to combat psychological violence, not only because it is a serious form of violence which leaves deep and lasting scars on the victims, but also because, unless it is stopped, it often escalates into physical violence.’[11]

As a result of the legislative amendments, in many cases of domestic violence the punishments applied to perpetrators do not have any preventive and deterrent effect. There is no liability for psychological and economic violence although such acts are in the Criminal Code. The sanctions applied for a domestic violence offence under the Contravention Code are community service from 40 to 60 hours or contravention arrest from 7 to 15 days. There are some exceptions to contravention arrest. It shall not be applied to persons with severe disabilities, military staff of the Ministry of the Interior, juveniles, pregnant women, women who have children under the age of 8, individuals who are sole breadwinners of children aged under 16 and retired individuals. On the other hand, community service is applied only with the consent of the perpetrator. Hence, when a domestic abuser is retired or is the sole breadwinner who refuses to undergo the sanction in the form of community service, no sanction will be applied to him/her. Considering that most cases are contravention cases, perpetrators are mostly given a minimum sanction of 40 hours of community service. It is very seldom that contravention arrest is applied, while individuals exempted from contravention arrest and refusing community service avoid any liability for acts of domestic violence. The ECtHR judgments in the Eremia group of cases referred to lack of deterrent effect of the measures applied by the national authorities. Considering the aforementioned, the legislative amendments which the Government referred to in its report to the Committee of Ministers[12] had, in fact, the effect opposite to deterring perpetrators. They rather encourage them to perpetuate the acts of violence given the impunity or milder sanctions applied.

Conclusion

The Moldovan state authorities, in their efforts to enforce the ECtHR judgments and undertake general measures, continue to prioritize the rights of perpetrators and treat with less significance the rights, needs and interests of victims of domestic violence. An example to this end is the introduction of article 78/1 in the Contravention Code and, hence, de facto decriminalisation of domestic violence in Moldova. Even if Article 201/1 of the Criminal Code, in a new wording, toughens the punishment for committing domestic violence crime, it is not applied to the extent expected due to the contravention liability introduced for insignificant bodily injuries caused by an act of violence. Since 16 September 2016, when Law No. 196 came into force, the courts have acquitted defendants or terminated proceedings in several pending criminal domestic violence cases on the ground that the defendants were not charged with causing light, medium or severe bodily injuries, which became a mandatory condition to classify an act of violence as a crime. Hence, following the legislative amendments, the chances to deter domestic abusers, in particular for acts of violence not resulting into bodily injuries, significantly decreased as the punishments applied to them became milder and disproportionate to the acts committed.

The ECtHR reminds the Council of Europe member states that, in line with the Convention, they have the obligation not only to adopt laws, but also to apply them efficiently in order to observe the rights guaranteed by the Convention as ‘…particular vulnerability of the victims of domestic violence and the need for active State involvement in their protection has been emphasised in a number of international instruments.’ [13] So far, the Republic of Moldova has made some progress in adopting necessary laws but still needs to ensure their effective application to guarantee that victims of domestic violence are protected and that perpetrators are brought to justice.

[1] Council of Europe Convention on preventing and combating violence against women and domestic violence signed by the Republic of Moldova on 6 February 2017 (Istanbul Convention)

[2] https://hudoc.exec.coe.int/eng#{%22fulltext%22:[%22eremia%22],%22EXECDocumentTypeCollection%22:[%22CEC%22],%22EXECIdentifier%22:[%22004-7033%22]}

[3] Idem

[4] https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22004-14042%22]}

[5] https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22004-14056%22]}

[6] https://hudoc.exec.coe.int/eng#{"EXECIdentifier":["004-14229"]}

[7] https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=090000168076d4d6

[8] http://politia.md/sites/default/files/ni_violenta_in_familie_12_luni_2017_plasare_web.pdf

[9] Idem

[10] Article 33 of the Council of Europe Convention on preventing and combating violence against women and domestic violence signed by the Republic of Moldova on 6 February 2017

[11] http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=18052&lang=en

[12] https://rm.coe.int/168075998d%20(3;

[13]  ECtHR, Case of Bevacqua and S. v. Bulgaria, Judgment of 12 June 2008

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

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.

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

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 by Aiden Frazier on Unsplash

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