Ministers’ Deputies
Decisions

CM/Del/Dec(2007)997 8 June 2007
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997th (DH) meeting, 5-6 June 2007

Decisions adopted at the meeting

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997th DH meeting – 6 June 2007

Item a.

Adoption of the Annotated Agenda and Order of Business

Decisions

The Deputies

1. agreed to postpone the following items placed on the draft annotated Agendas of their 997th meeting (DH)):

- 1 case against Italy
39221/98+ Scozzari and others, judgment of 13/07/00 – Grand Chamber - Interim Resolutions ResDH(2001)65 and ResDH(2001)151

- 1 case against Moldova
53773/00 Istrate, judgment of 13/06/2006, final on 13/09/2006

- 1 case against Poland
48542/99 Zawadka, judgment of 23/06/2005, final on12/10/2005

- 1 case against Romania
28871/95 Constantinescu, judgment of 27/06/00

- 9 cases against the Russian Federation
5140/02 Fedotov, judgment of 25/10/2005, final on 25/01/2006
58254/00 Frizen, judgment of 24/03/2005, final on 30/11/2005
67099/01 Solodyuk, judgment of 12/07/05, final on 30/11/05
58255/00 Prokopovich, judgment of 18/11/2004, final on 18/02/2005
59261/00 Menesheva, judgment of 09/03/2006; final on 09/06/2006
73225/01 Fedotova, judgment of 13/04/2006, final on 13/09/2006
53203/99 Vanyan, judgment of 15/12/2005, final on 15/03/2006
66041/01 Aldoshkina, judgment of 12/10/2006, final on 12/01/2007
54632/00 Zhukov Stanislav, judgment of 12/10/2006, final on 12/01/2007

- 1 case against Turkey
30502/96 Yıltaş Yıldız Turistik Tesisler A.Ş., judgment of 24/04/03, final on 23/09/03 and of 27/04/2006, final on 23/10/2006, rectified on 12/12/2006

- 5 cases against Ukraine
39042/97 Kuznetsov, judgment of 29/04/03
40679/98 Dankevich, judgment of 29/04/03, final on 29/07/03
41707/98 Khokhlich, judgment of 29/04/03, final on 29/07/03
38812/97 Poltoratskiy, judgment of 29/04/03
39483/98 Nazarenko, judgment of 29/04/03, final on 29/07/03

to their 1007th meeting (15-17 October 2007) (DH);

2. agreed to postpone the following item placed on the draft annotated Agendas of their 997th meeting (DH)):

- 1 case against Moldova
35207/03 Ostrovar, judgment of 13/09/2005, final on 15/02/2006

to their 1013th meeting (3-5 December 2007) (DH);

3. taking into account decisions 1 and 2 above, adopted the agenda of their 997th (DH) meeting as it appears in documents CM/Del/OJ/DH(2007)997.

997th DH meeting – 6 June 2007

Item c.

Item c. Preparation of the next meeting (DH)
(1007th, 15-17 October 2007)

Decision

The Deputies,

1. approved the preliminary draft Agenda of their 1007th meeting (15-17 October 2007 (DH)), as it appears below;

2. approved the following time-table for the preparation of the meeting:

    a. a list of new items for consideration at the 1007th meetings will be issued in the Preliminary list of items for consideration at the 1007th meeting;

    b. in principle, new judgments of the Court which are final on or before 31 August 2007, will be added;

    c. Delegations wishing to furnish information concerning the items appearing on this list for the 1007th meeting are invited to make such information available to the Secretariat before 3 September 2007;

    d. Sections 4.1, 4.2, 4.3, 5 and 6.1, together with the draft decisions, will be placed on the Committee of Ministers’ Internet site on 26 September 2007 and the accompanying addenda will be distributed shortly afterwards;

    e. Sections 2, 3 and 6.2, together with the draft decisions, will be placed on the Committee of Ministers’ Internet site on 5 October 2007;

    f. the order of business will be distributed on 5 October 2007.

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997th DH meeting – 6 June 2007

Item d.

Measures to improve the execution of the judgments of the European Court of Human Rights
(CM/Inf/DH(2007)12 revised, DD(2007)225, DD(2007)316, CDL-AD(2006)036 rev.)

Decision

The Deputies,

1. took note of the report of the Venice Commission on “Effectiveness of national remedies in respect of excessive length of proceedings”;

2. took note of the Secretariat’s memorandum on “The monitoring of the payment of sums awarded by way of just satisfaction” and invited delegations to submit further comments on the issues raised in the memorandum;

3. took note of the latest developments concerning information technology;

4. decided to resume consideration of the measures to improve the execution of the judgments of the European Court of Human Rights at their 1007th meeting (15-17 October 2007) (DH).

997th DH meeting – 6 June 2007

Item e.

First annual report of the Committee of Ministers on the execution of the judgments of the European Court of Human Rights (January – December 2007)
(DD(2007)23, DD(2007)147 and DD(2007)334)

Decision

The Deputies decided to resume consideration of this item at their 1007th meeting (15-17 October 2007) (DH).

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997th DH meeting – 6 June 2007
Section 4.3

Decisions

The Deputies,

1. recalled the four interim resolutions adopted in this case, on 22 April 2005 (ResDH(2005)42), 13 July 2005 (ResDH(2005)84), 1 March 2006 (ResDH(2006)11) and 10 May 2006 (ResDH(2006)26);

2. noted with relief that the applicants Ivanţoc and Popa1 had finally regained their freedom;

3. strongly regretted however that despite the injunction of the European Court in its judgment of 8 July 2004 according to which “the respondent states [were] to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release”, they were only released on 2 and 4 June 2007 respectively;

4. underlined, in the light of this situation, the obligation incumbent on respondent states under Article 46, paragraph 1, of the Convention to erase, as far as possible, the consequences of the violations at issue in this case;

5. noted, in this respect, that Mr Ivanţoc and Mr Popa have lodged a new application, pending before the European Court, claiming several violations of the Convention because of the prolongation of their arbitrary detention beyond the 8 July 2004;

6. accordingly instructed the Secretariat to prepare a draft interim resolution, at the latest for their 1002nd meeting (11 July 2007).

- 1 case against Moldova and the Russian Federation
48787/99 Ilaşcu and others, judgment of 08/07/2004, Grand Chamber, Interim Resolutions ResDH(2005)42, ResDH(2005)84, ResDH(2006)11 and ResDH(2006)26
CM/Inf/DH(2006)17 revised 32, CM/Inf/DH(2006)52 revised 2

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997th DH meeting – 6 June 2007
Section 4.3

Decisions

The Deputies,

1. noted with grave concern that the Turkish authorities have still not responded to Interim Resolution CM/ResDH(2007)26 of 4 April 2007 calling upon them to abide by their obligation under Article 46, paragraph 1, of the Convention to redress the violations found in respect of the applicant and strongly urging them to remove the legal lacuna preventing the reopening of domestic proceedings in the case of Hulki Güneş, as well as in the cases of Göçmen and Söylemez;

2. deplored in particular that no progress has been reported by the Turkish authorities regarding the legislative reform under way and that no time-frame has been provided for this reform;

3. strongly urged once more the Turkish authorities to abide without further delay by their obligation under Article 46, paragraph 1, of the Convention to redress the violations found in respect of the applicants;

4. decided to resume consideration of these items at their 1007th meeting (15-17 October 2007) (DH), if necessary, on the basis of a new draft interim resolution to be prepared by the Secretariat.

- 3 cases against Turkey
28490/95 Hulki Güneş, judgment of 19/06/03, final on 19/09/03
Interim Resolutions ResDH(2005)113 and CM/ResDH(2007)26
72000/01 Göçmen, judgment of 17/10/2006, final on 17/01/2007
46661/99 Söylemez, judgment of 21/09/2006, final on 21/12/2006

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997th DH meeting – 6 June 2007
Section 4.3

Decisions

The Deputies, recalling their Interim Resolution CM/ResDH(2007)25 of 4 April 2007 and reiterating the various questions and concerns it contains,

On the issue of missing persons:

1. noted with satisfaction the progress achieved by the CMP and invited the Turkish authorities to continue to keep the Committee of Ministers informed of the developments in this context, in particular as regards the first returns to the families of the remains of their relatives, which are reported to be imminent;

2. recalled moreover, that the Turkish authorities had been invited to provide information on the additional measures required to ensure the effective investigations called for by the Court's judgment;

On the issue of the property rights of the enclaved persons:

3. noted that it seems that an interference in the property rights of these persons still subsists and invited the Turkish authorities to provide further information in this respect;

4. also noted that the very recent information submitted by both the Turkish and the Cypriot authorities raises important questions requiring deeper consideration;

On the issue of property rights of displaced persons:

5. recalled the interim resolution of 4 April 2007 in which the Turkish authorities are invited to provide without delay detailed and concrete information on changes and transfers of property at issue in the judgment, as well as information on measures taken to safeguard the property rights of the displaced persons as these have been recognised in the judgment of the European Court

6. in this context took note of the finding of the Court in its judgment on the application of article 41 in the case of Xenides-Arestis of 7 December 2006, which became final on 23 May 2007, according to which “the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005”;

7. took also note of the fact that the Court “points out that the parties failed to reach an agreement on the issue of just satisfaction where, like in the case of Broniowski v. Poland (…) it would have been possible for the Court to address all the relevant issues of the effectiveness of this remedy in detail”;

8. invited the Turkish authorities regularly to provide all additional information on the functioning of the new compensation and restitution mechanism set up in the north of Cyprus, as well as on the concrete results achieved in this context,

9. decided to resume consideration of the issues raised in this case at their 1007th meeting (15-17 October 2007) (DH).

- 1 case against Turkey
25781/94 Cyprus against Turkey, judgment of 10/05/01 – Grand Chamber
CM/Inf/DH(2007)10rev3, CM/Inf/DH(2007)10/1rev, CM/Inf/DH(2007)10/3rev2, CM/Inf/DH(2007)10/5, CM/Inf/DH(2007)10/6
Interim Resolutions ResDH(2005)44 and CM/ResDH(2007)25

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997th DH meeting – 6 June 2007
Section 4.3

Decisions

The Deputies,

1. recalled the exceptional character of the individual measures in this case, having regard to the fact that their adoption has been awaited since the judgment of the European Court on the merits delivered in 1996;

2. noted with concern that to date the Turkish authorities did not make any concrete proposal to the applicant, aimed at putting an end to the continuing violation of her property rights found in this judgment and redressing its consequences;

3. urged the Turkish authorities to adopt without further delay the measures necessary to remedy the consequences of the continuing violation of the applicant’s property rights,

4. decided to resume consideration of this case at their 1007th meeting (15-17 October 2007) (DH).

- 1 case against Turkey
15318/89 Loizidou, judgment of 18/12/96 (merits), Interim Resolutions DH(99)680, DH(2000)105, ResDH(2001)80

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997th DH meeting – 6 June 2007
Section 4.2

Decisions

1. took note of the Memorandum CM/Inf/DH(2007)19 prepared by the Secretariat on the issue raised by the judgment of 22/12/2005 concerning the payment of the VAT;

2. took note of the finding of the Court in its judgment on the application of Article 41, according to which “ the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005”;

3. took also note of the fact that the Court “points out that the parties failed to reach an agreement on the issue of just satisfaction where, like in the case of Broniowski v. Poland (…), it would have been possible for the Court to address all the relevant issues of the effectiveness of this remedy in detail”;

4. decided to resume consideration of the issues raised in this case at their 1007th meeting (15-17 October 2007).

- 1 case against Turkey
46347/99 Xenides-Arestis, judgments of 22/12/2005, final on 22/03/2006 and of 07/12/2006, final on 23/05/2007
CM/Inf/DH(2007)19

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997th DH meeting – 6 June 2007
Section 4.3

Decisions

The Deputies,

1. welcomed the positive responses of the authorities concerned to the questions raised during the Round Table (Strasbourg, 30-31 October 2006) and in the Memorandum CM/Inf/DH(2006)19 revised 2 on the failure to enforce domestic judicial decisions by the public authorities;

2. decided to consider separately the cases in which sector-specific measures have been taken (namely the cases of Konovalov, Shpakovskiy, Teteriny, Malinovskiy and Mikryukov) and to resume consideration of these items at their 1007th meeting (15-17 October 2007) (DH), in particular in the light of the analysis to be made by the Secretariat of measures taken so far;

3. decided to resume consideration of the remaining part of the group at their 1007th meeting (15-17 October 2007) (DH) in the light of information to be provided on payment of the just satisfaction, if necessary, and at the latest at their 1013th meeting (3-5 December 2007) (DH), in the light of further information to be provided on individual and general measures;

4. decided to declassify Memorandum CM/Inf/DH(2006)19 revised 3.

- 62 cases against the Russian Federation

997th DH meeting – 6 June 2007
Section 4.3

Decisions

The Deputies,

1. adopted Interim Resolution CM/ResDH(2007)73 as it appears in the Volume of Resolutions (see Appendix I below);

2. decided to resume consideration of these cases at their 1007th meeting (15-17 October 2007) (DH).

- 6 cases against the United Kingdom
- Action of the security forces in the United Kingdom
28883/95 McKerr, judgment of 04/05/01, final on 04/08/01
37715/97 Shanaghan, judgment of 04/05/01, final on 04/08/01
24746/94 Hugh Jordan, judgment of 04/05/01, final on 04/08/01
30054/96 Kelly and others, judgment of 04/05/01, final on 04/08/01
43290/98 McShane, judgment of 28/05/02, final on 28/08/02
29178/95 Finucane, judgment of 01/07/03, final on 01/10/03
Interim Resolution ResDH(2005)20; CM/Inf/DH(2006)4 revised 2 and CM/Inf/DH(2006)4 Addendum revised 3

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997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies, having considered the draft law provided by the Russian authorities:

1. welcomed the initiative taken by the Supreme Court of the Russian Federation and noted the intention of the Russian authorities to organise consultations with the Secretariat with a view to ensuring that the reform is in accordance with the Convention’s requirements;

2. recalled that confirmation on the outcome of the proceedings in the Volkova case is awaited;

3. decided to resume consideration of these items at their 1007th meeting (15-17 October 2007) (DH), in the light of the outcome of these consultations and of further information to be provided on payment of just satisfaction, if necessary, and individual and general measures.

- 12 cases against the Russian Federation

          - 12 cases concerning the quashing of final judicial decisions following a supervisory review

CM/Inf/DH(2005)20
52854/99 Ryabykh, judgment of 24/07/03, final on 03/12/03
63973/00 Androsov, judgment of 06/10/05, final on 15/02/06
23795/02 Chebotarev, judgment of 22/06/2006, final on 22/09/2006
5964/02 Chernitsyn, judgment of 06/04/2006, final on 13/09/2006
1752/02 Fedotova Irina, judgment of 19/10/2006, final on 19/01/20072
24247/04 Prisyazhnikova and Dolgopolov, judgment of 28/09/2006, final on 28/12/2006
69341/01 Romanov Yuriy, judgment of 25/10/05, final on 15/02/06
60974/00 Roseltrans, judgment of 21/07/2005, final on 21/10/2005
73203/01 Smarygin, judgment of 01/12/05, final on 01/03/06
878/03 Stetsenko and Stetsenko, judgment of 05/10/2006, final on 05/01/20073
48758/99 Volkova, judgment of 05/04/2005, final on 05/07/2005
67051/01 Zasurtsev, judgment of 27/04/2006, final on 27/07/2006

997th DH meeting – 6 June 2007
Section 4.3

Decisions

The Deputies,

1 noted the information recently submitted by the Turkish authorities concerning the outstanding issues in these cases;

2. decided to resume consideration of these items at their 1007th meeting (15-17 October 2007) (DH) in the light of a memorandum to be prepared by the Secretariat.

- 209 cases against Turkey
- 140 cases concerning the actions of the Turkish security forces
(See Appendix for the list of cases in the Aksoy group)
(Interim Resolution ResDH(2005)43)
CM/Inf/DH(2006)24

          - 69 Friendly settlements and striking-out concerning actions of the Turkish security forces and involving undertakings by the Turkish government

(See Appendix for the list of cases in the Aksoy group)

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997th DH meeting – 6 June 2007
Section 4.3

Decisions

The Deputies,

1. noted the information recently provided;

2. took note of the fact that an updated information document would be issued in due course; and

3. decided to resume consideration of this item at their 1007th meeting (15-17 October 2007) (DH) if the judicial review in Northern Ireland terminates in time for this item to be considered then, if not, this item will be considered again at their 1013th meeting (3-5 December 2007) (DH).

- 1 case against the United Kingdom
25599/94 A., judgment of 23/09/98
Interim Resolution ResDH(2004)39
CM/Inf/DH(2005)8, CM/Inf/DH(2006)29

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997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. noted with great satisfaction the adoption on 15/03/2007 by the Parliament of the Act authorising reopening of criminal proceedings following a judgment of the European Court and the fact that this law is also applicable to proceedings which are the object of judgments still pending before the Committee of Ministers; this Act has was published on 09/05/2007 and will enter into force on 01/12/2007;

2. noted thus that the applicant will be able to ask for reopening of the proceeding at issue and that in the meantime he has been at liberty on license since 03/05/2007 ;

3. decided to resume consideration of this item not later than in one year.

- 1 case against Belgium

50372/99 Goktepe, judgment of 02/06/2005, final on 02/09/2005

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997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. took note of the continuing commitment of the Bulgarian authorities to ensure without further delay full implementation of these judgments of the Court, with a view to preventing any new violation of the freedom of association of the applicant organisations and their members;

2. took note of the concerns expressed by UMO Ilinden – Pirin relating to the problems it has encountered in obtaining a new registration as a political party, and in particular those due to the application in this process of new, more severe criteria foreseen by the new law on political parties, which the authorities could not have legally imposed in the absence of the violation of the Convention;

3. invited the Secretariat, in view of these particular problems, rapidly to examine, in co-operation with the Bulgarian authorities and the applicants, the avenues at the applicants’ disposal with a view to obtaining the registration of UMO Ilinden – Pirin;

4. invited the Bulgarian authorities to continue to keep the Committee of Ministers informed of the progress made in the adoption and the implementation of the additional general measures required, in particular those concerning the awareness raising of the competent authorities concerning the problems raised in these judgments,

5. decided to resume consideration of all the measures necessary for the implementation of these judgments at their 1007th meeting (15-17 October 2007) (DH).

- 2 cases against Bulgaria
59489/00 United Macedonian Organisation Ilinden - Pirin and others, judgment of 20/10/2005, final on 20/01/2006
59491/00 United Macedonian Organisation Ilinden and others, judgment of 19/01/2006, final on 19/04/2006
CM/Inf/DH(2007)8

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997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. took note of the continuing commitment of the Bulgarian authorities to ensure without further delay full implementation of these judgments of the Court, with a view of preventing any new violation of the freedom of assembly of the applicant organisations and their members;

2. took also note with concern of the recent ban of one meeting of UMO Ilinden – Pirin by the local authorities, on grounds already incriminated by the Court, but noted in this respect with satisfaction that the meeting in question had nevertheless taken place, in particular following the intervention of the Agent of the Government;

3. invited the Bulgarian authorities, taking into account this incident, to take all necessary additional measures aimed at guaranteeing effectively the freedom of assembly of UMO Ilinden and the other applicants and to ensure the effectiveness of the domestic remedies in this respect;

4. invited the Bulgarian authorities to continue to keep the Committee of Ministers informed of the progress made in the adoption and implementation of the additional general measures required, in particular those concerning the awareness raising of the competent authorities concerning the problems raised in these judgments;

5. invited also the Bulgarian authorities to continue to keep the Committee of Ministers informed of the applicants’ current situation, as regard the exercise of their freedom of assembly,

6. decided to resume consideration of all the measures necessary for the implementation of these judgments at their 1007th meeting (15-17 October 2007) (DH).

- 2 cases against Bulgaria
44079/98 United Macedonian Organisation Ilinden and Ivanov, judgment of 20/10/2005, final on 15/02/2006
46336/99 Ivanov and others, judgment of 24/11/2005, final on 24/02/2006

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997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. adopted Interim Resolution CM/ResDH(2007)74, as it appears in the present Volume of decisions (see Appendix II below);

2. decided to resume consideration of these cases at their 1007th meeting (15-17 October 2007) (DH), in the light of information to be provided on the payment of just satisfaction, if necessary;

3. decided to resume consideration of these cases at the latest, at their 1013th meeting (3-5 December 2007) (DH).

- 90 cases against Greece

          - 85 cases of excessively length of proceedings concerning civil rights and obligations before administrative courts (and the lack of an effective remedy)

70626/01 Manios, judgment of 11/03/2004, final on 11/06/2004
19841/02 Agathos and 49 others, judgment of 23/09/04, final on 02/02/05
43848/02 Aggelopoulos, judgment of 09/06/2005, final on 09/09/2005
37429/02 Anagnostopoulos, judgment of 10/02/2005, final on 10/05/2005
10803/04 Andoniadis, judgment of 06/07/2006, final on 06/10/2006
33523/02 Andreadaki and others, judgment of 10/02/2005, final on 10/05/2005
21824/02 Andrianesis and others, judgment of 10/02/2005, final on 06/07/2005
34206/02 Apostolaki, judgment of 17/03/2005, final on 17/06/2005
34339/02 Athanasiadis and others, judgment of 28/04/2005, final on 30/11/2005
10691/04 Athanasiou., judgment of 01/06/2006, final on 01/09/2006
38302/02 Charmantas and others, judgment of 10/02/2005, final on 10/05/2005

13320/03 Damilakos, judgment of 30/03/06, final on 30/06/06
13332/03 Ekdoseis N. Papanikolaou A.e., judgment of 04/05/2006, final on 04/08/2006
18830/03 Fraggalexi, judgment of 09/06/2005, final on 09/09/2005
36251/03 Galatalis, judgment of 13/07/2006, final on 13/10/2006
5077/03 Gavalas, judgment of 04/08/2005, final on 04/11/2005
25324/03 Georgopoulos and others, judgment of 08/12/05, final on 08/03/06
15689/03 Giakoumeli and others, judgment of 08/12/05, final on 08/03/06
70314/01 Gialamas, judgment of 21/10/04, final on 21/01/05
72285/01 Giamas and others, judgment of 10/02/2005, final on 10/05/2005
33339/02 Gika and 9 others, judgment of 17/03/2005, final on 17/06/2005
394/03 Gika and five others, judgment of 30/06/2005, final on 30/09/2005
14173/03 Gili and others, judgment of 08/12/05, final on 08/03/06
72983/01 Goutsia and others, judgment of 10/02/2005, final on 10/05/2005
72030/01 Hadjidjanis, judgment of 28/04/05, final on 28/07/05
5072/03 Ioannidis, judgment of 04/08/2005, final on 04/11/2005
5973/03 Kabetsis, judgment of 21/04/2005, final on 21/07/2005
67591/01 Kalkanis, judgment of 08/07/2004, final on 08/10/2004
33173/02 Kalliri-Giannikopoulou and others, judgment of 10/02/2005, final on 10/05/2005
38688/02 Kallitsis No. 2, judgment of 17/02/2005, final on 06/07/2005
21276/03 Karagiannis Charalambos, judgment of 09/06/2005, final on 09/09/2005
27806/02 Karagiannis Stamatios, judgment of 10/02/2005, final on 10/05/2005
6706/02 Karellis, judgment of 02/12/2004, final on 02/03/2005
37420/02 Karobeïs, judgment of 10/02/2005, final on 10/05/2005
21279/03 Kaskaniotis and others, judgment of 09/06/2005, final on 09/09/2005
32279/02 Katsaros Charalambos, judgment of 10/02/2005, final on 10/05/2005
5957/03 Kollias, judgment of 21/04/2005, final on 21/07/2005
10304/03 Kollokas, judgment of 30/03/06, final on 30/06/06
31259/04 Kortessi, judgment of 13/07/2006, final on 11/12/2006
33819/02 Kosti-Spanopoulou, judgment of 10/02/2005, final on 10/05/2005
33191/02 Kotsanas, judgment of 10/02/2005, final on 10/05/2005
5967/03 Koufogiannis, judgment of 21/04/2005, final on 21/07/2005
72289/01 Kouremenos and others, judgment of 10/02/2005, final on 10/05/2005
34362/02 Koutroubas and others, judgment of 10/02/2005, final on 10/05/2005
73669/01 Kozyris and others, judgment of 10/02/2005, final on 10/05/2005
72211/01 Lagouvardou-Papatheodorou and others, judgment of 10/02/2005, final on 10/05/2005
65430/01 Lalousi-Kotsovos, judgment of 19/05/2004, final on 19/08/2004
31282/04 Lazaridi, judgment of 13/07/2006, final on 11/12/2006
19731/02 Loumidis, judgment of 04/08/2005, final on 04/11/2005
16106/03 Makedonopoulos, judgment of 19/05/2005, final on 19/08/2005
43841/02 Makris, judgment of 07/04/2005, final on 07/07/2005
25536/04 Mantzila, judgment of 04/05/2006, final on 04/08/2006
34358/02 Mikros, judgment of 10/02/2005, final on 10/05/2005
16109/03 Moïsidis, judgment of 19/05/2005, final on 19/08/2005
22029/03 Nafpliotis, judgment of 02/06/2005, final on 02/09/2005
6711/02 Nastos, judgment of 15/07/2004, final on 10/11/2004
31273/04 Nikas and Nika, judgment of 13/07/2006, final on 11/12/2006
21978/03 Nikolopoulos, judgment of 02/06/2005, final on 02/09/2005
32168/03 Nikopoulou, judgment of 29/09/2005, final on 29/12/2005
42589/02 Oikonomidis, judgment of 17/02/2005, final on 17/05/2005
8694/02 Palaska, judgment of 19/05/2004, final on 10/11//2004
33808/02 Papamichaïl and others, judgment of 10/02/2005, final on 10/05/2005
18602/03 Patelaki-Skamagga and others, judgment of 30/06/2005, final on 30/09/2005
18582/03 Patsouraki and others, judgment of 30/06/2005, final on 30/09/2005
5038/03 Plastarias, judgment of 21/04/2005, final on 21/07/2005
33518/02 Refene-Michalopoulou and others, judgment of 17/03/2005, final on 17/06/2005
14165/03 Renieri and others, judgment of 08/12/05, final on 08/03/06
64756/01 Sadik Amet and others, judgment of 03/02/2005, final on 03/05/2005
37428/02 Selianitis, judgment of 10/02/2005, final on 10/05/2005
5081/03 Spyropoulos, judgment of 04/08/2005, final on 04/11/2005
14127/03 Stamos, judgment of 19/05/2005, final on 19/08/2005
34366/02 Stathoudaki and others, judgment of 10/02/2005, final on 10/05/2005
42108/02 Tavlikou-Vosynioti, judgment of 09/06/2005, final on 09/09/2005

16696/02 Theodoropoulos and others, judgment of 15/07/2004, final on 15/10/2004
9673/03 Tsamou, judgment of 21/04/2005, final on 21/07/2005
42320/02 Tsantiris, judgment of 01/12/05, final on 01/03/06
5085/03 Tsaras, judgment of 04/08/2005, final on 04/11/2005
13464/04 Tsiotras, judgment of 01/06/2006, final on 01/09/2006
17965/03 Tzaggaraki and others, judgment of 26/01/2006, final on 26/04/2006
72270/01 Vasilaki and others, judgment of 10/02/2005, final on 10/05/2005
19431/02 Vayopoulou, judgment of 15/07/2004, final on 15/10/2004
72267/01 Veli-Makri and others, judgment of 10/02/2005, final on 10/05/2005
65501/01 Vergos, judgment of 24/06/2004, final on 24/09/2004
27802/02 Vlasopoulos and others, judgment of 10/02/2005, final on 10/05/2005
5076/03 Vozinos, judgment of 04/08/2005, final on 04/11/2005

          - 5 cases of excessively length of proceedings before civil courts and the lack of an effective remedy

53401/99 Konti-Arvaniti, judgment of 10/04/03, final on 10/07/03
77198/01 Athanasiou, judgment of 29/09/05, final on 29/12/05
20898/03 Chatzibyrros and others, judgment of 06/04/06, final on 06/07/06
11720/03 Inexco, judgment of 27/04/06, final on 27/07/06
3257/03 Sflomos, judgment of 21/04/05, final on 21/07/05

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. recalled, as far as general measures are concerned, the Interim Resolution ResDH(2006)12, adopted in March 2006, in which the Committee of Ministers urged the Moldovan authorities to adopt, without further delay, the legislation necessary to ensure the right of freedom of religion of churches and their members by defining clearly the right to obtain recognition as a religious community and by introducing a remedy in the case of refusal, in conformity with the requirements of the European Convention;

2. noted that the new draft law was adopted by the Moldovan Parliament in the second and last reading on 11/05/2007 and that, for the time being, it is pending before the President of the Republic;

3. regretted that the text of the adopted law has still not been communicated to the Committee of Ministers;

4. declared that they expected that the findings of the European Court have been taken into account in the recently adopted law in order to guarantee its conformity with the Convention, and that this law also reflects the different expertise done by the Secretariat and the experts of the Council of Europe and noted the assurances given by the Moldovan authorities on this matter;

5. declared that they expected, as far as the individual measures are concerned, that the concerns expressed by the applicant Church in February 2007 concerning in particular the registration of certain parishes are resolved by the new law;

6. invited, however, the Moldovan authorities rapidly to remedy all problems that can still be outstanding in the registration of certain entities of the applicant Church, in direct consultation with the Secretariat;

7. decided to resume consideration on the basis of a new draft interim resolution, if need be, of all necessary measures for the execution of this judgment at their 1007th meeting (15-17 October 2007) (DH).

- 1 case against Moldova
45701/99 Metropolitan Church of Bessarabia and others, judgment of 13/12/01, final on 27/03/02
Interim Resolution ResDH(2006)12

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. took note with interest of the information provided by the Polish authorities on the implementation of the new compensation mechanism for claimants concerned by property abandoned in the territories beyond the Bug River implementation of the new compensation mechanism;

2. agreed to resume consideration of this item at the latest at their first DH meeting in 2008, in particular in the light of the evaluation of this mechanism by the European Court which is expected in two similar cases, recently communicated to the parties.

- 1 case against Poland
31443/96 Broniowski, judgment of 22/06/2004 - Grand Chamber and of 28/09/2005 - Friendly settlement (Article 41) Interim Resolution ResDH(2005)58

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. adopted Interim Resolution CM/ResDH(2007)75, as it appears in the present Volume of Decisions (see Appendix III below);

2. recalled that the general measures concerning violations of Articles 5§1 and 5§4 in the Baranowski case have been taken;

3. decided to resume consideration of the Baranowski case at their 1007th meeting (15-17 October 2007) (DH), in the light of a draft final resolution to be prepared by the Secretariat;

4. decided to resume consideration of the other cases at their 1007th meeting (15-17 October 2007) (DH) in the light of information to be provided concerning payment of just satisfaction, if necessary, and at the latest in one year to supervise individual measures, if appropriate, and general measures.

- 45 cases against Poland

- 45 cases of length of detention on remand
25792/94 Trzaska, judgment of 11/07/00
28358/95 Baranowski, judgment of 28/03/00
23042/02 Cabała, judgment of 08/08/2006, final on 08/11/2006
3489/03 Cegłowski, judgment of 08/08/2006, final on 08/11/20064
17584/04 Celejewski, judgment of 04/05/2006, final on 04/08/2006
49929/99 Chodecki, judgment of 26/04/2005, final on 26/07/2005
75112/01 Czarnecki, judgment of 28/07/2005, final on 28/10/2005
5270/04 Drabek, judgment of 20/06/2006, final on 20/09/2006
77832/01 Dzyruk, judgment of 04/07/2006, final on 04/10/2006
7677/02 Gąsiorowski, judgment of 17/10/2006, final on 17/01/2007
31330/02 Gołek, judgment of 25/04/2006, final on 25/07/2006
38654/97 Goral, judgment of 30/10/03, final on 30/01/04
28904/02 Górski, judgment of 04/10/2005, final on 15/02/2006
38227/02 Harazin, judgment of 10/01/2006, final on 10/04/2006

27504/95 Iłowiecki, judgment of 04/10/01, final on 04/01/02
36258/97 J.G., judgment of 06/04/2004, final on 06/07/2004
33492/96 Jabłoński, judgment of 21/12/00
15479/02 Jarzyński, judgment of 04/10/2005, final on 04/01/2006
25715/02 Jaworski, judgment of 28/03/2006, final on 28/06/2006
10268/03 Kankowski, judgment of 04/10/2005, final on 04/01/2006
25501/02 Kozik, judgment of 18/07/2006, final on 18/10/2006
31575/03 Kozłowski, judgment of 13/12/2005, final on 13/03/2006
17732/03 Krawczak, judgment of 04/10/2005, final on 04/01/2006
34097/96 Kreps, judgment of 26/07/01, final on 26/10/01
16535/02 Kubicz, judgment of 28/03/2006, final on 28/06/2006
44722/98 Łatasiewicz, judgment of 23/06/2005, final on 23/09/2005
36576/03 Leszczak, judgment of 07/03/2006, final on 07/06/2006
57477/00 Malik, judgment of 04/04/2006, final on 04/07/2006
13425/02 Michta, judgment of 04/05/2006, final on 04/08/2006
39437/03 Miszkurka, judgment of 04/05/2006, final on 04/08/2006
34052/96 Olstowski, judgment of 15/11/01, final on 15/02/02
6356/04 Pasiński, judgment of 20/06/2006, final on 23/10/2006
42643/98 Paszkowski, judgment of 28/10/2004, final on 28/01/2005
44165/98 Skrobol, judgment of 13/09/2005, final on 13/12/2005
29386/03 Stankiewicz, judgment of 17/10/2006, final on 17/01/20075
30019/03 Stemplewski, judgment of 24/10/2006, final on 24/01/20076
3675/03 Stenka, judgment of 31/10/2006, final on 31/01/20077
9013/02 Świerzko, judgment of 10/01/2006, final on 10/04/2006
33079/96 Szeloch, judgment of 22/02/01, final on 22/05/01
56552/00 Telecki, judgment of 06/07/2006, final on 06/10/2006
29687/96 Wesołowski, judgment of 22/06/2004, final on 22/09/2004
31999/03 Żak, judgment of 24/10/2006, final on 24/01/2007
25301/02 Zasłona, judgment of 10/10/2006, final on 10/01/20078
13532/03 Zborowski, judgment of 31/10/2006, final on 31/01/2007
28730/02 Zych, judgment of 24/10/2006, final on 24/01/2007

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. took note of the information on individual measures provided by the Portuguese authorities, in particular as regards the meeting scheduled for 20 June 2007 with all the persons involved in the matter, including both parents of the child in question;

2. called upon the authorities of the respondent state to continue their efforts with a view to enforcing the agreement regarding the applicant's visiting rights, as required by the Court’s judgment, and to provide the Committee with information in this respect;

3. invited the authorities to submit further information on general measures taken or envisaged;

4. decided to resume consideration of this item at their 1007th meeting (15-17 October 2007) (DH), on the basis of further information to be provided on individual measures;

5. decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH), on the basis of further information to be provided on general measures.

- 1 case against Portugal
73229/01 Reigado Ramos, judgment of 22/11/2005, final on 22/02/2006

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. took note of the information provided by the Portuguese authorities on the progress of the pending domestic proceedings in several cases, and invited them to provide further information on progress in and possible acceleration of the cases that are still pending at the domestic level;

2. noted with interest that many general measures have been taken by the respondent state to remedy the problem of the excessive length of judicial proceedings, but recalled that further information is still awaited, in particular as regards the effectiveness of the reforms;

3. decided accordingly, to resume consideration of these items at their 1007th meeting (15-17 October 2007) (DH) in the light of a draft interim resolution to be prepared by the Secretariat, taking stock of the progress achieved and identifying the outstanding issues.

- 25 cases against Portugal
- Cases of length of judicial proceedings
a. Cases before civil courts
34422/97 Oliveira Modesto and others, judgment of 08/06/00, final on 08/09/00
54926/00 Costa Ribeiro, judgment of 30/04/03, final on 30/07/039
53997/00 Dias Da Silva and Gomes Ribeiro Martins, judgment of 27/03/03, final on 27/06/03
53534/99 Esteves, judgment of 03/04/03, final on 03/07/03
56345/00 Ferreira Alves No. 2, judgment of 04/12/03, final on 04/03/04
53937/00 Ferreira Alves, Limited, judgment of 27/02/03, final on 27/05/03
49671/99 Ferreira da Nave, judgment of 07/11/02, final on 07/02/03
56110/00 Frotal-Aluguer de Equipamentos S.A., judgment of 04/12/03, final on 04/03/04
58617/00 Garcia da Silva, judgment of 29/04/2004, final on 29/07/2004
49279/99 Koncept-Conselho em Comunicação e Sensibilização de Públicos, Lda, judgment of 31/10/02, final on 31/01/03
52412/99 Marques Nunes, judgment of 20/02/03, final on 20/05/03
54566/00 Moreira and Ferreirinha, Lda and others, judgment of 26/06/03, final on 26/09/03
55081/00 Neves Ferreira Sande e Castro and others, judgment of 16/10/03, final on 16/01/04
57323/00 Pena, judgment of 18/12/03, final on 18/03/04
48187/99 Rosa Marques and others, judgment of 25/07/02, final on 25/10/02
59017/00 Soares Fernandes, judgment of 08/04/2004, final on 08/07/2004
44298/98 Tourtier, judgment of 14/02/02, final on 14/05/0210
b. Cases before administrative courts
52662/99 Jorge Nina Jorge and others, judgment of 19/02/04, final on 19/05/0411
55340/00 Sociedade Agrícola do Peral and autre, judgment of 31/07/03, final on 31/10/03

c. Cases before criminal courts
48956/99 Gil Leal Pereira, judgment of 31/10/02, final on 31/01/03
14886/03 Monteiro da Cruz, judgment of 17/01/2006, final on 17/04/2006
50775/99 Sousa Marinho and Marinho Meireles Pinto, judgment of 03/04/03, final on 03/07/03
52657/99 Textile Traders, Limited, judgment of 27/02/03, final on 27/05/0312
d. Case before family courts
51806/99 Figueiredo Simoes, judgment of 30/01/03, final on 30/04/03
e. Case before labour courts
53795/00 Farinha Martins, judgment of 10/07/03, final on 10/10/03

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. noted with interest the measures taken by the Romanian authorities to set up a psychological support for the child;

2. urged the authorities of the respondent state to continue their efforts to ensure the exercise of the visiting and residence rights by the applicant and to provide regularly the Committee with information in this respect;

3. invited the authorities to submit additional information as regards general measures in this case;

4. decided to resume consideration of this item at their 1007th meeting (15-17 October 2007) (DH), in the light of information to be provided on individual measures and at their 1013th meeting (3-5 December 2007) (DH) in the light of information to be provided on general measures

- 1 case against Romania
37284/02 Lafargue, judgment of 13/07/2006, final on 13/10/2006

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. recalled Interim Resolution ResDH(2005)57 in which the Committee of Ministers called upon the Romanian authorities rapidly to adopt the legislative reforms necessary to respond to the criticism made by the Court in its judgment concerning the Romanian system of gathering and storing of information by the secret services;

2. regretted that more than seven years after the date of the judgment of the European Court, the necessary general measures have not yet been adopted;

3. took note of the ongoing legislative reforms in the field of national security;

4. invited the Romanian authorities to provide more concrete information on the relevant legal provisions contained in the reform package, and the possible timetable of their adoption;

5. insisted on the urgency of fully executing this judgment of the European Court;

6. decided to resume consideration of this item at their 1007th meeting (15-17 October 2007) (DH), on the basis of further information to be provided on general measures, if appropriate on the basis of a new draft interim resolution.

- 1 case against Romania
28341/95 Rotaru, judgment of 04/05/00 - Grand Chamber, Interim Resolution ResDH(2005)57

* * *

997th DH meeting – 6 June 2007
Section 4.2

The Deputies, having examined the latest information submitted by the Turkish authorities concerning the implementation of the European Court's judgment in the present case,

1. noted that a draft law has been prepared by the competent Turkish authorities aiming to prevent new violations of Article 3 similar to that found in the present case, and that this draft would be transmitted to the Prime Minister's Office for submission to Parliament;

2. noted in particular the Turkish authorities’ declaration that this law, once adopted, will prevent repetitive prosecutions and convictions of those who refuse to perform military service for conscientious or religious reasons, on grounds of “persistent disobedience” of military orders;

3. noted the authorities' information that this draft law is intended to remedy all negative consequences of the violation for the applicant;

4. invited the Turkish authorities to submit a copy of the draft law to the Committee of Ministers and encouraged them to take the necessary steps to ensure its rapid adoption by the Parliament;

4. decided to resume the consideration of this item at their 1007th meeting (15-17 October 2007) in the light of the information to be provided on the adoption of the draft law.

- 1 case against Turkey
39437/98 Ülke, judgment of 24/01/2006, final on 24/04/2006

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. reiterated the Court’s finding that Turkey “must act without delay to discharge its obligation to ensure that its legislation is clarified so that parliamentary immunity no longer operates in practice to prevent prosecutions for ordinary criminal offences in cases in which members of parliament or their families are involved as possible witnesses or suspects”;

2. took note of the fact that information has recently been submitted concerning the general measures taken in the Code of Criminal Procedure after the finding of the violation;

3. noted that a fresh investigation had been opened in Turkey to shed light on the circumstances of the death of the applicant’s son and urged the Turkish authorities to keep the Committee informed of the measures taken by the domestic authorities in this investigation;

4. decided to resume the consideration of this case at their 1013th meeting (3-5 December 2007) (DH), in the light of the examination of information provided on general and individual measures.

- 1 case against Turkey
28290/95 Güngör, judgment of 22/03/2005, final on 22/06/2005

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. noted the information submitted by the Turkish authorities concerning the reduction of sentence for disobedience;

2. took note of the information concerning the legislative process initiated with a view to remedy the violation in question;

3. decided to resume the consideration of this item at their 1013th meeting (3-5 December 2007) (DH) in the light of the information to be provided.

- 1 case against Turkey
29986/96 A.D., judgment of 22/12/2005, final on 22/03/2006

* * *

997th DH meeting – 6 June 2007
Section 4.2

Decisions

The Deputies,

1. noted the state of progress in the pending proceedings concerning the annulment of the new operation permit of the mining company and the annulment of the urban plan of the mining area;

2. noted that the Turkish authorities are expected to inform the Committee of the general measures envisaged;

3. decided to resume consideration of this item at their 1007th meeting (15-17 October 2007) (DH) in the light of information to be provided on the outcome of the pending domestic proceedings, general measures as well as payment of just satisfaction if appropriate.

- 2 cases against Turkey
46117/99 Taşkın and others, judgment of 10/11/2004, final on 30/03/2005, rectified on 01/02/2005
46771/99 Öçkan and others, judgment of 28/03/2006, final on 13/09/200613

997e réunion DH – 6 juin 2007
Rubrique 4.2

Décisions

Les Délégués,

1. se félicitent d’un certain nombre de mesures législatives et autres, envisagées ou en cours d’adoption pour résoudre le problème structurel du retard et du manquement de l’Etat à son obligation d’assurer l’exécution des décisions judiciaires ;

2. notent toutefois qu’un certain nombre de questions en suspens restent à résoudre par les autorités en vue d’une solution globale à ce problème structurel et les invitent à examiner les propositions faites dans le Memorandum CM/Inf/DH(2007)30 préparé par le Secrétariat ;

3. invitent les autorités à préparer, en consultation avec le Secrétariat, un plan d’action pour l’adoption des mesures nécessaires ;

4. décident de reprendre l’examen de ces points lors de leur 1007e réunion (15-17 octobre 2007) (DH), à la lumière d’informations à fournir sur le paiement de la satisfaction équitable, s’il y a lieu, ainsi que sur les progrès réalisés dans la préparation du plan d’action et dans l’adoption des mesures individuelles et générales nécessaires.

- 153 affaires contre l’Ukraine

* * *

997th DH meeting – 6 June 2007
Section 4.1

Decisions

The Deputies,

1. took note of the Court’s judgment of 6 March 2007, by which it rejected the fourth request of the Polish Government for revision of the judgment on the merits, as well as that on the application of Article 41;

2. took note also of the Polish authorities’ intention to request the referral of the judgment of 6 March 2007 to the Grand Chamber, as well as of their request addressed to the Committee of Ministers to postpone for the last time the examination of this case, awaiting the decision of the panel of five judges,

3. agreed to resume consideration of this case at the latest at their 1013th meeting (3-5 December 2007) (DH) in the light of the decision of the Grand Chamber, with a view to continuing the normal examination of the execution of this case.

- 1 case against Poland

34049/96 Zwierzyński, judgment of 19/06/2001, final on 19/09/2001 and of 02/07/2002, final on 06/11/2002 (Article 41)14

* * *

997th DH meeting – 6 June 2007
Section 4.1

Decisions

The Deputies

1. invited the Russian authorities to take all necessary measures to remedy the consequences of the violations for the applicant as he was expelled from the Russian Federation in breach of the domestic law and in the absence of valid judicial decisions and has been prohibited from re-entering the Russian Federation despite the delivery of a new residence permit;

2. recalled that an action plan is also awaited with regard to the general measures required;

3. decided to resume consideration of this item at their 1007th meeting (15-17 October 2007) (DH), in the light of information to be provided concerning payment of just satisfaction, if necessary; as well as on individual and general measures

- 1 case against the Russian Federation
14139/03 Bolat, judgment of 05/10/2006, final on 05/01/200715

* * *

997th DH meeting – 6 June 2007
Section 5.1

Decisions

The Deputies,

1. took note of the information concerning the draft law destined to amend Article 187 of the Civil Code so that it allows the possibility for married women to keep only their maiden name;

2. decided to resume consideration of this item at their 1013th meeting (3-5 December 2007) (DH) in the light of information to be provided concerning the adoption of this draft law.

- 1 case against Turkey
29865/96 Ünal Tekeli, judgment of 16/11/2004, final on 16/02/2005

Appendix I

Section 4.3

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution CM/ResDH(2007)73
Action of the Security Forces in Northern Ireland
(Case of McKerr against the United Kingdom and five similar cases)

Measures taken or envisaged
to ensure compliance with the judgments of the European Court of Human Rights
in the cases against the United Kingdom listed in Appendix III

(Adopted by the Committee of Ministers on 6 June 2007,
at the 997th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the cases against the United Kingdom listed in Appendix III, in all of which the Court unanimously held that there had been a violation of Article 2 of the Convention in respect of failings in the investigative procedures concerning the death of the applicants’ next-of-kin and in one of which (McShane) the Court also held, unanimously, that there had been a failure by the State to comply with its obligations under Article 34 of the Convention (these findings are summarised in Appendix III to this Resolution);

Recalling the first Interim Resolution on these cases (IntResDH(2005)20), adopted on 23 February 2005, which took stock of the measures taken or envisaged by the United Kingdom authorities until that date and called on the Government of the respondent State rapidly to take all outstanding general and individual measures in order to comply with the Court’s judgments and to keep the Committee regularly informed thereof;
Recalling that at the Summit held in Warsaw in May 2005, the Heads of State and Government underlined among other things that member states must accelerate the execution of the Court’s judgments;

General measures

Noting the additional information provided by the Government of the respondent State regarding the general measures taken or envisaged since the adoption of the first Interim Resolution (see Appendix I);

Welcoming the significant progress that has been made;

Recalling that on the basis of the developments which have taken place and the clarifications given, the Committee has thus been able at the 948th (DH) meeting (November 2005) to close its examination of several aspects, namely the issues regarding

    - the role of the inquest procedure in securing a prosecution in respect of any criminal offence,
    - the scope of examination of inquests,
    - the compellability of witnesses at inquests,
    - the disclosure of witness statements prior to the appearance of a witness at the inquest and
    - legal aid for the representation of the victim’s family;

Recalling that details of the measures adopted and the reasons for the Committee’s decision to close these issues have been explained in the memoranda made public by the Committee (the latest being CM/Inf(2006)4 revised 2);

Noting however that several issues remained outstanding, which are considered below;

    - The lack of independence of police investigators investigating an incident from those implicated in the incident

Stressing the importance of securing independent police investigations in all cases in which Article 2 of the Convention might be at issue;

Recalling further the longstanding practice of the Chief Constable of the Police Service of Northern Ireland (PSNI) to request that serious incidents involving police officers be investigated by officers from another police force (“calling in arrangements”);

Noting that the United Kingdom Government has recently assured the Committee that where the Chief Constable is satisfied that there are objective reasons to believe that an investigation by the PSNI would not be seen to be independent and no other independent investigation routes are available, he will promptly call in another Police Force to investigate the incident or incidents;

Recalling that decisions not to “call in” are subject to judicial review if an application in this regard is made;

Recalling the establishment in 2000 of the Police Ombudsman who has the power to investigate complaints against the police, to supervise the investigation of complaints by the Chief Constable and to investigate other matters of her own motion;

Noting further that Section 55(2) of the Police Service (Northern Ireland) Act 1998 provides that, “The Chief Constable shall refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person”;

Noting the clarifications given as regards the Ombudsman’s powers to efficiently investigate complaints, and the authority of the Ombudsman’s findings in the context of the Prosecution Service’s decision whether or not to initiate prosecution;

Noting also the Police Ombudsman’s duty to liaise effectively with victims’ families;

Noting that the Police Ombudsman is currently conducting a five-yearly review of the working of the police complaints system focused on the operation of the legislation governing the operation of the Police Ombudsman’s office;

Stressing the importance for the Police Ombudsman to possess the necessary means and powers with a view to conducting effective investigations in conformity with the Convention requirements;

      INVITES the Government of the respondent State to provide the Committee with the Police Ombudsman’s report of the five-yearly review of her powers and with the response of the authorities to its content;

- Defects in the police investigations

Noting the improved safeguards for the independence of police investigations and their relevance for the efficiency of these investigations;

Recalling the establishment, on 28 March 2003, of the Serious Crimes Review Team (SCRT), which has the task of providing a thorough and independent reappraisal of unresolved cases, with the aim of identifying and exploring any evidential opportunities that exist, and, if evidential opportunities are identified, to proceed with the investigation of the crime;

Noting with interest the establishment in late 2005 of the Historical Enquiries Team (HET), which has the same task and powers as the SCRT, but specifically in relation to historical cases attributable to the security situation in Northern Ireland between 1968 and 1998;

Welcoming the family-centred approach of the HET;

Recalling that the competence of the Police Ombudsman also covers past cases which might also fall within the remit of the HET;

Emphasising the importance, in particular for the victims’ families, of good coordination between the HET and the Police Ombudsman as regards cases in which both of them have an investigative role to play, and in this context welcoming ongoing discussions on the Ombudsman-HET Protocol;

Considering that the HET has only approximately a year ago started reviewing cases assigned to it;

Emphasising the need for rapid progress in the investigation into all past cases that fall within the remit of the HET and/or the Police Ombudsman;

      WELCOMES the progress achieved as regards the establishment of appropriate institutions for the purpose of conducting effective police investigations;

      INVITES the authorities to continue to keep the Committee informed as regards the progress made in the investigation of historical cases, and in particular to provide information concerning concrete results obtained in this context both by the HET and by the Police Ombudsman;

    - The lack of public scrutiny of and information to victims’ families on reasons for decisions of the Director of Public Prosecutions not to bring any prosecution

Noting that the Code for Prosecutors came into operation in June 2005, which among other things sets out the Prosecution Service’s policy on the giving of reasons for non-prosecution, including in cases where death is, or may have been, occasioned by the conduct of agents of the state;

Noting further that decisions of the Prosecution Service not to prosecute are subject to judicial review if an application in this regard is made;

      DECIDES to close its examination of this issue;

    - The fact that the public interest immunity certificate in McKerr had the effect of preventing the inquest examining matters relevant to the outstanding issues in the case

Noting the clarifications the United Kingdom authorities have provided on the new procedure, established in 2004, regarding public interest immunity certificates in inquest proceedings according to which the decision whether to issue such certificates is now taken by the coroner or the judge as the case may be, and that when making such decisions these officials today have access to the relevant information;

Noting further that coroners’ decisions regarding public interest immunity certificates are subject to judicial review if an application in this regard is made;

DECIDES to close its examination of this issue;

    - The fact that the inquest proceedings did not commence promptly and were not pursued with reasonable expedition

Taking note of the recent extensive reforms of the Coroners Service in Northern Ireland;

Welcoming the statement made by the United Kingdom authorities that these reforms will significantly shorten the length of inquest proceedings and the time before which an inquest will be opened;

Noting however that no concrete result of these reforms is yet measurable, because of the recent date on which these reforms were implemented and by the fact that all cases are treated in chronological order;

      INVITES the authorities of the respondent State to continue to keep the Committee informed as regards the concrete effects of the reforms of the Coroners Service of Northern Ireland, in particular on the length of inquest proceedings and the length of the period before an inquest is opened;

- The application of the package of measures to the armed forces

Taking into account that cases in which a death occurs that might have been caused by an army officer are investigated by the police;

Noting that all the above-mentioned improvements apply to investigations into incidents involving army officers in which Article 2 of the Convention might be at issue, also if the incident in question took place in the framework of a joint operation of the army and the police;

Noting in particular that the United Kingdom Government has recently assured the Committee that where the Chief Constable is satisfied that there are objective reasons to believe that an investigation by the PSNI would not be seen to be independent and no other independent investigation routes are available, he will promptly call in another Police Force to investigate the incident or incidents arising from joint police/military operations;

DECIDES to close its examination of this issue;

Individual measures

Noting that the United Kingdom authorities view their obligations to take appropriate measures to implement the judgments in these cases as arising out of Article 46 rather than Article 2;

Recalling that the Court in principle refuses to indicate appropriate individual measures in such cases, but rather considers that it falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may be required in practical terms by way of compliance in each case;

Recalling in this regard the respondent State’s obligation under the Convention to conduct an investigation that is effective “in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible”, and the Committee’s consistent position that there is a continuing obligation to conduct effective investigations inasmuch as procedural violations of Article 2 were found by the Court in these cases (see inter alia the first Interim Resolution in these cases, ResDH(2005)20);

Noting with interest the information provided by the Government of the respondent State regarding individual measures to erase the consequences of the violations found in these cases for the applicants and in particular that the investigations are ongoing (see Appendix II);

Regretting however that in this field, as opposed to in the field of general measures, progress has been limited and that in none of the cases an effective investigation has been completed;

Stressing that the necessity of taking such measures is all the more pressing in these cases, considering the seriousness of the violations found and the time that has elapsed since the European Court’s judgments became final;

      URGES the authorities of the respondent State to take, without further delay, all necessary investigative steps in these cases in order to achieve concrete and visible progress;

      INVITES the Government of the respondent State to keep the Committee regularly informed thereof;

DECIDES to pursue the supervision of the execution of the present judgments until the Committee has satisfied itself that all general measures have been adopted and their effectiveness in preventing new, similar violations has been established and that all necessary individual measures have been taken to erase the consequences of the violations found for the applicants,

DECIDES therefore to resume consideration of these cases, as regards outstanding individual measures at each of its DH meetings and as regards general measures at intervals not longer than six months.

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Appendix I to Interim Resolution CM/ResDH(2007)73

General measures

Additional information provided by the Government of the United Kingdom to the Committee of Ministers since the first Interim Resolution in these cases (Res/DH(2005)20) on general measures taken so far or envisaged to comply with the European Court’s judgments

The Government of the United Kingdom recalls at the outset the information already provided and summarised in the first Interim Resolution in these cases (ResDH(2005)20), adopted at the 914th (DH) meeting (February 2005). They have provided the following additional information with respect to general measures to comply with the European Court’s judgments in the present cases. This information is described in more detail in the memorandum on these cases (CM/Inf/DH(2006)4 revised 2) and in the addendum to this memorandum (CM/Inf/DH(2006)4 Addendum revised 3), both of which are public. The information below is categorised similarly as the information reflected in these documents.

A – Lack of independence of police investigators investigating an incident from those implicated in the incident

- Police Ombudsman

As regards the powers of the Police Ombudsman, legislation places a bar on the Ombudsman investigating matters which already have been the subject of disciplinary or criminal proceedings, except where there may have been a criminal offence or disciplinary proceedings, the case is grave or exceptional and there is fresh evidence. However, these conditions apply only to complaints made by members of the public to the Ombudsman. A number of public authorities (such as the Chief Constable or the Secretary of State) may also refer a case to her, and in some cases must do so. In this context, Section 55(2) of the Police Service (Northern Ireland) Act 1998 provides that “The Chief Constable shall refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person”. The Ombudsman may also, at her own discretion, begin an investigation. This power applies if it appears that a member of the police force may have committed a criminal offence or acted in a manner which would justify disciplinary proceedings and it is in the public interest for an investigation by the Ombudsman to take place. The Ombudsman has never been challenged over the exercise of her power to call herself into a case. Both the Chief Constable and the Ombudsman would take into account their respective obligations under the Convention, and Article 2 in particular, when considering the exercise of their discretion to refer or call-in a case.

The fact that a person has left the police force does not mean that they may not be investigated by the Ombudsman; what is relevant is whether or not a person was a member of the police force at the time of the incident under investigation. In the case of a person off duty, what is relevant is whether or not their status as a member of the police is relevant to the incident. A person who is no longer a serving police officer may no longer be the subject of disciplinary proceedings. This means that former officers are in the same position as other civilians when it comes to the powers the Ombudsman has to compel cooperation with an investigation. The legislation confers on the Ombudsman powers under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see section 56 of the Police (Northern Ireland) Act 1998), so that her powers are the same as those of the police. Whether or not the police or the Ombudsman have a power to compel cooperation in a particular case will depend on whether or not the person is a witness or a suspect.

Two examples of retrospective investigations carried out by the Police Ombudsman, in the cases of Brown and Devenny, have been provided to the Secretariat. In these cases the Ombudsman, after investigating the police handling of the respective investigations, made a number of recommendations to the Police Service of Northern Ireland (PSNI). The public statements she made in both cases can be found on her website at www.policeombudsman.org. The recommendations the Ombudsman made in these cases were implemented by the PSNI.

Where the Ombudsman finds evidential opportunities relating to the actions of police officers they will be exploited and, where appropriate, recommendations for prosecution forwarded to the Director of the Public Prosecution Service for Northern Ireland (DPP). Where evidence of crimes by individuals who are not police officers is uncovered this information will be passed to the PSNI for appropriate action.

The Public Prosecution Service disagreed with the recommendation of the Police Ombudsman on prosecution in roughly 3% of the cases that were transmitted.

As regards the average time needed for a Police Ombudsman investigation, more minor cases are dealt with by an informal resolution process requiring a minimal (informal) investigation and followed by a form of mediation. 91% of complaints suitable for informal resolution are referred within 3 days to the police who carry out the process which can normally be completed quite quickly. More serious cases would be dealt with by formal investigation and would ultimately involve the DPP and the Coroner. The average time for formal investigations to be completed is 117 days. This includes time taken up by the Coroner and the DPP fulfilling their role.

The Police Ombudsman has an extensive family liaison process. This involves the appointment of a named family liaison officer, with an identified telephone number, who is available to families as reasonably required. Families will be updated at 6-weekly intervals on the progression of the investigation. This process is quality assured and the most recent quality assurance tests indicate that such updating is occurring in 81% of cases. The Police Ombudsman has a target for the incoming year of ensuring that 90% of families are updated on a six-weekly basis. Ultimately the aim is to update all families every six weeks. The assumption is that information should be shared with families unless there are cogent reasons to withhold such information. There is a provision of the Police (Northern Ireland) Act 1998 which makes it a criminal offence for staff to disclose information other than in accordance with the Act. However this does not prevent proper disclosure of information to families.

The Police Ombudsman is aware that families need as much information as can be factually proved, as rapidly as it becomes available. Material made available to families has included information in relation to informants, intelligence held by the Royal Ulster Constabulary(RUC)/PSNI, police processes and practices, and the reasons given by officers in justification of their actions. The Police Ombudsman recognises the need to protect informants and also the need to protect sensitive investigation methodology. On occasion witnesses have also stated that they have been threatened or intimidated when they have given evidence to the Police Ombudsman’s investigators, and the need to protect such witnesses means that details of their addresses etc will not be released. On occasion the Police Ombudsman has refrained from giving families information because disclosure of the information could prejudice an ongoing trial (accused persons could argue that the release of information would prejudice their ability to defend themselves). In those circumstances (and they are rigorously assessed) the Police Ombudsman will inform the families of matters in so far as it is possible, and will advise them that at the conclusion of the ongoing criminal proceedings further disclosure will be made to them.

A five-yearly review of the working of the police complaints system by the Police Ombudsman is currently ongoing. The review focuses on the operation of the legislation governing the operation of the Police Ombudsman’s office. It is a large exercise involving extensive consultation both internally and externally. The review is expected to be completed in autumn 2007. When the review is completed and presented to the Secretary of State, the Northern Ireland Office will respond to its content.

- “Calling-in” arrangements

The arrangements used by the PSNI as regards calling-in arrangements have worked and continue to work well.

Generally, a decision to “call in” outside assistance will be initiated by the Chief Constable himself. In other cases, for example, cases which might fall within the remit of the Historical Enquiries Team (HET) (see under B), the decision to call in outside assistance may be taken by the Chief Constable after a considerable level of discussion with the Northern Ireland Office and other stakeholders, including the families. The decision to use outside assistance, however, remains a decision for the Chief Constable.

Section 55(2) of the Police Service (Northern Ireland) Act 1998 provides that “The Chief Constable shall refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person”.

Where the Chief Constable is satisfied that there are objective reasons to believe that an investigation by the PSNI would not be seen to be independent and no other independent investigation routes are available, he will promptly call in another Police Force to investigate the incident or incidents.

The decision by the Chief Constable whether or not to call in an outside force is subject to judicial review.

The question of resources is in general not decisive in the decision to “call in” assistance from another police service. In Northern Ireland there are no cases where resources, or a lack of resources, has been decisive in any decision to “call in” or not.

B - Defects in the police investigation

The United Kingdom authorities have indicated that, on 28 March 2003, the Chief Constable of the PSNI established the Serious Crimes Review Team (SCRT), whose remit is “to review a number of unsolved major crimes, including murder and rape, where it is thought that new evidential leads may be developed”. If, as a result of this review, it appears that new evidence might come to light, reinvestigation of any of the present cases might follow.

The PSNI, with the support of and funding from the Northern Ireland Office, has established a new unit of the SCRT, that is dedicated to re-examining all deaths attributable to the security situation in Northern Ireland between 1968 and the Good Friday Agreement in 1998 (“the Troubles”). This Historical Enquiries Team (HET) has been designed to provide a thorough and independent reappraisal of unresolved cases, with the aim of identifying and exploring any evidential opportunities that exist. The HET is operationally independent and reports directly from its Head of Branch to the Chief Constable.
The review process is designed to be exhaustive, and includes a re-examination of all documentation, any exhibits associated with the case and any intelligence on the case (both internal, partner agencies and open source). The intention is to take advantage of any developments in forensic science (e.g. fingerprint technology, DNA possibilities) to identify any evidential opportunities arising from witnesses (either people never seen or where the passage of time allows for changed loyalties etc), and to exploit any potential opportunities from intelligence that may have arisen since or which were not used at the time.
If evidential opportunities are identified during the review process by the HET, the investigation of the death will proceed and where there is credible evidence available reports will be forwarded to the Public Prosecution Service with a view to prosecution. The investigation process will be undertaken 'in-house' by the HET, and will be focused on the evidential opportunities that the review process identifies.
The first and primary objective of the HET is to provide a 'family centred' approach, seeking to identify and address issues that are unresolved from the families' perspectives. The HET's intention is to address, as far as possible, all the unresolved concerns that families raise. A bespoke Family Liaison Strategy has been designed, comprising a help desk, individual liaison officers for families and access for families to the two senior commanders in any case that is required. The principle that the HET adopts in dealing with families, underwritten personally by the Chief Constable, is maximum permissible disclosure, in line with legal and ethical considerations.

As regards the possible interplay between the HET and the Police Ombudsman with regard to historical cases, the HET have a very good working relationship with the Office of the Police Ombudsman (OPONI). Since the inception of the unit, discussions have taken place on how issues that affect each agency, within individual or linked cases, can be progressed. A programme of minuted meetings has been instituted, at strategic (monthly), tactical (weekly) and operational (as required) levels. The HET have provided office space and IT support for an OPONI presence at the HET site. To preserve the independence of each party, discussions are continuing on how a parallel investigation process can best be managed in relevant cases. At present, the HET's view is that those cases that allegedly involve the actions of police officers exclusively will be reviewed by the Ombudsman alone, however the HET is committed to supporting them in any way possible that legislation allows. In those cases of parallel investigation (e.g. some police and some external collusion alleged) the meetings structure is designed to facilitate prompt exchange of relevant information and co-ordinated investigative response.

C – Lack of public scrutiny of and information to victims’ families on reasons for decisions of the Director of Public Prosecutions not to bring any prosecution

The Code for Prosecutors came into operation on 13 June 2005. The Code, among other things, sets out the Prosecution Service’s policy on the giving of reasons for decisions not to prosecute. It states that, “the Prosecution Service recognises that there may be cases arising in the future, which it would expect to be exceptional in nature, where an expectation will arise that a reasonable explanation will be given for not prosecuting where death is, or may have been, occasioned by the conduct of agents of the State. Subject to compelling grounds for not giving reasons, including duties under the Human Rights Act 1998, the Prosecution Service accepts that in such cases it will be in the public interest to reassure a concerned public, including the families of victims, that the rule of law has been respected by the provision of a reasonable explanation. The Prosecution Service will reach a decision as to the provision of reasons, and their extent, having weighed the applicability of public interest considerations material to the particular facts and circumstances of each individual case.”

The Code itself is not binding but it gives rise to obligations that can be enforced in law. Judicial review is possible under two heads. Firstly, a freestanding challenge to a failure to give detailed reasons for a decision not to prosecute would be possible under the Human Rights Act, based on the failure to conduct an Article 2-compliant investigation. The possibility to bring such a challenge existed independently of any Code for Prosecutors. Secondly, in accordance with a well developed doctrine in domestic law in the United Kingdom, if a public body states that it will follow a given policy, this creates a legitimate expectation that the body will follow that policy unless there exist compelling reasons not to do so. Judicial review is possible on the basis of this legitimate expectation and is therefore possible on the basis of legitimate expectations arising out of the Code.

On a judicial review of a decision by the Prosecution Service in respect of the giving of reasons for not prosecuting, the court will review whether the reasons given in that case were in accordance with the Code for Prosecutors and were capable of supporting the decision not to prosecute. Such review will be conducted on the basis of consideration by the court of relevant correspondence and affidavit(s) sworn on behalf of the Prosecution Service for the judicial review proceedings. Generally, the court will also have access to relevant witness statements upon which the decision for no prosecution was made by the Prosecution Service.

It is open to the court to conclude that the reasons given are manifestly bad reasons and that the maker of the decision for no prosecution had failed to take relevant matters into account or had taken irrelevant matters into account. In such circumstances the court would almost certainly grant an order of certiorari. The effect of such an Order is to quash the original decision for no prosecution. This would require the Prosecution to reconsider the case and come to a fresh decision on prosecution.

The United Kingdom authorities have provided several examples of decisions on judicial review of decisions by the prosecutor not to prosecute.

D – The inquest procedure did not allow any verdict or findings which might play an effective role in securing a prosecution of any criminal offence and E - The scope of the examination for the inquest was too restricted

By way of example of the application in practice of the principles set out in the Middleton case (R v. Her Majesty's Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent) [2004] UKHL 10) and in the case of Jordan ([2004] NICA 29 and [2004] NICA 30), the United Kingdom authorities provided a total of eleven copies of verdicts on inquests. These included both narrative verdicts and verdicts in which the jury made detailed findings of fact in response to a list of specific questions asked by the coroner.

F – The persons who shot the deceased could not be required to attend the inquest as witnesses

The United Kingdom authorities referred to the information previously provided to the Committee, summed up in the first Interim Resolution in these cases (ResDH(2005)20 of February 2005).

G – Non-disclosure of witness statements prior to the appearance of a witness at the inquest prejudiced the ability of families to prepare for and to participate in the inquest and contributed to long adjournments in the proceedings

The Northern Ireland Court Service has contacted all coroners in its jurisdiction, and all of the coroners confirmed that in Article 2 cases where there is no public interest immunity certificate, families of the deceased will be given witness statements and will be informed of the relevant information that the coroner has, as soon as the relevance of the information and the absence of such a certificate has been established.

H – Absence of legal aid for the representation of the victim’s families

The United Kingdom authorities referred to the information previously provided to the Committee, summed up in the first Interim Resolution in these cases (ResDH(2005)20 of February 2005).

I –The public interest immunity certificate in McKerr had the effect of preventing the inquest examining matters relevant to the outstanding issues in the case

Public interest immunity issues at inquests are dealt with in the same manner as in litigation, but modified to take account of the coroner's inquisitorial role. If the coroner identifies documents which contain material the disclosure of which would cause real damage to the public interest, for example the identity of an informant, revelation of whose role would put his or her life at risk (thereby engaging Article 2 of the Convention), then it will be for the relevant Minister (or the Chief Constable) to decide whether a claim for public interest immunity should be asserted. 
 
The Minister (or Chief Constable) will conduct a balancing exercise between the damage to the public interest if the material was disclosed and the public interest in disclosure. If he considers the balance falls in favour of disclosure he will not assert a claim for public interest immunity and the material will be disclosed. If he considers the balance falls against disclosure he will assert a claim for public interest immunity. Whether the claim for public interest immunity is asserted by a Minister or by the Chief Constable will depend on the nature of the information which is to be protected and whether a certificate is required. At present in Northern Ireland all public interest immunity certificates are signed by Ministers.
 
If the Minister (or Chief Constable) decides to assert a claim for public interest immunity, the coroner will in turn conduct a similar balancing exercise. He may examine the documents in order to carry out that exercise. The coroner will then make his own decision as to where the balance of the public interest falls. That decision may be that may be that the balance falls in favour of disclosure or against. The coroner is not bound by the Minister's (or Chief Constable’s) decision to assert a claim for public interest immunity. If the coroner decides the balance falls in favour of disclosure the document will be disclosed unless the Minister (or Chief Constable) successfully applies for judicial review. A decision by the coroner in agreement with the Minister’s (or Chief Constable’s) public interest immunity claim could also be challenged by judicial review. Therefore, a judicial authority makes the ultimate decision about whether material should be disclosed or not, taking into account potentially competing Convention rights and the circumstances of the individual case.

The coroner’s decision to allow or disallow a public interest immunity claim may be challenged by judicial review.

J – The inquest proceedings did not commence promptly and were not pursued with reasonable expedition

A paper on Modernising the Coroners Service in Northern Ireland was published by the Northern Ireland Court Service on 1 April 2005. This reforms proposed in this paper have been fully implemented and the new coroners service was launched on 14 June 2006. The programme included the following reforms:

      - the creation of a single Northern Ireland coroners jurisdiction;
      - the appointment of a High Court Judge as presiding judge for the Coroners Service;
      - the creation of a full time coronial judiciary with the appointment of two new full time coroners to work alongside the existing senior coroner;
      - the appointment of coroners liaison officers to provide an improved service to bereaved families, and
      - new accommodation and a new computer system.

In addition, new information leaflets have been developed including a Coroners Service Charter which set out the service standards that can be expected, with specific regard to the families’ rights to participate during coroners investigations and inquests.

The authorities indicated that these reforms will significantly shorten the length of inquest proceedings and the time before which an inquest will be opened. They have also indicated that the overall number of outstanding cases will decrease as a result of the new structure. However, there will always be a number of outstanding cases for reasons outside the coroner's control, for example, cases awaiting the receipt of a final post-mortem report.

Recent statistics available on inquest proceedings show that the average time between the date of death and the start of an inquest for the District of Greater Belfast in 2005 was 108.81 weeks. The coroners are targeting the oldest cases first to deal with the backlog of cases, and this has an impact on the statistics for average time frame. The number of cases pending before the coroner is 1,472. This was the figure at the end of 2005 and this figure excludes the district of North Antrim (which goes up to the end of June 2005). The figure of 1,472 includes all deaths reported to the coroner. In respect of the majority of these deaths the coroner is likely to decide no further investigation is required following inquiries or a post mortem, and that therefore an inquest should not be held.

K – Issues relating the application of the package of measures to the armed forces

The Police Ombudsman’s competence to investigate complaints concerning police conduct extends to complaints concerning police investigations into deaths caused by members of the armed forces.

It is the Chief Constable’s decision on whether to seek assistance from another police force (call-in). This remains the case where operations have been conducted jointly with the armed forces. In making such a decision the Chief Constable exercises his professional judgement. The Chief Constable is very conscious of the need to ensure that, in appropriate cases, an incident involving the armed forces is investigated by persons who are independent of those implicated in the incident.

Where the Chief Constable is satisfied that there are objective reasons to believe that an investigation by the PSNI would not be seen to be independent and no other independent investigation routes are available, he will promptly call in another Police Force to investigate the incident or incidents arising from joint police/military operations.

Decisions by the Chief Constable are, as stated under A, challengeable in the courts through judicial review.

The handling of complaints made against the Armed Forces depends on the specific nature of the complaint. All complaints alleging criminal conduct by soldiers are investigated by the PSNI and the Armed Forces fully cooperate with all such investigations as required. If, following investigation, the police decide a soldier may have broken the law, they will pass the evidence to the Public Prosecution Service which will decide if a prosecution should take place.

Non-criminal or informal complaints are dealt with by either the Civil Secretary at the Armed Forces’ Headquarters Northern Ireland, Lisburn, or a Civilian Representative (Civ Rep), who will conduct an investigation locally. Significantly, as civil servants employed by the Northern Ireland Office, Civ Reps have an impartial status, acting as liaison between members of the local community and the Armed Forces. The vast majority of complaints are resolved informally, to the satisfaction of both parties. In some cases, the Claims Investigation Team (CIT), made up of Royal Military Police (RMP) personnel wholly independent of the military chain of command, will also conduct non-criminal investigations and enquiries. Their primary function is to investigate Litigation Claims lodged against the MOD.

Since 1993 there has been an Independent Assessor of Military Complaints Procedures (IAMCP), who reviews the Army’s procedures for investigating non-criminal complaints against members of the Armed Forces in Northern Ireland, and in doing so seeks to reassure the public that there is independence in the procedures. He may periodically call in at the Headquarters in Northern Ireland to see files or to check on the procedures of an investigation and is given access to relevant files as required. The remit of the IAMCP is set out in Section 98 and Schedule 11 of the Terrorism Act 2000. Under his statutory terms the Assessor can investigate the handling of a, “complaint about the behaviour of a member of Her Majesty's forces under the command of the General Officer Commanding Northern Ireland,” and specifically: “(a) shall keep under review the procedures adopted by the General Officer Commanding Northern Ireland for receiving, investigating and responding to complaints to which this section applies, (b) shall receive and investigate any representations about those procedures, (c) may investigate the operation of those procedures in relation to a particular complaint or class of complaints, (d) may require the General Officer Commanding to review a particular case or class of cases in which the Independent Assessor considers that any of those procedures have operated inadequately, and (e) may make recommendations to the General Officer Commanding about inadequacies in those procedures, including inadequacies in the way in which they operate in relation to a particular complaint or class of complaints.” Further, as outlined in schedule 11, “the Independent Assessor may report to the Secretary of State on any matter which comes to his attention in the course of the performance of his functions.”.

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Appendix II to Interim Resolution CM/ResDH(2007)73

Individual measures

Information provided by the Government of the United Kingdom to the Committee of Ministers
on individual measures taken so far or envisaged to comply with the European Court’s judgments

The United Kingdom authorities have underlined that they view their obligations in these cases as arising out of Article 46 rather than Article 2. The Government has confirmed its commitment to abide by the judgments of the Court in these cases and to implement the judgments, in accordance with Article 46. This commitment is not affected by the findings of the House of Lords in the McKerr judgment of 11 March 2004 (In re McKerr [2004] 1 WLR 807) that the Human Rights Act 1998 does not have retrospective effect and that under domestic law, there was no continuing breach of Article 2 in that case. The House of Lords’ judgment does not address the question of the measures to be taken in implementation of the international obligations arising under Article 46.

In the latter respect, different factors are at issue in each case and some reveal more problems than others. Further proceedings have been conducted and the Government considers that any measures required are under way in each case. The main question, in the Government’s view, is whether, on the facts in each case, a fresh investigation is actually possible. The Government concedes that new investigations in the present cases could not satisfy the Convention requirements in respect of promptness and expedition.

Information regarding the proceedings conducted prior to the judgment in each case is contained in the relevant judgments. The following information, provided by the Government, concerns the measures currently under way in each case:

In the Jordan case, the inquest opened in January 1995 experienced a serious of adjournments relating, inter alia, to a number of judicial review applications by the applicants or in similar cases. The inquest had been suspended pending the outcome of the family’s petition to the House of Lords regarding the scope of the inquest. It is now open for the inquest to proceed following the House of Lords decision of 28 March 2007 in the cases of Jordan and McCaughey (Jordan v. Lord Chancellor and another (Northern Ireland; McCaughey v. Chief Constable of the Police Service Northern Ireland (Northern Ireland) [2007] 2 WLR 754).

Civil proceedings were also instituted in 1992 alleging death by wrongful act. The applicant wishes to await the outcome of the inquest before pursuing civil action further.

In the McKerr case, the family of Mr McKerr brought legal proceedings seeking to compel the Government to provide a fresh investigation into his death. These proceedings concluded with the House of Lords’ judgment, delivered on 11 March 2004 ( reference above). In that case, the House of Lords declined to order a fresh investigation, as it considered that no right to an investigation in accordance with the procedural requirements of Article 2 of the Convention existed under domestic law at the time of the relevant events and that as such, there could be no continuing right under domestic law to such an investigation at present since the Human Rights Act (which came into force on 2 October 2000) did not apply retrospectively. The House of Lords left open, however, the question whether such a continuing obligation existed under international law in this case. Two of the five judges did not address the issue; the remaining three doubted that there was such an obligation. The House of Lords observed that the Committee of Ministers had not yet decided whether the Government’s proposals for implementation (which did not at that time allow for further investigation into the death in McKerr) were sufficient. It may be recalled that the Committee has, since then, adopted the first Interim Resolution in these cases (Res/DH(2005)20).

The case is now a matter for the Police Ombudsman who is responsible for investigating deaths as a result of the actions of a police officer. She will identify possible further evidentiary opportunities and will look into the original police investigation conducted. The case has been referred to the Ombudsman in accordance with the HET/OPONI protocol and the Ombudsman has given an assurance to expedite the case as best she can. OPONI are aware of the issues associated with the case.

The Kelly and others case concerned a single incident in which nine men were killed. These deaths are among 3000 cases which fall within the terms of reference of the HET. The review process is currently underway. Progress depends on evidential leads, and it is therefore impossible to assess at this stage when a final conclusion will be reached.

As regards civil actions, the family of Anthony Hughes issued proceedings against the Ministry of Defence in 1988 and the case was settled in 1991. Six other families, including the Kelly family, issued proceedings in 1990 but the families have not set down the cases for hearing.

The Shanaghan case also falls within the terms of reference of the HET, since the perpetrator of the shooting was never identified. The HET are currently reviewing this case to assess if any new evidential opportunities exist. Research is ongoing in relation to fingerprints. The family met senior officers from the HET and have agreed to engage with the Team. Further engagement between the Senior Investigating Officer and the family have taken place. After this review, the HET will decide how to take the case forward. It is not possible to say at this stage when there will be an outcome from this review.

The applicant has taken no further steps in the civil proceedings commenced in 1994.

In the McShane case, an inquest was opened in May 1998 but adjourned pending the outcome of various legal proceedings and decisions at domestic level. However, a full-time coroner has now been assigned to this inquest which commenced in early 2005. He is now in the process of attempting to obtain further video footage of the incidents surrounding the death of Mr McShane as well as additional statements to which the Committee on the Administration of Justice might have access. In light of the hearing of the Jordan and McCaughey appeal in the House of Lords and following consultation with interested parties, including representatives of the deceased’s family, the coroner had however indicated that he was not minded to list the inquest into the death of Mr McShane prior to judgment being given by the House of Lords. It is now open for the inquest to proceed following the House of Lords decision in Jordan and McCaughey. The coroner remains under an obligation to report to the Director of Public Prosecutions any evidence that comes to light at the inquest that appears to disclose that a criminal offence may have been committed.

This case will also be reassessed by the HET. They allocated the case to the Review and Investigation stage on 13 December 2006.

The applicant has not moved forward with civil proceedings brought against the Ministry of Defence and the Chief Constable of the Royal Ulster Constabulary.

In the Finucane case, two special police inquiries (the first two Stevens inquiries) were instituted to respond to concerns arising out of allegations of collusion between loyalist organisations and the security forces. The first of these two inquiries led to the reporting or charging of 59 people and the conviction of one person of conspiracy to murder persons other than Patrick Finucane. The second inquiry did not lead to the prosecution of any person.

The United Kingdom authorities have indicated that the third Stevens inquiry should be regarded as the individual measure aimed at fully executing the Court’s judgment in this case. The investigation, which started in April 1999, is ongoing. The inquiry is squarely concerned with the Finucane murder. 17 individuals have so far been arrested in the course of the investigation in connection with the murder of Mr Finucane. One person has so far been successfully prosecuted for this murder.

On 15 April 2003, 63 files were submitted to the Prosecution Service by the Stevens Team. The subjects of some of these files are serving or former PSNI and Army personnel. These files remain under consideration by the Prosecution Service, which has kept close contact with the Attorney General regarding the issue.

In addition, the Government announced on 23 September 2004 that steps could now be taken to implement the decision to hold a new inquiry into this death. The inquiry will be held on the basis of the Inquiries Act 2005, which is designed to provide a statutory framework for a wide range of future inquiries, and its provisions are based to a large extent on existing legislation and practice. Most of the inquiries that will be held under it are in the Government’s view not likely to engage Article 2. However, the Government is satisfied that, in those cases in which Article 2 is engaged, the Act is capable of being used to hold an inquiry that will discharge or contribute to the discharge of the state's obligations under that article to provide an effective official investigation. The Government also emphasised that the provisions of the Inquiries Bill had been scrutinised in great detail by Parliament, and that the House of Lords had made a number of amendments to strengthen the role of the inquiry chairman, to increase parliamentary involvement in inquiries and to provide for public access to inquiry records under the Freedom of Information Act 2000.

* * *

Appendix III to Interim Resolution CM/ResDH(2007)73

Judgments concerning violations of the Convention by or involving allegations of collusion by the United Kingdom security forces pending before the Committee of Ministers for supervision of execution

Application
number

Case name

Date of judgment

Date of final judgment

24746/94

Jordan

04/05/2001

04/08/2001

28883/95

McKerr

04/05/2001

04/08/2001

30054/96

Kelly and others

04/05/2001

04/08/2001

37715/97

Shanaghan

04/05/2001

04/08/2001

43290/98

McShane

28/05/2002

28/08/2002

29178/95

Finucane

01/07/2003

01/10/2003

In the above cases the Court found that there had been a violation of Article 2 of the Convention in respect of various failings in the investigative procedures concerning the death of the applicants’ relatives. The various failings may be summarised on a case-by-case basis as follows:

- Lack of independence of police investigators investigating the incident from the officers or members of the security forces implicated in the incident
Jordan, McKerr, Kelly and others, Shanaghan, McShane, Finucane

- The independent police investigation did not proceed with reasonable expedition
McKerr, McShane

- Lack of public scrutiny and information to the victims’ families on the reasons for the decision of the Director of Public Prosecutions not to prosecute any officer in respect of relevant allegations
Jordan, McKerr, Kelly and others, Shanaghan, Finucane

- The inquest procedure did not play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed
Jordan, McKerr, Kelly and others, Shanaghan, McShane, Finucane

- The scope of examination of the inquest was too restricted
Shanaghan, Finucane

- There was no prompt or effective investigation into allegations of collusion
Shanaghan, Finucane

- The persons who shot the deceased, and in the McShane case, the soldier who drove the armoured personnel carrier that fatally injured the applicant’s husband, could not be required to attend the inquest as witnesses
Jordan, McKerr, Kelly and others, McShane

- The non-disclosure of witness statements prior to the appearance of a witness at the inquest prejudiced the families’ ability to prepare for and to participate in the inquest and/or contributed to long adjournments
Jordan, McKerr, Kelly and others, Shanaghan, McShane

- The absence of legal aid for the representation of the victim's family
Jordan

- The public interest immunity certificate had the effect of preventing the inquest from examining matters relevant to the outstanding issues in the case
McKerr

- The inquest proceedings did not commence promptly and did not proceed with reasonable expedition
Jordan, McKerr, Kelly and others, Shanaghan, McShane


Appendix II

Section 4.2

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution CM/ResDH(2007)74
on excessively lengthy proceedings in Greek administrative courts
and the lack of an effective domestic remedy

(Adopted by the Committee of Ministers on 6 June 2007,
at the 997th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”),

Having regard to the large number of judgments of the Court finding Greece in violation of Article 6, paragraph 1, of the Convention on account of the excessive length of judicial proceedings before administrative courts, in particular before the Supreme Administrative Court (Council of State) (see Manios group of cases in Appendix to this resolution);

Having regard to the fact that in many of the above cases as well as in cases concerning civil courts (see the Konti-Arvaniti group in Appendix), the Court also found that there had been a violation of Article 13 of the Convention as the applicants had no effective domestic remedy whereby they might enforce their right to a “hearing within a reasonable time”, as guaranteed by Article 6, paragraph 1, of the Convention;

Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations, as well as to adopt general measures preventing new violations of the Convention similar to those found, including provision of effective domestic remedies against possible violations;

Stressing the importance of rapid adoption of such measures in the cases at issue as they reveal structural problems giving rise to a large number of new, similar violations of the Convention;

Recalling that excessive delays in the administration of justice constitute a serious danger for the respect of the rule of law;

Recalling furthermore the Committee of Ministers’ Recommendation to member states Rec(2004)6 regarding the need to improve the efficiency of domestic remedies;

Measures to accelerate proceedings before administrative courts

Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found (restitutio in integrum), having invited them in particular to accelerate, as far as possible, the proceedings which were still pending after the findings of violations by the Court;

Welcoming the subsequent termination of proceedings before the Council of State in the cases of Kabetsis, Kaskaniotis, Makedonopoulos, Moïsidis and Tsantiris, which were pending at the time of the Court’s judgments;

Recalling the constitutional, legislative and other reforms adopted so far by the authorities in order to remedy the problems related to the excessive length of proceedings in administrative courts (see Final Resolution ResDH(2005)65 concerning cases of excessive length of proceedings before administrative courts (Pafitis and other cases);

Noting with concern, however, that the European Court continues to find violations of Article 6, paragraph 1, due to excessively lengthy proceedings before Greek administrative courts, in particular before the Council of State;

Considering therefore that further general measures are required to comply with the Court’s judgments;

Noting with interest the new draft law which has been prepared and is entitled “improvement and acceleration of administrative court proceedings”, currently pending before Parliament, which in particular imposes limitations on the possibilities for parties to request and obtain adjournments of hearings, provides the possibility of services to be effected on behalf of an individual party by court clerks’ offices and provides strict deadlines within which administrative court judges should deliver their judgments after the hearings;

Measures to set up an effective domestic remedy

Noting with concern that the problem of lack of effective remedy, highlighted for the first time in the Konti-Arvaniti case mentioned above in 2003, still remains unresolved;

Welcoming the work accomplished by the Greek authorities leading to the preparation of a draft law entitled “Compensation of litigants due to excessively lengthy judicial proceedings”, which provides for a domestic remedy in the form of compensation in cases of excessive length of proceedings, at any stage whatsoever, before administrative, civil or criminal courts;

Stressing however that the creation of the new domestic remedy will not obviate the obligation to pursue with diligence the adoption of general measures required to remedy the underlying systemic problem of excessive length of proceedings in Greece, notably of the proceedings before the administrative courts and the Council of State,

      URGES the Greek authorities, in view of the gravity of the systemic problem at the basis of the violations:

          - to accelerate the adoption of the new draft legislation aimed at the acceleration of proceedings before all administrative courts and to envisage additional measures such as further increase of the posts of judges and of administrative staff in these courts and further improvement of their infrastructure;

          - to make all possible efforts to accelerate the adoption of the new draft legislation providing for a remedy and to ensure that this is implemented in accordance with the requirements of the Convention and the case-law of the Court;

      DECIDES to resume consideration of these cases, at the latest, at its 1013th meeting (3-5 December 2007) (DH).

* * *

Appendix to Interim Resolution CM/ResDH(2007)74

          - 85 cases of excessively length of proceedings concerning civil rights and obligations before administrative courts (and the lack of an effective remedy)

70626/01 Manios, judgment of 11/03/2004, final on 11/06/2004
19841/02 Agathos and 49 others, judgment of 23/09/04, final on 02/02/05
43848/02 Aggelopoulos, judgment of 09/06/2005, final on 09/09/2005
37429/02 Anagnostopoulos, judgment of 10/02/2005, final on 10/05/2005
10803/04 Andoniadis, judgment of 06/07/2006, final on 06/10/2006
33523/02 Andreadaki and others, judgment of 10/02/2005, final on 10/05/2005
21824/02 Andrianesis and others, judgment of 10/02/2005, final on 06/07/2005
34206/02 Apostolaki, judgment of 17/03/2005, final on 17/06/2005

34339/02 Athanasiadis and others, judgment of 28/04/2005, final on 30/11/2005
10691/04 Athanasiou., judgment of 01/06/2006, final on 01/09/2006
38302/02 Charmantas and others, judgment of 10/02/2005, final on 10/05/2005
13320/03 Damilakos, judgment of 30/03/06, final on 30/06/06
13332/03 Ekdoseis N. Papanikolaou A.e., judgment of 04/05/2006, final on 04/08/2006
18830/03 Fraggalexi, judgment of 09/06/2005, final on 09/09/2005
36251/03 Galatalis, judgment of 13/07/2006, final on 13/10/2006
5077/03 Gavalas, judgment of 04/08/2005, final on 04/11/2005
25324/03 Georgopoulos and others, judgment of 08/12/05, final on 08/03/06
15689/03 Giakoumeli and others, judgment of 08/12/05, final on 08/03/06
70314/01 Gialamas, judgment of 21/10/04, final on 21/01/05
72285/01 Giamas and others, judgment of 10/02/2005, final on 10/05/2005
33339/02 Gika and 9 others, judgment of 17/03/2005, final on 17/06/2005
394/03 Gika and five others, judgment of 30/06/2005, final on 30/09/2005
14173/03 Gili and others, judgment of 08/12/05, final on 08/03/06
72983/01 Goutsia and others, judgment of 10/02/2005, final on 10/05/2005
72030/01 Hadjidjanis, judgment of 28/04/05, final on 28/07/05
5072/03 Ioannidis, judgment of 04/08/2005, final on 04/11/2005
5973/03 Kabetsis, judgment of 21/04/2005, final on 21/07/2005
67591/01 Kalkanis, judgment of 08/07/2004, final on 08/10/2004
33173/02 Kalliri-Giannikopoulou and others, judgment of 10/02/2005, final on 10/05/2005
38688/02 Kallitsis No. 2, judgment of 17/02/2005, final on 06/07/2005
21276/03 Karagiannis Charalambos, judgment of 09/06/2005, final on 09/09/2005
27806/02 Karagiannis Stamatios, judgment of 10/02/2005, final on 10/05/2005
6706/02 Karellis, judgment of 02/12/2004, final on 02/03/2005
37420/02 Karobeïs, judgment of 10/02/2005, final on 10/05/2005
21279/03 Kaskaniotis and others, judgment of 09/06/2005, final on 09/09/2005
32279/02 Katsaros Charalambos, judgment of 10/02/2005, final on 10/05/2005
5957/03 Kollias, judgment of 21/04/2005, final on 21/07/2005
10304/03 Kollokas, judgment of 30/03/06, final on 30/06/06
31259/04 Kortessi, judgment of 13/07/2006, final on 11/12/2006
33819/02 Kosti-Spanopoulou, judgment of 10/02/2005, final on 10/05/2005
33191/02 Kotsanas, judgment of 10/02/2005, final on 10/05/2005
5967/03 Koufogiannis, judgment of 21/04/2005, final on 21/07/2005
72289/01 Kouremenos and others, judgment of 10/02/2005, final on 10/05/2005
34362/02 Koutroubas and others, judgment of 10/02/2005, final on 10/05/2005
73669/01 Kozyris and others, judgment of 10/02/2005, final on 10/05/2005
72211/01 Lagouvardou-Papatheodorou and others, judgment of 10/02/2005, final on 10/05/2005
65430/01 Lalousi-Kotsovos, judgment of 19/05/2004, final on 19/08/2004
31282/04 Lazaridi, judgment of 13/07/2006, final on 11/12/2006
19731/02 Loumidis, judgment of 04/08/2005, final on 04/11/2005
16106/03 Makedonopoulos, judgment of 19/05/2005, final on 19/08/2005
43841/02 Makris, judgment of 07/04/2005, final on 07/07/2005
25536/04 Mantzila, judgment of 04/05/2006, final on 04/08/2006
34358/02 Mikros, judgment of 10/02/2005, final on 10/05/2005
16109/03 Moïsidis, judgment of 19/05/2005, final on 19/08/2005
22029/03 Nafpliotis, judgment of 02/06/2005, final on 02/09/2005
6711/02 Nastos, judgment of 15/07/2004, final on 10/11/2004
31273/04 Nikas and Nika, judgment of 13/07/2006, final on 11/12/2006
21978/03 Nikolopoulos, judgment of 02/06/2005, final on 02/09/2005
32168/03 Nikopoulou, judgment of 29/09/2005, final on 29/12/2005
42589/02 Oikonomidis, judgment of 17/02/2005, final on 17/05/2005
8694/02 Palaska, judgment of 19/05/2004, final on 10/11//2004
33808/02 Papamichaïl and others, judgment of 10/02/2005, final on 10/05/2005
18602/03 Patelaki-Skamagga and others, judgment of 30/06/2005, final on 30/09/2005
18582/03 Patsouraki and others, judgment of 30/06/2005, final on 30/09/2005
5038/03 Plastarias, judgment of 21/04/2005, final on 21/07/2005
33518/02 Refene-Michalopoulou and others, judgment of 17/03/2005, final on 17/06/2005
14165/03 Renieri and others, judgment of 08/12/05, final on 08/03/06

64756/01 Sadik Amet and others, judgment of 03/02/2005, final on 03/05/2005
37428/02 Selianitis, judgment of 10/02/2005, final on 10/05/2005
5081/03 Spyropoulos, judgment of 04/08/2005, final on 04/11/2005
14127/03 Stamos, judgment of 19/05/2005, final on 19/08/2005
34366/02 Stathoudaki and others, judgment of 10/02/2005, final on 10/05/2005
42108/02 Tavlikou-Vosynioti, judgment of 09/06/2005, final on 09/09/2005
16696/02 Theodoropoulos and others, judgment of 15/07/2004, final on 15/10/2004
9673/03 Tsamou, judgment of 21/04/2005, final on 21/07/2005
42320/02 Tsantiris, judgment of 01/12/05, final on 01/03/06
5085/03 Tsaras, judgment of 04/08/2005, final on 04/11/2005
13464/04 Tsiotras, judgment of 01/06/2006, final on 01/09/2006
17965/03 Tzaggaraki and others, judgment of 26/01/2006, final on 26/04/2006
72270/01 Vasilaki and others, judgment of 10/02/2005, final on 10/05/2005
19431/02 Vayopoulou, judgment of 15/07/2004, final on 15/10/2004
72267/01 Veli-Makri and others, judgment of 10/02/2005, final on 10/05/2005
65501/01 Vergos, judgment of 24/06/2004, final on 24/09/2004
27802/02 Vlasopoulos and others, judgment of 10/02/2005, final on 10/05/2005
5076/03 Vozinos, judgment of 04/08/2005, final on 04/11/2005

          - 5 cases of excessively length of proceedings before civil courts and the lack of an effective remedy

53401/99 Konti-Arvaniti, judgment of 10/04/03, final on 10/07/03
77198/01 Athanasiou, judgment of 29/09/05, final on 29/12/05
20898/03 Chatzibyrros and others, judgment of 06/04/06, final on 06/07/06
11720/03 Inexco, judgment of 27/04/06, final on 27/07/06
3257/03 Sflomos, judgment of 21/04/05, final on 21/07/05

Appendix III

Section 4.2

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution CM/ResDH(2007)75
concerning the judgments of the European Court of Human Rights 
in 44 cases against Poland (see Appendix II)  
relating to the excessive length of detention on remand

(Adopted by the Committee of Ministers on 6 June 2007,
at the 997th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides that the Committee supervises the execution of the judgment of the European Court of Human Right (hereinafter “the Convention” and “the Court”),

Having regard to the great number of judgments of the Court finding Poland in violation of Article 5, paragraph 3, of the Convention on account of the unreasonable length of detention on remand (see Appendix II);

Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations found as well as general measures to prevent new, similar violations of the Convention;

Stressing the importance of rapid adoption of such measures in cases where judgments reveal structural problems which may give rise to a large number of new, similar violations of the Convention;

Having invited Poland to inform it of the measures adopted or being taken in consequence of the judgments concerning the excessive length of detention on remand and having examined the information provided by the Polish authorities in this respect (as it appears in the Appendix I);

Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found (restitutio in integrum), in particular by bringing an end as far as possible to those detentions on remand still in force after the findings of violations by the Court;

Taking note of the steps taken so far by the authorities to remedy the structural problems related to detention on remand in Poland, and in particular:

      - the legislative reforms (the Code of Criminal Procedure of 1997 and subsequent amendments);

      - the judgment of the Polish Constitutional Court of 24 July 2006 finding that a provision of the Code of Criminal Procedure relating to certain aspects of the extension of detention on remand was unconstitutional;

      - the further measures to make courts and prosecutors aware of the requirements stemming from the Convention and the European Court’s case-law as regards the use of detention on remand;

Noting also the statistical data provided by the Polish authorities concerning (a) the number of detentions on remand ordered in a given year and (b) the number and length of detentions on remand not yet ended on 31 December of that year;

Noting further that, according to the statistics provided, the number of cases in which detention on remand lasts for more than 12 months still seems high, especially in cases pending before regional courts; noting, however, that these statistics do not give a full picture of the situation, as they only show the length of detentions that have not yet been terminated as of 31 December, and that they could be usefully supplemented by taking stock of the length of all detentions on remand ordered during a year;

Noting also with interest that following changes to Polish legislation in response to the judgment of the Constitutional Court of 24 July 2006 the general rule according to which detention on remand shall not exceed 2 years in cases pending for trial has been strengthened; noting however that under the amended legislation there might still be situations in which this time-limit may not be observed;

Noting also that, although some courts have begun to refer to the Convention and the European Court’s case-law in rendering decisions on the use of detention on remand, this preventive measure still seems often to be ordered without taking into consideration the Convention’s requirements;

Underlining that continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty;

Recalling that the persistence of reasonable suspicion that a person arrested has committed an offence, although a condition sine qua non for the lawfulness of the continued detention, may no longer suffice after a certain lapse of time and that consequently other relevant and sufficient grounds must be presented in order to extend such detention;

Noting that the number of cases in which the European Court has found similar violations is constantly increasing,

ENCOURAGES the Polish authorities, in view of the extent of the systemic problem concerning the excessive length of detention on remand:

- to continue to examine and adopt further measures to reduce the length of detention on remand, including possible legislative measures and the change of courts’ practice in this respect, to be in line with the requirements set out in the Convention and the European Court’s case-law; and in particular

- to take appropriate awareness-raising measures with regard to the authorities involved in the use of detention on remand as a preventive measure, including judges of criminal courts and prosecutors;

- to encourage domestic courts and prosecutors to consider the use of other preventive measures provided in domestic legislation, such as release on bail, obligation to report to the police or prohibition on leaving the country;

- to establish a clear and efficient mechanism for evaluating the trend concerning the length of detention on remand;

EXPECTS to receive further information on additional measures planned or already taken to comply with the judgments concerning the unreasonable length of detention on remand and,

DECIDES to resume consideration of the outstanding measures in these cases, within one year at the latest.

Appendix I to Interim Resolution CM/ResDH(2007)75

Information provided by the Government of Poland
during the examination of the cases

concerning the excessive length of detention on remand
by the Committee of Ministers

      I. Individual measures

In the majority of these cases, the detention on remand impugned by the European Court has been ended.

      II. General measures taken to reduce the length of detention on remand

    1. Legislative measures as regards the length of detention on remand

A. Grounds for detention on remand (as set out in the Code of Criminal Procedure of 1997)

The grounds for remanding in custody were modified with the entry into force on 01/09/98 of the Code of Criminal Procedure of 6 June 1997.

According to Article 257§1, detention on remand shall not be imposed if another preventive measure is sufficient. The provisions of the Code of Criminal Procedure also set out other preventive measures, such as bail, police supervision, guarantee by a responsible person or a social entity, temporary ban on engaging in a given activity and prohibition to leave the country.

Detention on remand may be ordered if there is a strong probability that the accused has committed an offence and, cumulatively, if there is a risk of his or her absconding, obstructing the proceedings or, in certain cases, re-offending (Article 258§1). According to Article 258§2 of the Code of Criminal Procedure, an accused may be detained remanded if he or she risks a long term of imprisonment (if the charges relate to offences punishable by at least 8 years of imprisonment or if a court of first instance sentenced the accused to a minimum of 3 years of imprisonment).

B. Placement in detention on remand and extension (as set out in Art. 263 of the Criminal Code of Procedure)

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

    “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
    2.  If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.
    3.  The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
    4.  Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000, paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.

C. Ruling of the Constitutional Court on paragraph 4 of Article 263 of the Criminal Code of Procedure

In its judgment of 24 July 2006 (reference No. SK 58/03), the Polish Constitutional Court, having examined a constitutional complaint on the length of detention on remand, ruled that the provision of Article 263§4 of the Code of Criminal Procedure, according to which such detention may be extended beyond the period of 2 years, if “other important obstacles whose removal has not been possible” exist, is in breach of Article 41, paragraph 1 in connection with Article 31 paragraphs 1 and 3 of the Constitution of the Republic of Poland. It should be noted that the Constitutional Court declared the unconstitutional character of this provision only as it relates to investigation stage.

This judgment was grounded on the fact that this provision curtailed the enjoyment of constitutional rights and freedoms in such an imprecise, arbitrary and broad way that it affected the very essence of constitutional freedoms. The lack of statutory time limitation for the extension of detention on remand only strengthened the finding of unconstitutionality of this provision.

The Constitutional Court also declared that this provision was to expire within 6 months after publication of the judgment in the Journal of Laws – Dziennik Ustaw. Therefore it lost its binding force on 8 February 2007.

D. Amendment of the Code of Criminal Procedure following the Constitutional Court’s ruling

Accordingly, Article 263, paragraph 4, of the Code of Criminal Procedure was amended as follows:

    “Paragraph 4. The extension of applying detention on remand over the periods specified in paragraphs 2 and 3, may be made only by the court of appeal in whose jurisdiction the proceedings are conducted, on a motion from the court before which the case is pending, and at the investigation stage on a motion from the appellate prosecuting authorities. This can be done if deemed necessary in connection with a suspension of criminal proceedings, in connection with actions aiming at establishing or confirming the identity of the accused, prolonged psychiatric observation of the accused, prolonged preparation of an opinion of an expert, conducting evidentiary action in a particularly intricate case or conducting them abroad, or intentional protraction of proceedings by the accused.”

Moreover, a new provision was added in paragraph 4a of Article 263:
paragraph 4a. The court of appeal, in whose jurisdiction the proceedings are being conducted may also, on a motion from the court before which the case is pending, order the extension of the detention on remand for a fixed period, exceeding that specified in paragraph 3, because of other important obstacles whose removal has not been possible”.

This amendment was adopted on 12 January 2007 and entered into force on 16 February 2007.

According to the explanatory report on this amendment:
- the changes introduced in paragraph 4 of Article 263 of the Code of Criminal Procedure eliminated the clause of “other important obstacles whose removal has not been possible” as a legal ground for extending detention on remand;
- furthermore, extension of detention on remand was also allowed in cases in which proceedings could not have been completed because of measures under way to establish or confirm the identity of the accused.
- however, the new paragraph 4a will enable courts conducting criminal proceedings to extend detention on remand beyond the period of 2 years because of ‘other obstacles whose removal has not been possible’, which would allow a more flexible use of this provision. This new regulation is not contrary to the Constitutional Court’s judgment, which declared the clause of the said obstacles unconstitutional only in reference to the investigationl stage of the proceedings.

2. Practice of criminal courts and statistical data

A. Recent practice of criminal courts

In March 2006 the Polish authorities provided information on the recent practice of criminal courts concerning the imposition and extension of detention on remand. In 26 cases the courts (in the jurisdiction of 6 out of the 11 appeal courts in the country) made express reference in their decisions to the case-law of the European Court and in some cases to the circular sent out by the Ministry of Justice. In most of these cases the courts decided to bring an end to the detention on remand and replace it by some alternative measure of constraint, such as the obligation to report to the police or prohibition on leaving the country. In two other appeal court districts, similar decisions have been handed down in three cases, but without reference to the case-law of the European Court.

B. Latest figures on the length of detention on remand in 2006:

According to the figures provided by the Polish Ministry of Justice the courts delivered 33 181 decisions on detentions on remand in the year 2006 compared with 34 830 in the year 2005.

The three tables and charts below (I, II and III) show the number of detentions on remand and their length as recorded on the last day of the reporting period, i.e. respectively on 31 December 2005 and 31 December 2006. The relevant data are presented separately for each category of courts.


Table and Chart I. - District courts

 

2005

2006

Up to 3 months

2 528

2 358

3 – 6 months

2 035

2 263

6 – 12 months

1 963

1 899

12 months – 2 years

918

911

Over 2 years

191

190

In total

7 635

7 632


Table and Chart II. - Regional courts

 

2005

2006

Up to 3 months

207

160

3 – 6 months

432

391

6 – 12 months

1 166

1 237

12 months – 2 years

1 165

1 326

Over 2 years

863

850

In total

3 833

4 000


Table and Chart III - Courts of appeal

 

2005

2006

Up to 3 months

0

72

3 – 6 months

8

48

6 – 12 months

5

27

12 months – 2 years

0

32

Over 2 years

0

27

In total

13

206

As it transpires from the above tables, that, for obvious reasons, district courts were those which have ordered detention on remand in the highest number of cases.

Nonetheless detention on remand imposed by regional courts lasted longer: as recorded on the last day of the reporting period, these courts ordered the highest number of detentions on remand which lasted between 12 months and 2 years or more than 2 years. In 2006, such detentions accounted respectively for 33.15 per cent and 21.25 per cent of the total number of detentions on remand ordered by these courts (respectively 30 per cent and 23 per cent in 2005). It should be noted in this respect that these courts deal with very serious cases, including those of organised crime, in which detention on remand as the most severe measure appears to be indispensable.

According to the Polish authorities, the problem of excessively lengthy detentions on remand concerns mainly the detentions ordered by the regional courts. However, the number of detentions on remand lasting between 12 months and 2 years and more than 2 years, ordered by such courts does not indicate a general upward trend.

3. Publication and dissemination

The European Court's judgments delivered in the cases of Chodecki and Olstowski have been translated into Polish and published on the Internet site of the Ministry of Justice www.ms.gov.pl.

On 4 June 2004 the Ministry of Justice wrote to all the Presidents of Courts of Appeal with an analysis of the case-law of the European Court concerning the requirements relating to the reasons for placing and keeping a person in detention pending trial. It was underlined in particular that the reason evoked in paragraph 2 of Article 258 of the Code of Criminal Procedure cannot justify keeping someone in detention for a long period of time.

Moreover, the Ministry of Justice has sent out circulars, drawing the attention of courts and public prosecutors to the reasoning required for decisions prolonging detention on remand.

      III. Conclusions of the respondent state

The government believes that the measures set out above demonstrate its determination and the sustained efforts that it has already made to reduce the length of detention on remand. The government will continue to take all necessary measures to that effect and will keep the Committee of Ministers informed of all new developments, and in particular of the practical implications of the measures adopted.

* * *

Appendix II to Interim Resolution CM/ResDH(2007)75

List of cases

    - 44 cases of length of detention on remand

25792/94 Trzaska, judgment of 11/07/00
23042/02 Cabała, judgment of 08/08/2006, final on 08/11/2006
3489/03 Cegłowski, judgment of 08/08/2006, final on 08/11/2006
17584/04 Celejewski, judgment of 04/05/2006, final on 04/08/2006
49929/99 Chodecki, judgment of 26/04/2005, final on 26/07/2005
75112/01 Czarnecki, judgment of 28/07/2005, final on 28/10/2005
5270/04 Drabek, judgment of 20/06/2006, final on 20/09/2006
77832/01 Dzyruk, judgment of 04/07/2006, final on 04/10/2006
7677/02 Gąsiorowski, judgment of 17/10/2006, final on 17/01/2007
31330/02 Gołek, judgment of 25/04/2006, final on 25/07/2006
38654/97 Goral, judgment of 30/10/03, final on 30/01/04
28904/02 Górski, judgment of 04/10/2005, final on 15/02/2006
38227/02 Harazin, judgment of 10/01/2006, final on 10/04/2006
27504/95 Iłowiecki, judgment of 04/10/01, final on 04/01/02
36258/97 J.G., judgment of 06/04/2004, final on 06/07/2004
33492/96 Jabłoński, judgment of 21/12/00
15479/02 Jarzyński, judgment of 04/10/2005, final on 04/01/2006
25715/02 Jaworski, judgment of 28/03/2006, final on 28/06/2006
10268/03 Kankowski, judgment of 04/10/2005, final on 04/01/2006
25501/02 Kozik, judgment of 18/07/2006, final on 18/10/2006
31575/03 Kozłowski, judgment of 13/12/2005, final on 13/03/2006
17732/03 Krawczak, judgment of 04/10/2005, final on 04/01/2006
34097/96 Kreps, judgment of 26/07/01, final on 26/10/01
16535/02 Kubicz, judgment of 28/03/2006, final on 28/06/2006
44722/98 Łatasiewicz, judgment of 23/06/2005, final on 23/09/2005
36576/03 Leszczak, judgment of 07/03/2006, final on 07/06/2006
57477/00 Malik, judgment of 04/04/2006, final on 04/07/2006
13425/02 Michta, judgment of 04/05/2006, final on 04/08/2006
39437/03 Miszkurka, judgment of 04/05/2006, final on 04/08/2006
34052/96 Olstowski, judgment of 15/11/01, final on 15/02/02
6356/04 Pasiński, judgment of 20/06/2006, final on 23/10/2006
42643/98 Paszkowski, judgment of 28/10/2004, final on 28/01/2005
44165/98 Skrobol, judgment of 13/09/2005, final on 13/12/2005
29386/03 Stankiewicz, judgment of 17/10/2006, final on 17/01/2007
30019/03 Stemplewski, judgment of 24/10/2006, final on 24/01/2007
3675/03 Stenka, judgment of 31/10/2006, final on 31/01/2007
9013/02 Świerzko, judgment of 10/01/2006, final on 10/04/2006
33079/96 Szeloch, judgment of 22/02/01, final on 22/05/01
56552/00 Telecki, judgment of 06/07/2006, final on 06/10/2006
29687/96 Wesołowski, judgment of 22/06/2004, final on 22/09/2004
31999/03 Żak, judgment of 24/10/2006, final on 24/01/2007
25301/02 Zasłona, judgment of 10/10/2006, final on 10/01/2007
13532/03 Zborowski, judgment of 31/10/2006, final on 31/01/2007
28730/02 Zych, judgment of 24/10/2006, final on 24/01/2007

1 Formerly Petrov-Popa.

2 This case also appears in Section 3.a

3 This case also appears in Section 3.a

4 This case also appears in Section 3.a

5 This case also appears in Section 3.a

6 This case also appears in Section 3.a

7 This case also appears in Section 3.a

8 This case also appears in Section 3.a

9 This case also appears in Section 3.b

10 This case also appears in Section 3.a

11 This case also appears in Section 3.a

12 This case also appears in Section 3.a

13 This case also appears in Section 3.a

14 This case also appears in Section 3.b

15 This case also appears in Section 3.a


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